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Burnett v. Berryhill

United States District Court, S.D. Ohio, Western Division, Dayton

January 2, 2018

LAURI BURNETT, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          Walter H. Rice District Judge.

          REPORT AND RECOMMENDATIONS[1]

          Sharon L. Ovington United States Magistrate Judge.

         I. Introduction

         Plaintiff Lauri Burnett brings this case challenging the Social Security Administration's denial of her applications for period of disability, Disability Insurance Benefits, and Supplemental Security Income. She applied for benefits on October 8, 2013, asserting that she could no longer work a substantial paid job due to seizures. Administrative Law Judge (ALJ) Eric Anschuetz concluded that she was not eligible for benefits because she is not under a “disability” as defined in the Social Security Act.

         The case is before the Court upon Plaintiff's Statement of Errors (Doc. #7), the Commissioner's Memorandum in Opposition (Doc. #8), Plaintiff's Reply (Doc. #9), and the administrative record (Doc. #5).

         Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for further proceedings. The Commissioner asks the Court to affirm ALJ Anschuetz's non-disability decision.

         II. Background

         Plaintiff asserts that she has been under a “disability” since August 26, 2013. She was thirty-eight years old at that time and was therefore considered a “younger person” under Social Security Regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c). She has a high school education. See 20 C.F.R. §§ 404.1564(b)(4), 416.964(b)(4).[2]

         A. Plaintiff's Testimony

         Plaintiff testified at the hearing before ALJ Anschuetz that she has had seizures since 2002. (Doc. #5, PageID #85). She had “light” seizures from 2002 to 2009. Id. at 110. But then her seizures started getting worse, and her doctor found a mass in her brain. Id. Plaintiff had brain surgery in 2009 to remove the mass. Id. at 97. “And [she] was all right for a couple of years and then [she] started having [seizures] bad again.” Id.

         Plaintiff described a typical seizure: “I start feeling weird. Then basically if I get … overheated a little bit then … I just really start feeling weird. And then a lot of times I just totally blackout, I don't remember …. I just go boom. And then when I do wake up, … it takes a[ ]while for me to -- like when they ask me questions I don't know anything. And then there's sometimes when … I'm completely out and then they take me to the hospital ….” Id. at 88. When she has really bad seizures and blacks out, Plaintiff's children call the squad to take her to the hospital. Id. at 89. Plaintiff estimated that she has bad seizures every three to four months. Id. at 97.

         She also has other “minor” seizures: “I feel like I'm going to pass out and … then I get like real shaky and I just … have to sit down.” Id. at 97, 111. “Sometimes I can have them once a week. … I usually have probably sometimes between maybe three or four a month and then I might go a month and, … only have one or so.” Id. at 111. Sometimes stress can bring on her seizures. Id.

         Plaintiff usually sees her neurologist every three to six months. Id. at 99. But if she has a seizure, she will see him sooner so he can run tests-for example, an MRI-to determine if there is “anything that's abnormal going on” in her brain. Id.

         Plaintiff explained that she has been prescribed a lot of medications but none stop her seizures completely. Id. at 97. At the time of the hearing, she was taking Lamictal and Depakote. Id. at 100. The dose of both medicines could not be increased because, when she took a higher dose of Lamictal, she was off balance and unable to walk, and Depakote-“they can't increase that.” Id. Plaintiff experiences some side effects from her medications: she gets sleepy and does not have as much energy as she previously did. Id. at 101.

         Plaintiff also gets migraine headaches. Id. at 106. She has them approximately once a month. Id. She believes they are related to her seizures because “when I first started having seizures I had bad, bad headaches, severe ones to where I couldn't even get out of bed. So … that was how they … took an MRI and … found out … after my headaches and stuff, I'll have my seizures.” Id.

         Plaintiff also struggles with her short-term memory: “my short-term memory is like I can't focus. Like if I'm even like counting money or something, I can't do it. [I]t's like the short-term memory has … really messed it up.” Id. at 91.

         Between 2007 and October 2012, Plaintiff worked at O'Reilly-first as a merchandiser and then as a driver. Id. at 86, 91. In March 2012, Plaintiff had a seizure and wrecked the company truck-totaling it. Id. at 93. Per her neurologist, she was unable to work for six months. Id. She was then terminated in October 2012. Id. at 94.

