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HARRIS v. BARNHART

August 17, 2004.

DWAYNE HARRIS, Plaintiff,
v.
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.

I. BACKGROUND

  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).

  II. FACTS

  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. (Id.).

  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. (Tr. 71).

  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 perform. (Id.).

  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. 17).

  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. (Id.).

  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 ...


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