Howard v. Commissioner of Social Security

Filing 27

OPINION AND ORDER: The decision of the Commissioner of Social Security is REVERSED and this case is REMANDED to the Social Security Administration for further proceedings consistent with this Opinion pursuant to Sentence Four of 42 U.S.C. Section 405(g). Signed by Judge Rudy Lozano on 1/23/17. (cer)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
)
)
)
)
)
) NO. 3:13–CV-95
)
)
)
)
)

STEVEN R. HOWARD, JR.,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

OPINION AND ORDER
This matter is before the Court for review of the Commissioner
of

Social

Security’s

decision

denying

Disability

Insurance

Benefits and Supplemental Security Income to Plaintiff Steven R.
Howard, Jr.

For the reasons set forth below, the decision of the

Commissioner is REVERSED and this case is REMANDED to the Social
Security Administration for further proceedings consistent with
this opinion pursuant to sentence four of 42 U.S.C. section 405(g).

BACKGROUND
In March of 2010, Steven R. Howard, Jr. (“Howard”), filed an
application for Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C.
section 401 et seq., and Supplemental Security Income (“SSI”) under

1

Title XVI of the Social Security Act, 42 U.S.C. section 1381, et.
seq. Howard alleged that his disability began on February 1, 2010.
The Social Security Administration (“SSA”) denied his initial
applications and also denied his claims upon reconsideration.
Howard requested a hearing, and on August 4, 2011, Howard
appeared with his attorney at an administration hearing before
Administrative Law Judge (“ALJ”) Melody Paige.
provided

by

Howard,

the

claimant’s

wife,

Testimony was
Rhianna

Howard

(“Rhianna”), and vocational expert (“VE”) Thomas A. Gusloff.

On

September 15, 2011, the ALJ issued a decision denying Howards’s
claim, finding him not disabled because he could perform his past
relevant work as a wire harness assembler and buffing machine
operator.

(Tr. 29.)

Howard requested that the Appeals Council review the ALJ’s
decision, but that request was denied.

Accordingly, the ALJ’s

decision became the Commissioner’s final decision.

See 20 C.F.R.

§ 422.210(a). Howard has initiated the instant action for judicial
review of the Commissioner’s final decision pursuant to 42 U.S.C.
section 405(g).
Howard was born on August 23, 1977, and was 32 years old on
the alleged disability onset date of February 1, 2010.
228.)

(Tr. 19,

He completed high school and specialized job training to

obtain a commercial driver’s license (“CDL”).

(Tr. 255.)

His

past relevant work includes employment as a truck driver, material
2

handler,

buffing

machine

operator,

mixing

machine

operator,

grounds keeper, and wire harness assembler. (Tr. 29.) The medical
evidence has been set forth in detail in both the ALJ’s decision,
Howard’s opening brief, and the statement of the case provided in
support of the Commissioner.

There is no reason to repeat it all

in detail here, although pertinent details are discussed below as
needed.1

DISCUSSION
Review of Commissioner’s Decision
This

Court

has

authority

to

review

decision to deny social security benefits.

the

Commissioner’s

42 U.S.C. § 405(g).

“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.”
Id.
a

Substantial evidence is defined as “such relevant evidence as
reasonable

conclusion.”

mind

might

accept

as

adequate

to

support

a

Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.

1420, 28 L. Ed. 2d 842 (1971) (citation omitted).

In determining

whether substantial evidence exists, the Court shall examine the
record in its entirety, but shall not substitute its own opinion
for

the

evidence.

1

ALJ’s

by

reconsidering

the

facts

or

reweighing

the

See Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003).

The Court has borrowed liberally from the parties’ briefs.

3

While a decision denying benefits need not address every piece of
evidence, the ALJ must provide a “logical bridge” between the
evidence and his conclusion that the claimant is not disabled.
Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009).
As a threshold matter, for a claimant to be eligible for DIB
or SSI benefits under the Social Security Act, the claimant must
establish that he is disabled.
1382(a)(1).

42 U.S.C. §§ 423(d)(1)(A) and

To qualify as being disabled, the claimant must be

unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42 U.S.C. § 423(d)(1)(A).

To determine whether a

claimant has satisfied this statutory definition, the ALJ performs
a five-step evaluation:
Step 1:

Is the claimant performing substantially
gainful activity?
If yes, the claim is
disallowed; if no, the inquiry proceeds to
Step 2.

Step 2:

Is the claimant’s impairment or combination
impairments “severe” and expected to last
least twelve months? If not, the claim
disallowed; if yes, the inquiry proceeds
Step 3.

