Boiles v. Barnhart

• Decision Date: 20 January 2005
• Docket Number: No. 04-2227.,04-2227.
• Citation: 395 F.3d 421
• Parties: Loretta BOILES, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 421

395 F.3d 421

Loretta BOILES, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

No. 04-2227.

United States Court of Appeals, Seventh Circuit.

Argued November 17, 2004.

Decided January 20, 2005.

Joseph W. Shull (argued), Fort Wayne, IN, for Plaintiff-Appellant.

Ayrie Moore (argued), Social Security Administration, Office of the General Counsel Region V, Chicago, IL, for Defendant-Appellee.

Before COFFEY, MANION, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Loretta Boiles applied for Supplemental Security Income (SSI) in March 2000, claiming that she was disabled because she suffered from several maladies, including pseudoseizures. Her claim was denied initially, upon reconsideration, and after a hearing before an administrative law judge. The ALJ found that although Boiles had a severe impairment, it did not equal a listed impairment, and that she was capable of working with certain restrictions. Because the ALJ did not adequately support his decision that Boiles's condition was not equal in severity to a listed impairment, we vacate the decision and remand for further factfinding.

At the time of her hearing, Boiles was 34 years old. She has a ninth-grade education and has been employed as a fast food worker/assistant manager, a house cleaner, and a babysitter. None of these jobs lasted more than a few months, and in 1998 she stopped working because she "couldn't keep [a] job because of my mental illness." Two years later, after her disability claim had been denied initially, she worked briefly as a meat packer but left the job because she was "having blackouts and nerve problems."

Boiles's medical history reveals treatment for a number of physical and psychological problems. In the past decade, she has been treated for conditions including pseudoseizures, severe depression, anxiety, post-traumatic stress disorder, heartburn, high blood pressure, back pain, thyroid disease, and migraines. In addition, Boiles was treated for alcoholism in 1990 and for prescription drug abuse as late as 1999. The psychological effects of being sexually abused as a child have been cited frequently as a cause or an exacerbating factor of many of Boiles's health problems. Because Boiles appeals solely on the ground that her pseudoseizures are medically equivalent to a listed impairment, only her history of treatment for that condition is discussed in detail.

Pseudoseizures, also known as psychogenic seizures, nonepileptic seizures, and paraoxysmal nonepileptic episodes (PNES), resemble epileptic seizures but are not attributable to epilepsy or abnormal electric activity in the brain. Ronald P. Lesser, Treatment and Outcome of Psychogenic Nonepileptic Seizures, Epilepsy Currents, Nov. 2003, at 198. No single cause of psychogenic seizures has been identified, but they are typically attributed to an underlying psychological disturbance. Id. Those who have been victims of physical or sexual abuse seem to be at greater risk for developing pseudoseizures. Id. Some symptoms of a pseudoseizure disorder can be treated with medication, but psychological therapy, not medication, appears to be the preferred course of treatment. Id.

According to her testimony and reports to her neurologist, Boiles experienced her first seizure sometime in early 2000, when she arrived at work to find the right side of her car damaged and could not recall how it happened. Not long after, she had a seizure at work and an ambulance had to be called. Boiles also described a seizure that occurred while she was riding in her sister's car; her sister rushed her to the hospital after her eyes rolled back, "foam" came out of her mouth, and she began to bang her head against the car window. After this incident, Boiles was put on Dilantin an anti-epileptic drug. Then in June 2001, Boiles had another seizure that prompted her boyfriend to call an ambulance. In addition to these daytime incidents, Boiles reported frequent seizures at night.

