Opinion
Civil Action 3:22-cv-693-DPJ-LGI
11-27-2024
THERESA GLADWELL MILBURN PLAINTIFF v. KILOLO KIJAKAZI, COMMISSIONER OF SOCIAL SECURITY DEFENDANT
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
LAKEYSHA GREER ISAAC UNITED STATES MAGISTRATE JUDGE
Theresa Milburn appeals the final decision denying her application for disability benefits. The Commissioner requests an order pursuant to 42 U.S.C. § 405(g), affirming the final decision of the Administrative Law Judge. Having carefully analyzed the entire record, including the medical records in evidence, and all the applicable law, the undersigned recommends that this matter be affirmed.
Plaintiff filed a disability application alleging she became disabled on January 1, 2018, because of spinal and memory problems, a seizure disorder, PTSD, sleep apnea, and asthma. She was 49 years old on her date last insured, with a high school education and past relevant work experience as a cashier and bus driver. Following agency denials of her applications, an ALJ issued a decision finding that Plaintiff had not established a disability within the meaning of the Social Security Act. The Appeals Council denied Plaintiff's request for review, and she now appeals that decision.
The evidence, detailed in the memorandum briefs and the ALJ's decision, will not be repeated in depth here. Plaintiff, diagnosed with conversion disorder in 2018, testified at the administrative hearing that the problem that most prevents her from working are pseudoseizures brought on by nervousness and anxiety from being around others. She testified that she has “about one to two” pseudoseizures a week, though she could have up to three or only one, depending on her anxiety and stress levels. The seizures last 10 minutes or so with postictal symptoms of muscle weakness and confusion. But she no longer takes seizure medication because “[t]hey don't make medication for this sort of seizure.” When asked whether she had any mental health treatment, Plaintiff responded “[n]ot right now,” but her medication was “working great,” though she still has anxiety around others, so she stays at home.
After considering Plaintiff's testimony and subjective complaints, the ALJ concluded that the objective medical evidence did not establish that Plaintiff was precluded from all work activity. At step one of the five-step sequential evaluation,the ALJ found Plaintiff had not engaged in substantial gainful activity from her alleged onset date, January 1, 2018, through her date last insured, June 30, 2020. At steps two and three, the ALJ found that although Plaintiff's seizure disorder, PTSD, anxiety, lumbar spine, and osteoarthritis in the right knee were severe, they did not meet or medically equal a listing. At steps four and five, the ALJ found that Plaintiff had the residual functional capacity to perform sedentary work except:
Under C.F.R. § 404.1520, the steps of the sequential evaluation are: (1) Is plaintiff engaged in substantial gainful activity? (2) Does plaintiff have a severe impairment? (3) Does plaintiff's impairment(s) (or combination thereof) meet or equal an impairment listed in 20 C.F.R. Part 404, Sub-part P, Appendix 1? (4) Can plaintiff return to prior relevant work? (5) Is there any work in the national economy that plaintiff can perform? See also McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999).
she cannot climb ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs. She can occasionally stoop, kneel, crouch, and crawl. She
cannot work at heights or around unprotected work hazards. She cannot engage in commercial driving. She can perform simple, repetitive tasks and detailed tasks, but no complex tasks. She should have only occasional interaction with the public, supervisors, and co-workers. She should not perform fast production pace jobs, meaning jobs with numeric goals to be performed within a strict guideline. She should have only occasional decision making in the job and the job should have no more than occasional changes in the workplace or work processes.
Based on vocational expert testimony, the ALJ concluded that given Plaintiff's age, education, work experience, and residual functional capacity, she could perform work as a clerical addresser, document preparer, and surveillance system monitor.
Standard of Review
Judicial review in social security appeals is limited to two basic inquiries: (1) whether there is substantial evidence in the record to support the ALJ's decision; and (2) whether the decision satisfies relevant legal standards. Webster v. Kijakazi, 19 F.4th 715, 718 (5th Cir. 2021); Salmond v. Berryhill, 892 F.3d 812, 816 (5th Cir. 2018). As the United States Supreme Court reiterated:
The phrase “substantial evidence” is a term of art used throughout administrative law to describe how courts are to review agency factfinding. Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains sufficient evidence to support the agency's factual determinations. And whatever the meaning of substantial in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is more than a mere scintilla. It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.Biestek v. Berryhill, 587 U.S. 97, 139 S.Ct. 1148, 1154, 203 L.Ed. 2D 504 (2019) (citations and internal quotations and brackets omitted); see also Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992). On judicial review, this Court may not re-weigh the evidence, try the case de novo, or substitute its judgment for that of the ALJ, even if it finds evidence that preponderates against the ALJ's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994).
