PARMS v. COLVIN
Filing
30
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 03/13/2015; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 26 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 28 ) be granted, and that this action be dismissed with prejudice. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LAWANDA PARMS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:13CV1002
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Lawanda Parms, brought this action pursuant to
Section 205(g) of the Social Security Act, as amended (42 U.S.C.
§ 405(g)), to obtain judicial review of a final decision of
Defendant, the Commissioner of Social Security, denying Plaintiff’s
claim for Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act (the “Act”).
(See Docket Entry 2.)
The
Court has before it the certified administrative record (cited
herein as “Tr. __”) and the parties have filed cross-motions for
judgment (Docket Entries 26, 28). For the reasons that follow, the
Court should enter judgment for Defendant.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date of
July 22, 2006.
(Tr. 152.)
After denial of the application, both
initially (Tr. 63) and on reconsideration (Tr. 64), Plaintiff
requested a hearing de novo before an Administrative Law Judge
(“ALJ”) (Tr. 81). Plaintiff, her attorney, and a vocational expert
(“VE”) appeared at the hearing.
(Tr. 23-62.)
The ALJ thereafter
determined that Plaintiff did not qualify as disabled within the
meaning of the Act.
(Tr. 9-18.)
After the Appeals Council denied
review of the ALJ’s decision (Tr. 1-3), Plaintiff instituted an
action in this Court (Tr. 702).
Defendant agreed to a voluntary
remand, which the Court ordered.
(Tr. 703-04.)
On remand, a new ALJ conducted a new hearing, attended by
Plaintiff, her attorney, and a VE.
(Tr. 632-72.)
The ALJ then
found, again, that Plaintiff did not qualify as disabled within the
meaning
of
the
Act.
(Tr.
673-82.)
The
Appeals
Council
subsequently denied Plaintiff’s request for review, thereby making
the ALJ’s determination the Commissioner’s final decision for
purposes of judicial review.
In
rendering
that
(Tr. 687-90.)
disability
ruling,
the
ALJ
made
following findings later adopted by the Commissioner:
1.
[Plaintiff] last met the insured status requirements
of the Social Security Act on March 31, 2012.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from her alleged onset date of
July 22, 2006[,] through her date last insured of March
31, 2012 (20 CFR 404.1571 et seq.).
3.
Through the date last insured, [Plaintiff] had the
following severe impairments: cervical spondylosis,
headaches, seizure disorder, carpal tunnel syndrome,
obesity, and anxiety (20 CFR 404.1520(c)).
2
the
. . .
4.
Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1520(d), 404.1525 and 404.1526).
. . .
5.
After careful consideration of the entire record,
the undersigned finds that, through the date last
insured, [Plaintiff] had the residual functional capacity
to perform light work as defined in 20 CFR 404.1567(b)
except that [Plaintiff] is limited to frequent handling
and fingering, no driving an automobile for completion of
job tasks; and no more than moderate exposure to noise.
[Plaintiff] can perform occasional climbing of ramps and
stairs, occasional balancing, and frequent stooping,
crouching,
and
crawling.
She
cannot
climb
ropes/ladders/scaffolds, and she should avoid even
moderate exposure to workplace hazards.
She can have
occasional contact with the public, is able to perform
simple, routine, repetitive tasks, and handle routine
workplace changes.
(Tr. 616-19.)
In
light
of
the
foregoing
findings
regarding
residual
functional capacity, the ALJ determined that Plaintiff could not
perform her past relevant work as it involved operating motor
vehicles.
(Tr. 622-23.)
However, the ALJ found that other jobs
existed at the light level with significant numbers in the national
economy.
(Tr. 623-24.)
Accordingly, the ALJ ruled that Plaintiff
did not have a disability, as defined in the Act, at any time from
the alleged onset date through the date of the decision.
624.)
3
(Tr.
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
are not to try the case de novo.”
396, 397 (4th Cir. 1974).
“The courts
Oppenheim v. Finch, 495 F.2d
Instead, “a reviewing court must uphold
the factual findings of the ALJ [underlying the denial of benefits]
if they are supported by substantial evidence and were reached
through application of the correct legal standard.”
Hines, 453
F.3d at 561 (internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”
Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (internal brackets and quotation marks omitted).
