JOE B. BROWN, Magistrate Judge.
This action was brought under 42 U.S.C. §§ 405(g) and 1383(c) for judicial review of the final decision of the Social Security Administration (SSA) through its Commissioner denying plaintiff's application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act (the Act), 42 U.S.C. §§ 1381 et seq. For the reasons explained below, the undersigned
An application for SSI was filed on plaintiff's behalf on August 12, 2013. Plaintiff, born November 17, 1995, fell within the "Adolescents (age 12 to attainment of age 18)" group, i.e., she was a "child" at the time her application was filed. Plaintiff alleged a disability onset date of August 1, 2001. (Doc. 11, pp. 86-87, 225, 303, 319) Plaintiff's application was denied initially on November 21, 2013, and upon reconsideration on March 26, 2014.
Plaintiff requested a hearing before an ALJ on May 14, 2014. A hearing was held before ALJ Linda Gail Robertson on September 11, 2015.
The ALJ entered an unfavorable decision on October 15, 2015 (Doc. 11, pp. 20-44), after which plaintiff filed a request with the Appeals Council on January 5, 2016 to review the ALJ's decision (Doc. 11, pp. 16-19). The Appeals Council denied plaintiff's request on August 15, 2016. (Doc. 11, pp. 6-11)
Plaintiff brought this action through counsel on December 2, 2016 (Doc. 1), following which she filed a motion for judgment on the administrative record on June 29, 2017 (Doc. 17). The Commissioner responded in opposition July 26, 2017. (Doc. 18) Plaintiff did not reply. This matter is now properly before the court.
Plaintiff's medical records from The Children's Clinic (the "Children's Clinic") of Lawrenceburg are before the court for the period October 31, 2001 to July 28, 2015. (Doc. 11, pp. 418-67, 612-680) These records show that plaintiff first sought treatment at the Children's Clinic for migraine headaches on October 2, 2012 (Doc. 11, pp. 462-63), and that she followed up with Children's Clinic physician Dr. Keith Tolar, M.D., for migraines on seven occasions during the period January 10, 2013 to September 5, 2013. (Doc. 11, pp. 421-28, 433-37) Dr. Tolar reported on August 16, 2013 that plaintiff's headaches were "secondary to poor diet and caffeine in[take]," that medication was "not likely to help if she d[id] not improve her eating habits," confirming thereafter on September 5, 2013, that "[h]er headaches [we]re improved with decreasing of caffeinated drinks and addition of Zoloft. . . ." (Doc. 11, pp. 422, 424) Approximately two months later, on November 20, 2013, plaintiff again presented to Dr. Tolar for "problems with her headaches" at which time Dr. Tolar wrote: "[a]s usual, her history is hard to pin down," she "has headaches most days, most typically while at school . . .," and "[s]he continues to drink at least 2 large caffeinated soft drinks a day." (Doc. 11, p. 636) Plaintiff represented three times between August 11, 2014 and November 11, 2014 that her headaches were "much better since school ended." (Doc. 11, pp. 618, 621, 624)
The treatment records for Dr. Norman McNulty, M.D., Advanced Neurology Associates of Lawrenceburg, are before the court for the period October 31, 2013 to January 28, 2014. (Doc. 11, pp. 474-81) The Children's Clinic referred plaintiff to Dr. McNulty on October 2, 2013. (Doc. 11, p. 644) Dr. McNulty diagnosed plaintiff with "[c]lassical migraine" on October 31, 2013. (Doc. 11, p. 475) Dr. McNulty saw plaintiff again on December 2, 2013 at which time he noted that plaintiff "continues to have migraines 3-4 times per week that last all day . . . [but she] . . . has seen about [a] 20% reduction in her headaches as far as severity of pain. . . ." (Doc. 11, p. 476) Dr. McNulty diagnosed plaintiff with "[c]lassical migraine with intractable migraine." (Doc. 11, p. 477) Plaintiff underwent a MRI of the head for migraines on December 6, 2013. (Doc. 11, pp. 481, 665) The MRI revealed "[n]o significant anatomical abnormalities." (Doc. 11, pp. 481, 665) Dr. McNulty reported on January 28, 2014 that plaintiff "has seen good improvement in her migraines since increasing Topamax to 100 mg . . . and starting Nortriptyline mg . . . [and is] . . . down to two migraines per we[e]k that last two or three hours at a time. . . ." (Doc. 11, p. 478) Dr. McNulty's final diagnosis was that plaintiff had "[c]lassical migraine[s]" that were "improving." (Doc. 11, p. 479)
