Lowry v. Colvin

Filing 21

MEMORANDUM AND ORDER re: 20 SOCIAL SECURITY REPLY BRIEF filed by Plaintiff Gregory Lowry, 14 SOCIAL SECURITY BRIEF filed by Plaintiff Gregory Lowry, 19 SOCIAL SECURITY CROSS BRIEF re 14 SOCIAL SECURITY BRIEF filed by Defendant Carolyn W. Colvin. IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED to the Commissioner for further proceedings. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Terry I. Adelman on 3/13/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

GREGORY LOWRY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 1:13CV145 TIA

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying Gregory Lowry’s application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et
seq. All matters are pending before the undersigned United States Magistrate
Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). Because the
Commissioner’s final decision is not supported by substantial evidence on the
record as a whole, it is reversed.
I. Procedural History
In December 1998, an administrative law judge (ALJ) with the Social
Security Administration (SSA) found plaintiff to be disabled and entitled to
disability insurance benefits (DIB) as of May 21, 1997, because of the effects of

his severe impairments: chronic hepatitis C and seizure disorder. The ALJ noted
the record to show that plaintiff began experiencing seizures in July 1997, which
was within two months of sustaining a head injury from a motorcycle accident.
(Tr. 195-203.) In January 2008, the SSA determined plaintiff’s disability to have
ceased as of January 15, 2008, due to medical improvement. (Tr. 209, 228-31.)
Plaintiff reapplied for DIB on August 20, 2010, claiming that he became
disabled on January 1, 2009, because of head injury and complications from the
motorcycle accident. (Tr. 311-17, 388.) On December 20, 2010, the SSA denied
plaintiff’s claim for benefits. (Tr. 210-11, 235-39.) Upon plaintiff’s request, a
hearing was held before an ALJ on November 14, 2011, at which plaintiff, his
friend, and a vocational expert testified. (Tr. 698-740.) A supplemental hearing
was held on July 11, 2012, at which plaintiff, a medical expert, and a vocational
expert testified. (Tr. 741-70.) On August 2, 2012, the ALJ issued a decision
denying plaintiff’s claim for benefits finding that plaintiff could perform his past
relevant work as a security guard and, alternatively, could perform other work as it
exists in significant numbers in the national economy. (Tr. 21-31.) On August 3,
2013, the Appeals Council denied plaintiff’s request for review of the ALJ's
decision. (Tr. 7-11.) The ALJ's determination thus stands as the final decision of
the Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, plaintiff claims that the ALJ’s
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decision is not supported by substantial evidence on the record as a whole.
Plaintiff specifically argues that the ALJ failed to undergo the required analysis
when determining whether he suffered a severe mental impairment and thus erred
in finding that his mental impairment was not severe. Plaintiff also contends that
the ALJ’s residual functional capacity (RFC) assessment is flawed inasmuch as the
ALJ failed to include limitations associated with his severe impairment of essential
tremor. Plaintiff requests that the final decision be reversed and that the matter be
remanded for further consideration. For the reasons that follow, the matter will be
remanded for further proceedings.
II. Testimonial Evidence Before the ALJ
A.

Hearing Held on November 14, 2011
1.

Plaintiff’s Testimony

At the hearing on November 14, 2011, plaintiff testified in response to
questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was fifty-two years of age. Plaintiff is
divorced. He has five children ranging in age from seventeen to twenty-six years.
Plaintiff lives with his ex-wife’s brother in a basement apartment. (Tr. 704-05.)
Plaintiff has a business degree from Metro Business College. He has no income
and no insurance but receives food stamps. Plaintiff previously received
unemployment benefits, having last received them two to three years prior to the
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hearing. (Tr. 706-07.)
Plaintiff’s Work History Report shows that plaintiff worked as a concrete
worker from 2005 to 2007. In 2007, plaintiff also worked as a line worker in a
factory. In 2008, plaintiff was a trainer in the teleservice industry. In 2008 and
2009, plaintiff again worked as a line worker in a factory. Plaintiff worked as a
security guard at a university for one event in 2009. In 2010, plaintiff worked
again as a line worker. (Tr. 410, 710.) Plaintiff testified that he left this work
because of seizures. Plaintiff testified that throughout this employment history, he
applied for and found work but was unable to keep jobs because of recurring
seizures. (Tr. 708.)
Plaintiff testified that he was involved in a motorcycle accident many years
ago and injured his head. Plaintiff was in the hospital for three weeks after the
accident and began to experience seizures thereafter. (Tr. 719.) Plaintiff takes
medication for his seizures, but they are not yet controlled. Plaintiff testified that
his friend, Annie, manages the medication for him. (Tr. 716.) Plaintiff testified
that his doctor has advised him not to climb ladders or go near water and that he
must avoid bathing unattended and avoid driving for six months after experiencing
a seizure. Plaintiff has not driven since 2009 or 2010. (Tr. 722.) Plaintiff testified
that his most recent seizure occurred the previous day, and that he had a grand mal
seizure about one and a half weeks prior. (Tr. 716.)
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Plaintiff testified that he has grand mal seizures every one to two months
that cause him to shake violently and bite his tongue. Plaintiff testified that he is
“completely out” during these episodes. The seizures last about twenty to thirty
minutes and it takes plaintiff three to four days to recover because of the resulting
muscle fatigue. (Tr. 724.) Plaintiff testified that he also has milder seizures that
cause him to stare into space for about fifteen to twenty minutes. Plaintiff is not
aware of his surroundings during these episodes. Plaintiff testified that he is
tremendously limited because of the unpredictable nature of his seizures. (Tr. 72526.) Plaintiff testified that he had an episode in 2010 during which he experienced
a series of seizures and wandered into a park where he then lived for a few weeks
until a friend found him. Plaintiff testified that he has no recollection of this event
but was told by others of its occurrence. (Tr. 723.)
Plaintiff testified that he also has tremors in his hands and legs for which he
takes medication. Plaintiff is able to pick up things, use eating utensils, zip and
button his clothes, put on shoes and socks, and use a doorknob, but he has
difficulty using a keyboard. (Tr. 717.)
Plaintiff testified that he feels down and has problems with depression. He
does not have crying spells. Plaintiff also has anxiety for which he takes Klonopin.
Plaintiff testified that he used to have anxiety attacks frequently but that the
medication seems to help his condition. Plaintiff also takes Ambien, which helps
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him with sleep. Plaintiff does not see a psychologist, psychiatrist, or counselor for
his mental conditions. (Tr. 718-20.)
Plaintiff testified that his medications constantly make him feel sick to his
stomach and that his doctor adjusts his medication to try to help with that effect.
(Tr. 718.) Plaintiff testified that his nausea might also be from hepatitis C, for
which he used to take chemotherapy-type medication. Plaintiff testified that he no
longer takes the medication because he does not have the income to get his levels
checked. (Tr. 723-24.)
As to his exertional abilities, plaintiff testified that he has no difficulty
sitting. He can stand for about forty-five minutes. Plaintiff testified that he could
not estimate what distance he could walk inasmuch as he does not walk outside
because of the possibility of seizure activity. Plaintiff has some difficulty climbing
steps. Plaintiff testified that he could probably lift sixty to seventy pounds. (Tr.
721-22.)
As to his daily activities, plaintiff testified that he gets up in the morning
around 9:00 or 9:30 a.m. Plaintiff then travels to a nursing home where he spends
four or five hours visiting with a friend’s mother who has had a stroke. An
acquaintance drives him to the nursing home. (Tr. 711.) Plaintiff has a driver’s
license but does not drive because of seizures. (Tr. 706.) Plaintiff testified that
after returning home, he reads or talks with his children who may come to visit
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him. Plaintiff testified that he must go back and reread things that he already read
because of poor concentration and memory. Plaintiff is able to do housework, such
as laundry, changing the sheets on his bed, and loading the dishwasher, but he does
not cook or prepare meals because of seizures. Plaintiff receives help with
household chores. Plaintiff goes grocery shopping but is accompanied by
someone. Plaintiff helps carry the groceries into the house. Plaintiff testified that
he has friends and is social but cannot get around much. Plaintiff is active in
church but does not participate in any clubs, organizations, or volunteer activities.
(Tr. 712-13, 720.) Plaintiff does no yard work and cannot do simple household or
car repairs. Plaintiff testified that he enjoys fishing. Plaintiff testified that he
needs assistance with bathing and must have someone nearby when he showers.
Plaintiff cannot take baths because of the risk of drowning. (Tr. 715.)
2.