Step 3:

Does the claimant have an impairment or
combination of impairments that meets or
equals the severity of an impairment in the
SSA’s Listing of Impairments, as described in
20 C.F.R. § 404, Subpt. P, App. 1? If yes,

4

of
at
is
to

then claimant is automatically disabled; if
not, then the inquiry proceeds to Step 4.
Step 4:

Is the claimant able to perform his past
relevant work? If yes, the claim is denied;
if no, the inquiry proceeds to Step 5, where
the
burden
of
proof
shifts
to
the
Commissioner.

Step 5:

Is the claimant able to perform any other work
within his residual functional capacity in the
national economy?
If yes, the claim is
denied; if no, the claimant is disabled.

See 20 C.F.R. §§ 404.1520(a)(4)(i)–(v) and 416.920 (a)(4)(i)-(v);
see also Herron v. Shalala, 19 F.3d 329, 333 n.8 (7th Cir. 1994).
In this case, the ALJ found that Howard had not engaged in
substantial gainful activity since February 1, 2010, his alleged
onset date.

(Tr. 21.)

The ALJ found that Howard suffered from

the following severe impairments: diabetes mellitus, hypertension,
obesity, syncopal episodes or seizures of unknown etiology, and
headaches.

(Id.)

However, the ALJ found that Howard did not have

an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R.
Part

404,

Subpart

P,

Appendix

1

(20

C.F.R.

§§

404.1520(d),

404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
The

ALJ

made

the

following

Residual

(Tr. 22.)

Functional

Capacity

(“RFC”) determination:
[T]he claimant has the [RFC] to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except: the
claimant can never climb ladders, ropes, or scaffolds;
the claimant can occasionally climb ramps and stairs,
and balance, stoop, kneel, crouch, and crawl; the
claimant must avoid even moderate exposure to hazards
5

such as dangerous machinery and unprotected heights;
and, the claimant must avoid concentrated exposure to
extreme heat and extreme cold.
(Tr. 23.)

Based upon Howard’s RFC, the ALJ found that Howard is

able to perform his past relevant work as a wire harness assembler
and buffing machine operator as they are generally and normally
performed in the national economy.
Howard

believes

that

the

(Tr. 29-30.)
ALJ

committed

several

errors

requiring reversal when she failed to properly apply the law
regarding the listing of impairments, failed to properly apply the
evidence to her conclusions, improperly weighed evidence and made
her

own

medical

decisions,

did

not

include

all

necessary

restrictions or impairments when assessing the claimant’s RFC, and
did not support her decision with substantial evidence.

Relevant Medical Evidence and Facts
Dr. Thomas Browne
The record indicates that Howard initially saw Dr. Thomas
Browne in January of 2009 after injuring his knee during a fall
off the back of a semi-trailer.

(Tr. 416.)

Treatment options

were limited because Howard had no health insurance, but during an
April visit Dr. Browne prescribed Keflex and Vicodin.

(Tr. 415.)

In September of 2009, Howard fell off the back of a semi-trailer
again and this time injured his shoulder; Dr. Browne referred him
to an orthopedic specialist but recommended that he return to work
6

the following week.
presented

to

Dr.

(Tr. 413-14.)
Browne

breathing, and a cough.

for

In December of 2009, Howard

chest

(Tr. 412.)

pain,

dizziness,

trouble

In February of 2010, Howard

returned to Dr. Browne complaining of episodic dizziness for the
previous two months, and Dr. Browne referred him to Dr. Martin J.
Murphy for evaluation of the dizziness issue.

(Tr. 411.)

Later

that month, Howard returned to Dr. Browne after passing out at
home.

(Tr. 410.)

Dr. Browne instructed Howard to go to the

emergency room, but Howard did not feel he could afford it because
he did not have health insurance.

(Id.)

On March 15 2010, Dr.

Browne diagnosed Howard with syncope, hypertension, and diabetes.
(Tr. 409.)

The treatment notes indicate that Howard had had

“several episodes of syncope” but was unable to be evaluated at
that time due to his lack of insurance; however, once Howard was
approved for Medicaid, he made it clear that he desired to be
evaluated and treated, and Dr. Browne referred him to Dr. Abul W.
Basher.

(Id.)

Howard returned to Dr. Browne on July 19 2010, for a checkup, and Dr. Browne noted that Howard had been suffering from
recurrent syncopal episodes and had been advised by cardiology
that, due to those episodes, he could not work.

(Tr. 404.)

Dr.