“If
there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”
Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
4
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).
“Where
conflicting evidence allows reasonable minds to differ as to
whether
a
claimant
is
disabled,
the
responsibility
for
that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the reviewing court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ’s finding that [the claimant] is not
disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law.”
Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996).
In confronting that issue, the Court must note that “[a]
claimant for disability benefits bears the burden of proving a
disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981), and
that, in this context, “disability” means the “‘inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months,’” id. (quoting 42
U.S.C. § 423(d)(1)(A)).
“To regularize the adjudicative process,
the Social Security Administration has . . . promulgated . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
5
education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).1
A finding adverse to a claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
1
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.2
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform “past relevant
work” (“PRW”); if so, the claimant does not qualify as disabled.
Id. at 179-80.
However, if the claimant establishes an inability
to return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the government cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.3
2
“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
3
A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
7
Assignments of Error
Plaintiff argues that the ALJ erred: (1) by “improperly
evaluat[ing]
the
medical
evidence
and
Plaintiff’s credibility
regarding the frequency, effects and causes of her seizure disorder
resulting in an improper residual functional capacity” (Docket
Entry 27 at 1); and (2) by “improperly evaluat[ing] Plaintiff’s
seizure
disorder
under
Disability
Listing
11.02[A]”
(id.).
Defendant contends otherwise and urges that substantial evidence
supports the determination of no disability.
(Docket Entry 29 at
8-15.)
1.
Plaintiff’s RFC
Plaintiff first assigns error to the ALJ’s evaluation of the
medical evidence and of Plaintiff’s credibility regarding the
frequency of her seizures in determining the RFC. (Docket Entry 27
at 1.)
However, Plaintiff fails to identify any specific defects
in the RFC, and, for that reason, this assignment of error fails.
As
an
initial
matter,
Plaintiff
“bears
the
burden
of
establishing her impairments and the resulting limitations on her
ability to perform work.”
WL
3911425,
at
*3
Donnell v. Astrue, No. 1:09CV308, 2010
(M.D.N.C.
Oct.
5,
2010)
(unpublished),
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
8
recommendation adopted, slip op. Docket Entry 14 (M.D.N.C.).
In
order
of
to
successfully
challenge
the
ALJ’s
formulation
Plaintiff’s RFC, she must explain (with supporting evidence) what
other functional limitations the ALJ should have included or what
the ALJ should have found as the proper RFC.
See McAnally v.
Astrue, 241 F. App’x. 515, 518 (10th Cir. 2007) (“[W]e agree with
the magistrate that, ‘[w]ith regard to [her] hypertension, loss of
vision or skin problems, the claimant has shown no error by the ALJ
because she does not identify any functional limitations that
should have been included in the RFC [assessment] or discuss any
evidence that would support the inclusion of any limitation.’”);
Miles v. Astrue, No. 8:07-3164-RBH, 2009 WL 890651, at *14 (D.S.C.
Mar. 30, 2009) (unpublished) (“[T]he plaintiff details various
pieces of evidence which she contends the ALJ misconstrued . . . .
The plaintiff, however, has not explained how such evidence, if
fully
considered,
would
have
proven
additional
limitations
sufficient to eliminate the possibility that [the] plaintiff could
perform the sedentary work required of her past relevant work.
Accordingly, error, if any, in either failing to consider such
evidence or in misconstruing it, would be harmless.”).
Here, the ALJ considered Plaintiff’s seizure disorder in
formulating the RFC by finding Plaintiff capable of performing
light work with several exceptions.
(Tr. 619; see also Tr. 622
(“[Plaintiff’s seizure disorder] is considered a severe impairment
9
and limitations have been provided in the RFC.”).)
Relying on the
VE’s testimony, the ALJ found Plaintiff capable of performing the
occupations of order caller (DOT 209.667-014), dispatcher (DOT
222.587-038), and retail marker (DOT 209.587-034).
(Tr. 623.)
Each of these jobs comports with the RFC set forth by the ALJ.
(Compare Tr. 619, with DOT 209.667-014, 222.587-038, 209.587-034.)
Plaintiff argues that the ALJ erred in evaluating the medical
evidence and Plaintiff’s testimony in formulating the RFC.
Docket Entry 27 at 4-9.)
