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Longley v. Berryhill

United States District Court, D. Minnesota

September 27, 2017

Melissa Gale Longley, Plaintiff,
v.
Nancy A. Berryhill, [1] Acting Commissioner of Social Security, Defendant.

          Kirk C. Thompson, for Plaintiff

          Pamela Marentette, Assistant United States Attorney, for Defendant

          ORDER

          Tony N. Leung United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff Melissa Gale Longley brings the present case, contesting Defendant Commissioner of Social Security's denial of her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The parties have consented to a final judgment from the undersigned United States Magistrate Judge in accordance with 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D. Minn. LR 72.1(c).

         This matter is before the Court on the parties' cross-motions for summary judgment. (ECF Nos. 12, 15.) Being duly advised of all the files, records, and proceedings herein, IT IS HEREBY ORDERED that Plaintiff's motion for summary judgment (ECF No. 12) is DENIED and the Commissioner's motion for summary judgment (ECF No. 15) is GRANTED.

         II. PROCEDURAL HISTORY

         Plaintiff applied for DIB in October 2012, asserting that she has been disabled since April 2008, due to, among other things, a traumatic brain injury resulting in impaired language/vocabulary, memory, intelligence, comprehension, and verbal reasoning. (Tr. 17, 64, 80, 82, 98.) Plaintiff's DIB application was denied initially and again upon reconsideration. (Tr. 17, 78, 80, 96, 98.) Plaintiff appealed the reconsideration of her DIB determination by requesting a hearing before an administrative law judge (“ALJ”). (Tr. 17, 113.)

         The ALJ held a hearing in November 2014. (Tr. 17, 38, 40.) After receiving an unfavorable decision from the ALJ, Plaintiff requested review from the Appeals Council, which denied her request for review. (Tr. 1-3, 12, 14-37.) Plaintiff then filed the instant action, challenging the ALJ's decision. (Compl., ECF No. 1.) The parties have filed cross motions for summary judgment. (ECF Nos. 12, 15.) This matter is now fully briefed and ready for a determination on the papers.

         III. BACKGROUND

         Previously, Plaintiff worked as a pharmacy technician at a retail store. (See, e.g., Tr. 43, 221, 196, 510.) She lives with her husband and adult children. (Tr. 42, 221, 526.) In late April 2008, Plaintiff suffered a traumatic brain injury and multiple fractures following a motor vehicle accident. (See, e.g., Tr. 300-05, 306, 310-11, 313-14, 357-58, 361-63, 364, 373, 382, 653-54.) Plaintiff underwent a serious of medical procedures to treat her injuries. (See, e.g., Tr. 300-05, 306, 310-11, 313-14, 357-58, 366-72, 383-99, 446-50, 656-57.)

         A. 2008 Accident

         When Plaintiff was initially admitted to the hospital, her speech was “intelligible” and she was repeating “help me, help me, ” but did not respond to questions or commands. (Tr. 366.) Approximately one month after her accident, Plaintiff continued to be confused with impaired insight, judgment, and memory. (Tr. 326, 328, 330.) Plaintiff was also exhibiting difficulties with speech, including rambling, being off topic, aphasia, and trouble finding words. (Tr. 326, 328.)

         A cognitive and language evaluation was conducted by a speech language pathologist near the end of June 2008. (Tr. 453-456.) Plaintiff was noted to have impairments in awareness, functional memory, immediate recall, and verbal expression. (Tr. 454.) Plaintiff was described as “very tangential, verbose and jumps around from topic to topic midsentence.” (Tr. 456.) She had “[d]ifficulty with expressing thoughts and ideas due to tangentiality [sic] and language issues”; was “[u]nable to understand [the] time of year, holidays or events”; was “[u]nable to remember immediately after hearing information”; and appeared “[c]onfused and unable to concentrate.” (Tr. 454; see Tr. 455-56, 466, 469, 471.) It was also noted that Plaintiff did not appear to be aware of her difficulties. (Tr. 456; see Tr. 470.)

