Quintrell v. Astrue

Filing 11

MEMORANDUM OPINION finding that the Commissioner's decision is supported by substantial evidence; the Commissioner's decision is affirmed and this matter is dismissed from the docket of this court. Signed by Magistrate Judge Mary E. Stanley on 3/23/2012. (cc: attys) (cbo)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
DARRELL L. QUINTRELL,
Plaintiff,
v.

CASE NO. 2:10-cv-01253

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION
This is an action seeking review of the decision of the Commissioner of Social
Security denying Claimant’s applications for disability insurance benefits (“DIB”) under
Title II of the Social Security Act, 42 U.S.C. § 401-433. Both parties have consented in
writing to a decision by the United States Magistrate Judge.
The plaintiff, (hereinafter referred to as “Claimant”), filed an application for DIB on
March 31, 2008, alleging disability as of February 13, 2008, due to a seizure disorder,
generalized anxiety disorder with depression, headaches, tinnitus and bilateral hearing loss.
(Tr. at 40, 153.) The claim was denied initially and upon reconsideration. (Tr. at 83-87, 8890.) Claimant requested a hearing before an Administrative Law Judge (“ALJ”). The
hearing was held on September 10, 2009, before the Honorable Marc Mates. (Tr. at 50-79.)
By decision dated October 16, 2009, the ALJ determined that Claimant was not entitled to
benefits. (Tr. at 40-49.) The ALJ’s decision became the final decision of the Commissioner
on August 27, 2010, when the Appeals Council denied Claimant’s request for review. (Tr.
at 1-4.) On October 25, 2010, Claimant brought the present action seeking judicial review

of the administrative decision pursuant to 42 U.S.C. § 405(g).
Under 42 U.S.C. § 423(d)(5) and § 1382c(a)(3)(H)(i), a claimant for disability
benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773,
774 (4th Cir. 1972). A disability is defined as the "inability to engage in any substantial
gainful activity by reason of any medically determinable impairment which can be expected
to last for a continuous period of not less than 12 months . . . ." 42 U.S.C. § 423(d)(1)(A).
The Social Security Regulations establish a "sequential evaluation" for the
adjudication of disability claims. 20 C.F.R. § 404.1520 (2009). If an individual is found
"not disabled" at any step, further inquiry is unnecessary. Id. § 404.1520(a). The first
inquiry under the sequence is whether a claimant is currently engaged in substantial gainful
employment. Id. § 404.1520(b). If the claimant is not, the second inquiry is whether
claimant suffers from a severe impairment. Id. § 404.1520(c). If a severe impairment is
present, the third inquiry is whether such impairment meets or equals any of the
impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4.
Id. § 404.1520(d). If it does, the claimant is found disabled and awarded benefits. Id. If
it does not, the fourth inquiry is whether the claimant's impairments prevent the
performance of past relevant work. Id. § 404.1520(e). By satisfying inquiry four, the
claimant establishes a prima facie case of disability. Hall v. Harris, 658 F.2d 260, 264 (4th
Cir. 1981). The burden then shifts to the Commissioner, McLain v. Schweiker, 715 F.2d
866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the claimant
is able to perform other forms of substantial gainful activity, considering claimant's
remaining physical and mental capacities and claimant's age, education and prior work
experience. 20 C.F.R. § 404.1520(f). The Commissioner must show two things: (1) that the
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claimant, considering claimant’s age, education, work experience, skills and physical
shortcomings, has the capacity to perform an alternative job, and (2) that this specific job
exists in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
In this particular case, the ALJ determined that Claimant satisfied the first inquiry
because he did not engage in substantial gainful activity since February 13, 2008, his
alleged onset date. (Tr. at 42.) Under the second inquiry, the ALJ found that Claimant
suffers from the severe impairments of seizure disorder, tinnitus and bilateral hearing loss.
(Tr. at 42.) At the third inquiry, the ALJ concluded that Claimant’s impairments did not
meet or equal the level of severity of any listing in Appendix 1. (Tr. at 43.) The ALJ then
found that Claimant has a residual functional capacity for light work, reduced by
nonexertional limitations. (Tr. at 44.) As a result, Claimant could not return to his past
relevant work as an equipment operator, welder and truck driver. (Tr. at 47.) The ALJ
concluded that Claimant could perform the jobs of mail clerk, office helper, price marker,
route clerk, retail order clerk and grader/sorter. (Tr. at 48.) On this basis, benefits were
denied. (Tr. at 49.)
Scope of Review
The sole issue before this court is whether the final decision of the Commissioner
denying the claim is supported by substantial evidence. In Blalock v. Richardson,
substantial evidence was defined as
“evidence which a reasoning mind would accept as sufficient to
support a particular conclusion. It consists of more than a mere
scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify a refusal to direct
a verdict were the case before a jury, then there is 'substantial
evidence.’”