Discussion
Plaintiff assigns two related errors on appeal: (1) the ALJ's residual functional capacity determination is not supported by substantial evidence; and, (2) the ALJ's evaluation of the medical opinions was improper. The Commissioner counters that the ALJ's decision is supported by substantial evidence and complies with applicable standards. Given the record in this case, the undersigned submits there is no basis for reversal or remand.
1.
An ALJ's residual functional capacity determination is an assessment, based on all the relevant evidence, of a claimant's ability to do work on a sustained basis in an ordinary work setting despite his or her impairments. 20 C.F.R. § 404.1545(a), 416.945(a); Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001). It is not a medical opinion, but an administrative finding of fact. Social Security Ruling 96-8p, Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2, 1996) n. 4). The sole responsibility for assessing a claimant's residual functional capacity rests with the ALJ, who must consider all relevant evidence in the record. But a plaintiff still bears the burden of proving their residual functional capacity. An ALJ need not incorporate limitations in the residual functional capacity determination that he or she did not find to be supported by the record. Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991)).
Here, the ALJ found that plaintiff has the residual functional capacity to perform sedentary work with reduced limitations. Plaintiff argues, however, that the ALJ's residual functional capacity finding fails to sufficiently account for her conversion disorder symptoms. “Conversion disorder is a phenomenon in which a person actually and subjectively experiences symptoms, such as non-epileptic seizures, without a known underlying medical cause.” Nowling v. Colvin, 813 F.3d 1110, 1113 (8th Cir. 2016)-14 (8th Cir. 2016) (citation omitted). “Pseudoseizures, or psychogenic non-epileptic seizures . . . are believed to occur as a part of a conversion disorder in which the patient unconsciously converts emotional dysfunction into physical symptoms.” Miller v. Colvin, No. 12-2293, 2014 WL 641714, at *3 (W.D. Ark. Feb. 19, 2014) (citing Ronald P. Lesser and S. Marc Testa, Symptoms That Mimic Epilepsy Linked to Stress, Poor Coping Skills, http://www.hopkinsmedicine.org/news/media/releases/symptomsthatmimicepilepsyl inkedtostresspoorcopingskills (last accessed January 26, 2016))). Plaintiff contends that the ALJ's repeated references to the fact that she had normal examinations in his decision meant that he failed to understand that “normal examinations and imaging are [the] hallmark” of conversion disorder. She posits that the self-described limitations of her testimony and those assigned by her Physician Assistant, unaccounted for in the ALJ's residual functional capacity assessment, more accurately capture the unpredictable nature of her pseudoseizures.
The undersigned does not so read the ALJ's decision. Unlike other conversiondisorder cases requiring remand, the ALJ did not rely on “normal” examination findings to discount Plaintiff's allegations of disabling symptoms. Compare, e.g., Jackson-Farnsworth v. Colvin, No. CIV.A. 12-2516-JWL, 2014 WL 1260122, at *9 (D. Kan. Mar. 27, 2014) (remanding where the ALJ focused on the fact that medical testing did not support the symptoms alleged by the plaintiff when assessing the impairment of conversion disorder); Swenson v. Berryhill, No. 4:17-CV-4067-KES, 2018 WL 4334073, at *18 (D.S.D. Feb. 15, 2018) (“By relying on ‘normal' medical findings to debunk Ms. Swenson's description of her pain and functional limitations and formulate her mental RFC, the ALJ completely misconstrued the nature of her mental diagnoses. The absence of clinical findings to support the claimed symptoms are a key requirement of the diagnoses of somatic symptom disorder or conversion disorder.”), adopted as modified sub nom by Christi S. v. Berryhill, No. 4:17-CV-04067-KES, 2018 WL 3586277 (D.S.D. July 26, 2018). Rather, the ALJ acknowledged that Plaintiff was diagnosed with conversion disorder, having first been diagnosed in early 2018, with emergency room records showing visits for seizure activity in January, July, August, November, and December that year, and again, in June and July 2019. That he noted that her neurological examinations and diagnostic testing were normal during these visits was not a misunderstanding of her diagnosis, but an accurate summary of the records. More than once, the ALJ noted that emergency room physicians concluded that Plaintiff was experiencing “psychogenic non-epileptiform seizures” or pseudoseizures that were triggered by stress and anxiety. Psychiatric evaluations during her emergency room visits confirmed that she had recently experienced anxiety or a stressful event.