         Hospital discharge notes generated around the same time describe Plaintiff as “present[ing] with confusion, aphasia, [2] and restlessness.” (Tr. 358; accord Tr. 301, 311, 314, 660.) Plaintiff's restlessness had improved over time but “she tended to be impulsive at times” and did not consistently follow instructions. (Tr. 358; accord Tr. 301, 311, 314, 660.) “With respect to her cognitive defects, [Plaintiff] showed a fluent aphasia and impaired naming.” (Tr. 358; accord Tr. 301, 311, 314, 660; see Tr. 304, 657, 659.) Plaintiff's auditory comprehension and aphasia were noted to be improving with therapy. (Tr. 301, 311, 314, 358, 660.) “With cognitive tasks, she was functioning at a moderate to high level with minimal assistance.” (Tr. 358; accord Tr. 301, 311, 314, 660.) “With instrumental activities of daily living, she was independent.” (Tr. 358; accord Tr. 301, 311, 314, 660.) Plaintiff was again “noted to have limited awareness into her deficits.” (Tr. 358; accord Tr. 301, 311, 314, 660.) During the discharge examination, Plaintiff had “fluent aphasia” but could “follow directions well, ” and she was “redirectable.” (Tr. 358; accord Tr. 301-02, 311-12, 314, 660-61; see Tr. 304.) Plaintiff was prescribed Effexor[3] for improved mood and cognition and Seroquel[4] “to help with restlessness, impulsivity, and sleep.” (Tr. 358; accord Tr. 301, 311, 314, 660; see Tr. 304.)

         B. Post-Accident Treatment

         1. 2008

         Around the middle of July 2008, Plaintiff followed up with her primary care physician, Thomas A. Leaf, M.D. (Tr. 499-501, 613-14, 739-41.) Plaintiff reported that she was “doing much better at home” and had stopped taking all of her medications. (Tr. 500; accord Tr. 613, 740.) Plaintiff still had no memory of the accident. (Tr. 500, 613, 740.) She also reported continued “word finding difficulty.” (Tr. 500; accord Tr. 613, 740.) Dr. Leaf noted “some word finding problems, but overall [Plaintiff's] speech was fairly normal and she seemed oriented.” (Tr. 500; accord Tr. 613, 740; see Tr. 495, 501.) Dr. Leaf also noted that Plaintiff was to receive speech therapy at her home. (Tr. 500, 613, 740.)

         In early October, Plaintiff followed up with Dr. Leaf. (Tr. 493-94, 619-20, 744-45.) Plaintiff had finished with physical and occupational therapy, but was still continuing with speech therapy. (Tr. 493, 620, 744; see Tr. 7535-59, 769-76.) Dr. Leaf noted that he spoke with Plaintiff's speech therapist who indicated that, while Plaintiff discussed going back to work, the speech therapist did not feel that Plaintiff was able to “to that at this time because she has difficulty organizing her thoughts and difficulty finding words and using word substitutions.” (Tr. 493; accord Tr. 620, 744.) Plaintiff experienced “some improvement” and was “focusing better, ” but did “have literal interpretations of figures of speech.” (Tr. 493; accord Tr. 620, 744.) Plaintiff did better when things were written versus “auditory input.” (Tr. 493; accord Tr. 620, 744.) During the appointment, Plaintiff reported being unable to remember names, and Dr. Leaf noted that she had “some word finding difficulties and substitutions.” (Tr. 493; accord Tr. 620, 745.)

         Towards the end of October, Plaintiff was seen by Sarah B. Rockswold, M.D. (Tr. 526, 528, 801-03.) Plaintiff again reported difficulties with her memory, words, and concentration. (Tr. 526, 529, 802.) Dr. Rockswold observed that Plaintiff was “aphasic” and at times had difficulty comprehending what Dr. Rockswold said. (Tr. 527; accord Tr. 529, 802.) Plaintiff also gave answers that were “inappropriate for the questions” being asked. (Tr. 527; accord Tr. 529, 802.) Plaintiff's fund of knowledge, insight, and judgment were all adequate. (Tr. 527, 529, 802.) Dr. Rockswold diagnosed Plaintiff with, among other things, “[c]ognitive defects including aphasia secondary to severe traumatic brain injury.” (Tr. 527; accord Tr. 529, 803.) Dr. Rockswold noted that Plaintiff would benefit from a more intense therapeutic program, but that the drive was difficult for Plaintiff and her husband to make once per week. (Tr. 527, 529, 803.) Dr. Rockswold referred Plaintiff for neuropsychological testing. (Tr. 527, 530, 803.)

