Dunn v. Social Security Administration

Filing 13

RECOMMENDED DISPOSITION recommending the Court affirm the Commissioner's decision and enter judgment in favor of the Defendant. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Edie R. Ervin on 1/10/2022. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
ALISHA DANIELLE DUNN
V.

PLAINTIFF

CASE NO. 4:20-CV-01248-LPR-ERE

COMMISSIONER of
SOCIAL SECURITY ADMINISTRATION

DEFENDANT

RECOMMENDED DISPOSITION
This Recommended Disposition (Recommendation) has been sent to United
States District Judge Lee P. Rudofsky. Either party may file written objections to
this Recommendation. Objections should be specific and should include the factual
or legal basis for the objection.
To be considered, objections must be received in the office of the Court Clerk
within 14 days of this Recommendation. If no objections are filed, Judge Rudofsky
can adopt this Recommendation without independently reviewing the record. By not
objecting, parties may also waive the right to appeal questions of fact.
I. INTRODUCTION
On May 4, 2018, Alisha Dunn applied for disability benefits, alleging
disability beginning June 16, 2014. (Tr. at 15). Her claims were denied both initially
and upon reconsideration. Id. After conducting a hearing on September 19, 2019, an
Administrative Law Judge (ALJ) denied Ms. Dunn’s application on January 9, 2020.
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(Tr. at 26). Because an unfavorable ALJ decision from a prior application was issued
on November 7, 2016, the ALJ’s order addressed the unadjudicated period from
November 8, 2016 to the date of decision. (Tr. at 15). Following the ALJ’s order,
Ms. Dunn sought review from the Appeals Council, which denied her request for
review. (Tr. at 1). Ms. Dunn seeks judicial review of the ALJ’s decision, which now
stands as the Commissioner’s final decision.
For the reasons stated below, the Court should affirm the decision of the
Commissioner.
II. THE COMMISSIONER’S DECISION
The ALJ found that Ms. Dunn had not engaged in substantial gainful activity
since the alleged adjusted onset date of November 8, 2016. (Tr. at 18). At Step Two,
the ALJ found that Ms. Dunn had the following severe impairments: obesity,
degenerative disc disease, pseudotumor cerebri, intracranial hypertension, seizure
disorder, migraine headaches, anxiety, and depression. Id.
After finding Ms. Dunn’s impairments did not meet or equal a listed
impairment (Tr. at 18), the ALJ determined that she had the residual functional
capacity (“RFC”) to perform work at the sedentary exertional level, except that she
could: (1) occasionally climb ramps and stairs; (2) occasionally balance, stoop,
kneel, crouch, and crawl; (3) occasionally reach overhead; (4) occasionally be
exposed to very loud noise, very bright light, and vibration; (5) never climb ladders,
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ropes, or scaffolds; (6) never be exposed to unprotected heights or dangerous moving
machinery, and could never operate a motor vehicle at work; (7) understand and
remember simple instructions; (8) sustain attention and concentration to complete
simple tasks with regular breaks every two hours; (9) interact as needed with
supervisors and coworkers and have routine, superficial interaction with the public;
and (10) adapt to routine work conditions and occasional work place changes. (Tr.
at 20-21).
Relying on the testimony of a Vocational Expert (“VE”), the ALJ found that
Ms. Dunn was unable to perform her past relevant work as a medical assistant or
office manager, but that Ms. Dunn’s RFC would allow her to perform jobs that exist
in significant numbers in the national economy, including document preparer, table
worker, and cutter/paster. (Tr. at 25-26). The ALJ concluded that Ms. Dunn was not
disabled. (Tr. at 26).
III. DISCUSSION
A.

Standard of Review

In this appeal, the Court must review the Commissioner’s decision for legal
error and determine whether the decision is supported by substantial evidence on the
record as a whole. Brown v. Colvin, 825 F.3d 936, 939 (8th Cir. 2016) (citing
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010)). “Substantial evidence” in
this context means “enough that a reasonable mind would find [the evidence]
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adequate to support the ALJ’s decision.” Slusser v. Astrue, 557 F.3d 923, 925 (8th
Cir. 2009) (citation omitted). In making this determination, the Court must consider
not only evidence that supports the Commissioner’s decision, but also evidence that
supports a contrary outcome. Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015).
The Court will not reverse the Commissioner’s decision, however, “merely because
substantial evidence exists for the opposite decision.” Long v. Chater, 108 F.3d 185,
187 (8th Cir. 1997) (citation omitted).
B.

