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Gragg v. Berryhill

United States District Court, N.D. West Virginia, Martinsburg

June 4, 2018

NANCY A. BERRYHILL, Deputy Commissioner of Operations, Defendant.




         On September 6, 2016, Plaintiff Cheryl Ann Gragg ("Plaintiff), by counsel Jan Dils, Esq., filed the Complaint in this Court to obtain judicial review of the final decision of Defendant Nancy A. Berryhill, Deputy Commissioner of Operations[1] ("Commissioner" or "Defendant"), pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g). (Compl., ECF No. 1). On November 13, 2017, the Commissioner, by counsel Helen Campbell Altmeyer, Assistant United States Attorney, filed the Answer and the Administrative Record of the proceedings. (Answer, ECF No. 4; Admin. R., ECF No. 5). On January 12, 2018, and February 12, 2018, Plaintiff and the Commissioner filed their respective Motions for Summary Judgment. (PL's Mot. for Summ. J. ("PL's Mot"), ECF No. 9; Def.'s Mot. for Summ. J. ("Def's Mot."), ECF No. 11). Following review of the motions by the parties and the Administrative Record, the undersigned Magistrate Judge now issues this Report and Recommendation to the District Judge.


         On February 7, 2014, Plaintiff filed her first application under Title II of the Social Security Act for a period of disability and disability insurance benefits (“DIB”) and under Title XVI of the Social Security Act for Supplemental Security Income (“SSI”), alleging that her disability began on June 15, 2002. (R. 18). Plaintiff's earnings record shows that she acquired sufficient quarters of coverage to remain insured through December 31, 2006; therefore, Plaintiff must establish disability on or before this date. (R. 18). Plaintiff's claim was initially denied on May 1, 2014, (R. 18), and denied again upon reconsideration on July 9, 2014 (R. 18). On August 21, 2014, Plaintiff filed a written request for a hearing, (R. 18) that was held before United States Administrative Law Judge Jon K. Johnson (“ALJ”), on July 27, 2016, in Charleston, West Virginia. (R. 18). Plaintiff, represented by Counsel Harold Carpenter, Esq.[2], appeared and testified, as did Nancy Shapiro, an impartial vocational expert. Id. On September 1, 2016, the ALJ issued an unfavorable decision to Plaintiff, finding that she was not disabled within the meaning of the Social Security Act. (R. 15-25). On July 9, 2017, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (R. 7-9).


         A. Personal History

         Plaintiff was born on January 18, 1967, and was forty-nine years old at the time she filed her first SSI claim. (Pl's Mem. in Supp. Mot. Summ. J. (ECF No. 10), p. 2). She completed high school and her prior work experience included working as an accounting clerk. Id. She was married at the time she filed her initial claim and at the time of the administrative hearing. (R. 39). She has two children, who are independent. Id. In her Complaint, Plaintiff alleges disability based on her experiencing major and minor seizures following her 1996 car accident, accompanied with migraine headaches, hyperventilation, and vertigo. (Pl's Mem., p. 3)

         B. Medical History

         1. Medical History Pre-Dating Alleged Onset Date of June 15, 2002

         Plaintiff's medical records demonstrate that Ms. Gragg began experiencing what she identified to her doctor as “spells, ” beginning as early as October 9, 2000, when Plaintiff was admitted to the hospital complaining of dizziness. (R. 304). Subsequently, on November 10, 2000, Plaintiff visited St. Joseph's Hospital and underwent an electroencephalogram (“EEG”) that resulted in a normal study. (R. 266). On November 29, 2000, Plaintiff met with Dr. Scott Sole, who noted that Plaintiff described her spells as episodes where “she becomes light headed and complains of tingling and numbness in her hands and face.” (R. 264). During these episodes, Plaintiff described that she felt nauseated and she experienced a “skin crawling sensation” that would resolve after a few minutes. She was then prescribed Paxil. On January 4, 2001, Plaintiff saw Dr. Sole for a follow-up neurological consultation. Plaintiff noted that she had observed a decrease in the episodes; however, there have been no significant changes in her overall condition. Dr. Sole planned to follow-up with Plaintiff three months later. (R. 267). From January 2, 2001 until January 15, 2001, Plaintiff's doctor excused her from work as her absence was medically necessary. (R. 660).

