Rawls v. Commissioner of Social Security

Filing 16

REPORT AND RECOMMENDATIONS re 1 Complaint: The Magistrate Judge RECOMMENDS that the Plaintiff's Statement of Errors be OVERRULED and that judgment be entered in favor of the Commissioner. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Terence P Kemp on 3/18/2014. (er1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Amanda Nicole Rawls,

:

Plaintiff,

:

v.

:
:

Commissioner of Social
Security,

Case No. 2:13-cv-0412
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
Defendant.
REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Amanda Nicole Rawls, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her application for disability insurance benefits.

That

application was filed on April 23, 2010 and alleged that
Plaintiff became disabled on September 30, 2001.
After initial administrative denials of her application,
Plaintiff was given a videoconference hearing before an
Administrative Law Judge on January 10, 2012.

In a decision

dated February 10, 2012, the ALJ denied benefits.

That became

the Commissioner’s final decision on March 5, 2013, when the
Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on July 8, 2013.

Plaintiff filed her

statement of specific errors on August 8, 2013.
filed a response on October 22, 2013.

The Commissioner

Plaintiff filed a reply

brief on November 12, 2013, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 32 years old at the time of the
administrative hearing and had completed three years of college,
testified as follows.

Her testimony appears at pages 40-52 of

the administrative record.
Plaintiff last attempted to work in 2007.

She was a

seasonal employee, working as a customer service representative,
but became ill during that time; also, because it was seasonal
employment, she was not asked to continue beyond the season.

She

worked in 2006 as a receptionist but was let go due to missing
too many days because of illness.

In 2001, she worked for Bank

One as a data key operator, but lost her job when her department
was eliminated.

She did not have any illness-related issues

during that employment.
Plaintiff began receiving treatment for migraine headaches
in 2002.

At that time, she suffered from headaches 15 times per

month, which caused pain, blurred vision, nausea, and vomiting.
Eventually, she was diagnosed with pseudotumor cerebri (an
unexplained increase in intracranial pressure), and she was
referred to a neuro-opthalmologist, Dr. Epstein, who had been her
treating physician ever since.

Her treatment since that time had

included placement of a shunt, which reduced the severity of her
headaches.

She had undergone several revisions of the shunt, and

was, at the time of the hearing, still getting 9-12 headaches per
month, which continued to cause pressure, nausea, vomiting and
blurred vision.

They were helped but not eliminated by

medication.
During a typical onset of a migraine, Plaintiff was unable
to do much.

When she felt well, she could do household chores.

She often had no warning of their onset, and was unaware what
triggered them.

Once a headache developed, Plaintiff took

medication and remained upright because lying down made the
pressure worse.

She would avoid any activity which might strain

her eyes and otherwise minimized her daily activities.

She also

tried to avoid excessive noise because it could cause additional
pain.
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III.

The Medical Records

The medical records in this case are found beginning on page
246 of the administrative record.

The pertinent records can be

summarized as follows.
The first set of records consist of reports from Dr.
Mankowski, to whom Plaintiff was referred by her regular
physician.

At the first appointment, which took place on

February 11, 2003, Plaintiff reported a history of intermittent
headaches since age 10, becoming much more frequent in the past
3-4 months.

At that time, she experienced nausea and light

sensitivity with her headaches, but no vomiting or visual
changes.

Dr. Mankowski’s impression was migraine headaches

secondary to excessive Tylenol use, and he recommended
discontinuation of that and other headache medications.

He

started her on other medications and wanted to see her again in
three months.

At the next appointment, Plaintiff’s headaches

were occurring with about the same frequency but were less
severe.

He noted that she was at risk for pseudotumor cerebri

and thought further workup was needed.
other things, a lumbar puncture.

He recommended, among

Several weeks later, she was

having fewer headaches, still without blurred or double vision.
Dr. Mankowski then referred her to Dr. Epstein for an opinion on
pseudotumor cerebri.