In the summer of 2001, Boiles sought treatment for her seizures and was referred to a neurologist, Dr. Matthew Wallack. She reported experiencing seizures at night that sometimes woke her up or caused bowel or bladder incontinence. After his initial consultation with Boiles, Dr. Wallack opined that pseudoseizures were a "significant possibility." He prescribed Depakote ER "as a seizure medication." In October 2001 Dr. Wallack saw Boiles again and noted that she reported only four daytime incidents in the prior two months, but that she continued to experience nighttime pseudoseizures, after which she woke up sore and tired. Dr. Wallack prescribed Topamax and noted that if the medication did not alleviate the seizures, he wanted to admit her to an epilepsy monitoring unit. After an appointment in November 2001, Dr. Wallack reported that Boiles had not experienced any daytime seizures since her last appointment, but that she was still having pseudoseizures at night. Dr. Wallack increased the dosage of Topamax but noted that he was "not convinced that these are seizures." Boiles had another appointment with Dr. Wallack the following month, after which he reported that her seizures had become less frequent (about two seizures per week), and typically occurred while she was asleep. In January 2002 Boiles was admitted to the hospital for observation for five days, during which time she had one pseudoseizure. Shortly afterward, Dr. Wallack concluded that she need not be treated with anti-epileptic drugs for her pseudoseizures.

Boiles applied for SSI in March 2000. She claimed that she was disabled due to unspecified "mental disorders," arthritis, depression, "nerve problems," memory loss, asthma, and bronchitis. Her claim was denied, and later that year she sought reconsideration, reporting that her condition had grown worse because she had started having "blackouts/seizures." In February 2001 her claim was denied upon reconsideration, and Boiles requested a hearing before an ALJ.

In February 2002 Boiles had a hearing before an ALJ at which she testified about her condition. Boiles described being disoriented and sore after seizures, and testified that she had been hospitalized "a few times." Her boyfriend also testified, describing the seizure that led him to call an ambulance. He also corroborated Boiles's testimony that she sometimes experienced bladder and bowel incontinence in bed during seizures.

In response to a request from the ALJ, Dr. Wallack provided a written evaluation of her condition and answered interrogatories regarding the frequency of Boiles's pseudoseizures and her prognosis. He stated that Boiles "suffers from pseudoseizures and chronic pain which are secondary to a history of abuse." He noted that although the cause of pseudoseizures cannot be identified, they result in genuine suffering and are often accompanied by "other debilitating symptoms." Dr. Wallack estimated that the seizures occurred twice per week, and characterized her prognosis as "terrible." He stated that Boiles's condition was "untreatable," that it was his "firm belief" that Boiles could not work, and that he "strongly" supported the disability application. He added that the reason for her disability was not the seizures in particular but rather the "underlying cause of the seizures," namely her sexual abuse as a child, which had "devastated her life."

Two non-treating physicians consulted by the ALJ testified at the hearing. Dr. Stump, an internist, distinguished pseudoseizures from epilepsy. An epileptic seizure can be diagnosed by an EEG, he explained, but a pseudoseizure is "another form of seizure altogether," and thus a negative EEG does not mean that no seizure took place. He added that patients who experience pseudoseizures cannot be treated with anti-seizure medication and therefore benefit little from going to the hospital during an episode. Dr. Stump also testified that it would be unfair to "penalize" someone suffering from pseudoseizures by not finding her disabled, because like epileptics, "it's very difficult for these people to get jobs." Dr. Stump emphasized that while pseudoseizures are not caused by epilepsy, they are "real."

The consulting psychologist, Dr. Pitcher, agreed with Dr. Stump, noting that the cause of Boiles's pseudoseizures was unknown, but "there is nothing at all to suggest that she is malingering or faking any seizure." In response to a question from the ALJ, Dr. Pitcher testified that alcohol or drug use did not appear to be a material factor in Boiles's "current position," although "there may have been a period of time when it was." Dr. Pitcher also stated that based on Boiles's testimony and the toxicology reports in the record, there did not appear to be any current substance abuse. Both Dr. Pitcher and Dr. Stump testified that pseudoseizures could occur in the absence of drugs or alcohol.

The ALJ then asked a vocational expert (VE) to determine whether there were jobs in the national economy that Boiles could perform. The ALJ asked the VE to consider an individual with Boiles's past work experience who required seizure precautions and limited contact with other people, and the VE determined that there were jobs, such as assembly work, that such a person...