United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER, MAGISTRATE JUDGE.
Jeffrey Covey filed this action seeking reversal of the final
decision of the Commissioner of Social Security denying his
applications for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) under Titles II and XVI of
the Social Security Act, respectively. 42 U.S.C. §§
405(g), 423 et seq. The parties have consented to the
jurisdiction of the United States Magistrate Judge, pursuant
to 28 U.S.C. § 636(c). Covey raises two challenges on
appeal: (1) the administrative law judge (ALJ) who denied his
claim at the administrative level failed to properly account
in his residual functional capacity assessment and
corresponding hypothetical for Covey's moderate
limitations in the area of concentration, persistence or
pace; and (2) the ALJ failed to give proper weight to the
opinion of Dr. Todd Rave, one of Covey's treating
physicians. For the reasons stated below, I am affirming the
applied for DIB and SSI benefits on January 4, 2013, alleging
that he had been disabled since January 1, 2010 from
epilepsy, depression, asthma, allergies and back problems.
Covey was 38 years old on his alleged disability onset date,
had a high school education and had worked in the past as a
grinder at a foundry. After the agency denied Covey's
claim initially and on reconsideration, he requested a
hearing before an administrative law judge, which was held on
September 7, 2016. Covey was represented by counsel at the
hearing. Covey testified, as did a neutral vocational expert.
On September 16, 2016, the ALJ issued a decision finding
Covey not disabled. The Appeals Council denied Covey's
request for review, making the hearing decision the final
decision of the commissioner.
RELEVANT MEDICAL EVIDENCE
April 22, 2012, Covey sought emergency medical treatment
after experiencing an event that might have been a seizure.
Covey reported that he was with some friends drinking beer
while sitting on the back of a truck and next thing he knew,
he woke up on the ground. Covey said that he passed out for
three to five minutes and bit his tongue. Covey said he had
experienced similar episodes of passing out for the past five
to six years. At the time of the exam, however, Covey said he
was a little tired but mostly felt like his normal self. The
ER staff opined that Covey might have passed out from
coughing-he had bronchitis at the time and smoked up to two
packs of cigarettes a day-and then had a seizure. AR 477-85.
Paul Atkinson, an epilepsy specialist with the Ministry
Medical Group, saw plaintiff on April 25, 2012. Covey
indicated that before passing out on April 22, he had
experienced a “coughing fit.” According to Covey,
he had similar incidents of passing out in the past and each
time it was associated with a strong attack of coughing.
Covey reported that he had never had an episode where he
simply lost awareness, or where people could not get his
attention. Covey's wife, likewise, indicated that she had
never observed Covey experience any such spell.
mental status exam, Dr. Atkinson noted that plaintiff was
awake, alert and oriented, with good attention span and
concentration. His recent and remote memories were intact.
Dr. Atkinson questioned whether Covey's April 22 spell
was a seizure versus a fainting episode, but suspected
seizure because Covey bit his tongue and was confused
afterward. He ordered an EEG and encouraged Covey to stop
smoking to address his chronic cough and shortness of breath.
Covey asked Dr. Atkinson whether he should seek disability.
Dr. Atkinson replied that it would not be appropriate to do
so based on a single episode, but he advised him not to
drive, bathe alone or work at heights. AR 608-10.
saw Dr. Atkinson in follow up on June 8, 2012, after having
cancelled a couple of appointments. He said he had not had
any seizures since the April 22 incident. However,
Covey's EEG was abnormal, showing left temporal slowing
and left temporal epileptiform discharges. Based on the
abnormal EEG, Dr. Atkinson diagnosed suspected complex
partial seizures and started Covey on anti-seizure
medication. AR 605-06.
next saw Dr. Atkinson six months later, on December 7, 2012.
He reported doing well since his last visit with no overt
seizure activity. He was taking his medication regularly
without side effects and overall did not have any new
concerns. Dr. Atkinson noted that Covey was pleasant, well
groomed and in no apparent distress. Covey's
concentration, attention, and memories all were intact and
his fund of knowledge was appropriate. AR 602-03. Atkinson
noted that Covey would be legal to drive if he had no
episodes of lost awareness for 90 days and had a therapeutic
saw Dr. Dotti, a neurologist, on April 24, 2013,
approximately a year after the first seizure incident. (Dr.
