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Blackwell v. Berryhill

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

December 13, 2017

DANTAY YVETTE BLACKWELL, Plaintiff,
v.
NANCY BERRYHILL, [1]Acting Commissioner of Social Security, Defendant.

          Judge, Trauger

          REPORT AND RECOMMENDATION

          JOE B. BROWN, UNITED STATES MAGISTRATE JUDGE

         Pending before the court is the pro se Plaintiff's motion for judgment on the administrative record (Docket Entry No. 16), to which Defendant Commissioner of Social Security (“Commissioner”) filed a response (Docket Entry No. 17). Upon consideration of the parties' filings and the transcript of the administrative record (Docket Entry No. 13), [2] and for the reasons given herein, the Magistrate Judge RECOMMENDS that Plaintiff's motion for judgment on the administrative record be DENIED and that the decision of the Commissioner be AFFIRMED.

         I. PROCEDURAL HISTORY

         Plaintiff, Dantay Yvette Blackwell, filed an application for supplemental security income (“SSI”) under Title XVI of the Social Security Act on March 7, 2013, alleging disability onset as of June 1, 2006, due to epilepsy. (Tr. 10, 64, 72, 165). Plaintiff's claim was denied at the initial level on July 3, 2013, and on reconsideration on October 14, 2013. (Tr. 10, 64-88). Plaintiff subsequently requested de novo review of her case by an administrative law judge (“ALJ”). (Tr. 90-92). The ALJ heard the case on April 8, 2015, when Plaintiff appeared pro se and gave testimony. (Tr. 10, 27-53, 55-63). Testimony was also received by a vocational expert. (Tr. 53-55). At the conclusion of the hearing, the matter was taken under advisement until October 6, 2015, when the ALJ issued a written decision finding Plaintiff not disabled. (Tr. 6-21). That decision contains the following enumerated findings:

1. The claimant has not engaged in substantial gainful activity since March 7, 2013, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: seizure disorder; headaches; sleep apnea; and obesity (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1(20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels except that she should avoid all exposure to hazards.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on March 24, 1974 and was 38 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since March 7, 2013, the date the application was filed (20 CFR 416.920(g)).

(Tr. 12-13, 19-21).

         On November 4, 2016, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-3), thereby rendering that decision the final decision of the Commissioner. This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).

         II. REVIEW OF THE RECORD

         The following summary of the medical record is taken from the ALJ's decision:

The claimant alleges a disability onset date of June 1, 2006, based epilepsy. Exhibit l F includes an undated letter from neurologist Dr. Richard T. Hoos addressed to Dr. Keith Junior of the Waverly-Belmont Clinic detailing the claimant's history of epilepsy. The letter notes the claimant's age as thirty-one, so it was obviously completed sometime between March 2005 and March 2006 based on the claimant's birthday. Dr. Hoos reported that the claimant typically had a reliable premonitory sensation described as a “funny feeling in her head” as well as staring attacks and continued activity. He noted that the claimant's seizures typically progressed to blacking out and falling down with incontinency and tongue or lip-biting. At the time the letter was written, the claimant had been taking Lamictal since November 2004 and her last seizure had occurred a month before the letter was written. On examination, Dr. Hoos noted that the claimant weighed two hundred and sixty-eight pounds, but his findings were otherwise unremarkable. He prescribed the claimant Topamax and continued on her Lamictal. Exhibit 1F.
On March 13, 2006, it was noted that the claimant was doing okay and that she had not had any seizures, and on July 5, 2006, she reported feeling good. The next medical record is dated February 8, 2007, and it shows that the claimant reported having a seizure two days prior. The next record is dated December 12, 2008, and it reflects that the claimant reported having many seizures and being off of Lamictal for about a year. It was noted that her seizures had probably been well-controlled on her previous dose of Lamictal but that she frequently forgot to take her medication. Exhibit 1F.
There is another long gap in the claimant's medical records until September 16, 2010, when it was noted that she had run out of Lamictal about two years prior and was again having several seizures. She was restarted on Lamictal. Exhibit l F. On January 19, 2011, she presented to United Neighborhood Health Services and reported that her last seizure had occurred in November 2010. She was diagnosed with chronic convulsions. Except for weighing two hundred and fifty-four pounds, she had an unremarkable respiratory, cardiovascular, and musculoskeletal examination. Exhibit 2F.
The claimant returned to United Neighborhood Health Services on July 9, 2012. She reported that her last seizure had occurred five months prior and that she had been out of her seizure medication since May 2011. However, she then stated that she had been out of her medication since January 2011 because she did not like her neurologist and did not follow up with him after her last appointment in September 2010. It was noted that the claimant had grand mal seizures and that she had been non-compliant with both appointments and medications. She was referred ...

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