(See
However, Plaintiff fails to identify any
additional limitations the ALJ should have included in setting the
(See id.)4
RFC.
In other words, although Plaintiff criticizes the
ALJ, Plaintiff does not address the ultimate question: what should
the ALJ have determined as the proper RFC?
Thus, this assignment
of error fails as a matter of law, particularly given that the ALJ
accounted for Plaintiff’s seizures in formulating the RFC (see Tr.
619 (including as part of the RFC prohibitions on driving; climbing
ropes, ladders, and scaffolds; and requiring avoidance of exposure
to moderate workplace hazards)).
4
To the extent Plaintiff suggests that the RFC inadequately accounted for
the fact that she suffers seizures despite treatment (see Docket Entry 27 at 5
(citing Tr. 668-70)), she merely re-clothes her Listing argument in RFC garb, and
her argument fails for the reasons stated in the next section.
10
2.
The Disability Listing
Plaintiff argues that the ALJ improperly evaluated Plaintiff’s
seizure disorder under Listing 11.02A. (See Docket Entry 27 at 1011.)5
Plaintiff makes three arguments on this point.
(Id.)
First, Plaintiff contends that the ALJ failed to substantively
address the Listing by summarily denying the application.
(Id.)
Second, Plaintiff incorporates her argument (from her assignment of
error as to the RFC) that the ALJ erred in evaluating the medical
evidence and asserts that the medical evidence demonstrates that
she meets Listing 11.02A.
(Id. at 10.)
Finally, Plaintiff
incorporates
to
assessment
her
challenge
the
ALJ’s
credibility (again, from her discussion of the RFC).
of
her
(Id.)
The
undersigned will address each argument in turn.
a.
Substantive Analysis of the Listing
Contrary to Plaintiff’s argument (id. at 10-11), the ALJ did
sufficiently
review.
consider
Listing
11.02A
to
allow
for
meaningful
The ALJ found that Plaintiff did not meet Listing 11.02A
because “[Plaintiff] has been non-compliant with medication and her
5
Listing 11.02 provides:
Epilepsy—convulsive epilepsy, (grand mal or psychomotor),
documented by detailed description of a typical seizure
pattern, including all associated phenomena; occurring more
frequently than once a month in spite of at least 3 months of
prescribed treatment. With:
A. Daytime episodes (loss of consciousness and convulsive
seizures) or
B. Nocturnal episodes manifesting residuals which interfere
significantly with activity during the day.
20 C.F.R. Part 404, Subpart P, App. 1 § 11.02.
11
reports are subjective.”
(Tr. 618.)
The ALJ’s decision therefore
rests on Plaintiff’s medicinal non-compliance and the lack of
objective data supporting the frequency of her seizures.
The
logical (and evidentiary) underpinning for that determination lies
in
the
ALJ’s
discussion
of
Plaintiff’s
RFC, wherein
the
ALJ
elaborated on the inconsistencies in Plaintiff’s statements and her
record of treatment non-compliance.
(See Tr. 620.)
Thus, the ALJ
presented “findings and determinations sufficiently articulated to
permit meaningful judicial review, which [] include[d] specific
reference to the evidence producing [her] conclusion.”
Wyatt v.
Bowen, No. 89-2943, 887 F.2d 1082 (table), 1989 WL 117940, at *4
(4th Cir. 1989) (unpublished) (internal quotation marks omitted).
b.
Medical Evidence
The objective medical evidence does not support Plaintiff’s
argument that she meets Listing 11.02A.
Plaintiff relies on her
numerous hospital admissions as evidence of her seizures despite
treatment.
(See Docket Entry 27 at 5-6.)
Plaintiff first cites a
hospital admission on August, 24, 2005, where she complained of
seizures.
(Id. at 5 (citing Tr. 391-95).)
Testing during that
admission revealed a therapeutic level of her anti-convulsant
(Depakote) and Plaintiff had a “seizure like activity” while in the
emergency department.
(Tr. 391.)
Plaintiff next references a
hospital admission on November 11, 2005, wherein testing revealed
therapeutic levels.
(Docket Entry 27 at 5 (citing Tr. 239).)
12
During that admission, “the Emergency Room (ER) attending observed
generalized tonoclonic movements with some post-event confusion
very suggestive of a seizure.”
