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United States District Court, Southern District of New York

August 11, 2003


The opinion of the court was delivered by: Denise Cote, District Judge


On October 31, 2001, Pedro Castillo ("Castillo") filed this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), seeking reversal of a final decision of the Commissioner of Social Security ("Commissioner") denying Castillo's application for Supplemental Security Income ("SSI") disability benefits. Beginning on September 28, 1998, Castillo submitted applications for disability benefits related to various physical and mental ailments, including back problems, seizure disorder, arthritis, and depression. The Commissioner found that Castillo, although suffering from a severe impairment, retains the ability to do sedentary work. For the reasons that follow, the decision of the [ Page 2]

Commissioner is affirmed.


Pedro Castillo was born on September 30, 1960, in Santa Domingo, Dominican Republic and attended school there through the fourth grade. He is married and has four sons who in 2000, were all less than twelve years old. Castillo came to the United States in 1992, working as a machine operator in a staple factory located in New Jersey from 1992 to 1993. Castillo alleges that his disability began on September 28, 1998, but that his seizure disorder and physical problems began in 1993, which resulted in Castillo leaving his job at the staple factory.

Overview of Application History

Castillo's initial application on April 19, 1998, for SSI benefits was based on a seizure disorder and denied on September 21, 1998. On January 8, 1999, Castillo applied again for SSI, listing arthritis, back problems, high blood pressure and seizures. The second application was denied on April 26, 1999. June 4, 1999, Castillo requested reconsideration of his application. On October 19, 1999, the denial of benefits was confirmed. Castillo requested a hearing on November 20, 1999. On May 10, 2000, Castillo appeared and testified before Administrative Law Judge ("ALJ") Kenneth L. Scheer. On July 22, [ Page 3]

2000, the ALJ issued a finding that Castillo was not disabled at any time through the date of the decision, i.e., from the date of his first application in 1998, to the date of the hearing. On August 17, 2000, Castillo filed a request for review of the decision and on August 3, 2001, the Appeals Council denied his request for review.

Medical History

Castillo's reported medical history begins with records from 1995. Castillo first arrived at Bronx Lebanon Medical Center by ambulance on May 15, 1995, suffering from a seizure. The record states that Castillo had been previously hospitalized for seizures, and had been prescribed Dilantin. The record for May 15, 1995, indicates his Dilantin level was below the "therapeutic level".

Castillo returned to Bronx Lebanon Hospital five additional times (October 6, 1995, and March 3, March 24, April 8, 1996, and July 4, 1998) after having suffered seizures. For only one of these visits, April 8, was Castillo transported by ambulance to the hospital. On each visit, Castillo's Dilantin level was reported as being far below the therapeutic range. After Dilantin was administered at the hospital, there is no evidence of further seizure activity during Castillo's hospital stays.

Approximately two years later, on June 19, 1998, Castillo [ Page 4]

applied for SSI benefits. On July 14, 1998, Dr. Bridget Patterson-Marshall ("Marshall") examined Castillo, who complained of lower back pain and arrived with a cane. Castillo stated that his doctor had prescribed the cane to him. After further questioning he stated that he liked having the cane and had purchased it with his own money. The examination revealed nothing abnormal, although Marshall noted that "perhaps" Castillo should be on additional anti-epileptic medication. Castillo's Dilantin levels were found to be below the therapeutic range. On September 3, 1998, plaintiff had an electronencephalogram ("EEG") at Bronx Lebanon Hospital, the results of which were normal.

