Walny v. Colvin

Filing 19

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the final decision of the Commissioner denying social security benefits be REVERSED and REMANDED to the Commissioner for further proceedings consistent with this Memorandum and Order. An appropriate Order of Remand shall accompany this Memorandum and Order. Signed by District Judge Ronnie L. White on March 28, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KINDELLA WALNY,
Plaintiff,
v.
CAROLYNW. COLVIN,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 4:14CV1684 RLW

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 1383(c)(3) for judicial review of Defendant's final
decision denying Plaintiffs application for Supplemental Security Income ("SSI") under Title
XVI of the Social Security Act. For the reasons set forth below, the Court reverses the decision
of the Commissioner and remands for further proceedings.

I. Procedural History
On August 22, 2011, Plaintiff protectively filed an application for Supplemental Security
Income. (Tr. 16, 140-45) Plaintiff alleged that she became unable to work on June 1, 2010 due
to diabetes, seizures, asthma, depression, bipolar disorder, learning disability, migraines,
diverticulitis, polycystic ovaries, and obesity. (Tr. 86, 140) The application was denied, and
Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ''). (Tr. 84-89,
92-94) On March 7, 2013, Plaintiff testified at an administrative hearing before an ALJ. (Tr. 4082) On April 29, 2013, the ALJ determined that Plaintiff had not been under a disability since
August 22, 2011, the date the application was filed. (Tr.16-29) Plaintiff then filed a request for
review, and on August 13, 2014, the Appeals Council denied Plaintiffs request. (Tr. 3-5) Thus,
the decision of the ALJ stands as the final decision of the Commissioner.

II. Evidence Before the ALJ
At the March 7, 2013 hearing before the ALJ, Plaintiff was represented by counsel.
Plaintiffs attorney listed Plaintiffs severe impairments as a seizure disorder, history of
migraines, mental impairments, depression, anxiety, and history of reported panic attacks. The
ALJ then questioned the Plaintiff, who testified that she was born March 8, 1980. She weighed
350 pounds and measured 5 feet 2 inches. She stated that she previously had carpal tunnel
release surgery on both hands. However, the pain and limitation were returning. Plaintiff was
divorced with three children, ages 15, 13, and 6. She lived in a house with her children and her
boyfriend. Plaintiff received child support payments, and one child received SSL Plaintiff had a
driver' s license, but doctors told her not to drive. (Tr. 42-48)
Plaintiff further testified that she received her GED and obtained pharmacy tech
certification from a trade school. However, she never used her certification to work in that field.
Plaintiff previously volunteered at her kids' school. During the hearing, Plaintiff began crying
and explained that she had been a volunteer fire fighter since she was 15, and she used to do
emergency management. However, she was unable to do anything now. Plaintiff stated that she
also worked as a dispatcher. She previously drove fire trucks but could no longer do so because
of her seizure disorder that was diagnosed in 2010. Plaintiff testified that she stopped working
due to terrible headaches and leg pain. The bad headaches led to the seizures. Plaintiff was also
having problems with her children at the time. Two of her children had cystic fibrosis. Plaintiff
was in the hospital the night before the hearing with dehydration and kidney problems. The ALJ
noted that Plaintiffs earnings did not show substantial gainful activity. However, Plaintiff
believed she worked over 20 hours a week for over a year. (Tr. 48-52)

