Carr v. Apfel, 7:00CV084-AH.

• Decision Date: 12 January 2001
• Docket Number: No. 7:00CV084-AH.,7:00CV084-AH.
• Citation: 133 F.Supp.2d 476
• Parties: Bobby C. CARR, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Texas

133 F.Supp.2d 476

Bobby C. CARR, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.

No. 7:00CV084-AH.

United States District Court, N.D. Texas, Wichita Falls Division.

January 12, 2001.

COPYRIGHT MATERIAL OMITTED

Tom I. Schrandt, True & Schrandt, Wichita Falls, TX, for plaintiff.

Angie Lee Henson, U.S. Attorney's Office, Fort Worth, TX, for defendant.

MEMORANDUM OPINION AND ORDER

SANDERS, United States Magistrate Judge.

Pursuant to the written consents of the parties to proceed before a United States Magistrate Judge and the District Court's Transfer Order filed on in accordance with the provisions of 28 U.S.C. § 636(c), came on to be considered Plaintiff's complaint brought under 42 U.S.C. § 405(g) seeking judicial review of the Defendant's denial of Plaintiff's application for disability benefits under Titles II and XVI of the Social Security Act as amended.

Procedural History: Bobby C. Carr ("Carr") filed an application for Title II disability benefits and XVI supplemental security income benefits on March 18, 1993. (Administrative Record ("Tr.") 45). Carr was born on October 27, 1967, has a high school education, one year of college, and no past relevant work. (Tr. 83, 23).

His original application was denied on July 17, 1995 (Tr. 36-39). Carr did not appeal that decision. He filed his second application on July 14, 1997, with a protective filing date of June 19, 1997 (Tr. 297-300). Carr's application was denied initially and upon reconsideration (Tr. 279-290). He requested an administrative hearing, which was held on October 27, 1998, before Administrative Law Judge ("ALJ") Rae M. Chamberlain (Tr. 550-84). Testimony was given by the Plaintiff, John McKnight, a relative of the Plaintiff, and Clifton King, Jr., a vocational expert. The ALJ issued her decision denying Carr's claim on February 3, 1999 (Tr. 18-26). The ALJ found that Plaintiff had a severe seizure disorder which did not meet or equal any listing in Appendix 1, Subpart P, of the regulations (Tr. 21). Despite Carr's alleged impairment, the ALJ found that he retained the ability to perform work at all exertional levels, limited by an inability to work from significant unprotected heights, around potentially dangerous, unguarded moving machinery, in more than a low stress environment, or in a job that requires commercial driving (Tr. 25). Based on this residual functional capacity, the ALJ found that Plaintiff retained the ability to perform other work in the national economy (Id.). Thus, the Plaintiff was found to not be disabled within the meaning of the Social Security Act (Id.).

Carr requested a review of the ALJ's hearing decision by the Appeals Council (Tr. 14). On March 13, 2000, the Appeals Council denied review and thus the ALJ's decision is the final administrative decision (Tr. 11-12).

Standard of Review — Social Security: In a Social Security case, the scope of judicial review is limited to a determination of whether the ALJ's decision to deny benefits is (1) supported by substantial evidence and (2) whether the proper legal standard was applied. Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir.1997) (citing Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.1995)).

Substantial evidence means more than a scintilla, but less than a preponderance. Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir.1989). It is defined as relevant evidence that a reasonable mind would accept as sufficient to support a conclusion. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)), cert. denied, 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995).

In determining whether substantial evidence exists, the court does not reweigh the evidence, retry the issues, or substitute its own judgment. Id. (citing Haywood, 888 F.2d at 1466); Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir.1994). Rather, this court reviews the ALJ's legal conclusions de novo and ensures that the correct legal standard was utilized by the administrative court.

The Commissioner's decision is granted great deference. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir.1995). Accordingly, the absence of substantial evidence will be found only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence." Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983). Findings of fact which are supported by substantial evidence are conclusive. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir.1995).