Castillo was examined on September 19, 1998, by state agency physician Dr. L. Marasigan ("Marasigan"). Marasigan concluded that Castillo had no external, postural, manipulative, visual or communicative limitations. Marasigan's report stated that Castillo should avoid hazardous work environments (such as work with machinery and at heights) because of his seizures. Blood work drawn on October 14, 1998, by Bronx Lebanon Hospital showed a non-therapeutic level of Dilantin. This was the latest in a series of blood tests administered since October 6, 1995 that showed that Castillo was not taking his Dilantin as prescribed. On February 4, 1999, plaintiff received a CT scan of his thoracic spine, head and lumbar spine, all of which were found to be normal. [ Page 5]

On March 9, 1999, Castillo's personal physician Dr. Luis F. Rivas ("Rivas") completed the New York State Office of Temporary and Disability Assistance medical form for the Division of Disability Determination. This is a standard form where the physician checks off the appropriate medical determination with the opportunity to add more detailed findings underneath. On this form Rivas listed Castillo's medical problems as epilepsy, elevated triglycerides, and arthritis. Rivas does not indicate frequency or limitations resulting from Castillo's seizures. At this time, Castillo's Dilantin level was just within the therapeutic range. Rivas indicated that Castillo had stated he had experienced pain for over one year in his limbs and more severe pain in his back and right elbow. The form noted that his muscle tone, gait, gross/fine manipulation, and sensory abilities were normal. Rivas rated plaintiff's motor strength at "5/5" in both the right and lower quadrants, and "3/5" in the left upper and lower quadrants. Rivas concluded that Castillo had a limited ability to lift or carry less than five pounds with respect to his right arm specifically, to stand or walk less than two hours, and to sit less than six hours in a workday.

On March 9, 1999, Castillo saw Dr. Cristina Bortuzzo ("Bortuzzo") at Diagnostic Health Services ("DHS"), a medical group in Bronx, N.Y.. She noted that his station and gait were normal and his Dilantin was within the therapeutic range. [ Page 6]

Additionally, he had no difficulty moving from a seated position, on and off the examination table. She also noted that he was able to dress and undress using both hands and arms. Bortuzzo determined that Castillo appeared to be limited in his ability to engage in repetitive physical activity such as carrying, lifting, pushing, pulling, bending, walking and standing, especially in relation to his frequent episodes of seizures. She concluded that Castillo was capable of performing fine and gross manipulation with the ability to perform light sedentary work. A radiographic examination performed for DHS on March 10, 1999, produced negative findings in both the LS spine and the chest.

On March 9, 1999, Dr. Robert Cicarell ("Cicarell"), a psychiatrist from DHS, examined Castillo after he complained about being depressed. Cicarell concluded that Castillo was neither suicidal nor homicidal and indicated that Castillo may have a dysthmyic disorder (depression) and recommended therapy.

An additional psychiatric evaluation was performed by a state agency physician on April 2, 1999. The doctor found Castillo to be markedly limited in his ability to understand, remember and carry out detailed instructions. He reported that Castillo was only moderately limited in the following areas: maintaining attention and concentration for extended periods, performing activities within a schedule, maintaining regular attendance, sustaining an ordinary routine without special [ Page 7]

supervision and working in coordination with or proximity to others without being distracted by them. Castillo was examined by Dr. Levit ("Levit"), a state agency physician, on April 21, 1999. Levit concluded that Castillo had no physical limitations, but that he should avoid environmental hazards such as heights and machines due to his seizures.

Castillo visited Rivas again on May 14, 1999, complaining of pain in his lower back, which bothered him when he stood for long periods of time. There is no record of a blood test to check Dilantin levels on this date, although Rivas continued Castillo's previous prescription of Dilantin for the seizures.

Castillo visited Bronx Lebanon Hospital on May 28, 1999, and reported that he had suffered a seizure the week before. Castillo was advised to be compliant with his medication.

On June 4, 1999, Castillo requested reconsideration of his benefits. Castillo visited Rivas on July 9, 1999, in order to have the disability determination form completed. In this report Rivas stated that Castillo has a history of seizures, and pain in his right elbow and back. Additionally, Rivas noted that Castillo reported having suffered three seizures since his last visit on May 14, 1999, and continues to have two to three seizures per month despite continued medication. Castillo's Dilantin level was solidly within the therapeutic range. Rivas added that the pain in Castillo's elbow occurs when it is flexed [ Page 8]

and that the pain in Castillo's back worsens when he walks or bends down. Rivas concluded Castillo had no loss of motion throughout his body, with the exception of some loss in his right elbow. He indicated that Castillo reported feeling depressed, with the depression occurring mostly after a seizure. Rivas did not find Castillo to have a psychiatric disorder. Rivas concluded that Castillo had a limited ability to lift or carry less than five pounds, with respect to his right arm specifically, to stand or walk less than two hours, and to sit less than six hours in a workday. Additionally, Rivas indicated that Castillo had postural limitations, although he did not elaborate on this condition.

