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.
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 ...