Browne issued a note that same day indicating Howard “has recurrent
syncopal

episodes”

cardiologist.

and

is

“unable

I concur with them.”
7

to

work

at

(Tr. 401.)

this

time

per

Dr. Abul W. Basher
In March of 2010, per Dr. Browne’s referral, Howard presented
to Dr. Abul W. Basher, a board certified cardiologist, with
complaints of recurrent syncope (at least twice per week) for the
previous two months and dizzy spells for the previous six months.
(Tr. 445.)

Dr. Basher suspected neurocardiogenic syncope and

ordered a tilt table test.

(Id.)

On March 17, 2010, Howard

underwent a tilt table test at LaPorte Regional Health System, and
the result was negative for neurocardiogenic syncope; however,
Howard did have “symptoms suggestive of Vertigo when the tilt table
was brought to the upright position.

He also remained tachycardic

. . . during most of the tilting.”

(Tr. 422-23.)

Dr. Basher

interpreted the test results and concluded that, although the tilt
table

test

was

negative,

Howard

was

experiencing

recurrent

syncope; Dr. Basher prescribed Toprol and referred Howard to Dr.
Mark A. Dixon, an electrophysiologist, for further evaluation.2
(Tr. 434.)

A few months later at one of Howard’s follow-up

appointments, Dr. Basher opined, “I still personally think this is
neurocardiogenic syncope.

However, I would like to get another

opinion from an Electrophysiologist in Indianapolis.”
In

July

of

2010,

Dr.

Basher

noted

2

that

Howard

(Tr. 430.)

continued

Dr. Basher also recommended that Howard start Lifewatch, a continuous
cardiac monitoring system, but Howard reported that his cell phone did not
properly charge so that monitoring was not undertaken. (Tr. 434.)

8

to

experience episodes of syncope as well as numbness of the left
foot and headaches.

(Tr. 427.)

He explained that Howard was not

able to get cardiac monitoring done due to coverage issues, and he
referred Howard back to Dr. Dixon for possible loop recorder
placement.

(Id.)

Dr. Mark A. Dixon
Dr. Dixon, the Medical Director of Electrophyslology Services
at the LaPorte Regional Health System, began seeing Howard in April
of 2010 at the request of Dr. Basher for syncope of undetermined
origin.
of

(Tr. 463.)

syncope

at

At that time, Howard reported having episodes

least

twice

weekly.

(Tr.

464.)

A

new

transtelephonic monitor was ordered after Howard’s first office
visit, but the device reportedly did not work, and he was advised
to return it.

(Id.)

Dr. Dixon did not actively participate in

Howard’s care again until July of 2010, when his office received
a

call

regarding

implanted.

(Id.)

Howard’s

request

to

have

a

loop

recorder

On August 4, 2010, Dr. Dixon performed a

successful loop recorder implantation procedure.

(Tr. 394-96.)

Howard was seen by Dr. Dixon on August 13, 2010, for a wound check,
and he was instructed to call the office if he experienced a
syncopal episode so that the loop recorder could be evaluated.
(Tr. 464.)

In a letter sent to Howard’s attorney dated October 4,

2010, Dr. Dixon noted that he had “received no notice of any
9

further syncopal episodes.”

(Id.)

Dr. Dixon requested that

Howard’s other physicians make a confirmation of disability since
he had received no further notice of additional syncopal episodes.
(Id.)
Approximately one month later, Howard saw Dr. Dixon again
after Howard had reported that he had passed out the day before
and that it was “happening more often.”

(Tr. 462.)

Dr. Dixon

noted that the loop recorder had shown no arrhythmic etiology, but
he suspected a type of vasodepressor disorder and referred Howard
to a syncope center for further evaluation and testing.

(Id.)

Dr. Dixon stated, “[i]n light of recurrent syncopal episodes with
no diagnosis, the patient should not drive [or] operate machinery.”
(Id.) On November 22, 2010, Dr. Dixon drafted a letter to Howard’s
attorney indicating that it was his “opinion that in light of
recurrent syncopal episodes with no diagnosis, the patient should
not drive or operate machinery until a definitive diagnosis can be
made.

Until that diagnosis can be made, a return to his current

line of work should not occur.”

(Tr. 463.)

Dr. Dixon examined Howard on March 15, 2011.

(Tr. 461.)

Howard reported dizziness, syncope, and seizures almost daily, and
Dr.

Dixon’s

impressions

were

that

Howard

suffered

from

“(1)

vasovagal syncope (most likely), (2) no arrhythmias, (3) ‘seizure
disorder,’
pain.”