         Plaintiff underwent neuropsychological testing in November with James B. Thomson, Ph.D. (Tr. 533-38, 539-44, 794-801.) She again reported “difficulty with naming, word substitution, neologisms, and hesitation and delay in speech.” (Tr. 534; accord Tr. 540, 795.) Plaintiff reported “no memory deficits except for language, ” which her husband confirmed. (Tr. 534; accord Tr. 540, 795.) Plaintiff's husband also reported that Plaintiff “has difficulty dealing with friends if they talk too rapidly.” (Tr. 534; accord Tr. 540, 795.) Plaintiff described her current “activities of cleaning, housework, laundry, [and] shopping, and stated that she walked regularly when it was warmer.” (Tr. 534; accord Tr. 540, 796.) Plaintiff's husband stated “that she runs the entire household.” (Tr. 534; accord Tr. 540, 796.)

         Dr. Thomson noted that Plaintiff's symptom questionnaire “was marked in a number of places, with many erasures, and then filled out again with words written in some places and check marks in other places, ” suggesting that Plaintiff “may have filled it out incorrectly or misunderstood it initially.” (Tr. 534; accord Tr. 540, 796.) Dr. Thomson noted that Plaintiff's “[e]xpressive speech was clearly impaired . . . with repetitive and occasionally disorganized speech.” (Tr. 535; accord Tr. 541, 797.) Dr. Thomson concluded that Plaintiff “demonstrated grossly impaired verbal reasoning, general knowledge, concentration, and working memory abilities because of an apparent combination of auditory comprehension difficulty and dysnomia.” (Tr. 537; accord Tr. 543, 799.) Plaintiff's “[v]isual reasoning abilities, by comparison, were average to superior, with average concentration.” (Tr. 537; accord Tr. 543, 799.)

         Overall, Dr. Thomson concluded that Plaintiff

demonstrated significant impairment in language-related tasks, reflecting aphasic symptoms of auditory comprehension, verbal expressive difficulty, reading recognition impairments, reading comprehension impairment (presumably), verbal memory impairment, verbal fluency impairment, and mental inflexibility in one visual test. Other visual tests found grossly intact attention, focus, perception, memory, reasoning, problem solving, planning, and fluency, with mildly reduced efficiency in letter and number recognition in scanning and cancellation tests. Overall, the results appear to relatively clearly indicate a focal cognitive dysfunction implicating language centers, similar to a left hemisphere stroke syndrome.

(Tr. 538; accord Tr. 544, 799.) Dr. Thomson recommended that Plaintiff continue with speech therapy. (Tr. 538, 544, 799.) Dr. Thomson also explained to Plaintiff that she could not return to her previous job as a pharmacy technician “given her difficulty with reading recognition, reading comprehension, and other language-based deficits that would be very dangerous in a pharmacy setting where errors could put someone's life at risk.” (Tr. 538; accord Tr. 544, 799.)

         2. 2009

         Plaintiff had three additional appointments with Dr. Rockswold in 2009. (Tr. 546-50, 564-68, 572-75, 792-793.) Plaintiff felt that her comprehension was improving and she was “working on words and remembering them.” (Tr. 547; accord Tr. 549, 792.) Dr. Rockswold noted that Plaintiff continued to have problems with aphasia, but she was improving and answered questions appropriately. (Tr. 547, 550, 565, 567, 793.) Plaintiff's fund of knowledge, insight, and judgment were noted to be improving as well during the first two appointments, but her insight and judgment were described as “still lacking” at the third. (Compare Tr. 547, 550, 565, 567, 793 with Tr. 572, 574.) Similar to Dr. Thomson, Dr. Rockswold also felt it was unsafe for Plaintiff to work as a pharmacy technician and wrote two letters for Plaintiff to this effect. (Tr. 517, 548, 550, 553, 573, 575, 577, 793.)