Testimony of Anne Finnegan

Anne Finnegan, plaintiff’s friend, testified at the hearing in response to
questions posed by the ALJ and counsel.
Ms. Finnegan testified that she has known plaintiff for about twenty years
and has assisted him with his medical conditions on a daily basis since May 2010,
which was when plaintiff was found in the park. Ms. Finnegan testified that she
offered to take plaintiff in at that time to help him because he was so sick. Ms.
Finnegan testified that plaintiff was admitted to the hospital for about a week after
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this episode. Ms. Finnegan helped plaintiff find an apartment, but he was evicted
after his disability benefits ended. (Tr. 727-28.)
Ms. Finnegan testified that she thinks plaintiff’s condition has worsened
since May 2010 despite his taking medication. Ms. Finnegan checks on plaintiff
every day to be sure he has taken his medication and has eaten. Ms. Finnegan
testified that plaintiff cannot remember on many occasions whether he has eaten.
Ms. Finnegan testified that plaintiff has difficulty with his day-to-day memory and
sometimes cannot remember things that occurred five minutes ago. Ms. Finnegan
also testified that plaintiff repeats himself multiple times in response to questions
she asks him. (Tr. 730-31.)
Ms. Finnegan testified that she has never witnessed plaintiff having a grand
mal seizure but has seen him afterward with bruising on his face. Ms. Finnegan
testified that plaintiff is very lethargic and has diarrhea during the days after having
a seizure and that such post-seizure effects may last up to a week. Ms. Finnegan
testified that she thought she witnessed plaintiff have a small seizure the previous
day during which time his eyes were dilated and he was acting strange. (Tr. 729.)
Ms. Finnegan testified that plaintiff does not drive and she does all of his
driving for him. Ms. Finnegan drove plaintiff to the hearing. (Tr. 729.)
Ms. Finnegan has attended plaintiff’s doctors’ appointments with him and is
aware of the doctors’ instruction for plaintiff not to bathe or shower without
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anyone present. Ms. Finnegan testified that plaintiff cannot do anything for
himself without someone present. Ms. Finnegan has told plaintiff not to walk
outside by himself because of not knowing when a seizure will occur. (Tr. 730.)
3.

Testimony of Vocational Expert

Dr. John McGowan, a vocational expert, testified at the hearing in response
to questions posed by the ALJ and counsel.
Dr. McGowan classified plaintiff’s past work as a construction worker as
very heavy with an SVP level of 2; and machine operator as medium and semiskilled. The ALJ instructed Dr. McGowan not to consider plaintiff’s past work as
a security guard inasmuch as plaintiff did not perform the work long enough. Dr.
McGowan also determined not to testify regarding plaintiff’s past work as a
computer trainer inasmuch as the record showed plaintiff to have earned no income
from the job. (Tr. 735-36.)
The ALJ asked Dr. McGowan to consider a fifty-two-year-old individual
with an education beyond high school and plaintiff’s past relevant work. The ALJ
asked Dr. McGowan to assume the individual could perform light work defined as
lifting, carrying, pushing, and pulling twenty pounds occasionally and ten pounds
frequently; and being able to sit, stand, and walk each for six hours out of an eighthour workday. The ALJ asked Dr. McGowan to further assume that the person
could not be exposed to ladders, ropes, scaffolds, moving machinery, or
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unprotected heights. Dr. McGowan testified that such a person could not perform
any of plaintiff’s past work but could perform other work such as small parts
assembler, of which 8,600 such jobs exist in the State of Missouri and 345,000
nationally; and plastic products inspector/hand packager, of which 1,730 such jobs
exist in the State of Missouri and 75,650 nationally. (Tr. 736-37.)
Counsel asked Dr. McGowan to consider the person to have uncontrollable
tremors that cause his hands to shake for periods of time. Dr. McGowan testified
that such a person could not perform the jobs he previously described. Dr.
McGowan testified that even if the tremors did not occur every day, their
uncontrollable nature would prevent the performance of such work. (Tr. 738-39.)
B.