Dotti took over Covey's case after Dr. Atkinson left the
medical practice.) Dotti noted that Covey had asked him to
fill out forms for disability. Dotti wrote:
I am not so sure that this patient has epilepsy . . . I told
him that I am not an epilepsy specialist, so I would like to
transfer him to Marshfield. Some of the spells (especially
the first one) were associated with cough and to me those are
more similar to syncope . . . The diagnosis of seizure was
based only on one abnormal EEG, so it is possible that he may
have also seizures but also cough induced syncope. Only at
the end of the visit he told me that he had a seizure 1 month
ago. He really wanted a lot of restrictions regarding his
work but we discussed that I do not feel comfortable. He says
that he feels fatigued and with headaches. He had complaints
of headaches even years ago.
Dotti opined that Covey had “an ulterior motivation,
” but regardless, the only restrictions he would have
if he actually had seizures were no driving, no climbing
ladders and no operating heavy machinery. AR 601. Dr. Dotti
referred Covey to an epilepsy specialist at the Marshfield
Clinic, but Covey did not keep that appointment.
six months later, on November 3, 2014, plaintiff saw
neurologist Dr. Todd Rave at the Ministry Medical Group.
Covey told Dr. Rave that he typically had 1 to 2 seizures a
month and that it had been about four months since his last
seizure. AR 1307. Covey said that when he has a seizure, he
passes out and “shakes bad.” However, Covey did
not give a clear answer when Dr. Rave asked if he remembered
the shaking or not. Covey denied having any episodes of
“missed time or missed conversation.” AR 1307. He
had been working part-time on a potato inspection line, but
he was let go after his son told the employer about his
seizures. AR 1307.
also reported excessive fatigue, noting that he slept most of
the day. Dr. Rave thought Covey “probably” had
epilepsy based on the abnormal EEG, but said he was concerned
about “nonepileptic events, ” noting that Covey
had provided some “inconsistencies” that did not
fit well with an epilepsy diagnosis. AR 1308. Dr. Rave
decided to continue to prescribe anti-seizure medication,
referred Covey to a specialist for evaluation of sleep apnea
and said Covey probably should continue to avoid driving. AR
1309. He told Covey to call his office right away if he had a
seizure. AR 1309.
Rave saw Covey again on February 23, 2015. Covey said he had
had a “short” seizure maybe a week or two ago
where he passed out for a few seconds and was shaking,
according to people he was with. Rave increased the dosage of
Covey's medication. AR 1304. Rave noted that if Covey
continued to have seizures, he might consider an Epilepsy
Clinic referral where Covey could be monitored as an
inpatient. Rave noted, however, that he still questioned
whether Covey might be having “pseudo
seizures” and he wanted to talk to someone who had
witnessed one. AR 1305.
15, 2015, Covey saw physician assistant Steven Meyer for
treatment of his breathing issues. Meyer noted that
Covey's seizure disorder was stable on medication. AR
1298 However, on May 28, 2015, Covey told Dr. Rave he had had
another seizure about 2-3 days ago. It was his
“typical” seizure where he was coughing and he
just “went out.” AR 1294. There were no
witnesses. Dr. Rave diagnosed intractable complex partial
epilepsy and increased Covey's anti-seizure medication.
AR 1295. He noted that he still had “some concerns
about non-epileptic events, ” but noted that as the
medication had increased, those had been less frequent.
April 19, 2016, Covey told a nurse practitioner that his
epilepsy was better controlled and that his last seizure was
about 2 months ago. AR 1288.
Statements to the Agency
and his wife provided statements to the local disability
agency in support of his applications. In July 2013,
Covey's wife said that Covey was having three seizures a
month. When asked the dates of the last three most recent
attacks, if known, she wrote: June 14, 2010, April 22, 2012,
and July 12, 2013. AR 356. On another undated Seizure
Questionnaire, Covey's wife stated that Covey's
seizures were from 5 to 20 minutes in length and he had about
four per year. She denied that Covey had more than one type
of seizure. AR 370.
Medical Source Statements
Pat Chan, M.D.
December 5, 2013, Dr. Pat Chan, a consulting physician for
the local disability agency, reviewed Covey's medical
records and determined that Covey did not have any exertional
limitations. Dr. Chan noted that Covey had seizures
“occasionally, ” and therefore he should avoid
climbing ladders, ropes or scaffolding or working around
dangerous machinery, but otherwise did not have any physical
work restrictions. AR 513-520.
Mina Khorshidi, M.D.
August 4, 2014, Dr. Khorshidi, a state agency physician,
reviewed Covey's file in connection with his request for
reconsideration. Dr. Khorshidi concluded that Covey did not
have a severe physical impairment. She found that his
epilepsy diagnosis was not well-established, insofar as he
did not report any seizures from April to December 2012 and