When Dr. Mankowski saw Plaintiff in

November, 2003, he noted that he agreed with Dr. Epstein’s
recommendation to treat her for pseudotumor cerebri, and also
reported that Plaintiff’s headaches had been reduced in frequency
to four per month, and that they responded to either Lasix or
Imitrix.

His last report, dated September 21, 2004, showed that

Plaintiff was having only an occasional mild headache at that
time.

He described her pseudotumor cerebri as “under reasonable

control” and recommended some further testing based on her report
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of some other health issues.

(Tr. 246-56).

In 2005 (well after her last insured date), Plaintiff
underwent a shunt placement procedure, performed by Dr. Shehadi.
When she saw him seven weeks post surgery, she was totally
headache-free, had discontinued prior medications, and reported
no symptoms other than some intermittent nausea.
described her as “doing extremely well ....”

Dr. Shehadi

(Tr. 289-90).

Prior to the surgery, she had headaches and documented elevated
cerebrospinal fluid pressure.

(Tr. 294-95).

Another of his

office notes stated that Plaintiff had a “two-year history of
headaches treated with partial relief on Topamax.”

(Tr. 296).

Several years after the shunt was implanted, Plaintiff began to
experience headaches again, and she was hospitalized briefly so
the shunt catheter could be replaced.

(Tr. 359-60).

In the two

years prior to that, however, she was described as having done
“extremely well....”

(Tr. 362).

Dr. Epstein completed a questionnaire in 2010, noting that
he had first seen Plaintiff in 2003.

Her symptoms in 2010

included headaches without optic nerve swelling or vision loss.
She had been scheduled for another shunt revision in June of that
year because the prior one had given her incomplete relief.

He

noted that her headaches were a nuisance but he was not aware of
any work limitations resulting from them.

(Tr. 451-52).

On July 26, 2010, Dr. Teague, a state agency physician,
reviewed certain records from 2003 and concluded that there was
insufficient evidence at that time to show disability from the
alleged onset date to the last insured date.

(Tr. 461).

Dr.

McKee, another state agency physician, concurred in that
assessment.

(Tr. 462).

The record does contain a substantial number of office notes
from Dr. Epstein spanning more than seven years of treatment.
note of June 17, 2004 shows a decrease in the Plaintiff’s
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A

headaches from the beginning of the year, and Plaintiff also gave
Dr. Epstein’s office several calendars showing how often she had
headaches and what time of day.
her headaches were not severe.

She said that most of the days
A note from January, 2004,

described her migraines as infrequent and her other headaches as
decreasing in frequency.

His earliest notes indicate that he

prescribed furosemide for her headaches, which she did not take
for a time due to having a urinary tract infection, that the
medication had helped, and that when he first saw her in August,
2003, she had not had any migraines for the past month.

(Tr.

653, 658).
IV.

The Vocational Testimony

A vocational expert, Mr. Kiger, also testified at the
administrative hearing.

His testimony begins at page 53 of the

record.
Mr. Kiger identified Plaintiff’s past work as a data key
operator as sedentary and semi-skilled.

He was then asked some

questions about a hypothetical person who had no exertional
limitations but who was limited to performing simple routine
tasks in an environment without concentrated exposures to loud
noises.

According to Mr. Kiger, someone with those restrictions

could not perform Plaintiff’s past relevant work but could do
jobs such as inspector or housekeeping cleaner.

If the person

were further required to wear tinted lenses to reduce glare from
lighting, that would not change the jobs available.

If, however,

the person had to miss two days of work each month due to
headache pain, that would eventually eliminate competitive
employment.

The same would be true for a person off task 15% of

the time or who could not concentrate visually for up to an hour
a day.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 19

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through 27 of the administrative record.

The important findings

in that decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured requirements for disability benefits through
September 30, 2003, but not thereafter.

Next, Plaintiff had not

engaged in substantial gainful activity from her alleged onset
date of September 30, 2001 through her last insured date.

As far

as Plaintiff’s impairments are concerned, the ALJ found that
Plaintiff had severe impairments including obesity, migraines,
and pseudotumor cerebri.