(Tr. 239.)
Plaintiff then cites to
two admissions in August of 2006 wherein testing, both times,
revealed therapeutic levels and Plaintiff suffered seizures during
the admissions.
09).)
Next,
(Docket Entry 25 at 6 (citing Tr. 294-97, 305Plaintiff
cites
to
her
December
2010
hospital
admissions, wherein testing again revealed therapeutic levels, and
she suffered seizures during the admission. (Id. (citing Tr. 100608).)
Finally, Plaintiff refers to her November 2011 hospital
admission for seizures.
(Id. at 6-7; see also Tr. 1203-04.)
However, in this instance, testing revealed sub-therapeutic levels.
(Tr. 1199.)
These cited instances do not demonstrate that the ALJ
erred in evaluating the medical evidence.
First, Plaintiff fails to note the numerous other instances
where testing revealed sub-therapeutic levels of anti-convulsant or
she admitted to missing doses.
(See, e.g., Tr. 220, 324, 451, 455,
556, 1272.) Listing 11.02A requires a plaintiff to experience more
than one seizure a month despite three months of treatment.
C.F.R. Part 404, Subpart P, App. 1 § 11.02.
20
Here, the cited
medical evidence reflects Plaintiff did have therapeutic-level
seizures, but they occurred months - and sometimes years - apart.
Moreover, with the exceptions of the time between the August 2005
and November 2005 admissions and the two August 2006 admissions,
13
Plaintiff admitted to not taking her medication or testing revealed
sub-therapeutic levels between the therapeutic-level seizures.
(See, e.g., Tr. 324 (June 2006 test revealed sub-therapeutic
levels);
Tr.
451
(in
February
2010,
Plaintiff
admitted
to
discontinuing her seizure medication).) Thus, the medical evidence
does not support Plaintiff’s argument.
Plaintiff also contends the ALJ failed to consider whether
Plaintiff did not properly absorb the medicine, thereby resulting
in sub-therapeutic levels in tests.
(Docket Entry 27 at 6.)
However, Plaintiff fails to provide a citation to the record where
she argued this point before the ALJ, so she cannot now complain of
the ALJ’s actions.
See generally Powell v. Barnhart, 69 F. App’x
405, 408 n.1 (10th Cir. 2003) (“[G]iven the rarity of the condition
in question, the speculative nature of [the plaintiff’s] present
suggestion that it could be the cause of his sub-therapeutic blood
serum levels (particularly in the face of other evidence indicating
that he did not comply with his prescribed regimen), and the
failure of [the plaintiff’s] counsel to ask the ALJ to pursue the
matter, we do not think the ALJ erred in failing to anticipate and
assist [the plaintiff’s] current effort to avoid the consequences
of
his
failure
Plaintiff’s
of
argument
proof
relies
under
on
the
the
listing.”).
assumption
she
Moreover,
took
her
medication as prescribed, a point that (for reasons discussed in
the next subsection) the ALJ reasonably discounted.
14
Finally, as an aside, Plaintiff complains that the ALJ cannot
deny benefits merely because of Plaintiff’s non-compliance with
treatment.
(Docket Entry 27 at 7.)
Plaintiff cites Dickens v.
Astrue, No. 5:10-CV-535-BO, 2011 WL 3269422, at *3 (E.D.N.C. July
28, 2011) (unpublished), for support.
In Dickens, the plaintiff
requested DIB as a result of congestive heart failure, muscle
spasms, and hypertension.
Id. at *1.
However, the Commissioner
denied benefits as a result of her non-compliance with treatment.
Id. at *3. The trial court reversed the Commissioner, finding that
the
ALJ
failed
to
establish
unjustified
non-compliance
substantial evidence and to develop an appropriate record.
by
Id.
Plaintiff’s situation does not equate to the one in Dickens.
Unlike in Dickens, as discussed in the next subsection, reasons
other than non-compliance served as a basis to question Plaintiff’s
credibility.