2

As a dispatcher and jailer, Plaintiff checked in new inmates and supervised them. She
quit that job because of her condition. In 2000, Plaintiff worked at Little Caesar' s pizza
restaurant as an assistant manager. She made pizza, did the bank roll, and made the work
schedules. She left that job because of her kids and their needs. (Tr. 52-54)
Plaintiff testified that she was unable to work due to seizures. The doctors were unable to
find the right medication, and they had discussed a surgical procedure. Plaintiff underwent a
spinal tap every 30 days, which was painful and made her sick. Plaintiff suffered from asthma
and allergies, as well as sleep apnea. Dr. Choudhary treated for her migraine headaches and
prescribed medication for the symptoms. She took Neurontin for the carpal tunnel syndrome and
Imitrex and Amitriptyline for seizures. Plaintiff also had a prescription for Topamax. Plaintiff
was diagnosed with diabetes. She testified that her legs recently became more swollen and
painful. She wore Ted hose and kept her legs elevated. Plaintiff stated that she sometimes
became mad and stopped taking her medications until her symptoms returned. (Tr. 54-62)
Plaintiff testified that she experienced migraine headaches daily. When the migraines
were debilitating, lights and sounds would cause her to shut down, and she could feel her
heartbeat in her head. These severe migraines occurred about twice a week, and she would go in
her room and lay down. If her medication did not work, she would experience a bad seizure.
Her two sons with cystic fibrosis were old enough to take their medications. When they were
younger, they were frequently in the hospital. (Tr. 62-64)
Plaintiff stated that she had pain in her hands and in her lower back and legs on a daily
basis. Her legs went numb when she sat, and a doctor advised her to elevate her legs. Plaintiff
testified that she previously cleared out a wooded area for her wedding which did not occur. She

3

could carry a bag of groceries or a 12 pack of soda. She had difficulty remembering things and
could not follow directions. Her children and boyfriend sometimes aggravated her. (Tr. 64-67)
Plaintiffs attorney also questioned Plaintiff about her impairments. Plaintiff stated that
she had pain and swelling in her legs which made it difficult to stand. She experienced pain in
her lower back and across her hips. She was able to stand longer if she leaned on something.
She believed she could stand for 10 or 15 minutes before needing to sit down. Plaintiff had
seizures once or twice a week, even though she took her medication regularly. During a seizure,
Plaintiff passed out and shook. The seizures lasted less than a minute, and Plaintiff felt frozen
and numb after. She returned to normal after a few minutes, but she was usually tired and had a
headache. Plaintiff stated that the pressure on her head caused pressure on her eyes and affected
her vision. (Tr. 67-71)
Upon further questioning by the ALJ, Plaintiff testified that her boyfriend and mother
cooked the meals. Her mother did the laundry, and her kids made the beds. Plaintiff was able to
pick up sometimes. She did the dishes while sitting in a chair. Plaintiff tried to shop for
groceries. She went shopping with her mother, and the trip lasted a couple hours. Plaintiff s
children helped carry in the bags. Plaintiff tried to help her children with homework. (Tr. 71-72)
A vocational expert ("VE") also testified at the hearing. The VE stated that Plaintiffs
past work as a radio dispatcher at the city jail was sedentary work. However, her duties as a
corrections officer was rated medium work. Pizza baker was also medium work, and her other
duties at the pizza restaurant fit into the category of hostess and rated as light work. (Tr. 73-75)
The ALJ then asked the VE to assume a hypothetical individual with Plaintiffs past work
who was able to perform light work, including standing and walking six hours during an eighthour work day. The person could sit for two hours and should avoid concentrated exposure to

4

temperature extremes, dust, fumes, gases, odors, and smoke. Further, the individual could
perform simple work and could interact appropriately with co-workers, supervisors, and the
public. The person could sustain a routine and maintain attendance with normal breaks. Given
this hypothetical question, the VE testified that the individual could not perform any of
Plaintiffs past jobs. However, the person could work as a photocopying machine operator,
coffee roaster helper and garment sorter. None of these jobs required driving. (Tr. 75-77)
The second hypothetical involved a person limited to performing sedentary work, which
would also be simple, unskilled work. The person could stand and walk two hours and sit six
hours with normal breaks. In addition, the individual could sustain a routine and interact
appropriately with co-workers and supervisors. However, the person could have no more than
casual or limited public contact. Further, the hypothetical individual needed to avoid
concentrated exposure to temperature extremes, dust, fumes, gases, odors, and smoke but could
otherwise sustain a normal eight-hour work day. The VE stated that the person could work as a
surveillance systems monitor, a cutter and paster of press clippings, and a bonder semiconductor
in the electronic component industry. If the ALJ added only occasional gross and fine
manipulations and absenteeism three or more days per month, no jobs would be available.

