Grenauer v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Regina M Grenauer. It is RECOMMENDED that the decision of the Commissioner be reversed and that this action be remanded to the Commissioner, pursuant to Sentence 4 of 42 U.S.C. § 405(g). Objections to R&R due by 1/22/2016. Signed by Magistrate Judge Norah McCann King on 1/4/2016. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
REGINA M. GRENAUER,
Plaintiff,
vs.

Civil Action 2:15-cv-555
Chief Judge Sargus
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
This is an action instituted under the provisions of 42 U.S.C. §
405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for disability insurance
benefits and for Medicare coverage as a Medicare-Qualified Government
Employee.

This matter is now before the Court for consideration of

Plaintiff, Regina M. Grenauer Statement of Errors, ECF 10 (“Statement
of Errors”) and Defendant’s Memorandum in Opposition, ECF 16
(“Commissioner’s Response”).
I.

No reply has been filed.

Background
Plaintiff Regina M. Grenauer filed her application for benefits

on March 15, 2011, alleging that she has been disabled since May 15,
2003.

PAGEID 274-278.

The application was denied initially and upon

reconsideration and plaintiff requested a de novo hearing before an
administrative law judge.

PAGEID 155-157, 161-163, 168-169.

An administrative hearing was held on May 9, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did John
1

Finch, who testified as a vocational expert.

PAGEID 94-133.

In a decision dated July 12, 2013, the administrative law judge
concluded that plaintiff was not disabled from May 13, 2003, through
the date of the administrative decision.

PAGEID 86.

Plaintiff was 47 years of age on the date of the administrative
law judge’s July 12, 2013 decision.

See PAGEID 86, 102.

She has a

limited education, is able to communicate in English, and has past
relevant work as an attorney.

PAGEID 84-85.

Plaintiff was last

insured for disability insurance purposes on December 31, 2005, and
her insured status for Medicare benefits expired on December 31, 2010.
PAGEID 75.

She has not engaged in substantial gainful activity her

alleged onset date of May 15, 2003 through December 31, 2010.

PAGEID

75-76.
II.

Evidence of Record1
On May 16, 2003, plaintiff suffered a severe traumatic brain

injury as a result of a fall down stairs in her home.
398, 404.

PAGEID 376,

CT scans at the time of her injury revealed a subarachnoid

hemorrhage in the foramen magnum, basilar skull fracture, and
bilateral frontal contusions.

Id.

Following her initial

hospitalization, plaintiff underwent inpatient rehabilitation until
June 6, 2003, and then outpatient rehabilitation at the Neurological
Rehabilitation Program at the Northeast Health Center.

PAGEID 376.

Plaintiff began treating with Deidre D. Redd, M.D., a

1

The Court’s discussion of the evidence is limited to the issues presented in
plaintiff’s Statement of Errors.

2

rehabilitation specialist, in May 2003.

PAGEID 395, 399.

In February

2004, Dr. Redd diagnosed plaintiff with a traumatic brain injury,
resulting in a seizure disorder and problems in communication.
395-97.

PAGEID

According to Dr. Redd, plaintiff’s injuries rendered her

unable “to effectively work as an attorney. It is my opinion she is,
at this time, permanently disabled to perform her duties.”

PAGEID

395.
Plaintiff was examined by Ken Bain, Ph.D., a neuropsychologist,
in November 2003 upon referral by Dr. Redd.

PAGEID 376-383.

On

testing, plaintiff achieved a verbal IQ score of 92 (30th percentile),
a performance IQ score of 104 (61st percentile), and a full-scale IQ
score of 97 (42nd percentile).

PAGEID 377-378.

Dr. Bain noted a

severe problem with dysnomia and a significant reading disability as a
result of the injury.

PAGEID 378.

Dr. Bain diagnosed organic

personality syndrome, secondary to traumatic brain injury, and a
reading disorder, secondary to traumatic brain injury.

PAGEID 380.

According to Dr. Bain, plaintiff’s “cognitive and neurobehavioral
deficits were obstacles to the performance of her job duties.”

PAGEID

382.
Plaintiff presented to William E. Carroll, M.D., a neurologist,
for evaluation of her seizures on February 5, 2004.

PAGEID 566-568.

Dr. Carroll concluded that her seizures were not under control and
advised that she maximize her Trileptal treatment.

