United States District Court, M.D. Tennessee, Northeastern Division
Honorable Kevin H. Sharp, Chief United States District Judge.
REPORT AND RECOMMENDATION
Brown United States Magistrate Judge.
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.
applied for DIB on June 6, 2012, alleging a disability onset
date of December 24, 2011. 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.
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.
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
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.
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, likely due to the
medication side effects . . . .” (Doc. 7, p. 492)
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 white matter chronic
microvascular ischemic changes, ” and a
“[s]uspected tiny . . . right planum sphenoidale
meningioma”; 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 significant carotid arterial
stenosis in the neck.” (Doc. 7, p. 543) The
echocardiogram was unremarkable. (Doc. 7, pp. 527-28)
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.
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)
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)
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)
Dr. Deka Efobi, M.D., examined plaintiff on September 26,
2012 on referral from internist Dr. Kimberly Eakle,
M.D. (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. 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)
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)
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)
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)
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)
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)
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.
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.” (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)
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 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)
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)
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 ...