(Tr.

77-80)
The Plaintiffs attorney then asked the VE to also assume the hypothetical individual
would need additional breaks and would be off task in the workplace in excess of 20 percent of
the time. The VE answered that an employer would not accept a probationary employee being
off task that amount. (Tr. 81 )
In a Function Report - Adult, Plaintiff reported that on a typical day she woke up late,
took her medication, and tried to get her kids ready for school. She usually had a seizure and a

5

headache after they left. She went back to bed and would get up between 1:00 and 2:00 in the
afternoon. If she did not have another seizure, she tried to do chores or take a shower. When her
kids returned home, she tried to help with homework, but she was usually in bed because the
seizures made her tired. Plaintiff took care of her children and a dog. She had problems
sleeping. Plaintiff needed reminders to take her medication. She was able to make sandwiches
and frozen meals daily. She sat on the floor to do laundry, and she cleaned when her boyfriend
was around. Plaintiff rarely went out because she had a seizure in her garden once. She was not
supposed to drive. Plaintiff was able to shop for groceries and cleaning supplies twice a month.
She could no longer participate in hobbies and interests. However, she spent time with her
boyfriend, his mother, and his stepfather. Plaintiff reported that she needed reminders for
appointments. Her family disowned her because she was hateful and mean. Plaintiff stated that
her conditions affected her ability to talk, concentrate, and get alone with others. Her ability to
pay attention and follow written and spoken instructions depended on whether she had seizures.
Plaintiff further reported that she did not handle stress or changes in routine very well. (Tr. 18492)

Plaintiffs friend, Verna Franks, also completed a Function Report - Adult - Third Party.
Ms. Franks stated that she spent a lot of time with Plaintiff and helped with the cooking.
Plaintiff was able to do dishes, laundry, and some cooking. However, she was unable to do
anything if she had too many seizures. Plaintiff did not go outside much. She was able to shop
for food, clothes, medication, and family necessities. Plaintiff could watch TV, use the
computer, and go fishing so long as she was not having a seizure. Ms. Franks opined that
Plaintiffs conditions affected all of her abilities because of the seizures. (Tr. 199-206)

6

III. Medical Evidence
Dr. M. Choudhary treated Plaintiff between 2011 and 2013. (Tr. 608-11, 665-68, 74256) She first saw Dr. Choudhary on May 12, 2008, and he assessed bilateral carpal tunnel
syndrome, with the right worse than the left. (Tr. 751-53) On November 17, 2011, Plaintiff
complained of seizures over the past two years. Plaintiff reported experiencing seizures three to
four times a month, during which times she would pass out and her body would stiffen with not
much shaking. (Tr. 755-56) On May 5, 2012, Dr. Choudhary performed an EEG, which was
abnormal and consistent with a seizure disorder. (Tr. 749) Plaintiff underwent a spinal tap on
August 23, 2012. She reported having seizures once or twice a month lasting a couple minutes.
Plaintiff would pass out, her body would stiffen, and she would shake. She was tired after
waking up. Plaintiff also reported daily headaches that were accompanied by nausea and a
history of photophobia and phonophobia when severe. In addition, Plaintiff mentioned
numbness and tingling in her hands and feet, as well as some memory problems. Dr. Choudhary
planned to conduct a spinal tap and multiple sclerosis workup. (Tr. 665-67) On November 19,
2012, Plaintiff complained of a constant headache, pressure in her head, and blurred vision. Her
pinprick sensation decreased in her feet and lower legs. Dr. Choudhary again planned to perform
a spinal tap, as Plaintiffs headaches improved after the spinal tap in August, 2012. (Tr. 608-10)
Dr. Choudhary completed a Seizure Questionnaire on January 25, 2013. He described
Plaintiffs seizures as generalized tonic-clonic complex partial seizures of variable duration with
stress as a trigger. He did not know whether Plaintiff had any warning signs. After a seizure,
Plaintiff should sit or lie down to avoid falling. In addition, Dr. Choudhary opined that the
number of days of work missed per month would vary. Medications helped, but did not control,
Plaintiffs seizures. (Tr. 803)

