United States District Court, N.D. West Virginia, Clarksburg
REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.
October 17, 2017, Plaintiff Daphnie Campbell
(“Plaintiff”), by counsel Scott B. Elkind, Esq.,
filed a Complaint in this Court to obtain judicial review of
the final decision of Defendant Nancy A. Berryhill, Acting
Commissioner of Social Security (“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 December 11, 2017, the Commissioner,
by counsel Helen Campbell Altmeyer, Assistant United States
Attorney, filed an answer and the administrative record of
the proceedings. (Answer, ECF No. 8; Admin. R., ECF No. 9).
On April 2, 2018, and July 3, 2018, Plaintiff and the
Commissioner filed their respective Motions for Summary
Judgment. (Pl.'s Mot. for Summ. J. (“Pl.'s
Mot.”), ECF No. 14; Def.'s Mot. for Summ. J.
(“Def.'s Mot.”), ECF No. 23). 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.
27, 2013, Plaintiff protectively filed her 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 disability that began on May
30, 2013. (R. 241-242). Plaintiff's earnings record shows
that she acquired sufficient quarters of coverage to remain
insured through December 31, 2017; therefore, Plaintiff must
establish disability on or before this date. (R. 31). This
claim was initially denied on January 9, 2014 (R. 150) and
denied again upon reconsideration on April 14, 2014 (R. 168).
On June 4, 2014, Plaintiff filed a written request for a
hearing (R. 182-183), which was held before United States
Administrative Law Judge (“ALJ”) Nikki Hall on
February 2, 2016 in Morgantown, West Virginia. (R. 47-101).
Plaintiff represented by counsel Steven Slater, Esq.,
appeared and testified, as did Casey B. Vass, an impartial
vocational expert. (Id.). On July 6, 2016, the ALJ
issued an unfavorable decision to Plaintiff, finding that she
was not disabled within the meaning of the Social Security
Act. (R. 29-40). On August 15, 2017, the Appeals Council
denied Plaintiff's request for review, making the
ALJ's decision the final decision of the Commissioner.
was born on March 8, 1965, and was forty-eight years old at
the time she filed this SSI claim. (R. 39, 241-242). She has
completed four or more years of college education, earning a
Master's Degree in Higher Education, specializing in
college teaching and learning (R. 259). Plaintiff's prior
work experience included as an instructional assistant,
teacher, insurance salesperson, claims adjuster, billing
clerk, and medical assistant. (R. 92-93). She was married at
the time she filed her initial claim (R. 242) and was married
at the time of the administrative hearing. (R. 59). She has
no dependent children. Id. Plaintiff alleges
disability based on epilepsy, sleep apnea, high blood
pressure, obesity, depression, left parietal brain lesion,
herniated disc, chronic headaches, lymes disease, and
irritable bowel syndrome. (R. 134, 258).
Medical History Pre-Dating Alleged Onset Date of May 30,
reported to the Neurology Ambulatory Center of the University
of Maryland Medical System in Baltimore, Maryland where she
was seen by Dr. Mark H. Flasar. (R. 380).
presented with complaints of abdominal pain and diarrhea to
be evaluated for inflammatory bowel disease. Id. Dr.
Flasar noted in Plaintiff's past medical history the
Past medical history is significant for seizures. These are
interestingly described as uncontrollable shaking and
convulsing of all 4 extremities and foaming at the mouth. The
patient is very clear that she is awake for these episodes
and sees herself shaking and foaming at the mouth and
subsequently sometimes loses consciousness.
was seen by Dr. John Vitarello at the Cardiovascular
Specialists of Frederick in Frederick, Maryland on February
14, 2011 based on a referral from Dr. William Swann. (R.
360). Plaintiff was referred based on an abnormal EKG
“demonstrating evidence of old Septal MI”. (R.
