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Moore v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

March 27, 2018

LANETTE D. MOORE, Plaintiff,



         Plaintiff, Lanette D. Moore, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her applications for supplemental social security income and disability insurance benefits. This matter is before the Court for disposition based upon the parties' full consent (ECF Nos. 12, 13), and for consideration of Plaintiff's Statement of Errors (ECF No. 18), the Commissioner's Memorandum in Opposition (ECF No. 22), and the administrative record (ECF No. 9). Plaintiff has not filed a reply memorandum. For the reasons that follow, the Court OVERRULES Plaintiff's Statement of Errors and AFFIRMS the Commissioner's decision.

         I. BACKGROUND

         Plaintiff filed her applications for benefits on May 2013, alleging that she has been disabled since March 22, 2012[1], due to Chiari malformation/brain surgery, a back injury, migraine headaches, and syrinx. (R. at 316-23, 324-30, 364.) Plaintiff's applications were denied initially and upon reconsideration. (R. at 249-55, 261-72.) Plaintiff sought a de novo hearing before an administrative law judge. (R. at 273-79.)

         Administrative Law Judge Paul E. Yerian (“ALJ”) held a hearing on January 15, 2016, at which Plaintiff, represented by counsel, appeared and testified, along with Richard P. Oestreich, Ph.D., a vocational expert. (R. at 154-84.) On February 25, 2016, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 126- 40.) On February 2 and 15, 2017, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-7, 8-14.) Plaintiff then timely commenced the instant action.


         A. Plaintiff's Testimony[2]

         Plaintiff, who was thirty years old at the time of the administrative hearing, testified that she is married with three minor children. (R. at 154.) They live in a one-story house with a basement. (R. at 155.) Plaintiff has a driver's license and drives about four times a week for about ten minutes to drop her nephew off at school. (R. at 156.)

         Plaintiff testified that she had headaches before 2012, but they “really started getting bad” in 2012 and she decided to pursue testing due to her family history. (R. at 161-62.) She described those headaches as “crippling.” (R. at 162.) The headaches would come and go and were not consistent. (R. at 163.) Plaintiff experienced headaches three to four times a week and later the frequency increased to six or seven times a week with numbness in her left arm. (R. at 163-64.) She saw a specialist who recommended surgery. (Id.)

         Plaintiff initially had relief from her headaches for the first couple of months following her September 2012 surgery but her headaches “started coming back[.]” (R. at 165.) The headaches worsened in severity and increased in frequency. (R. at 165-66.) She experienced headaches anywhere from three to seven times a week, and the headaches lasted anywhere from one to twenty-six hours. (R. at 166.) Plaintiff testified that she hadn't “really noticed any triggers.” (Id.) When asked about her symptoms, Plaintiff replied that she experienced light sensitivity, sound sensitivity, nausea, and dizzy spells. (Id.) Plaintiff testified that she initially benefited from medications, but then the medication “didn't work anymore” and would make her dizzy or lightheaded. (R. at 167.) Plaintiff testified that even with her new medication, she still has migraines about five times a week, lasting anywhere from an hour to six hours. (R. at 171.) When she experiences a headache, she feels dizzy and nauseous, but does not vomit. (R. at 171- 72.) When she has a headache, she goes from sitting to lying down, tries to take a walk, runs cold water on her head. (R. at 171.) After the headache passes, she feels very tired and dizzy and has trouble focusing for two to three hours afterwards. (R. at 172.)

         When asked about being able to take care of her children when she was experiencing a headache, she explained that if her husband was home, she would lie down in a dark room with an ice pack on her head. (R. at 170.) If she is home alone, she would “force” herself to stay up. (Id.)

         During a typical day, Plaintiff gets up at 7:00 a.m. and gets her kids ready for school, talking them to the bus stop about ten to fifteen steps from her home. (R. at 175.) She sits in the living room with a heating pad with her feet elevated. (Id.) She will try and do the dishes and then sit back down again for about ten to fifteen minutes before trying to pick up the mess the kids made. (Id.) Plaintiff testified to performing these household chores for only fifteen to twenty minutes at a time, rotating from sitting to chores. (Id.) She picks her kids up from the bus stop around 2:00 p.m. or 2:30 p.m. and tries to help them with their homework, sitting or standing with them off and on. (R. at 175-76.) Plaintiff's husband does the cooking. (R. at 176.) Plaintiff's husband and children do the grocery shopping and she goes with her husband to the grocery store about twice a month and has to hold onto the cart. (Id.) Plaintiff and her family have two cats and three turtles and she takes care of the turtles, which is “very easy.” (R. at 177.) Plaintiff likes to watch television and read. (Id.) She reads about once a month. (Id.) Plaintiff also tries to play board games with her children, but can do so for only twenty or thirty minutes before she gets a headache and has to stop. (R. at 177-78.) She has a smart phone and gets on Facebook about four times a week and texts her mother every day. (R. at 178.) Plaintiff attends parent-teacher conferences twice a year, which each lasted twenty minutes. (R. at 179.) She also attended a Christmas school program that lasted forty-five minutes. (Id.)