(4)

peripheral

(Tr. 461.)

neuropathy,

[and]

(5)

chronic

back

Dr. Dixon indicated that he concurred with Dr.
10

Kundi in that the syncope was not arrhythmic but could still be
vasovagal.

(Id.)

Dr. Samiullah K. Kundi
In November of 2010, per a referral from Dr. Browne, Howard
began seeing Dr. Samiullah K. Kundi, a neurologist with Indiana
Neurology Specialty Care, for evaluation of his syncopal episodes.
(Tr.

500.)

Howard

reported

to

Dr.

Kundi

that

he

had

been

experiencing the episodes for the past year and that the current
frequency of the episodes was about two to three times a day.
(Id.)

He described the episodes to Dr. Kundi as “starting with

light-headedness, sweating with some vertigo and then loss of
consciousness; lasting from 20 seconds to 1 minute.”

(Id.)

He

reported having “post-episode confusion and exhaustion for about
2 hours.”

(Id.)

Howard also reported having headaches for the

past sixteen years following a car accident in which he lost
consciousness.

(Id.)

After an examination with mainly normal

findings, Dr. Kundi’s impressions were that Howard’s episodes
appeared to be consistent with syncope.

(Tr. 502.)

He noted that

there was a “possibility of superimposed posttraumatic complex
partial seizures” considering the “post-episode confusion and
exhaustion as well as reported history of suffering during the
episodes.”

(Id.)

Dr. Kundi ordered an MRI, a CT, an EEG, and

11

considered EMG/nerve conduction studies depending on the results
of the other testing.
During

a

(Id.)

January

2011

follow-up

visit,

Howard

reported

continued passing out episodes almost daily (with a frequency of
up to three times a day) and daily headaches; Dr. Kundi remarked
that Howard had not been able to have an MRI done due to the loop
recorder,

but

unremarkable.

he

noted

that

(Tr. 497-99.)

both

the

EEG

and

the

CT

were

The report was roughly the same in

February, and Dr. Kundi’s impression after considering the testing
done to date was that “[t]he spectrum appears to be more consistent
with

neurocardiogenic

posttraumatic

complex

syncope”
partial

with

a

seizures.”

“possibility
(Tr.

494-96.)

of
He

scheduled Howard for EMG/nerve conduction studies and recommended
getting

a

second

Indianapolis.

opinion

(Tr. 496.)

from

an

electrophysiologist

in

In March of 2011, Dr. Kundi interpreted

the results of the electrodiagnostic nerve conduction study as
being

“consistent

with

sensorimotor

peripheral

moderate in intensity and axonal in etiology.”

neuropathy,

(Tr. 485.)

He

noted that there was “no electrodiagnostic evidence of lumbosacral
radiculopathy

or

compression

peroneal

“[c]linical correlation [was] required.”

neuropathy”
(Id.)

and

that

In April and May

of 2011, Dr. Kundi noted that Howard’s workup thus far had been
unremarkable; however, he indicated that, based on Howard’s daily
episodes of passing out, the “possibility of convulsive syncope
12

[could not] be excluded” nor could the “possibility of superimposed
diabetic autonomic neuropathy . . . with resultant syncope.”

(Tr.

488-93.)
In addition to the office visits with Howard, Dr. Kundi filled
out a Seizure Residual Functional Capacity Questionnaire dated
January 25, 2011. (Tr. 478-82.) In it, Dr. Kundi diagnosed Howard
with syncope, chronic daily headaches, and suspected seizures.
(Tr. 478.)

Dr. Kundi opined that Howard’s seizures were likely to

disrupt his co-workers and that he would need more supervision at
work than an unimpaired worker.

(Tr. 480.)

He also opined that

Howard could not work at heights, work with power machines, operate
a motor vehicle, or take a bus alone.

(Id.)

Finally, Dr. Kundi

noted that Howard would need to take unscheduled breaks of a
variable nature during an eight hour work day, would likely be
absent from work more than four days a month, and was incapable of
even “low stress” jobs.

(Tr. 481.)

Dr. Martin J. Murphy
In April of 2010, Dr. Martin J. Murphy, a physician board
certified

in

psychiatry,

neurology,

and

electrodiagnostic

medicine, evaluated Howard at the request of Dr. Basher.
321-22.)

(Tr.

He noted that Howard’s neurological examination was “not

remarkable” and that the history was “most suggestive of episodes

13

of syncope associated with at times valsalva maneuver suggestive
of vasovagal episodes.”

(Tr. 322.)

Dr. Mahmoud Yassin Kassab
In May of 2010, at the request of the state agency, Howard
was examined by Dr. Mahmoud Yassin Kassab.

