United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
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.
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.
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.
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.
Summary of the Evidence
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
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.
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.
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.
The ALJ's Decision
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 ...