United States District Court, N.D. Illinois, Western Division
August 17, 2004.
DWAYNE HARRIS, Plaintiff,
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.
The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Dwayne Harris ("Plaintiff") seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration ("Commissioner"). See 42 U.S.C. §§ 405(g),
1383(c)(3). The Commissioner's final decision denied Plaintiff's
application for Disability Insurance Benefits (DIB) pursuant to
Title XVI of the Social Security Act (the "Act").
42 U.S.C. § 1381(a). This matter is before the Magistrate Judge pursuant to
consents filed by both parties on November 24, 2003. See
28 U.S.C. § 636(c); Fed.R. Civ. P. 73.
Plaintiff filed for DIB on June 17, 2002, alleging disability
since April 15, 2001, due to epilepsy. (Tr. 73-75). Plaintiff's
application for benefits was denied on October 16, 2002. (Tr.
43-45). On November 21, 2002, Plaintiff filed a request for
reconsideration. (Tr. 47). Plaintiff's request for
reconsideration was denied on December 23, 2002. (Tr. 48-51).
Plaintiff then filed a request for a hearing before an
Administrative Law Judge ("ALJ") on February 21, 2003. (Tr. 52).
Plaintiff appeared, with counsel, before an ALJ on June 3, 2003.
(Tr. 23). In a decision dated June 23, 2003 the ALJ found that
Plaintiff was not entitled to DIB. (Tr. 14-20). On June 26, 2003, Plaintiff requested a review of the ALJ's decision by the Appeals
Council. (Tr. 9). On August 8, 2003, the Appeals Council denied
Plaintiff's request for review. (Tr. 5-7).
Plaintiff was born on June 14, 1976. (Tr. 26). Plaintiff was
twenty six years old at the time of his June 3, 2003 hearing
before the ALJ. (Id.). Plaintiff is six feet and two inches
tall and weighs 260 pounds. (Tr. 148). Plaintiff is a single male
with one minor dependant daughter born out of wedlock. (Tr. 147).
Plaintiff's daughter resides in Alabama. (Id.). At the time of
the hearing Plaintiff was living with his mother and two younger
teenaged siblings in Rockford, Illinois. (Tr. 27). Plaintiff is a
high school graduate and received an associates degree in
accounting from Rockford Business College in 1999. (Tr. 28).
Plaintiff claims he is unable to work due to epilepsy. (Tr.
73). Plaintiff has worked since his alleged onset of disability
date of April 15, 2001. (Tr. 27). Plaintiff worked as an income
tax assistant for a company called Professional Accounting & Tax
Service, Inc., located in Rockford Illinois. (Tr. 28). Plaintiff
described the job as seasonal, lasting from January to April.
(Tr. 93). In 2003, Plaintiff only worked from January 6, 2003 to
February 10, 2003, due to increase in frequency of his seizures.
(Tr. 28). Plaintiff testified that he experienced seizures at
work. (Id.). Kevin Greenberg, the tax office manager, provided
a letter stating that he witnessed Plaintiff having a seizure at
work. (Id.). Mr. Greenberg described one incident when
Plaintiff, while working with a client, fell off his chair,
appeared unconscious and unresponsive and had to receive
emergency medical attention. (Tr. 113). Mr. Greenberg did not
specify a date in his letter on which this incident occurred.
Plaintiff's work as an income tax assistant was sedentary, and
involved sitting at a desk and preparing income tax returns for eight hours a day. (Tr. 94). In
the past, Plaintiff has worked as a customer service
representative, waiter, cook, and in shipping and receiving. (Tr.
33). Plaintiff's job as a customer service representative was
with a telemarketing firm. Plaintiff's telemarketing job was
sedentary. (Id.). Plaintiff's work as a waiter involved walking
and carrying dinner trays, weighing less than ten pounds, to
customers. Plaintiff also has worked in shipping and receiving
for a factory that made tools; the job involved placing boxes,
usually weighing twenty five pounds, off and on trucks. (Id.).