April 29, 2011, Dr. John Vitarello performed a cardiac,
myocardial perfusion positron emission tomography (PET) scan
on the Plaintiff that indicated chest pain, dyspnea on
exertion, and abnormal ECG. (R. 365). Dr. Vitarello's
impressions of the scan were that Plaintiff had “mild
resting flow heterogeneity that improves after Persantine
suggesting mild endothelial mediated vasomotor dysfunction
due to diffuse, non-obstructive, calcific coronary
atherosclerosis”. (R. 358).
presented to Barquist Army Health Clinic on May 15, 2012 for
evaluation following a two-week hospitalization for
“status epilepticus.” (R. 861). Status
epilepticus is a condition in which epileptic seizures are
continuous for more than thirty minutes, or two or more
seizures that follow one another without recovery of
consciousness between them. Plaintiff was counseled to
“decrease her workday about 8 hours, works as an
educator at the prison.” Id. It was stated
that “patient's seizure activity has diminished, is
better, she still has daytime somnolence and falls asleep . .
. sleep has improved from 4-6 hours a night to 8-9 hours per
night.” Id. It was noted that Plaintiff had
been prescribed and was actively taking Keppra for her
seizure disorder. Id.
29, 2012, Plaintiff was seen at Barquist Army Health Clinic
for a migraine that she had been experiencing for over a
week. (R. 851). Plaintiff reported that she has a lesion on
her brain which she believed was the cause of her seizures
and stated that the headaches she experiences exacerbate her
seizure activity. Id. Plaintiff was referred to the
Emergency Room for treatment of her headache, epilepsy, and
recurrent seizures. Id. Treatment notes stated that
a review of Plaintiff's electronic chart “reveals
the patient has been to the ER” in February, March,
April, May, and June “of this year, with multiple
issues and admissions to the hospital.” Id.
September 12, 2012, Plaintiff was seen at Barquist Army
Health Clinic for a review of medical care results and MRI
for recurrent abdominal pain. (R. 566). At this time, it was
stated that Plaintiff was experiencing “current
migraine headaches” but that she “had no
repetitive seizures.” Id.
was hospitalized at Frederick Memorial Hospital on December
8, 2012 with a chief complaint of a “headache described
as a pressure and pounding sensation, a 7/10 in
intensity.” (R. 368). Plaintiff was found to have a
“blood pressure in the 230s/100s” stated to be as
a likely result of the “pain that she was suffering
from.” Id. After her headache improved,
Plaintiff was discharged on December 10, 2012. Id.
was seen at Barquist Army Health Clinic on January 10, 2013
for a referral to neurosurgery at the University of Maryland
to undergo an MRI of her brain under sedation. Plaintiff was
cleared to undergo anesthesia for the MRI study. (R. 784).
was seen at the University of Maryland Medical System on
January 30, 2013 to undergo an MRI of her brain. (R. 387).
The indication of the MRI showed that Plaintiff suffered from
a brain lesion. Id. The lesion was reported as being
in a stable appearance when compared with the prior remote
examination of January 2005. The MRI report goes on to state
that the “diagnostic considerations that are favored
include cortical dysplasia or chronic parenchymal
Medical History Post-Dating Alleged Onset Date of May 30,
emergency department treatment record from Frederick Memorial
Hospital dated July 21, 2013, shows Plaintiff was taken to
the hospital after experiencing a seizure while driving. (R.
418). The record states that Plaintiff “was
driving” and felt she was “having a seizure
coming on. She called her family and then pulled over. Then
she had a seizure. Her sister arrived at scene, no injury,
sister states patient has generalized convulsion for 10
minutes. Then confused.” Id. Plaintiff
remained confused, had a diffuse headache, and her blood
pressure was elevated. Id.
presented at Frederick Memorial Hospital on August 5, 2013
indicating she was experiencing a headache on the top of her
head and is attributed to a parietal brain lesion. (R. 413).
Plaintiff was seen at Frederick Memorial Hospital two weeks
prior for “seizure recurrence.” Id.
Plaintiff was experiencing associated dizziness off and on
with pain. Id.
treatment note from Barquist Army Health Clinic dated August
26, 2013, indicates Plaintiff had been “in and out of
ER for last two weeks” while experiencing headaches and
suffering from seizures during that time. (R. 726-727).
further recurrent ER visits throughout September,
Plaintiff's primary care provider, Dr. William Swann at
Barquist Army Health Clinic issued the following advisement
by record on September 30, 2013, “Ms. Campbell suffers
from a seizure disorder, recurrent migraine headaches and
uncontrolled hypertension. It is my recommendation that she
does not drive . . .” and further recommended that any
and all possible efforts be afforded to Plaintiff for
assistance to arrange transportation to her medical
appointments and important meetings. (R. 703).
was seen at Barquist Army Health Clinic on December 31, 2013.