7

On that same date, Dr. Choudhary completed a Medical Source Statement - Physical. He
opined that Plaintiff could lift and/or carry 50 pounds frequently and over 50 pounds
occasionally. She could stand and/or walk for 2 hours continuously and 6 hours throughout the
work day. Further, Dr. Choudhary opined that Plaintiff could sit continuously for 3 hours and
could sit through an 8 hour work day for 7 hours. Plaintiff had no limitations on her ability to
push and/or pull. She should never climb. With regard to environmental factors, Dr. Choudhary
stated that Plaintiff should avoid any exposure to hazards and heights; moderate exposure to
vibration; and concentrated exposure to extreme cold, extreme heat, weather, wetness/humidity,
and dust/fumes. Plaintiff had variable pain from headaches which would require her to lie down
or recline during a work day. Her pain medication could cause a decrease in concentration. (Tr.
800-01)
Also on January 25, 2013, Dr. Choudhary completed a Medical Source StatementMental. He stated that Plaintiff was moderately limited in her ability to understand and
remember detailed instructions. She was also moderately limited in her ability to carry out
detailed instructions; maintain attention and concentration for extended periods; perform
activities within a schedule, maintain regular attendance, and be punctual with customary
tolerances; sustain an ordinary work routine without special supervision; work in coordination
with or proximity to others without being distracted by them; and complete a normal workday
and workweek without interruption from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods. Further, Dr.
Choudhary opined that Plaintiff had moderate limitations in her ability to accept instructions and
respond appropriately to criticism from supervisors and get along with co-workers or peers
without distracting them or exhibiting behavioral extremes. With regard to adaptation, Dr.

8

Choudhary assessed Plaintiff as moderately limited in her ability to be aware of normal hazards
and take appropriate precautions, travel in unfamiliar places or use public transportation, and set
realistic goals or make plans independently of others. (Tr. 805-06)
On August 11 , 2011 , Plaintiff saw Angela D. Gower, P.A., to discuss her recent problems
with uncontrolled migraines and seizures. Plaintiff had stopped taking all of her medications,
and her symptoms became exacerbated. Ms. Gower noted that Plaintiffs mood, affect, and
behavior were normal. She assessed bipolar 2 disorder; seizure disorder; migraine; diabetes;
dyspepsia; hypertension; diabetes mellitus, type 2; and asthma. Ms. Gower counseled Plaintiff
on the potential hazards of suddenly stopping her medications. Ms. Gower planned to slowly
restart Plaintiffs medications, which included Celexa, Larnictal, Topomax, Prilosec, Advair, and
albuterol. (Tr. 833-35) On September 6, 2011 , additional medications included Trazodone,
Zyrtec, Singulair, Diazepam, Symbicort, and Glucophage. (Tr. 376-80)
On December 7, 2011 , Ms. Gower noted that Plaintiff had been referred to psychiatry the
previous month but insurance constraints were slowing the process. Plaintiff complained of
unchanged and uncontrolled anxiety and depression. On exam, Plaintiff exhibited tenderness in
her right sacrolliac joint. She was alert and her mood, affect, and behavior were normal. Ms.
Gower increased Plaintiffs Celexa dosage. (Tr. 499-504)
Plaintiff saw Sachin Thorat, M.D. on January 24, 2013 for complaints of seizures and
headaches. Dr. Thorat noted a 2010 brain MRI that indicated a Chiari I malformation but was
otherwise unremarkable. On physical exam, Plaintiff was cooperative and pleasant, with morbid
obesity. Her mental status was normal, and she had normal light touch and pain in all four limbs.
Dr. Thorat indicated that Plaintiff could have non-epileptic seizures and suggested inpatient EEG
monitoring. Dr. Thorat instructed Plaintiff to continue seizure medications and avoid driving for

