United States District Court, S.D. Indiana, Indianapolis Division
BRANDY K. SAMUEL, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
ENTRY ON JUDICIAL REVIEW
LARRY J. McKINNEY, District Judge.
Plaintiff Brandy K. Samuel ("Samuel") requests judicial review of the final decision of Defendant Carolyn W. Colvin, Acting Commissioner of Social Security (the "Commissioner"), which denied Samuel's application for Supplemental Security Income ("SSI") benefits under title XVI of the Social Security Act, 42 U.S.C. § 423 & 1382c. Samuel asserts that the Commissioner's decision is erroneous because the Administrative Law Judge ("ALJ") improperly assessed the medical evidence to determine that Samuel did not meet or equal Listing 11.02 (epilepsy); failed to call a medical advisor to determine if Samuel's seizures medically equaled any Listing, such as Listing 11.02; improperly assessed the credibility of Samuel's treating physician and mother regarding her impairments; and at Step V, failed to account for the claimant's seizures, which could occur without warning and leave her unable to function for several days afterward. Samuel seeks an award of benefits, or remand for proper consideration of the evidence.
A. PROCEDURAL HISTORY
Samuel filed her application for SSI benefits on August 24, 2009. R. at 127-33. Her application was denied initially and upon reconsideration. Id. at 62-65, 78-80. She requested a hearing, which was held on May 12, 2011. Id. at 34-55. In a decision dated November 16, 2011, an ALJ denied her application. Id. at 19-29. Samuels requested a review by the Appeals Counsel, which affirmed the ALJ's decision. Id. at 1-5. Samuels promptly filed this appeal on May 9, 2013.
B. RELEVANT MEDICAL EVIDENCE
1. Treatment Records
In January, 2006, Samuel was evaluated by Dr. Alonso M.D. R. at 326. At the time, Dr. Alonso reported that Samuel had a five-year history of partial complex and secondary generalized tonic clonic seizures, which were treated with Tegretol. Id. She reported that she had been to the emergency room with the seizures, which were occurring approximately three to five times per month. Id. Samuel did not remember the seizures, but her husband reported that they occurred primarily during the late evening or morning hours. Id.
On April 4, 2006, Samuel received an EEG evaluation from Dr. Alonso. Id. at 327. He concluded that it was an abnormal EEG due to the presence of intermittent bifrontal sharp and slow wave activity with lateralization to the left frontal hemisphere. Id. According to Dr. Alonso, this suggested the presence of an underlying structural lesion involving the anterior portion of the left hemisphere with epileptogenic potential. Id.
On August 7, 2008, Samuel received another neurological evaluation by Dr. Alonso. R. at 328. At that time, Dr. Alonso reported that Samuel was having approximately one seizure per month and she was continuing to take Tregretol. Id.
On January 20, 2010, Dr. Alonzo evaluated Samuel again. R. at 328. At that time, Samuel reported that she had several, predominately nocturnal, secondarily generalized tonic clonic seizures. Id. She was seen in the Methodist Hospital Emergency Room for treatment and her Tregretol was increased to 200 mg q.i.d. Id.
On January 4, 2011, Samuel was evaluated by Dr. Alonzo. R. at 329-30. Dr. Alonzo noted that Samuel continued to have seizures but was amnestic to them; her mother reported them to her. She related that she had been taking her medication as prescribed. An EEG revealed evidence of left frontal sharp wave activity. Dr. Alonzo recommended that Trileptal be substituted for Carbamazepine at 300 mg b.i.d. Her physical exam, however, was normal. Id. Dr. Alonzo also restricted Samuel from performing activities such as driving that might put her or others at risk. R. at 239, 313, 330.
2. Social Security Administration Consultative Exams & Function Capacity Assessments
In September, 2009, Kenneth Neville, Ph.D. ("Dr. Neville"), a state agency reviewing consultant, completed a psychiatric review. R. at 257-70. Dr. Neville determined that Samuel had no medically determinable impairment. Id. at 257.
In October 2009, Joseph Croffie, M.D. ("Dr. Croffie") performed a consultative exam on Samuel. R. at 273-77. Samuel reported to Dr. Croffie that she could walk, stand, and climb without restrictions and lift up to twenty-five pounds. Id. at 274. Samuel's physical examination was within normal limits in all areas. Id. at 274-75. She exhibited no significant memory impairment. Id. at 275.
In December 2009, state agency medical expert R. Bond, M.D. ("Dr. Bond"), reviewed Samuel's records and completed a physical capacity assessment. R. at 279-86. Dr. Bond opined that Samuel had no exertional limitations but should avoid exposures to hazards. Id. at 280-83.
In February, 2010, state agency reviewing medical expert J. Sands, M.D. ("Dr. Sands"), affirmed Dr. Bond's assessment. Id. at 295.
C. SOCIAL SECURITY REPORTS & HEARING TESTIMONY
On September 4, 2009, Samuel's mother, Eddie Hayes ("Hayes"), completed a functional report to Social Security. R. at 187-88, 191-92. Hayes stated that after Samuel suffered a seizure, she needed help bathing, caring for her hair, and using the toilet. She also needed help or a reminder to take her medicine because she could not remember when she had a seizure. Hayes reported that Samuel had problems getting along with family, friends and neighbors when she had a seizure because she could not remember what she said or did. Hayes also reported that Samuel could not follow a recipe because she could not read and that she had been fired or laid off from a job because of her seizures and memory problems. Hayes opined that Samuel could not handle changes in routine. However, Samuel's activities included doing yard work, riding a bicycle with her children, using public transportation, shopping, playing cards, visiting with friends, and independently caring for her children. R. at 176-80, 186-90, 197.
On September 4, 2009, Hayes also completed a seizure questionnaire report to Social Security. R. at 195-96. She reported that Samuel took Carbamazepine for her seizures, 200 mg, 5 times per day. She had two or three seizures a month, and her last one was on August 31, 2009. Hayes reported that during seizures that she had observed, Samuel experienced severe convulsions, loss of consciousness, thrashing about, and biting her tongue. Samuel had injured herself during a seizure by biting her tongue and hitting her head. Hayes further reported that Samuel lost bowel or bladder control during a seizure and they occurred both during the day and at night. After a seizure, Samuel would go to sleep for several hours. Id.
On September 21, 2009, Social Security interviewed Hayes. R. at 197. Hayes reported that Samuel's memory problems were related to her seizures. When Samuel had a seizure, it could take her up to a day to fully recover her memory. She also had difficulty recalling the date or the day of the week. Hayes reported that she helped Samuel with daily activities to make sure she got everything done. Id.
On December 9, 2009, Social Security's Case Development analysis of the evidence stated that "the residual effects of clmt's Sz to seem to interfere ...