Broadus v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER entered..It is ORDERED that the decision of the Commissioner be REVERSED and that this action be REMANDED for further actions not inconsistent with the Order of the Court, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 3/30/2016. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERICA BROADUS, SUBSTITUTE
PARTY FOR FRANKLIN D. BROADUS,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

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CIVIL ACTION 15-420-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling denying claims for disability insurance benefits (Doc.
1).

The parties filed written consent and this action has been

referred to the undersigned Magistrate Judge to conduct all
proceedings and order judgment in accordance with 28 U.S.C. §
636(c), Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b) (see Doc.
16).

Oral argument was heard on March 28, 2016.

After

considering the administrative record and the memoranda of the
parties, it is ORDERED that the decision of the Commissioner be
REVERSED and that this action be REMANDED for further actions
not inconsistent with the Order of the Court.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and

1

Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

Substantial

evidence requires “that the decision under review be supported
by evidence sufficient to justify a reasoning mind in accepting
it; it is more than a scintilla, but less than a preponderance.”
Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting
Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).
At the time of the administrative hearing on November 7,
2013, Franklin D. Broadus1, was forty-one years old, had attended
the eleventh grade and obtained a GED, and had previous work
experience as an air conditioning and heating installer and
sheet metal apprentice.

(TR. 46-49).

Broadus alleged

disability due to seizure disorder, high blood pressure, carpal
tunnel syndrome and fractured left kneecap. (Tr. 91).
The Plaintiff protectively applied for disability benefits
on October 18, 2012, asserting a disability onset date of
January 18, 2012.

(Tr. 162; Doc. 11-1, fact sheet).

An

Administrative Law Judge (ALJ) denied benefits after determining
that Broadus did not meet the disability listing requirements;
the ALJ further found that Plaintiff was capable of performing
less than the full range of sedentary work. (Tr. 31-39).

1

Franklin Broadus died on February 27, 2015. (Tr. 10). His surviving
spouse, Erica Broadus, was thereafter designated as a substitute party
and filed the Complaint in this action. (Tr. 9).

2

Plaintiff requested review of the hearing decision but the
Appeals Council denied it.

(Tr. 1-7, 24-27).

Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Broadus

(1) The ALJ erred in failing to find that

Broadus’ seizure impairment meets or equals listing 11.02 and/or
11.03; and (2) the ALJ failed to fully develop the record. (Doc.
11).

Defendant has responded to—and denies—these claims (Doc.

14).

The relevant evidence of record follows.
On August 17, 2009, Broadus was seen at Providence Hospital

for neck, back, and shoulder pain following a motor vehicle
crash.

(Tr. 245-50).

The relevant x-rays taken were negative

and Plaintiff was discharged with medication.

(Tr. 253-257).

On January 29, 2010, Plaintiff was seen by Dr. Oztas for
complaints of seizures.

(Tr. 259).

It was noted that Plaintiff

had an eight to nine year history of seizures, although he had
not experienced a seizure in approximately two years.

(Id).

Plaintiff indicated that he had at one time taken Dilantin2,
which was not helpful, but he had otherwise gone untreated for
many years.

(Id).

Dr. Oztas described Plaintiff’s seizures

(according to his wife who also testified at the hearing) as
“him screaming and yelling and then his head turns to the left

2

Dilantin is an anti-epileptic drug, also called an anticonvulsant.
http://www.drugs.com/dilantin.html

3

with a tonic episode that lasts 20-30 seconds followed by a
tonic–clonic episode, postical confusion, and agitation.”

(Id).

It was also noted that Plaintiff experienced tongue-biting and
urinary incontinence associated with his seizures.

(Tr. 259).

Plaintiff additionally indicated he suffered from myalgias
following a seizure that would last a one to two weeks.

Among

other things, Plaintiff was diagnosed with complex partial
seizures with secondary generalization, prescribed Depakote3
500mg, and instructed to follow up in one month.

(Tr. 260).

On November 22, 2010, Plaintiff followed up with Dr. Oztas.
(Tr. 265).

It was noted that the Depakote “worked very well”

but that Plaintiff “is non-compliant and did not take the
medication like he was supposed to” which resulted in
breakthrough seizures as expected.

(Id).

Plaintiff

additionally complained of aching all over as a result of the
seizures.

(Id).

Plaintiff was again prescribed Depakote and

instructed to follow up in three months.

(Id).

Plaintiff returned to Dr. Oztas on February 9, 2012, after
being off of his medication for “a long time” following the loss
of his insurance.

(Tr. 266).

Plaintiff complained of numerous

seizures, biting his tongue, and being sore all over.

(Id).

was noted that when Plaintiff was taking Depakote it was

3

Depakote is used for the treatment of seizures.
Reference 428-34 (52nd ed. 1998).

4

Physician's Desk

It

“wonderful”.

(Id.)

Plaintiff was diagnosed with complex

partial seizure disorder without intractable epilepsy, chronic
daily headache, and irritable behavior.

(Tr. 267).

Plaintiff

was again prescribed Depakote, as well as Lortab4 for soreness,
and Flexeril5 for muscle spasms and instructed to follow up in
one year.

(Id).

On October 10, 2012, Plaintiff visited the Mobile County
Health Department complaining of having seizures more
frequently.

(Tr. 273).

Plaintiff’s wife reported that

Plaintiff was staring in the distance (focal symptoms) at least
once a day with occasional shaking.

It was noted that Plaintiff

was compliant with his medication, which included Tramadol6,
Flexeril, Ibuprofen, and Depakote.

