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Campbell v. Berryhill

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

January 7, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          KEELEY JUDGE.




         On 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.


         On June 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. (R. 1-3).


         A. Personal History

         Plaintiff was born on March 8, 1965, and was forty-eight years old at the time she filed this SSI claim.[1] (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).

         B. Medical History

         1. Medical History Pre-Dating Alleged Onset Date of May 30, 2013.

         Plaintiff 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).

         Plaintiff 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 following:

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.

(R. 382).

         Plaintiff 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. 363).

         On 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).

         Plaintiff 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.[2] 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.

         On June 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.

         On 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.

         Plaintiff 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.

         Plaintiff 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).

         Plaintiff 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 injury.” Id.

         2. Medical History Post-Dating Alleged Onset Date of May 30, 2013.

         An 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.

         Plaintiff 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.

         A 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).

         Following 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).

         Plaintiff 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 “stable.” Id.

         Plaintiff 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.

         Plaintiff 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.

(R. 945-950).

         Plaintiff 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.

         On June 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.

         Plaintiff 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.

         Plaintiff 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 change.” Id.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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.

         In a 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.

         After a 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.

         3. Medical Reports/Opinions

         a. Disability Determination at the Initial Level

         On 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).

         As to 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 found. Id.

         As to 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).

         On 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).

         In the 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).

         Further, 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.” Id.

         b. Consultative Examinations

         i. Mental Status Examination

         On 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.

         Mr. 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).

         ii. Disability Determination Examination

         On 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 present illness,

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 following,

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.

(R. 655-656).

         c. Disability Determination at the Reconsideration Level

         On 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).

         On 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).

         C. Testimonial Evidence

         At the 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 part-time.
Q: Okay.
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 ...

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