United States District Court, E.D. Virginia, Alexandria Division
RACHEL R. SCHANZENBACH, Plaintiff.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Michael S. Nachmanoff United States Magistrate Judge
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.
Procedural and Factual History
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.
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"). 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.
Relevant Medical Evidence
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.
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.
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
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.
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.
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.
State Agency Consultants' Opinion Evidence
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.
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.
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.
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.
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.
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. 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.
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.
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.
Standard of Review
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