Plaintiff has had seizures since 1989, when he was thirteen
years old. (Tr. 121). During a typical seizure Plaintiff loses
consciousness and is unresponsive for several minutes while his
body tenses up and shakes; afterwards Plaintiff feels fatigued
and usually he falls asleep for three to four hours. (Tr. 29-31,
35). Plaintiff testified that he usually has seizures at night
when he is sleeping, and then wakes up feeling fatigued. (Tr.
30-31). Plaintiff also has seizures during the day, usually in
the morning when he is getting ready for work or school. (Tr.
31). As a child Plaintiff was successfully treated with Dilantin
and Depakote, and then Depakote mono-therapy. (Tr. 121).
Plaintiff was found eligible as a child for SSI, and continued
receiving disability benefits after his eighteen year old review.
Plaintiff's SSI was terminated in November 1998, (Tr. 88). For
several years Plaintiff was off all medications. (Tr. 147).
Plaintiff testified that he had a seizure-like episode three
times per month when he was off all medication. (Tr.
35).*fn1 Plaintiff got his associates degree during this
period and describes it as the best time of his life. (Id.). In early 2001, Plaintiff experienced an increased frequency of
seizures. (Tr. 121). Plaintiff sought treatment for his seizures.
(Tr. 142). At the time of the hearing, Plaintiff's recommended
treatment regimen included 400 mg of Dilantin and 150 mg of
Tegretol. (Tr. 28). Plaintiff testified at the hearing that he
experiences about two or three seizures a week. (Tr.34).*fn2
Plaintiff testified that sometimes he has to miss work when he
has a seizure in the morning or leave work after he has a seizure
at work. (Id.). Plaintiff testified that the frequency of his
seizures is not compatible with the toleration of absenteeism at
any of the jobs he performed in the past or has the ability to
Christopher Yep, a vocational expert, testified at the ALJ
hearing. (Tr. 36-39). Mr. Yep testified that he was familiar with
Plaintiff's file, including a Residual Functional Capacity
Assessment ("RFC"), which prohibited Plaintiff from climbing
ropes, using ladders, working at unprotected heights, and to
avoid working around dangerous machinery. (Tr. 36). Mr. Yep
classified Plaintiff's past relevant work as an income tax
assistant as a semi-skilled job performed at a sedentary level of
exertion. (Tr. 37). Mr. Yep found Plaintiff's other past work as
a customer service representative, waiter, and shipping and
receiving to be unskilled work performed at sedentary, light and
medium levels of exertion respectively. (Id.). Mr. Yep was
asked by the ALJ whether a person of Plaintiff's age and
education, who was unable to climb ropes, use ladders, work at
unprotected heights, or around dangerous machinery could work as
an income tax assistant. (Id.). Mr. Yep testified that such a
person could work as an income tax assistant and that Plaintiff's
limitations would not prevent Plaintiff from performing any of
his past relevant work. (Id.). Mr. Yep also testified that there were other jobs in the state of
Illinois such as cashier and assembly positions which a person of
Plaintiff's age, education and limitations could perform. (Tr.
39). Mr. Yep testified that the toleration of absenteeism at the
jobs described above was that of one day per month, or twelve
days per year. (Tr. 38).
The RFC from the ALJ is based on the ALJ's perceptions that:
(1) the course of treatment pursued by Plaintiff's treating
physicians is routine and conservative; (2) the medical record
does not contain any statement by a treating physician stating
that Plaintiff is disabled; (3) Plaintiff's complaints of
disabling symptoms are not credible because they are inconsistent
with the medical record; (4) the medical record indicates that
oral anticonvulsant medications are effective in controlling
Plaintiff's epilepsy and; (5) Plaintiff's epilepsy could be
controlled if he complied with his prescribed treatment. (Tr.
III. MEDICAL HISTORY
On February 14, 2002, Plaintiff was admitted to Dr. Arthur
Breck M.D. through the emergency department of an unidentified
hospital after suffering several seizures. (Tr. 142). Plaintiff
complained of having seizures. Plaintiff was referred for a
neurological consultation. (Id.).