In addition, though not addressed by either aside on appeal, the ALJ observed more than once that Plaintiff “did not receive any psychiatric treatment during the relevant time period.” This is notable given that Plaintiff was informed that conversion disorder required “intensive psychotherapy, not just medication management,” and was referred to mental health treatment multiple times. See Cleveland Clinic, Conversion Disorder https://my.clevelandclinic.org/health/diseases/17975-conversion-disorder (last visited November 7, 2024) (observing that “treating the mental health component with some form of psychotherapy (mental health therapy) is usually the first approach. It's also usually the most successful approach”). It also detracts from Plaintiff's argument that the ALJ failed to understand the nature of conversion disorder.
Based on the evidence, the ALJ concluded that Plaintiff's conversion disorder symptoms would prevent her from performing her past work as a cashier and bus driver, but it would not exclude all work activity. Her symptoms were generally well-managed by medication and did not occur with the frequency alleged. Thus, in assessing her residual functional capacity, the ALJ limited Plaintiff to sedentary work with postural and environmental limitations, and reduced the complexity, pace, and social interaction limitations to avoid triggering her conversion disorder symptoms.
In doing so, the ALJ considered the medical opinion evidence in accordance with the applicable regulations. Social security regulations were revised in recent years so that supportability and consistency of medical opinions are the most important factors in assessing opinion evidence, and ALJs may, but are no longer required to, explain how they considered other factors. 20 C.F.R. § 404.1520c(b). The regulation sets forth certain “articulation requirements” specifically requiring the ALJ to “explain how [she] considered the supportability and consistency factors for a medical source's medical opinions or prior administrative findings in [the claimant's] determination or decision.” § 404.1520c(b)(2). But it “is the responsibility of the ALJ to interpret ‘the medical evidence to determine [a claimant's] capacity for work.'” Fontenot v. Colvin, 661 Fed.Appx. 274, 277 (5th Cir. 2016) (citation omitted). An ALJ remains free to assign little or no weight to the opinion of any physician when it is unsupported by the evidence. Bayer v. Colvin, 557 Fed.Appx. 280, 287-288 (5th Cir. 2014) (citations omitted). That is what occurred here.
The ALJ rejected the state agency medical consultant's opinion that Plaintiff could perform light work with only postural limitations. The ALJ explained that “although the opinion states that the limitations are in part due to her seizure disorder, no limitations were found with regard to heights/hazards, which is simply unsupportable.” The ALJ found persuasive, however, the agency psychologist's opinion that Plaintiff could complete a normal 40-hour work week without excessive interruptions from psychological symptoms because it was “well supported with references to the claimant's symptoms of PTSD and anxiety, including her pseudoseizures, but otherwise normal mental status exams and good management of her symptoms with medication.” This evidence indicated that Plaintiff could interact appropriately with coworkers and supervisors on a limited basis, carry out simple instructions, and maintain attention and concentration for two-hour periods.
Along with the agency psychologist's opinion, the ALJ found Plaintiff's Physician Assistant's (“PA”) opinion generally persuasive and incorporated much of it in his residual functional capacity assessment. Though Plaintiff faults the ALJ for failing to adopt this opinion in its entirety, as set forth below, substantial evidence supports the ALJ's decision.
2.
In a seizure questionnaire and mental functioning report completed in February 2022, PA Kimberl notes the average frequency of Plaintiff's pseudoseizures was 10 per month, with the last three seizures occurring in July 2018, June 2019, and November 2019.According to PA Kimberl, Plaintiff's seizures typically last for 2 minutes, followed by exhaustion and confusion for 30 minutes. Plaintiff would have good and bad days and miss about two days of work each month, but her seizures did not occur at a particular time of day, and she would not need to take unscheduled breaks during an 8-hour workday. And while Plaintiff would not always have a warning before an impending seizure, her precipitating factors were stress and exertion. Functionally, Plaintiff's pseudoseizures would limit her ability to operate a vehicle and work around heights or hazards. She would also need help with handling conflicts with others, keeping social interactions free of irritability/sensitivity/argumentativeness, and managing psychologically based symptoms, but she otherwise had an “unlimited to satisfactory” ability in all other mental functioning areas.