         B. Vocational Expert Testimony

         The Vocational expert (“VE”) testified at the administrative hearing that Plaintiff's past relevant employment as a cheese making laborer, was classified as a medium exertion, unskilled job. (R. at 181.) Based on Plaintiff's age, education, and work experience and the residual functional capacity ultimately determined by the ALJ, the VE testified that a similarly situated hypothetical individual could not perform Plaintiff's past work, but could perform 370, 000 sedentary jobs in the national economy such as a hand packer, sorter, or inspector. (R. at 182.)

         The VE also testified that typical absenteeism is permitted up to one day a month. (R. at 183.) According to the VE, a typical employer will not tolerate more than 10% time spent off task. (Id.) The VE further testified that if a hypothetical individual was away from her work station for approximately 60 minutes for a headache recovery period, she would not be able to maintain competitive employment. (Id.)


         A. Marsha Mitchell, CNP

         On June 4, 2012, Plaintiff presented for examination to Marsha Mitchell, CNP, reporting headaches, dizziness, and photophobia. (R. at 629.) CNP Mitchell noted that Plaintiff reported that cold compresses and darkness alleviated the pain. (Id.) CNP Mitchell assessed dizziness, headache, and tension headache. (R. at 631.)

         On July 2, 2012, Plaintiff followed up with CNP Mitchell, reporting daily headaches with a 10/10 intensity that last five to eight hours. (R. at 619.) Plaintiff reported bending forward and not having her own pillow to sleep trigger the migraines, but that they “tend to occur with no specific pattern and are . . . accompanied by photophobia and phonophobia.” (Id.) Plaintiff, however reported that rest and pain medication alieve the pain. (Id.) CNP Mitchell assessed a tension headache. (R. at 621.)

         B. Martha Brogan, M.D.

         On June 15, 2012, Martha Brogan, M.D., performed a brain MRI, which revealed cerebellar tonsils extended through the foramen magnum to the level of the ring of C1 and demonstrated a pointed configuration, the volume of the posterior fossa and fourth ventricle were diminished, and the possible presence of a syrinx cavity in the proximal cervical spinal cord visualized only on the sagittal T1 weighted sequence limiting intrinsic spinal cord detail. (R. at 680.) Dr. Brogan diagnosed Plaintiff with Chiari malformation with a questionable cervical syrinx. (Id.)

         C. Francis Castellano, M.D.

         A July 3, 2012, Francis Castellano, M.D. performed a MRI of the cervical spine. The MRI showed loss of normal cervical lordosis, an extension of the cerebellar tonsils approximately 7mm below the level of the foramen magnum, a cervical spine syrinx extending from C5 to T2, and a second component of the syrinx at the T4 level. (R. at 677.) Dr. Castellano assessed Plaintiff with Chiari malformation with resulting cervical spine syrinx from C5 to T1 measuring 3.5x5mm by transverse dimension at the C6 level, and a second smaller component of the syrinx in the upper thoracic spine at the T4 level. (R. at 678.)

         Dr. Castellano performed another MRI of the thoracic spine on July 7, 2012, which revealed a cervicothoracic syrinx which extended to the T1 level, and a second component of the thoracic spine syrinx extending form T3-T5. (R. at 674.) Dr. Castellano assessed redemonstration of a cervicothoracic syrinx from the C5 to T1 levels measuring 5mm in transverse dimension, and a second smaller thoracic component of the syrinx from the T3 to T5 measuring 3mm in transverse dimension. (Id.)

         D. Anne Nickerson, LISW-S

         On July 30, 2012, Plaintiff presented to Anne Nickerson, LISW-S, for a diagnostic assessment upon referral by CNP Mitchell. (R. at 615-17.) Plaintiff reported increased depression over family issues. (R. at 616.) Ms. Nickerson assessed Plaintiff with compression of the brain - Chiari malformation with multiple syrinx. (R. at 617.)