Discussion: To prevail on a claim for disability benefits, a claimant must establish a physical or mental impairment lasting at least twelve months that prevents him from engaging in any substantial gainful activity. Cook v. Heckler, 750 F.2d 391, 393 (5th Cir.1985) (citing 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A)). To determine whether substantial gainful activity is possible, the Commissioner uses a five-step sequential inquiry. Martinez, 64 F.3d at 173-74. The five steps are:

(1) whether the claimant is presently working;

(2) whether the claimant's ability to work is significantly limited by a physical or mental impairment;

(3) whether the claimant's impairment meets or equals an impairment listed in Appendix 1 to the regulations;

(4) whether the impairment prevents the claimant from doing past relevant work; and

(5) whether the claimant cannot presently perform relevant work that exists in significant numbers in the national economy.

Issue is joined by Carr on step three of the sequential inquiry, i.e., whether his impairment meets or equals an impairment listed in Appendix 1 of the regulations. When a claimant makes such a showing, it is conclusive and terminates the Commissioner's analysis. See e.g., Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.1988); Flanery v. Chater, 112 F.3d 346, 349 (8th Cir.1997).

The ALJ found that Carr had a severe impairment, i.e., a seizure disorder (Tr. 24, Finding No. 5).¹ A person who suffers from epilepsy, manifested by grand mal seizures, is not per se disabled within the scope of the Social Security Act. In order to constitute a disabling impairment consonant with Appendix 1, the criteria under Section 11.02 of Appendix 1 must be satisfied. In essence a claimant must experience such seizures more than once a month in spite of taking prescribed medications for at least three months. Evaluation of these criteria is further described in Social Security Ruling 87-6, requiring that the following elements be established to show disabling epilepsy: (1) an ongoing relationship with a treating source; (2) a satisfactory description by the treating physician and the treatment regime and response; and (3) anti-convulsive blood levels establishing the claimant's compliance. While the ALJ found that the first two elements were met, she found that the evidence showed the Plaintiff was non-compliant.

With regards to determining if a claimant is compliant with his medical treatment, section 11.00 of 20 C.F.R. Part 404, Subpt. P, App. 1 provides in pertinent part:

Under 11.02 and 11.03, the criteria can be applied only if the impairment persists despite the fact that the individual is following prescribed anticonvulsive treatment. Adherence to prescribed anticonvulsive therapy can ordinarily be determined from objective clinical findings in the report of the physician currently providing treatment for epilepsy. Determination of blood levels of phenytoin sodium or other anticonvulsive drugs may serve to indicate whether the prescribed medication is being taken. When seizures are occurring at the frequency stated in 11.02 or 11.03, evaluation of the severity of impairment must include consideration of the serum drug levels. Should serum drug levels appear therapeutically inadequate, consideration should be given as to whether this is caused by individual idiosyncracy in absorption of metabolism of the drug. Blood drug levels should be evaluated in conjunction with all the other evidence to determine the extent of compliance. When the reported drug levels are low, therefore, the information obtained from the treating source should include the physician's statement as to why the levels are low and the results of any relevant diagnostic studies concerning the blood levels.

In light of the fact that Carr's prior disability claim was denied and terminated without further review, the ALJ determined that the relevant time frame in considering the application, now before the court, commenced on July 18, 1995 (Tr. 19).

The records contained in the administrative file beginning in calendar year 1995 document five trips to the emergency room at Wichita General Hospital between the dates of April 4, 1995, and May 15, 1997, as a result of seizures. The record also contains two emergency calls to Plaintiff's residence on April 4, 1998, and May 21, 1998, respectively, as a result of seizures, but in neither instance was he transported to a hospital (Tr. 522 and 531). The medical records from his treating physician, Dr. Winnie Teh, reflect that he reported seizures to her which occurred about once or twice a week in February 1996 (Tr. 528); another seizure on or about July 27, 1997 (Tr. 511); seizures once a week in August 1997 (Tr. 509); and only one seizure as of November 10, 1997, after his medication was increased (Tr. 502). The last report of Dr. Teh, appearing in the record, reflects that Carr reported seizures on January 23, February 8, and March 18, 1998 (Tr. 500).

Carr submitted a report to the Social Security Administration on August 5, 1997, identifying seizures which occurred on May 15, May 18, late June, July 15 and July 20, 1997 (Tr. 337). At the administrative hearing he submitted a calendar for 1998 recording 15 seizures between January 23 and October 12, 1998 (Tr. 350-360).

As noted above one criterion required to establish that epilepsy is disabling is that seizures must occur more frequently than once a month. See § 11.02, supra. Plai...