Hearing Held on July 11, 2012
1.

Plaintiff’s Testimony

Plaintiff testified at the hearing on July 11, 2012, in response to questions
posed by counsel.
Plaintiff testified that he has suffered from a seizure disorder for over twenty
years and a tremor disorder since he was seventeen or eighteen years of age.
Plaintiff testified that both conditions have worsened over time. (Tr. 745.)
Plaintiff testified that he has injured himself during his seizures because he
is “out cold” and falls to the floor. (Tr. 747-48.) Plaintiff testified that his body
flops like a fish out of water and he usually urinates on himself during a seizure.
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Plaintiff testified that his seizures have also caused him to experience memory loss.
(Tr. 749-50.) Plaintiff testified that an additional medication has been added to his
treatment regimen for seizures and that he has not had a seizure for about three or
three and a half months. (Tr. 746-47.)
Plaintiff testified that he is not allowed to drive and must do everything with
assistance, including bathing and cooking. Plaintiff testified that he was let go
from previous jobs because of his seizure activity. (Tr. 748-49.)
2.

Testimony of Medical Expert

Dr. Mark Farber, an internist who is board certified in pulmonary diseases,
testified at the hearing in response to questions posed by the ALJ and counsel.
Dr. Farber testified that the medical record showed plaintiff to have a history
of hepatitis C for which he previously received treatment. Plaintiff was noted to
also have essential tremor since age seventeen or eighteen, which was currently
well controlled on Primidone and did not interfere with his daily activities. Dr.
Farber testified that the record also showed plaintiff to have post-traumatic seizure
disorder but that he had not had any seizures since beginning Keppra in April
2012. Dr. Farber noted the record to show that plaintiff was sometimes unable to
afford his medication. Dr. Farber testified that the record showed that plaintiff did
not have any seizures as long as he took his prescribed medication, especially
Keppra. (Tr. 752-53.)
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Dr. Farber testified that none of plaintiff’s impairments individually meet or
equal any listed impairment, noting that there is no listed impairment for seizures.
Dr. Farber opined that, as long as plaintiff takes the right medication, his seizures
should not interfere with his ability to work “except for certain restrictions or
seizure precautions in the workplace that would have to be observed.” (Tr. 753.)
Dr. Farber opined that plaintiff would have no physical limitations but should
avoid extreme heat and cold, stress, unprotected heights, moving machinery, and
driving. Dr. Farber also opined that plaintiff should never be exposed to ropes or
ladders. (Tr. 754.)
In response to counsel’s questions, Dr. Farber testified that, while it was
possible that plaintiff could have an occasional seizure even with medication, such
circumstance would not necessarily preclude him from being able to work,
especially if plaintiff were not permitted to be in a work setting where he would be
harmed if he had a seizure. (Tr. 754-55.) Dr. Farber testified to his experience that
some persons with seizure disorders work every day and do not have restrictions
placed on them that would prevent them from working. Dr. Farber testified that if
plaintiff’s doctors felt that work-limiting restrictions were necessary, they should
say so. (Tr. 757-59.)
Dr. Farber also testified that, as with the six-month driving restriction, the
bathing restriction would likewise be lifted after six months of being seizure-free.
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Dr. Farber acknowledged that the record did not show plaintiff’s doctors to impose
a bathing restriction for only six months, but testified that the limited duration of
this restriction is “the standard.” (Tr. 755.)
3.