The Children's Clinic records show that plaintiff presented for "[s]prain, knee unspecified" on eight occasions between June 8, 2010 and July 16, 2012. (Doc. 11, pp. 450,453, 461-62) The clinical notes for these eight treatment dates do not appear to be in the record. Plaintiff presented to the Children's Clinic on July 18, 2014 after she fell while she was playing kickball and it "[f]elt as if [her] knee cap popped out of place then back in." (Doc. 11, p. 628) Examination revealed that plaintiff had FROM [full range of motion] of RT knee with mild pain with flexion . . . [n]o pain with extension . . . [h]er patella [wa]s in place," and the "pain and mild swelling [we]re due to the bruising and the abrasion on her knee. . . ." (Doc. 11, p. 629) Plaintiff's followup appointment on July 22, 2014 was unremarkable. (Doc. 11, pp. 626-28)
The records of Seven Springs Orthopaedics and & Sports Medicine of Spring Hill ("Seven Springs") are before the court for the period February 21, 2011 to May 14, 2015. (Doc. 11, pp. 482-96) Plaintiff presented to Seven Springs on February 21, 2011 for right knee "discomfort." (Doc. 11, p. 495-96) The February 2011 report shows that plaintiff "does P.E. everyday and is active," she had "full range of motion of the . . . knee," the examiner was "unable to reproduce any pain," and x-rays of the knee showed "no acute pathology." (Doc. 11, pp. 495-96)
Plaintiff presented to Seven Springs on April 19, 2011 after she "subluxed her right patella"
Plaintiff was examined by sports medicine physician Dr. Doug Connor, M.D., and Associate Professor of Orthopaedics Andrew Gregory, M.D., on August 7, 2012 at the Vanderbilt University Medical Center (Vanderbilt). (Doc. 11, pp. 416-17) Drs. Connor and Tolar diagnosed plaintiff with "right patellar subluxation recurrent in nature." (Doc. 11, p. 417) The letter from Drs. Connor and Gregory to Dr. Tolar noted that plaintiff's right knee previously had been "worked up with an MRI that [wa]s reportedly normal," as were x-rays of both knees obtained the day of their examination. (Doc. 11, pp. 415-17) Drs. Connor and Gregory noted the following in their letter to Dr. Tolar:
(Doc. 11, pp. 416-17)
Plaintiff presented to Dr. Connor for left knee pain on April 2, 2013. (Doc. 11, pp. 414-15, 442-43) Dr. Connor diagnosed plaintiff with "[l]eft patellar instability and subluxation," noting that x-rays taken that day were "normal." (Doc. 11, p. 415) Dr. Connor wrote the following in the physical examination portion of his clinical report:
(Doc. 11, pp. 414-15)
Physical therapy records from Crockett Hospital in Lawrenceburg are before the court for the period February 24, 2012 to May 15, 2013. (Doc. 11, pp. 681-777) The discharge report dated May 15, 2013 provided the following that is relevant to the matter before the court:
(Doc. 11, p. 681)
Plaintiff presented to Dr. Gregory on August 6, 2013 for a followup on her left knee. Dr. Gregory reported the following upon examination:
(Doc. 11, p. 413)
On November 21, 2013, state agency medical consultant Dr. Dr. Celia Gulbenk, M.D., determined on initial review that plaintiff's alleged migraine and knee limitations were non-severe singly or in combination. (Doc. 11, pp. 90, 92, 99) On March 25, 2014, state agency medical consultant Dr. Carol Lemeh, M.D., reached the same conclusion upon reconsideration. (Doc. 11, pp. 105-08, 115)
The records from the Loretto Family Care Group (Loretto) in Loretto are before the court for the period January 29, 2015 to June 30, 2015. (Doc. 11, pp. 600-11) Plaintiff presented to Loretto on January 29, 2015 "because her right knee popped out of place . . . while she was at work." (Doc. 11, pp. 606-07) Musculoskeletal examination included the following: "Joints, Bones, and Muscles: no malalignment, tenderness, or bony abnormalities and normal movement of all extremities." (Doc 11, p. 607) Plaintiff was taken by her mother to Loretto on February 2, 2015 "for right knee pain that ha[d] been going on for 1 week due to her knee popping out of place. . . ." (Doc. 11, pp. 604-06) The physical examination was the same as January 29
Plaintiff presented to Seven Springs on February 5, 2015 for right knee pain on referral from APRN
Plaintiff returned to Seven Springs on March 17, 2015. (Doc. 11, p. 489) She was reported "doing well" and had "some improvement" in physical therapy. (Doc. 11, p. 489) On examination, plaintiff showed "good range of motion with flexion and extension of the bilateral knees," "[n]o crepitus