Ms. Dunn’s Arguments on Appeal

Ms. Dunn contends that the ALJ’s decision is not supported by substantial
evidence. She argues that the ALJ erred at Step Three in finding that her combination
of impairments did not meet or medically equal the severity of Listing 11.02, which
governs epilepsy. She also argues that the ALJ did not properly consider the
functional limitations that she alleged resulted from her seizures and migraines in
determining her RFC. After reviewing the record as a whole, the Court concludes
that the ALJ did not err in denying benefits.
Ms. Dunn first argues that her impairments meet or equal the requirements
outlined in Listing 11.02. See 20 C.F.R. Pt. 404, subpt. P, app. 1 § 11.02.1 Social

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11.02 Epilepsy, documented by a detailed description of a typical seizure and characterized by
A, B, C, or D:
A. Generalized tonic-clonic seizures, occurring at least once a month for at least 3
consecutive months despite adherence to prescribed treatment; or
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Security listings “define impairments that would prevent an adult, regardless of his
age, education, or work experience, from performing any gainful activity, not just
‘substantial gainful activity.’” Sullivan v. Zebley, 493 U.S. 521, 532 (1990). Thus, if
a claimant can show her impairments meet or equal a listing, she is presumed unable
to work. Id. It is Ms. Dunn’s burden to make this showing. Carlson v. Astrue, 604
F.3d 589, 593 (8th Cir. 2010). To show an impairment matches a particular listing,
it must meet all of the specified medical criteria. Marciniak v. Shalala, 49 F.3d 1350,
1353 (8th Cir 1995). To demonstrate “medical equivalency” to a listing, a claimant
must present medical findings which are equal in severity to all of the criteria for the
most similar listed impairment. Id.
Listing 11.02 provides for listing-level severity based on the type of seizures
a claimant is experiencing and the frequency with which they occur. Where seizures

B. Dyscognitive seizures, occurring at least once a week for at least 3 consecutive months
despite adherence to prescribed treatment; or
C. Generalized tonic-clonic seizures, occurring at least once every 2 months for at least 4
consecutive months despite adherence to prescribed treatment; and a marked limitation in
one of the following:
1. Physical functioning; or
2. Understanding, remembering, or applying information; or
3. Interacting with others; or
4. Concentrating, persisting, or maintaining pace; or
5. Adapting or managing oneself; or
D. Dyscognitive seizures, occurring at least once every 2 weeks for at least 3 consecutive
months despite adherence to prescribed treatment; and a marked limitation in one [of the
categories in C.1-C.5 above].
20 C.F.R. pt. 404, subpt. P, app. 1 § 11.02 (citations omitted).
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occur less frequently, the claimant must demonstrate a marked limitation in one of
the following categories: physical functioning; understanding, remembering, or
applying information; interacting with others; concentrating, persisting, or
maintaining pace; or adapting or managing oneself. 20 C.F.R. pt. 404, subpt. P, app.
1 § 11.02. Ms. Dunn has failed to demonstrate that her seizure disorder alone meets
all of the criteria of this listing.
Evidence in the record shows Ms. Dunn had a generalized tonic-clonic
seizure2 in August of 2016. (Tr. at 339, 413). She reported another seizure in August
of 2018 but told the ALJ she had not had another since then. (Tr. at 86, 535, 566).
Ms. Dunn has not shown that she suffers from generalized tonic-clonic seizures
frequently enough to meet Listing 11.02.
Listing 11.02 also sets forth criteria for dyscognitive seizures, which are
described as manifestations of abnormal electrical activity in the brain, characterized
by an alteration of consciousness without convulsions or loss of muscle control, and
during which blank staring, change of facial expression, and automatisms (such as
lip smacking, chewing or swallowing, or repetitive simple actions, such as gestures
or verbal utterances) may occur. 20 C.F.R. pt. 404, subpt. P, app. 1 § 11.00H1b. Ms.

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Generalized tonic-clonic seizures are characterized by loss of consciousness accompanied by a
tonic phase (sudden muscle tensing causing the person to lose postural control) followed by a
clonic phase (rapid cycles of muscle contraction and relaxation, also called convulsions). Tongue
biting, incontinence, and falls resulting in injury may occur. 20 C.F.R. pt. 404, subpt. P, app. 1 §
11.00H1a.
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Dunn told the ALJ that she suffers from frequent “silent seizures” that may fit these
criteria. However, Ms. Dunn has failed to demonstrate that they occur with the
requisite frequency to meet the listing.
In December 2017, Ms. Dunn reported that she had been seizure-free since
September of 2016 and that she was able to drive.3 (Tr. at 389). Six months later, on
June 4, 2018, she reported that she was having six seizures per month, with
symptoms including an altered level of consciousness, aura, staring and
unresponsiveness. (Tr. at 384). The record does not indicate when these seizures
may have begun, and her neurologist noted that she was driving at that time. Id.
Clinical notes from September 2018 state that she was having “occ[asional] seizures,
although they are less frequent over the past year.” (Tr. at 537). In March of 2019,
she reported having only one seizure per month. (Tr. at 647). At the hearing before
the ALJ in September 2019, Ms. Dunn testified that she had not driven since 2015.
(Tr. at 69, 90). She stated that she was having “silent seizures at least once, once or
twice a month, maybe once a week.” (Tr. at 75). A few minutes later, she told the
ALJ she was having at least one or two silent seizures per week. (Tr. at 87). These
inconsistencies diminish her credibility and support the ALJ’s conclusion that her
seizure activity does not meet or medically equal the requirements of Listing 11.02.

