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Grenauer v. Commissioner of Social Security

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

December 13, 2019

REGINA M. GRENAUER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Michael H. Watson Judge

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Regina M. Grenauer (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Social Security Disability Insurance benefits (“SSDI”). This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 12), the Commissioner's Memorandum in Opposition (ECF No. 17), Plaintiff's Reply (ECF No. 18), and the administrative record (ECF No. 11). For the following reasons, it is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner's decision.

         I. BACKGROUND

         Plaintiff applied for disability benefits on March 15, 2011, alleging disability beginning March 15, 2003. (R. at 217-221.) Plaintiff's claim was denied initially and upon reconsideration. (R. at 99-111.) Upon request, a hearing was held on May 9, 2013, in which Plaintiff, represented by counsel, appeared and testified. (R. at 16-39.) A vocational expert, John Finch, also appeared and testified at the hearing. (Id.) On July 12, 2013, Administrative Law Judge Paul E. Yerian (“the ALJ”) issued a decision finding that Plaintiff was not disabled at any time from May 13, 2003, through the date of the administrative decision. (R. at 19-32.) On December 19, 2014, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-3.) Plaintiff filed a Complaint on February 10, 2015, in a case captioned Grenauer v. Commissioner of Soc. Sec., Case No. 2:15-cv-555. On January 25, 2016, the Court reversed the Commissioner's decision and remanded the case for further consideration of the opinion of Plaintiff's treating provider, W. Jerry Mysiw, M.D. (R. at 1423-38.)

         Upon remand, a second hearing was held on September 19, 2016, in which Plaintiff, represented by counsel, appeared and testified. (R. at 1396-1416.) A vocational expert, Connie O'Brian, also appeared and testified at the hearing. (Id.) On January 12, 2017, ALJ Yerrian issued a decision that again found that Plaintiff was not disabled at any time from May 13, 2003, through the date of the administrative decision. (R. at 1518-20.) The Appeals Council declined to assume jurisdiction, thereby making the ALJ's decision the final decision of the Commissioner. (R. at 1361-63.) Plaintiff then timely commenced the instant action. (ECF No. 1.)

         II. RELEVANT HEARING TESTIMONY

         A. First Hearing - May 9, 2013

         At the first administrative hearing on May 9, 2013, Plaintiff testified that she attempted to return part-time to her previous work as a prosecutor after her injury. (R. 56.) Within one week, she experienced a seizure and she was having difficulty reading paperwork. (Id.) In 2004 and 2005, Plaintiff worked as a part-time bartender, but had difficulty making drinks and giving correct change. (R. at 63-64.) Plaintiff reported that the medication Trileptal helped with her seizures initially, but after about a year she began experiencing one or two seizures per month. (R. at 50-51, 52.) Plaintiff explained that, after she experiences a seizure, she usually must remain in bed for two days and, during that time, she relies on others to help her. (R. at 53.) Plaintiff reported that she has not been able to read or write and that she has had difficulty with her memory since her injury. (R. at 55-56.) She stated that she can complete simple household tasks but relies on friends to assist her with more difficult tasks, such as handling bills. (R. at 57-58.) Plaintiff also reported experiencing double vision, tremors, and depression since her injury. (R. at 59-61.) She denied any current use of alcohol or other substance abuse at the hearing. (R. at 65-66.)

         B. Second Hearing - September 19, 2016

         After the case was remanded, Plaintiff testified at another hearing on September 19, 2016 before ALJ Yerian. (R. at 1394-1416.) Plaintiff reported that, since the previous hearing in May 2013, she has not had any significant changes in her medical condition. (R. at 1402.) She indicated that she is still experiencing seizures but has switched to a different medication. (Id.) She reported experiencing seizures about once per week. (R. at 1403.) Plaintiff described that “[t]hey put [her] out for about three days.” (Id.) She continued to have difficulty reading. (Id.) She denied any use of alcohol or marijuana. (R. at 1403-04.)

