Kimberly Nowling v. Carolyn W. Colvin

813 F.3d 1110, 2016 U.S. App. LEXIS 3019, 2016 WL 690821
Court of Appeals for the Eighth Circuit·Decided February 22, 2016·No. 14-2170·Published·Cited by 99 cases

Opinion

MELLOY, Circuit Judge.

Kimberly Anne Nowling applied for disability benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401, et seq., and supplemental security income benefits under Title XVI of the Act, 42 U.S.C. § 1381, et seq. An ALJ denied her application, and the Commissioner declined further review. Nowling unsuccessfully challenged her denial of benefits in the district court. We remand to the agency for further proceedings.

I.

Nowling suffers from conversion disorder manifesting itself as somatoform, non-epileptic “pseudo-seizures.” In addition, she is obese and suffers from migraine headaches, mood disorder, anxiety disorder, and personality disorder.

Before turning to the details of Nowl-ing’s medical and administrative history, we describe briefly the phenomenon of conversion disorder and the somatoform, non-epileptic “pseudo-seizures” that form the core of Nowling’s medical issues and alleged disability. Conversion disorder is a phenomenon in which a person actually *1114 and subjectively experiences symptoms without a known underlying medical cause. Easter v. Bowen, 867 F.2d 1128, 1129 (8th Cir.1989). It is believed the symptoms, such as non-epileptic seizures, result from an unconscious, involuntary conversion of mental stress into a physiological symptom. Id.; see also Miller v. Colvin, No. 12-2293, 2014 WL 641714 at *3 (W.D.Ark. Feb. 19, 2014) (“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.” (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/symptoms_that_ mimic_epilepsy_linked_to_stress_poor_ coping_skills (last accessed January 26, 2016))). In prior opinions, we reviewed these or similar disorders and noted the difficulty of assessing how such disorders limit a person’s activities. Metz v. Shalala, 49 F.3d 374, 377 (8th Cir.1995). 1 In particular, we noted that a prime feature of conversion disorder may be a disconnect between the actual severity of symptoms demonstrated by clinical evidence and the way the applicant subjectively perceives the symptoms. See, e.g., Easter, 867 F.2d at 1130 (“[H]er primary disorder, as clinically diagnosed, causes her to exaggerate her physical problems in her mind beyond what the medical data indicate.”). That is not to say this exaggerated experience of symptoms amounts to malingering. Id. Rather, the applicant actually believes herself to be experiencing symptoms at a greater level of severity than clinical evidence can support.

Given this disconnect, an obvious difficulty arises when it becomes necessary to make credibility assessments in cases involving somatoform phenomena. Subjective perceptions of somatoform effects may, in fact, be debilitating even when clinical or diagnostic medical evidence does not fully support the claimed symptoms. It nevertheless remains necessary to make credibility assessments in these settings, and “[i]n cases involving somatoform disorder ... an ALJ is not free to reject subjective experiences without an express finding that the claimant’s testimony is not credible.” Metz, 49 F.3d at 377. Where such a finding has been made, “[w]e will not disturb the decision of an ALJ who considers, but for good cause expressly discredits, a claimant’s complaints ... even in cases involving somatoform disorder.” Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir.2001).

Given the difficulty in this area, if an ALJ expressly accepts that a claimant suffers from a somatoform disorder, but also finds the claimant at least partially non-credible, the ALJ ideally should set forth the credibility determination with sufficient detail to expressly inform the reviewing court as to the factual details of the petitioner’s limitations as accepted or believed by the ALJ. And in this type of case, even more so than in other cases, *1115 corroborating testimony from actual witnesses such as family members or former employers regarding the nature of the symptoms may hold particular value for a fact finder.

With this background in mind, we turn to the record. Nowling began experiencing seizure-like episodes prior to 2007. She worked as a nurse’s aide and bathing assistant. Over time, her employer cut her hours and duties because it was not safe for her to be alone with patients or lift or bathe patients given her potential for seizure-like episodes. In December 2007, following an episode of seizure-like symptoms, her employer asked her to see a neurologist and instructed her not to return to work until she did. Nowling visited neurologists, who identified no neurological cause for her symptoms and identified no signs of brain activity suggestive of actual epilepsy. She returned to work on a reduced basis. Eventually, in- August 2008, she quit her job due to an inability to work alone with patients.

On March 6, 2009, she applied for Title II and Title XVI benefits. She originally alleged an onset date of March 6, 2009. Her applications were denied, and at a hearing before an ALJ on March 16, 2011, she amended her alleged onset date to February 28, 2008. She did not allege her condition materially worsened in late February 2008. Rather, February 28, 2008, is a date when she asked for and received a doctor’s note recommending that she restrict her working hours to 7 % hours per day, three days per week. 2

Medical evidence from treating physicians was largely consistent between 2007 and -2011. Nowling saw neurologist Mi-gnon Makos in 2007. Dr. Makos found no evidence of epileptic seizures. Nowling experienced a seizure-like episode during her exam, and Dr. Makos indicated that Nowling was able to sit but a nurse needed to hold her head and neck. Dr. Makos also indicated that Nowling’s eyes appeared to react voluntarily to stimulus during the pseudo-seizure and that she appeared to recoil voluntarily in response to discomfort. She recovered quickly after her seizure and experienced little physical change other than temporarily slightly elevated blood pressure. Dr. Makos diagnosed her with conversion disorder/soma-toform pseudo-seizures and took her off seizure medication. Nowling reported to Dr. Makos that she frequently suffered migraine headaches and that her headaches often preceded her more severe seizures. Dr. Makos placed her on medication to treat her headaches in an effort to control the pseudo-seizures.

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Kimberly Nowling v. Carolyn W. Colvin, 813 F.3d 1110, 2016 U.S. App. LEXIS 3019, 2016 WL 690821 (8th Cir. 2016).

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