McFeely v. Commissioner of Social Security

Filing 19

ORDER Affirming the Decision of the Commissioner of Social Security, signed by Chief Judge William C Griesbach on 06/27/2014. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS MCFEELY,
Plaintiff,
v.

Case No. 13-C-832

CAROLYN COLVIN,
Defendant.

DECISION AND ORDER

Plaintiff Thomas McFeely brings this action challenging the decision of the Commissioner
of Social Security denying his disability benefits. For the reasons given herein, the decision will
be affirmed.

I. Background
Plaintiff has been diagnosed with a congenital brain malformation called closed lip
schizencephaly. (Tr. 658.) This has resulted in seizures that cause him to shake and sometimes lose
consciousness. He also struggles with anxiety disorder and substance abuse, including alcohol,
cannabis and methamphetamine, which has resulted in him being terminated from several alcohol
and drug treatment programs. For several months in 2008 and 2009 Plaintiff was incarcerated after
being convicted of burglary, theft and operation of a motor vehicle without consent.
The ALJ denied benefits. In doing so, the ALJ discounted the plaintiff’s credibility for
several reasons. Plaintiff had often given conflicting histories of his medical condition, with one

doctor noting that he had been “very evasive” when asked about drug and alcohol problems. (Tr.
582.) (That doctor declined to take him on as a patient due to his lack of straightforwardness.) In
addition, Plaintiff had told various physicians that he stopped taking his medications because he
didn’t think he needed them or they weren’t effective. A psychologist also noted that he was not
forthright and open about presenting his information. (Tr. 616.) In short, the ALJ found little in
the record to corroborate the plaintiff’s testimony that his seizures were debilitating and that he
experienced auras every day.
The crux of the case was the opinion of Plaintiff’s neurologist, who concluded that Plaintiff
was disabled. The ALJ gave little weight to the neurologist’s opinion on the grounds that the
neurologist was unaware of Plaintiff’s continued alcohol use and his failure to use his anti-seizure
medications. Instead, the ALJ gave greater weight to the opinions of two state agency medical
consultants.

II. Analysis
An ALJ’s opinion will be upheld if it is supported by substantial evidence, that is, “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971); McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir.
2011). The reviewing court does not reweigh evidence but merely determines whether the ALJ has
built a “logical bridge” from the evidence to the conclusion. Young v. Barnhart, 362 F.3d 995, 1002
(7th Cir. 2004).
A. Opinion of Dr. Seeger
Plaintiff first argues that the ALJ failed to give proper weight to the opinion of Dr. Seeger,
Plaintiff’s treating neurologist. Dr. Seeger wrote a “to whom it may concern” letter in February
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2012 indicating that Plaintiff has intractable epilepsy caused by a congenital brain malformation.
(Tr. 655.) (The record suggests the cause might have been head trauma. (Tr. 90.)) The epilepsy
“has not responded to essentially all currently available anti-epileptic medications. The expectation
is that his epilepsy will remain intractable.” (Id.) “Therefore, we consider Mr. McFeely disabled
from a neurological standpoint due to the frequency and unpredictable nature of these seizures.”
(Id.)
The ALJ gave “limited weight” to Dr. Seeger’s opinion. (Tr. 20.) The ALJ noted that Dr.
Seeger had seen Plaintiff only infrequently over the years and was “apparently not aware of his noncompliance in terms of both his medication and his continued use of alcohol.” (Id.) Plaintiff argues
that the ALJ’s conclusion impermissibly substitutes her own judgment for that of the treating
neurologist.
An ALJ “may discount a treating physician's medical opinion if the opinion is inconsistent
with the opinion of a consulting physician or when the treating physician's opinion is internally
inconsistent, as long as he minimally articulates his reasons for crediting or rejecting evidence of
disability.” Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir.2007) (internal quotations marks and
citation omitted).
The record supports the ALJ’s view. If the neurologist did not know about Plaintiff’s
alcohol use, that would undoubtedly have affected her conclusion that his seizures were intractable.
State agency physician Ronald Shaw, M.D. noted that although a neurological evaluation showed
his seizures to be intractable, the claimant “was not providing accurate info to the neurologist
regarding his etoh [ethanol, i.e., alcohol] use. Clmt has also not taken many of the meds he was
prscd as he was instructed to.” (Tr. 624.) Dr. Shaw thus concluded that Plaintiff’s statements
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regarding his seizures were “not credible.” (Id.) The ALJ cited this opinion in reaching her
decision. Similarly, state agency consultant Dr. Pat Chan concluded that Plaintiff’s control of
seizures “is hampered by noncompliance with prescribed medication at times and ongoing alcohol
abuse.” (Tr. 471.) The ALJ also cited Dr. Chan’s opinion favorably.
The record demonstrates significant alcohol-related experiences, as well as deceit about
those experiences. For example, Plaintiff was admitted to the hospital after a seizure on March 23,
2010, and he reported that he had hit his head the previous night after drinking significant amounts
of alcohol. He reported to the emergency room doctor that “he thought that this was related to the
seizure also.” (Tr. 548.) Had the neurologist known of such information, her opinion might well
have been different, because alcohol use was partly to blame for at least some of his seizures.
Instead, she had been told in January 2010 that he had been “sober for a long time, but had some
alcohol use when he was younger.” (Tr. 517.) Yet only weeks earlier, Plaintiff had been admitted
to the ER for clearance to be taken to jail. At that time, he reported drinking 10 shots of vodka three
to four times per week. (Tr. 448.) And two months after Dr. Seeger said Plaintiff was “sober for
a long time,” he was admitted to the ER as a result of hitting his head after drinking. (Tr. 548.)
Thus, it was clear in 2010 that Plaintiff was consuming large amounts of alcohol and that Dr. Seeger
had not been provided the truth about Plaintiff’s drinking habits. Similarly, around the same time
Plaintiff sought treatment from Dr. Steinke, who ultimately refused to take him on as a patient. Dr.
Steinke’s January 2010 treatment notes reveal anger after his own investigation revealed that
Plaintiff had been admitted to the ER only weeks earlier “inebriated and [he] was very abusive to
the nurses and acted very inappropriately with the nurses.” (Tr. 582.) Given this history, the ALJ