Testimony of Vocational Expert

Joy Yoshioka, a vocational expert, testified at the hearing in response to
questions posed by the ALJ and counsel.
Ms. Yoshioka classified plaintiff’s past work as a security guard as light
with an SVP level of 3; as a telephone solicitor as sedentary with an SVP level of
3; as a construction worker as very heavy with an SVP level of 2; and as a hand
packager as medium with an SVP level of 2. (Tr. 762.)
The ALJ asked Ms. Yoshioka to consider a fifty-two-year-old individual
with an education beyond high school and plaintiff’s past relevant work. The ALJ
asked Ms. Yoshioka to assume the individual could perform light work defined as
lifting, carrying, pushing, and pulling twenty pounds occasionally and ten pounds
frequently; and being able to sit, stand, and walk each for six hours out of an eighthour workday. The ALJ asked Ms. Yoshioka to further assume that the person
could have no contact with ladders, scaffolds, moving machinery, unprotected
heights, or extreme cold or heat. Ms. Yoshioka testified that such a person could
perform plaintiff’s past work as a security guard, of which 5,000 such jobs exist in
the State of Missouri and 300,000 nationally. (Tr. 762-73.) Ms. Yoshioka testified
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that such a person could also perform other work such as a cleaner, of which
16,000 such jobs exist in the State of Missouri and 800,000 nationally; and laundry
worker, of which 12,000 such jobs exist in the State of Missouri and 50,000
nationally. (Tr. 763-64.)
In response to counsel’s questions, Ms. Yoshioka agreed that a person with
essential tremors and seizures who may find themselves in a stressful situation
would have a problem doing security work. (Tr. 764.) Ms. Yoshioka also testified
that competitive employment would be precluded for a person who unpredictably
experiences seizures that last for fifteen minutes and render the person unable to
work for two or three days thereafter. (Tr. 768-69.)
III. Medical Evidence Before the ALJ
Plaintiff underwent an MRI of the brain on March 29, 2002, in response to
his complaints of seizures. The MRI was negative and showed no major interval
change since a study performed in August 1997. (Tr. 546.)
In January 2004, plaintiff underwent CT scans of the paranasal sinus for
evaluation of pneumatized anterior clinoid process in relation to his diagnosed
epilepsy condition. Mild chronic inflammatory mucosal thickening was noted as
well as tiny mucous retention cysts. (Tr. 560-62.)
In June 2005, plaintiff went to the emergency room at Southeast Missouri
(SEMO) Hospital with complaints relating to a broken right foot. Physical
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examination showed plaintiff’s other extremities to be stable, with neurological
examination to show no abnormal movements. (Tr. 572-73.)
On January 2, 2008, plaintiff underwent a consultative neurologic
consultation for disability determinations. Plaintiff reported a history of tremors so
severe that he could not type, but that taking Xanax seemed to control the tremor.
Plaintiff reported the tremor not to interfere with his daily activities. Plaintiff
reported a ten-year history of seizures, but that he had not had a seizure in three
years. Plaintiff was noted to be taking Dilantin (Phenytoin) for the condition.
Plaintiff was also noted to be taking Atenolol. Plaintiff reported having worked for
a number of years and that he left his last job in December 2007 because he did not
have the energy to work twelve-hour shifts. Plaintiff reported living alone and that
he could perform his own house care. Plaintiff reported having decreased energy.
Physical examination was unremarkable except for very fine tremor of both hands.
Dr. Steven Mellies diagnosed plaintiff with essential tremor, under good control
with Xanax; seizures, under good control with anticonvulsant; and hepatitis C. Dr.
Mellies reported that plaintiff did not demonstrate any significant neurological
deficits on exam. (Tr. 594-95.)
Plaintiff was admitted to the emergency room at SEMO Hospital on April
29, 2008, upon having a seizure. Plaintiff was given Dilantin and Toradol and had
no further seizure activity. It was noted that plaintiff had poor medication
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compliance, and plaintiff reported that he would fill his Dilantin prescription.
Plaintiff was discharged to home with instruction to have family members stay
with him that night. Plaintiff was also instructed not to drive until he saw his
physicians. (Tr. 575.)
Plaintiff was admitted to the emergency room on June 5, 2010, with
complaints of weakness, fatigue, and seizure activity. Plaintiff also complained of
having tremors, and it was questioned whether plaintiff was dehydrated. It was
noted that plaintiff had been found the previous day after living on the streets for
two to three weeks. Plaintiff reported having last had a seizure the previous week
and that he had not been taking his medication. It was noted that plaintiff had run
out of Xanax, which he was taking for tremors. Plaintiff’s history of hepatitis C,
seizures, and tremors was noted. Neurological examination showed generalized
tremors but was otherwise normal. Plaintiff was prescribed Dilantin and Xanax
and was discharged to home. Plaintiff was instructed not to drive home.
Plaintiff’s discharge diagnoses were chronic seizure disorder and familial tremor.
(Tr. 578-88.)
Plaintiff visited Dr. Mark Kasten on June 10, 2010, for medication
management. Dr. Kasten noted plaintiff to be taking Xanax and Dilantin. Dr.
Kasten instructed plaintiff to see Dr. Mellies for evaluation. (Tr. 600.)
Plaintiff visited Dr. Mellies on June 29, 2010, for a neurological evaluation.
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Plaintiff complained of seizures and tremors and expressed concern regarding his
memory. Plaintiff reported to Dr. Mellies that he had had a recurrence of seizures
since his January 2008 evaluation and that he recently had a seizure three weeks
prior as well as one month prior to that. Plaintiff reported that he lost several jobs
because of seizures, including his last job in May 2010. Plaintiff reported that he
did not drive. Plaintiff reported that he currently took Dilantin, and Dr. Mellies
noted that Dilantin was not detected in plaintiff’s system at his most recent
emergency room visit. Plaintiff’s friend reported to Dr. Mellies that she had
witnessed bruises on plaintiff’s face. Plaintiff reported that he takes Xanax for
tremors with some benefit, but had been out of the medication for four days.
Plaintiff also reported having memory problems, and plaintiff’s friends reported to
Dr. Mellies that they had noticed plaintiff to have short-term memory problems for
several months. Dr. Mellies noted plaintiff to live alone, receive Meals on Wheels,
and needed to be taken to the grocery store. Plaintiff reported doing only a little bit
of cooking. Physical examination was unremarkable, except for very fine rapid
tremor, which was particularly noticed when the hands were outstretched. Dr.
Mellies diagnosed plaintiff with essential tremor; seizures with loss of
consciousness, subtherapeutic or noncompliant with Dilantin; and memory
concern, with a need to be examined further. Dr. Mellies instructed plaintiff to
increase his Dilantin and to take the medication on a regular basis. Dr. Mellies
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gave plaintiff a trial of Primidone and determined not to restart Xanax. (Tr. 59697.) An MRI of the brain taken that same date showed no convincing evidence of
