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Melton v. Colvin

United States District Court, M.D. Tennessee, Northeastern Division

December 15, 2016


          Honorable Kevin H. Sharp, Chief United States District Judge.


          Joe B. Brown United States 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 applications for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 416(I) and 423(d). For the reasons explained below, the undersigned RECOMMENDS that plaintiff's motion for judgment on the administrative record (Doc. 11) be DENIED, and the Commissioner's decision AFFIRMED.


         Plaintiff applied for DIB on June 6, 2012, alleging a disability onset date of December 24, 2011.[2] Plaintiff claimed she was unable to work due to high blood pressure, right shoulder problems, loss of memory, and arthritis. (Doc. 7, p. 155) Plaintiff's applications were denied initially on August 22, 2012, and upon reconsideration on November 8, 2012. Plaintiff requested a hearing before an ALJ on November 16, 2012. A video hearing was held January 21, 2014. Plaintiff was represented at the hearing by attorney Donna Simpson.

         The ALJ entered an unfavorable decision on May 16, 2014 (Doc. 7, pp. 12-32), after which plaintiff filed a request with the Appeals Council on June 6, 2014 to review the ALJ's decision (Doc. 7, pp. 10-11). The Appeals Council denied plaintiff's request on September 23, 2015 (Doc. 7, pp. 1-5), whereupon the ALJ's decision became the final decision of the Commissioner.

         Plaintiff brought this action through council on October 27, 2015 (Doc. 1), following which she filed a motion for judgment on the administrative record on April 25, 2016 (Doc. 11). The Commissioner responded on May 23, 2016. (Doc. 13) Plaintiff did not file a reply. This matter is now properly before the court.

         II. EVIDENCE[3]

         A. Medical Evidence

         Plaintiff was admitted to the Cookeville Regional Medical Center (Cookeville Regional) emergency room (ER) on November 24, 2011 with altered mental status, disorientation, slurred speech, etc. (Doc. 7, pp. 554-70) A CT scan of plaintiff's head revealed “[n]o acute intracranial pathology, ” i.e., it was a “[n]ormal CT scan head . . . for the patient's age.” (Doc. 7, p. 567)

         Plaintiff was transferred from the Cookeville ER to St. Thomas hospital in Nashville on November 24, 2011. (Doc. 7, pp. 492-517) The impression from a brain MRI performed at St. Thomas showed “[s]cattered periventricular and subcortical white matter lesions . . . most consistent with small vessel disease in a patient of this age. Otherwise negative noncontrast MRI brain.” (Doc. 7, pp. 492, 502-03) The St. Thomas records note that plaintiff's family stated plaintiff's problems may have stemmed from having taken her husband's medications by mistake. (Doc. 7, pp. 492, 495-96) Plaintiff was discharged on November 25, 2011 with a final diagnosis of “Encephalopathy, [4]likely due to the medication side effects . . . .” (Doc. 7, p. 492)

         Dr. Anthony Carter, M.D., admitted plaintiff to Cookeville Regional on December 29, 2011 for additional imaging studies. (Doc. 7, p. 553) A brain MRI with and without contrast revealed “minimal supratentorial[5] white matter chronic microvascular[6] ischemic[7] changes, ” and a “[s]uspected tiny . . . right planum sphenoidale meningioma[8]”; however, the final impression from the brain MRI was “[n]o acute intracranial pathology.” (Doc. 7, pp. 544-45) An ultrasound of plaintiff's carotid arteries revealed “[n]o hemodynamically[9] significant carotid arterial stenosis in the neck.” (Doc. 7, p. 543) The echocardiogram was unremarkable. (Doc. 7, pp. 527-28)

         Plaintiff presented to Dr. Carter eight times in 2012 for fatigue, confusion, low back pain, memory loss, blood pressure problems, unsteadiness, and/or hypoglycemia. (Doc. 7, pp. 687-98, 729-35) Dr. Carter referred plaintiff for an endocrinology evaluation on June 26, 2012. (Doc. 7, pp. 692-93)

         Endocrinologist Dr. James Gaume, M.D., examined plaintiff on July 25, 2012. (Doc. 7, pp. 627-33) Laboratory studies were normal. Dr. Gaume reported, inter alia, that plaintiff reported “[s]he does not get lost driving . . . .” (Doc. 7, p. 627) Dr. Gaume also reported that he had “no further investigation to offer her.” (Doc. 7, p. 628)