Castillo visited Kings M.D. Medical Services ("Kings M.D.") on July 9, 1999, where Dr. Vijaya Doodi ("Doodi") examined him. Doodi found Castillo's Dilantin level to be within the therapeutic range and his cervical spine and right elbow to be normal. Doodi concluded that Castillo could lift, push, pull and carry items with proper biomechanics.

Castillo visited Kings M.D. again on September 24, 1999, where he met with Dr. Gerardo Tapia ("Tapia")for a psychiatric evaluation. Castillo told Tapia that he had been depressed for the past six years. He also stated that he heavily abused alcohol for three years and had made himself stop about six years ago. (Castillo had not previously reported alcohol abuse despite [ Page 9]

inquiries by multiple physicians.) Tapia stated that Castillo had a good ability to understand, remember and carry out instructions, and a fair ability to respond appropriately to supervision and co-workers in a work setting. Tapia diagnosed a dsythymic disorder and prescribed psychiatric care.

On September 28, 1999, Castillo was examined by Dr. Mancheno ("Mancheno") at Kings M.D. after complaining that he could not work because of pain in his back and right elbow. X-rays of his right elbow and cervical spine were both normal. Mancheno concluded that Castillo could do mild lifting, carrying, standing, walking, pushing, pulling and sitting.

On October 15, 1999, Marasigan, the state agency physician, examined Castillo again. Marasigan concluded that Castillo could stand or walk with normal breaks for about six hours in an eight-hour workday, sit with normal breaks for about six hours in a normal eight-hour workday and push or pull items. The only activities to be completely avoided were: climbing ramps, stairs, ladders, etc. Castillo was found to have no manipulative, visual, or communicative limitations. Marasigan concluded that Castillo had the single environmental limitation of avoiding hazards, defined to include "machinery, heights, etc." Castillo was again declared not disabled by the Social Security Administration.

Castillo visited Rivas on November 1, 1999, for a check-up. [ Page 10]

Rivas prescribed Claritin, a low fat diet and weight reduction and continued the Dilantin prescription but did not administer a blood test to check Dilantin levels. Castillo requested a new benefit hearing on November 20, 1999. On February 15, 2000, the Social Security Administration ("SSA") sent Castillo a letter acknowledging his request for a hearing.

Three days later, on February 18, 2000, Castillo saw Rivas for complaints of a headache. Rivas prescribed Vioxx and continued the regimen of Dilantan.

On April 14, 2000, just two days after receiving notice of his hearing date, Castillo visited Rivas explaining that he had suffered another epileptic attack even though he had been taking his medication. The record does not indicate a blood test to check Dilantin levels, however, Rivas advised him to continue taking his Dilantin at the same dosage level.

On April 22, Castillo visited Rivas again because of elevated triglycerides. Rivas again advised Castillo to take his prescribed medication.

Castillo returned to Rivas' office on May 5, complaining of back pain. The report states that Castillo experiences pain in his lower back on palpitation and when he bends. Rivas prescribed an additional pain medication and doubled Castillo's dose of Dilantin. The record does not indicate that a blood test was administered to examine Dilantin levels. On May 8, Castillo [ Page 11]

made another visit to Rivas, complaining of continued back pain. Rivas maintained Castillo's medication regimen.


Castillo had his administrative hearing on May 10, 2000. He testified that he stopped working because he feared that as a result of his seizure disorder he might injure himself on the machines. He stated that he has seizures three times a month, and sometimes twice a week. He confirmed that he has no difficulty walking, unless he has recently had a seizure. He explained that, since he started to have seizures, standing for long periods of time bothers his back. When asked how much weight he could lift or carry, push or pull, he responded ten pounds.

