United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
KING, MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's complaint
seeking judicial review, pursuant to 42 U.S.C. § 405(g),
of the final decision of the Commissioner denying her claim
for Social Security disability benefits. Plaintiff's
motion for judgment on the pleadings (i.e., the
administrative record) and Defendant's fact and law
summary in opposition are at Dockets 14 and 20. The parties
have consented to the jurisdiction of the undersigned
Magistrate Judge to determine this case, with any appeal
lying before the Sixth Circuit Court of Appeals. Docket 16.
the administrative law judge's (ALJ's) finding that
Plaintiff has the residual functional capacity (RFC) to
stand/walk for 6 hours per 8-hour workday is unsupported by
substantial evidence, this matter will be REMANDED to the
Commissioner for a new decision and further administrative
2001, an electroencephalogram (EEG) of the electrical
activity in Plaintiff's brain revealed mild slowing and
disorganization consistent with diffuse cerebral dysfunction
and suggestive of central regulating mechanism disorder.
Administrative Record (AR), p. 45. In 2014, Plaintiff
continued to complain of dizzy spells, which were found to be
a manifestation of seizure activity, on a daily basis. AR, p.
2001, an electrocardiogram (EKG) revealed that Plaintiff also
suffers from Wolff-Parkinson- White (WPW) syndrome. AR, p.
46. WPW syndrome is a heart condition in which there is an
extra electrical pathway in the heart between the atria and
the ventricles. Stottler v. Commissioner, 2010 WL 3833679 n.8
(M.D.Fla.). The condition can lead to episodes of tachycardia
(rapid heart rate), syncope (loss of consciousness, often due
to low blood pressure), and near-syncope (altered
consciousness). Id.; 20 C.F.R., Appendix 1, §
4.00F(3)(b) (defining syncope and near-syncope). WPW syndrome
can be treated by medications, electrical cardioversion
(shock), and catheter ablation. Id. Although
Plaintiff underwent ablation treatment, pseudo-seizure
activity continued. AR, p. 46.
addition to dizziness, Plaintiff's seizures manifest in
the form of ataxia. AR, p. 416. Ataxia is a failure of
muscular coordination. Ali v. Commissioner, 2016 WL 1090442
n.11 (E.D.Mich.). It often occurs when parts of the nervous
system that control movement are damaged. Id. People
with ataxia may experience a failure of muscle control in
their arms and legs, resulting in a lack of balance and
coordination or a disturbance of gait. Id.
Plaintiff's ataxia results in gait disturbance and
affects her ability to stand/walk. AR, p. 416.
disability claim prior to the ALJ's decision
2002, Plaintiff applied for Supplemental Security Income
January 2005, Plaintiff's treating physician, Lawrence
Koss, opined, based in part on an EEG from 2001, that
Plaintiff's unpredictable episodes of dizziness and
seizure-like activity render her unsuitable to any workplace,
require her to lie supine to resolve episodes, and limit her
to 2 hours of standing/walking per 8-hour workday. Prior
ALJ's decision at AR, p. 46.
February 2005, the prior ALJ issued a fully-favorable
decision, finding that Dr. Koss's opinion is entitled to
controlling weight and that Plaintiff is restricted to
sedentary work, with no more than 2 hours of standing/walking
per 8-hour workday. Prior ALJ's Decision at AR, pp.
received disability payments and did not work until 2011,
when she began working as a customer service representative
at a call center troubleshooting with customers over the
phone. AR, pp. 28-29. Plaintiff earned $4, 224 in 2011, $18,
094 in 2012, and $5, 503 in 2013. AR, p. 173. She was
terminated from her job on May 30, 2013 due to frequent sick
days and dizzy spells requiring her to lie down. AR, p. 30.
2013, Plaintiff filed the present claim for SSI benefits,
alleging disability beginning on May 31, 2013. AR, p. 12.
state-agency level, the Commissioner denied Plaintiff's
disability claim. The state-agency non-examining program
physician, Donna Sadler, found that there was no new and
material evidence changing the prior ALJ's finding that
Plaintiff is limited to sedentary work, with no more than 2
hours of standing/walking per 8-hour workday. AR, p. 76. The
state agency found that Plaintiff was able to perform her
past relevant work as a customer service representative,
which was sedentary.
disability claim at the ALJ level
requested review by an ALJ.
December 2014, Plaintiff's new treating physician (after
moving to Kentucky) was Anthony Flannery. Dr. Flannery
diagnosed ataxia, seizure disorder, WPW syndrome, and
vasovagal syncope. AR, p. 416. He opined limitations similar
to those previously given by Drs. Koss and Sadler. He found
that, beginning on May 31, 2013, Plaintiff “cannot
safely work [and] must see a neurologist before [being]
cleared for work.” AR, pp. 416 and 418. He limited
Plaintiff to 4 hours of sitting “on the floor”
and no significant standing/walking during an 8-hour workday
because her “problem is ataxia and [she] falls at
walking and steps when dizzy.” Id. He advised
Plaintiff to use a four-legged walker. AR, p. 462.
2015, the ALJ issued the decision presently before the Court,
denying Plaintiff's disability claim. ALJ's decision
at AR, pp. 12-19. The ALJ found that Plaintiff has a residual
functional capacity (RFC) to perform light work except she
can only occasionally perform postural activities, cannot use
ladders, ropes or scaffolds, and must avoid all exposure to
hazards. AR, pp. 15-16. By definition, light work
contemplates an ability to stand or walk, off and on, for a
total of approximately 6 ...