         2. Medical History Post-Dating Alleged Onset Date of June 15, 2002

         On February 2, 2006, Plaintiff met with Dr. Dawlah for a neurologic consultation. During this consultation, Dr. Dawlah reported that for the past decade. Plaintiff had suffered from “spells” that left Plaintiff stiffened, foaming at the mouth, and unresponsive for approximately thirty seconds. (R. 273). The doctor reported that Plaintiff had a head injury that occurred approximately ten years prior to the 2006 neurological consultation and Plaintiff has since suffered from “spells/probable seizures, migraines, and Cranial MRI abnormalities.” (R. 274). On February 15, 2006, Plaintiff visited Stonewall Jackson Memorial Hospital for an MRI of the brain that showed “[s]cattered very small punctate high signal intensity lesions as noted, question relationship to an occult embolic events or chronic vascular mediated headaches. Other pathology cannot fully be excluded, and at some point repeat study with contrast is suggested for further evaluation.” (R. 277). On February 23, 2006, Plaintiff visited Dr. Dawlah, who stated that Plaintiff presented with:

Episodes during which she goes ‘blank'. It may last for thirty seconds. She may black out. She does not fall to the ground. She reportedly has had two episodes wherein she stiffened and had some foaming at the mouth. . . . Sometimes after the episode she may feel slightly nauseated. She has had migraine like headaches for four or five years. She has two or three of these a month. She becomes nauseated. . . . She has some photophobia. She has had impaired short-term memory for the last year. She may misplace things and at times, forget people's names.

(R. 273).

         Under the doctor's “impressions, ” the doctor noted that Plaintiff suffers from “spells/probable seizures, migraines, [and] cranial MRI abnormalities.” (R. 274). The doctor took Plaintiff off Depakote and started her on Topamax to be steadily increased over the following weeks. On February 27, 2006, Plaintiff underwent an EEG at United Hospital Center that resulted in a normal awake EEG. (R. 271). On March 1, 2006, Plaintiff underwent another EEG at United Hospital Center for an EEG that resulted in a normal awake/sleep EEG. (R. 270).

         On March 22, 2006, Plaintiff was seen for a neurologic follow up appointment and informed her doctor that she was doing well on the Topamax because she had not had a seizure preceding two and a half weeks. (R. 272). On January 19, 2007, Plaintiff was seen by Dr. Navada for a neurologic follow-up for her continuous “spells.” He determined that he did not believe the seizures to be spells and that some of her symptoms were probably stressed related. (R. 321). Dr. Navada tapered her off Topamax and prescribed Lexapro. Id. She was again reminded that she should not operate a motor vehicle until she is spell free. Id. On August 20, 2007, Plaintiff underwent several examinations that indicated that it was a normal initial portable chest radiographic study and normal pre-contrast CT scan of the brain. (R. 285, 86).

         On August 21, 2007, Plaintiff was admitted to Stonewall Jackson Memorial Hospital complaining of “chest pain described as sharp, lasting a few minutes, without radiation . . . [and] some finger numbness.” (R. 279). Plaintiff received a Head CT scan, resulting in “normal precontrast . . . scan findings of the brain [and r]ight greater than left ethmoid mucosal thickening changes compatible with sinusitis.” (R. 286). Plaintiff was discharged and prescribed Dilantin. (R. 281). On August 23, 2007, Plaintiff underwent an EEG that demonstrated “epileptiform activity over the right temporal lobe. The findings represent a risk factor for clinical seizures.” (R. 293). On August 31, 2007, Plaintiff saw Dr. Navada for a neurological follow-up and determined that her present symptoms suggest seizures. He noted that she has had an EEG that was abnormal, but she has had previous normal EEG's within acceptable limits. (R. 329). Plaintiff described to Dr. Navada that her “spells” make her feel like she is in “another world, ” and does not remember the episodes. Id. She described that she “loses her balance, ” and “she has had some episodes occur at night wherein her hands become ‘drawn.' She may ‘chew up' her tongue. She has even lost control of her bladder.” Id. Dr. Navada continued Plaintiff on Dilantin.