Post-Hearing Medical Record

Castillo visited Rivas on May 20, complaining of continued pain in his back which ran down the back of his legs. He complained that bending his legs produced the pain. Rivas advised him to lose weight, to adopt a low salt diet and to continue taking his previously prescribed medications.

A computerized tomography of the lumbar spine without contrast was taken on May 27, 2000, which revealed a posterior disk bulge at the L4-L5 level. Castillo visited Rivas on June 3, [ Page 12]

complaining that lower back pain continued to be an issue. Rivas continued Castillo's prescribed Lopid and physical therapy. The record does not indicate whether Castillo ever attended physical therapy.

In a letter to the ALJ dated June 3, 2000, Rivas stated that Castillo had been a patient of his since 1997, when he was part of the Padre Billini Medical Clinic. Rivas reported that Castillo is on Dilantin, but that Castillo can still have seizures up to four to five times a month, some of which require hospital visits. The doctor noted the continued backaches and the disc bulge found in the L4-L5 region. The doctor also wrote that Castillo's pain gets worse with motion. He concluded that Castillo is not able to participate in any kind of work related activities since such activities will aggravate his condition.

In a medical assessment also dated June 3, Rivas reported that Castillo had a lifting and carrying impairment and was only able to carry less than five pounds from one-third to two-thirds of an eight-hour workday. Additionally, he noted, that Castillo had a walking and standing impairment, which limited his ability to sit or stand for long periods of time. The report noted that Castillo has the ability to sit for less than six hours over the course of an eight-hour workday. Additionally, Castillo is prohibited from climbing, kneeling, crouching or crawling, as the positions cause pain in his back. The report also stated that [ Page 13]

Castillo's ability to reach, feel, push and pull were impaired by the pain in his lower back. Environmental restrictions were listed as moving machinery, extreme temperatures, vibration and humidity. Rivas indicated no restrictions on activities which involve heights, chemicals, dust, noise or fumes.

Finally, on July 22, 2000, the ALJ concluded that Castillo did have a severe impairment, but that he also had a residual capacity to perform work in certain occupations. Plaintiff filed this lawsuit on October, 31, 2001, asking for a review of the decision, pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, and for benefits retroactive to September 22, 1998. On June 10, 2002, the case was remanded to the Commissioner for further proceedings in order to allow the Commissioner to locate the record and hearing tape. In November 2002, the case was ready for further proceedings in this Court. The Government filed a motion for judgment on the pleadings on February 11, 2003. The plaintiff was required to submit an opposition by April 18, 2003, but did not do so. On June 23, 2003, the Government was ordered to supplement its motion for judgement to address whether the ALJ's determination that Castillo's seizures were not a "listed" impairment was adequately supported by the record and whether the ALJ adequately fulfilled his obligation "to develop" the record regarding the seizure disorder. The plaintiff was given an additional opportunity to [ Page 14]

submit opposition to the Government's motion to dismiss, but again failed to do so.


In reviewing a decision of the Commissioner, a district court may "enter, upon the pleadings and transcript of the record a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for rehearing." 42 U.S.C. § 405(g). The factual findings of the Commissioner are conclusive if supported by substantial evidence. Diaz v. Shala, 59 F.3d 307, 312 (2d Cir. 1995). The district court is not to determine de novo whether the plaintiff is disabled. Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The court may set aside a determination of the ALJ only if it is "based upon legal error or not supported by substantial evidence." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).

Disability Determination

To be considered disabled under the Social Security Act, a claimant must demonstrate: "Inability to engage in any substantial gainful activity by reason of any medically [ Page 15]

determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1) (A). Further, the claimant's impairment must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 432(d)(3). The ALJ's decision must be guided by the appropriate legal standards. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)

Process To Determine Disability

The Social Security Administration uses a five-step process to make determinations of disability. See 20 C.F.R. § 404.1520 & 416.920. The Second Circuit has summarized the procedure as follows:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed is Appendix 1 of the regulations. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant [ Page 16]
is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.
Brown v. Apfel, 174 F.3d 59, 64 (2d Cir. 1999).