PA Kimberl appears to have been referencing only those seizures documented by her clinic, as emergency room records show visits for seizure activity in January, July, August, November, and December in 2018, and again, in June and July 2019, as noted by the ALJ. Notwithstanding, substantial evidence supports the ALJ's assessment of PA Kimberl's opinion as set forth below.
In evaluating this opinion, the ALJ explained:
.... These opinions are generally persuasive. They are generally supported by Kimberl's own treatment records. Those records show that the claimant's anxiety and PTSD symptoms were well managed on medication, with normal mental status exams. Further, they are consistent with the nature of the claimant's seizure disorder, which would reasonably limit her exposure to heights and hazards. Lastly, they are consistent with the claimant's other treatment records documenting her pseudoseizures and generally normal mental status exams at ER visits and visits for her musculoskeletal impairments. However, Kimberl's opinion that the claimant would miss two days of work per month due to her mental impairments are not well supported and inconsistent with the record as a whole. Her anxiety and PTSD were well managed on medication and her pseudoseizures did not occur in such frequency, as noted in Kimberl's own opinion.
Emphasis added.
Plaintiff argues, however, that it was illogical for the ALJ to discount PA Kimberl's opinion that she would miss two workdays a month, given both the unpredictability and frequency of her seizures, and the vocational expert's testimony that a certain number of absences would preclude full-time work. But the ALJ's conclusions are not without substantial support.
The record reflects that Plaintiff would have no documented or self-reported seizures for months at a time, but then have multiple episodes over the course of 1-2 days related to stress and anxiety. Plaintiff would then generally go to the emergency room, undergo diagnostic or other neurological testing confirming her conversion disorder diagnosis, and be referred to mental health treatment. But as noted, the ALJ found Plaintiff's claims were not entirely credible, in part, due to her lack of mental health treatment during the relevant two-year period. Rickey P. V. v. Kijakazi, No. 20-CV-2199 (JFD), 2022 WL 3214991, at *6 (D. Minn. Aug. 9, 2022) (plaintiff's subjective complaints of conversion disorder were not supported where record showed significant gaps in how consistently Plaintiff pursued recommended treatments of medication and counseling).
An ALJ may consider a claimant's failure to pursue recommended treatment in assessing an individual's subjective complaints. LeBlanc v. Chater, 83 F.3d 419 (5th Cir. 1996) (quoting Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987)); Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990). In doing so, an ALJ will consider “possible reasons a claimant may not comply with treatment or seek treatment consistent with the degree of his or her complaints.” See SSR 16-3p, 2017 WL 5180304, at *9 (Oct. 25, 2017). Such explanations could include the individual's inability to afford treatment or medication side effects; though, when there is no evidence of a disabling condition, a claimant's inability to afford treatment is irrelevant. Fellows v. Apfel, 211 F.3d 125 (5th Cir. 2000). That said, the regulations “do not place on the ALJ a burden to elicit evidence of possible reasons for lack of compliance.” Chance v. Saul, No. CV H-20-266, 2021 WL 1132226, at *9 (S.D. Tex. Feb. 12, 2021). Plaintiff bears the ultimate burden of proof. See Strempel v. Astrue, 299 Fed.Appx. 434, 437 (5th Cir. 2008).
Here, when asked whether she had received mental health treatment at the administrative hearing, Plaintiff responded “not right now,” but her medication was “working great.” She did not offer any additional explanation. See Perrault v. Comm'r of Soc. Sec., No. 1:14-CV-942, 2015 WL 5592931, at *7 (W.D. Mich. Sept. 22, 2015) (“While the ALJ was required to consider any explanations for plaintiff's failure to seek out medical treatment, plaintiff has offered none for the ALJ to consider.”). But even if the Court were to find the ALJ erred in failing to explore the matter further, Plaintiff has not shown that she was prejudiced. Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988) (observing that “procedural improprieties will . . . constitute a basis for remand only if such improprieties would cast into doubt the existence of substantial evidence to support the ALJ's decision”). When questioned by medical providers, Plaintiff gave reasons for her failure to pursue mental health treatment, but none persuade.