On February 15, 2002, Plaintiff saw Dr. Terry Roth of the
Seizure Control Clinic of the Epilepsy Foundation of
North/Central Illinois for his neurological consultation. (Tr.
142-143). Dr. Roth reviewed Plaintiff's medical history and
stated that although Plaintiff went off all medication without
seizures for a couple of years, Plaintiff would have to resume
medication to combat the escalating frequency in seizures. (Tr.
142). Dr. Roth medicated Plaintiff with Dilantin and observed
that at 400mg of Dilantin Plaintiff was maintaining at a
therapeutic level of 10. (Id.).*fn3 Dr. Roth recommended treating Plaintiff's seizures with 200 mg of Dilantin
twice a day. (Id.).
On June 24, 2002 Plaintiff was seen at the Crusader Clinic, in
Rockford Illinois, for his recurring seizures. (Tr. 114). The
Specimen Report on Plaintiff's blood showed a sub-therapeutic
level of Dilantin at 4.4. (Tr. 117). Plaintiff's prescription for
Dilantin was refilled by Dr. John Coffey. (Tr. 114).
On July 1, 2002, Plaintiff's mother, aunt and grandmother
filled out seizure description forms for the Bureau of Disability
Determination Services. (Tr. 102-104). All three of Plaintiff's
relatives had witnessed the Plaintiff during a seizure and
described Plaintiff as having seizures more than once per week.
(Id.). According to Plaintiff's relatives, during a typical
seizure, Plaintiff is unconscious for several minutes, while his
body stiffens, his face distorts and he bites his tongue;
immediately afterwards Plaintiff is fatigued and falls asleep.
On August 8, 2002, Plaintiff was examined by Dr. Kamlesh
Ramchandani at the request of the State Disability examiners.
(Tr. 119-120). Dr. Ramchandani reported that Plaintiff claimed to
have a seizure once every two weeks and usually at night. (Tr.
119). Dr. Ramchandani performed a physical exam on Plaintiff and
found him to be in good health and in no physical distress.
(Id.). Dr. Ramchandani noted that Plaintiff had a seizure
disorder. (Tr. 120).
Plaintiff returned to the Crusader Clinic on September 12,
2002. Plaintiff's Dilantin level was at 4.4, which was
substantially below therapeutic levels. (Tr. 117). On September
14, 2002 Plaintiff saw Dr. Roth again. (Tr. 121). Dr. Roth
concluded that Plaintiff probably suffered from either a primary
generalized seizure disorder or juvenile myoclonic epilepsy and
recommended a follow-up EEG. (Tr. 122). Dr. Roth also stated that
300 mg of Dilantin per day was not therapeutic and that Plaintiff
should be on a regimen of 400 mg of Dilantin per day. (Id.).
Dr. Roth also expressed that if Plaintiff's seizures were not controlled with
Dilantin monotherapy he would recommend resuming Depakote.
(Id.). On September 18, 2002, an EEG report was performed on
Plaintiff. (Tr. 123). Dr. Roth stated that the results of the EEG
revealed mild to moderately abnormal waking record with some
epileptic significance. (Id.).
On September 24, 2002, Plaintiff was seen in the emergency room
of Rockford Memorial Hospital by Dr. Jason Bredenkamp M.D. (Tr.
129). Plaintiff had a lacerated lip, and an abrasion on the right
side of his face. (Tr. 130). Plaintiff received wound care and
his tetanus was updated. (Id.). Plaintiff recounted to Dr.
Bredenkamp that he awoke on a porch and assumed he had had a
seizure. The laboratory results of Plaintiff's Dilantin level
revealed a subtherapeutic level at 2.0. (Tr. 133). Plaintiff was
advised to continue on his Dilantin and to follow-up with his
neurologist. (Tr. 130).