In determining whether the claimant can perform other work, the ALJ determines first whether the applicant retains the functional capacity for work-related activities. If the applicant is subject only to exertional, or strength, limitations, the ALJ then uses the medical-vocational guidelines in 20 C.F.R. Part 404, Subpart P, App. 2 to cross-reference on a grid the applicant's residual capacity with his age, education, and work experience. The grid then yields a determination of whether there is work the applicant could perform in the national economy. Rosa, 168 F.3d at 78; see also Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996). A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden in the final step. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).

Administrative Law Judge's Findings

The ALJ concluded that Castillo has a severe impairment, but retains the residual capacity to perform sedentary work. The ALJ found that Castillo (1) has not engaged in substantial activity since at least September 22, 1998; (2) has an impairment that is considered "severe"; (3) does not have an impairment which meets [ Page 17]

or equals the criteria of any listing; (4) has the ability to do work at a sedentary exertional level provided his job does not require that he follow any complicated instructions and he is not required to work around heights or heavy machinery; (5) cannot resume his past relevant work because that work required greater than a sedentary level of exertion; and (6) has not been "disabled" since September 22, 1998.

In concluding that Castillo's seizures were not a "listed" impairment, the ALJ noted that no treating or consulting physician had mentioned findings equivalent to those of any listed impairment and that Castillo's seizures were neither frequent nor powerful enough to qualify as a listed seizure disorder. Additionally, the ALJ established that the record did not show the presence of any grand mal seizures and the claimant testified that he only suffered from seizures an average of twice a month.*fn1 The ALJ observed, in error, that there was no indication that Castillo had been "non-compliant" with the Dilantin prescribed for his seizure disorder. Because of Castillo's potential for seizures, however, the ALJ determined that Castillo was prevented from working around heights or heavy machinery.

Moreover, the ALJ stated that the dysthymia suffered by [ Page 18]

Castillo was not a severe impairment, as Castillo had recently started seeing a psychologist and he had not been prescribed any psychotropic medication. Furthermore, the ALJ relied on Cicarell, who found on March 9, 1999, that Castillo had a "fair" ability to perform most work duties although he could not be expected to follow any complicated instructions.

The ALJ relied upon Castillo's testimony under oath that he could lift up to ten pounds and had no problem walking or sitting. The ALJ found nothing in the treatment record to indicate the presence of any impairment that would cause exertional limitations of the type that Rivas indicated were present. The ALJ concluded that Castillo has a residual capacity to do work at a sedentary exertion level provided that the job does not require Castillo to follow any complicated instructions, or to work around heights or heavy machinery.

Listed Impairment

There is substantial evidence to support the ALJ's conclusion that Castillo's seizure disorder was not a listed impairment. The regulations that describe listed impairments include the following description of convulsive disorders: 11.00 Neurological*fn2

