United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge.
REPORT AND RECOMMENDATIONS
L. Ovington United States Magistrate Judge.
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
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).
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.
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. §§
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
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.
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.
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.
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.
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
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.
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.
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.
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
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.
Philip A. White, M.D.
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.
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.
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.
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.
Karen Terry, Ph.D., & Cynthia ...