The treatment note indicates that Plaintiff would soon have a
bariatric surgery to assist her with the health problems she
had been experiencing as a result of obesity. (R. 674). The
note further indicates that Plaintiff's blood pressure
and hypertension were still not well controlled. Id.
Her blood pressure on this date was 150/96 which the note
indicated was a “good number for her” considering
her body habitus and stress. Id. The note further
states that Plaintiff's seizures at this time were
was seen by Dr. Swann at Barquist Army Health Clinic on
January 17, 2014, for a “planned back injection”
and a follow-up appointment from an Emergency Room visit. (R.
668). The note states that Plaintiff suffered a seizure in
mid-December that caused her to fall but had not had any
further episodes. Id.
presented at Frederick Memorial Hospital on March 27, 2014
for monitoring by electroencephalogram (EEG) over interval
periods of time between March 27, 2014 and March 30, 2014.
(R. 945-950). Reports from Plaintiff's observation
indicate she experienced a convulsive seizure during her
admission for “elective cardiac catheterization.”
(R. 947). EEG interpretations provided as follows:
The patient's episode of rocking back and forth and
subjective feeling of having a seizure was nonepileptic . . .
This is an abnormal awake, drowsy, and asleep EEG due to mild
generalized slowing. Generalized slowing indicates diffuse
cerebral dysfunction as seen in metabolic, toxic, or
multifocal or diffuse structural abnormalities, including
dementia or other neurodegenerative diseases.
presented at Meritus Medical Center in Hagerstown, Maryland
on July 15, 2014 where she underwent a gastric bypass
surgery. (R. 951). Plaintiff postoperatively developed some
nausea and vomiting but was treated and discharged home on
July 20, 2014 in stable condition. Id.
29, 2015, Plaintiff reported to the Emergency Department of
Berkeley Medical Center with multiple seizures. (R. 875).
Plaintiff began to smell flowers, which has been indicated as
a signal to her that she may soon experience a seizure, and
did experience a seizure lasting approximately ten minutes in
duration. Id. Plaintiff experienced a second seizure
shortly afterwards lasting about five minutes in duration.
Id. Plaintiff's husband called EMS and Plaintiff
experienced two more seizures in the ambulance while in route
to the hospital. Id. Prior to Dr. Christopher
Gentle's arrival in Plaintiff's patient room,
Plaintiff experienced yet another seizure. Id. Dr.
Gentle described Plaintiff's seizures as “tonic
clonic” and consistent with her past seizures.
Id. Dr. Gentle reported that Plaintiff's last
seizure prior to this episode was in April, two months prior.
Id. Plaintiff stated that she had been taking her
prescribed seizure medications as directed. Id.
received an MRI on her brain on June 30, 2015 while
hospitalized at the Emergency Department of Berkeley Medical
Center with multiple seizures. (R. 892). Impressions of the
MRI included “no acute findings, no abnormal
enhancement” and “no evidence of any temporal
lobe lesions.” Id.
was seen at Parkway Neuroscience and Spine Institute on July
27, 2015 where she presented with complaints of a seizure.
(R. 1107). Plaintiff had been referred to Parkway by Dr.
Debra Bavari from Barquist Army Health Clinic at Fort Detrick
for a neurological consultation. Id. Plaintiff was
accompanied by her husband. Id. The record states
that Plaintiff “relates having one seizure every one to
two years and prior to this June, the last event was on April
09, 2015 and prior to that about two years ago.”
Id. The record further states that Plaintiff had
been evaluated at the “University of Maryland in the
past with SPECT scans that reportedly showed a lesion, now
gone.” Id. The record states that as part of
Plaintiff's evaluation at Berkeley Medical Center between
June 29, 2015 and July 4, 2015 when she was discharged, she
“had a MRI Brain on 6/30 that was ‘normal for
age.' A prior MRI dated 2/17/07 was also reviewed with no
was seen at the Berkeley Medical Center, West Virginia
University Healthcare Emergency Department on September 20,
2015 with her chief complaint listed as
“seizure.” (R. 1013). The Emergency Department
Visit Note states that Plaintiff's husband returned home
and found Plaintiff in an ambulance. Id. The note
further states in regard to the frequency with which
Plaintiff experiences seizures, “she explains that
‘I can go a while without having' a seizure.
