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Schanzenbach v. Berryhill

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

September 18, 2019

RACHEL R. SCHANZENBACH, Plaintiff.
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          Michael S. Nachmanoff United States Magistrate Judge

         This matter comes before the Court on the parties' cross-motions for summary judgment (Dkt. Nos. 13 and 14). Plaintiff Rachel R. Schanzenbach seeks judicial review of the final decision of defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, denying her claim for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423 (the "Act"). Alternatively, plaintiff moves for an order remanding the instant appeal to the Social Security Administration ("SSA") for a new administrative hearing pursuant to § 405(g). For the reasons stated below, the undersigned recommends that plaintiffs Motion for Summary Judgment (Dkt. No. 13) be DENIED, defendant's Cross-Motion for Summary Judgment (Dkt. No. 14) be GRANTED, and defendant's final decision be AFFIRMED.

         I. Procedural and Factual History

         Plaintiff applied for disability insurance benefits on March 2, 2015 alleging disability beginning May 15, 2007. Administrative Record ("AR") at 10. Plaintiffs application was denied on April 20, 2015 and again upon reconsideration on June 29, 2015. Id. At plaintiffs request, a hearing was held on May 1, 2017 before Administrative Law Judge ("ALJ") Andrew M. Emerson. Id. Both plaintiff, represented by an attorney, and a Vocational Expert ("VE") testified. Id. at 28-69. On June 29, 2017, the ALJ issued a decision finding that plaintiff was not disabled. Id. at 10-20. On June 14, 2018, the Appeals Council for the Office of Disability and Adjudication denied plaintiffs request for further administrative review and notified her that the ALJ's decision stood as the Commissioner's final decision. Id. at 1-3.

         Having exhausted her administrative remedies, plaintiff filed a Complaint (Dkt. No. 1) on August 6, 2018 challenging the ALJ's decision. Plaintiff filed a Motion for Summary Judgment (Dkt. No. 13) on January 25, 2019, to which the Commissioner filed a Cross-Motion for Summary Judgment (Dkt. No. 14) on February 22, 2019, along with a Memorandum in Support of Defendant's Motion for Summary Judgment and In Opposition to Plaintiffs Motion for Summary Judgment (Dkt. Nos. 15 and 16). Accordingly, the parties' motions are ripe for disposition. The relevant period for the instant action is between May 15, 2007, the alleged onset date, and the date last insured, December 31, 2007 ("relevant period").[1] AR at 11. Plaintiff alleged the following impairments: mitochondrial myopathy; dysautonomia; autism spectrum disorder; major depressive disorder; and general anxiety disorder. Id. at 70. Below is a summary of the relevant medical evidence, state agency opinion evidence, and testimony from the administrative hearing.[2]

         a. Relevant Medical Evidence

         The sole treatment note from the relevant period is plaintiffs phone consultation with Dr. John Hart, M.D., on September 14, 2007. AR at 1406. On the call, plaintiff told Dr. Hart that she reported positive for Lyme disease. Id. She further reported that both her digestion and sleep were improving; however, she was "sore all the time," it hurt "to hold her head up," and her neck ached. Id. Without seeing plaintiff, Dr. Hart discussed antibiotic recommendations, but plaintiff was not interested in antibiotics and instead wanted to discuss other herbal antibiologics. Id. There are no other medical records from 2008, 2009, or much of 2010.

         Between 2010 and 2016, plaintiff saw several doctors, most of whom found plaintiff to be relatively healthy. See, e.g., AR at 1377 (Dr. Henry Linder treatment notes from May 11, 2011 stated that plaintiff showed improvements to the extent she could socialize again, including "driving with [her] children"); id. at 964 (Dr. Howard Glide's treatment notes from April 22, 2013 stated that plaintiff "is doing well"); and id. at 343 (Dr. Frederick Lillis' treatment notes from March 10, 2014 found that plaintiff "is doing well" and that her symptoms and pain are "controlled"). Doctors Seth Tuwiner, Virgil Balint, and Fran Kendall also treated plaintiff between 2011 and 2016; plaintiff relies heavily on their opinions in her motion.

         Dr. Tuwiner began treating plaintiff in October 2011. Id. at 1422. In a letter dated April 14, 2017, Dr. Tuwiner stated that he felt strongly that plaintiff "had a progressive muscle disease for >5 years." Id. at 1422. He explained that plaintiff "suffered from her condition and the frustration of not coming up with a diagnosis" and, after genetic testing, she was diagnosed with a "rare mitochondria! muscle disorder with systemic manifestations." Id. Although he found that plaintiff "improved with appropriate treatment," he ultimately concluded that plaintiff had been disabled for many years and was still "disabled." Id; but see Id. at 967-68 (finding that plaintiff was doing well at a follow-up visit one month later on May 3, 2017, because plaintiff was well-nourished, well-groomed, and did not have apparent distress, despite plaintiffs report that she still had "muscle pain and fatigue with significant exertion").

