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Lasher v. Berryhill

United States District Court, W.D. Wisconsin

July 16, 2018

NANCY A. BERRYHILL, Deputy Commissioner of Social Security, Defendant.



         Claimant Tammy Anne Lasher seeks judicial review of a final decision of defendant Nancy A. Berryhill, the Deputy Commissioner of Social Security, under 42 U.S.C. § 405(g), which denied her application for disability and disability insurance benefits. Claimant argues that four failures of the ALJ necessitate remand: (1) failing to evaluate properly plaintiff's mental impairment; (2) failing to evaluate properly the treating psychologist's opinion; (3) failing to substantially support his RFC finding; and (4) failing to evaluate and weigh properly plaintiff's statements regarding the limiting effects of her symptoms. Because the ALJ failed to obtain and consider updated state agency physician opinions -- particularly in light of claimant's late-disclosed 2012 neuropsychological evaluation and its possible impact on the weight due to her treating physician's opinion --the Commissioner's decision will be reversed and remanded for further proceedings.


         Lasher filed a Title II application seeking disability and disability insurance benefits on April 11, 2013. (AR 33.) Initially, she alleged a disability onset date of July 1, 2011, but then she amended that to January 3, 2012. (AR 33, 41.) Last insured on December 31, 2012, she previously worked as an industrial cleaner, orthodontic tech, medical clerk, and housekeeping cleaner. (AR 39.) Lasher appears to have been in special education classes while in school (AR 81), although her Disability Report Form states that she was not (AR 210). She also attempted to attend trade school, but dropped out before receiving a certified nursing assistant certification. (AR 82-83, 97.)

         She last worked at a part-time job in 2015, two weekends a month for a few months; before that she worked in 2010 as a cleaning attendant in a casino. (AR 84-85.) She stopped working because of her “spells, ” “anxiety[ and] palpitations, ” and low blood pressure. (AR 85.) She did not return to work because of “mental and emotional problems.” (AR 86.)

         A. Medical Records and Reports[1]

         Claimant's medical records begin in January 2012, with a note by Dr. Patricia Reiff recognizing that claimant had “been having trembles that start at her leg then her whole body, ” as well as “[s]eizure like activity.” (AR 279.) Dr. Tracy Chiem's note from May 2012 provides more background, explaining that for the past two and a half years claimant

would suddenly feel lightheaded and feel like she would collapse and would grab onto something. Occasionally, these episodes would lead to patient passing out for 5-10 mins but has never injure[d] herself. Patient denies tongue biting or urinary incontinence. Occasionally, during the lightheadedness, she recalls having palpitations and turning pale but denies diaphoresis. . . . Occasionally, these episodes are also associated with shaking of her legs and arms . . . . She has a black out spell once every 2 weeks, however, she had 2 events this week.

(AR 290.) However, Chiem's review of symptoms also notes that claimant had “no seizure[s], ” as well as “no depression, no anxiety, no memory lapses or loss.” (AR 291.) Complicating this note even more, Chiem lists “History of Partial Complex Psychomotor Seizure With Intractable Seizure, ” which is categorized as “Resolved.” (Id.)

         In July 2012, claimant was admitted by the Barrow Neurological Institute at St. Joseph's Hospital and Medical Center for “evaluation of epileptic vs. non-epileptic spells.” (AR 523.) At that time, she reported episodes of near-syncope three or four times a week. (Id.) She was evaluated from July 23-28, 2012 and had one “event, ” which involved claimant feeling shaky and having muffled hearing. (See AR 524-25.) Neuropsychological testing performed on July 23, 2012, “was remarkable for mild to moderate impairment in memory . . . and language, ” with the findings “observed in the context of borderline intellectual functioning.” (AR 526.) The results were also deemed to be “consistent with the patient's history of learning difficulties and special educational needs”; in addition, “[o]bjective measures of personality raise[d] concern for possible conversion disorder.” (Id.) Her intellectual functioning was rated as follows: “VCI = 63 (extremely low range)”; “PRI = 75 (borderline range)”; and “FSIQ = 71 (borderline range).” (Id.). Her past job was listed as a “Casino Housekeeping manager, ” and noted she left it “due to the syncopal events and associated ‘heart condition.'” (AR 523.)

         In December 2012, claimant's last insured date, Dr. Reiff noted that claimant's seizures were happening “more often.” (AR 278.) During this time period, her only systemic medication was Albuterol Sulfate Hfa -- an inhaler. (AR 256, 296.) By 2013, she was also taking anxiety medication, and lorazepam, among other medications. (AR 284, 322.) In 2014, claimant's “general cognitive functioning appeared to be in the average range, ” and her “[f]und of knowledge and abstract thinking were commensurate with her average cognitive functioning.” (AR 468.)

         Claimant began seeing Dr. DeLeana Strohl in December 2014 for “help in managing her depression and anxiety over a custody battle.” (AR 507.) On the intake form, Strohl noted that claimant reported using special education services in school and thinking she had a learning disorder, as well as prior employment “as a CNA and orthodontist specialist, ” and in housekeeping. (AR 509.) In March 2015, Strohl believed claimant should “seek[] a definitive answer about her potential cognitive impairment via a neuropsych eval.” (AR 515.) When asked to complete a form to aid claimant's disability insurance application in April 2015, Strohl noted that claimant “is convinced she is unable to work secondary to some neurological impairment and/or head trauma” and “reported that her anxiety and depression also interfere with her abilities.” (AR 516.)[2] Strohl believed that claimant “need[ed] a functional capacity exam or vocational evaluation” to complete the second page of the form. (AR 517.)

         Dr. Strohl completed a supplemental questionnaire as to residual functional capacity in June 2015. (AR 521-22.) She opined that claimant had “slight” limitations in her ability to “[u]nderstand and remember short, simple instructions” and to “[c]arry out short, simple instructions, ” as well as “slight” to “moderate” limitations in her ability “to make judgments on simple work-related decisions” depending on her stress. (AR 521.) Strohl added that claimant had “moderate” limitations in her ability to: (1) “[i]nteract appropriately with the public”; (2) “[i]nteract appropriately with supervisors”; (3) “[i]nteract appropriately with co-workers”; (4) “[r]espond appropriately to work pressures in a usual work setting”; and (5) “[r]espond appropriately to changes in a routine work setting.” (Id.) She further opined that claimant would be: (1) off task 15% of the time; (2) absent an average of 2 days per month; (3) unable to complete an eight-hour work day twice a month; and (4) able to “perform a job 8 hours per day for 5 days a week on a sustained basis” 80% of the time based on mental limitations. (AR 522.) Strohl qualified her opinion by adding that determining “the total extent of Tammy's impairment would require a vocational assessment or a functional capacity examination and/or a neuropsychological examination.” (Id.)

         B. ...

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