Plaintiff returned to Seven Springs on April 7, 2015 at which time she was scheduled for a MRI of her left knee. (Doc. 11, p. 488) Thereafter, plaintiff presented to Seven Springs physician Dr. Jason Haslam, M.D., on April 16, 2015. (Doc. 11, p. 487) Dr. Haslam reviewed the MRI with plaintiff, noting that "[t]he MRI demonstrat[ed] no major internal derangement." (Doc. 11, p. 487) Dr. Haslam's impression was that plaintiff had "left knee patellar instability" and prescribed "operative intervention with left knee diagnostic arthroscopy with lateral release." (Doc. 11, p. 487) Dr. Haslam performed the surgery on April 27, 2015. (Doc. 11, pp. 484-85)
Plaintiff presented to Dr. Haslam "2 weeks postop" on May 14, 2015 who noted that there were "no major complications [with the surgery] other than a recent fall which aggravated some pain and discomfort in the knee . . . rated 7/10." (Doc. 11, p. 482) Dr. Haslam cleared plaintiff to "start physical therapy." (Doc. 11, p. 483)
Plaintiff participated in physical therapy at STAR Physical Therapy (STAR) in Lawrenceburg during the period February 5, 2015 to June 26, 2015 following surgery on her left knee. (Doc. 11, pp. 535-99) The June 26, 2015 discharge summary provides the following assessment: "She has responded well to therapy . . . [she] has partially met all treatment goals at this time but is expected to meet all goals with continued compliance with a HEP [home exercise program]." (Doc. 11, p. 535) The discharge summary noted that plaintiff had met the goals for pain reduction, range of motion, reduction of swelling, ability to ambulate with proper gait, ability to climb and descend stairs without difficulty, and squat for functional activities of daily living (ADL). (Doc. 11, p. 535) The goals that plaintiff had not met were increased quad and hamstring strength, and to be "independent and well tolerant with a final home exercise program." (Doc. 11, p. 535) The discharge summary also noted that plaintiff "continues to deny pain in her knee and reports she has returned to normal activities except for running or higher athletic activities," "[s]he reports compliance with HEP and denies any subluxation since surgery," and "presents with full AROM and strength in knee." (Doc. 11, p. 536)
Before the court is a teacher questionnaire completed on September 17, 2013 by an unnamed "sociology" teacher at Loretto High School (Doc. 11, pp. 239-45) who saw plaintiff five days a week for one month for 1½ hrs. per day (Doc. 11, p. 239). The teacher noted that plaintiff had only a "slight problem" "standing, balancing, shifting weight, bending, kneeling, crouching, walking, running, jumping [and] climbing" (Doc. 11, p. 243), and that plaintiff did not have "an unusual degree of absenteeism" or "frequently miss school due to illness." (Doc. 11, pp. 239, 245)
Plaintiff testified as follows about her headaches upon initial questioning by counsel: 1) she experienced headaches while she was in school; 2) the medications she took for her headaches did not work very well; 3) someone would have to pick her up and take her home when she had headaches at school; 4) when asked, "Do you have any idea, like last year, how many headaches you were having in school," plaintiff answered, "[p]robably two to four"; 5) when asked the question, "[h]ow many headaches do you have now," she answered, "[p]robably less than that"; 6) she also testified that she had "some" headaches at work" but was able to "fight through" them. (Doc. 11, pp. 52-53)
Plaintiff testified as follows about her knees upon initial questioning by counsel: 1) her "knees . . . pop[ped] out of place"; 2) she had the problem since she was 12 years of age; 3) knee pain "[p]retty much" affected her ability to stand and walk; 4) she still had problems with her right knee; 5) her right knee "[s]omtimes" affected her ability to work; 6) she did not have to do anything for knee pain when she got home from work; 7) when she got home from work she would "go to the park and play basketball." (Doc. 11, pp. 55-56)
The ALJ questioned plaintiff about her knees having previously established that she worked one day a week from 7:00 a.m. until 3:00 p.m. (Doc. 11, pp. 51) Plaintiff answered the ALJ's questions as indicated below.
(Doc. 11, pp. 56-57) The ALJ asked counsel at the conclusion of the testimony above if he had anything else he wanted to ask plaintiff, whereupon counsel asked plaintiff the following questions to which she replied as indicated.