Plaintiff cited, for example, a lapse of insurance coverage as the reason for not attending therapy appointments in March 2018. But records show that the appointments were scheduled as a prerequisite for bariatric surgery, not for treating her conversion disorder. Later that year in December 2018, she declined mental health follow up because she was concerned that the term “pseudoseizures” meant the “medical team thought she was faking it.” Though she was assured otherwise, the record does not indicate that she later pursued treatment. Indeed, though she told a medical provider in December 2019 that she was “seeing a therapist for PTSD,” there are no records of treatment. And by February 2020, Plaintiff reported that she was “no longer seeing [the therapist] due to distance.”
The undersigned also notes that when asked why she had never followed up with a neurology consult in June 2019, Plaintiff reported that she never has the time because she was always traveling with her husband.
Aside from the lack of mental health treatment, the ALJ cited other reasons for finding that the alleged intensity and persistence of Plaintiff's symptoms were inconsistent with the record, including PA Kimberl's report. Plaintiff's anxiety and PTSD were well managed on medication, and she would go months at time without seizure activity. Plaintiff herself testified at the administrative hearing that her medication was working great, though she still has anxiety around others. Whether the ALJ should have credited PA Kimberl's opinion about absenteeism is admittedly a closer issue, but it is not the Court's role to reweigh the evidence or substitute its judgment for that of the ALJ where there is “sufficient evidence to support the agency's factual determinations.” Biestek, 139 S.Ct. at 1154. “A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Jones v. O'Malley, 107 F.4th 489, 493 (5th Cir. 2024) (quotation omitted). PA Kimberl's absenteeism opinion is internally inconsistent and inconsistent with the record as a whole. The ALJ was entitled to rely instead on the reviewing psychologist's opinion that Plaintiff could compete a normal 40-hour work week without excessive interruptions from psychological symptoms, including pseudoseizures. Moreover, even if the ALJ had credited PA Kimberl's absenteeism opinion, the vocational expert testified that Plaintiff would be unable to sustain full-time work if she missed three days per month, not two. Thus, even if the ALJ erred in failing to explore Plaintiff's reasons for failing to pursue the recommended treatment, the error was harmless. Substantial evidence indicated Plaintiff could work within the limits of her residual functional capacity even without the recommended treatment. See Harvey v. Berryhill, No. 417CV00255JEDGBC, 2018 WL 11198059, at *10 (N.D. Okla. June 25, 2018), report and recommendation adopted sub nom. Kimberly D.H. v. Saul, No. 17-CV-255-JED-GBC, 2020 WL 2840244 (N.D. Okla. June 1, 2020) (substantial evidence supports the ALJ's decision finding that Plaintiff could perform work, despite conversion disorder diagnosis; pseudo-seizures were manageable while taking mediation).
In sum, the ALJ's decision doesn't show that he failed to understand the nature of conversion disorder. It shows that he fulfilled his role as fact finder to weigh the evidence and assess her ability to work. The issue is not whether Plaintiff's treatment history shows ongoing seizure activity for which she needs therapy and medication, but whether substantial evidence supports that she can perform sedentary work within the limits of her residual functional capacity as determined by the ALJ. It does.
Conclusion
In sum, based on consideration of the evidentiary record, the ALJ determined that Plaintiff failed to establish that his impairments were of sufficient severity to establish disability. The Court's review compels a finding that substantial evidence supports the ALJ's decision.
NOTICE OF RIGHT TO APPEAL/OBJECT
Under Rule 72(a)(3) of the Local Uniform Civil Rules of the United States District Courts for the Southern District of Mississippi, any party may serve and file written objections within 14 days after being served with a copy of this Report and Recommendation. Within 7 days of the service of the objection, the opposing party must either serve and file a response or notify the District Judge that he or she does not intend to respond to the objection.
The parties are notified that failure to file timely written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation, will bar that party from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, except upon grounds of plain error. 28 U.S.C. § 636, Fed.R.Civ.P. 72(b) (as amended, effective December 1, 2009); Douglass v. UnitedServs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).