KIMBERLY E. WEST, Magistrate Judge.
Plaintiff Courtney Brasher (the "Claimant") requests judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner") denying Claimant's application for disability benefits under the Social Security Act. Claimant appeals the decision of the Administrative Law Judge ("ALJ") and asserts that the Commissioner erred because the ALJ incorrectly determined that Claimant was not disabled. For the reasons discussed below, it is the recommendation of the undersigned that the Commissioner's decision be AFFIRMED.
Disability under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . ." 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social Security Act "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . ." 42 U.S.C. §423(d)(2)(A). Social Security regulations implement a five-step sequential process to evaluate a disability claim. See, 20 C.F.R. §§ 404.1520, 416.920.
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g). This Court's review is limited to two inquiries: first, whether the decision was supported by substantial evidence; and, second, whether the correct legal standards were applied.
Claimant was born on November 10, 1990 and was 22 years old at the time of the ALJ's decision. Claimant completed her education through the eleventh grade. Claimant worked in the past as a certified nurses assistant. Claimant alleges an inability to work beginning January 13, 2010 due to limitations arising from seizures.
On May 26, 2010, Claimant protectively filed for disability insurance benefits under Title II (42 U.S.C. § 401, et seq.) and supplemental security income pursuant to Title XVI (42 U.S.C. § 1381, et seq.) of the Social Security Act. Claimant's applications were denied initially and upon reconsideration. On December 14, 2011, an administrative hearing was held before ALJ Trace Baldwin in McAlester, Oklahoma. On June 4, 2012, the ALJ issued an unfavorable decision on Claimant's applications. On March 8, 2013, the Appeals Council denied review of the ALJ's decision. As a result, the decision of the ALJ represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R. §§ 404.981, 416.1481.
The ALJ made his decision at step five of the sequential evaluation. He determined that while Claimant suffered from severe impairments, she retained the RFC to perform a full range of work at all exertional levels with non-exertional limitations.
Claimant asserts the ALJ committed error in (1) failing to find Claimant met a listing; (2) failing to make a proper credibility determination; (3) failing to find her migraine headaches as a severe impairment; and (4) failing to fully develop the record.
In his decision, the ALJ determined Claimant suffered from the severe impairments of seizure disorder and depression. (Tr. 13). The ALJ also found Claimant retained the RFC to perform a full range of work at all exertional levels except that she must avoid all exposure to hazards such as machinery, heights, and dangerous moving equipment. She could perform simple and some complex tasks with routine supervision, could relate to supervisors and peers, and could adapt to a work situation. (Tr. 16). After consultation with a vocational expert, the ALJ found Claimant could perform the representative jobs of janitor, hand packer, and bench assembler, all of which the expert found existed in sufficient numbers in the regional and national economies. (Tr. 22).
Claimant contends the ALJ improperly failed to find she met a listing with her seizure disorder. On August 11, 2009, Dr. Harold Goldman diagnosed Claimant with migraine headaches and seizure disorder. She reported that she experienced momentary spells in which she becomes confused but does not fall. Dr. Goldman found Claimant had generalized tonic-clonic seizures plus nocturnal seizures with incontinence. He placed her on Topamax. (Tr. 460). On September 9, 2009, Dr. Goldman reported that Claimant had missed her Topamax medication occasionally and, as a result, had experienced two seizures. (Tr. 462). On December 16, 2009, Dr. Goldman found Claimant had had more small seizures so he increased the level of her Topamax medication. (Tr. 464).
On January 27, 2010, Claimant saw Dr. Jon Gustafson. He diagnosed Claimant with probable complex partial seizures with secondary generalization. In addition to the Topamax, Dr. Gustafson prescribed Keppra. (Tr. 468-69).
On April 12, 2010, Claimant was admitted in the hospital with acute pyelonephritis and seizures. Claimant's Keppra was increased and Claimant was directed to follow up with her neurologist. (Tr. 716).
On May 6, 2010, Claimant reported having 3-4 seizures per week. She stated that the Topamax had caused renal calculi and stuttering. Claimant's seizures interfered with her ability to work. (Tr. 748-50). On July 8, 2010, Claimant saw Dr. William J. Hayes. Dr. Hayes started Claimant on Tegretol for her seizure condition. He recommended a trial of Gabapentin and directed Claimant to begin weaning off of Keppra. (Tr. 753-54). Claimant reported an increase in seizure activity in August of 2010. Dr. Hayes increased the Tegretol. (Tr. 757). In September of 2010, Claimant reported about 4 seizures per week. (Tr. 758). Dr. Hayes increased the Gabapentin. Lab results indicated Claimant's level of Tegretol was at therapeutic levels. (Tr. 759).