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was correct to discount the opinion of Dr. Seeger because it was based on an incomplete and
arguably misleading medical history.
Alcohol use was critical not just in the onset of Plaintiff’s seizures but also in its effect on
antiseizure medication. During the hearing the ALJ asked whether “Dr. Seeger has told you that
drinking is absolutely a no-no with seizure medication, right? . . . And it totally interferes with the
seizure control when you try and drink with seizure medication, correct?” (Tr. 96.) Plaintiff agreed
with both statements. (Id.) Given that Dr. Seeger was under a misapprehension about Plaintiff’s
drinking habits, the ALJ correctly discounted her opinion that the plaintiff’s epilepsy was resistant
to medication.
Just as importantly, the ALJ properly concluded that Plaintiff’s history of not taking his
medications was an important factor that warranted discounting the neurologist’s opinion, just as
Drs. Chan and Shaw had concluded. The record contains several instances of Plaintiff not taking
medication properly. In November 2009 he reported that he stopped taking his seizure medications
two months earlier because he thought they were a “waste of money.” (Tr. 449.) This statement
could be interpreted a number of ways. It could mean that he believed the medication was not
helping him at all. It could mean that his symptoms and the frequency of his seizures were not
serious enough to justify the expense of the medication. It could also mean that he simply
prioritized other expenditures over his medication.