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Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966)). Additionally, the Commissioner, not the court, is charged
with resolving conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). Nevertheless, the courts “must not abdicate their traditional functions; they cannot
escape their duty to scrutinize the record as a whole to determine whether the conclusions
reached are rational.” Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
A careful review of the record reveals the decision of the Commissioner in this case
is supported by substantial evidence.
Claimant’s Background
Claimant was forty-six years old at the time of the administrative hearing. (Tr. at
54.) Claimant graduated from high school and received vocational training in welding after
graduation. (Tr. at 55.) In the past, he served in the military in Germany and Iraq. (Tr. at
56, 64.) Claimant also worked for a contractor for the phone company running heavy
equipment, at a stamping plant and for the Department of Highways operating heavy
equipment. (Tr. at 56, 63-64.)
The Medical Record
The court has reviewed all evidence of record, including the medical evidence of
record, and will summarize it briefly below.
The evidence of record includes treatment notes predating Claimant’s onset of
February 13, 2008. The court has reviewed those records, but will not summarize all of
them here. Veterans Administration Medical Records
Prior to his onset, Claimant suffered from headaches, dysthymia and anxiety, among
other impairments. Many of Claimant’s impairments stem from his service in Iraq and
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Kuwait as a chaplain’s assistant. (Tr. at 334.) On March 23, 2005, and November 14, 2005,
Veteran Affairs Rating Decisions determined that Claimant’s tinnitus, bilateral hearing loss,
headaches, generalized anxiety disorder, depression, dysthymia and insomnia and dental
problems were service related. (Tr. at 818, 822, 826.)
On March 9, 2007, Claimant was diagnosed with anxiety not otherwise specified and
dysthymia. (Tr. at 277.)
In addition, prior to his onset date, on March 21, 2007, Claimant had a seizure. He
had no history of seizures. (Tr. at 261, 784.) Claimant was in a waiting area of a garage
getting his wife’s car fixed when the seizure occurred and had no recollection of what
happened. People around him reported seizure like activity. Claimant never lost control
of his bowels, but had a few drops of urine in his underwear. (Tr. at 266.) A CT of the head
was negative and an EKG did not show any acute changes. Claimant had elevated liver
function tests. (Tr. at 264.)
On March 28, 2007, Claimant experienced a sense of lightheadedness while
standing. Within moments he felt paresthesia in the right distal leg quickly spreading to
his entire body. He eventually fell unconscious and awakened without injury. The event
was not witnessed by others. (Tr. at 448.)
An MRI of the brain without contrast on April 2, 2007, showed no acute intracranial
abnormality. (Tr. at 807.)
On January 4, 2008, Claimant experienced a seizure episode and wrecked his car.
(Tr. at 524.) Claimant experienced bladder incontinence and bit his tongue during the
seizure. Claimant had been taking Depakote, and his levels were subtherapeutic. Lawrence
Clapp, M.D., a neurologist, recommended changing his medication to Dilantin. (Tr. at 430,
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492.) Dr. Clapp instructed Claimant not to drive a car or operate machinery. (Tr. at 492,
814.)
A CT of Claimant’s head on January 6, 2008, revealed sinus disease, but no definite
intracranial abnormality. (Tr. at 781.)

