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Baker v. Berryhill

United States District Court, E.D. Virginia, Alexandria Division

August 12, 2019

NELLIE BAKER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          IVAN D. DAVIS UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the parties* cross-motions for summary judgment. ECF No. 8, 10. Pursuant to 42 U.S.C. § 405(g), Nellie Baker ("Plaintiff') seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Defendant") denying her claim for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"), 42 U.S.C. § 423. For the reasons stated below, the undersigned recommends that Plaintiffs Motion for Summary Judgment be GRANTED and that Defendant's Motion for Summary Judgment be DENIED.

         I. PROCEDURAL BACKGROUND

         Plaintiff filed an application for DIB on March 18, 2014, alleging disability commencing January 15, 2014, due to epilepsy, lupus, and osteoarthritis. Administrative Record ("R-") at 176-77. After the state agency twice denied Plaintiffs claim, Plaintiff requested an administrative hearing. R. at 10-14, 92-95, 102. The Administrative Law Judge ("ALJ") held a hearing on February 16, 2017. R. at 38-62. On May 11, 2017. the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Act until November 24, 2015. R. at 15-31.

         On May 20, 2018, the Appeals Council for the Office of Disability and Adjudication denied Plaintiffs request for review of the ALJ's decision, rendering the ALJ's decision the final decision of the Commissioner for purposes of review under 42 U.S.C. § 405(g). R. at 10-15. Having exhausted her administrative remedies, Plaintiff filed the instant suit challenging the ALJ's decision on September 21, 2018. ECF No. 1. The parties filed cross-motions for summary judgment, and this matter is ripe for disposition.

         II. FACTUAL BACKGROUND

         Plaintiff was born on November 25, 1960, and was fifty-four (54) years old on her alleged onset Dated: February 15, 2013. R. at 176. She has a high school education and no additional vocational training. R. at 29, 199. Plaintiff lives with her husband and father and has a son in college. R. at 42. Plaintiff has not worked since January 2013. R. at 263.

         I. Medical Evidence

         On January 27, 2009, Plaintiff underwent an electroencephalographic ("EEG") report for episodes of altered speech, stopping mid-sentence, not finishing her thoughts, and incorrectly naming objects. R. at 331. She also reported generalized tremors that caused her hands to shake. R. at 331. The test results were abnormal and revealed prominent left frontal and temporal slowing with sharply contoured features and independent right frontotemporal slowing. R. at 331. Additionally, a forty-eight-hour ambulatory EEG performed between January 27 and January 29, 2009 revealed left temporal and frontal sharp wave activity, left frontal and temporal slowing, and independent right frontotemporal slowing. R. at 333-34. A brain magnetic resonance imaging ("MRI") conducted on February 27, 2009, also revealed interval development of focal areas of gliosis from remote injury to the centrum semiovale bilaterally. R. at 371. On December 20, 2012, Maria Chou, M.D., diagnosed Plaintiff with lupus that included symptoms of arthralgias, malaise facial rash, nasal and oral ulcers, and gland swelling on the right side of the neck. R. at 425-27. Further examination also revealed connective tissue disease rash present with malar erythema. R. at 427. Plaintiff was prescribed Plaquenil 400mg for flares and Ambien 10mg for her insomnia. R. at 427.

         On June 14, 2013, Plaintiff visited the Arthritis & Pain Association Clinic for a lupus flare with complaints of joint pain located in both knees, elbows, and hands. R. at 416. On September 13, 2013, she was seen for a lupus flare with complaints of joint pain located in the neck, both shoulders and both wrists, and two transient episodes of sharp bilateral shoulder and neck pain. R. at 445. Doctor Chou noted that Plaintiff reported short term worsening of her memory. R. at 445. Plaintiff was also seen on January 13, 2014, for joint pain and stiffness and morning stiffness. R. at 451. Doctor Chou noted that symptoms were located in the right knee, both elbows, feet, both hands, and hips. R. at 451.

         In records dated February 21, 2014, Plaintiff visited Matthew Churchill, M.D., who noted memory loss and attention difficulty, as well as difficulty finding the correct words. R. at 568. Doctor Churchill also noted Plaintiff was having difficulty remembering if she took her medicine minutes after taking it, was frequently misplacing items, forgetting where she parks, and having trouble remembering what she ate for dinner. R. at 568. On June 24, 2014, Dr. Churchill noted that Plaintiff experienced a good response to the medication. R. at 559.

         Due to her progressive memory loss, Plaintiff underwent a brain MRI on March 6, 2014, which confirmed multiple small scattered foci of T2/FLAIR hyperintensity in the supratentorial white matter. R. at 573.

         On March 31, 2014, Plaintiff was seen by Dr. Chou for joint pain, joint stiffness, and morning stiffness lasting an hour and a half to two hours. R. at 401. Doctor Chou noted continuing problems with concentration on reading and difficulty with word finding, and stated her family was concerned that she would get lost while driving. R. at 401. Examination revealed anxious mood and affect, Heberden's nodes, and moderate tenderness over the bilateral plantar fascia. R. at 401-04.