The ALJ also found that these

impairments did not, at any time, meet or equal the requirements
of any section of the Listing of Impairments (20 C.F.R. Part 404,
Subpart P, Appendix 1).
Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff had the residual functional
capacity to perform work at all exertional levels, but was
limited to the performance of simple, routine tasks in an
environment without concentrated exposure to loud noises and
which would allow her to wear tinted lenses as necessary to
reduce glare.

The ALJ found that, with these restrictions,

plaintiff could not perform her past relevant work, but could
perform the jobs identified by Mr. Kiger, including inspector and
housekeeping cleaner, and that such jobs existed in significant
numbers in the regional and national economies.

Consequently,

the ALJ concluded that plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises the
following issues.

She argues (1) that the ALJ did not correctly

evaluate her credibility; and (2) that he improperly failed to
appoint a medical expert to testify at the administrative
hearing.

The Court generally reviews the administrative decision

of a Social Security ALJ under this legal standard:

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Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion'"

Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
Plaintiff’s first argument is that the ALJ failed to assess
her credibility properly by not articulating the bases for
finding her testimony of disabling symptoms to be less than fully
credible and by not discussing the various factors listed in
Social Security Ruling 96-7p.

The Commissioner responds by

noting that the ALJ’s assessment of Plaintiff’s condition between
February, 2003, when she first sought treatment for headaches,
and September 30, 2003, or even a short time after that date, is

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fully consistent with the medical records and that those records
reveal only a mild impairment inconsistent with total disability.
The Commissioner also points out that none of the doctors
Plaintiff saw during this time expressed the opinion that she was
disabled.
The Commissioner is not permitted to reject allegations of
disabling symptoms, including pain, solely because objective
medical evidence is lacking, but must consider other evidence,
including the claimant's daily activities, the duration,
frequency, and intensity of the symptoms, precipitating and
aggravating factors, medication (including side effects),
treatment or therapy, and any other pertinent factors. 20 C.F.R.
§ 404.1529(c)(3).

SSR 96–7p requires an ALJ, when assessing a

claimant's credibility, to “consider the entire case record,
including the objective medical evidence, the individual's own
statements about symptoms, statements and other information
provided by treating or examining physicians or psychologists and
other persons about the symptoms and how they affect the
individual, and any other relevant evidence in the case record,”
and cautions that “[a]n individual's statements about the
intensity and persistence of pain or other symptoms or about the
effect the symptoms have on his or her ability to work may not be
disregarded solely because they are not substantiated by
objective medical evidence.”
Here, the record contained very little evidence about how
severe Plaintiff’s condition was other than the medical records
from 2003 - those of Drs. Mankowski and Epstein - and her
testimony.

Although the ALJ did not specifically go through the

list of factors articulated in SSR 96-7p, the ALJ did consider
what evidence there was, and Plaintiff does not point out, in her
statement of errors, any evidence in the record relating to those
various factors which the ALJ overlooked.

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The Court therefore

finds no procedural error here, and its review is limited to
whether the ALJ’s credibility finding is substantially supported
by the record.
This is one of those cases where, based on the evidence, the
ALJ probably could have resolved the credibility issue either way
without doing violence to the record.

Plaintiff did report very

frequent headaches to Dr. Mankowski when she first saw him.
However, as the Commissioner points out, his subsequent treatment
notes and the contemporaneous notes from Dr. Epstein indicate
some improvement in her condition with treatment.

From February

through September, she had fewer headaches, they were not as
severe, and the furosemide was helping.

She was not working at

the time, so there is no evidence about how her headaches might
have been affecting her in the workplace.

There is no question

that in the years following 2003, her headaches got worse to the
point where the implantation of a shunt was necessary, and that
when the shunt malfunctioned her condition worsened, but those
events really do not shed much light on how severe her
limitations were in 2003.

To be disabled during that time, she

had to show that her headaches were frequent enough to cause her
to miss work at least two days a month or to be off task at work
for more than 15% of the time.