(Id).

Plaintiff was given

Lisinopril7 and a refill of Tramadol, but was discontinued on
Flexeril and Ibuprofen.

(Tr. 276).

In January, 2013, Plaintiff injured his knee while working.
From March to May of 2012, Plaintiff was seen by Dr. Allen for
treatment of his knee injury and from February 8, 2012, until

4

Lortab is a semisynthetic narcotic analgesic used for “the relief of
moderate to moderately severe pain.” Physician's Desk Reference 292627 (52nd ed. 1998).

5
Flexeril is used along with “rest and physical therapy for relief of
muscle spasm associated with acute, painful musculoskeletal
conditions.” Physician's Desk Reference 1455-57 (48th ed. 1994).

6
Tramadol “is indicated for the management of moderate to moderately
severe chronic pain in adults who require around-the-clock treatment of
their pain for an extended period of time.” Physician's Desk Reference
2520 (66th ed. 2012).
7
Lisinopril is used for the treatment of hypertension. Physician's
Desk Reference 1974 (66th ed. 2012).

5

March 5, 2012, Plaintiff underwent physical therapy for his knee
injury.

(Tr. 305, 320-331).

From October, 2012, until January, 2013, Plaintiff visited
Dr. Allen five times for continued care of his left knee. (Tr.
307-319).

During that time, Plaintiff additionally received

cortisone injections in his knee. (Id).
On January 3, 2013, Plaintiff underwent a Functional
Capacity Evaluation (FCE), by Beverly Wilkins (Physical
Therapist) and Elana McDuffie (Exercise Physiologist) for his
knee injury.

(Tr. 291-295).

It was determined that Plaintiff

could perform a range of medium work.

(Id).

On September 17, 2013, Plaintiff returned to Dr. Oztas
complaining of increased seizures (2-3 times per week) while
taking generic Depakote.

Plaintiff described his seizures and

his post seizure behavior to Dr. Oztas as “he walks around the
house without any purpose” and “jumps out of windows”, but “he
has no recollection of this.”8 (Tr. 366).

It was conveyed that

Plaintiff had been involved in a wreck and he was instructed not
to drive.

(Id).

Plaintiff additionally indicated that he was

severely fatigued, having muscle aches and pains, memory
problems, and confusion as a result of his seizures.

(Id).

Dr.

Oztas diagnosed Plaintiff with complex partial seizure disorder

8

Plaintiff’s wife also testified at the hearing that she witnessed
Plaintiff attempt to jump out of windows during seizures and that on
one occasion Plaintiff did, in fact, jump out. (Tr. 78-80).

6

without intractable epilepsy, chronic daily headache, and
irritable behavior and prescribed brand named Depakote (not its
generic form).

(Tr. 367).

Plaintiff was given one month of

Depakote samples and instructed to return in several months.
(Id.)

This concludes the Court’s summary of the evidence.

In bringing this action, Broadus claims that the ALJ erred
in finding that Plaintiff’s seizure did not meet the listing of
11.02 and/or 11.03.

(Doc. 11).

Plaintiff additionally argues

that the ALJ failed to properly develop the record. (Id).
In her opinion, the ALJ determined that Plaintiff suffered
severe impairments of seizure disorder, headaches, and left knee
pain status post dislocation and fracture of the patella. (Tr.
33).

The ALJ then determined that “the medical evidence of

record does not document abnormalities necessary to meet the
criteria of any listings, including […] listing 11.02 governing
convulsive epilepsy, and listing 11.03 governing nonconvulsive
epilepsy.”

(Tr. 34).

This conclusion of the ALJ is troubling

because it does not state on what specific medical evidence, or
the lack thereof, in the record she relied in reaching her
conclusion that Plaintiff did not meet either listing
requirement.

Further, based on the conclusory nature of the

ALJ’s finding, it cannot be determined whether in reaching her
conclusion, the ALJ properly considered and/or discredited the
relevant portions of the record, i.e., the medical records

7

presented by Plaintiff, the seizure journal kept by Plaintiff’s
wife, the pharmacy records, or the testimony of Plaintiff’s
wife.

Instead, the ALJ stated “I cannot find the allegations to

be fully credible.

The claimant has a history of being able to

work despite his seizure disorder.” (Tr. 36).

The ALJ further

stated “[Plaintiff’s] wife kept a record of his seizures between
January and November 2013, and the great majority of those
seizures occurred during normal sleeping hours.” (Id).

This

Court cannot discern, and will not speculate, as to whether
these issues, or some other issues were the bases for her
conclusion that neither listing requirement had been met.
Further, because these statements do not, on their face, negate
any requirement of the listing, they offer no clarification as
to the bases of the ALJ’s decision.

As a result, this Court

cannot conclude that the ALJ’s opinion was based on substantial
evidence.

See Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir.

1984) (The ALJ must state the grounds for his decision with
clarity to enable us to conduct meaningful review.)

The Court

does not indicate by its decision today that the ALJ’s
conclusions are wrong.

They may be correct, but until the ALJ

explains her reasoning, the Court cannot conduct a proper
judicial review and must reach the decision that the conclusions
are not supported by substantial evidence.9

9

Because this Court cannot find that the ALJ’s opinion was based on

8

Based on review of the entire record, the Court FINDS that
the Commissioner's decision is not supported by substantial evidence.

Therefore, it is ORDERED that this action be REVERSED

and REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion.
Judgment will be entered by separate Order.
DONE this 30th day of March, 2016.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

substantial evidence, it will not address the second issue raised by
Plaintiff.

9