In March of 2011, Claimant reported to Dr. Hayes that she was having seizures several times per week. (Tr. 946). Dr. Hayes adjusted Claimant's medication repeatedly but she maintained that the seizures continued. (Tr. 1206-07).
On January 13, 2011, Dr. Penny Aber evaluated Claimant. Dr. Aber recognized Claimant had therapeutic levels of Tegretol. She sought clarification on Claimant's follow up appointments, the precise nature of Claimant's seizures to ascertain which listing she would fall under, the frequency of her seizures, and a measure of Gabapentin levels for consideration of a listing. (Tr. 256).
On February 14, 2011, Dr. Aber noted Claimant's medication regimen. She also noted Claimant had been non-compliant with her Topamax at one point in time. She concluded that Claimant was supposed to be taking Gabapentin in addition to Tegretol but that the Gabapentin level was not detectable indicating non-compliance. (Tr. 940).
In order to meet Listing 11.02 or 11.03, Claimant bears the burden at step three to demonstrate the following:
20 C.F.R. pt. 404, subpt. P, app. 1, § 11.03
The regulations also provide that adherence to prescribed therapy can ordinarily be determined from objective clinical findings in the report of the physician providing treatment for seizures and that evaluation must include consideration of the serum drug levels.
The medical record contains three serum drug tests and two of the three tests indicate subtherapeutic levels of the anti-seizure drugs prescribed for Claimant. (Tr. 759, 932, 948). Claimant attempts to explain away this testing by stating it is unclear whether she was still prescribed Gabapentin. However, nothing in the record would indicate this to be the case. To the contrary, Claimant was prescribed Gabapentin in July-September of 2010 and February and March of 2011, indicating Claimant's prescription for the medication was active. (Tr. 754-55, 941, 943-44, 1212). The ALJ analyzed the requirements of Listings 11.02 and 11.03 and found Claimant's showing deficient. (Tr. 14-15).
Claimant bears the burden of demonstrating a prima facie case of disability at steps one through four of the sequential evaluation.
Claimant also misinterprets the listing equivalency option in the regulations. Claimant contends her condition is equal to a listing. However, the equivalency standard only applies when an impairment is not specifically listed — a circumstance which does not exist in this case.
Claimant argues the ALJ "discredited" her on several occasions in his decision. Namely, the ALJ noted that she was non-compliant with medication, that stress exacerbated the seizure activity, that Dr. Hayes had characterized some of her seizures as "pseudoseizures," and that she mischaracterized her hospitalization in April of 2010. (Tr. 18). It is well-established that "findings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings."
Claimant asserts the ALJ should have found her migraine headaches as a severe impairment. The focus of a disability determination is on the functional consequences of a condition, not the mere diagnosis. See e.g.
Claimant contends the ALJ violated his duty to develop the record when he failed to obtain the counseling records of Michelle Marvel. Ms. Marvel completed a Medical Source Statement on November 3, 2011 finding Claimant markedly limited in five functional areas. (Tr. 1240-41). In a narrative statement, Ms. Marvel set forth Claimant's statements to her regarding her memory problems, problems with her attention span, difficulties with anxiety, and difficulty dealing with criticism in a work environment. (Tr. 1243). Ms. Marvel concludes that Claimant's anxiety level is high which "may interfere with her ability to complete a normal workday."
The ALJ recognized Ms. Marvel's report but noted she did not provide any treatment notes. He found her to be an "other source" which is not entitled to significant weight in light of the inconsistency with the remainder of the medical record. He noted that her treating physicians have diagnosed her with depression rather than anxiety and that she had never undergone in-patient psychiatric hospitalization and had been treated conservatively for her depressive symptoms. Consequently, he gave her opinion little weight. (Tr. 20).
Generally, the burden to prove disability in a social security case is on the claimant, and to meet this burden, the claimant must furnish medical and other evidence of the existence of the disability.
The decision of the Commissioner is supported by substantial evidence and the correct legal standards were applied. Therefore, the Magistrate Judge recommends for the above and foregoing reasons, the ruling of the Commissioner of Social Security Administration should be