One could draw that inference

from the evidence, but it is not a mandatory conclusion and there
is substantial evidence to the contrary.

Given the

inconsistencies between how severe Plaintiff described her
condition when she testified in 2012 and how she and her doctors
described that condition in 2003, the ALJ was justified in
concluding it was not so severe that she could not do at least
those jobs identified by the vocational expert.
of error is therefore without merit.

Her first claim

See, e.g., Bartyzel v.

Commissioner of Social Security, 74 Fed.Appx. 515, 523 (6th Cir.
Aug. 26, 2003)(“where the Commissioner's decision is supported by
substantial evidence, it must be upheld even if the record might
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support a contrary conclusion”), citing Smith v. Sec. of Health &
Human Services, 893 F.2d 106, 108 (6th Cir. 1989).
Plaintiff’s second argument is that the ALJ erred by not
calling a medical expert to interpret the 2003 records,
especially since the state agency reviewers did not have the
benefit of Dr. Epstein’s records from that time period.

In

response, the Commissioner argues that Dr. Epstein’s notes did
not add anything of significance to the record other than showing
that Plaintiff’s headaches had responded well to medication.
As the court observed in Griffin v. Astrue, 2009 WL 633043
*10 (S.D. Ohio March 6, 2009), “[t] he primary function of a
medical expert is to explain, in terms that the ALJ, who is not a
medical professional, may understand, the medical terms and
findings contained in medical reports in complex cases.”

Whether

to call such an expert to testify is generally left to the
discretion of the ALJ, see id., quoting Haywood v. Sullivan, 888
F.2d 1463, 1467–68 (5th Cir. 1989), and the Court may overturn
the exercise of that discretion only if it appears that the use
of a medical consultant was necessary — rather than simply
helpful — in order to allow the ALJ to make a proper decision.
See Landsaw v. Sec’y of Health & Human Services, 803 F.2d 211,
214 (6th Cir. 1986), quoting Turner v. Califano, 563 F.2d 669,
671 (5th Cir. 1977).
Plaintiff spends much of her argument contending that when
the onset date of a progressive illness is difficult to
determine, SSR 83-20 comes into play.

She specifically cites to

portions of that ruling which state that the decision as to an
onset date “must have a legitimate medical basis” and “[a]t the
hearing, the administrative law judge (ALJ) should call on the
services of a medical advisor when onset must be inferred.

If

there is information in the file indicating that additional
medical evidence concerning onset is available, such evidence
should be secured before inferences are made.”
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Here, the ALJ did suggest that Plaintiff may have become
disabled at some point in time, but he did not make any specific
determination to that effect (because, in a Title II case, he did
not have to), nor did he suggest that the key issue was
determining the onset date of disability in a case involving a
progressive illness.

In fact, the records show that Plaintiff’s

condition both improved and deteriorated at various times over
the seven or eight years for which medical records were
available.

The real question in this case is whether the medical

records concerning Plaintiff’s condition in 2003 were so complex
or difficult to understand that the ALJ needed an expert to
interpret them.

The Court does not reach that conclusion.

It is true that there were a few comments in those records,
such as the level of intracranial pressure and whether it was
“mild” in severity, which might have required some
interpretation.

Overall, though, the key issue was simply how

often Plaintiff suffered from truly debilitating headaches.

The

records were sufficiently understandable on that issue to permit
the ALJ to interpret them without much assistance.

Further, the

state agency physicians did interpret Dr. Mankowski’s records; it
was only the records from Dr. Epstein which were submitted after
their review.

There is nothing in this record compelling the

conclusion that those records, which seemed fairly clear both on
the frequency of Plaintiff’s migraine headaches and the effect of
medication on them, so complicated the medical issues that the
ALJ could no longer properly understand the entirety of the
medical evidence without further specialized assistance.
Consequently, the ALJ did not abuse his discretion by failing to
call a medical expert to testify at the administrative hearing.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the defendant Commissioner of Social
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Security.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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