Perschka Evelyn v. Commissioner of Social Security , 411 F. App'x 781 ( 2010 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 10a0798n.06
No. 09-6328 FILED
Dec 30, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
EVELYN K. PERSCHKA, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
COMMISSIONER OF SOCIAL SECURITY, ) KENTUCKY
)
Defendant-Appellee. )
BEFORE: MARTIN and SILER, Circuit Judges; BELL*, District Judge.
SILER, Circuit Judge. Evelyn K. Perschka appeals the summary judgment by the district
court denying her application for disability insurance benefits. Perschka alleges that she suffers from
seizures that completely preclude gainful employment. The Commissioner of Social Security found
Perschka not disabled within the meaning of the Social Security Act because she possessed skills
transferable to sedentary employment and such jobs existed in sufficient numbers in the national
economy. For the following reasons, we AFFIRM.
I. BACKGROUND
A. Procedural Background
Perschka filed an application for disability insurance benefits in 1999, alleging blackout
spells and seizures that caused her to cease working as a power plant operator. She underwent a
*
Honorable Robert Holmes Bell, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 09-6328
Perschka v. Commissioner of Social Security
consultative neurological examination, and the examining physician concluded that Perschka did not
suffer from a neurocognitive impairment significant enough to preclude gainful sedentary type
employment. In 2003, the ALJ found Perschka not disabled within the meaning of the Act. The ALJ
determined that she retained the residual functional capacity (“RFC”) to perform sedentary work,
and that there are a significant number of such jobs in the national economy. The Appeals Council
affirmed.
Perschka then appealed to the United States District Court for the Western District of
Kentucky. The district court remanded the case, instructing the ALJ to obtain supplemental evidence
from a vocational expert (“VE”) to determine whether Perschka possessed any transferable skills.
In compliance with the court’s order, a hearing before another ALJ was set in 2006.
Perschka’s representative, attorney Mark Pierce, contacted the hearing office on the day of the
hearing to report that he was sick and would not attend. As a result, the hearing was not held, and
the ALJ instead propounded interrogatories to a VE, Dr. Greenfell.
Dr. Grenfell found that Perschka possessed skills transferable to a dispatcher or timekeeper
position, including the ability to maintain records and inventories, organize work schedules, and
supervise, train, and evaluate subordinates. He also determined that these jobs are clerical, but exist
in the same work setting and industry as Perschka worked in previously.
In May 2007, the ALJ forwarded the VE’s responses to Perschka’s attorney, asking him to
comment or respond within 10 days. Pierce requested five extensions of time to prepare his
response, on May 21, June 5, June 18, July 2, and July 17, respectively. The ALJ granted the first
four requests, but denied the attorney’s fifth request for additional time.
-2-
No. 09-6328
Perschka v. Commissioner of Social Security
In July 2007, the ALJ determined that Perschka was not disabled within the meaning of the
Act. She recounted the medical records from the various physicians who examined Perschka and
the findings of the VE, and concluded that she was capable of successfully adjusting to a job that
exists in significant numbers in the national economy.
When Perschka again sought relief in the district court, the court affirmed the decision of the
Commissioner.
B. Perschka’s Relevant Medical History
In May 1999, Dr. Walker began treating Perschka for migraine headaches. Perschka told Dr.
Walker that she had experienced several blackouts, “by which she means she loses all vision.” She
stated that “she does not allow her headaches to keep her from work,” and “she and her husband are
active running a restaurant which they bought in December 1998.” Between May 1999 and April
2000, she reported “small blackouts” to her primary care physician, Dr. Maestas. She stated that she
did not fall during these blackouts, but lost vision and experienced a “pounding” in her head. In May
2000, Perschka complained of “briefly passing out with little warning” to Dr. Sommers at the
Arizona Heart Institute. Dr. Sommers noted that, according to descriptions of these episodes, “there
is no jerking sensation that would suggest any grand mal seizure.”
Dr. Walker at the Scottsdale Headache and Pain Center evaluated Perschka in May and June
of 1999, and again in July 2000. Dr. Walker prescribed Neurontin in 1999. In her July 2000 visit,
Perschka told Dr. Walker “she has had a marked improvement in her headaches as well as her
‘black-outs’ since starting the Neurontin.” She stated that “her blackouts are much less frequent.