On February 8, 2008, Mahmoud A. Mohamed,

M.D., a staff psychiatrist, examined Claimant. Claimant’s mood was stabilizing with
increase in fluoxetine. Tremors and involuntary movements remained an issue. Creatine
Phosphokinase (“CPK”) was climbing up from the 200s to the 300s. Claimant had
discontinued Depakote after elevated liver function tests. (Tr. at 483-84.) Dr. Mohamed
encouraged Claimant to apply for disability due to seizures and to avoid driving. (Tr. at
484.)
On February 14, 2008, Dr. Clapp, examined Claimant. He diagnosed Claimant with
a seizure disorder. He discussed with Claimant the need to restrict activity that might be
dangerous if he has a seizure, but he also stated that the “fact [that Claimant has a] seizure
disorder should not prevent hi[m] from other duty.” (Tr. at 479.)
On February 21, 2008, Claimant was seen by a mental health outpatient physician
because he was extremely worried about returning to work. He was worried about hurting
himself or others if he has unexpected seizure activity. (Tr. at 476.) Dr. Mohamed’s
assessment was that Claimant’s mood was stabilizing with an increase in fluoxetine,
however, Claimant’s CPK continued to be climbing gradually. Tremors and involuntary
movements continued to be an issue. Claimant was not able to handle stress and it was
affecting his functioning. Dr. Mohamed gave Claimant a three week leave of absence
pending a second neurology opinion. (Tr. at 478.)
On March 17, 2008, Claimant called the VA complaining that he was feeling anxious
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after discontinuing fluoxetine. He was also feeling stressed because his license was not
renewed because of the seizure diagnosis. Dr. Mohamed explained that he was concerned
that Claimant’s CPK was climbing possibly because of the fluoxetine. He recommended
that Claimant increase of the Diazepam until he could be seen. (Tr. at 1255.)
On March 18, 2008, Dr. Clapp noted that Claimant had not suffered a recurrent
seizure. He continued to use Dilantin, but was not taking the Depakote. He was in the low
therapeutic range. Dr. Clapp continued Dilantin. (Tr. at 474.)
On March 30, 2008, Claimant’s license was suspended because of his seizure
condition. (Tr. at 812.)
On April 25, 2008, Dr. Mohamed saw Claimant for treatment of his seizure disorder,
general anxiety disorder and depressive disorder not otherwise specified. Claimant
reported that he had hit rock bottom and could not handle the stress of being off work.
Claimant reported sleep difficulties. (Tr. at 1250.) Dr. Mohamed found that Claimant was
presenting with depressive mood symptoms. He was having psychosocial problems, which
were contributing to his affective disorder. Dr. Mohamed restarted Claimant on fluoxetine.
(Tr. at 1251.)
On May 9, 2008, Afroza Sultana, M.D. examined Claimant in follow up. He had no
new complaints. His hypertension was stable. (Tr. at 1244.) His Creatine Kinase (“CK”)
was 11.9, but he had been out of medications for three days the week before. He had had
no seizure recently. He was on fluoxentine and Diazepam for his depressive disorder.
Claimant had a loose stool, possibly medication induced. He had a history of migraine
headaches with use of motrin. Claimant reported his headaches were not well controlled.
(Tr. at 1245.)