PAGEID 567-568.

Leslie A. Friedman, M.D., a neurologist, consultatively evaluated
plaintiff on April 7, 2004, at the request of the state pension
3

system.

PAGEID 398-401.

Plaintiff reported various cognitive

difficulties and intermittent seizures.

PAGEID 398-399.

On

examination, plaintiff was alert, oriented, and appropriate.
400.

PAGEID

Dr. Friedman noted some degree of cognitive and language

dysfunction.

Id.

Based on his examination and a review of her

history, medical records, and current complaints, Dr. Friedman opined,
“Noting [plaintiff’s] previous employment as an attorney and noting
the obvious cognitive demands of an attorney, it becomes quite
apparent that she can no longer function at this level.” Id.
On August 23, 2005, Marjorie C. Gallagher, M.D., completed a
psychiatric evaluation for the state pension system.

PAGEID 542-546.

Dr. Gallagher reported that plaintiff had experienced grand mal
seizures at least once per week until she was stabilized with
medication during the summer of 2004.

PAGEID 542.

Plaintiff’s only

seizure since that time occurred in December 2004 when she forgot to
take her medication.

Id.

Plaintiff reported that she had begun

psychiatric treatment and psychotherapy five years earlier, id., and
last saw a psychiatrist seven months earlier. She continued with
counseling once per week, although she reported that she “is not
getting anywhere.”

PAGEID 542-43.

Plaintiff also reported a history

of alcohol abuse but denied current abuse. PAGEID 544.

Dr. Gallagher

diagnosed dementia due to head trauma, depressive disorder, NOS, and
alcohol dependence in full sustained remission.

PAGEID 545.

Dr.

Gallagher reported that plaintiff’s documented disturbance in
executive functioning would significantly impact her ability to work
4

effectively as an attorney.

Id.

Considering the severity and

refractory nature of plaintiff’s dementia, Dr. Gallagher opined,
plaintiff remained disabled and unable to work as an attorney.

PAGEID

546.
On February 19, 2007, James Youngman, M.D., completed a
psychiatric evaluation for the state pension system.

PAGEID 583-585.

Plaintiff reported that her mood remained depressed and that having to
negotiate stairs triggered episodes of post-traumatic stress disorder.
PAGEID 584.
585.

Plaintiff denied suicidal or homicidal ideation.

PAGEID

Dr. Youngman diagnosed a mood disorder due to a closed head

injury.

PAGEID 545.

According to Dr. Youngman, plaintiff was

presently disabled from a psychiatric point of view and could return
to her position as a prosecuting attorney.

Id.

On April 21, 2008, Robert M. Hess, M.D., performed a consultative
examination of plaintiff.

PAGEID 586-587.

Clinical examination

revealed continued “intellectual dysfunction.”

PAGEID 586.

Dr. Hess

agreed with Dr. Youngman’s diagnoses of a mood disorder secondary to
closed head injury as well as closed head injury with history of
subarachnoid hemorrhage and basilar skull fracture and frontal
contusion seizure disorder.

Id.

Based upon plaintiff’s reports of

persistent seizures, difficulty with cognition, and intellectual
function, Dr. Hess opined that plaintiff “is disabled.”

PAGEID 597.

Talya Greathouse, M.D., plaintiff’s primary care physician,
performed a medical assessment and mental functioning capacity
assessment on January 17, 2011.

PAGEID 677-681.
5

According to Dr.

Greathouse, plaintiff was moderately limited in her ability to
push/pull and bend; she was not significantly limited in her ability
to see; and she had no limitations in her ability to reach, handle,
engage in repetitive foot movements, and in her ability to hear and
speak.

PAGEID 678.

Plaintiff was extremely limited in her ability to

remember locations and work-like procedures and to complete a normal
workday and workweek without interruptions from psychologically based
symptoms, and to perform at a consistent pace without an unreasonable
number and length of rest periods.

PAGEID 679.

Plaintiff was

moderately limited in her ability to understand and remember detailed
instructions, to carry out very short and simple instructions, to
maintain attention and concentration for extended periods, to perform
activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances, to sustain an ordinary routine
without special supervision, to respond appropriately to changes in
the work setting, to be aware of normal hazards and take appropriate
precautions, and to travel in unfamiliar places or use public
transportation.