mesial temporal sclerosis; no evidence of acute infarct; mild diffuse cerebral and
cerebellar volume loss; and minor scattered ethmoid, left frontal and left sphenoid
sinus mucosal thickening. (Tr. 591.)
Plaintiff underwent hernia repair on July 7, 2010. (Tr. 627-28.) During preoperative examination, plaintiff complained of fatigue, muscle weakness, seizures
with convulsions, anxiety, and depression. Plaintiff reported that he “could walk
forever” but not at all with the pain from the hernia. Plaintiff’s current medications
were Phenytoin, Xanax, and an antibiotic. (Tr. 613-16.)
Plaintiff returned to Dr. Kasten on July 14, 2010, and asked to be restarted
on Xanax for anxiety. Plaintiff reported that Primidone helped with tremor but not
with anxiety. Physical examination showed tremor to be present but was otherwise
unremarkable. Dr. Kasten prescribed Klonopin for plaintiff. (Tr. 601-02.)
On July 20, 2010, plaintiff reported to Dr. Mellies that he had not had any
seizures with the increased level of Dilantin and that his tremors were better with
Primidone. Dr. Mellies determined that plaintiff was doing well and no change
was made to plaintiff’s treatment regimen. (Tr. 598.)
Plaintiff visited Dr. Robert W. George on August 9, 2010, to establish care.
It was noted that plaintiff had been treated for tremors and anxiety by Dr. Nemeth
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in St. Louis. Plaintiff was noted to be taking Xanax. Dr. George diagnosed
plaintiff with seizure disorder. (Tr. 607.)
On August 16, 2010, plaintiff reported to Dr. Kasten that his symptoms had
not changed since beginning Klonopin. Dr. Kasten continued plaintiff on the
medication. (Tr. 604.)
Plaintiff returned to Dr. George on September 16, 2010, who refilled
plaintiff’s Xanax for anxiety. No new complaints were noted. (Tr. 608.) Dr.
George refilled plaintiff’s Xanax again in October and November. (Tr. 610-11.)
Plaintiff went to SEMO Hospital on October 15, 2010, with complaints of
diarrhea, nausea, and numbness in his legs. Plaintiff’s current medications
included Phenytoin, Primidone, Xanax, and Zofran. Dr. Andrew Godbey, a
neurologist, noted the recent increase in plaintiff’s Phenytoin dosage and
determined the numbness to be secondary to Phenytoin toxicity. Plaintiff was
admitted so that the medication could be reduced to a therapeutic level, and Dr.
Mellies was to be contacted regarding plaintiff’s antiepileptic regimen. (Tr. 64549.)
Plaintiff visited Dr. Godbey on November 3, 2010, for follow up. Plaintiff
was noted to be trembling. Dr. Godbey noted that plaintiff was placed on Keppra
prior to discharge from his recent hospitalization, and plaintiff reported a lessening
of numbness in his legs and no seizures since discharge. No new complaints were
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noted. Physical and psychiatric examinations were unremarkable. Dr. Godbey
determined to taper plaintiff from Phenytoin and to continue him on Keppra. Dr.
Godbey also considered switching plaintiff to another medication for tremor given
his complaints of poor memory and concentration. Ambien was prescribed for
sleep. Plaintiff was diagnosed with generalized convulsive epilepsy (severe,
worsening), benign essential tremor, and insomnia. Plaintiff was instructed to
avoid bathing unattended, avoid swimming unattended, avoid driving, and not to
cook alone. Plaintiff was instructed to return in two months. (Tr. 656-58.)
On December 15, 2010, Dr. Jean Diemer, a medical consultant with
disability determinations, completed a Physical RFC Assessment in which she
opined that plaintiff could occasionally lift twenty pounds and frequently lift ten
pounds; could stand and/or walk about six hours in an eight-hour workday; could
sit about six hours in an eight-hour workday; and was unlimited in his ability to
push and/or pull other than his lifting limitations. Dr. Diemer opined that plaintiff
should never climb ladders, ropes, or scaffolds; could occasionally climb ramps
and stairs; and could frequently balance, stoop, kneel, crouch, and crawl. Dr.
Diemer further opined that plaintiff should avoid concentrated exposure to hazards,
such as machinery and heights, but otherwise had no environmental limitations.
Dr. Diemer opined that plaintiff had no manipulative, visual, or communicative
limitations. Dr. Diemer reported the record to show that plaintiff’s seizures were
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well controlled with medication compliance and that plaintiff’s tremors did not
interfere with his ability to do fine fingering or handling. (Tr. 662-67.)
On December 17, 2010, Joan Singer, Ph.D., a psychological consultant with
disability determinations, completed a Psychiatric Review Technique Form in
which she opined that plaintiff had no medically determinable mental impairment.
(Tr. 668-78.)
Plaintiff returned to Dr. Godbey on February 1, 2011, and reported having
had two general tonic clonic seizures since his last visit with oral trauma but no
urine incontinence. Plaintiff reported not having missed any doses of Keppra.
Plaintiff reported having no irritability, nausea, or vomiting with the medication
but that he has been waking up with full body soreness. Plaintiff reported having
chronic nausea with Primidone and that he has difficulty staying asleep. Plaintiff
also complained of tremor. Physical examination was normal except for mild
postural tremor. Given plaintiff’s continued seizures while on Keppra, Dr. Godbey
determine to increase plaintiff’s dosage of the medication. Dr. Godbey discussed
with plaintiff seizure precautions, including no driving and avoiding situations
where he can harm himself or others in the event of a seizure. Dr. Godbey
specifically instructed plaintiff to avoid bathing unattended, avoid driving for a
period of six months from the date of his last seizure, avoid swimming unattended,
avoid ladders, and to call with any new seizures. Dr. Godbey determined to treat
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plaintiff’s tremor with a different medication once the seizures were under control.
Plaintiff was instructed to increase his dosage of Ambien. Dr. Godbey diagnosed
plaintiff with general convulsive epilepsy (improving) and tremor. (Tr. 659-61.)
Plaintiff visited Dr. Godbey on November 10, 2011, and reported continued
generalized tonic clonic seizures, with his most recent seizure occurring one and a
half months prior. Plaintiff reported waking up with oral trauma and facial
bruising. Plaintiff reported that he had seizures approximately once every one to
two months but did not call and report them because he could not afford an office
visit. Plaintiff reported having had to stop Keppra because of its cost and that he
restarted Phenytoin. Dr. Godbey noted plaintiff not to be driving. Plaintiff’s
current medications included Primidone, Ambien, Dilantin, and Klonopin.
Physical examination showed mild postural tremor but was otherwise
unremarkable. Dr. Godbey prescribed Lacosemide and provided plaintiff a
voucher for a fourteen-day free trial of the medication. Dr. Godbey expressed
hope that plaintiff would soon have insurance coverage after disability review at
which time he could continue on the medication. Seizure precautions were
discussed, and plaintiff was instructed not to drive and to avoid situations where he
could harm himself or others if he were to have a seizure. Dr. Godbey determined
to continue plaintiff on Primidone for tremor but to wean him from the medication
once the seizures were controlled, given plaintiff’s complaints of poor
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concentration. Dr. Godbey diagnosed plaintiff with generalized convulsive