         Due to increasing cognitive issues, on April 25, 2014, Plaintiff underwent a neuropsychological evaluation by Mary E. Quig, Ph.D., and Corey Burchette, Psy.D. R. at 391-99. They noted a significant medical history for lupus, epilepsy, sleep apnea, excessive fatigue, muscle weakness, numbness and tingling sensations in hands, and osteoarthritis. R. at 391. They further stated that Plaintiff had reported increased pain, increased word finding difficulties, and decreased memory in the six to nine months before her visit. R. at 391. During the neuropsychological evaluation, Plaintiff required instructions to be repeated on the Visual Puzzles and Visual Reproduction tests. R. at 392. The tests revealed: a Verbal Comprehension Index score of 56 (73rd percentile); a Perceptual Reasoning Index score of 47 (38th percentile); a Working Memory Index score of 36 (8th percentile); a Processing Speed Index score of 38 (12th percentile); a Full Scale IQ score of 44 (27th percentile); and General Ability Index score of 52 (58th percentile). R. at 393. Additionally, Verbal Comprehension Subtests revealed scores of 50 in Similarities (50thpercentile), 64 in Vocabulary (92nd percentile), and 53 in Information (62nd percentile). R. at 393. Perceptual Reasoning Subtests revealed scores of 43 in Matrix Reasoning (24th percentile), 42 in Block Design (21st percentile), and 58 in Visual Puzzles (79th percentile). R. at 393. Working Memory Subtests revealed scores of 36 in Digit Span (8th percentile), 39 in Arithmetic (14thpercentile), and 51 in Letter-Numbering Sequence (54th percentile). R. at 393. Processing Speed Subtests revealed scores of 38 in Coding (12th percentile) and 40 in Symbol Search (16thpercentile). R. at 393. The evaluation also indicates that there is evidence of multiple neurocognitive strengths: Plaintiff performed within normal limits on measures of orientation, abstract reasoning, word reading recognition, word finding, expressive fluency, word knowledge, visuo-spatial copy, novel visuo-constructional problem solving, times visuo-spatial reasoning, word list learning, story recognition memory, auditory-verbal cognitive processing speed, visual mental flexibility, and dominant hand fine motor speed. R. at 396.

         Doctors Quig and Burchette stated that Plaintiffs performance was lower than expected on measures of visual symbol search scanning, mental arithmetic, visuo-motor perceptual speed, and auditory attention span. R. at 394. They also found that measures of cognitive processing speed and visual scanning and psychomotor speed were inconsistent. R. at 394. Overall, they found that Plaintiffs neuropsychological profile was suggestive of a diagnosis of Cognitive Disorder Not Otherwise Specified ("NOS"), which resulted in an impaired measure of fine motor coordination and dexterity, sustained attention, numeric visual scanning, delay word list memory, word list recognition memory, visual learning, and visual recognition memory. R. at 397-99.

         Between April 2015 and October 2016, Plaintiff was evaluated at Access Eye Centers to assess Plaquenil toxicity. R. at 292. Testing on April 6, 2015 revealed significant difference of 19.5 between latency low contrast in each eye. R. at 292. Plaintiff also complained of decreased vision in both eyes. R. at 292. Plaintiff was diagnosed with presbyopia and instructed to follow-up with an optometrist for a glasses check. R. at 292. On October 7, 2016, Plaintiff complained of decreased distance vision bilaterally and was diagnosed with bilateral hypermetropia and bilateral astigmatism. R. at 601.

         Between June 2015 and December 2016, Plaintiff also visited the Neurology Center of Fairfax due to epilepsy and recurrent seizures, memory lapses or loss, carpal tunnel syndrome, headache syndrome, systemic lupus erythematosus ("SLE"), and a concussion. R. at 609-25. On June 15, 2015, Dr. Churchill noted that Plaintiff had decided Ritalin had not been helping her cognition and may have been causing headaches. R. at 611.

         Plaintiff also visited the Neurology Center of Fairfax from August 26, 2008 through December 9, 2016. R. at 25. During this time, comprehensive diagnoses included lupus, epilepsy and recurrent seizures, and memory lapses. R. at 25. Progress notes from August 26, 2013, revealed that Plaintiff did not have any new seizure-like episodes. R. at 25. On March 6, 2014, an MRI of the brain revealed no significant change in small scattered foci of T2/flair hyper-intensity in the white matter, as well as no acute intracranial abnormality. R. at 25, 299, 573. On June 14, 2014, progress notes stated Plaintiff was responding well to treatment. R. at 25.

         II. State Medical Consultant Opinion Evidence

         In the Psychiatric Review Technique completed on November 5, 2014, Disability Determination Services ("DDS") review psychologist, Hillel Raclaw, Ph.D., considered Plaintiffs limitations under Listing 12.02, Organic Mental Disorders. R. at 66-68. Doctor Raclaw assigned mild to moderate limitations and noted a restriction of activities of daily living, plus difficulties in maintaining social functioning, concentration, persistence, or pace. R. at 66-68. Doctor Raclaw also completed a Mental Residual Functional Capacity Assessment, in which he acknowledged Plaintiffs understanding and memory limitations, and sustained concentration and persistence ...


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