         During the second appointment, Dr. Rockswold noted that Plaintiff had been discharged from speech therapy at the end of February because “she had plateaued in her goals, ” and was described as “continu[ing] to have mild to moderate deficits in figurative language and organized verbal expression and word finding for complex information or conversation requiring multiple sentences.” (Tr. 565; accord Tr. 566, 567, 568; see Tr. 761-68, 769-76.) Plaintiff also reported that she had returned to her previous employer and was working as a cashier “a few hours a day.” (Tr. 565; accord Tr. 567.)

         At the third appointment, Dr. Rockswold noted that Plaintiff “recently underwent repeat neuropsychological testing” with Dr. Thomson, which showed “continued impairment in language-related tasks, though there is some improvement in functional auditory memory.” (Tr. 572; accord Tr. 574; see Tr. 512-16.) Plaintiff also had “some improvement in functional auditory memory more so than reading recognition, reading comprehension, or naming.” (Tr. 572; accord Tr. 574, 515.) Dr. Thomson stated that Plaintiff “could have problems in accuracy and reliability in her work, even as a cashier, ” and “she would be more successful in work that does not require significant amounts of written or even spoken communication or learning that requires reading or spoken information.” (Tr. 572; accord Tr. 574, 515.) On the other hand, Plaintiff was “primarily unimpaired in tasks requiring nonverbal abilities, including perceptual analysis, visual memory, visual reasoning, visual problem solving, visual planning, motor coordination, [and] visual memory.” (Tr. 515.)

         Dr. Rockswold further noted that Plaintiff was being seen in speech pathology, where “[s]he continue[d] to present with moderate expressive aphasia characterized by decreased word finding, word substitution and repetition.” (Tr. 572; accord Tr. 519, 574.) Notes from the speech pathology consultation stated that, despite her language deficits, Plaintiff was “compensating quite well on a functional level, using various compensation strategies to get her thoughts and ideas across, ” and “[r]eceptively she is able to follow directions and engage in conversation appropriately and within context, but state[s] th[a]t she does intermittently require repetition or clarification on a functional level.” (Tr. 519-20.) It was also noted that Plaintiff was “unsure if she is interested in resuming therapy at this time, but did agree to return 1-2 more times to complete assessment and discuss potential goals.” (Tr. 520.)

         3. 2013

         Plaintiff participated in a three-day vocational evaluation by Courage Center in February 2013. (Tr. 221-29.) Plaintiff underwent a battery of tests designed to assess areas such as comprehension and vocabulary skills, math skills, and ability to follow verbal instructions. (Tr. 222-27.) Ultimately, the vocational evaluator concluded that Plaintiff read above a sixth-grade reading level, had basic math skills, demonstrated good spatial skills, showed attention to detail, and performed at a near competitive work speed. (Tr. 228.) Additionally, the vocational evaluator noted that Plaintiff had difficulty with multistep verbal instructions, performed at a below competitive work speed, and could be abrupt in her interpersonal skills. (Tr. 228.) The vocational evaluator listed repetition, checklists, routing/structure, and concrete tasks as suggested accommodations. (Tr. 228.)

         In June, Plaintiff returned to Dr. Leaf, asking about medication that could help with her memory. (Tr. 607, 638-40.) Plaintiff was no longer working as a cashier. (Tr. 607, 638.) Plaintiff reported completing a program for certified nursing and home health assistants, but had been unable to find work. (Tr. 607, 638-39.) While Plaintiff was alert and oriented, Dr. Leaf noted that her thoughts were scattered and disorganized. (Tr. 608, 640.) Plaintiff was also tangential and had difficulty expressing her thoughts despite referring to notes. (Tr. 608, 640.) Dr. Leaf recommended an additional neuropsychological evaluation. (Tr. 608, 640.)

         Notes from visits Plaintiff had with a nurse practitioner in each of October and November indicated, in relevant part, that Plaintiff's speech was normal, she could reason abstractly, and her thoughts were not tangential. (Tr. 643, 651.) During one of the appointments, however, it was noted that Plaintiff was ...


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