On October 7, 2002 a state physician, Dr. William Conroy,
reviewed Plaintiff's medical records and completed an RFC
Assessment. (Tr. 134-41). Dr. Conroy concluded that Plaintiff did
not have any exertional, visual, manipulative or communicative
limitations. (Tr. 135, 136, 138). Plaintiff did however have
certain postural and environmental limitations. (Tr. 136, 138).
Dr. Conroy cautioned Plaintiff to never climb ladders, ropes or
scaffolds, and avoid concentrated exposure to hazardous machinery
and heights or situations where an unpredictable seizure would be
dangerous. (Tr. 141).
On November 16, 2002, Plaintiff saw Dr. Roth for a follow-up
appointment. (Tr. 124). Plaintiff described having seizures and
acknowledged noncompliance with his treatment regimen. (Id.).
Plaintiff underwent an EEG report and was reminded by Dr. Roth
that he was supposed to be taking two 100 mg pills of Dilantin in
the morning and two 100 mg pills of Dilantin at night for a total daily dosage of 400 mg of Dilantin to control his seizures.
(Id.). Dr. Roth reported that Plaintiff experiences seizures
when he is not compliant with the prescribed treatment, and
encouraged Plaintiff to be compliant. (Id.).
On January 30, 2003, Plaintiff underwent a CT scan of his
brain. (Tr. 144). The admitting physician was Dr. Roth and the
attending physician was Dr. Robert Escarza M.D. (Id.). Results
of the CT scan showed a thickening of the diploic space of the
skull, a known side effect of chronic anti-seizure medication.
(Id.). Plaintiff's brain was normal in morphology, although
there was a soft tissue injury to the left frontal region.
On April 10, 2003, Plaintiff saw neurologist, Dr. Javaid Iqbal
M.D., at his office for a neurological examination. (Tr.
147).*fn4 Plaintiff was accompanied to the evaluation by his
mother, who told the doctor that Plaintiff had "starring spells"
on a daily basis and about twice a week Plaintiff had a
"generalized tonic-clonic" seizure. (Id.). Plaintiff told Dr.
Iqbal that usually he did not have any warning before having a
seizure. (Id.). Plaintiff told Dr. Iqbal that he had been
taking 100mg of Dilantin twice a day (which was not the amount
prescribed by Dr. Roth). Dr. Iqbal ordered a CT scan, EEG report
and a check of Plaintiff's Dilantin level. (Tr. 146). Plaintiff's
Dialntin level was subtherapeutic. (Id.). The CT scan was
negative except for a thickened calvarium, which can result from
chronic anti-seizure medication. (Tr. 153). Dr. Iqbal prescribed
300 mg of Dilantin per day and added 150 mg of Trileptal to
Plaintiff's treatment regimen. (Tr. 146). Plaintiff was
instructed by Dr. Iqbal not to drive a car or engage in
activities where an unpredictable seizure would result in injury.
(Id.). Dr. Iqbal stated that he hoped to control Plaintiff's seizures with a gradual increase in Trileptal.
IV. STANDARD OF REVIEW
The court may affirm, modify, or reverse the ALJ's decision
outright, or remand the proceeding for rehearing or hearing of
additional evidence. 42 U.S.C. § 405(g). Review by the court,
however is not de novo; the court "may not decide the facts
anew, reweigh the evidence or substitute its own judgment for
that of the [ALJ]." Binion v. Charter, 108 F.3d 780, 782 (7th
Cir. 1997); see also Maggard v. Apfel, 167 F.3d 376, 379 (7th
Cir. 1999). The duties to weigh the evidence, resolve material
conflicts, make independent findings of fact, and decide the case
accordingly are entrusted to the commissioner; "[w]here
conflicting evidence allows reasonable minds to differ as to
whether a claimant is entitled to benefits, the responsibility
for that decision falls on the Commissioner." Schoenfeld v.
Apfel, 237 F.3d 788, 793 (7th Cir. 2001). If the Commissioner's
decision is supported by substantial evidence, it is conclusive
and this court must affirm. 42 U.S.C. § 405(g); see also Scott
v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). "Substantial
evidence" is "evidence which a reasonable mind would accept as
adequate to support a conclusion." Binion, 108 F.3d at 782.