(Doc. 11, pp. 57-58)
Plaintiff's grandmother, Barbara Trapp testified at the hearing. Ms. Trapp's testimony included the following:
(Doc. 11, pp. 62-63)
Under the Act, a claimant is entitled to disability benefits if she can show her "inability to engage in any substantial gainful activity by reason of any medically determinable 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." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§ 404.1505, 416.905. A three-step sequential evaluation is used in determining whether an applicant under 18 years of age — considered a "child" — is entitled to SSI benefits: 1) whether the child is performing any substantial gainful activity; 2) whether the child has a severe impairment or combination of impairments; 3) whether the child's impairment or combination of impairments meets, medically equals, or functionally equals the severity of any impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1 (the "Listings"). 20 C.F.R. § 416.924(a)-(d); Elam v. Comm'r of Soc. Sec., 348 F.3d 124, 125 (6
The regulations outline a five-step sequential process to determine whether an adult is "disabled" within the meaning of the Act. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 374-75 (6
The district court's review of the Commissioner's final decision is limited to determining whether the Commissioner's decision is supported by substantial evidence in the record, and whether the decision was made pursuant to proper legal standards. 42 U.S.C. § 405(g); Gayheart, 710 F.3d at 374. Substantial evidence is less than a preponderance but more than a scintilla; it refers to relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); see Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6
Plaintiff asserts that the ALJ erred in not applying a de minimis standard when she determined at step two that her migraine headaches and kneecap problems were not severe limitations. (Doc. 17, pp. 18, 22) Plaintiff also argues that the ALJ erred in determining that she "did not meet Listing 12.05(C)
To be found disabled upon a listed impairment, "the claimant must exhibit all the elements of the listing." Robertson v. Comm's of Soc. Sec., 513 Fed.Appx. 439, 440 (6
The second part is referred to as the "severity criteria." There are two parts to the severity criteria: a valid verbal, performance, or full-scale IQ of 60 through 70,
The record shows that the ALJ determined that plaintiff met the "diagnostic definition" of Listing 12.05C. Thus, the only issue before the court is whether the ALJ correctly determined that plaintiff did not satisfy the "severity criteria."
Plaintiff asserts twice in her motion that the ALJ erred in not applying a de minimis standard in determining the severity criteria due to her migraine headaches and kneecap problems. (Doc. 17, pp. 18, 22) The record shows that the ALJ did not include migraine headaches and kneecap problems as severe impairments in her decision either before or after plaintiff reached the age of majority. (Doc. 11, pp. 28, 36) Although not asserted as a specific argument in her claim of error, the undersigned will nevertheless address this issue for the sake of completeness.
Citing Higgs v. Bowen, 880 F.2d 860 (6
The "severity criteria" of Listing 12.05C, as discussed above at p. 15, is addressed at step three where the claimant is found disabled if her impairments meet or equal one of the physical or mental listings in the published Listing of Impairments. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); See Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 653 (6
As explained above, the ALJ's failure to include plaintiff's migraine headaches and kneecap problems as severe limitation at step two constitutes harmless error at most. Accordingly, this argument is without merit.
Plaintiff makes the following specific arguments in support of the claim that her migraine headaches satisfied the "severity criteria" of Listing 12.05C: 1) the ALJ erred in giving great weight to the opinions of Drs. Gulbenk and Leheh because neither noted "the significant increase in the Plaintiff's prescribed medication nor signs and symptoms present in the MER after March 2014"; 2) "[t]he ALJ seemingly ignore[d] evidence regarding the intensity, persistence, and limiting effects of the migraine symptoms"; 3) the ALJ's determination regarding plaintiff's credibility as to the "intensity, persistence and limiting effects of the symptoms are not credible to the extent that they are inconsistent with the residual functional capacity assessment for the reasons explained below" constitutes "an impermissible exercise in reverse engineering"; 4) "the ALJ's factual support for her conclusory findings . . . is . . . not articulated in the decision"; 5) the ALJ impermissibly made her "own evaluations of the medical findings" in determining that plaintiff's migraines were "situational"; 6) "substantial evidence in the MER . . . serve[s] to corroborate [plaintiff's] statements regarding the intensity, persistence and limiting effects of her migraine headaches"; 7) "the ALJ's decision fails to mention either the significant increase in . . . [p]laintiff's prescription medication or the documented recurrence of symptoms despite medication." (Doc. 17, pp. 19-20)
The ALJ wrote the following in the decision regarding whether plaintiff's migraine headaches satisfied the "severity criteria" of Listing 12.05C:
(Doc. 11, pp. 28-29, 31)
Plaintiff's first argument is that the ALJ erred in giving the opinions of Drs. Gulbenk and Leheh "significant weight" because their reports did not include the "significant increase" in prescribed medications and symptoms in the MER after March 2014.
