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Greenhaus v. Berryhill

United States District Court, S.D. New York

March 30, 2018

JERRY GREENHAUS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.[1]

         Background

         A. Procedural History

         Mr. Greenhaus applied for DIB on June 23, 2014, alleging disability as of March 27, 2014. (R. at 213-214.)[2] 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.)

         B. Personal History

         Mr. 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.

         C. Medical History

         1. Diane Maqliulo, M.D.

         On 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 295-96.)

         On June 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.)

         On July 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.)

         On 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. at 662.)

         2. Itshak Haimovic, M.D.

         By Dr. 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.)

         After 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.)

         After 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.)

         On 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.)

         3. Edward Barnoski, M.D.

         On 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.)

         Mr. 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.)

         4. Stony Brook University Hospital Admission

         On 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.[3] (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.)

         5. Louis Manganas, M.D.

         On May 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.)

         6. Southside Hospital Admissions

         In May 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.)

         On June 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 ...


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