9

6 months after the most recent seizure with bodily loss of function. For her chronic daily
headaches, Dr. Thorat prescribed Amitriptyline. (Tr. 906-15)
IV. The ALJ's Determination
In a decision dated April 29, 2013, the ALJ found that the Plaintiff had not engaged in
substantial gainful activity since August 22, 2011 , the application date. Further, the ALJ
determined that Plaintiffs severe impairments included degenerative disc disease ("DDD");
headaches; obesity; asthma; and allergies. The ALJ noted that Plaintiffs other alleged
impairments of sleep apnea; seizures; diabetes mellitus; carpal tunnel syndrome; and bipolar
disorder had no more than a minimal effect on her ability to work. Specifically, the ALJ found
that Plaintiffs seizures were controlled when she took her medication as prescribed. Further, the
pattern of treatment did not reflect a worsening. The ALJ noted that Plaintiffs carpal tunnel
syndrome was only mild after successful surgery. With regard to sleep apnea, the ALJ found
that conservative treatment showed significant improvement, and the record did not reflect
significant complaints stemming from a sleep disorder. Further, the ALJ determined that
Plaintiffs diabetes mellitus was not severe in that the record did not reflect a significant level of
complications. With regard to Plaintiffs diagnoses of mental impairments, Plaintiff did not seek
professional mental health care, and she merely received treatment through prescription
medication, which had been generally effective. Thus, the ALJ found Plaintiffs bipolar disorder
to be non-severe. (Tr. 16-21 )
The ALJ determined that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. After carefully considering the record, the ALJ found
that Plaintiff had the residual functional capacity ("RFC") to perform sedentary work except for

10

certain nonexertional limitations that reduced Plaintiffs capacity for sedentary work. Plaintiff
could perform simple, unskilled work; could only stand or walk for two hours total in an eighthour workday with normal breaks; could sit for six hours in an eight-hour day with normal
breaks; could sustain a routine; could interact appropriately with co-workers and supervisors;
could have limited social contact, defined as no more than casual or limited contact with the
public; should avoid concentrated exposure to temperature extremes, dust, fumes, gases, odors,
and smoke; and could sustain a normal eight-hour workday. (Tr. 21-27)
The ALJ further determined that Plaintiff was unable to perform any past relevant work.
However, considering her younger age, at least high school education, work experience, and
RFC, the ALJ found that jobs existed in significant numbers in the national economy that
Plaintiff could perform. These jobs included surveillance systems monitor; cutter and paster,
press clippings; and bonder, semi-conductor. Thus, the ALJ concluded that Plaintiff had not
been under a disability, as defined by the Social Security Act, since August 22, 2011 , the date
Plaintiff filed her application. (Tr. 27-29)

V. Legal Standards
A claimant for social security disability benefits must demonstrate that he or she suffers
from a physical or mental disability. The Social Security Act defines disability "as the inability
to do 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." 20 C.F.R. § 404.1505(a).
To determine whether a claimant is disabled, the Commissioner engages in a five step
evaluation process. See 20 C.F.R. § 404.1520(a)(4). Those steps require a claimant to show: (1)
that claimant is not engaged in substantial gainful activity; (2) that she has a severe physical or

11

mental impairment or combination of impairments which meets the duration requirement; or (3)
she has an impairment which meets or exceeds one of the impairments listed in 20 C.F.R.,
Subpart P, Appendix 1; (4) she is unable to return to her past relevant work; and (5) her
impairments prevent her from doing any other work. Id.
The Court must affirm the decision of the ALJ if it is supported by substantial evidence.
42 U.S.C. § 405(g). "Substantial evidence means less than a preponderance, but sufficient
evidence that a reasonable person would find adequate to support the decision." Hulsey v.
Astrue, 622 F.3d 917, 922 (8th Cir. 2010). "We will not disturb the denial of benefits so long as