         On September 14, 2007, Plaintiff visited Dr. Navada for another neurological follow up. She noted that she broke out in a rash that Dr. Navada noted was probably caused by the Dilantin. Id. On October 22, 2007, Plaintiff visited Dr. Navada who noted that he did not want to place her back on anticonvulsants until her rash had completely resolved. (R. 335). He also noted that the “[i]nput of WVU will be obtained at a later date.” Id. On October 31, 2007, Plaintiff went for a neurological follow up and was placed back on Depakote, after she developed a rash caused by Dilantin and Tegretol. (R. 335). On December 4, 2007, Plaintiff's doctor, Jack Riggs, who detailed Plaintiff's past history of Dilantin, Tegretol, Depakote, and Topamax that were all ineffective or caused an allergic reaction. (R. 343). Dr. Riggs noted that he “could find no focal or lateralizing neurologic abnormalities.” Id. Dr. Riggs started Plaintiff on phenobarbital. Id. Plaintiff underwent an EEG on December 4, 2007, that “demonstrate[d] epileptiform abnormalities that [Dr. Brick] believe[d] appear[ed] independently over the 2 sides of the scalp.” (R. 344).

         Plaintiff was then admitted to the United Hospital Center on December 30, 2013, after being seizure free for four years. (R. 385). Plaintiff was transported via EMS after gasping for air in her sleep and showing signs that she was unable to breathe. (R. 408). Plaintiff's body stiffened, she clenched her teeth, and she stared off, unable to speak. (R. 408). Plaintiff's husband was unable to wake her up. Plaintiff remained in this state until EMS arrived approximately twenty-five minutes after the onset of this seizure. Id. Plaintiff was unable to remember that event during the doctor's assessment after Plaintiff regained consciousness. (R. 385). On December 31, 2013, Plaintiff received a CT scan of the brain that showed “no acute intracranial process [and m]ild paranasal sinus mucosal thickening.” (R. 394). Plaintiff underwent an MRI of the brain without contrast that showed there was “small vessel disease a little more than expected for age but still fairly mild.” (R. 395). On January 23, 2014, Plaintiff had an EEG that resulted in “a normal awake and sleep EEG. . . . that does not exclude the diagnosis of epilepsy.” (R. 430).

         On March 10, 2014, Plaintiff had an EEG that resulted in a normal awake and sleep EEG, which did “not exclude the diagnosis of epilepsy.” (R. 428). On November 14, 2014, Plaintiff underwent a “normal awake and sleep EEG. . . . [which did] not exclude the diagnosis of epilepsy.” (R. 536). On November 16, 2014, Plaintiff was admitted to the hospital and “present[ed] with multiple tonic, clonic seizures. . . . [S]he was ‘zoning out' . . . hard to communicate with, [and] was ‘not focusing.'” (R. 545). The medical records depicted that on her way to the hospital, she had a generalized tonic/clonic seizure. The medical records also represented that Plaintiff had a known seizure disorder that was first diagnosed in 2000 and was (at the time of this hospital visit) prescribed Phenobarbital and Keppra. (R 545). The medical records also stated that Plaintiff “has petit mals regularly, nearly weekly, sometime multiple times a week. Her last tonic, clonic seizure was in Jan 2014.” (R. 545).

         On November 16, 2014, Plaintiff underwent a Head CT without Contrast that resulted in “no acute intracranial process.” (R. 461). Plaintiff also underwent an Extended EEG (a normal awake and asleep 24-hour video EEG monitoring) which resulted in recurrent seizures. (R. 548). On November 17, 2014, Plaintiff underwent another EEG (a normal awake and asleep 15-1/2 hours video EEG monitoring) with no spells recorded. (R. 549). On January 2, 2015, Plaintiff underwent an EEG, which resulted in a normal study during periods of wakefulness and sleep. (R. 551). On November 11, 2015, Plaintiff underwent a Brain MRI with and without Contrast, resulting in “[g]reater than expected amount of non-masslike regions of increased signal on T2-weighted images within the subcortical white matter. These are nonspecific in nature. These do not demonstrate restricted diffusion or abnormal postcontrast enhancement. No findings suggestive of an etiology for the patient's seizures.” (R. 578).