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Multiple clinical notes indicate that Ms. Dunn’s doctors informed her of an Arkansas law
requiring her to be seizure-free for at least one year before driving or operating machinery. (Tr. at
47, 387, 396, 400).
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Alternatively, Ms. Dunn argues that the combination of her seizure activity
and her migraine headaches medically equal Listing 11.02B. Although the ALJ did
not specifically address Ms. Dunn’s migraine headaches under this listing, reversal
is not required if the record evidence supports the ALJ’s overall conclusion. Karlix
v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006).
Ms. Dunn testified that she suffers from migraines and pressure headaches
caused by spinal fluid buildup around her brain secondary to intracranial
hypertension. (Tr. at 73, 80). She alleged she suffered three or four headaches every
week, and that her headaches “can last all day and multiple days.” (Tr. at 80).
Although the record contains ample testimonial evidence that Ms. Dunn suffers from
headaches, the medical evidence does not establish that they occur with the requisite
frequency and severity to meet Listing 11.02B. Multiple clinical notes in the record
indicate that symptoms associated with her intracranial hypertension were stable or
improving with weight loss. (Tr. at 455, 461, 467, 485). Ms. Dunn reported that her
migraine headaches improved with prescription medication, and in May 2017, she
told her neurologist, Robert Silzer, MD, that her headaches had “resolved” on
propranolol. (Tr. at 393). On September 25, 2017, she reported having “occasional”
headaches and clinical notes stated that she was “doing well with her headaches and
shunt.” (Tr. at 509-510). In December of 2017, she reported having only one
migraine per month at a level 4 severity, and that prescription drugs provided relief.
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(Tr. at 389). On June 4, 2018, she informed Dr. Silzer that she was having about 26 migraines a month, but that prescription medication relieved most of her
headaches. (Tr. at 384). On September 24, 2018, Dr. Silzer noted that her headaches
were “under good control” and stable with medication. (Tr. at 535). In his medical
opinion letter dated August 2019, Dr. Silzer wrote that she had “occasional severe
migraine headaches.” (Tr. at 652). Although her primary care provider did opine that
she could experience headaches and dizziness if she remained upright too long, he
failed to cite to any objective evidence in the record from the relevant period to
support his statements. (Tr. at 623). Ms. Dunn has failed to prove that her headaches
equaled the severity or frequency criteria of Listing 11.02B. Furthermore, “[a]n
impairment which can be controlled by treatment or medication is not considered
disabling.” Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002).
Although the evidence could possibly support finding that the combination of
Ms. Dunn’s headaches and seizure episodes medically equaled the requirements of
Listing 11.02B at some point during the relevant period, it is not this Court’s job to
reweigh the evidence. Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003).
Instead, the Court must determine whether substantial evidence in the record
supports the ALJ’s conclusions. Id. Substantial evidence in this case amply supports
a finding that Ms. Dunn’s combination of impairments does not medically equal
Listing 11.02B.
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As for her RFC, Ms. Dunn faults the ALJ’s assessment of her complaints and
contends that the RFC fails to account for her probable absenteeism and her need to
frequently lie down during the workday. Ms. Dunn bears the burden of proving her
RFC, which represents the most she can do despite the combined effects of her
credible limitations. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). “It
is the ALJ’s responsibility to determine a claimant’s RFC based on all relevant
evidence, including medical records, observations of treating physicians and others,
and claimant’s own descriptions of [her] limitations.” Id. A claimant’s credibility is
primarily for the ALJ, not the courts, to decide. Id. at 1218.
Ms. Dunn argues the ALJ did not consider limitations from her migraines and
seizures, but the ALJ specifically included limitations in her RFC regarding
exposure to loud noises, bright lights, and vibration; working at unprotected heights
or around dangerous machinery; and driving a motor vehicle for work. (Tr. at 23).
Ms. Dunn has failed to establish that she possesses functional restrictions beyond
those found in the RFC. The medical record demonstrates conservative treatment
with good results from medication, and Ms. Dunn’s limitations do not appear to have
greatly interfered with her “robust” documented activities of daily living, which
included caring for her two children as well as a pet, shopping for groceries,
preparing frozen meals, performing household chores including laundry and
cleaning, and remaining “very active” in her church. (Tr. at 20). Neurological
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findings and MRI results were generally unremarkable, with only mild
abnormalities. (Tr. at 23, 540). Symptoms from her pseudotumor cerebri had been
gradually improving since onset. (Tr. at 22, 509). The medical evidence does not
substantially support Ms. Dunn’s claims that she would have to lie down or miss
work frequently. See Zeiler v. Barnhart, 384 F.3d 932, 936 (8th Cir. 2004) (ALJ did
not err in failing to include nonexertional limitations in RFC that were not
substantially supported by the record). The ALJ properly considered Ms. Dunn’s
testimony, medical records, and observations of her treating physicians and others
in determining her RFC.
The Court finds that no error occurred here. Substantial evidence supports the
ALJ’s conclusion that Ms. Dunn’s impairments did not meet or equal a listing, and
the ALJ did not err in assessing Ms. Dunn’s RFC.
IV. CONCLUSION
Substantial evidence supports the Commissioner’s decision that Ms. Dunn
was not disabled. The Court should affirm the Commissioner’s decision and enter
judgment in favor of the Defendant.
IT IS SO ORDERED this 10th day of January, 2022.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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