Husband reports that ‘it varies, she can go months or
every week.'” Id.
was further hospitalized due to experiencing a
Gastrointestinal (GI) bleed on October 4, 2015. (R.
997-1001). Plaintiff was discharged in a stable condition the
same day. Id.
was seen by Parkway Neuroscience and Spine Institute on
January 19, 2016 complaining of seizures. (R. 1106).
Plaintiff stated she had been having increased seizures,
having experienced a seizure on January 15, 2016 and being
taken to Frederick Memorial Hospital by ambulance where she
was treated in the Emergency Department. Id.
Plaintiff stated her seizures had been “stable until
this year.” However, Plaintiff stated her seizures have
been occurring three times per week “at the
worst.” Id. Dr. Khatuna Gurgenashvili stated
Plaintiff's seizures “are not well controlled at
this stage.” (R. 1108).
presented to the Berkeley Medical Center, West Virginia
University Healthcare Emergency Department on January 26,
2016 after experiencing a seizure at 10:30 A.M. that morning.
(R. 1170). Plaintiff stated her seizure lasted approximately
ten minutes and was followed by a severe headache.
Id. After a review of the patient's relevant
previous records and charts, it was noted that Plaintiff has
a history of “pseudoseizures.” (R. 1174).
again presented to the Berkeley Medical Center, West Virginia
University Healthcare Emergency Department by ambulance on
February 4, 2016, after experiencing a seizure. (R. 1201).
Plaintiff experienced two more seizures on the morning of
February 19, 2016 after experiencing tremors through the
night and returned to the West Virginia University Healthcare
Emergency Department. (R. 1252). Plaintiff was seen just two
weeks prior and stated she feels like she “can't
get it under control.” Id.
Seizures Impairment Questionnaire completed by Dr. Edward
Thompson on February 8, 2016, Dr. Thompson stated that he has
been a part of the Plaintiff's treatment at Barquist
Medical Health Clinic at Ft. Detrick since her first
examination there on January 8, 2010. (R. 1098). Dr. Thompson
stated that Plaintiff's most recent exam was on January
28, 2016. Id. Dr. Thompson provided that
Plaintiff's seizures are quite variable, most typically
about two per month but since October of 2015, she has been
experiencing approximately two or three seizures per week.
Id. He further stated that Plaintiff's seizures
are convulsive and atypical. Id. Dr. Thompson stated
that stress can precipitate Plaintiff's seizures and that
she is incapable of even low stress work. Id.
seizure, Dr. Thompson stated that Plaintiff needs to rest for
hours to recover. Id. In Dr. Thompson's opinion,
as a result of her medical impairments, he stated Plaintiff
does not currently retain the functional ability to work in a
competitive environment, in even a sedentary occupation, on a
full-time, eight hours a day, five day a week basis because
her seizures “are uncontrolled and she is constantly in
imminent danger of having another seizure with attendant loss
of consciousness.” (R. 1099). Dr. Thompson opined that,
before needing to change positions, Plaintiff could sit for
one to two hours, could stand for thirty to forty five
minutes, and could walk for ten to twenty minutes. (R. 1100).
Dr. Thompson further opined that Plaintiff could never lift
and/or carry any amount of weight. (R. 1101). Dr. Thompson
stated that “uncontrolled seizures are a danger to the
patient and potentially to others in any work
environment” and for this reason, Plaintiff could not
work at a regular job on a sustained basis. Id.
Disability Determination at the Initial
January 8, 2014, agency reviewer Fulvio Franyutti, M.D.
reviewed Plaintiff's records and completed a physical
residual functional capacity (“RFC”) assessment.