the ALJ's decision falls within the available zone of choice. An ALJ's decision is not outside the
zone of choice simply because we might have reached a different conclusion had we been the
initial finder of fact. " Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (citations and internal
quotations omitted). Instead, even if it is possible to draw two different conclusions from the
evidence, the Court must affirm the Commissioner' s decision if it is supported by substantial
evidence. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
To determine whether the Commissioner' s final decision is supported by substantial
evidence, the Court must review the administrative record as a whole and consider: (1) the
credibility findings made by the ALJ; (2) the plaintiffs vocational factors; (3) the medical
evidence from treating and consulting physicians; (4) the plaintiffs subjective complaints
regarding exertional and non-exertional activities and impairments; (5) any corroboration by
third parties of the plaintiffs impairments; and (6) the testimony of vocational experts when
required which is based upon a proper hypothetical question that sets forth the plaintiffs
impairment. Johnson v. Chafer, 108 F.3d 942, 944 (8th Cir. 1997) (citations and internal
quotations omitted).

12

The ALJ may discount a plaintiffs subjective complaints if they are inconsistent with the
evidence as a whole, but the law requires the ALJ to make express credibility determinations and
set forth the inconsistencies in the record. Marciniak v. Shala/a, 49 F.3d 1350, 1354 (8th Cir.
1995). It is not enough that the record contain inconsistencies; the ALJ must specifically
demonstrate that she considered all the evidence. Id. at 1354.
When a plaintiff claims that the ALJ failed to properly consider subjective complaints,
the duty of the court is to ascertain whether the ALJ considered all of the evidence relevant to
plaintiffs complaints under the Polaski 1 factors and whether the evidence so contradicts
plaintiffs subjective complaints that the ALJ could discount the testimony as not credible.

Blakeman v. Astrue, 509 F .3d 878, 879 (8th Cir. 2007) (citation omitted). If inconsistencies in
the record and a lack of supporting medical evidence support the ALJ' s decision, the Court will
not reverse the decision simply because some evidence may support the opposite conclusion.

Marciniak, 49 F.3d at 1354.

VI. Discussion
In her Brief in Support of the Complaint, Plaintiff argues that the ALJ failed to properly
determine Plaintiffs RFC because the ALJ afforded greater weight to a treating neurologist' s
opinion yet failed to include all of the limitations set forth in that opinion. Plaintiff also contends
that the ALJ failed to include all of Plaintiffs severe impairments at step two. Defendant asserts
that the ALJ properly determined which impairments were severe and properly considered the
1

The Eight Circuit Court of Appeals "has long required an ALJ to consider the following
factors when evaluating a claimant' s credibility: '(1) the claimant's daily activities; (2) the
duration, intensity, and frequency of pain; (3) the precipitating and aggravating factors ; (4) the
dosage, effectiveness, and side effects of medication; (5) any functional restrictions; (6) the
claimant's work history; and (7) the absence of objective medical evidence to support the
claimant's complaints. "' Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quoting Moore v.
Astrue, 572 F.3d 520, 524 (8th Cir. 2009)) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th
Cir. 1984)).
13

medical opinion evidence in formulating Plaintiffs RFC. The Court finds that the ALJ did not
properly consider all of Plaintiffs severe impairments at step two, and the Court will remand this
action for further proceedings.
"Step two of the regulations involves a determination, based on the medical evidence,
whether the claimant has an impairment or combination of impairments that significantly limits
the claimant's ability to perform basic work activity." Page v. Astrue, 484 F.3d 1040, 1043 (8th
Cir. 2007) (citing 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii)). Under Social Security
Ruling 96-3p, "an impairment that is 'not severe' must be a slight abnormality (or a combination
of slight abnormalities) that has no more than a minimal effect on the ability to do basic work
activities. SSR 96-3P, 1996 WL 374181 (S.S.A. July 2, 1996). " It is the claimant's burden to
establish that [her] impairment or combination of impairments are severe." Kirby v. Astrue, 500
F.3d 705, 707-08 (8th Cir. 2007) (citation omitted). " [T]he burden is not a heavy one, and any
doubt concerning whether the showing has been made must be resolved in favor of the
claimant." Morris v. Astrue, No. 4:12CV189 LMB, 2013 WL 1282343, at *12 (E.D. Mo. Mar.
27, 2013) (citing Kirby, 500 F.3d at 707).
Here, the medical evidence demonstrates that Plaintiffs seizure disorder had more than a
minimal effect on her ability to perform basic work activities. Plaintiff was regularly treated for
seizures by neurologists. In 2012, neurologist Dr. Choudhary noted that Plaintiffs EEG was
abnormal and consistent with a seizure disorder. (Tr. 749) Additionally, Dr. Choudhary
described Plaintiffs seizures as generalized tonic-clonic complex partial seizures of variable
duration with stress as a trigger. While the ALJ found that Plaintiffs seizures were controlled by
medication, her treating neurologist noted that medications helped but did not control her
seizures. (Tr. 803) Neurologist Dr. Thorat instructed Plaintiff not to drive for 6 months after her

