United States District Court, S.D. New York
MEMORANDUM AND ORDER
W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
Jerry Greenhaus, brings this action pursuant to the Social
Security Act, 42 U.S.C. § 405(g), seeking review of the
determination by the Commissioner of Social Security that he
is not entitled to disability insurance benefits
("DIB"). Both parties have moved for judgment on
the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. For the reasons set forth below, the
Commissioner's motion for judgment on the pleadings is
DENIED, Mr. Greenhaus' motion for judgment on the
pleadings is GRANTED, and this matter is remanded to the
Commissioner for further proceedings consistent with this
Memorandum and Order.
Greenhaus applied for DIB on June 23, 2014, alleging
disability as of March 27, 2014. (R. at
213-214.) After his claims were denied on initial
review (R. at 122-135), Mr. Greenhaus requested a hearing
before an administrative law judge ("ALJ"). (R. at
146-47). The hearing was held on February 23, 2015, before
ALJ Ronald L. Waldman. (R. at 54-121.) At the hearing, Mr.
Greenhaus was represented by counsel. (R. at 56.) On June 17,
2015, ALJ Waldman found that Mr. Greenhaus was not disabled.
(R. at 26-38.) The Appeals Council denied review on November
2, 2016, thus rendering the ALJ's decision the final
determination of the Commissioner. (R. at 1-4.)
Greenhaus was born in 1962 and was fifty-one years old on his
alleged disability onset date. (R. at 231.) Mr. Greenhaus is
currently married and has two adult children. (R. at 301.) He
received a high school degree and prior to March 2014, worked
as a bus driver for the Metropolitan Transportation Authority
("MTA") for approximately thirty years. (R. at
58-61.) On March 27, 2014, Mr. Greenhaus was admitted to
Stony Brook University Hospital for injuries sustained during
a motorcycle accident in which he lost consciousness
following a seizure. (R. at 315.) After this incident, Mr.
Greenhaus ceased his work as a bus operator. (R. at 59.) Mr.
Greenhaus' claimed disabilities include a back
impairment, memory loss, and a seizure disorder.
Diane Maqliulo, M.D.
February 20, 2012, more than two years before the alleged
disability onset date, Mr. Greenhaus was examined by his
primary care physician Dr. Diane Magliulo for complaints of
dizziness, slurred speech, disorientation, and short-term
memory loss. (R. at 410.) Mr. Greenhaus reported having
experienced four seizures during the past three months. (R.
at 295.) A computerized tomography ("CT") scan
conducted that day did not reveal any abnormalities. (R. at
10, 2014, Dr. Magliulo completed a workers' compensation
form representing that Mr. Greenhaus had been unable to work
as of March 28, 2014, and that he would be able to perform
his usual work by June 5, 2015. (R. at 400.) That same day,
Mr. Greenhaus informed Dr. Magliulo that he was experiencing
seizures after switching his medication from Keppra to
oxcarbazepine without proper compliance. (R. at 402.) He also
reported experiencing back pain. (R. at 397, 402.)
1, 2014, Mr. Greenhaus reported to Dr. Magliulo that
following an eye appointment, he experienced four seizures.
(R. at 396.) He stated that he currently felt fine with the
exception of a little lightheadedness. (R. at 396.) Two weeks
later, on July 15, 2014, Mr. Greenhaus complained to Dr.
Magliulo that the night before he had experienced a seizure
during his sleep. (R. at 395.) That same day, Dr. Magliulo
completed a workers' compensation form indicating that
Mr. Greenhaus was disabled due to a seizure disorder, but
that he would be able to return to his employment on June 14,
2015. (R. at 394.) Mr. Greenhaus reported another seizure to
Dr. Magliulo in August 2014. (R. at 392.) On August 19, 2014,
Dr. Magliulo completed a workers' compensation form
indicating that Mr. Greenhaus was disabled due to a seizure
disorder and that he would be able to perform his usual work
by August 28, 2014. (R. at 394.)
September 8, 2014, Mr. Greenhaus reported an episode of
intense dizziness, accompanied by slurred speech and sore
muscles, and three days later, he reported another seizure.