This case thus closely mirrors not Dickens, but the
following decision where:
[The plaintiff’s] failure to take his Dilantin as
prescribed prevented the ALJ from finding he had a per se
disabling seizure disorder under [L]isting 11.02,
irrespective of justifiable cause. Justifiable cause for
refusing treatment generally becomes relevant only in the
context of steps four and five of the five-step test,
which consider a claimant’s actual ability to perform
work. . . . [O]nly had he actually been complying with
his prescribed course of treatment for at least three
months could he claim that his condition qualified as a
listed impairment in spite of the treatment.
Bolden v. Commissioner of Soc. Sec., 556 F. Supp. 2d 152, 163-64
(E.D.N.Y. 2007).
Like in Bolden, here, the ALJ did not rule
15
against Plaintiff on the ultimate issue of disability because of
her non-compliance, but, instead, found that Plaintiff failed to
meet a step 3 listing requirement because of her non-compliance.6
c.
Plaintiff’s Credibility and Subjective Reports
The ALJ found that Plaintiff lacked credibility as to the
extent of her seizures and that her self-reports of seizures
qualified as subjective, so she did not meet Listing 11.02A.
(Tr.
618, 622.) Plaintiff argues that “the ALJ erred in her credibility
analysis by stating that Ms. Parms’ seizures were only ‘subjective’
without objective confirmation by medical professionals.”
(Docket
Entry 27 at 7.) This argument mischaracterizes the ALJ’s findings.
Although
the
ALJ
found
that
Plaintiff’s
reporting
about
the
frequency of her seizures qualified as “subjective” (Tr. 618, 622),
the ALJ did not dispute that seizures occurred (Tr. 622 (“It should
be noted that the undersigned is not stating that the claimant does
not have a seizure disorder . . . .”)).
In other words, the ALJ
simply concluded that Plaintiff’s reports of seizure incidents not
documented in the medical evidence qualified as subjective and
unreliable.
Furthermore, Plaintiff’s list of seizures confirmed by medical
personnel fails to advance her position because not all of those
seizures meet the requirements of Listing 11.02A.
6
Plaintiff
As previously noted, see footnote 3, Plaintiff still could have qualified
for DIB by succeeding at steps four and five.
16
identifies approximately twelve hospital admissions (spread across
four years) wherein medical personnel documented seizures, but, of
those
twelve,
it
appears
only
four
occurred
when
she
had
therapeutic levels of her anti-convulsant. (See Docket Entry 27 at
7-8.)7
As discussed in the preceding subsection, the therapeutic-
level seizures typically occurred months apart and after episodes
of treatment non-compliance.
Plaintiff does not include any other
objective evidence of therapeutic-level seizures.
(See Docket
Entry 27.)
As
Plaintiff’s
therapeutic-level
objectively
seizures
do
not
documented
satisfy
incidents
Listing
11.02A
of
(as
discussed in the previous subsection), and given that Plaintiff
cites no other objective evidence of seizures, Plaintiff must rely
on her own testimony of the frequency of seizures.
of
seizures
at
the
required
plaintiff’s own testimony.
frequency
demands
However, proof
more
than
a
See Wimmer v. Astrue, No. 3:10-cv-
05370-KLS, 2011 WL 761556, at *7 (W.D. Wash. Feb. 25, 2011)
(unpublished) (“[A] finding [of disability under Listings 11.02 or
11.03] may not be based merely on a claimant’s claim that his or
her seizures have occurred at the required rate, without any actual
documentation in the record, particularly where, as in this case,
the ALJ properly discounts the claimant’s credibility regarding his
7
Plaintiff failed to note that the December 2010 hospital admission also
occurred with therapeutic levels. (Tr. 1008).
17
symptoms and limitations.”); see also Kliber v. Social Sec. Admin.,
794 F. Supp. 2d 1025, 1041 (D. Minn. 2011) (refusing to credit a
plaintiff’s self-report of seizures); Dakin v. Astrue, No. 08-0794CV-W-REL-SSA, 2010 WL 1253632, at *26 (W.D. Mo. Mar. 31, 2010)
(unpublished) (“The [L]isting requires either that a doctor witness
the seizures or a person other than the claimant testify about the
seizures.”).
Even if Plaintiff’s subjective reports of seizures
could suffice as a basis for finding Plaintiff met Listing 11.02A,
the ALJ found Plaintiff lacked credibility and did not credit her
reports of the frequency of seizures (Tr. 620, 622).
