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Jablonowski v. Colvin

United States District Court, W.D. New York

June 9, 2017



          HON. MICHAEL A. TELESCA United States District Judge

         I. Introduction

         Represented by counsel, Elizabeth Joanne Jablonowski (“plaintiff”) brings this action pursuant to Titles II and XVI of the Social Security Act (“the Act”), seeking review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying her applications for disabled adult child (“DAC”) benefits and supplemental security income (“SSI”). The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, plaintiff's motion is granted to the extent that this case is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order.

         II. Procedural History

         The record reveals that in October 2009 and March 2009, respectively, plaintiff (d/o/b December 12, 1991) applied for DAC and SSI benefits, alleging an amended onset date of disability as of December 12, 2009. After her applications were denied, plaintiff requested a hearing, which was held before administrative law judge Robert Harvey (“the ALJ”) on December 8, 2010. The ALJ issued an unfavorable decision on January 20, 2011.

         On May 3, 2012, the Appeals Council reversed the ALJ's decision and remanded the matter with specific instructions, including instructions to give further consideration to plaintiff's maximum residual functional capacity (“RFC”) and provide appropriate rationale with specific references to the record in support of the limitations, and to obtain vocational expert (“VE”) testimony with regard to the extent of erosion of plaintiff's occupational base due to nonexertional limitations.

         The ALJ held a second hearing on remand on September 20, 2012. He then issued a second unfavorable decision on October 9, 2012. The Appeals Council denied review of that decision and this timely action followed.

         III. Summary of the Evidence

         The record reveals that plaintiff suffered from a generalized seizure disorder. The earliest evidence of a seizure in the record occurred on May 26, 2008, when plaintiff had a seizure while asleep and exhibited symptoms of shaking, biting her tongue, and unresponsiveness. Following the episode, which lasted approximately five minutes, plaintiff was disoriented for about 25 minutes. Plaintiff subsequently suffered generalized tonic-clonic seizures on June 21, 2008; June 30, 2008; January 22, 2009; March 16, 2009; May 5, 2009; October 19, 2009; November 12, 2009; January 11, 2010; February 17, 2010; August 13, 2010; November 12, 2010; and October 6, 2011. The Court notes that these are the seizures for which plaintiff sought medical treatment and not necessarily representative of every seizure plaintiff suffered within this time period. From January 23, 2012 through January 27, 2012, Dr. Susan Kerr conducted a long-term video EEG, during which plaintiff suffered one generalized tonic-clonic seizure.

         Plaintiff's treating physician, Dr. E. Ann Yeh, completed two assessments of plaintiff's functioning. In the first, dated August 13, 2009, Dr. Yeh noted that she had been treating plaintiff, approximately every six months, since June 2006. Dr. Yeh stated that plaintiff suffered from generalized seizures on average once per month, with a typical seizure lasting approximately 15 minutes. According to Dr. Yeh, plaintiff did not always have a warning of an impending seizure and could not always take safety precautions prior to a seizure. Dr. Yeh stated that plaintiff had a history of injury and fecal or urinary incontinence during seizures, and she was currently prescribed trileptal, an anticonvulsant, but experienced occasional breakthrough seizures. Dr. Yeh recommended that during and immediately after a seizure, others should put something soft under plaintiff's head; remove her glasses; loosen tight clothing; clear the area of hard or sharp objects; and after seizure, turn plaintiff on her side to allow saliva to drain from her mouth. Plaintiff's postictal symptoms included confusion, exhaustion, irratibility, severe headache, and muscle strain.

         In Dr. Yeh's opinion, plaintiff's seizures were likely to disrupt the work of coworkers and plaintiff would need more supervision at work than an unimpaired worker. Plaintiff suffered lack of alertness as a result of seizure medication, and she had memory problems associated with her condition. Dr. Yeh opined that plaintiff was capable of “low stress jobs” and that if she had a seizure, she would need to take unscheduled breaks in an eight-hour workday. Her condition was likely to cause “good days” and “bad days, ” and she would miss approximately one day per month from work. T. 834.

         Dr. Yeh completed a second assessment on November 10, 2010. Dr. Yeh reported that plaintiff had zero to one seizure per month, each lasting approximately three minutes. Dr. Yeh stated that plaintiff's seizures may result in incapacitation for two to four hours following the seizure. Plaintiff was prescribed trileptal and Keppra, both anticonvulsant medications. Dr. Yeh once again wrote that plaintiff was capable of low stress jobs, but that she would miss about two days per month as a result of her condition.

         IV. The ALJ's Decision

         At step one of the five-step sequential evaluation, see 20 C.F.R. §§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged in substantial gainful activity since December 12, 2009, the amended alleged onset date. At step two, the ALJ found that plaintiff suffered from seizure disorder and learning disorder, both of which he considered severe. At step ...

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