(R. 134-149). Reviewer, Dr. Franyutti, found the following
exertional limitations: Plaintiff could occasionally lift
and/or carry twenty pounds and she could frequently lift
and/or carry ten pounds. Dr. Franyutti further found that
Plaintiff could stand, walk, and/or sit for a total of about
six hours in an eight (8) hour workday. Her ability to push
and/or pull was found to be unlimited, other than shown, for
lift and/or carry. (R. 144).
postural limitations, reviewer, Dr. Franyutti found that
Plaintiff could occasionally climb ramps and stairs but could
never climb ladders, ropes, and/or scaffolds. Dr. Franyutti
further found Plaintiff could occasionally balance, stoop,
kneel, and crouch, but could never crawl. (R. 145). No.
manipulative, visual, or communicative limitations were
environmental limitations, Plaintiff could have unlimited
exposure to wetness, humidity, and noise. However, Plaintiff
should avoid concentrated exposure to vibration. As to
environmental hazards, Dr. Franyutti found Plaintiff should
avoid concentrated exposure to extreme cold and extreme heat
as well as concentrated exposure to fumes, odors, dusts,
gases, poor ventilations, etc. (R.145-146).
November 12, 2013 agency reviewer Frank Roman, Ed. D.
reviewed Plaintiff's records and completed a psychiatric
review technique (“PRT”) assessment and mental
residual functional capacity assessment (“MRFC”).
(R. 142, 146-147). In the PRT, Reviewer Roman found Plaintiff
had mild restrictions of activities of daily living as well
as mild difficulties in maintaining social functioning.
Reviewer Roman further found Plaintiff had moderate
difficulties in maintaining concentration, persistence, or
pace. Reviewer Roman found Plaintiff had no repeated episodes
of decompensation. (R. 142).
MRFC, Reviewer Roman found that Plaintiff had no limitations
as to memory or understanding. He found she does have a
sustained concentration and persistence limitation. Regarding
these limitations, Reviewer Roman noted that Plaintiff's
ability to carry out very short and simple instructions is
not significantly limited. Her ability to carry out detailed
instructions and her ability to maintain attention and
concentration for extended periods was moderately limited.
She was not significantly limited with regard to her ability
to perform activities within a schedule, maintain regular
attendance, and be punctual within customary tolerances. (R.
146). Reviewer Roman further found that Plaintiff's
ability to sustain an ordinary routine without special
supervision, ability to work in coordination with or in
proximity to others without being distracted by them, and her
ability to make simple work-related decisions were not
significantly limited. (R. 147).
her ability to complete a normal workday and workweek without
interruptions form psychologically based symptoms and to
perform at a consistent pace without an unreasonable number
and length of rest periods was not significantly limited.
When prompted to explain the sustained concentration and
persistence capacities and/or limitations, Reviewer Roman
stated that Plaintiff “reports her seizures leave her
confused and disoriented for a period of time. She is on
probation for 5 years for misappropriation of funds. Has a MA
degree in education and taught in several capacities.”
Mental Status Examination
November 7, 2013, Plaintiff was seen by Harry W. Hood, M.S.
of Psychological Consulting in Martinsburg, West Virginia,
for a consultative mental status examination. (R. 645-648).
Mr. Hood stated Plaintiff presented with symptoms of
depressed mood “where she is depressed two or three
days per week with low energy, low motivation, crying,
impairments in self-esteem, and no suicide or homicidal
thoughts.” (R. 646). Mr. Hood further noted that
Plaintiff reported “elevated levels of anxiety where
she tends to worry a lot concerning her health and her
overall function.” Id.
Hood stated that the Plaintiff's attitude and behavior
was cooperative, her speech was clear, and her orientation
was present. (R. 647). He further stated that Plaintiff's
mood was normal and her affect was broad. Id.
Plaintiff's stream of thought was well organized and
there were no reports of delusions, phobias, or obsessions
nor were any illusions or hallucinations found to be present
in Plaintiff's perception. Id. Mr. Hood stated
Plaintiff's insight was good and her judgment was
average. Id. No. suicidal or homicidal ideations
were reported. Id. Her immediate memory and remote
memory were within normal limits while her recent memory was
“moderately deficient with the claimant recalling two
of the four words after delay.” Id.