The Seventh Circuit demands even greater deference to the ALJ's
evidentiary determinations. So long as the ALJ "minimally
articulate[s] his reasons for crediting or rejecting evidence of
disability," the determination must stand on review. Scivally v.
Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992). Minimal
articulation means that an ALJ must provide an opinion that
enables a reviewing court to trace the path of his reasoning.
Clifford v. Apfel, 227 F.3d 863, 874 (7th Cir. 2000), Rohan v.
Chater, 98 F.3d 966, 971 (7th Cir. 1996). Where a witness
credibility determination is based upon the ALJ's subjective
observation of the witness, the determination may only be disturbed if it is "patently wrong" or if it finds no support in
the record. Pope v. Shalata, 998 F.2d 473, 487 (7th Cir. 1993),
Imani v. Heckler, 797 F.2d 508, 512 (7th Cir. 1986), cert.
denied. "However, when such determinations rest on objective
factors of fundamental implausibilities rather than subjective
considerations, [reviewing] courts have greater freedom to review
the ALJ decision." Herron v. Shalala, 19 F.3d 329, 335 (7th
Cir. 1994), Yousif v. Chater, 901 F.Supp. 1377, 1384 (N.D. Ill.
V. FRAMEWORK FOR DECISION
The ALJ concluded that Plaintiff did not meet the Act's
definition of "disabled," and accordingly denied his application
for benefits. "Disabled" is defined 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 twelve months."
42 U.S.C. § 1382c(3)(A). A physical or mental impairment is one
"that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques."
42 U.S.C. § 1382c(3)(C). See Clark v. Sullivan, 891 F.2d 175, 177 (7th Cir.
The Commissioner proceeds through as many as five steps in
determining whether a claimant is disabled.
20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f) (1998).*fn5 The Commissioner
sequentially determines the following: (1) whether the claimant
is currently engaged in substantial gainful activity; (2) whether
the claimant suffers from a severe impairment; (3) whether the
impairment meets or is medically equivalent to an impairment in the
Commissioner's Listing of Impairments; (4) whether the claimant
is capable of performing work which the claimant performed in the
past; and (5) whether the claimant is capable of performing any
other work in the national economy.
At Step One, the Commissioner determines whether the claimant
is currently engaged in substantial gainful activity.
20 C.F.R. § 404.1520 (a),(b). Substantial gainful activity is work that
involves doing significant and productive physical or mental
duties that are done, or intended to be done, for pay or profit.
20 C.F.R. § 404.1510. If the claimant is engaged in substantial
gainful activity, he is found not disabled, regardless of medical
condition, age, education, or work experience, and the inquiry
ends; if not, the inquiry proceeds to Step Two.
Step Two requires a determination whether the claimant is
suffering from a severe impairment.*fn6 A severe impairment
is one which significantly limits the claimant's physical or
mental ability to do basic work activities.
20 C.F.R. § 404.1520(c). The claimant's age, education, and work experience
are not considered in making a Step Two severity determination.
20 C.F.R. § 404.1520(c). If the claimant suffers from severe
impairment, then the inquiry moves on to Step Three; if not, then
the claimant is found to be not disabled, and the inquiry ends.
At Step Three, the claimant's impairment is compared to those
listed in 20 C.F.R. Ch. III, Part 404, Subpart P, Appendix 1. The
listings describe, for each of the major body systems,
impairments which are considered severe enough per se to
prevent a person from doing any significant gainful activity.
20 C.F.R. §§ 404.1525(a). The listings streamline the decision
process by identifying certain disabled claimants without need to
continue the inquiry. Bowen v. New York, 476 U.S. 467, 470-71
(1986). Accordingly, if the claimant's impairment meets or is
medically equivalent to one in the listings, then the claimant is
found to be disabled, and the inquiry ends; if not, the inquiry
moves on to Step Four.
