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Chavez v. Colvin

United States District Court, N.D. Illinois, Eastern Division

July 8, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


SIDNEY I. SCHENKIER, Magistrate Judge.

Alberto T. Chavez seeks reversal or remand of a determination by the Commissioner of Social Security, Carolyn W. Colvin ("Commissioner"), denying him Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"), (doc. # 17). The Commissioner has responded in opposition, seeking affirmance of the decision denying benefits (doc. # 26). For the following reasons, we grant Mr. Chavez's motion for remand and deny the Commissioner's motion.


We begin with the procedural history of this case. Mr. Chavez filed for DIB and SSI on March 19, 2008, alleging that he became disabled on October 22, 2007 (R. 10). His date last insured was December 31, 2012 ( Id. ). Mr. Chavez's claim was denied initially and upon reconsideration ( Id. ). He then requested a hearing, which was held before an Administrative Law Judge ("ALJ") on February 8, 2011 ( Id. ); a supplemental hearing was held on July 20, 2011 ( Id. ). On August 17, 2011, the ALJ concluded that Mr. Chavez was not disabled and denied him benefits (R. 10-18). The Appeals Council denied Mr. Chavez's request for review of the ALJ's decision on December 3, 2012, making the ALJ's ruling the final decision of the Commissioner (R. 1-3). See Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012).


We continue with a summary of the administrative record. In Part A, we review Mr. Chavez's general and medical history; in Part B, the first hearing testimony; in Part C, the second hearing testimony; and in Part D, the ALJ's decision.


Mr. Chavez was born on June 29, 1973 (R. 194). When he was 15 or 16 years old, he was in a car accident and suffered a skull fracture (R. 62-63, 310). After the accident, Mr. Chavez was in a coma for a period of time and also had surgery, during which a metal plate was put in his head (R. 65, 310). Soon afterward, he began suffering from seizures (R. 310). Also due to the accident, Mr. Chavez experienced difficulties in school and eventually stopped attending in the middle of the 9th grade (R. 64). He has never had a driver's license and instead uses his bicycle for transportation (R. 57-58). Mr. Chavez was married from 1993 to 2000; the marriage ended in divorce (R. 157). He has three children he sees up to three times a week (R. 63).

Mr. Chavez received SSI for a period of time after his accident but testified that his benefits were terminated when he got married in 1993 (R. 63). Between 1999 and June 2001, he worked as a Parts Manager at Autozone (R. 198). In October 2001, he began working at a gas station, where he was employed until October 2007 (R 198).

The record does not contain any evidence that Mr. Chavez received medical attention or took medication for his seizures until 2004. On December 6, 2004, Mr. Chavez experienced a major seizure and had an emergency CT scan at Provena Mercy Center (R. 355). He was seen by Dr. Brent Fonner, who opined that the scan showed "encephalomalacia or gliosis, " an abnormal softening of the brain tissue, which was likely related to prior surgery due to trauma. ( Id. ) Further, Dr. Fonner noted "possible minimal superficial soft tissue swelling in the frontal region, " and that "correlation with prior surgical history and any prior CT scans would be helpful" ( Id. ).

The record is again silent on Mr. Chavez's medical condition and treatment between 2005 and 2007. Mr. Chavez may have visited the hospital again sometime in 2007, but the record is unclear on the exact course of events. He testified and wrote on his application for SSI that he became disabled on October 22, 2007, (R. 57, 153), but it is not apparent from the record whether that date refers to a seizure, to the day he stopped working at the gas station, or possibly to both. Mr. Chavez testified that he stopped work at the gas station in October 2007 because of his seizures; he said he was having too many of them at work and that they were affecting him at work (R. 56, 57). In response to a question from the ALJ about whether "they let you go or did you quit or how did it end" (R. 57), Mr. Chavez replied that "[t]hey let me go" ( Id. ).

Although it appears that the ALJ concluded that Mr. Chavez's brother took him to Mercy Hospital after a seizure and fall in 2007 (R. 62), a closer reading of the transcript suggests that the ALJ confused the date of the original 2004 fall and CT scan (R. 62).[2] Both Mr. Chavez's sister and brother-in-law noted witnessing a December 2007 seizure in a "Seizure Description Form" they completed in April 2008; his sister called an ambulance but there is no record of it or of a hospital visit (R. 218, 219). In March 2008, Mr. Chavez went to the emergency room at Stroger Hospital after a seizure (R. 335). The physician noted that Mr. Chavez had a history of seizures ( Id. ). Mr. Chavez was prescribed Dilantin, a seizure medication, and was referred to the neurology department (R. 334-35).