         3. Medical Reports/Opinions

         a. Disability Determination at the Initial Level

         On February 7, 2014, agency reviewer, Kathy Westfall, reviewed Plaintiff's records and determined that “there is insufficient evidence for the DLI period to determine the severity of the physical allegations.” (R. 57). The disability determination report stated that “[a] medically determinable impairment (MDI) has not been established and therefore consideration of Symptoms and Credibility is not applicable to this claim.” (R. 58).

         On April 29, 2014, agency reviewer Holly Cloonan, Ph.D., reviewed Plaintiff's records and determined that there were “no mental medically determinable impairments established.” (R. 57). Further, “there [were] no records of a mental condition or mental health treatment for the time period of DLI.” (R. 57).

         b. Disability Determination at the Reconsideration Level

         On July 2, 2014, agency reviewer Atiya M. Lateef, M.D., reviewed the prior Disability Determination and determined that the Plaintiff does not have a medically determinable impairment. (R. 64). The determination states that “[t]he evidence as a whole, both medical and non-medical, is not sufficient to support a decision on the claim.” (R. 63).

         On July 1, 2014, agency reviewer Rosemary L. Smith, Psy.D., reviewed the prior PRT assessment and affirmed it as written. (R. 64). The record stated that “there are no records of a mental condition or mental health treatment for the time period of DLI 12/31/2006 [and that there is] insufficient evidence to assess.” (R. 64).

         C. Testimonial Evidence

         At the ALJ hearing held on July 27, 2016, Plaintiff testified that she is married and lives with her husband and her two adult children, Chelsea (26) and Hollie (22). (R. 39). Plaintiff testified that she worked at Glenville State from 1987 or 1988 until 2001, when she resigned from her position. (R. 39-41). She testified that she experienced trouble at work because her boss was unsatisfied with her work performance. (R. 40).

         Plaintiff further testified that she suffers from both grand mal seizures and “mini mal” or smaller seizures, as well as migraine headaches. (R. 42). She testified that she does not remember when the major big seizures began, but she did not suffer from them prior to her car accident in 1996.[3] (R. 43). Plaintiff testified that she had no recollection of what occurs during a seizure, but her family describes the events to her after the seizure. (R. 43). She then described her mini mal seizures, stating that she does not understand what happens during the seizures, but realizes what happens after a seizure is over and those particular seizures do not last as long as the grand mal seizures. (R. 44). Plaintiff described her migraine headaches as causing “much sensitivity to the light and sound” making her nauseated and sick, and this occurs approximately three to four times a month. (R. 46). At the hearing, Plaintiff testified that prior to her car accident she did not suffer from major big seizures, mini mal seizures, nor migraines. (R. 46). Plaintiff testified that her doctors also advised her not drive. (R. 48).

         D. Vocational Evidence

         Nancy Shapiro, vocational officer, also testified at the hearing. Ms. Shapiro characterized Plaintiff's past work as an accounting clerk, which has been classified as sedentary work. (R. 51). Ms. Shapiro testified that there is a greater tolerance for absences in her type of work than for unskilled work because employers award sick days and time off. (R. 51).

         E. Disability Reports

         The disability report stated that Plaintiff suffered from seizures due to head trauma, confusion, memory loss, and chronic fatigue that limit her ability to work. (R. 153). Plaintiff reported that she stopped working on June 15, 2001 “because of [her] condition(s).” (R. 153). Plaintiff stated that she has only had “one job in the last 15 years before [she] became unable to work.” (R. 154). The report also indicated that Plaintiff used machines, tools or equipment; used technical knowledge or skills; and wrote, completed reports, and performed duties like this. (R. 155). She reported that during her employment, Plaintiff walked, stood, and sat for approximately four hours a day; stooped, kneeled, and crouched for approximately two hours a day; handled large objects for approximately two hours; wrote, typed, or handled small objects for approximately eight hours a day; and reached for approximately eight hours a day. (R. 155). She reported that Plaintiff was prescribed Acetaminophen, Benadryl, and Phenobarbital. (R. 156).