The district court is not obligated on judicial review to supply factual allegations in support of claims where no facts are alleged. See Hollon ex rel. Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 491 (6
In her third argument, plaintiff makes no effort to explain why the ALJ's statement in bold above at pp. 18-19 constitutes reverse engineering, impermissible or otherwise, nor does she cite any relevant authority to support her view that the offending statement constitutes reversible error. In addition to waiver, this argument also lacks an arguable basis in fact. More particularly, the complained-of statement — or words very similar — are found in most unfavorable decisions entered by ALJs in Social Security cases. In short, plaintiff's third argument is frivolous. Plaintiff's fourth argument — related tangentially to her third — also is frivolous. Again, notwithstanding waiver, were the plaintiff to read beyond the phrase in bold, she would find the "factual support" for the ALJ's decision.
In her fifth argument, plaintiff argues that the ALJ erred in characterizing her headaches as "situational," underlined in the excerpts from the decision above at pp. 17-18. Although plaintiff again pens a one-liner, providing no references to the record or supporting argument, the undersigned concludes from his review of the record that plaintiff is referring to the ALJ's characterization of the three instances in the Children's Clinic records, discussed above at p. 3, wherein it was reported in the "Reviewed Problems" section of those records that plaintiff's headaches were "much better since school ended." Plaintiff cites Hall v. Celebreeze, 314 F.2d 686, 690 (6
The issue in Hall can be summed up in the following sentence from that opinion: "While the Secretary may have expertise in respect of some matters, we do not believe [s]he supplants the medical expert." Hall, 314 F.2d at 690. In short, Hall stands for the proposition that the ALJ may not substitute her medical opinions for the medical opinions of medical professionals.
Unlike Hall, the ALJ in this case was not substituting her medical opinion for those of plaintiff's medical providers. The ALJ was characterizing in lay terms representations attributed to plaintiff in the MER. As shown in n. 23 below, the ALJ's use of the word "situational" also was entirely appropriate by definition.
Turning to her sixth argument, the "substantial evidence in the MER" to which plaintiff refers is Dr. McNulty's clinical records, discussed above at pp. 3-4. Although Dr. McNulty diagnosed plaintiff with "classical migraine with intractable migraine"
There also is substantial other evidence to support the conclusion that "the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms [we]re not credible." For example, the teacher questionnaire discussed above at pp. 9-10 established that plaintiff did not have "an unusual degree of absenteeism," nor did she "frequently miss school due to illness." That questionnaire is supported by plaintiff's own testimony at the hearing. When asked how many headaches she had last year, plaintiff replied "[p]robably two to four," when asked "[h]ow many headaches do you have now," plaintiff testified "[p]robably less than that," and when asked what she did when she had headaches at work, she replied "fight through them."
As shown above, substantial evidence supports the ALJ's determination that "the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms [we]re not credible." Plaintiff's sixth argument is without merit.
For the reasons explained above, plaintiff's claim of error as it pertains to her migraine headaches is waived in part, frivolous in part, and without merit in part. Consequently, plaintiff fails to show that her migraine headaches satisfy the "severity criteria" under Listing 12.05C.
Plaintiff makes the following arguments in support of the claim that her kneecap problems satisfied the "severity criteria" of Listing 12.05C: 1) the ALJ focused unduly "on periodic instances of improvement rather than . . . the entire condition and the Plaintiff's response to medications and treatment"; 2) The AMA Guides to the Evaluation of Permanent Impairment establish that "Plaintiff's knee issues are clearly a severe impairment as opposed to a slight abnormality."
The ALJ wrote the following in the decision regarding whether the issues with plaintiff's knee caps satisfied the "severity criteria" of Listing 12.05C:
(Doc. 11, pp. 28-29, 31, 33)
As shown in the excerpts from the decision above, plaintiff's argument that the ALJ focused unduly "on periodic instances of improvement [rather] than the entire condition" misrepresents the record. Moreover, the excerpts quoted above track with the discussion of the MER above at pp. 4-13. Taken together, the excerpts above and the MER show that the ALJ addressed plaintiff's kneecap problems in a thoughtful, comprehensive, and longitudinal manner. In short, this argument is without merit.
As to the ALJ's alleged failure to address plaintiff's "response to medications and treatment," plaintiff does not identify the prescribed medications and treatment to which she is referring, i.e., she provides no references to the record that would help the court identify the medications and treatments to which she is referring, she makes no effort to explain why the ALJ's decision would have been different had she considered the alleged evidence at issue, nor can any supporting factual allegations be derived by reading this part of her argument in the context of her claim of error. For the reasons explained above at pp. 19-20, this part of her argument is waived.
As shown above, plaintiff's argument pertaining to her kneecaps is without merit in part, and waived in part. Consequently, plaintiff fails to show that her kneecap issues satisfy the "severity criteria" under Listing 12.05C.
For the reasons explained above, the undersigned
