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Rockwell v. Berryhill

United States District Court, E.D. Wisconsin

March 29, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          William C. Griesbach, Chief Judge

         This is an action for judicial review of a decision by the Commissioner of Social Security denying the application of Plaintiff Tyler Rockwell for supplemental security income (SSI) under Title XVI of the Social Security Act. The case is a troubling one. Plaintiff, currently 27 years old, was only 22 years old at the time he filed his application claiming disability due to seizures, associated memory loss, and depression. Plaintiff has never held a job. He lives with his mother, and by both of their accounts, he never leaves home unaccompanied and spends the bulk of his day lying in bed, taking his medication, and eating. Despite these extreme limitations in his daily activities, the Administrative Law Judge (ALJ) concluded that he was not disabled. In other words, the ALJ concluded that Plaintiff was unreasonably limiting himself to the activities of one in need of a skilled nursing facility. R. 20. Plaintiff claims that the ALJ erred in reaching this conclusion. He contends that the ALJ failed to properly weigh the medical source opinions contained in the record, failed to make adequate findings to support the Residual Functional Capacity (RFC) determination, and failed to appropriately assess Plaintiff's subjective complaints of disabling symptoms.

         The ALJ did not lightly reach this conclusion, however. In addition to the treatment records and reports of Plaintiff's own doctors, he carefully considered the reports of two consultative examiners, the state agency consultants who reviewed the file, and the testimony of three different medical experts who testified at two separate hearings he held in the matter before issuing his nineteen-page decision explaining his route to this conclusion. For the reasons set forth below, the decision of the Commissioner will be affirmed.


         Plaintiff filed his application for SSI on July 22, 2013, alleging that he has been disabled since March 1, 2011, as a result of epileptic seizures, depression, daytime episodes of convulsive epilepsy, and memory loss associated with on-going epileptic seizures. R. 87. His application was denied both initially in October 2013 and on reconsideration in February 2014. R. 99, 115. Plaintiff requested a hearing before an ALJ, and a hearing was scheduled for January 2016. R. 42, 132.

         On the day scheduled for the hearing, ALJ Steven H. Templin heard testimony from Dr. Sheldon J. Slodki and Dr. Terry H. Shapiro but otherwise granted a continuance to allow Plaintiff time to obtain representation. R. 12, 43, 45-46. The hearing was then continued on April 15, 2016, and Plaintiff appeared again on that date represented by counsel. R. 59. Plaintiff, his mother, a vocational expert (VE), and Dr. Michael Cremerius all testified at the rescheduled hearing. R. 58.

         Plaintiff testified that he has never held or applied for any kind of job, and all of his support comes from his mother. R. 69-70. On a typical day, he gets up around 11:30 a.m., cleans himself up before taking his medication at 12:30 p.m., lies in bed and rests until he eats at 3:30 p.m., eats again at 8:30 p.m. and 12:30 a.m., takes more medication, and goes to bed. R. 68. Throughout the day, he avoids activities like reading, doing crossword puzzles, or watching videos because those things make him dizzy and tired. R. 68-69. However, he admitted that when he watched videos or reviewed reading materials as part of medical testing, he was able to remember what they said and recite them back in chronological order. R. 69. During the day he does not participate in any volunteer groups, social clubs, or other activities outside of the home, and even when his mother asks him to perform tasks around the house during the day, he often forgets or otherwise fails to do them. R. 69-70. At most, he finishes one or two tasks that his mother asks him to complete. R. 70. He has few friends, and he rarely goes out of the house to see them. Id. Finally, when asked how well his medications control his seizures, he testified that “it's been pretty good, ” but he still frequently gets dizzy and tired, adding “I can feel it at times, coming on, so it's still with me, definitely.” R. 70-71.

         After Plaintiff's testimony, the ALJ also heard testimony from Plaintiff's mother. R. 71. She acknowledged that she encouraged Plaintiff to apply for SSI and assisted him throughout the application process, and she testified to her belief that Plaintiff experiences attention deficit hyperactivity disorder (ADHD) and obsessive compulsive disorder (OCD). R. 71-72. Regarding her belief that Plaintiff experiences ADHD and OCD, she explained that he sticks to a specific routine, takes his pills and eats food at precise times throughout the day, eats the same foods repeatedly, and organizes his room in a particular, consistent manner. R. 72. She added that he becomes frustrated when he deviates from that routine and, in particular, becomes “loopy” and dizzy if he does not eat when he takes his medication. Id. Although she works outside the home between 6:30 a.m. and 3:30 p.m., she is very concerned about Plaintiff while he is home alone, and she testified that they stay in contact by phone throughout her workday. R. 73-74.

         Plaintiff's mother further testified regarding his social life and other activities around the house. Noting that Plaintiff does not drive, she testified that he sometimes spends time with friends who are willing to pick him up at the house, and those friends know what signs to watch for regarding seizures. R. 74. However, she explained that Plaintiff has not seen one friend since he collapsed from a seizure and lost his two front teeth while they were together. R. 74-75. When Plaintiff is home alone, she testified, there is nobody in the neighborhood who is nearby and in a position to help easily. R. 76. Noting that Plaintiff usually just prepares milk and cereal for himself when he is home alone, she testified that, although he can use a microwave and she does not limit the food that Plaintiff may prepare for himself, she would not want him using the oven alone. R. 76-77. She did not think that Plaintiff would be capable of leaving the house every day and training for an assembly job, observing that Plaintiff does not finish the tasks she assigns him. R. 78.