(R. 653, 657.) In response, Dr. Magliulo conducted a
sixteen-channel electroencephalography ("EEG"),
which showed normal results. (R. at 656.) In a letter dated
September 10, 2014 to an unidentified recipient, stating that
Mr. Greenhaus was seen on August 19, 2014, after he was
admitted to the emergency room for a "breakthrough
seizure" and that his neurologist was being notified and
his medication was being changed. (R. at 598.) On September
19, 2014, Mr. Greenhaus reported that he had not experienced
a seizure for a week. (R. at 660.) Dr. Magliulo filled out an
additional workers' compensation form on September 19,
2014 indicating that Mr. Greenhaus would be able to return to
his usual occupation on October 1, 2014. (R. at 659.) Dr.
Magliulo filled out a final workers' compensation form on
October 22, 2014, indicating that Mr. Greenhaus would be able
to return to his usual occupation on December 31, 2014. (R.
Itshak Haimovic, M.D.
Magliulo's request, on February 29, 2012, Dr. Itshak
Haimovic performed a neurological consultation for Mr.
Greenhaus. (R. at 369-70.) Dr. Haimovic noted that Mr.
Greenhaus was complaining of "increasing cognitive
disturbances, " which included feeling "lost and
disoriented in familiar environments . . ., [having]
difficulties recalling recent events or future plans . . .,
[and having] increasing difficulties performing his job
driving a bus." (R. at 369.) A CT scan of the brain
revealed no abnormalities. (R. at 369.) Mr. Greenhaus scored
a 29/30 on the Mini Mental Status Exam and could recall three
sentences out of an eight-sentence story. (R. at 369.) He had
normal gait, motor strength, reflexes, and coordination. (R.
at 369-70.) A magnetic resonance imaging ("MRI")
and an EEG of the brain, both conducted on March 9, 2012,
also showed normal results, although neuropsychological
screening indicated decline in all areas. (R. at 297, 372.)
Dr. Haimovic advised him not to drive a bus without further
evaluation. (R. at 374.)
Mr. Greenhaus reported "persistent episodes of seizures,
" Dr. Haimovic conducted a follow up consultation on
June 30, 2014. (R. at 413.) Mr. Greenhaus stated that he
experienced approximately nine seizures that month, and that
following these seizures, he was unresponsive, his speech was
slurred, and he became extremely lethargic. (R. at 413.) A
neurological exam did not reveal any abnormalities. (R. at
413.) Dr. Haimovic diagnosed him with a complex seizure
disorder. (R. at 414.)
experiencing at least five generalized seizure episodes and a
hospital visit in connection with those episodes, Mr.
Greenhaus followed up with Dr. Haimovic on August 28, 2014.
(R. at 420.) The examination indicated that Mr. Greenhaus had
intact integrative functions, full muscle strength, and
normal reflexes and coordination. (R. at 408-22.) An EEG
performed that day also showed normal results. (R. at 412.)
Dr. Haimovic reported that Mr. Greenhaus had poor seizure
control and recommended that he increase his dosage of
Trileptal, continue taking Keppra, and start taking Vimpat.
(R. at 422.)
October 24, 2014, Dr. Haimovic reexamined him and did not
change his diagnosis. (R. at 434-39.) After that
consultation, Dr. Haimovic increased his prescribed dosage of
Vimpat and Trileptal and prescribed Lamictal. (R. at 435,
438). An EEG in October 2014 and a forty-eight hour
ambulatory EEG recording in December 2014 also showed normal
results. (R. at 430, 445-46.) During an evaluation on
November 20, 2014, Mr. Greenhaus reported experiencing two
seizure episodes. (R. at 440.) The neurological exam did not
reveal anything abnormal. (R. at 440-41.) Dr. Haimovic
reported that the possibility of a partial complex seizure
disorder remained and recommended that Mr. Greenhaus continue
to take his prescribed medications. (R. at 441.)
Edward Barnoski, M.D.
April 27 and May 15, 2012, Mr. Greenhaus was evaluated by Dr.