In the course of a single medical record, there

is conflicting evidence about why he was not taking his medications. On January 22, 2010, Plaintiff
visited Dr. Steinke, who noted that Plaintiff reported stopping his medications “because he just did
not need them.” (Tr. 581.) Dr. Steinke also referred to notes from another provider, who had
reported that Plaintiff said the medication “cost[s] money and he just did not want to buy them.”
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(Id.) Dr. Steinke was “suspicious” of Plaintiff’s motives in seeking an appointment with him. He
asked the plaintiff why he was “jumping around between doctors so much,” and why he spent
money on cigarettes when he said he cannot afford to buy his medications. (Tr. 584.) Thus within
a single medical record there is a strong suggestion that the plaintiff was giving numerous reasons
why he was not taking his seizure (and other) medications—he could not afford them, he did not
want to buy them, and he did not need them. Regardless, what was clear is that he did not have an
established pattern for taking his medication as directed.
On March 23, 2010 Plaintiff was admitted to the ER after a seizure. The admitting physician
noted that Plaintiff had been prescribed gabapentin and clonazapam, but that Plaintiff had run out
of clonazapam [Klonopin] and did not recall whether he had taken his gabapentin the day prior to
the seizure. (Tr. 548.) The treatment provided, after consultation with a neurologist, was to
administer gabapentin and anticonvulsant drugs and have Plaintiff admitted to the hospital for
observation. Plaintiff declined admission to the hospital and the doctor noted that he “seemed to
understand that he was taking risks with his life and longevity” by refusing admission to the
hospital. (Tr. 549.)
This ER record shows at least three things. First, it demonstrates that medication was part
of the prescribed treatment for his condition, because doctors administered gabapentin and
recommended further anticonvulsives. In other words, the epilepsy was not considered intractable
at this time. Second, as the ALJ noted, it demonstrates that Plaintiff was not taking his prescribed
medication. Third, it demonstrates Plaintiff’s decision to reject the medical advice of treating
physicians. All of these facts undermine his credibility about the severity of his symptoms (as the
ALJ concluded) and further undermine Dr. Seeger’s opinion. In short, had Dr. Seeger known that
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Plaintiff was simply not taking his antiseizure medications with any consistency, it is doubtful that
she would have concluded his seizures were resistant to medication. Plaintiff was not taking his
medication the day prior to admission to the hospital, and the next day he had a seizure.1 Whether
there was a cause and effect with the medication, or whether (as Plaintiff believed) hitting his head
as a result of drinking alcohol was a cause of the seizure, both factors are material and yet were not
incorporated in Dr. Seeger’s opinion.
Plaintiff’s condition was apparently not one that, by its very nature, would necessarily have
been intractable. Instead, it appears his doctors reached that conclusion only after anti-seizure
medications did not have the hoped-for effect. Thus, had Dr. Seeger known he was not even taking
his medications properly, she likely would not have concluded that his seizures were resistant to
medication. That conclusion, of course, was the foundation of her view that he was disabled. (Tr.
655.) The ALJ properly discounted her opinion for those reasons.
B. The Listings
Plaintiff also argues that the ALJ failed to properly consider whether his combination of
impairments equaled the listings. In particular, the plaintiff appears to argue that the ALJ should
have credited the opinion of state consulting psychologist Dr. Edelman. Dr. Edelman completed

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At a minimum, he did not take Klonopin and did not remember whether he took gabapentin.
Asking someone whether he took his medication the previous day is akin to asking someone
whether he remembers stopping at a stop sign a day earlier. If the person habitually stops at stop
signs, he will have no trouble answering in the affirmative even though he might not remember the
specific stop in question. Here, the fact that Plaintiff did not remember if he took his gabapentin
strongly suggests that he did not take his medication. Prescription drugs are generally taken out of
habit as part of a routine, and thus if someone does not remember taking the drug it is likely that
taking that drug was not part of his routine.
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both a Psychiatric Review Technique (PRT) and a Mental Residual Functional Capacity Assessment
(MRFC). These forms are used by the SSA consultants to evaluate mental impairments in
accordance with the “special technique” prescribed in 20 C.F.R. § 404.1520a.
The detailed instructions governing the use of these forms are set forth in the SSA’s
Program

Operations

Manual

System

(“POMS”),

which

is

available

at

https://secure.ssa.gov/apps10/poms.nsf. See DI 24505.025 and DI 24510.060. This court has
previously described the special technique in detail, see Bloomer v. Colvin, Case No. 12-C-1275,
2013 WL 5539412, **4-7 (E.D. Wis. Oct. 8, 2013) (unpublished), and will not repeat that
discussion here. To meet a listing requires that the claimant's mental impairments result in at least
two of the following problems: (1) marked restriction in activities of daily living; (2) marked
difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration,
persistence, and pace; or (4) repeated episodes of decompensation. See 20 C.F.R. Pt. 404, Subpt.
P, App. 1, §§ 12.02B, 12.04B, 12.06B (commonly known as “the B criteria”). Sims v. Barnhart,
309 F.3d 424, 431 (7th Cir. 2002). The ALJ found that Plaintiff’s mental impairments (e.g., anxiety,
moderate restrictions in social functioning, etc.) were not equivalent to a listing because there was
no evidence he had marked restrictions in significant areas of social functioning; persistence,
concentration and pace; activities of daily living; and he had no repeated episodes of
decompensation. (Tr. 17.) These areas were considered in combination, not in isolation.
Dr. Edelman’s report, upon which Plaintiff places most of his reliance, would not support
a finding of disability under a listing. In his rating of functional limitations, Dr. Edelman found only
moderate restrictions of daily living activities, maintaining social functioning and concentration,