Id.

Plaintiff’s “significant cognitive dysfunction”

included limitations in speech and reading.

PAGEID 680.

Dr.

Greathouse diagnosed closed head trauma, seizures, depression/anxiety,
and alcoholism.

PAGEID 681.

On September 28, 2012, W. Jerry Mysiw, M.D., Medical Director of
the Dodd Hall and Head Trauma Rehabilitation Services, reported the
following:
I have been following Ms. Grenauer since 8/31/11, for a
6

Traumatic Brain Injury she sustained in May, 2003.
Secondary to her traumatic brain injury she has chronic
headache, anxiety, personality changes, binocular vision
deficits, seizure, fatigue, cognitive impairments and
depression. Future visits will be required to address her
sleep, executive dysfunction, and poor frustration levels
with current treatment plan consisting of medication
management. I reviewed her past medical records and it is
apparent that since her initial head injury she began
having the identical symptoms/diagnoses that I now treat
her for. To the best of my knowledge Ms. Grenauer has been
permanently and totally disabled since her initial injury.
I do consider Ms. Grenauer an appropriate candidate for
Social Security Benefits; she certainly meets your criteria
for the allowed assistance. It is my professional medical
opinion that Mrs. Grenauer is considered to be totally
disabled and will remain unable to retain remunerative
employment.
PAGEID 1289.
III. Administrative Hearing and Decision
Plaintiff testified at the administrative hearing that, after her
injury, she attempted to return to work as a prosecutor part-time.
PAGEID 110.

She experienced her first seizure within one week and

found it impossible to read paperwork.

Id.

She also worked briefly

as a part-time bartender in 2004 and 2005 following her injury, but
could not make mixed drinks and was unable to give correct change.
PAGEID 116-117.
became worse.

She stopped working as a bartender when her seizures
PAGEID 118.

Trileptal helped for a while but her seizures returned after
about a year. She continues to experience seizures at least once or
twice per month.

PAGEID 105-106.

After a seizure, she experiences

headaches and fatigue and has difficulty speaking, although the
severity of these effects varies with the severity of the seizure.
7

PAGEID 107.

After experiencing a seizure, she must remain in bed for

two days; walking, even to the bathroom, is difficult.
relies on others to help her. Id.

Id.

She

If she experiences smaller

seizures, she is unaware of what is going on around her and will find
blood around her mouth.

PAGEID 107-108.

Following these smaller

seizures, she experiences fatigue and headache.

PAGEID 108.

Since her injury, she has been unable to read and write.
109.

She has difficulty with her memory. Id.

lost all memory of her childhood.
difficulty understanding words.

Id.

For example, she has

She becomes tired and has

PAGEID 109-110. Speaking is easier

than reading and writing, but she forgets even common words.
110-111.

PAGEID

PAGEID

She has difficulty focusing on even simple television shows.

PAGEID 111.

She is able to perform such household tasks as laundry.

PAGEID 112.

Friends assist her with more difficult tasks, such as

handling bills.

Id.

Since her injury, plaintiff has also experienced double vision,
which lasts for one or two hours at a time.
experiences tremors in her hands and legs.

PAGEID 113.

She also

PAGEID 114.

Plaintiff testified that, because she cannot work at any job, she
also experiences depression.

PAGEID 115.

She underwent treatment for

alcoholism, and denied any current use of alcohol or other substance
abuse.

PAGEID 118-120.

In a written opinion dated July 12, 2013, the administrative law
judge found that plaintiff’s severe impairments consist of a traumatic
brain injury; a cognitive disorder; a history of seizure disorder; and
8

a history of alcohol abuse.

PAGEID 76.

The administrative law judge

also found that plaintiff’s impairments neither meet nor equal a
listed impairment and leave plaintiff with the residual functional
capacity (“RFC”) to
perform a full range of work at all exertional levels but
with the following non-exertional limitations: the
claimant could not climb ladders, ropes or scaffolds, work
around hazards such as unprotected heights or dangerous
machinery, or engage in commercial driving. Mentally, she
was limited to simple, repetitive tasks in an a [sic]
relatively static environment characterized by infrequent
changes in duties or processes, not involving a fast
assembly-line pace, strict production quotas, or more than
occasional contact with co-workers and supervisors and no
public contact.
PAGEID 78.