(Tr. 329-332.)

Howard

reported that he began having episodes of syncope in January of
2010 when he “passed out and dropped to the floor for 36 seconds
to 1 minute” which was followed by confusion; these episodes
happened several times a week.
examination

results

were

(Tr. 329.)

normal,

but

he

Dr. Kassab’s clinical
was

left

with

the

impression that Howard presented with symptoms of syncope or
seizure; Dr. Kassab recommended doing EAG for further assessment,
and MRI of the brain, and a psychiatric evaluation.

(Tr. 329-30.)

Dr. Joelle J. Larsen
Dr. Joelle J. Larsen performed a consultative psychiatric
examination of Howard in May of 2010.

(Tr. 333-45.)

According to

Dr. Larsen, Howard had a coexisting non-mental impairment that
required referral to another medical specialty.

(Tr. 333.)

She

noted that Howard alleged only physical impairments, had no social
problems, had normal memory and concentration problems with the
exception of when he experienced black outs, exhibited no signs of
depression or anxiety, and was credible.
14

(Tr. 345.)

Dr. J.V. Corcoran
In June of 2010, a state agency reviewing physician, Dr. J.V.
Corcoran, evaluated the medical records that were available to him
at

that

time3

and

completed

assessment of Howard.
occasionally

lift

a

residual

(Tr. 347-54.)

fifty

pounds,

functional

capacity

He opined that Howard could
frequently

lift

twenty-five

pounds, stand/walk for about six hours in an eight hour workday,
and sit about six hours in an eight hour workday.

(Tr. 348.)

The

evidence he cited in support of that conclusion included “syncopal
episode, non-cardiac or neurologic in origin per TP records.”
(Id.)

Dr. Corcoran noted that Howard’s symptoms were “partially

credible, etiology unknown for syncopal episodes.”

(Tr. 352.)

In

July of 2010, Dr. Richard Wenzler, another state agency reviewing
physician, evaluated the same evidence and agreed with the prior
denial decision, noting that the impairment had “not been shown to
have met durational issues.”

(Tr. 355.)

Seizure Log
Howard’s wife, Rhianna, compiled a seizure log for the period
of May 2011 through early August of 2011.

3

(Tr. 504-510.)

In it,

Howard notes that only exhibits 1F through 3F were available at the time
of his report. (DE #17, p. 5.)

15

she noted the dates and times of Howard’s seizures and pass outs.
(Id.)

SSA Hearing Testimony
At the SSA hearing held on August 4, 2011, Howard testified
that he “pass[ed] out, you know, it might not be every day, but
most of the times it’s pretty much every day I have seizures.”
(Tr. 46.)

He indicated that his wife had to stay with him “pretty

much most of the time.”

(Tr. 49.)

When asked about his seizures,

Howard indicated the following:
I really can’t tell much about it. I usually pass out,
and then I know after I come to, my whole body it just
hurts – it’s really, you know, real tense and sore. So,
it takes – sometimes, you know, I can come out of them
within – when I come to, it only takes about an hour.
Sometimes it’s longer until I can actually start, you
know, recognizing things.
(Tr. 58.)

Howard testified that Dr. Kundi had seen him experience

a seizure when he was in his office.
that he had chronic headaches.

(Id.)

He also testified

(Tr. 58-59.)

Rhianna testified that she witnessed Howard’s seizures and
described them as follows:
He gets a glazed look in his eyes before he passes out
and he’s kind of – and he’ll just drop to the floor and
he’s out for – I don’t know, 20 or 30 seconds. And then
he starts to come to but he’s not there yet. Then he
starts the tremors –you’ll see his hand and fingers will
start to shake and then he starts to convulse. His whole
body goes stiff and he’ll do that for a few seconds and
he’s done with the seizure and then I have to wake him
up, which it takes me about sometimes like five minutes
16

to get him to talk to me, because I’m like shaking him
– wake up, wake up.
(Tr. 72-73.)

When asked to differentiate between the “seizures”

and “passing out” as noted on the logs she kept with the help of
her daughter, she stated, “Sometimes he’ll just pass out.

If he’s

sitting on the couch – I don’t know why but he’ll just be out for
a few seconds . . . completely, like you just knocked him out. .
. .”

(Tr. 73.)

When asked how long it took him to get back to

normal after such an episode, she indicated that she had to shake
him and stated, “Sometimes hours because he’s like – he acts like
he’s drunk, he’s all – not right.

His speech is slurred at first,

then he’s real groggy the rest of the day.”

(Tr. 73-74.)