At Step Four, the Commissioner determines whether the
claimant's residual functional capacity allows the claimant to
return to past relevant work. Residual functional capacity is a
measure of the abilities which the claimant retains despite his
impairment. 20 C.F.R. § 404.1545(a). Although medical opinions
bear strongly upon the determination of residual functional
capacity, they are not conclusive; the determination is left to
the Commissioner, who must resolve any discrepancies in the
evidence and base a decision upon the record as a whole.
20 C.F.R. § 404.1527(e)(2); Diaz v. Chater, 55 F.3d 300, 306 n. 2
(7th Cir. 1995). Past relevant work is work previously performed
by the claimant that constituted substantial gainful activity and
satisfied certain durational and recency requirements.
20 C.F.R. § 404.1565; Social Security Ruling 82-62. If the claimant's
residual functional capacity allows him to return to past
relevant work, then he is found not disabled; if he is not so
able, the inquiry proceeds to Step Five.
At Step Five, the Commissioner must establish that the
claimant's residual functional capacity allows the claimant to
engage in work found in significant numbers in the national
economy. 20 C.F.R. §§ 404.1520(f), 404.1566. The Commissioner may
carry this burden by relying upon vocational expert testimony, or
by showing that a claimant's residual functional capacity, age,
education, and work experience coincide exactly with a rule in
the Medical-Vocational Guidelines (the "grids"). See 20 C.F.R.
Ch. III, Part 404 Subpart P, Appendix 2; Walker v. Bowen,
834 F.2d 635, 640 (7th Cir. 1987); Binion v. Shalala, 13 F.3d 243,
246 (7th Cir. 1994); Social Security Law and Practice, Volume 3, § 43:1. If the ALJ correctly relies on
the grids, vocational expert evidence is unnecessary. Luna v.
Shalala, 22 F.3d 687, 691-92 (7th Cir. 1994). If the
Commissioner establishes that sufficient work exists in the
national economy that the claimant is qualified and able to
perform, then the claimant will be found not disabled; if not,
the claimant will be found to be disabled.
The Court will proceed through the five step analysis in order.
A. Step One: Is the Plaintiff currently engaged in substantial
At the hearing, Plaintiff testified that since April 15, 2001,
the alleged onset of disability date, he had done some seasonal
tax work for Professional Accounting & Tax Service Inc. (Tr. 28).
The record disclosed posted earnings of $2,960.21 in 2001 and
$207.75 in 2002. (Exhibit 2D pg 2) The ALJ did not determine from
the facts whether this constituted work performed at a
substantial gainful activity level or an unsuccessful attempt to
work on Plaintiff's behalf. In performing the Step One Analysis
the ALJ reserved a finding whether Plaintiff's work activity was
disqualifying substantial gainful activity. (Tr. 15).
Under ordinary circumstances, a claimant is engaged in
substantial gainful activity if the claimant's earnings averaged
more than seven hundred and eighty dollars per month for years
after January 1, 2001. (20 C.F.R. § 1574(b)(2) Table 1, as
modified by 65 FR 82905, December 29, 2000).
The ALJ did not deny Plaintiff's application for DIB based on
the first step of the evaluation. (Tr. 15). The finding of the
ALJ as to Step One of the Analysis is not challenged by either
party and this Court finds no reason to disturb this finding. The
ALJ's determination as to Step One of the Analysis is affirmed.
B. Step Two: Does the Plaintiff suffer from a severe
In performing the Step Two Analysis the ALJ found Plaintiff
suffered from a severe impairment. Specifically, the ALJ found
that Plaintiff suffered from epilepsy that significantly limited
the Plaintiff's ability to perform basic work activities.
Substantial evidence exists to support the ALJ's determination
that Plaintiff suffers from severe impairments. This finding is
not challenged by either party and this Court finds no reason to
disturb it. The ALJ's finding as to Step Two of the Analysis is
C. Step Three: Does Plaintiff's impairment meet or medically
equal an impairment in the Commissioner's listing of impairments?