         The report also indicated that Plaintiff was treated at University Hospital Center in March 2014, for PCP. (R. 156); treated by Dr. Levos from 1999 to 2006 for her seizures (R. 157); treated from 2001 to 2006 for heart palpitations and wooziness by Dr. Pamfilis (R. 159); treated at Ruby Memorial from 2009 to 2014 for seizures (R. 160); treated in February 1996 for head trauma. (R. 158); and treated from 2001 to 2006 by Dr. Sole for head trauma. (R. 160).

         The disability report on appeal stated that Plaintiff has difficulty with “personal tasks tak[ing] longer to complete.” (R. 180). Plaintiff also reported that her driving is restricted, she has difficulty concentrating, she is easily confused, and her memory problems have worsened. (R. 180).

         F. Lifestyle Evidence

         On her adult function report dated March 27, 2014, Plaintiff described that she was restricted in her driving, suffered from short and long term memory loss and confusion, has “no attention span, ” was exhausted and weak, suffered from seizures, and was a fall risk. (R. 164). She stated that since the onset of her illness/condition, she has difficulty with her memory and staying on task, in addition to not being able to work. (R. 165). Plaintiff also testified that she became a restless sleeper and continues to have difficulty getting to sleep at night. (R. 165). Her husband must remind her to take her prescribed medication, as Plaintiff is not capable of remembering. (R. 166). She stated that she is able to prepare weekly meals with the assistance from her daughters, but the task takes longer than normal to complete. (R. 166). She stated that she is able to go outside, but does “need someone to check on her if she is going somewhere.” (R. 167). She described that she is incapable of driving, as she states that her seizures prevent her from driving. (R. 167). She also stated that although she is able to pay bills, her husband “looks over [her] figures to make sure [she does] not make errors.” (R. 167).

         On her second adult function report dated July 8, 2014, Plaintiff reported that her driving is still restricted, has difficulty concentrating, she still becomes easily confused, and Plaintiff's memory problems have worsened. (R. 180). She also reported that personal tasks take longer for her to complete. (R. 180). Plaintiff described that she is able to take care of her animals, with the help of her family, and can do some cooking and cleaning. (R. 184). She noted that prior to the onset of her seizures, she “used to do it all by [herself], and pretty much keep it up.” (R. 187). Plaintiff also stated that now everything must be marked on a calendar and she must be verbally reminded by her family every day. (R. 188). Plaintiff also stated that there “are sometimes explained to me multiple times.” (R. 188). She described that she was still able to attend church and be involved in church activities. (R. 188).

         The record also contained four letters from Plaintiff's family and friends, including a letter from Plaintiff's daughter, Hollie Gragg, her mother, Janet Sheets, her pastor, Dwight Goff, and her friend, Letisha Kinder, that detailed several examples of how Plaintiff's seizures have affected her life since their onset. (R. 198). Hollie Gragg stated that Plaintiff's “epilepsy” affects her life as she is unable to sustain employment, is forgetful, and is unable to be left alone and Hollie wrote that she must stay in constant contact with Plaintiff. (R. 201). Plaintiff's Pastor, Dwight Goff, also wrote a letter detailing the impact of the seizures on Plaintiff's life, including her hospitalization when she has big seizures and has become completely dependent on others for her transportation. (R. 202). Plaintiff's mother, Janet Sheets, detailed the impact of Plaintiff's seizures on her life, including Plaintiff's inability to function for up to several three to four days following a seizure due to exhaustion and weakness accompanied by migraines. (R. 203). Letisha Kinder, Plaintiff's friend, detailing one example of when the Plaintiff went to the hospital for her seizures, and ended the letter stating that “most days are good, but some days are not so good.” (R. 204).

         Plaintiff completed an Adult Seizure Form which stated that she last saw Dr. Riggs on May 7, 2014 and Dr. Navada on December 20, 2013. (R. 172). She stated that she does “not remember anything that happens during a seizure . . . [and knows] only what [her] family has told [him].” (R. 173). Plaintiff noted that the grand mal seizures occur only when she is sleeping and her mini mal seizures occur randomly throughout the day. (R. 174). Plaintiff's daughter also corroborated that Plaintiff's seizures occur during both the day and night and at random times. (R. 175). Hollie Gragg also stated that she has witnessed Plaintiff staring blankly and confused, and suffers from memory loss, muscle spasms, convulsions, and has chewed on her tongue. (R. 175). She also stated that her seizures can last anywhere from ...

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