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Darby v. Berryhill

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

November 30, 2017

Christian Darby Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1]Defendant.


          Iain D. Johnston Magistrate Judge

         The administrative law judge (“ALJ”) found that plaintiff Christian Darby became disabled, as a result of his epilepsy and dementia, on April 13, 2015. Not surprisingly, plaintiff does not argue with the determination that he was disabled, but does object to the onset date chosen by the ALJ. Plaintiff believes it should have been earlier, on December 19, 2013. This appeal concerns this 16-month difference. Everyone agrees that plaintiff's condition (in particular his cognitive abilities) worsened dramatically from 2009 until 2016. In 2009, plaintiff was working as an engineer and was cognitively rated “way above average, ” but in early 2016, he was found to be “severely cognitively impaired” with troubling memory lapses and odd behavioral episodes. R. 44. The more difficult question is determining exactly when plaintiff crossed the threshold for being found disabled under the applicable Social Security tests.


         Although plaintiff experienced epileptic seizures since age ten, he was able to work as a civil engineer for many years despite them. Later in his career, the seizures became more problematic. In 2004 and then again in 2008, he underwent brain surgery to try and address the problem. After each surgery, the seizures stopped for about a year, but then returned to pre-surgery levels. R. 389. Since 2007, plaintiff has been treated by Dr. Stephan U.Schuele who is Chief of Neurophysiology and Epilepsy at the Northwestern Feinberg School of Medicine.

         Two medical visits with Dr. Schuele figure prominently in the ALJ's analysis. The first was in June 2013. Plaintiff then reported to Dr. Schuele that his seizures had “started to pick up” with him having a seizure “every other month, often in clusters.” R. 315. But aside from this fact, plaintiff did not seem to report any new or unusual problems. Plaintiff next saw Dr. Schuele in December 2015-two and a half years later.

         At this second visit, plaintiff reported that he “continued” to have seizures about twice a month, mostly in the evening or while sleeping. R. 377. He did not otherwise report any major problems. However, plaintiff's wife, who was apparently not at the 2013 visit, painted a more ominous picture. She told Dr. Schuele that half of the days plaintiff was “very confused, ” and engaged in unusual behaviors. Id. For example, she sometimes found him “wandering around in the back yard in pajamas looking for [a] bathroom.” Id. She stated that he “routinely falls out of bed, gets black eyes, and gets some bruises on [his] head.” Id. She suspected that he was “having small seizures more frequently than we know.” Id. In his examination of plaintiff, Dr. Schuele observed that he had difficulties “grasp[ing] the content and goal of the conversation.” R. 379. Based on all this evidence, Dr. Schuele ordered neurocognitive testing, as well as EEG monitoring. He suspected that plaintiff had “a progressive memory decline which may or may not be related to unrecognized nocturnal seizures.” R. 380. The tests were conducted in January 2016, and they confirmed that plaintiff, indeed, had suffered a “striking” cognitive decline since 2009 and that he had a major neurocognitive disorder. R. 395, 657. Doctors recommended that plaintiff's wife be appointed as his power of attorney.

         Two months later, a hearing was held. The main witness-and the only medical expert who has provided any substantive analysis in this case-was Dr. Schuele. The mere fact that he took the time to testify, which he did at his own expense, is unusual in disability cases. His willingness to testify seems related to seeing plaintiff's decline, which he described as follows:

I've rarely seen a patient who has [] had such a bad course over the last couple of years as Christian Darby who was in 2010 a highly intelligent person who underwent surgery and did better for a short period of time and basically is incompetent now. I think that has been very dramatic for me to experience.

R. 47.

         The ALJ first asked questions of Dr. Schuele. (As discussed below, plaintiff believes this questioning was overly adversarial.) The ALJ's first questions were about the two-and-a-half-year treatment gap. After some back and forth, Dr. Schuele agreed that there were no in-person visits between June 2013 and December 2015, but he denied that this should be characterized as a treatment gap because plaintiff or his wife had a dozen or so phone consultations with the clinic during this interval.

         The rest of the ALJ's questions focused on the monthly frequency of plaintiff's seizures at various points in time. This was the key issue at the hearing, and remains the key issue in the parties' briefs. Although not explicitly acknowledged by the ALJ at the time she questioned Dr. Schuele, her inquiry clearly related to Listing 11.02, which (in the version then in effect) required that the claimant have seizures “more frequently than once a month.” The ALJ first asked about the seizure frequency in December 2015. Dr. Schuele noted that “it was difficult to say how many seizures [plaintiff] had” because plaintiff was underreporting them (due to his memory decline) and because his wife was unable to observe all of them (she slept in a different room). R. 37. However, based on plaintiff's “significant memory decline and behavioral changes which [have] been going on for a while, ” and based on the EEG testing done in January 2016, which showed that plaintiff had two sub-clinical seizures in a five-day period even though he was on full medication, Dr. Schuele estimated that plaintiff was averaging about twelve seizures a month in December 2015. R. 38.

         The ALJ then asked about the frequency from 2013 to 2015. Dr. Schuele again noted that plaintiff was “always downplaying the severity of his condition.”[2] R. 38. Dr. Schuele then estimated that plaintiff was having “probably half a dozen or more [seizures] during that period on a monthly basis.” R. 40. This “period” was, based on the ALJ's earlier question, from 2013 to 2015.

         The ALJ then asked him what evidence supported this answer. The following colloquy ensued, which is quoted because it is one of the exchanges that plaintiff believes shows that the ALJ was too adversarial:

Q And on what do you rely in the evidence in the record to say that?
A Our video EEG recording and that his medication hadn't changed over these years and that- Q When was it- A -we found five-that we found two seizures in a five-day period and the fact that he had fluctuation[s] in memory which are best explained by having [INAUDIBLE] seizures at night.
Q Okay. And that's all as of-that testing was all as of January 2016?
A Yeah, I think we-you know-yes, because, as I said- Q Okay. Thank you.
A He didn't follow up.
Q Thank you. Now, let me ask you another ...

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