Edward Barnoski, a clinical psychologist and
neuropsychologist, who was referred by Dr. Haimovic. (R. at
300-11.) The evaluation identified deficits in his working
memory and processing speed. (R. at 309-10.) Mr. Greenhaus
reported that earlier that year, he took time off from work
to address issues of back pain, but stated that the pain was
manageable. (R. at 302.) His wife, Rosemary Greenhaus,
reported that he was experiencing "events" for
approximately once a month, which lasted approximately thirty
minutes and that afterwards he appeared imbalanced and
lethargic. (R. at 302.) Mr. Greenhaus reported struggling
with memory problems for a long time and that he used his
phone to compensate for his memory difficulties. (R. at 302.)
Greenhaus' performance on Verbal Comprehension and
Perceptual Reasoning tests were in the average range and his
scores on Working Memory, Processing Speed, and Full Scale
tests were in the low average range. (R. at 303-05.) Mr.
Greenhaus' ability to sustain attention, concentrate, and
exert mental control was in the low average range. (R. at
304.) His performance on the Auditory, Visual, Visual
Working, Immediate, and Delayed Memory indexes were all in
the average range. (R. at 305-06.) Based upon his level of
education, his reading, spelling, and math were all below
expectations. (R. at 307.) His fine motor control was
extremely slowed bilaterally. (R. at 306.) Dr. Bamowski
concluded, "[D]espite his reports of memory dysfunction
... Mr. Greenhaus' index scores fell in the average range
in comparison to his same-age peers." (R. at 309.)
Stony Brook University Hospital Admission
March 27, 2014, Mr. Greenhaus was admitted to Stony Brook
University Hospital following a motorcycle accident in which
he lost consciousness. (R. at 315-317, 348.) His admitting
diagnoses were for multiple closed rib fractures, pulmonary
contusion, abrasions to left hand and left knee, and loss of
consciousness. (R. at 316.) An EEG indicated a few left
temporal sharp transient waves that raised concerns of
irritability and possible seizure focus. (R. at 316.) During
his admission, Mr. Greenhaus reported three seizure like
events, one of which was witnessed by a nurse. (R. at 316.)
He reported that he had experienced similar episodes starting
three years prior and the episodes occurred intermittently.
(R. at 316.) He was discharged on April 4, 2014, with the
following diagnoses: left rib fractures, two through eight,
left pulmonary contusion, left pneumothorax, left pulmonary
contusions, and seizure remote and possibly recent. (R. at
317.) Upon discharge, he was also prescribed Robaxin,
Oxycodone, Protonix, Flomax, and Keppra. (R. at 315.) He
informed his treating team that as far as he could recall,
this was his first seizure. (R. at 61-62.) He was advised
that under New York law, he should not drive until he was
seizure-free for over a year. (R. at 317.)
Louis Manganas, M.D.
7, 2014, Mr. Greenhaus was examined by a neurologist, Dr.
Louis Manganas, for evaluation and management of his seizure
disorder. (R. 348.) The neurological examinations results
were normal, but Dr. Manganas advised Mr. Greenhaus to
continue taking Keppra twice a day, not drive until he
achieved a one-year seizure free period, and not operate
heavy equipment or machinery. (R. at 351-357.) He noted that
he would follow up with Mr. Greenhaus' neurologist, Dr.
Haimovic, and that they might "repeat neuropsycholigical
testing do [sic] to poor memory." (R. at 357.) EEGs
performed on May 30 and June 5, 2014 showed normal results,
as did a CT scan of the brain conducted on June 5, 2014. (R.
at 360, 367, 373.) A forty-eight hour ambulatory EEG
recording made from June 9 through June 11, 2014, also showed
normal results. (R. at 363-66.)
Southside Hospital Admissions
2014, Mr. Greenhaus was examined at Southside Hospital for
pain on his left backside after he fell out of a chair. (R.
at 387-391.) His physical examination showed paraspinal
tenderness in his mid-back and upper back. (R. at 389.) Upon
discharge, he was diagnosed with thoracic back pain and
prescribed ibuprofen and Percocet. (R. at 389-390.)
27, 2014, following two seizure episodes, Mr. Greenhaus
presented at Southside Hospital. (R. at 558-64.) At that
time, a physician or midlevel provider did not evaluate him,
but he followed up with Dr. Haimovic three days later. (R. at
361-62.) On August 9, 2014, Mr. Greenhaus was examined at
Southside Hospital after he experienced two seizures. (R. at