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persistence or pace. There were no periods of decompensation. (Tr. 637.) These are the
“Paragraph B” criteria that the ALJ actually considered, and they do not equal a listing. Thus, even
based on the PRT completed by Dr. Edelman, Plaintiff did not meet a listing. (Tr. 627.)
Plaintiff points to the MRFC completed by Dr. Edelman in which he checked the box in
Section I, the “Summary Conclusion” section of the form, indicating he was “markedly limited” in
“the ability to interact appropriately with the general public.” (Tr. 642.) But Section I is not
considered part of the RFC. According to the POMS, “Section I is merely a worksheet to aid in
deciding the presence and degree of functional limitations and the adequacy of documentation and
does not constitute the RFC assessment.” POMS DI 24510.060 (bold original); see also Smith v.
Commissioner of Social Sec., 631 F.3d 632, 637 (3d Cir. 2010) ( “Because Smith cannot rely on the
worksheet component of the Mental Residual Functional Capacity Assessment to contend that the
hypothetical question was deficient, his argument is without merit as it pertains to Dr. Tan and Dr.
Graff.”). Moreover, the ALJ gave “limited weight” to the reports completed by Dr. Edelman
because he found that Plaintiff had moderate limitations in activities of daily living whereas the ALJ
concluded the evidence showed only minimal restrictions in that area.” (Tr. 22.)
Finally, Dr. Edelman, like other medical providers, found Plaintiff “vague, evasive &
providing conflicting information.” (Tr. 642.) It was clear that Dr. Edelman was unimpressed by
Plaintiff’s mental health issues. Even if one considers the worksheet he completed, Dr. Edelman
found him to have essentially normal or only moderately limited abilities in 19 out of 20 categories
on the worksheet, and noted Plaintiff did not have any anxiety symptoms during the interview. (Tr.
643.) The only marked difficulty was an inability to interact with the general public. Thousands

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of jobs exist that do not require interaction with the general public, and so the ALJ reasonably found
plenty of jobs the plaintiff could perform even after incorporating this limitation into the residual
functional capacity. Plaintiff has not cited any cases in which someone with such commonplace
mental health issues was found to have met a listing. Ultimately, Plaintiff’s mental health issues
involve a relatively standard personality disorder and issues with anxiety—the kinds of issues that
are seen in countless claimants, not to mention tens of millions of other Americans. Although these
factors are typically given consideration in determining a residual functional capacity, it is unclear
why this Plaintiff believes his mental health issues would rise to the level of meeting a listing for
disability. In short, the ALJ properly considered the evidence and reached a sound conclusion.
C. Developing the Record
Plaintiff also argues that the ALJ erred by failing to adequately consider the seizure
questionnaires submitted by Plaintiff’s mother and other relatives. He argues that if the ALJ found
them less than fully credible, the ALJ should have independently sought additional medical
information or sent Plaintiff to a neurologist consultant.
During the hearing, the ALJ found it “stunning” that the plaintiff himself did not keep any
kind of records on his seizure history. (Tr. 98.) Plaintiff’s family members submitted reports
attempting to document his condition, but the ALJ discounted these given their relationship with
the plaintiff. (Tr. 22.) The ALJ’s conclusion of no disability was largely based on the plaintiff’s
alcohol use and noncompliance with medication, which I have addressed above. Given those
findings, the observations of family members would not be material because they would not support
the notion that Plaintiff’s condition was intractable. Put another way, there is little evidence in the

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record that Plaintiff’s condition could not be controlled or ameliorated if he avoided alcohol and
took his medication as directed. No further development of the record would have changed that
conclusion.
D. Other Evidence
Plaintiff has filed, along with his reply brief, treatment notes provided by a
neuropsychologist on February 25, 2013 (after the ALJ’s decision). (ECF. No. 18-1.) Dr. William
Hitch, Ph.D. conducted a neuropsychological exam on Plaintiff and noted issues of attention and
concentration, as well as depression and anxiety. These concerns were magnified by the issue of
Plaintiff’s seizures.
District courts have the ability to remand based on new evidence where “there is new
evidence which is material and [ ] there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding,” 42 U.S.C. § 405(g). But here the evidence speaks to the
plaintiff’s post-hearing condition rather than his condition prior to the ALJ’s decision. Individuals
with medical problems frequently and routinely have changes in their conditions over time. If new
evidence such as this justified a remand, then remands would become the norm given the frequency
with which patients have occasion to have new tests or meet with new doctors. That is not what
the law requires. Getch v. Astrue, 539 F.3d 473, 484 (7th Cir. 2008) (“None of the new evidence
proffered by Mr. Getch speaks to his condition at the relevant time period; it pertains only to his
allegedly worsening condition in 2004 and 2005—well after the ALJ rendered his decision.”)
Accordingly, I conclude the recently-filed opinion of Dr. Hitch is immaterial to the benefits
determination.

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III. Conclusion
For the reasons given above, the decision of the Commissioner is affirmed.
SO ORDERED this

27th

day of June, 2014.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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