The administrative law judge relied on the testimony of

the vocational expert to find that this RFC would permit the
performance of a significant number of jobs in the national economy,
including such representative jobs as laundry worker, grocery stocker,
and warehouse worker.

PAGEID 85-86.

Accordingly, the administrative

law judge concluded that plaintiff was not disabled within the meaning
of the Social Security Act from May 15, 2003, through the date she was
last insured.
IV.

PAGEID 86.

Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the

Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.

Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).

Substantial evidence is more than a scintilla of
9

evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).

This

Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.

See Brainard v. Sec’y of

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.

Kirk, 667

If the Commissioner’s decision is supported by

substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.

Longworth, 402 F.3d at 595.

In her Statement of Errors, plaintiff argues that the
administrative law judge erred in evaluating the opinion of her
treating neurologist, Dr. Mysiw.
1431.

Statement of Errors, PAGEID 1428-

This Court agrees.
The opinion of a treating provider must be given controlling

weight if that opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and is “not
inconsistent with the other substantial evidence in [the] case
record.”

20 C.F.R. § 404.1527(c)(2).

Even if the opinion of a

treating provider is not entitled to controlling weight, an
10

administrative law judge is nevertheless required to determine the
weight to be accorded the opinion by considering such factors as the
length, nature and extent of the treatment relationship, the frequency
of examination, the medical specialty of the treating physician, the
extent to which the opinion is supported by the evidence, and the
consistency of the opinion with the record as a whole.

20 C.F.R. §

404.1527(c)(2)-(6); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406
(6th Cir. 2009); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th
Cir. 2004).

Moreover, an administrative law judge must provide “good

reasons” for discounting the opinion of a treating provider, i.e.,
reasons that are “‘sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.’”

Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007) (quoting SSR
96-2p, 1996 WL 374188, at *5 (July 2, 1996)).

This special treatment

afforded to the opinions of treating providers recognizes that
“these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of
[the claimant’s] medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative
examinations or brief hospitalizations.”
Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)).
The administrative law judge gave “little weight” to Dr. Mysiw’s
opinions:
The opinion of W. Jerry Mysiw, M.D., that the claimant is
disabled is given little weight. First, the record
indicates that Dr. Mysiw did not treat the claimant prior
11

to June 28, 2012, when the records show that she was seen
as a “new patient.” There is no objective evidence to
contradict this medical entry. Thus, notwithstanding his
specialty in treating traumatic brain injuries, there is
nothing that relates back his findings to the time prior to
her DLI [date last insured]. Moreover, he cannot be
considered a treating source during either period under
consideration. In addition, he did not provide a specific
functional assessment of claimant’s limitations, simply
stating that she should “avoid alcohol, excessive physical
activity, heavy lifting, and stressful situations as much
as practical.” (Exhibit 31F).2
PAGEID 80.

The administrative law judge’s statement that “there is

nothing that relates back [Dr. Mysiew’s] findings to the time prior to
her DLI” is factually inaccurate: Dr. Mysiw expressly related his
findings to plaintiff’s “initial injury,” PAGEID 1289 (“[I]t is
apparent that since her initial head injury she began having the
identical symptoms/diagnoses that I now treat her for.

To the best of

my knowledge Ms. Grenauer has been permanently and totally disabled
since her initial injury.”).

The Court therefore concludes that the

matter must be remanded for further consideration of the opinions of
plaintiff’s treating physician, Dr. Mysiw.
Having concluded that the action must be remanded for further
consideration of Dr. Mysiw’s opinions, the Court need not and does not
address plaintiff’s remaining arguments.
It is therefore RECOMMENDED that the decision of the Commissioner
be reversed and that this action be remanded to the Commissioner,
pursuant to Sentence 4 of 42 U.S.C. § 405(g), for further

2

The Court is unable to locate this language in Exhibit 31F.
1289-1291.

12

See PAGEID

consideration of the opinions of plaintiff’s treating physician, W.
Jerry Mysiw, M.D.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure to object to the magistrate judge’s recommendations
constituted a waiver of [the defendant’s] ability to appeal the
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation).

Even when timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails to specify the issues of contention, does not suffice to
13

preserve an issue for appeal . . . .”) (citation omitted)).

January 4, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

14