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Lamar v. Berryhill

United States District Court, D. Connecticut

August 1, 2018

NANCY A. BERRYHILL, Commissioner of Social Security, Defendant


          MICHAEL P. SHEA, U.S.D.J.

         Michele Lamar filed this appeal of the Commissioner of Social Security's decision to deny her application for Title II Disability Insurance Benefits. Under 42 U.S.C. § 405(g), she asks this Court to reverse the decision of the Commissioner because it was not supported by substantial evidence or, alternately, to remand to the Commission for a rehearing. (ECF No. 17.) Because I find that the Administrative Law Judge (“ALJ”) did not adequately explain why Lamar had no listed impairments, I GRANT in part Lamar's motion to reverse or remand, DENY the Commissioner's motion to affirm, and remand to the Commissioner.

         I. Background

         A. Factual Background

         1.Stipulated facts

         a. Medical Chronology

         I incorporate by reference the parties' stipulated Medical Chronology. (ECF No. 17-2.)[1] I recite here only those portions of the chronology that are particularly relevant to my decision:

         On November 14, 2012, Lamar complained of “spells since 2011.” (ECF No. 17-2 at 3; R. at 957.) She reported that she would get a sensation of drowsiness and then pass out. (Id.) She had five or six of these events per month, of varying intensity. (Id.)

         On February 19, 2013, Lamar had an ambulatory EEG, which was abnormal due to the presence of temporal intermittent rhythmic delta activity (“TIRDA”) and temporal intermittent rhythmic theta activity (“TIRTA”), which, although not specific for complex partial seizures, is a common finding in patients with complex partial seizures. (ECF No. 17-2 at 3; R. at 627.) No other focal lateralized or epileptiform features were seen. (Id.)

         On April 28, 2013, Lamar was brought to the emergency room for hypertension and had a neurology consult due to a series of seizures. (ECF No. 17-2 at 3.) According to witnesses, Lamar had between one to four seizures leading up to the episode, which were characterized by falling to the floor, eyes rolling to the back of her head, and shaking of the right arm, without full loss of consciousness. (Id.; R. at 449, repeated at R. 616, 712, 906, 927.) The final seizure resulting in Lamar's fall was unwitnessed. (Id.)

         On April 28, 2013, Lamar visited the emergency room because of seizures. (ECF No. 17-2 at 4.) She had sustained a witnessed seizure and struck the back of her head. (Id.)

         On September 9, 2013, Lamar was evaluated by Dr. Pue Farooque. (ECF No. 17-2 at 4; R. at 687.) She described her seizures as “zoning out, ” feeling like things were becoming distant, becoming hot and sweaty with a racing heart, feeling lightheaded, and then losing consciousness. (Id.) Lamar noted that after the episode her whole body was shaking and she was confused. (Id.) She had no tongue biting but had associated urinary incontinence. (Id.) She reported that the frequency of seizures was initially once a month but had increased to 2 to 3 times per month. (Id.) Dr. Farooque noted at this time that these episodes could have been epileptic seizures, but they could also have been of cardiac origin. (Id.)

         On November 12, 2015, Lamar was admitted to Yale Hospital to be discharged on November 20, 2015. (ECF No. 17-2 at 8; R. at 1175.) She presented for spell characterization. Lamar had stayed in-patient for a week in January 2014, and reported that since that stay she had developed a second type of seizure with multiple events earlier that year. (Id.) She described the first type of spell as feeling that people were far away, even though they were standing right next to her. (Id.) She said that she would lose consciousness within seconds and begin to shake all over. (Id.) She also had loss of urinary control, and, afterward, she would be exhausted and confused. (Id.) The second type of spell started with right hand shaking and continued to loss of consciousness and full body shaking. (Id.) She reported that she had lost urinary control and bitten her tongue in the past. (Id.) Lamar said she would be exhausted and confused afterward. (Id.) Lamar reported that both types would last 2 to 3 minutes and happen every couple of weeks. (Id.)

         b. Non-medical evidence[2]