         E. Siyun Li, M.D.

         Siyun Li, M.D., a neurologist, examined Plaintiff on August 9, 2012. (R. at 573-75.) Plaintiff reported that her headaches typically last two hours if treated and all day long if not treated. (R. at 573.) Plaintiff rated her headaches a 7/10 in severity and that they “limit some normal activity.” (Id.) Plaintiff reported associated symptoms, including sensitivity to light or sound, nausea, vomiting, balance difficulty, dizziness, watery eyes, seeing blind spots, weakness, confusion, fatigue and that bending over, straining, coughing, and walking up stairs aggravate her headaches. (Id.) Plaintiff also reported experiencing transient blurred vision a few times a week. (Id.) Dr. Li assessed multiple lesions within the cervical spinal cord and thoracic spinal cord. (R. at 574.) Dr. Li noted that Plaintiff was experiencing increased neurological complaints and “[t]herefore, surgical intervention appears necessary.” (Id.) Dr. Li referred Plaintiff to Robert Gewitz, MD. (Id.)

         Plaintiff followed up with Dr. Li on May 22, 2013. (R. at 570-71.) Dr. Li noted that Plaintiff posterior fossa decompression surgery performed by Robert Gewirtz in September 2012 “has been very successful.” (R. at 570.) However, Plaintiff reported that over the last few months she experienced some increasing frequency of headaches as well as left arm numbness. (Id.) Her physical examination findings were normal. (R. at 571.) Dr. Li assessed Chiari malformation, syrinx of the spinal cord, chronic headache, and paresthesia of the arm that was likely secondary to cervical syrinx. (R. at 570.) Dr. Li started Plaintiff on the medications, Topiramate (Topamax) and Sumatriptan (Imitrex) and noted if Plaintiff's symptoms worsen, she would obtain a repeat MRI of Plaintiff's cervical spine. (Id.)

         On August 22, 2013, Plaintiff followed up with Dr. Li, complaining that her medications were not helping her migraines, but she denied significant side effects from the medication. (R. at 650.) Plaintiff reported her headaches had worsened and she experienced between three and four headaches per week. (Id.) Her physical examination findings were normal. (Id.) Dr. Li adjusted Plaintiff's medications. (Id.)

         During a follow-up visit to Dr. Li on October 22, 2013, Plaintiff reported headaches. (R. at 648.) Dr. Li assessed Chiari malformation, posterior fossa decompression, chronic headaches, and syrinx of the spinal cord. (Id.)

         F. Robert Gewirtz, M.D.

         Plaintiff presented to Robert Gewirtz, M.D., on August 29, 2012, for a consultative examination, complaining of headaches, arm pain, and stumbling. (R. at 534-35.) Dr. Gewirtz noted that Plaintiff was “clearly myelopathic.” (R. at 534.) He recommended decompressing the Chiari malformation and observing the syrinx. (Id.) Dr. Gewirtz advised that surgery may be necessary. (Id.)

         On September 14, 2012, Dr. Gewitz performed a suboccipital craniectomy with removal of the arch of Cl with Dural patch repair. (R. at 552-54.) Prior to being released from the hospital, Plaintiff underwent a CT of her brain on September 16, 2012 which showed status post craniectomy in the occipital region and resection of the posterior arch of C1 with trace pneumocephalus and no hydrocephalus or hemorrhage. (R. at 562.)

         On December 12, 2012, Plaintiff was seen by Dr. Gewirtz for her three month post-surgical follow-up. (R. at 537.) Dr. Gewirtz noted that Plaintiff “is doing great. She has no headaches. Her wound looks fantastic. She is very pleased with the results.” (Id.) Dr. Gewirtz further noted that Plaintiff's examination was normal and he was really pleased with how well she has done. (Id.) Dr. Gewirtz cleared Plaintiff for full activity. (Id.)

         G. Preeti Agrawal, M.D.

         On September 12, 2012, Plaintiff presented to Preeti Agrawal, M.D., complaining of headaches. (R. at 599.) Dr. Agrawal assessed Budd-Chiari syndrome. (R. at 600.)

         H. Jonathan Lee, M.D.

         On September 16, 2012, Johnathan Lee, M.D., performed a CT head scan without contrast. (R. at 538.) Dr. Lee noted the posterior arch of C1 had been resected with the suboccipital caniectomy, a small amount of gas present within the surgical bed, a tiny amount of ...

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