         The record reflects that Plaintiff graduated from high school after two years of home schooling with grades of B/Cs and sometimes lower, ending with a 1.7 GPA. He reported no special education and never repeated a grade. He had some friends but was not active in extracurricular activities. According to a January 2016 report, he watches television, plays video games, and eats during the day. His most recent seizure at that time was 1½ years ago. He had undergone an evaluation at the Mayo Clinic in November 2013 and had responded well to a medication adjustment. R. 644.

         Plaintiff's first seizure as an adult occurred on January 4, 2011, when he was age 19. Dr. James Napier saw Plaintiff with his mother on that date after Plaintiff had experienced a convulsive seizure at home while yelling and screaming at a wrestling match he was watching on the computer. His mother described Plaintiff as foaming at the mouth and shaking for three to four minutes. She reported he had a seizure at age six that was thought to be febrile, but none since. An EEG showed “slight abnormality in the left hemisphere.” Plaintiff was started on Lamictal, an anticonvulsant. R. 356-57.

         Plaintiff remained seizure free thereafter until on August 16, 2012, he reported a seizure that occurred 10 days earlier and experienced a generalized convulsion at the neurologist's office. Dr. Napier increased his Lamictal to 300 mg, twice daily. No further seizures were reported until he reported experiencing three seizures on February 7, 2013: at a workout facility, at a desk outside his home, and while playing basketball. R. 20, 22. His medication was increased at that time to 400 mg, twice daily. He presented to the emergency room at Aurora Medical Center after experiencing another seizure on February 23, 2013. He was then referred to a second neurologist.

         Dr. George Morris had Plaintiff admitted to St. Luke's Center in Milwaukee for a week from March 7 to 14, 2013, for a prolonged video EEG and monitoring. In an apparent effort to induce a seizure, Plaintiff's medication was withdrawn, and he was hyperventilated, photic stimulated, and sleep deprived. He experienced no seizures over the week, and clinical findings on discharge were normal. His medication was resumed, and Plaintiff was told to return to either the specialist or the hospital if his seizures recurred. R. 22-23.

         On June 13, 2013, Plaintiff presented to the hospital ER and reported having experienced a seizure while playing basketball. He reported he had fallen on his face and knocked out his two front teeth. Findings on clinical examination were within normal limits, and Plaintiff denied either memory loss or altered mental status. R. 23. Plaintiff reported ongoing seizures at a routine physical examination in October 2013, but there is no further evidence of convulsive seizures resulting in hospitalization after June 2013. Plaintiff was evaluated at the Mayo Clinic in November 2013, at which time his medication was again adjusted. R. 17, 23. Dr. J.W. Britton, the Mayo specialist who evaluated Plaintiff, characterized his seizures as uncontrolled based on the history provided by Plaintiff or his mother which included a frequency estimate of one to two per month. R. 23 (citing R. 521-22).

         In a nineteen-page decision dated July 7, 2016, the ALJ determined that Plaintiff is not disabled. R. 11-29. The ALJ's decision followed the five-step sequential process for determining disability prescribed by the Social Security Administration (SSA). R. 13. At step one, the ALJ concluded that Plaintiff has never engaged in substantial gainful activity. Id. At step two, the ALJ concluded that Plaintiff has three severe impairments: complex partial seizures, cognitive disorder, and depressive disorder. Id. At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 17. With regard to Plaintiff's physical impairments, the ALJ considered listings 11.02 (convulsive epilepsy) and 11.03 (nonconvulsive epilepsy). R. 17. With regard to his mental impairments, the ALJ considered listings 12.02 (organic mental disorders) and 12.04 (affective disorders) and determined that Plaintiff did not have a sufficient combination of marked impairments and repeated episodes of decompensation to satisfy the “paragraph B” criteria for either listing. R. 18. Nor did the evidence support the existence of either listing's “paragraph C” criteria. Id.

         The ALJ next concluded that Plaintiff had the following RFC:

The claimant has the capacity to perform the exertional and nonexertional requirements of work except for climbing ropes, ladders, or scaffolds; working at or around hazards; operating a motorized vehicle; understanding and remembering other than simple instructions; carrying out other than simple, routine tasks; performing tasks requiring other than incidental public contact; performing tasks requiring other than occasional contact with coworkers; or performing fast paced tasks.

R. 28 (italics omitted). That finding followed an eight-page discussion of Plaintiff's medical records, as well as a one-page discussion of the weight the ALJ assigned to the various medical source opinions in the record. R. 18-27. At step four, the ALJ once again noted Plaintiff's lack of any work history. At step five, the ALJ then relied on the VE's testimony that a person with Plaintiff's age, educational background, work experience, and RFC would be able to perform work at the unskilled level that is available in significant numbers in the national economy. R. 29. Specifically, the VE testified that Plaintiff would be capable of performing work as a laundry laborer at the medium exertional level, as a cleaner or housekeeper at the light exertional level, and as a final ...

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