epilepsy (severe, worsening) and tremor (mild, improving). Plaintiff was
instructed to return in two months. (Tr. 686-88.)
Plaintiff returned to Dr. Godbey on April 18, 2012, and reported that he
continued to experience generalized tonic clonic seizures once a month with oral
trauma. Plaintiff reported his last seizure to have occurred three weeks prior. It
was noted that plaintiff had been placed on Keppra previously but could not afford
the medication. Dr. Godbey noted plaintiff to be homeless and living in a hotel,
and that friends and family were helping him apply for Medicaid. Plaintiff was
currently taking Phenytoin, Primidone, and Ambien. Examination showed mild
postural tremor, psychomotor retardation, and a flat affect. Dr. Godbey noted
plaintiff’s seizures to be poorly controlled on Phenytoin. Plaintiff’s friends agreed
to pay for Keppra until plaintiff obtained Medicaid coverage. Dr. Godbey noted
that Keppra would be continued if plaintiff obtained Medicaid and disability, but
Lacosamine would be considered because of its lower cost with Medicaid. Dr.
Godbey continued plaintiff on Phenytoin with the potential for weaning if Keppra
controlled the seizures. Dr. Godbey determined not to discontinue Primidone
given that the medication also helps with seizures, which were currently poorly
controlled. Dr. Godbey diagnosed plaintiff with generalized convulsive epilepsy
(severe) and tremor (mild). Plaintiff was instructed to avoid bathing unattended,
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avoid driving for a period of six months from the date of the last seizure, avoid
swimming unattended, avoid ladders, and call if he had any new seizures. Plaintiff
was instructed to follow up in three months. (Tr. 691-93.)
Plaintiff returned to Dr. Godbey on June 21, 2012, and reported that he had
not had any seizures since the last visit and that he continued to take Keppra and
Phenytoin. Plaintiff also reported his tremor to be well controlled with Primidone
with no interference in his daily activities. Plaintiff reported a significant
worsening of his tremor if he misses a dose of Primidone. Examination showed
very mild postural tremor and psychomotor retardation but was otherwise
unremarkable. Dr. Godbey concluded that plaintiff’s generalized tonic clonic
seizures and tremors were controlled with medication. Dr. Godbey determined for
plaintiff to continue with Keppra and Phenytoin. Plaintiff was to continue with
Primidone for tremor, but it was noted that the medication may be switched if
plaintiff experienced worsening depression or lethargy. Plaintiff was diagnosed
with generalized convulsive epilepsy (improving) and tremor (mild) and was
instructed to return in three months. Precautionary measures for seizures remained
in place. (Tr. 694-96.)
IV. Other Third Party Evidence Before the ALJ
On June 7, 2010, Claudia Weaver, an SSA employee, conducted a face-toface interview of plaintiff for purposes of completing a Disability Field Office
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Report. Plaintiff’s sister and ex-wife accompanied plaintiff to the interview. (Tr.
373-77.) Ms. Weaver noted plaintiff to have difficulty understanding and
concentrating and specifically observed that plaintiff “[n]eeded help remembering
things that had happened. Could not remember at first that he had minor children
when asked until family reminded him.” (Tr. 376.)
On August 23, 2010, plaintiff went to the SSA office with his ex-wife to
complete paperwork, and he was again interviewed by Ms. Weaver. (Tr. 395-408.)
Ms. Weaver continued to note plaintiff to have difficulty with understanding and
concentrating. Ms. Weaver specifically observed that plaintiff “[h]ad difficulty
understanding some of the things being discussed and former spouse or interviewer
would have to try and explain things more than once.” (Tr. 396.)
On August 30, 2010, Ms. Finnegan completed an Adult Function Report on
behalf of plaintiff for disability determinations. (Tr. 420-27.) Ms. Finnegan
completed the form because plaintiff did not understand it. In this form, Ms.
Finnegan reported that plaintiff needed reminders to take medicine, eat, go to
doctors’ appointments, change clothes, and shower. It was reported that plaintiff
was unable to pay bills, handle a savings account, or use a checkbook because he
“can’t remember to pay bills or even when they are due. Family takes care of
paying them. Can’t balance checkbook anymore, forgets how. Family writes them
out and he signs.” (Tr. 421.) Ms. Finnegan further reported that plaintiff had “no
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concept of how much is in account, does not mentally understand it is not available
if not in [account].” (Tr. 422.) Ms. Finnegan reported that plaintiff needed to be
reminded to go places and that he needed someone to accompany him. Ms.
Finnegan reported that plaintiff does not handle changes in routine well because he
cannot remember when change occurs or why, and he needs the reasons for any
change to be continually repeated to him. (Tr. 422-23.) Ms. Finnegan concluded:
Greg’s mind & memory are very short. A family member calls to
check on him 3 times a day. He forgets to take medicine, shower and
doesn’t change clothes unless he is reminded. . . . We all take turns
taking him to grocery store or doctors appointments after reminding
him. . . . He needs help with understanding the need to pay bills and
doesn’t understand paperwork. He forgets to check his mail.
He has “Meals on Wheels” delivered every day except Saturday &
Sunday[.] . . . . When we ask him to go to the grocery store, he says he
doesn’t need to go. When his kids check to see if he has any, he
doesn’t. He has someone escort him to every doctors [appointment]
because he can’t remember what they tell him.
(Tr. 424.)
On November 3, 2010, SSA employee Deborah McWilliams spoke with
plaintiff by telephone. Plaintiff provided an updated status regarding his doctors
and his appointments with them. Ms. McWilliams noted plaintiff to have “no
problems recalling the names of his physicians or the times seen.” (Tr. 428.)
V. The ALJ's Decision
The ALJ found that plaintiff met the insured status requirements of the
Social Security Act through September 30, 2014. The ALJ found plaintiff not to
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have engaged in substantial gainful activity since January 1, 2009, the alleged
onset date of disability. The ALJ found that plaintiff’s seizure disorder and
essential tremors were severe impairments, but that plaintiff did not have an
impairment or combination of impairments that met or medically equaled the
severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr.
26-27.) The ALJ found plaintiff to have the RFC to perform light work as defined
in the Regulations,1
except that [he] can sit for six of eight hours per day; stand and walk
for six of eight hours per day; can lift 20 pounds occasionally and ten
pounds frequently and must avoid all exposure to hazards such as
moving machinery, unprotected heights or use of ladders, ropes or
scaffolds.
(Tr. 27.) The ALJ found plaintiff able to perform his past relevant work as a
security guard. Alternatively, the ALJ determined that vocational expert testimony
supported a finding that with his age, education, work experience, and RFC,
plaintiff could perform other work as it exists in significant numbers in the national
economy, and specifically, cleaner and laundry worker. The ALJ thus found
plaintiff not to be under a disability from January 1, 2009, through the date of the
decision. (Tr. 29-31.)
1