Plaintiff's psychomotor behavior, persistence, and pace
were all within normal limits while her concentration was
“mildly deficient.” Id. Mr. Hood stated
that Plaintiff's social skills during the interview were
appropriate. Id. Mr. Hood's prognosis of
Plaintiff was “fair.” (R. 648).
Disability Determination Examination
December 5, 2013, Plaintiff was evaluated by Dr. Seth Tuwiner
in Hagerstown, Maryland. (R. 653-656). Dr. Tuwiner stated
that the reason for the consultation was for epilepsy, severe
sleep apnea, hypertension, obesity, left parietal brain
lesion, herniated disc, chronic headaches, Lyme disease,
irritable bowel syndrome and depression. (R. 653). In the
section for “review of records”, Dr. Tuwiner
stated “no records available.” Id. Dr.
Tuwiner stated the following in Plaintiff's history of
The claimant, in January 2003, had a seizure. She underwent
an MRI showing an unspecified parietal brain tumor. She did
not undergo a biopsy, though since this point in time she has
been under observation. The interval MRI studies have shown
that there has been no growth. It is currently deemed not to
be an aggressive lesion. She has intractable seizures. The
last seizure was in August 2013. She is currently maintained
on Keppra. She also had had headaches her whole life
prominently on the left side, pounding in quality, occurring
almost every day. Her headaches may vary throughout the day
though, or worse at times in the morning.
Id. Dr. Tuwiner opined that Plaintiff can do all
activities of daily living and can walk twenty minutes at a
time. (R. 654). In his functional assessment of the Plaintiff
following a physical examination, Dr. Tuwiner stated the
The number of hours that the claimant can be expected to
stand or walk in an 8hour day is approximately 5-6 hours. She
has no limitation with sitting. She does not require an
assistive device. She has frequent postural limitations with
bending, stooping, and crouching. She has no manipulative
limitations. The amount of weight she can lift both
frequently and occasionally is approximately 30 pounds
occasionally and 15 pounds frequently. The claimant has
seizure disorder. She should avoid elevated heights and
uneven surfaces, operating heavy machinery and driving. No.
other relevant limitations at this point in time.
Disability Determination at the Reconsideration
April 11, 2014, agency reviewer Subhash Gajendragadkar, M.D.
reviewed the prior RFC assessment, agreed with the findings,
and affirmed the prior assessment as entered. (R.163).
April 7, 2014, agency reviewer Edward Shaver, Ed. D. reviewed
the prior PRT/MRFC assessment, agreed with the findings, and
affirmed the prior assessment as entered. (R.164).
ALJ hearing held on February 2, 2016, Plaintiff testified
that she is married and has two children but none that would
qualify as dependents. (R. 59). Plaintiff testified that her
highest level of education attained is a Master's Degree
in education that she completed online. (R. 61). Plaintiff
testified that she has received income through unemployment
but has not received unemployment since May of 2013. (R. 62).
Plaintiff stated she was not receiving disability payments
from any source. Id. She stated that she was not
currently working full-time, part-time, or under the table
and has not performed any “volunteer activities.”
Id. However, Plaintiff stated that she has done work
“over the past two or three years” where she was
“compensated in good or services.” (R. 63). When
asked by the ALJ what work she had done, Plaintiff stated
that she had tried to work on “November the 11th of
last year” and the following exchange occurred:
A: At the Macy's Warehouse, was a seasonal job, so I
worked there from November the 11th, and it wasn't every
day. It was like 18 hours, like three days, until -
Q: So it was just part-time.
A: It's called seasonal. They don't even call it
A: That job ended probably the first week of January, and I
kept a record of my seizures, and part of what Dr. Goodman
had explained to us, the neurologist at Parkway in
Hagerstown, is that how exhausted and things you get, but he
said, you know, your body is going to do things that you
cannot control. So with me working like that, I kept a
calendar, and I told my husband you have to learn how to keep
me - if I'm unconscious, you have to call 911. If I'm
not unconscious, you guys have to learn how to deal with me,
talk to me to get me out of it, make sure I have the Ativan
to get me out of it because I have an aura where I smell
flowers, so I try to take the Ativan then before it really
gets to the point where the flowers are real strong, and
I'm just out of control where I know a bigger seizure is
going to ...