United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
JOHN ALOI UNITED STATES MAGISTRATE JUDGE
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 ("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.
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., 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).
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)
Medical History Pre-Dating Alleged Onset Date of June 15,
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).
Medical History Post-Dating Alleged Onset Date of June 15,
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.
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).
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).
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.
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).
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).
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.”
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).
Disability Determination at the Initial
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).
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).
Disability Determination at the Reconsideration
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).
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).
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.
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. (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).
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).
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).
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).
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.
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).
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).
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).
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 ...