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. . . . [A] job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).

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VI. Discussion
To be eligible for DIB under the Social Security Act, plaintiff must prove
that he is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001);
Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).
The Social Security Act defines disability as the "inability 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). An individual will be declared disabled "only if his
physical or mental impairment or impairments are of such severity that he is not
only unable to do his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful work which exists
in the national economy." 42 U.S.C. § 423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482
U.S. 137, 140-42 (1987). The Commissioner begins by deciding whether the
claimant is engaged in substantial gainful activity. If the claimant is working,
disability benefits are denied. Next, the Commissioner decides whether the
claimant has a “severe” impairment or combination of impairments, meaning that
which significantly limits his ability to do basic work activities. If the claimant's
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impairment(s) is not severe, then he is not disabled. The Commissioner then
determines whether claimant's impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, he is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform his past relevant work. If so, the claimant is not disabled. Finally, the
Commissioner evaluates various factors to determine whether the claimant is
capable of performing any other work in the economy. If not, the claimant is
declared disabled and becomes entitled to disability benefits.
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir.
2002). Substantial evidence is less than a preponderance but enough that a
reasonable person would find it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,”
however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)
(internal quotation marks and citation omitted). “Substantial evidence on the
record as a whole . . . requires a more scrutinizing analysis.” Id. (internal quotation
marks and citations omitted).
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To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff's vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The plaintiff's subjective complaints relating to exertional and
non-exertional activities and impairments.

5.

Any corroboration by third parties of the plaintiff's
impairments.

6.