In performing the analysis for Step Three the ALJ determined
that Plaintiff's impairments do not meet or equal any impairment
in Appendix 1 to Subpart P of Regulations number 4. (Id.). The
ALJ found that Plaintiff's epilepsy does not satisfy the criteria
under 11.03, because it does not occur more frequently than once
weekly, in spite of at least three months of prescribed
treatment. (Id.). The ALJ did not find any evidence in the
medical record to support a finding of seizures occurring at a
disabling rate despite medical treatment. (Tr. 17). Additionally,
the ALJ found the course of treatment pursued by Dr. Roth to be
conservative and effective in controlling Plaintiff's seizures,
provided Plaintiff complied with the treatment. (Id.).
Plaintiff testified at the hearing that he experiences about
two or three seizures a week and his current treatment regimen
includes 400 mg of Dilantin and 150 mg of Tegretol. (Tr. 34, 28).
Plaintiff resumed medical treatment of his epilepsy as of
February 2001. However the medical record contains evidence that
Plaintiff is not complying with his prescribed treatment, and
thus is ineligible under 11.03.
The role of prescribed treatment in the evaluation of epilepsy
is provided in SSR 87-6. SSR 87-6 requires that the Plaintiff:
(1) have an ongoing relationship with a licensed physician or
"Treatment source"; (2) have adequate information regarding the
history of the treatment regimen and his response to it; (3)
provide a record of anticonvulsant blood levels, and unless
convincing evidence to the contrary is provided, low blood levels
of anticonvulsants are presumed to be a result of noncompliance
with treatment. The Seventh Circuit held that a plaintiff's
medical record must contain evidence of a causal link between
noncompliance and ongoing seizures, for the ALJ to render a
decision that the plaintiff's epilepsy does not meet Listing
11.03. Steele v. Barnhart, 290 F.3d 936, 942-3, (7th Cir.
In the instant case Plaintiff has an ongoing relationship with
Dr. Terry Roth M.D., and thus this Court regards Dr. Roth as the
treatment source. Plaintiff has had seizures since 1989, when he
was thirteen years old. (Tr. 121). As a child Plaintiff was
successfully treated with Dilantin and Depakote, and then
Depakote mono-therapy. (Id.). On February 15, 2002, Dr. Roth
examined Plaintiff, and recommended that Plaintiff resume
medication to combat the recent escalating frequency in seizures.
(Tr. 142-143). Dr. Roth medicated Plaintiff with Dilantin and
observed that at 400mg Plaintiff was maintaining at a therapeutic
level of 10.0. (Id.). Dr. Roth recommended treating Plaintiff's
seizures with 200 mg of Dilantin twice a day. (Id.). The
medical record contains adequate evidence of Dr. Roth's attempts
to control Plaintiff's current seizures with anticonvulsant
therapy. (Tr. 122).
Plaintiff's counsel explained to the ALJ that due to lack of
finances Plaintiff does not take his medication at the prescribed
dosage and frequency. (Tr. 25). Plaintiff also stated that he
does not like the increased dosage of his medication because of side
effects such as weight gain, sluggishness, and some intermittent
jerky movements involving his arms and legs. (Tr. 147, 149).
The instant medical record contains evidence of a causal link
between Plaintiff's noncompliance with his prescribed treatment
and his ongoing seizures. On September 24, 2002, Plaintiff was
seen in the emergency room of Rockford Memorial Hospital by Dr.
Bredenkamp. (Tr. 129). Plaintiff recounted to Dr. Bredenkamp that
he awoke on a porch and assumed he had had a seizure. The
Plaintiff's record of anticonvulsant blood level was
sub-therapeutic. (Tr. 133). On November 16, 2002, during a
follow-up with Dr. Roth, Plaintiff described recent seizures and
acknowledged noncompliance with his treatment. (Tr. 124). Dr.
Roth advised Plaintiff to comply with his treatment since
Plaintiff only experiences seizures when he does not take his
medication, as prescribed. (Id.).