On May 19, 2008, Claimant saw another neurologist on an outpatient
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basis. Despite a mild CK elevation, Claimant did not appear clinically to show myopathy
(weakness). Claimant reported he had seen another neurologist outside the VA system in
February of 2008, and that the assessment indicated that he has now controlled seizures
when on Dilantin and the tremor he developed during Depakote treatment has now
diminished markedly. Claimant reported no seizures since January. The impression was
seizures of unknown etiology and history of migraine headaches. (Tr. at 1239.)
On May 19, 2008, Dr. Mohamed saw Claimant for his mental condition. Claimant’s
mood was “stabilizing well. Claimant had multiple psychosocial stressors, which he is
handling fairly well at this point.” (Tr. at 1243.)
On June 2, 2008, Claimant underwent an electrodiagnostic evaluation for possible
myopathy due to elevated CK levels.

(Tr. at 1181.)

Claimant had symptoms of

predominantly right lower extremity weakness with pushing off using his calf muscles
which was only detected by neurological evaluation. Claimant had no history of back
trauma. Claimant had no electrodiagnostic evidence of myopathic process on testing of the
right lower extremity. There were electrodiagnostic findings suggestive of a non active,
right sided neurogenic condition, most likely a previous radiculopathy involving L4-L5 and
S-1 innervated muscles. There was no evidence of muscle membrane irritability to suggest
an acute picture. (Tr. at 1182.)
On July 1, 2008, Claimant complained of fatigue and muscle aches in his legs, all of
which began about the time he started treatment for his seizures. (Tr. at 1213.) On
examination, Claimant had muscle weakness in flexion of the toes of both feet. (Tr. at
1221.) Claimant’s CPK was minimally elevated as 213. “The significance of this is probably
nothing but the etiology is unclear as this is a non specific test. His Dilantin level is 13.9.
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This is the therapeutic range.” (Tr. at 1228.) Claimant was no longer driving due to seizure
activity. (Tr. at 1229.) Gene L. Duncan, the staff physician who examined Claimant, felt
that the fatigue was likely related to depression. (Tr. at 1229.) Claimant also reported
weekly headaches. (Tr. at 1231.) Dr. Duncan felt that Claimant could do light and
sedentary work. (Tr. at 1230, 1235.)
On July 11, 2008, Clifton R. Hudson, Ph.D. conducted a psychological assessment
and diagnosed anxiety disorder, not otherwise specified and depressive disorder not
otherwise specified on Axis I and made no Axis II diagnosis. He rated Claimant’s GAF at 50.
(Tr. at 1211.)
On July 30, 2008, Claimant telephoned the Veterans Administration Medical Center
and reported that he had had a sudden memory loss that lasted about five minutes.
Claimant felt the way he felt the last time he had a seizure. Claimant wanted Dr. Clapp to
be notified. (Tr. at 1204.) On August 11, 2008, an addendum to the telephone note states
that Claimant had a typical migraine following the event and that Claimant possibly had a
partial seizure. (Tr. at 1203.)
On August 26, 2008, it was noted that Claimant had recently been fitted for a
hearing aid in the left ear. (Tr. at 1193.)
On August 26, 2008, Dr. Clapp examined Claimant. He had not suffered any altered
awareness since the last episode. Claimant reported feeling a constant sense of imbalance.
Dr. Clapp noted a normal EMG study and that Claimant’s CK continued to run mildly high.
Dr. Clapp’s impression was seizure disorder suspected with breakthrough partial seizure
recently. Dr. Clapp discussed with Claimant, the possibility of increasing his Dilantin on
a trial basis, and Claimant was agreeable.
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On August 27, 2008, Claimant was seen at the mental health outpatient clinic.
Claimant reported that psychotropic medication has been very helpful. He was not very
anxious or depressed. Claimant still had some days when he feels down or depressed. (Tr.
at 1188.) Dr. Mohamed noted that Claimant had residual depressive symptoms and anxiety.
Claimant reported he was stressed today. Claimant was to continue fluoxetine and
Diazepam. (Tr. at 1190.)