They are now about one per month.” Dr. Walker ordered a brain MRI, which revealed “a small
-3-
No. 09-6328
Perschka v. Commissioner of Social Security
abnormal area of enhancement involving the left side” of the brain stem. The radiologist who
performed the MRI recommended “[c]lose follow-up.” At a follow-up visit in December 2000,
Perschka told Dr. Walker that “overall she feels better.” She reported going “out” approximately
four times per month without warning. Dr. Walker recommended that she see Dr. Drazkowski, a
neurologist in the epilepsy division at the Barrow Neurology Institute.
In February 2001, Dr. Srivastava consultatively evaluated Perschka for the Arizona Disability
Determination Service. He noted that Perschka had never been injured during these blackouts, and
had “no history of biting of tongue or incontinence.” The doctor reviewed the brain MRI, which
“revealed . . . [a] lesion of doubtful clinical significance.” Perschka stated that she responded to
Neurontin, but “the effect has worn away.” She also reported responding positively to Darvon and
clonazepam. Dr. Srivastava noted that Perschka “takes active part in day-to-day activities like
cooking, cleaning, vacuuming, laundry, utensils, etc.” He concluded that she did not show
“objective evidence of physical disability” and recommended a psychiatric evaluation for post-
traumatic stress disorder and anxiety.
Dr. Drazkowski at the Barrow Neurological Group evaluated Perschka in May 2001.
Perschka described her blackout episodes as “going down” and eventually passing out for 30 seconds
to 30 minutes. Perschka’s daughter and husband reported witnessing these episodes, which “are
exacerbated by stress.” Following an evaluation, Dr. Drazkowski described Perschka as a “well-
developed, well-nourished . . . female in no apparent distress.” He noted a “tremor of the head which
is brought out by stress. This is intermittent and appears real.” The doctor suggested that Perschka
has “many features of OCD and maybe some mild depression. She has risk factors for nonepileptic
-4-
No. 09-6328
Perschka v. Commissioner of Social Security
spells.” He recommended an MRI of the head and neck and an EEG “to rule out seizure.” The EEG
returned “normal” without any “epileptiform discharges.” The doctor reviewing the EEG noted that
the “absence of epileptiform abnormality does not exclude the clinical diagnosis of a seizure
disorder.”
In September 2002, Dr. Zolan consultatively evaluated Perschka for the Arizona Disability
Determination Service. He echoed Dr. Srivastava’s determination that the brain abnormality
revealed by the MRI was “of doubtful clinical significance.” Perschka reported seven to eight
episodes since January 2002. Dr Zolan found “sufficient evidence to suggest a seizure disorder,”
but concluded that Perschka did not have “any significant neurocognitive impairment” that would
preclude gainful employment. Dr. Zolan determined that she should not operate a motor vehicle or
heavy machinery, or perform work that requires repetitive motion, stooping, kneeling, balancing, or
working at heights. He suggested sedentary type employment.
Dr. Drazkowski examined Perschka again in December 2002. Perschka had increased her
medication dosage, resulting in an improvement and only “one spell per month or so.” She “clearly
state[d] that if she missed the medication the spells return fairly quickly within the next day or two.”
In September 2003, Dr. Drazkowski evaluated Perschka in an epilepsy monitoring unit. An off-
medicine continuous EEG video monitoring session showed “frequent sharp waves and occasional
spike with aftercoming slow wave.” Perschka “had an electrographic seizure during her monitoring
session emanating from the left central head region.” Dr. Drazkowski confirmed a diagnosis of
“partial seizure disorder,” and noted that it was “unclear whether all of her events are epilepsy.” He
determined it “likely she has had partial seizures with occasional secondary generalization.” At a
-5-
No. 09-6328
Perschka v. Commissioner of Social Security
neurologic follow-up in October 2003, Dr. Drazkowski wrote that Perschka “has had no further
seizures since we have seen her last. She has had no blackouts or disorientation . . . . [she] does have
partial seizures and will likely have recurrence if she is not on anticonvulsant medication.”
During a functional capacity evaluation by a physical therapist in January 2004, Perschka
exhibited an ability for prolonged sitting activities, and scored in the sedentary category for work
activities. However, Perschka was unable to complete the two-day testing because she experienced
“two grand mal seizures,” according to the physical therapist, at the beginning of the second day.
The physical therapist did not recommend “any type of employment” until her seizures were under
control.
Perschka’s insured status expired in March 2004. In April 2004, Dr. Maestas completed an
“Attending Healthcare Provider’s Statement of Disability” supplied by Perschka’s former employer.
Dr. Maestas described her as “totally disabled,” with “chronic pain and new seizure disorder.” The
doctor also concluded, however, that she is “capable of clerical/administrative (sedentary) activity.”