The instant medical record also contains numerous laboratory
reports of Plaintiff's subtherapeutic anticonvulsant blood
levels. (Tr. 117, 124, 133). Plaintiff, his treating physician
Dr. Roth and his counsel have all stated that Plaintiff was not
complying with his prescribed treatment. Plaintiff has failed to
rebut the presumption that his low anticonvulsant blood levels
are due to noncompliance with his prescribed treatment. Although
Plaintiff claims that the ALJ failed to properly analyze
Plaintiff's claim under epilepsy impairment listing 11.03 and
SSR87-6, substantial evidence exists to support the ALJ's finding
and this Court finds no reason to disturb it. Therefore, the
ALJ's determination as to Step Three of the Analysis is affirmed.
D. Step Four: Is the Plaintiff capable of performing work which
the claimant performed in the past?
The ALJ established Plaintiff's RFC as only precluding
Plaintiff from employment which entailed climbing ropes, ladders, scaffolds; or preforming work
at or around unprotected heights or hazardous machinery. (Tr.
15). Plaintiff's relevant past work is that of an income tax
assistant and telemarketer. (Tr. 18). At the hearing the ALJ
asked the vocational expert if a hypothetical person, of
Plaintiff's age, education and RFC limitations, could perform
work as an income tax assistant or telemarketer. (Tr. 37). The
vocational expert testified that given the aforementioned RFC,
this individual could perform past work as an income tax
assistant and telemarketer. (Tr. 37-38).
Although the ALJ concluded that the Plaintiff can perform his
past work, there was evidence that these past jobs may not have
been done at a substantial gainful activity level. (Tr. 18). In
performing the analysis for Step Four, the ALJ reserved a finding
on whether Plaintiff is able to perform his past relevant work.
(Tr. 19). The finding of the ALJ as to Step Four of the Analysis
is not challenged by either party and this Court finds no reason
to disturb it. The ALJ's determination as to Step Four of the
Analysis is affirmed.
E. Step Five: Is the Plaintiff capable of performing any work
existing in substantial numbers in the national economy?
At Step Five the ALJ determined that Plaintiff's RFC allowed
Plaintiff to perform a significant number of jobs in the national
economy, such as that of a cashier and assembler. (Tr. 19). The
ALJ took into account that the Plaintiff was twenty six years old
and had a college degree. (Tr. 18). The ALJ found that the
Plaintiff's past relevant work provided skills that were
transferrable to other occupations within the Plaintiff's RFC.
The vocational expert testified that the toleration of
absenteeism at cashier and assembler jobs is that of one day per
month, or twelve days per year. (Tr. 38). The Seventh Circuit has
held that hypothetical questions posed to vocational experts must
include all limitations supported by medical evidence in the record. Cass v. Shalala, 8 F.3d 552,
555-56 (7th Cir. 1993).
Plaintiff claims that the toleration of absenteeism at cashier
and assembly positions is not compatible with the frequency of
his seizures. (Tr. 38). From the record this appears correct, but
only correct because Plaintiff does not take his prescribed
medications. During the step three analysis the Court determined
that there was substantial evidence that Plaintiff's
noncompliance with his prescribed treatment was a causal factor
in the frequency of occurrence of Plaintiff's seizures. The
Social Security Administration rules and regulations provide
that, except in a certain explicit circumstances, individuals
must follow prescribed treatment to attain benefits.
20 CFR § 404.1530 (2001). Plaintiff has failed to provide this Court with
an acceptable reason for why he is not complying with his
treatment. This Court finds that there is substantial evidence to
support the ALJ's determination that Plaintiff's noncompliance
with his prescribed treatment is causally linked to his
absenteeism from employment; and if Plaintiff complies with his
prescribed treatment, then he can perform work as a cashier or
assembler. The ALJ's determination as to Step Five of the
Analysis is affirmed. (Tr. 19). VII. CONCLUSION
For the reasons stated above, the ALJ's decision to deny
benefits to the Plaintiff is sustained. The ALJ is affirmed at
all steps of the disability determination process as outlined
above. Defendant's Motion for Summary Judgment is granted.
Plaintiff's Motion for Summary Judgment on the administrative
record and pleadings is denied.