On November 5, 2008, the Department of Veterans Affairs issued a rating decision
on Claimant’s application for a new claim for benefits. It found that Claimant’s generalized
anxiety disorder with depression, previously dysthymia, and insomnia, which was currently
50 percent disabling, continued; that Claimant’s headaches, which was currently 30 percent
disabling, continued; that evaluation of Claimant’s bilateral hearing loss, which was zero
percent disabling, continued; that Claimant’s service connection hypertension was denied;
that service connection muscle aches in the thighs and calves (claimed as fatigue, muscle
pain and cramps) was denied; that service connection for tremors was denied; that service
connection for blurry vision was denied; that previous denial of service connection for
seizure disorder secondary to medication for other service connected conditions was
confirmed and continued; and that entitlement to individual unemployability was denied.
(Tr. at 1399-1400.)
Other Medical Records
Lincoln Primary Care Center
The record includes treatment notes from Gregory A. Elkins, M.D. and others at
Lincoln Primary Care Center dated March 5, 2008, through September 10, 2008. On
March 5, 2008, Claimant wanted to go to the Cleveland Clinic for a second opinion on his
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seizure disorder, but insurance required him to exhaust all local options. Syam Stoll, M.D.
agreed to try to get prior authorization for Claimant to be seen at the Cleveland Clinic. (Tr.
at 1320.) On March 11, 2008, Dr. Elkins saw Claimant in follow up for his seizure disorder.
Claimant was awaiting an appointment with the Cleveland Clinic. He was to continue
medication as prescribed and return in two months. (Tr. at 1321.) On May 6, 2008,
Claimant reported no further seizures and that his tremor “may be better.” (Tr. at 1323.)
Dr. Elkins diagnosed seizure disorder, generalized, probable chemical exposure. He
referred Claimant to occupational medicine. (Tr. at 1323.) On May 28, 2008, Robert
Walker, M.D. examined Claimant and found that he had a seizure disorder under
reasonable control with Phenytoin, tremor on the right which may be due to Dilantin, mild
incoordination, due to Dilantin and rule out “maganeses toxicity, other toxicity related to
military assignment.” (Tr. at 1324-25.)
On June 18, 2008, Dr. Walker found that Claimant had a seizure disorder,
generalized, tremor, weakness in the right lower extremity and ataxia. He recommended
an EEG and neurology consult. (Tr. at 1326.)
On July, 29, 2008, Dr. Elkins examined Claimant and noted he had had no further
seizures. Claimant wanted to cut back on his seizure medication. Dr. Elkins diagnosed
seizure disorder, generalized, tremor, incoordination, right sided and hypertension. (Tr.
at 1328.) Dr. Elkins wrote a “to whom it may concern note” on July 29, 2008, that
Claimant’s “Seizure Disorder has been aggravated by Insomnia, Depression, and Anxiety
Disorder.” (Tr. at 1383.)
Claimant saw Dr. Walker on July 30, 2008. He diagnosed seizure disorder,
generalized, hypertension and urinary hesitancy. (Tr. at 1330.) On September 10, 2008,
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Dr. Walker noted that Claimant had recently increased his Dilantin. The diagnosis
remained unchanged. (Tr. at 1331.) On December 8, 2008, Dr. Walker wrote that
Claimant’s “Seizure Disorder is cause[d] by and/or aggravated by his service connected
Anxiety Disorder, Insomnia and Depression.” (Tr. at 1406.)
On March 6, 2009, Dr. Elkins noted that Claimant had had no seizures since he was
last seen, but that he still had some tremor. Claimant’s blood pressure “has been good.”
(Tr. at 1407.) Claimant was having sleep difficulty. Dr. Elkins diagnosed seizure disorder,
generalized, hypertension and tremor. (Tr. at 1408.)
On April 23, 2009, Claimant reported to Dr. Elkins that two days ago he was sitting
on the couch and then found himself in the floor. He had bitten his tongue and had urinary
incontinence. Claimant had been off Dilantin for several months. Claimant had a slight
tremor in the right hand, and he was slightly unsteady during the Rhomberg. The diagnosis
remained unchanged. He prescribed Divalproex and ordered blood work. (Tr. at 1409-10.)
On May 28, 2009, Dr. Elkins noted that Claimant had good compliance with his