         Plaintiff visited Dr. Balint in September 2012 for complaints of muscle pain. Id. at 478. Plaintiff told Dr. Balint that she has felt "continuous" and "severe" pain throughout her body since 2006. Id. She came to the appointment with a "very thick stack of medical records from multiple physicians," which reflected normal tests. See, e.g., Id. ("MRI of the brain is normal. MRI of the bilateral lower extremety [sic] is consistent with muscular edema and atrophy. EMG of the upper and lower extremities is consistent with chronic myopathy. ANA and other rheumatoid factors are all negative."). Dr. Balint's physical examination was generally normal, including normal balance, gait, posture, muscle bulk/tone, and her lower and upper extremities all showed close to full strength. Id. at 480. Dr. Balint further found that plaintiff did not have a "definitive diagnosis for her symptoms." Id. at 481.

         Lastly, Dr. Kendall treated plaintiff three times between 2013 and 2014. See Id. at 295, 321, 327. In October 2013, plaintiff self-reported that she cannot climb stairs or perform other activities of daily living, such as driving, and has required a caregiver since 2006. Id. at 321. Dr. Kendall discussed various diagnostic possibilities that may have caused her symptoms and suggested various tests. Id. at 324. Plaintiff did not return to see Dr. Kendall until one year later; in October 2014, Dr. Kendall conducted a physical examination, which was generally normal. Id. at 298 (finding her affect was "normal and appropriate," her mucosa was "pink and moist," her pharynx "without erythema or injection," her "TMs and canals [were] normal bilaterally with normal light reflex and no erythema," her neck was "supple without significant lymphadenopathy or thyromegaly," her chest "CTA [was] normal," her abdomen was "soft & non-tender," her extremities did not show "cyanosis, clubbing, or edema but some mottling and coolness to touch," and her reflexes were "normal"). Despite normal examination results. Dr. Kendall concluded that plaintiff had myopathy, progressive weakness, pain, fatigue, hypothyroidism, Asperger syndrome, anxiety, and major depressive episodes. Id. In February 2014, Dr. Kendall confirmed the same results. Id. at 327-31.

         On July 17, 2015, Dr. Kendall wrote a letter describing plaintiffs medical history. Id. at 485-87. Based on plaintiffs self-reported statements, as well as the results of a skin biopsy showing that she had a partial mitochondrial respiratory chain, Dr. Kendall concluded that plaintiffs "problems are life-long and have been clinically relevant for over a decade... and will not resolve and will require ongoing treatment." Id. at 486. Because there is no cure for plaintiffs disorder, Dr. Kendall found that she will not show any significant improvements and should receive support because her disease "renders her incapable of age appropriate functioning and independence with NO hope for recovery to normal functionality." Id. at 487.

         b. State Agency Consultants' Opinion Evidence

         On April 16, 2015, state agency expert physician Dr. Jack Hutcheson reviewed the record and found that most of the evidence pertained to plaintiffs treatments after the date last insured and that the available "evidence for the relevant period [is] not enough to make a determination on the [] claim." AR at 76. Therefore, Dr. Hutcheson found that plaintiffs claim should be denied for insufficient evidence. Id. Upon reconsideration, Dr. James Darden reviewed the record on June 23, 2015, and arrived at the same conclusion, finding that there was insufficient evidence in the record to show that plaintiff was disabled prior to the date last insured. Id. at 87.

         c. Administrative Hearing

         On May 1, 2017, the ALJ heard testimony from plaintiff, appearing with an attorney, and the VE. AR at 26. At the outset, the ALJ informed plaintiff that she would solely be testifying about her functioning between May 15, 2007, her alleged onset date, and December 31, 2007, her date last insured. Id. at 30. The ALJ further stated that it seemed likely that her chronic condition had "gotten worse but [he] can't consider [her] current condition." Id. at 31. The ALJ further reinforced that the social security process is not a diagnosis driven program but instead focuses solely on functioning. Id. at 31-32.

         Plaintiff testified that she completed three years in college, where she held three different jobs. Id. at 51. First, she was a resident assistant, where she assisted students with residence- and school-related questions. Id. at 60. Second, she was a facility worker for a lodge where she would do laundry, make the beds, clean bathrooms, and vacuum the carpet. Id. at 61. Lastly, she was a call center attendant where she would do administrative tasks. Id. at 33. Outside of these positions, she has not performed any work since 2002, except for some volunteer work. Id. at 33-34.