         Lamar testified at her hearing before the ALJ on November 5, 2015. (ECF No. 17-1 at 12.) Lamar was 49 years old on her alleged onset date and 54 years old as of the date of the hearing and ALJ's decision. (ECF No. 20 at 8.) Lamar testified at the hearing that she lived with her son, who worked, that she finished high school, and that she used to work as an assistant teacher in a daycare center until her seizures became too frequent. (Id.) She stated that she felt weak due to her medications and could not lift more than five pounds or walk more than 50 feet. (Id.) She testified that she did not cook but could wash and get dressed by herself, that she remembered to take her medication, and that her neighbor did her laundry and grocery shopping and drove Lamar where she needed to go. (Id.) Lamar testified that she did not travel and that she read the Bible a lot to pass the time. (Id.) Her neighbor, Stacey Orr, testified that she drove Lamar to the hearing and had witnessed Lamar's seizures where Lamar would shake, her eyes would roll back in her head, and, at times, she would go to the bathroom on herself. (Id. at 8-9.) Orr testified that she believed Lamar had had over 100 seizures in the past year. (Id. at 9; R. at 85-86)

         Lamar testified that she stopped working in February 2011, when she had a seizure while waiting for the bus and injured both of her ankles. (ECF No. 17-1 at 12.) After that, her seizures became frequent. (Id.) Lamar explained that she took Keppre and Levetiracetam for seizures, but that the seizures had gotten worse recently. (Id.) Lamar said that she was unable to lift things that she used to and that her legs “buckle[d] from weakness.” (Id.) She testified that she could lift a maximum of five pounds, and that sometimes, she dropped things that she was holding. (Id.) Lamar said that she relied on her neighbors for rides. (Id.)

         Lamar also testified that she had headaches that became excruciating when she opened the blinds. (ECF No. 17-1 at 12.) She also said that she would go to the hospital for particularly bad seizures. (Id.) She testified that she would sometimes lose control of her bowels and bladder. (Id.) She would experience numbness of the left side of her body for the two to three minute duration of the seizures, but, even when they were over, she would feel “absolutely exhausted” and had to lie down for the rest of the day. (Id.) Lamar testified that in addition to larger seizures, she would have “mild seizures” two to three times a week. (Id.)

         Lamar testified that she was five feet and one inch tall and that she weighed almost 300 pounds. (ECF No. 17-2 at 12.)

         In an August 22, 2013 questionnaire, Lamar also indicated that she has 20 or more seizures in an average month, lasting two minutes or longer, with her last seizure occurring on August 20, 2013. (ECF No. 20 at 9.) Lamar reported that she typically loses consciousness for some time during the seizures, shakes, and sometimes cannot see afterwards. (Id.) She stated that the seizures occur during both the day and night and that, if they occur while she is asleep, she can go to the bathroom on herself. (Id.) In her function report completed the same day, Lamar reported that she could walk for five to ten minutes before needing to stop and rest, could pay attention for ten minutes, could follow written instructions and spoken instruction moderately well, was previously laid off for not getting along with others but could generally get along with authority figures, could handle stress and changes in routine, could prepare her own meals on a daily basis (except when she has seizures), cleans and does laundry weekly, cannot go out alone because of her seizures and does not drive, shops once a month, and cannot pay bills or handle a savings account (but that her finances were handled by her son). (Id.) Lamar reported that she was living in an apartment with her family and spent her day taking medications, eating, reading, watching television, spending time with others, going to church, and going to doctors' appointments. (Id.) She noted that her current condition prevented her from working and affected her sleep and that she had problems completing tasks and getting along with others. (Id.) She provided similar responses in a subsequent function report dated February 7, 2014. (Id.)

         2.Additional Medical Evidence Cited by the Commissioner

         In addition to adopting the above facts, the Commissioner pointed to the following additional medical evidence in the record. (ECF No. 20 at 2-9.)

         When Lamar visited the emergency room on October 21, 2010, she had no history of seizures, and her physical examination showed that she was fully oriented to person, place, and time. (ECF No. 20 at 2.)

         When Lamar went to the emergency room on February 16, 2011, her examination showed that her mental state was not compromised and that she had normal motor strength. (ECF No. 20 at 2.) Her discharge summary indicated that she previously had vertigo and syncope and had sustained an ankle sprain; she was instructed to see an orthopedist, use crutches as needed, and wear a splint on her ankle for 72 hours. (Id. at 2-3.)

         Lamar had an appointment at Norwalk Internal Medicine Services on July 14, 2011, where she complained of vertigo. (ECF No. 20 at 3.) She was assessed to have hypertension and obesity, and it was noted that she was not compliant with treatment, because she had missed five to six ...

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