In May 2008, at the request of the Bureau of Disability Determination Services, Dr. C.J. Wonais reviewed Mr. Chavez's available medical reports and examined him (R. 310). Mr. Chavez complained of having three types of seizures: (1) he feels mellow and his mind "gets a different feeling" which lasts for a minute or two followed by intense drowsiness after which he sleeps for four to five hours; (2) his "mind feels like it is in another place, " he needs to sit down and stop activity for a minute or two followed by intense drowsiness after which he sleeps for four to five hours; and (3) he loses consciousness and there is no movement in his legs or arms lasting for one to two minutes followed by intense drowsiness after which he sleeps for four to five hours ( Id. ). He complained of experiencing about seven seizures per month (the record does not specify which type), and that he has suffered several contusions and lacerations and has soiled himself as a result of his seizures ( Id. ). Dr. Wonais opined that Mr. Chavez was alert and "well-oriented" during the examination and that he had good long and short term memory (R. 311). All other aspects of the physical exam, including gait, neurological orientation, speech, and vital signs were normal ( Id. ).

Also in May 2008, Dr. Ernst Bone filled out a Physical RFC Assessment on Mr. Chavez (R. 313-320). Dr. Bone opined that Mr. Chavez could stand, walk and sit for about six hours in an eight-hour day based on his statement that he has occasional seizures (R. 314). He further noted that due to his history of seizures, Mr. Chavez could occasionally climb ramps and stairs but could never climb ladders, ropes or scaffolds and should avoid even moderate exposure to hazards such as machinery or heights (R. 315-317). Dr. Bone concluded that Mr. Chavez's alleged degree of limitation was excessive when compared to objective medical evidence but he did not identify what other medical evidence he considered (R. 320).

On July 10, 2009, Mr. Chavez went to Cook County Hospital and saw Dr. Serge J.C. Pierre-Louis, a neurologist, at the Ambulatory and Community Health Network ("ACHN") clinic (R. 352). Dr. Pierre-Louis noted that Mr. Chavez had "probable partial seizures" but did not seek treatment earlier because he did not want to see a doctor ( Id. ). He eventually did see a doctor (the March 2008 ER visit) and was prescribed Dilantin but only took it for a few months ( Id. ). Mr. Chavez reported the same frequency of seizures when taking medication as he experienced without the medication ( Id. ).

On August 25, 2009, Mr. Chavez had an EEG, which Dr. Pierre-Louis found to show abnormal slowing of brain activity which was consistent with localized brain disfunction and "partial-onset seizures" (R. 379). Dr. Pierre-Louis also noted that there were "sharp transients" in the right frontal area, "raising the possibility of an additional irritative focus" ( Id. ). Mr. Chavez saw Dr. Pierre-Louis again on October 30, 2009. At that appointment, Dr. Pierre-Louis noted that Mr. Chavez had an EEG in August 2009 which revealed focal slowing "consistent with partial-onset seizures" (R. 341). Dr. Pierre-Louis also indicated that Mr. Chavez had stopped taking Dilantin, a seizure medication, after his July 2009 appointment because he thought the doctor asked him to do so ( Id. ). Dr. Pierre-Louis prescribed Tegretol, a different seizure medication, to replace Dilantin ( Id. ).

On November 23, 2009, Dr. Pierre-Louis completed a "Seizures: RFC Questionnaire" for the Social Security Administration ("SSA") on behalf of Mr. Chavez (R. 337-40). In the questionnaire, Dr. Pierre-Louis diagnosed Mr. Chavez with post-traumatic epilepsy and partial, localized seizures where he can lose consciousness (R. 337). Dr. Pierre-Louis noted that Mr. Chavez had about four seizures per month and his last three seizures occurred in October 2009 ( Id. ). The questionnaire also noted that Mr. Chavez had a history of injury and fecal or urinary incontinence during seizures (R. 338). Dr. Pierre-Louis opined that Mr. Chavez cannot prepare for a seizure and does not have a warning of an ...

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