         Around May 2007, plaintiff reported that she became too ill to take care of her children and thus moved in with her husband's family. Id. at 34-35. When she lived with her in-laws, she engaged in few social activities. Id. at 36. She attended church but was unable to visit with many people because she was "stuck at [her] in-laws house," which was in a secluded area. Id. During this period, plaintiff stopped cooking, grocery shopping, washing dishes, and doing laundry, among other household chores. Id. at 46-47.

         Plaintiff described experiencing various issues involving fatigue, muscle strength, and concentration. For example, she could only sit for 45 minutes and then would have to lay down. Id. at 42. Similarly, she could probably stand for about 15 or 20 minutes but then would have to sit down for 5 to 10 minutes. Id. at 43. Plaintiff could still climb stairs and lived in a split-level home, but sometimes she would crawl on all fours to conserve energy. Id. Plaintiff said she was able to carry around 20 pounds during the relevant time. Id. at 41. She also stated that she had trouble reaching over her head and using her hands and fingers: she used to do all of the cooking but stopped because she was losing control of her motor functions. Id. at 44-45. Lastly, plaintiff "began to have a lot of trouble with losing [her] train of thought and with being able to remember words." Id. at 45. However, she was able to read, write letters to her friends and family, and use a computer. Id. at 50-51. She was also able to engage in very limited social interactions. Id. at 46.

         The VE testified next, characterizing plaintiffs prior employment as a general clerk as semiskilled work at a light exertional level; as a housekeeper as unskilled work at a light exertional level; and as a resident assistant as unskilled work at a light exertional level.[3] Id. at 61. The ALJ asked the VE to consider various scenarios involving an individual of the same age, education, and work experience as plaintiff who "can only occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl", "can never climb ladders, ropes and scaffolds", and would need to avoid concentrated exposure to extreme cold, heat, wetness, excessive vibration, and hazardous moving machinery and unprotected heights ("hypothetical individual"). Id. at 61-62.

         First, the ALJ asked the VE if such this hypothetical individual could perform plaintiffs past work as it was actually or customarily performed in the national economy if she were limited to medium work. Id. at 62. The VE said that the individual could perform all of her jobs, as well as the following positions: a linen room attendant; a sandwich maker; and a counter supply worker. Id. Second, the ALJ asked the VE to consider whether the same hypothetical individual could perform plaintiffs past work if limited to light work. Id. at 63. The VE responded that such an individual could perform her past work, as well as the following positions: marker; office helper; and ticket taker. Id. Lastly, the ALJ asked the VE to consider whether this hypothetical individual would be able to perform plaintiffs past work if limited to sedentary work. Id. at 63-64. The VE responded that such an individual would not be able to perform plaintiffs past work but would be able to perform other positions at a reduced sedentary exertional level, including: clerk; document preparer; and table worker. Id. at 64.

         Plaintiff's attorney also questioned the VE. He first asked whether an individual who had to nap for two-and-a-half hours during the day could perform any of her past employment. Id. at 65. The VE responded no. Id. Plaintiffs attorney further asked whether a need for 30 minutes of rest after a normal meal would impact a person's ability to work. Id. The VE responded that such a person would typically be "precluded from employment," and that if plaintiff were off task more than 15% of an eight-hour work day, she would be precluded from work. Id. at 66. The VE stated that if plaintiff were off task 70 or 80 minutes per day, she would be precluded from all jobs. Id. at 66-67.

         II. Standard of Review

         The Social Security Regulations define "disability" as the "inability to do any substantial gainful activity by reason of any medically detenninable 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." 20 C.F.R. §§ 404.1505(a), 416.905(a). To meet this definition, the claimant must have a severe impairment that makes it impossible to do past relevant work or any other substantial gainful activity ("SGA") that exists in the national economy. Id.; see also Heckler v. Campbell,461 U.S. 458, 460 (1983). Determining whether an applicant is eligible for disability benefits under the SSA entails a "five-part inquiry" that "asks: whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a medical impairment (or combination of impairments) that are severe; (3) the claimant's medical impairment meets or exceeds the severity of one of the impairments listed in [the SSA's official Listing of Impairments]; (4) the claimant can perform [his] past relevant work: and (5) the claimant can perform other specified types of work." Hines v. Barnhart,453 F.3d 559, 562 (4th Cir. 2006). Before deciding whether a ...


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