A. Convulsive disorders. In convulsive disorders, [ Page 19]

regardless of etiology, degree of impairment will be determined according to type, frequency, duration, and sequelae of seizures. At least one detailed description of a typical seizure is required. Such description includes the presence or absence of aura, tongue bites, sphincter control, injuries associated with the attack, and postictal phenomena. The reporting physician should indicate the extent to which description of seizures reflects his own observations and the source of ancillary information. Testimony of persons other than the claimant is essential for description of type and frequency of seizures if professional observation is not available. Documentation of epilepsy should include at least one electronencephalogram (EEG). Under 11.02 and 11.03, the criteria can be applied only if the impairment persists despite the fact that the individual is following prescribed anticonvulsive treatment. Adherence to prescribed anticonvulsive therapy can ordinarily be determined from objective clinical findings in the report of the physician currently providing treatment for epilepsy. Determination of blood levels of phenytoin sodium or other anticonvulsive drugs may serve to indicate whether the prescribed medication is being taken. When seizures are occurring at the frequency stated in 11.02 or 11.03, evaluation of the severity of the impairment must include consideration of the serum drug levels. Should serum drug levels appear therapeutically inadequate, consideration should be given as to whether this is caused by individual idiosyncrasy in absorption of metabolism of the drug. Blood drug levels should be evaluated in conjunction with all the other evidence to determine the extent of compliance. When the reported blood drug levels are low, therefore, the information obtained from the treating source should include the physician's statement as to why the levels are low and the results of any relevant diagnostic studies concerning the blood levels. Where adequate seizure control is obtained only with unusually large doses, the possibility of impairment resulting from the side effects of this medication must be also assessed. Where documentation shows that use of alcohol or drugs affects adherence to prescribed therapy or may play a part in the precipitation of seizures, this must also be considered in the overall assessment of impairment level.
11.02 Epilepsy — major motor seizures, (grand mal or psychomotor), documented by EEC and by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once a month, in spite of at least 3 months of prescribed treatment. With: [ Page 20]
A. Daytime episodes (loss of consciousness and convulsive seizures) or
B. Nocturnal episodes manifesting residuals which interfere significantly with activity during the day.
11.03 Epilepsy — Minor motor seizures (petit mal, psychomotor, or focal), documented by EEG and by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of consciousness and transient postictal manifestations of unconventional behavior or significant interference with activity during the day.
20 C.F.R. Part 404, Subpart P, App. 1. See Brown, 174 F.3d at 64.

In order to be a "listed" impairment, a condition must meet all of the elements set out in the definition of a listed impairment. Sullivan v. Zebley, 493 U.S. 521, 523 (1990); Brown, 174 F.3d at 64. With respect to a seizure disorder, the elements include, among other things, (1) a detailed description of a typical seizure, including all associated phenomena, given by a person other than the claimant; (2) adherence to anticonvulsive drug therapy, confirmed by blood tests; (3) documentation of the epilepsy through at least one EEG;*fn3 and (4) the occurrence of seizures at a frequency described in the regulations despite compliance with prescribed drug treatment. [ Page 21]

Here, there was substantial evidence to support a finding that Castillo's seizures were not a listed impairment. Although Castillo described the symptoms associated with his seizures, the record does not contain a detailed description of the seizures from a party other than Castillo. Moreover, the record indicates that Castillo did not adhere to his Dilantin therapy regimen until March of 1999. From March of 1999 until July of 1999 there is evidence that Castillo continued to have seizures despite taking the prescribed amount of Dilantin. There is, however, no evidence of blood tests following July 1999 to indicate whether Castillo continued to take his medication. Additionally, Rivas doubled Castillo's Dilantin prescription on May 3, 2000, which was five days prior to the administrative hearing. There is no evidence to indicate whether Castillo adhered to the altered drug regimen and whether that regimen was insufficient to control the seizures. Where the medical condition can be controlled through adherence to prescribed medical treatment, the mere presence of the condition without treatment compliance does not automatically render the person disabled for purposes of disability benefits. See Green-Younger v. Barnhart, No. 02-6133, slip op. at 3966 (2d Cir. Jul, 10, 2003); Brown, 174 F.3d at 63; Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983). In the report from the June 3, 2000 visit, Rivas makes no mention of a seizure disorder in the Medical [ Page 22]

Assessment of Ability to Do Work-Related Activities (Physical) form. In fact, Rivas reports that Castillo is not restricted from working at heights, which contradicts the recommendations of several state agency physicians. Finally, there is no EEG in the medical record that documents the epilepsy.

Standard for Sedentary Work

Sedentary work involves lifting no more than ten pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 416.967(a); see also 20 C.F .R. § 404.1567. Sedentary work generally involves six hours a day of sitting and two hours of standing or walking. Sedentary work is the least restrictive of the five categories of work recognized by SSA regulations. Rosa, 168 F.3d at 78.