ALJ’s Evaluation of Claimant’s Syncope or Seizure Disorder
The ALJ considered listings 11.02 and 11.034 and concluded
that

Howard’s

severe

impairment,

namely

syncopal

episodes

or

4

(1) 11.02 Epilepsy - convulsive epilepsy, (grand mal or psychomotor),
documented by detailed description of a typical seizure pattern, including
all associated phenomena; occurring more frequently than once a month, in
spite of at least 3 months of prescribed treatment. With:
A. Daytime episodes (loss of consciousness and convulsive seizures) or
B. Nocturnal episodes manifesting residuals which interfere
significantly with activity during the day.
20 C.F.R. Pt. 404, Subpt.P, App. 1, § 11.02.
(2) 11.03 Epilepsy - nonconvulsive epilepsy (petit mal, psychomotor, or
focal), documented by detailed description of a typical seizure pattern,
including all associated phenomena; occurring more frequently than once
weekly in spite of at least 3 months of prescribed treatment. With alteration
of awareness or loss of consciousness and transient postictal manifestations
of unconventional behavior or significant interference with activity during
the day.

17

seizures

of

unknown

etiology,

does

not

satisfy

listing-level

criteria because:
[t]here is insufficient evidence in the record of the
frequency alleged by claimant, and emergency room
treatment is generally required for breakthrough
seizures.
The record shows no medically documented
seizures that occurred at listing-level frequency, or
even at all.
Per testimony, the claimant has more
seizures than are medically documented. However, there
is no way to confirm this, and the overall credibility
of the witnesses at the hearing was not good.
(Tr. 22.)

According to Howard, the ALJ erred by improperly

evaluating the evidence related to the frequency of the seizures
and by making patently wrong credibility determinations.
Howard begins by arguing that the ALJ’s decision is flawed
because it does not adequately reference any evidence in the record
that contradicts the alleged frequency of his seizures.

During

the hearing, Howard testified that he had seizures “pretty much
every day.”

He indicated that he usually passes out, and when he

comes to he is sore and has trouble recognizing things for a period
of time afterwards.

Rhianna testified consistently, stating that

that she had witnessed many of his seizures; she described them in
detail including tremors, shaking, convulsing, and stiffness along
with slurred speech and grogginess afterwards.

The seizure log,

compiled by Rhianna and their daughter, records the times and dates
of Howard’s seizures and/or “pass outs” throughout the months of

20 C.F.R. Pt. 404, Subpt.P, App. 1, § 11.03.

18

May, June, and July of 2011.

There are twenty-five recorded

seizures and/or pass outs recorded in May, twenty-three in June,
and fourteen in July.

The log for August of 2011 is only partially

completed but records two seizures and/or pass outs within the
first three days of the month.5
The medical documents regarding the frequency of Howard’s
seizures indicate that he reported seizures to his physicians
beginning in February of 2010 with worsening frequency to and
through May of 2011.

For example, Howard reported an episode of

passing out at home to Dr. Browne in February of 2010, several
episodes of syncope in March of 2010, and recurrent syncopal
episodes in July of 2010.

When Howard first began seeing Dr.

Basher in March of 2010, he reported weekly episodes of syncope
and continued syncope throughout July of 2010.

During his first

visit with Dr. Dixon in April of 2010, Howard reported twice weekly
episodes of syncope, and during November of 2010, he reported that
it was “happening more often.”

In March of 2011, he reported

dizziness, syncope, and seizures almost daily.

As to Dr. Kundi,

Howard reported daily syncopal episodes during his first visit in

5

While the Commissioner argues that the seizure log is only Howard’s
“subjective, uncorroborated allegations,” the Court agrees with Howard that the
seizure log is not subjective; rather, it is other objective evidence compiled
by a third party witness to those seizures that was then further elaborated
upon by Rhianna during the hearing. See 20 C.F.R. § 404.1528(b); 20 C.F.R. §
404.1529(a); see also 20 C.F.R. Pt. 404, Subpt.P, App. 1, § 11.00 (“Testimony
of persons other than the claimant is essential for description of type and
frequency of seizures if professional observation is not available.”).

19

November of 2010 and throughout January, February, March, April
and May of 2011.
Although the ALJ found that Howard’s syncopal episodes or
seizures

of

unknown

etiology

were

a

severe

impairment,

she

concluded there was insufficient evidence in the record with regard
to

the

frequency

criteria.

of

those

seizures

to

satisfy

listing-level

She took specific issue with the fact that there was no

emergency room treatment, no medically documented seizures, and
that no one but Howard’s family members had witnessed a syncopal
episode.