         Tennessee Disability Determination Services referred plaintiff to B. Kathryn Galbraith, Ph.D., Licensed Clinical Psychologist, for a clinical interview, Mental Status Examination, and review of the records. The evaluation took place on August 6, 2012. (Doc. 7, pp. 579-584) Plaintiff “was the sole informant for the interview.” (Doc. 7, p. 579) Plaintiff represented the following in the review of activities of daily living (ADL): 1) she managed her medications “with no difficulty”; 2) she managed her finances “with little or no difficulty”; 3) she knew how to prepare meals; 4) “she could wash dishes, vacuum, sweep, do laundry, and do yard work “if needed”; 5) she drove “once or twice a week for short distances”; 6) her husband was “afraid she w[ould] forget where she [wa]s going, ” and that it is easier for her to say that “he [wa]s worried about her memory problems than it [wa]s for her to acknowledge them.” (Doc. 7, p. 583) Dr. Galbraith also reported that plaintiff “displayed a normal gait, ” that she claims “she forgets where she's going when she is driving and has to call her husband . . . at least once a week.” (Doc. 7, pp. 580, 582) Dr. Galbraith noted the following at the conclusion of the evaluation:

Ms. Melton . . . showed evidence of moderate impairment in her short term memory function. She showed no evidence of impairment in her concentration abilities on the Mental Status Exam, but observed behavior in the interview suggested mild impairment in that area. She showed no evidence of impairment in her long-term and remote memory functioning.

(Doc. 7, p. 583)

         Dr. Rebecca Joslin, Ed.D., completed a mental RFC evaluation of plaintiff on August 21, 2012. (Doc. 7, pp. 589-605) Dr. Joslin reported, among other things, that plaintiff's understanding and memory were not significantly limited. (Doc. 7, p. 589)

         Neurologist Dr. Deka Efobi, M.D., examined plaintiff on September 26, 2012 on referral from internist Dr. Kimberly Eakle, M.D.[10] (Doc. 7, pp. 701-709) Dr. Efobi's report included the following observations: 1) no musculoskeletal defects, tenderness, decreased range of motion, instability, atrophy or abnormal strength or tone in the head, neck, spine, ribs or pelvis; 2) “recent memory preserved, remote memory intact”; 3) normal attention span and concentration; 4) no cognitive dysfunction; 5) motor strength 5/5 bilaterally in both upper and lower extremities; 6) reflexes 2 bilaterally in the upper and lower extremities; 7) able to tandem walk, toe and heal walk, stand on alternate limbs; 8) MMSE 28/30 deficits in orientation and recall.[11] Dr. Efobi noted that plaintiff complained of left shoulder pain, and concluded by noting she “believe[d] that depression may be contributing to the dementia . . . .” (Doc. 7, pp. 702-03)

         Dr. Efobi saw plaintiff in a followup visit on November 6, 2012. (Doc. 7, pp. 751-53) Dr. Efobi's second report was unchanged from her first one, including plaintiff's complaint of left shoulder pain. (Doc. 7, p. 752) Dr. Efobi noted additionally that plaintiff's “tail bone [wa]s sore” because she fell the week prior after tripping over a broom. (Doc. 7, p. 751) Dr. Efobi also noted that plaintiff required neuropsychological testing for her alleged memory problems. (Doc. 7, p. 752)

         Dr. Frank Kupstas, Ph.D., completed a second mental RFC on November 7, 2012. (Doc. 7, pp. 711-27) Dr. Kupstas determined that plaintiff had moderate limitations in her ability to understand and remember detailed instructions, but otherwise her memory and ability to understand were not significantly limited. (Doc. 7, p. 711)

         Dr. Eakle completed a document captioned, “MEDICAL SOURCE STATEMENT OF ABILITY TO DO WORK-RELATED ACTIVITIES (PHYSICAL)” on November 30, 2012. (Doc. 7, pp. 824-27) Dr. Eakle opined that plaintiff was “incapable of even ‘low stress jobs.'” (Doc. 7, p. 825)

         Plaintiff was referred by Dr. Eakle to neurologist Dr. Thuy Ngo, M.D., who examined plaintiff on December 5, 2012. (Doc. 7, pp. 821-22) Dr. Ngo noted “minimal chronic microvascular changes” in the previous brain MRI, he did “not appreciate a right subfrontal memingioma, ” he saw “no lesion with significant mass effect, ” plaintiff's symptoms were “not consistent with dementia of the Alzheimer type, ” and he did “not appreciate the presence of a brain tumor . . . .” (Doc. 7, p. 822) Dr. Ngo noted that plaintiff's recent and remote memory were “fairly good, ” and that her “[s]tation, coordination and gait [we]re intact.” (Doc. 7, p. 822) He also opined that plaintiff's alleged memory issues could be due to a “significant underlying anxiety disorder.” (Doc. 7, p. 822)