C. Perschka’s Psychological Evaluations
In February 2000, Perschka attended a psychological consultation with Dr. General. Dr.
General noted that Perschka drove 160 miles by herself to the appointment. Dr. General concluded
that her “prognosis for returning to the work force is fair.” He characterized her ability to perform
work-related tasks as “good,” with “fair” short-term memory. He recommended medication for her
bipolar condition.
Perschka saw another psychologist, Dr. Rose, in December 2000. Dr. Rose described
Perschka as “quite manic” with a “head tremor.” Dr. Rose disagreed with Dr. General’s bipolar
-6-
No. 09-6328
Perschka v. Commissioner of Social Security
diagnosis, but concluded that Perschka experienced “hyperness.” Dr. Rose determined that
Perschka’s “hypomania should not necessarily pose an obstacle to performing work related activities,
although given her hypomania, she should consider less dangerous jobs than working at power
plants.”
II. DISCUSSION
A.
We determine whether substantial evidence supports the Commissioner’s findings. 42
U.S.C. § 405(g). A claimant has the burden of proving her entitlement to benefits prior to the
expiration of her insured status. 42 U.S.C. § 423(d)(5)(A). She must provide competent evidence
to authenticate a medical or psychological condition that prevented her from engaging in gainful
work activity. 20 C.F.R. § 404.1512(a) (2009); Boyes v. Sec’y of Health and Human Servs., 46 F.3d
510, 512 (6th Cir. 1994). Even if the claimant cannot perform her prior work, she is not disabled if
her RFC and vocational abilities allow her to perform work that exists in significant numbers in the
national economy. Odle v. Sec’y of Health and Human Servs., 788 F.2d 1158, 1161 (6th Cir. 1985).
Her employability is not a factor in determining disability. 20 C.F.R. § 404.1566(c)(1); Odle, 788
F.3d at 1161.
Social Security Disability Evaluation Listing 11.02 provides the requirements for showing
a “convulsive epilepsy” disability under the Act. 20 C.F.R. § 404, Subpart P, App. 1. The claimant
must show a documented grand mal or psychomotor seizure pattern “occurring more frequently than
once a month in spite of at least 3 months of prescribed treatment.” Id. The claimant must present
specific medical evidence to satisfy all of the criteria. 20 C.F.R. § 416.925.
-7-
No. 09-6328
Perschka v. Commissioner of Social Security
Perschka argues that the ALJ’s determination was not based on substantial evidence. She
contends that she met the Listing 11.02 requirements for convulsive epilepsy, and that the ALJ erred
in her RFC assessment. She further contests the ALJ’s determination that she has transferable skills
for a dispatcher or timekeeper position, as well as the finding that those jobs exist in significant
numbers in the national economy.
Contrary to Perschka’s arguments, substantial evidence supports the ALJ’s decision. First,
there is substantial medical evidence supporting the ALJ’s conclusion that Perschka did not meet
Listing 11.02. Two state medical experts concluded that she did not suffer from a significant
neurocognitive impairment and could perform sedentary work. Other physicians noted that
Perschka’s description of her episodes lacked the symptoms of grand mal seizures. Multiple
physicians commented that her episodes occurred less frequently with medication.
There is evidence that Perschka suffers from some level of seizure activity. Indeed, she
experienced a seizure in the epilepsy monitoring unit in September 2003. However, this seizure led
Dr. Drazkowski to a diagnosis of only “partial seizures with occasional secondary generalization.”
He also noted that it was “unclear whether all of her events are epilepsy.” This is not consistent with
convulsive epilepsy in Listing 11.02, which requires documentation of generalized or grand mal
seizures occurring at least once per month. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“An
impairment that manifests only some of those criteria, no matter how severely, does not qualify.”).
One physical therapist did report witnessing Perschka have “two grand mal seizures” while
performing a functional capacity evaluation. The ALJ did not consider this assessment in her
determination, because “this statement came from a physical therapist with no expertise or
-8-
No. 09-6328
Perschka v. Commissioner of Social Security
qualifications to provide an opinion on vocational issues.” This conclusion is consistent with Social
Security regulations, which do not include physical therapists in the list of acceptable medical
sources who can provide evidence to establish an impairment. See 20 C.F.R. § 404.1513(a)(1)-(5).
Even if the ALJ had considered the physical therapist’s characterization of the episode, this isolated
incident would not establish that Perschka experienced convulsive grand mal seizures with the
frequency required in Listing 11.02.