However, as Howard points out, there is no requirement

that medical sources must witness seizure activity for listing
frequency to be established, and a lack of emergency room visits
does not necessarily correlate to frequency.

See

Boiles v.

Barnhart, 395 F.3d 421, 425-26 (7th Cir. 2005).
Similarly, although the Commissioner argues that “not one
diagnostic study has confirmed that [Howard] is truly having
seizures,” it is the frequency of those seizures that is at issue,
not their existence.

The ALJ did note that diagnostic tests such

as the tilt table test, EEG, EKG, and loop recorder cardiac monitor
revealed negative or unremarkable findings; yet, she failed to
adequately explain why those findings were inconsistent with the
alleged

frequency

especially

of

problematic

Howard’s
given

reported

the

fact

seizures.

that

Howard’s

This

is

treating

physicians continued to diagnose Howard with syncope even after
20

the results of those tests were known.6

See e.g. Boiles, 395 F.3d

at 425 (remanding, in part, because the ALJ did not explain the
relevance of the lack of EEG evidence for his finding that the
seizures were not severe enough to equal a listing).

If the ALJ

believed the frequency of Howard’s seizures was unclear or in
question, she was required to solicit additional evidence on the
issue.

Boiles, 395 F.3d at 426 (citing Smith v. Apfel, 231 F.3d

433, 437-38 (7th Cir. 2000)).

When a medical opinion is not

inconsistent with past treatment, an ALJ can rectify the problem
by gathering more information to flesh out that opinion.

Barnett

v. Barnhart, 381 F.3d 664, 669 (7th Cir. 2004) (“Thus, the ALJ
should have contacted [the doctor] for clarification of her medical
opinions, asking for more detail regarding the frequency of [the

6

For example, in July of 2010 Dr. Browne indicated that Howard had
“recurrent syncopal episodes” and was “unable to work at this time.” Despite
the negative tilt table tests in March of 2010, Dr. Basher diagnosed Howard
with recurrent syncope, and several months later he indicated that he still
personally believed that Howard had neurocardiogenic syncope. In November of
2010, Dr. Dixon noted that the loop recorder had shown no arrhythmic etiology
but indicated that he suspected a type of vasodepressor disorder; later that
month he drafted a letter to Howard’s attorney stating that in light of
Howard’s recurrent syncopal episodes with no diagnosis, Howard should not
drive, operate machinery, or return to work until a definitive diagnosis
could be made. In March of 2011, Dr. Dixon’s impressions were that Howard
most likely suffered from vasovagal syncope, and he stated that he concurred
with Dr. Kundi that the syncope was not arrhythmic but could still be
vasovagal. In November of 2010, Dr. Kundi’s impression after an examination
with mainly normal findings was that Howard’s episodes were consistent with
syncope. After he ordered and evaluated further testing, Dr. Kundi opined in
February of 2011 that, considering the testing that had been done to date,
the “spectrum appear[ed] to be more consistent with neurocardiogenic syncope”
with a “possibility of posttraumatic complex partial seizures.” In April and
May of 2011, after further testing and evaluation, Dr. Kundi noted that the
“possibility of convulsive syncope [could not] be excluded” not could the
possibility of superimposed diabetic autonomic neuropathy . . . with
resultant syncope.”

21

claimant’s] seizures or for updated medical records that supported
[the doctor’s] opinion that [the claimant] was disabled.”).

Here,

the ALJ simply stated that she gave little weight to the treating
source

opinions

from

Howard’s

physicians

because

they

were

“apparently based primarily on [Howard’s] subjective reports that
are themselves not fully credible, because no diagnosis for [his]
syncope has been established.”

She neither gathered additional

information nor asked for clarification, and the result is that
she failed to determine how many seizures she believed Howard was
actually experiencing.

See Boiles, 395 F.3d at 427 (remanding for

further proceedings, in part, because the ALJ made no finding about
the frequency of the claimant’s seizures and noting that the record
had to be more developed on that point).
Furthermore, while Howard’s wife, Rhianna, provided a seizure
log and testified in detail as to the manner and frequency of the
seizures

she

and

her

daughter

personally

witnessed,

the

ALJ

discounted Rhianna’s testimony because the “overall credibility of
the witnesses at the hearing was not good.”

In doing so, the ALJ

failed to elaborate on Rhianna’s lack of credibility other than to
note that her descriptions of the seizures seemed generic, that
she did not explain why Howard had never required emergency room
care, and that she did not seem to be alarmed by the frequency of
the seizures.