14

most recent seizure with bodily loss of function. He suggested inpatient EEG monitoring. (Tr.
914) Both neurologists diagnosed a seizure disorder based on objective testing, as well as
Plaintiff's subjective complaints, and advised precautions for Plaintiff based on this disorder.
(Tr. 803, 914) Plaintiff reported to both Dr. Choudhary and Dr. Thorat that during an episode
she could not move and was tired and confused afterward. (Tr. 906, 665) Plaintiff testified that
after a seizure she needed to lie down because she was fatigued and had a headache. (Tr. 70)
Despite medical evidence from neurologists diagnosing Plaintiff with a seizure disorder
and noting that medication did not control the seizures, the ALJ found Plaintiffs disorder was
not severe. However, in light of the medical evidence and Plaintiffs subjective reports that she
was tired, had a headache, was confused, and needed to lie down after, Plaintiffs seizure
disorder would have more than a minimal effect on her disability. See Morris, 2013 WL
1282343, at *13. Thus, the Court finds that the ALJ erred by failing to properly evaluate the
severity of Plaintiff's seizure disorder at step two. Id Therefore, the Court will reverse and
remand this case to the ALJ to allow the ALJ to consider Plaintiffs seizure disorder as a severe
impairment and its effect on her RFC.
Plaintiff also argues that the ALJ failed to properly consider Plaintiffs mental
impairments as severe at step two of the evaluation. Plaintiff specifically claims that the ALJ
gave Dr. Choudhary' s mental evaluation greater weight, yet only assigned mild limitations to
Plaintiffs ability to sustain concentration, persistence, and pace. The Court notes that Dr.
Choudhary found moderate, not mild, limitations to Plaintiffs ability to sustain a normal routine
and maintain attention and concentration for extended periods. (Tr. 805) On remand, the ALJ
should also re-evaluate the severity of Plaintiffs mental impairments and their impact on
Plaintiffs RFC.

15

With regard to Plaintiffs diabetes and migraine headaches, the Court finds that Plaintiff
points to no evidence in her brief in support of the complaint or reply brief demonstrating that
her diabetes would have more than a minimal effect on her ability to work. Thus, the ALJ
properly found Plaintiffs diabetes to be nonsevere. (Tr. 19) Further, the record demonstrates
that the ALJ did consider Plaintiffs headaches to be severe and discussed the evidence related to
"migraine headaches" in the opinion. (Tr. 24) Therefore, contrary to Plaintiffs assertion, the
Court finds that the ALJ properly assessed Plaintiffs migraine headaches as severe.
In conclusion, the Court finds that the ALJ erred in determining that Plaintiffs seizure
disorder was non-severe at step two. As such, the ALJ's RFC determination and the
determination at step four are not supported by substantial evidence. Morris, 2013 WL 1282343,
at *15. Thus, the Court will reverse and remand the case to the ALJ for further proceedings to
consider Plaintiffs seizure disorder as severe and to re-evaluate Plaintiffs RFC in light of the
medical and opinion evidence of record.
Accordingly,
IT IS HEREBY ORDERED that the final decision of the Commissioner denying social

security benefits be REVERSED and REMANDED to the Commissioner for further
proceedings consistent with this Memorandum and Order. An appropriate Order of Remand
shall accompany this Memorandum and Order.
Dated this 28th day of March, 2016.

~~
RONNIE L. WIIlTE
UNITED STATES DISTRICT JUDGE

16