Similarly, substantial evidence supported the ALJ’s RFC determination. The ALJ thoroughly
reviewed the record before concluding that Perschka is able to perform sedentary work with
restrictions. Based on objective evidence of Perschka’s seizure disorder from medical records, the
ALJ determined that she cannot lift or carry more than ten pounds, sit for longer than six hours, walk
for more than two hours, operate a motor vehicle or heavy machinery, work at heights, or perform
jobs that require repetitive motion. Based on the subjective evidence, the ALJ found that Perschka’s
seizure disorder did not significantly limit her daily activities. See 20 C.F.R. § 404.1529(c)(3).
Specifically, she was able to clean, shop, sew, cook, socialize, bowl, and walk several miles a day.
See Blacha v. Sec’y of Health and Human Servs., 927 F.2d 228, 231 (6th Cir. 1990) (“ALJ may
consider household and social activities in evaluating complaints of disabling pain.”). Moreover,
Perschka indicated that she responded positively to medication. See Houston v. Sec’y of Health and
Human Servs., 736 F.2d 365, 367 (6th Cir. 1984). This evidence amply supports the ALJ’s RFC
determination.
Substantial evidence also supports the ALJ’s finding that Perschka had transferable skills.
The VE listed several of Perschka’s skills that could be transferred to a position as service dispatcher
-9-
No. 09-6328
Perschka v. Commissioner of Social Security
or timekeeper. The VE’s conclusions are consistent with statements from multiple physicians. Any
difficulties Perschka may have encountered in her job search do not affect her disability
determination. See 20 C.F.R. § 404.1566.
Finally, neither the newly appended 2009 Widow’s Benefits determination nor the 2007
neurologist’s opinion require remand. The ALJ’s 2009 determination concluded that Perschka “has
been disabled from July 24, 2007 through the date of the decision.” The neurologist’s May 31, 2007
opinion states that Perschka has been treated for “the past two years and three months.” This
evidence is not material because it does not establish that Perschka was disabled before her disability
insured status expired on March 31, 2004. See 42 U.S.C. § 423(a), (c); Moon v. Sullivan, 923 F.2d
1175, 1182 (6th Cir. 1990).
B.
Perschka argues that her due process rights were violated because she never had the
opportunity to respond to the VE’s interrogatory answers. She acknowledges that her attorney
should have responded, but argues that he failed to adequately represent her. She alleges that he
exhibited bad faith. She further appears to contend that, as a result of her attorney’s repeated
requests for extensions of time to respond to the VE’s interrogatories, the ALJ was biased in her
unfavorable determination. She also suggests that the ALJ did not fully and fairly develop the
record, particularly because Perschka was unrepresented by counsel at the hearing.
Perschka has not shown a due process violation. First, she had an opportunity to respond to
the VE’s conclusions. ALJ Thomas proffered the VE’s interrogatory responses to Perschka’s
attorney. For the next three months, ALJ Thomas granted Perschka’s attorney’s four requests for
- 10 -
No. 09-6328
Perschka v. Commissioner of Social Security
extensions of time to respond to the interrogatories, eventually denying the fifth request. The ALJ’s
proffer and granting of multiple extensions of time to respond provided Perschka a meaningful
opportunity to present her case. See Flatford, 93 F.3d at 1306-07. Additionally, she fails to support
her conclusory allegation that her attorney exhibited bad faith before ALJ Thomas. See Hollon ex
rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006) (“[W]e decline to formulate
arguments on [appellant’s] behalf”).
Second, Perschka presents no evidence to substantiate her claim that the ALJ was biased,
other than the ALJ’s unfavorable ruling. An adverse ruling alone is not enough to support a finding
of bias. See First Nat’l Monetary Corp. v. Weinberger, 819 F.2d 1334, 1337 (6th Cir. 1987).
Finally, Perschka has not shown that the ALJ failed to fully and fairly develop the record.
The ALJ held a hearing, reviewed several hundred pages of medical records, and solicited VE
testimony. See Lashley v. Sec’y of Health & Human Servs., 708 F.2d 1048, 1052 (6th Cir. 1983)
(“[The ALJ] must scrupulously and conscientiously probe into, inquire of, and explore for all the
relevant facts”). She informed Perschka’s attorney that he could submit written comments
concerning the VE’s evidence, request a supplemental hearing to submit additional evidence, and
request a subpoena for witnesses or records. The ALJ’s decision carefully discusses the record
evidence and does not merely rely on the findings of the prior ALJ.
AFFIRMED.
- 11 -