The
ALJ
doubted
Plaintiff’s
credibility
Plaintiff’s own statements and actions.
as
a
result
of
In particular, the ALJ
noted inconsistencies in Plaintiff’s testimony and past statements.
(Tr. 620.)
First, at the hearing, Plaintiff claimed to suffer at
least two to three seizures per week since onset of July 22, 2006,
but, in July of 2007, she told her physician that she had not had
a seizure in almost a year and wanted to return to work.
(Id.)
Second, the
once,
ALJ
observed
that
Plaintiff
had,
at
least
reported complying with her treatment, but subsequent testing
revealed sub-therapeutic levels. (Id.) Third, Plaintiff reported,
in April of 2012, that she had been unable to obtain her medication
for at least a month, but at the hearing (approximately three
18
months later) claimed recent compliance with her treatment. (Id.)8
Fourth, the ALJ noted that, although Plaintiff claimed to suffer
from
left-side
weakness
and
used
a
cane,
“little
if
any
documentation of such a limitation [exists] in the medical evidence
of record.”
(Tr. 620).
The ALJ further relied on an April 2012
appointment with her neurologist, wherein, the neurologist noted
Plaintiff had normal sensation, motor exam, coordination, balance,
gait, and stance.
(Tr. 620-21; see also Tr. 1272-74.)
The ALJ also concluded that Plaintiff’s actions did not match
the severity of her complaints.
(Tr. 620.)
For example, the ALJ
noted that Plaintiff stated that her non-compliance with medication
resulted
from
financial
hardship,
but
when
provided
with
information regarding methods to obtain medication, she did not
appear
to
take
Plaintiff’s
everyday
limitations.
overall
any
level
action.
activities
(See Tr. 621).9
of
(Id.)
Further,
inconsistent
the
with
ALJ
her
found
claimed
The ALJ determined that Plaintiff’s
non-compliance
contradicted
disabling seizure[s] . . . [Plaintiff] alleges.”
“the
degree
(Tr. 620)
of
Thus,
8
Contrary to Plaintiff’s argument (Docket Entry 27 at 7), an ALJ may
consider non-compliance in assessing credibility, see Myers v. Commissioner of
Social Sec. Admin., 456 F. App’x 230, 232 (4th Cir. 2011).
9
Plaintiff mischaracterizes the ALJ’s analysis of Plaintiff’s everyday
activities.
Plaintiff claims that the ALJ relied on Plaintiff’s everyday
activities as proof of her ability to work. (See Docket Entry 27 at 9 (“[The
ALJ’s] claim that [Plaintiff’s] custody of her grandchildren demonstrates that
she is capable of work activity is equally erroneous.”).) However, as Defendant
points out (Docket Entry 29 at 14), the ALJ did not rely on her everyday
activities as proof of her ability to work, but, instead, noted that those
activities appeared inconsistent with her claimed limitations (Tr. 621).
19
Plaintiff’s actions and inconsistencies provided the ALJ with
sufficient grounds to question Plaintiff’s credibility.
Because the record contains substantial evidence to support
the
ALJ’s
treatment
of
Plaintiff’s
medical
history
and
her
credibility in evaluating the Listing, the Court should reject
Plaintiff’s second assignment of error.10
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on
the
Pleadings
(Docket
Entry
26)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 28)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 13, 2015
10
Plaintiff also contends that the ALJ failed to take the December 2008
EEG into account despite a specific order from this Court to do so. (See Docket
Entry 27 at 9.) However, Plaintiff fails to develop this argument, and, in
particular, to show how any error affected the outcome of the case. (Id.) The
Court need not address such perfunctory arguments by counsel. See Hayes v. SelfHelp Credit Union, No. 1:13-CV-880, 2014 WL 4198412, at *2 (M.D.N.C. Aug. 22,
2014) (unpublished). Moreover, as Plaintiff concedes (see Docket Entry 27 at 9)
the ALJ’s decision expressly confirms consideration of the EEG. Finally, the ALJ
did not, as Plaintiff contends, “gave [the EEG] no consideration when concluding
that [Plaintiff’s] seizures were only a subjective occurrence” (id.), because
(for reasons discussed above) the record does not reflect that the ALJ made any
such conclusion.
20
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