         She also worked as a substitute custodian at a school for approximately two years-2011 to 2013. Id. at 92. While working, she had two seizures. Id. at 96. Once, she fell and hit the cement. Id. The second time, she was on the bleachers and fell, and someone had to catch her. Id. She testified that she became disabled after she had a seizure on her way home from work, wrecked her car, and lost her driver's license. Id. at 85.

         Plaintiff believes her license was suspended on October 1, 2013 because she had “so many accidents within so many years ….” Id. at 86-87. Plaintiff's neurologist, Dr. White, did not recommend that her license be suspended prior to that because her seizures were not as severe. Id. at 88. But, she explained, “now I'm having them a lot and … when I totally lose [consciousness], I get taken to the hospital. And a lot of times I don't come out of it until I get to the hospital.” Id.

         Plaintiff lives in an apartment with her two children-ages 12 and 15. Id. at 101. For exercise, she sometimes walks around the block, but she always needs to have someone with her. Id. On a school day, Plaintiff wakes up at 5:00 a.m. to wake up her daughter and then she lies back down. Id. at 103. She gets up again at 6:20 a.m. to wake up her son and then she lies back down. Id. She then generally sleeps until 11:00 a.m. or noon. Id. at 104. During the day, she eats, tries to wash dishes, watches television, and stays at home. Id. at 104-05. If she needs to go somewhere during the day, her mother, father, or grandfather will usually take her. Id. at 104. She goes grocery shopping once a week. Id.

         B. Medical Opinions

         i. Philip A. White, M.D.

         Dr. White, Plaintiff's treating neurologist, completed a seizure residual functional capacity questionnaire on November 7, 2013. He indicated that he had treated Plaintiff for approximately seven years and diagnosed temporal lobe epilepsy, medically intractable. Id. at 546. Her seizures are complex partial and secondarily generalized. Id. On average, she has two seizures per month. Id. Her seizures typically last two minutes, and she experiences loss of consciousness. Id. She does not always have a warning of an impending seizure and cannot always take safety precautions when she feels a seizure coming on. Id. Her seizures do not occur at a particular time of day and there are no precipitating factors. Id. After a seizure, she experiences confusion and muscle strain that last twenty to thirty minutes. Id. Dr. White opined, after a seizure, “[s]he cannot function at work for up to a day.” Id. at 547. Plaintiff has a history of fecal or urinary incontinence during a seizure. Id. To prevent this, she takes medication-Lamictal-and while her condition is improved, it is not completely controlled. Id. Plaintiff is compliant with her medication, and she experiences two side effects from the medicine- dizziness and lethargy. Id.

         Dr. White opined, during a seizure, other people must clear the area of hard or sharp objects and after, they must turn her on her side to allow saliva to drain from her mouth. Id. at 546. Accordingly, Plaintiff's seizures are likely to disrupt the work of co-workers and Plaintiff needs more supervision at work than an unimpaired worker. Id. at 547. She cannot work at heights or with power machines that require an alert operator. Id. She cannot operate a motor vehicle or take a bus alone. Id. As a result of her impairments and/or treatment, Plaintiff is likely to be absent from work once or twice per month. Id. at 548.

         On May 21, 2014, Dr. White completed a second questionnaire-repeating many of his previous responses. He did, however, change some of his responses. He updated her diagnosis to medically intractable localization related epilepsy and depression. Id. at 511-12. He indicated Plaintiff has, on average, three seizures per month, and her last three seizures occurred on May 7, 2014, May 10, 2014, and May 18, 2014. Id. at 511. He opined, “Stress increases the frequency of her events.” Id. After seizures, she experiences confusion and sleepiness for approximately ten minutes. Id. Plaintiff's medication includes Lamictal and Depokote, and her side effects include coordination disturbance and tremor. Id. at 512. As a result of her impairments and/or treatment, Plaintiff is likely to be absent from work more than four times per month. Id. at 513.

         Dr. White indicated he had treated Plaintiff since about 2004, and she has had these limitations and restrictions since 2009. Id. at 556. His opinion is based on direct observation/treatment, physical examination, his own experience and background, imaging studies, and EEG data. Id. at 556.

         ii. Karen Terry, Ph.D., & Cynthia ...


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