         Plaintiff presented for treatment to neurologist Dr. Ikuko Laccheo, M.D., on January 10, 2013 (Doc. 7, pp. 834-37) on referral from Dr. Eakle (Doc. 7, p. 927). Dr . Laccheo noted the following in his examination: Motor exam power 5/5 bilaterally. . . . Reflexes: 2/2 symmetrically. . . . Gait and Station: within normal limits. Difficulty with tandem/heel walk, but able to walk on toes. . . . Involuntary movements: none.” (Doc. 7, p. 836) Dr. Laccheo also noted that plaintiff's December 24, 2011 brain MRI “show[ed] no acute abnormality, ” and that plaintiff claimed to have fallen a “few months ago, because [of] feeling off balance.” (Doc. 7, p. 834)

         Dr. Leccheo ordered a brain MRI with and without contrast, as well as an EEG. (Doc. 7, p. 836) Dr. Laccheo noted the following in his letter to plaintiff dated January 11, 2013 concerning the brain MRI the day before: “MRI of the brain with and without contrast . . . did not show any acute abnormality, other than showing previously seen right cribiform plate meningioma . . . . Also noted on previous MRI of December 2011, small vessel ischemic changes (chronic) in the white matter, and bilateral maxillary sinusitis. . . .” (Doc. 7, p. 833) The EEG was normal. (Doc. 7, p. 846)

         Dr. Eakle completed a second physical MSS on March 12, 2013 (the second MSS). (Doc 7, pp. 828-31) The second MSS was essentially the same as the first, with the following exceptions. Dr. Eakle wrote the following in support of the assessed exertional limitations: “Memory loss - MRI, new evaluation, ” and “OA [osteoarthritis] - plain [sic] C[cervical]spine.”[12] (Doc. 7, p. 829) Dr. Eakle wrote the following in support of plaintiff's assessed environmental limitations: “OCC [occasional] exacerbation requires sedatory [sic] meds (Flexeril, Lortab that hinder work capacity) Also issues [sic] c [with] memory affect[s] ability. Sx [symptoms] cont[inue] to worsen and mobility declining.” (Doc. 7, p. 831)

         Neuropsychologist Gary Solomon, Ph.D., performed a neuropsychological evaluaiton of plaintiff on April 8, 2013 on referral from Dr. Laccheo. (Doc. 7, pp. 957-61) Dr. Solomon's diagnostic impression was: “A synthesis of neuropsychometric[13] and clinical data raise the question of a pseudodementia, multifactorial in nature.” (Doc. 7, p. 961)(bold omitted) Dr. Solomon also noted that the results of the tests were positive for “suboptimal effort, ” and that the results should be “viewed with caution” because of their “questionable validity.” (Doc. 7, pp. 959, 961)

         Dr. Leccheo wrote the following to plaintiff on April 9, 2013 after plaintiff was examined by Dr. Solomon:

Neuropsychological testing . . . per Dr. Solomon . . . showed findings concerning for a possibility of pseudodementia. This means that there are other medical or psychological factors that may be mimicking dementia-like symptoms. Dr. Solomon felt most likely multifactorial, including undertreated psychiatric condition (for instance depression). . . .

(Doc. 7, p. 832) Dr. Laccheo saw plaintiff again on May 29, 2013. (Doc. 7, pp. 901-04) Dr. Laccheo recorded the following in his consultation notes with respect to plaintiff's alleged memory problems: “Less likely MRI (meningioma) contributing to this picture (and most likely incidental), ” and “no change” in a brain MRI performed on January 10, 2013 from the November-December 2011 MRIs. (Doc. 7, p. 904)

         Neurologist Dr. E. Frank Lafranchise, M.D., treated plaintiff on December 9, 2013. (Doc. 7, pp. 962-63) Plaintiff's neurological examination was as follows: “Motor exam power 5/5 bilaterally. . . . Reflexes: 2/2 bilaterally. . . . Gait and Station: within normal limits, walks in tandem. Involuntary movements: none.” (Doc. 7, p. 963) A brain MRI performed that same day showed that “there d[id] not appear to be any significant change when compared with the prior study of January 10, 2013.” (Doc. 7, p. 964) Dr. Lafranchise treated plaintiff again on June 24, 2014. (Doc. 7, pp. 972-75) Dr. Lafranchise noted in reference to the “suspected meningioma” that “[t]here are no symptoms referable to this lesion, ” that her complaint of memory issues “are likely related to a pseudodementia which ha[s] been previously diagnosed . . ., ” and that ...

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