The ALJ found that the evidence supported a finding that Castillo suffered from a seizure disorder, dysthymia and low back pain. He determined that the combined impact of these impairments imposed significant vocationally relevant limitations which could properly be considered "severe" under the [ Page 23]

Regulations. Nonetheless, the ALJ determined that Castillo could perform sedentary work.

Substantial evidence exists that Castillo's complaints of back pain do not support a finding that Castillo is disabled. Specifically, the report of the July 9, 1999 visit with Rivas mentions some lower back pain, but adds that there is no loss of motion. Instead, the report focused on Castillo's limitations with regards to his right elbow. While Castillo's multiple visits to state agency and consulting physicians reflect repeated complaints of lower back pain, Mancheno concluded on September 28, 1999, that Castillo could do mild lifting, standing and sitting, and on October 15, 1999, Marasigan concluded that Castillo can stand, sit or walk with normal breaks for about six hours in an eight-hour workday. Rivas reported on June 3, 2000, that Castillo had the ability to sit up to six hours over the course of an eight-hour workday.

There is also substantial evidence that Castillo's dysthymia does not support a finding that Castillo is disabled. There are four complaints of depression in this record, two of which were to psychiatric care givers. He has not been prescribed medication for his condition, but has been referred twice for counseling. There is no indication that he has pursued treatment for his condition. [ Page 24]

Castillo's treating physician, Rivas, opined in his letter of June 3, 2000, that Castillo was disabled. The ALJ was not required to adopt that finding. While a treating physician's opinion is typically entitled to controlling weight, 20 C.F.R. § 416.927(d)(2), to be given such deference it must be well supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the case record. Green-Younger, slip op. at 3967. See 20 C.F.R. § 404.1527. When an opinion is not given controlling weight, the ALJ considers (1) the length of the treatment relationship and frequency of examination, (2) the nature and extent of the treatment relationship, (3) the supportability of the opinion, (4) the opinion's consistency with the record as a whole, (5) physician specialty, and (6) other relevant factors. 20 C.F.R. § 416.927(d).

As already described, the evidence regarding Castillo's back and mental condition undercuts Rivas' conclusion that these conditions were disabling and provided substantial evidence to support the ALJ's determination that Castillo was not disabled because of either condition. Rivas' conclusion regarding Castillo's epilepsy requires a more extended discussion. Although Castillo was seen by a variety of practitioners, according to the administrative record he had a single consistent treating physician, Rivas. Rivas, a general practitioner, is the [ Page 25]

only physician who examined Castillo and concluded that he was disabled due to his seizures. This conclusion is unsupported by sufficient clinical laboratory evidence and inconsistent with other evidence in the record. It is, therefore, not entitled to controlling weight.

Castillo visited Rivas sporadically, often in close proximity to his SSI benefit proceedings. In his June 9, 1999 report, Rivas makes no mention of any limitation based solely on Castillo's seizure disorder. Moreover, the report fails to mention either the frequency or duration of the seizure episodes. Although Rivas indicates in his June 3, 2000 letter that some of Castillo's seizures result in hospital visits, there is no record of a hospital visit after Castillo started taking his Dilantin on a more regular basis sometime in 1999. After July 9, 1999, Rivas' records do not reflect a report from Castillo of another seizure until April 14, 2000, two days after Castillo received notice of his hearing date. Rivas did not run a blood test at this time to monitor Castillo's Dilantin levels. Finally, there is no evidence that Castillo continued to experience seizures after Rivas doubled his Dilantin dosage on May 3, 2000.

In sum, the ALJ was not required to adopt Rivas' conclusion that Castillo is unable to participate in "any kind of work related activities" since they will aggravate his condition. There was substantial evidence from which the ALJ could conclude [ Page 26]

that Castillo's seizure disorder could be controlled by medication, and that when Castillo took his medication he was able to work with the minimal restrictions described by the ALJ.


For the reasons stated above, the Commissioner's motion for judgment on the pleadings is granted. The Clerk of Court shall close the case.


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