         III. RELEVANT RECORD TESTIMONY

         Plaintiff suffered a severe traumatic brain injury as a result of falling down her stairs on May 16, 2003. (R. at 317.) CT scans at the time of her injury revealed a subarachnoid hemorrhage in the foraman magnum, basilar skull fracture, and bilateral frontal contusions. (Id.) Specifically relevant to this Report and Recommendation is the medical opinions of W. Jerry Mysiw, M.D. Dr. Mysiw is Plaintiff's treating physiatrist. (R. at 1379.) On September 28, 2012, Dr. Mysiw provided the following narrative report:

I have been following Ms. Grenauer since 8/31/11, for a Traumatic Brain Injury she sustained in May, 2003. Secondary to her traumatic brain injury she has chronic headache, anxiety, personality changes, binocular vision deficits, seizure, fatigue, cognitive impairments and depression. Future visits will be required to address her sleep, executive dysfunction, and poor frustration levels with current treatment plan consisting of medication management. I reviewed her past medical records and it is apparent that since her initial head injury she began having the identical symptoms/diagnoses that I now treat her for. To the best of my knowledge Ms. Grenauer has been permanently and totally disabled since her initial injury. I do consider Ms. Grenauer an appropriate candidate for Social Security Benefits; she certainly meets your criteria for the allowed assistance. It is my professional medical opinion that Mrs. Grenauer is considered to be totally disabled and will remain unable to retain remunerative employment.

(R. at 1228-1230.)

         On August 2, 2016, Dr. Mysiw conducted a mental RFC assessment of Plaintiff in which he noted Plaintiff's capacities in various categories: understanding and memory, sustained concentration and persistence, social interaction, and adaptation. (R. at 1651-1653.) On September 19, 2016, Dr. Mysiw prepared another narrative report:

. . . Ms. Grenauer's continues to struggle with memory and attention problems. She also has problem commonly found after a frontal lobe injury in that she has diminished insight, organizational and initiation skills. Therefor[e] it is very difficult for her to manage her own home and live independently without some supervision and support. Also, she never fully regained her language skills. Her verbal expression is functional but her ability to understand complex conversations is limited. In addition she never regained reading and writing skills that are functional.
Ms. Grenauer's recovery was initially compromised by continued alcohol use or abuse. That is now seemingly controlled and no longer a factor. Despite that, she has never regained the functional skills to return to work. In fact the nature of her cognition limitations, the impaired insight and impulse control, the problems she has with organization and task completion and the language deficits make it difficult for her to live independently without support. Her recovery is stable. She will never improve enough to sustain work related activities and she will never be fully independent.

(R. at 1711.)

         IV. ADMINISTRATIVE DECISION

         On January 12, 2017, the ALJ issued his decision. (R. at 1367-1393.) At step one of the sequential evaluation process, [1] the ALJ found that Plaintiff had not engaged in substantial gainful activity since May 15, 2003, her alleged onset date, through December 31, 2005, and December 31, 2010, her date last insured. (R. at 1373.) At step two, the ALJ found that Plaintiff has the following severe impairments: traumatic brain injury, seizure disorder, cognitive disorder, and a history of alcohol abuse. (R. at 1373.) The ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 1373.)

         At step four of the sequential process, the ALJ set forth Plaintiff's residual functional capacity (“RFC”) as follows:

[A] full range of work at all exertional levels but with the following non-exertional limitations: could not climb ladders/ropes/scaffolds; could not work around hazards such as unprotected heights or dangerous machinery; could not engage in commercial driving. Mentally, the claimant was limited to simple, repetitive tasks in an a relatively static environment characterized by infrequent changes in work duties or processes and not involving a fast assembly-line pace, strict production quotas, or more than occasional contact with co-workers and supervisors with no direct interaction with the public. The claimant would have been able to maintain attention and concentration for two-hour segments.

(R. at 1376.)

         The ALJ decided that this RFC precluded Plaintiff from performing her past relevant work as an attorney. (R. at 1382.) The ALJ found that considering Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (R. at 1382-83.) He therefore concluded that Plaintiff was not disabled under the Social Security Act any time from May 15, 2003, her alleged onset date, through the date last insured. (R. at 1384.)

         V. STANDARD OF REVIEW

         When reviewing a case under the Social Security Act, the Court “must affirm the Commissioner's decision if it ‘is supported by substantial evidence and was made pursuant to proper legal standards.'” Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).

         Although the substantial evidence standard is deferential, it is not trivial. The Court must “‘take into account whatever in the record fairly detracts from [the] weight'” of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial evidence supports the ALJ's decision, this Court defers to that finding ‘even if there is substantial evidence in the record that would have supported an opposite ...


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