seizure medications and had had no seizures since his last visit. (Tr. at 1411.) His
assessment was seizure disorder, generalized. (Tr. at 1412.)
Suresh Kumar, M.D.
On February 27, 2008, Suresh Kumar, M.D. examined Claimant related to his
seizures and tremors. Claimant reported a total of four seizures, the last one in January of
2008. Dr. Kumar recommended that Claimant continue his current dosage of Dilantin
since he had started it about a month ago and had had no further seizures. He encouraged
Claimant to control his depression and get a good night’s sleep to avoid break through
seizures. Claimant had an efferential kind of tremor that started before he had seizures.
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Dr. Kumar noted that Claimant has fatigue all the time and found that Claimant has a
chronic fatigue syndrome. (Tr. at 1335.)
Consolidated Public Retirement Board
On March 11, 2008, just prior to onset, Dr. Elkins completed a Public Employees
Retirement System Physician’s Disability Report, Re-examination form on which he opined
that Claimant has a seizure disorder and that, as a result, Claimant is unable to perform his
previous state employment or any other kind of substantial gainful activity. (Tr. at 1418.)
On March 18, 2008, just prior to onset, Dr. Clapp completed a Public Employees
Retirement System Physician’s Disability Report, Re-examination form on which he opined
that Claimant has a seizure disorder and that he should engage in no activity that would be
dangerous if loss of consciousness were to occur. He opined that the period of limitation
is “indefinite at this point,” but when asked if Claimant could engage in his previous state
employment or other substantial gainful activity he did not answer “yes” or “no,” but stated
instead, “uncertain in my mind.” (Tr. at 1419.)
On September 4, 2008, the Consolidated Public Retirement Board wrote that
Claimant’s application for disability retirement benefits had been granted. (Tr. at 1398.)
State Agency Assessments
On April 25, 2008, a State agency medical source completed a Physical Residual
Functional Capacity Assessment and opined that Claimant could perform light work with
an inability to climb ladders, ropes and scaffolds and crawl, an occasional ability to climb
ramps and stairs, balance, stoop, kneel and crouch, a need to avoid concentrated exposure
to extreme cold and heat and a need to avoid even moderate exposure to hazards. (Tr. at
1340-45.)
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On May 1, 2008, a State agency medical source completed a Psychiatric Review
Technique form and opined that Claimant’s mental impairments were not severe. (Tr. at
1357-70.)
On July 15, 2008, a second State agency medical source completed a Physical
Residual Functional Capacity Assessment and opined that Claimant could perform medium
work, can occasionally climb ladders, ropes and scaffolds, should avoid concentrated
exposure to extreme cold, heat, humidity, vibration, fumes, odors, dusts, gases and poor
ventilation and should avoid even moderate exposure to hazards. (Tr. at 1375-83.)
On August 9, 2008, a second State agency medical source completed a Psychiatric
Review Technique form and opined that Claimant’s mental impairments were not severe.
(Tr. at 1384-97.)
Claimant’s Challenges to the Commissioner’s Decision
Claimant asserts that the Commissioner’s decision is not supported by substantial
evidence because the ALJ erred in finding that Claimant could perform jobs when the
vocational expert testified that when Claimant’s complaints were fully credited, there were
no jobs available. (Pl.’s Br. at 8-9.) In his reply, Claimant argues that his seizures are not
under good control, and that he has suffered a total of thirteen seizures since February 13,
2008. (Pl.’s Reply at 1-7.)
The Commissioner argues that the ALJ was not required to give the Claimant full
credibility in this case and that when his credible limitations were included in a hypothetical
question, the vocational expert identified jobs that Claimant could perform. (Def.’s Br. at
7-10.)
The court finds that the ALJ’s decision is supported by substantial evidence. In
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particular, the Commissioner met his burden at step five of the sequential analysis. At the
