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Wills v. Berryhill

United States District Court, W.D. Kentucky, Bowling Green Division

May 8, 2017

JOELYN ANN WILLS PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          LANNY KING, MAGISTRATE JUDGE.

         This 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.

         Because 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 proceedings.

         Plaintiff's medical impairments

         In 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. 368.

         In 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.

         In 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.

         Plaintiff's disability claim prior to the ALJ's decision

         In 2002, Plaintiff applied for Supplemental Security Income (SSI) benefits.

         In January 2005, Plaintiff's treating physician, Lawrence Koss, opined, based in part on an EEG from 2001[1], 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.

         In 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. 45-49.

         Plaintiff 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.

         In July 2013, Plaintiff filed the present claim for SSI benefits, alleging disability beginning on May 31, 2013. AR, p. 12.

         At the 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.

         Plaintiff's disability claim at the ALJ level

         Plaintiff requested review by an ALJ.

         In 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.

         In June 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 ...


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