Putting aside the issue of emergency room care (as

22

it is not required),7 the Court finds that the ALJ’s stated reasons
given to discredit Rhianna’s testimony are based on a narrow view
of the record and are patently wrong.

Although the ALJ classified

Rhianna’s descriptions as “generic,” the record reflects that she
testified in detailed (albeit not medically sophisticated) terms
with regard to the physical and mental effects both during and
after Howard’s episodes.

The fact that Rhianna “did not seem to

be alarmed” by the daily seizures is not an indication that she
was

necessarily

lying

about

their

frequency;

rather,

it

is

consistent with the fact that the seizures had become a matter of
routine in the Howard household.
ALJ

discounted

Rhianna’s

Finally, to the extent that the

testimony

simply

because

it

tracked

Howard’s own testimony, that credibility determination is patently
wrong as well.

See Barnett, 381 F.3d at 670.

While the ALJ stated

she believed the credibility of Howard and Rhianna was “not good”
regarding the frequency of the seizures, she never “affirmatively
determined” the number of seizures she believed Howard experienced
so it is not clear whether Howard’s impairment meets or equals the
listing despite the alleged lack of credibility.

Id.

Ultimately, “[a]lthough a claimant has the burden to prove
disability, the ALJ has a duty to develop a full and fair record.
Failure to fulfill this obligation is ‘good cause’ to remand for

7

See Boiles, 395 F.3d at 425-26.

23

gathering

of

additional

evidence.”

Smith,

231

F.3d

because

the

ALJ

at

437

did

not

(internal citation omitted).8

Howard’s Remaining Arguments
Having

found

remand

necessary

adequately support her decision that Howard’s condition was not
equal in severity to a listed impairment, the Court finds no
compelling
detail.

reason

to

address

Howard’s

remaining

arguments

in

The Court makes no findings regarding the merits of

8

The Court notes that on June 10, 2016, Howard filed a motion to supplement
his reply brief with additional information regarding the actions of the SSA
in a subsequent application made by Howard. (DE #25.) The government did
not file a response to the motion to supplement. On September 27, 2016, this
Court granted the motion to supplement, stating that it would consider the
information as a supplement to Howard’s reply, but took no position as to the
ultimate result of that consideration on the pending review. (DE #26.) As
pointed out by Howard, there is a circuit split in how district courts are
directed to treat a subsequent finding of disability by the SSA. In Allen v.
Comm’r of Soc. Sec., 561 F.3d 646, 652-53 (6th Cir. 2009), the Sixth Circuit
Court of Appeals held that a subsequent favorable decision finding a claimant
disabled the day after the initial decision denying benefits did not warrant
a sentence six remand because the decision itself standing alone, as opposed
to the submission of new and material substantive evidence, could not be used
to change the outcome of the prior proceeding. On the other hand, in a
similar situation, the Ninth Circuit Court of Appeals held that because of
the “‘reasonable possibility’ that the subsequent grant of benefits was based
on new evidence not considered by the ALJ as part of the first application,”
remand pursuant to sentence six was appropriate for further consideration of
the factual issues based on the existence of the later favorable decision.
Luna v. Astrue, 623 F.3d 1032, 1034-35 (9th Cir. 2010). Most recently, the
Eleventh Circuit Court of Appeals addressed the situation and sided with the
Sixth Circuit, noting that “[a] decision is not evidence any more than
evidence is a decision.” Hunter v. Soc. Sec. Admin. Comm’r, 808 F.3d 818,
822 (11th Cir. 2015) (“the mere existence of a later favorable decision by
one ALJ does not undermine the validity of another ALJ’s earlier unfavorable
decision or the factfindings upon which it was premised”). This Court agrees
with the Sixth and Eleventh Circuits and finds that, in this case, Howard did
not meet his burden of showing that remand is proper pursuant to sentence six
based on the mere existence of the subsequent favorable decision. See Allen,
561 F.3d at 653. However, the Court takes no position on any possible
substantive evidence that may be presented upon remand consistent with the
rest of this opinion.

24

Howard’s claims.

On remand, the ALJ should consider all of the

evidence in the record, and, if necessary, give the parties the
opportunity to expand the record so that the ALJ may build a
logical bridge between the evidence and her conclusions.

CONCLUSION
For

the

reasons

set

forth

above,

the

decision

of

the

Commissioner is REVERSED and this case is REMANDED to the Social
Security Administration for further proceedings consistent with
this opinion pursuant to sentence four of 42 U.S.C. section 405(g).

DATED:

January 23, 2017

/s/RUDY LOZANO, Judge
United States District Court

25