administrative hearing, the ALJ asked the vocational expert two hypothetical questions, the
one cited by Claimant, which assumes full credibility of Claimant’s allegations (in response
to which the vocational expert could identify no jobs), and one that included limitations
supported by substantial evidence of record (in response to which the vocational expert
identified light and sedentary jobs). (Tr. at 76-78.)
In his decision, the ALJ determined that Claimant’s subjective complaints were not
entirely credible, and his findings comply with the applicable regulations, case law and
social security ruling (“SSR”) and are supported by substantial evidence. 20 C.F.R. §
404.1529(b) (2009); SSR 96-7p, 1996 WL 374186 (July 2, 1996); Craig v. Chater, 76 F.3d
585, 594 (4th Cir. 1996). The ALJ’s decision contains a thorough consideration of
Claimant’s daily activities, the location, duration, frequency, and intensity of Claimant’s
pain and the frequency and other factors related to his seizures, precipitating and
aggravating factors and Claimant’s medication. (Tr. at 46-47.)
The evidence of record indicates that Claimant reported four seizures:
March 21, 2007 - observed at car dealership - (Tr. at 261)
March 28, 2007 - not observed - (Tr. at 448)
January 4, 2008 - observed car wreck - (Tr. at 524)
July 30, 2008 - not observed - partial - (Tr. at 1203-04)
April 21, 2009 - not observed - (Tr. at 1409-10 ).
Only two of these seizures, one of which was a partial seizure, actually occurred after
Claimant’s alleged onset.
In any event, the ALJ provided ample explanation for his determination that
Claimant’s subjective complaints were not entirely credible. With respect to Claimant’s
seizures in particular, the ALJ pointed out that at the time of his seizure in January of 2008,
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when he wrecked his car, his Depakote level was sub-therapeutic. He further noted that
[i]n February 2008, Dr. Kumar observed that claimant’s medication had been
changed from Keppra to Depakote and he had no seizures for eight months;
then, his medication was switched to Dilantin without further seizure activity
(Exhibit 9F). At hearing, claimant testified that he had been returned to
Depakote at a lower dosage level.
(Tr. at 45-46.)
The ALJ further noted that
The claimant is understandably concerned about his seizure disorder, given
the January 2008 car accident and the subsequent loss of his driver’s license.
In March 2008, Dr. Elkins noted that claimant’s job involve driving, so he
was unable to work (Exhibit 8F, p. 4). In support of claimant application for
the Public Employees Retirement System, Dr. Clapp that same month
indicated that, due to his seizure disorder, claimant could not engage in any
activity that would be dangerous if loss of consciousness were to occur
(Exhibit 29F, p 2). The undersigned agrees, but such statements would not
preclude claimant from performing work as described above.
(Tr. at 46.)
The ALJ ultimately adopted the opinion of the State agency medical source who
limited Claimant to light work, further limited by nonexertional limitations.

He

acknowledged that treating sources opined that Claimant should avoid driving and hazards
that would be dangerous if loss of consciousness were to occur. (Tr. at 46-47.) The ALJ’s
residual functional capacity adequately contemplates limitations resulting from Claimant’s
seizure impairment. When the ALJ presented a hypothetical question to the vocational
expert including such limitations, the vocational expert identified light and sedentary jobs
that Claimant could perform. (Tr. at 76-77.)
In his reply, Claimant refers to additional seizures he has had that were not before
the ALJ. The court cannot consider this evidence. Such evidence is best presented in
support of a new application.
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After a careful consideration of the evidence of record, the court finds that the
Commissioner’s decision is supported by substantial evidence. Accordingly, by Judgment
Order entered this day, the Commissioner’s decision is AFFIRMED and this matter is
DISMISSED from the docket of this court.
The Clerk is directed to transmit copies of this Memorandum Opinion to all counsel
of record.
ENTER: March 23, 2012

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