The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant's impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). The Court must also consider any evidence
which fairly detracts from the Commissioner’s decision. Coleman, 498 F.3d at
770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). “If, after reviewing
the entire record, it is possible to draw two inconsistent positions, and the
Commissioner has adopted one of those positions,” the Commissioner’s decision
must be affirmed. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012). The
decision may not be reversed merely because substantial evidence could also
support a contrary outcome. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
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A review of the record as a whole shows there to be substantial evidence that
plaintiff experiences significant problems with concentration, memory, and
comprehension, but the ALJ wholly failed to acknowledge this evidence and thus
failed to consider the extent to which plaintiff may experience limitations in his
ability to perform the mental requirements of work. Because the ALJ failed to
consider this evidence and failed to undergo the required analysis in determining
the severity of this mental impairment, the matter will be remanded for further
proceedings
In the Commissioner’s first decision finding plaintiff disabled, the ALJ
noted that psychological testing showed plaintiff to be somewhat slow at times in
his ability to function and answer questions, especially in the area of immediate
recall. (Tr. 199.) Subsequent medical records submitted to the SSA for continuing
disability review show plaintiff to complain of decreased memory and
concentration (e.g., Tr. 515, 517); and in a Continuing Disability Report completed
after plaintiff’s emergency room visit in June 2010, plaintiff reported having
memory loss and difficulties remembering to take medication, understanding and
following directions, and completing tasks (Tr. 359-72). Indeed, SSA employee
Claudia Weaver personally observed in June and August 2010 that plaintiff had
difficulty with understanding and concentration; needed help remembering things,
including that he had minor children; and had difficulty understanding some of the
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things being discussed, requiring repeated explanations. Plaintiff testified at both
hearings that he had poor memory and concentration, and Ms. Finnegan testified
extensively at the November 2011 hearing regarding plaintiff’s memory loss,
providing examples and details as to the effects of such memory loss.
Plaintiff also repeatedly complained to his healthcare providers that he
experienced memory loss and poor concentration, leading to recommendations for
further evaluation and consideration of medication changes. In June 2010, plaintiff
reported to Dr. Mellies that he was concerned regarding his memory loss, with
such concern echoed by plaintiff’s friends who had accompanied him to this
appointment. Dr. Mellies noted that plaintiff’s memory problems needed further
evaluation, but the record does not show any such evaluation to have been
performed. Upon beginning treatment with Dr. Godbey in November 2010,
plaintiff continued to complain of memory loss and poor concentration, prompting
Dr. Godbey to consider changing plaintiff’s tremor medication. Notably, no
change was made and plaintiff continued to complain of poor concentration and
memory.
Finally, a review of the Adult Function Report completed by Ms. Finnegan
is consistent with the other evidence of record set out above and provides great
detail regarding plaintiff’s memory impairment and its limiting effect on plaintiff’s
daily activities and functional abilities.
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Despite this significant and consistent evidence of plaintiff’s limitations in
memory, concentration, and comprehension, the ALJ wholly failed to consider
such evidence in his written decision. Nor did the ALJ discount plaintiff’s
complaints of memory loss and poor concentration. Instead, the ALJ dismissively
addressed plaintiff’s “anxiety” at Step 2 of the sequential analysis, finding it not to
be a severe impairment because of a lack of diagnosis (see Tr. 27); and, in his RFC
determination, he accorded great weight to a non-examining State agency
consultant’s finding that plaintiff had no medically determinable mental
impairment, again noting there to be no diagnosis of “anxiety” (see Tr. 29). The
record shows, however, that plaintiff experienced mental limitations beyond those
that could be associated with anxiety and, indeed, that such limitations were related
to the effects of his post-traumatic seizure disorder, medication, or both.
Regardless, the ALJ’s wholesale failure to consider this substantial evidence of
plaintiff’s mental limitations in memory, concentration, and comprehension was
error, with such error likely affecting the ALJ’s RFC assessment. See Cunningham
v. Apfel, 222 F.3d 496, 501-02 (8th Cir. 2000); see also Cuthrell v. Astrue, 702
F.3d 1114 (8th Cir. 2013) (symptoms characteristic of mental impairment caused
by traumatic brain injury include memory impairment and difficulties in
maintaining concentration, persistence, or pace). Cf. Garza v. Barnhart, 397 F.3d
1087, 1089 (8th Cir. 2005) (misunderstanding of impairment and failure to find it
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to be severe may affect RFC findings); Moore v. Astrue, No. 4:11-CV-1873-SPM,
2013 WL 781803 (E.D. Mo. Mar. 1, 2013) (ALJ discussed seizure disorder at
length but did not adequately consider evidence of mental impairment, resulting in
faulty RFC). While an ALJ is not required to explain all the evidence of record,
Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010), he nevertheless cannot
merely “pick and [choose] only evidence in the record buttressing his conclusion.”
Taylor o/b/o McKinnies v. Barnhart, 333 F. Supp. 2d 846, 856 (E.D. Mo. 2004),
and cases cited therein.
This matter will therefore be remanded to the Commissioner for further
consideration of plaintiff’s demonstrated mental impairment. Upon remand, the
ALJ shall document in his written decision his application of the psychiatric
review technique as required by 20 C.F.R. § 404.1520a when determining the
severity of plaintiff’s mental impairment, and specifically rate the degree of
functional loss plaintiff suffers as a result of the impairment in the areas of daily
living; social functioning; concentration, persistence, or pace; and episodes of
decompensation. Should the medical record require additional development in
order for the ALJ to make a proper assessment, it is the ALJ’s duty to develop the
record by directing interrogatories to plaintiff’s physicians or by ordering
consultative examinations. See Bishop v. Sullivan, 900 F.2d 1259, 1263 (8th Cir.
1990); 20 C.F.R. § 404.1517.
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Upon remand, the ALJ shall also re-evaluate the extent to which plaintiff’s
essential tremor affects his ability to perform basic work activities. Although the
ALJ determined in his RFC analysis that there was “no evidence presented at any
time that suggested that the tremors were limiting to the claimant’s ability to
perform basic self-care or work activities” (Tr. 29), he previously found at Step 2
of the sequential analysis that plaintiff’s essential tremor was a severe impairment,
stating that it resulted “in more than a minimal interference with basic work
activities.” (Tr. 26.) Notably, in order to be found “severe” at Step 2, the
impairment must “significantly limit [a claimant’s] physical or mental ability to do
basic work activities.” 20 C.F.R. § 404.1521(a). Given the ALJ’s incongruous
findings regarding the extent to which plaintiff’s essential tremor affects his ability
to perform work activities, this Court would be required to reweigh the evidence,
review the factual record de novo, or engage in speculation to determine the basis
on which the ALJ ultimately denied plaintiff’s claim. This the Court cannot do.
See Smith v. Colvin, 756 F.3d 621, 626 (8th Cir. 2014); Collins v. Astrue, 648 F.3d
869, 872 (8th Cir. 2011).
Accordingly, this matter will be remanded to the Commissioner with
instruction to more fully evaluate the record with respect to plaintiff’s mental
impairment and engage in the proper analysis in determining the extent to which
plaintiff’s limitations in memory, concentration, and comprehension affect his
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functional ability to perform work-related activities. In determining plaintiff’s
RFC upon remand, the Commissioner is reminded that consideration must be given
to the limitations and restrictions imposed by all of the plaintiff’s medically
determinable impairments, both severe and non-severe, as well as limitations
imposed by medication side effects. Ford v. Astrue, 518 F.3d 979, 981 (8th
Cir.2008) (citing 20 C.F.R. § 404.1545(a)) (severe and non-severe impairments
must be considered); Cunningham, 222 F.3d at 501 (ALJ obligated to consider
combined effects of impairments); cf. Vincent v. Apfel, 264 F.3d 767, 769 (8th Cir.
2001) (RFC findings failed to account for medication side effects). The parties
shall be allowed to supplement the record with any additional information that may
assist the ALJ in making these determinations. In addition, the Commissioner is
encouraged upon remand to obtain medical evidence that addresses plaintiff’s
ability to function in the workplace, which may include contacting plaintiff’s
treating physician(s) to clarify his limitations and restrictions in order to ascertain
what level of work, if any, he is able to perform. Coleman v. Astrue, 498 F.3d 767
(8th Cir. 2007); Smith v. Barnhart, 435 F.3d 926, 930-31 (8th Cir. 2006). In the
absence of such evidence from plaintiff’s own medical sources, the Commissioner
is encouraged to order a consultative examination(s) to obtain such medical
evidence. 20 C.F.R. § 404.1517.

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VII. Conclusion
Therefore, for all of the foregoing reasons, the Commissioner’s adverse
decision is not based upon substantial evidence on the record as a whole and the
matter shall be remanded to the Commissioner for further proceedings consistent
with this opinion.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
REVERSED, and this case is REMANDED to the Commissioner for further
proceedings.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
Dated this 13th day of March, 2015.
/s/Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE

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