Lurry v. Comm'r of Soc. Sec.

Judge Edmund A. Sargus, Jr.

REPORT AND RECOMMENDATION

KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

Plaintiff, Darin Dubrock Lurry, Jr., brings this action under 42 U.S.C. § 405(g) seeking review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for Supplemental Security Income (“SSI”). For the reasons set forth below, it is RECOMMENDED that the Court REVERSE the Commissioner of Social Security's nondisability finding and REMAND this case to the Commissioner and the ALJ under Sentence Four of § 405(g).

I. BACKGROUND

Plaintiff's legal guardian filed an application for SSI on Darin's behalf on September 8, 2017, alleging disability beginning on September 1, 2016. (Doc. 10, Tr. 188-93). Plaintiff attained age 18 in January 2018. (Tr. 17). After his application was denied initially and on reconsideration, the Administrative Law Judge (the “ALJ”) held the hearing on February 6, 2020. (Tr. 42-79). On March 20, 2020, the ALJ issued a decision denying Plaintiff's application for benefits. (Tr. 9-41). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6).

2

Plaintiff filed the instant case seeking a review of the Commissioner's decision on January 4, 2021 (Doc. 1), and the Commissioner filed the administrative record on June 14, 2021 (Doc. 10). Plaintiff filed his Statement of Errors, (Doc. 11), on July 28, 2021, Defendant filed an Opposition, (Doc. 12), on September 1, 2021, and Plaintiff filed a reply (Doc. 13), on September 16, 2021. This matter is now ripe for consideration.

A. Relevant Statement to the Agency and Hearing Testimony

Because Plaintiff's Statement of Errors pertains only to his epilepsy, the Undersigned limits her discussion to the same. The ALJ summarized Plaintiff's relevant hearing testimony:

The [Plaintiff] and his father alleged limiting effects due to symptoms of his physical and mental impairments. They testified to the following at the hearing, unless otherwise specified. He has problems with seizures. He takes medication for his seizure condition, and since switching to ONFI, he will have seizures about once a month. His father estimates he has a seizure about every month to month and a half. He too, reports the seizures have slowed somewhat with ONFI medication treatment. As of the date of the hearing, the [Plaintiff]'s most recent seizure was in October 2019. A typical seizure is a “full body shake” grand mal seizure, and they typically occur in clusters of 3-11 episodes. The [Plaintiff] has a nostril spray medication to treat the seizures when they occur, as needed. After a seizure, the [Plaintiff] will be “out of it” and drowsy, and he will sleep from four to six hours. He has had a dislocated shoulder from a seizure in the past. After a typical seizure, he will not know where he is, he will have poor memory, and he will feel very tired for about a day Sickness and poor sleep will often trigger seizures. He does not always go to the hospital after having a seizure and will sometimes lie in bed at home instead

(Tr. 19).

B. Relevant Medical Evidence

The ALJ summarized the relevant medical records concerning Plaintiff's physical symptoms prior to attaining age 18:

With respect to the alleged seizure symptoms, from the filing date in September 2017 through the [Plaintiff]'s 18th birthday in January 2018, the record clearly supports some ongoing seizure episodes, and EEG testing at this time also supported an underlying seizure condition. However, there is clear concern for medication non-compliance at this time Indeed, a neurologist noted that the breakthrough seizure clusters occurred either in the setting of illness or

3

noncompliance. Moreover, neurological examinations throughout this period were almost entirely normal.

As a matter of history, the [Plaintiff] was seen in the neurology clinic in March 2016 and again in January 2017 (Ex. 1F/4). He reported having a recurrence of seizures twice in December 2016, when he had two in 24 hours. He reported taking his medication, but admitted that he did not always take it on his regular schedule. He noted that his seizures generally involved twitching, jerking, and slobbering, with a fall to the ground. He was generally fatigued after a seizure. He presented to the emergency department in June 2017 with increased seizure activity (Ex. 1F/16). He had a series of about 10-15 seizures over the course of three days, each of the “grand mal” variety, clustered in groups of 2-3, lasting approximately one minute each. This was noted to have occurred during a period of medication noncompliance and poor sleep (Ex. 1F/18).

Then, as the filing date approached, he reported in August 2017 that he had had three recurrences of seizures, usually in clusters (Ex. 1F/36). He reported that these occurred in April 2017, June 2017, and August 2017. There was some concern about medication compliance at this time, as these seizures generally occurred when the [Plaintiff]'s scheduled was altered when he was at his aunt's house and not with his father. He went to the emergency department due to the August 2017 seizures, and had no further seizures while he was in the hospital (Ex. 1F/37). It was established that his medication compliance had not been great, and he possibly had been missing doses at that time. He was instructed to use a pill box and alarms to help stay compliant. He again presented to the emergency department with a cluster of six seizures in October 2017 (Ex. 1F/48 and 2F/4). He had was postictal and had some headaches post seizure, but was noted to come around “pretty quickly” afterward. He indicated that he gets the seizures every 4-6 months. He went to the emergency department approximately one week later after experiencing a 6-8[-]minute grand mal seizures which were treated with a dose of Versed (Ex. 2F/9). The [Plaintiff]'s father noted that he had accidentally been taking an inappropriate dose of Topamax at this time (Ex. 2F/10). His breakthrough seizure clusters were noted by a neurologist to occur either in the setting of illness or noncompliance (Ex. 2F/32). He was noted to be very sensitive to late or missed doses of his medication (Ex. 2F/39). His medications were changed, and midazolam was prescribed for seizures lasting more than five minutes.

Diagnostic imaging and testing was also supportive of an underlying seizure condition. He has a history of an abnormal EEG that was potentially epileptogenic (Ex. 1F/6). An EEG in October 2017 was abnormal for the presence of intermittent generalized spike wave bursts suggesting an underlying predisposition for generalized seizures (Ex. 1F/69). A brain MRI in October 2017 was normal (Ex. 1F/48). EEG testing in November 2017 was abnormal and indicative of focal seizures with rapid secondary generalization (Ex. 2F/79).

4

As noted above, neurological examinations throughout this period were almost entirely unremarkable. For example, a neurological examination in January 2017 was entirely unremarkable (Ex. 1F/10). A neurological examination in June 2017 showed some decreased strength in the right upper extremity, but was otherwise normal (Ex. 1F/18). An August 2017 neurological examination was unremarkable, with the [Plaintiff] noted to be alert and interactive, with cranial nerves intact, muscle strength and tone normal, and normal sensation, reflexes, coordination, and gait (Ex. 1F/39). A neurological examination in October 2017 was again normal (Ex. 1F/50). The [Plaintiff] was alert and oriented, with normal reflexes and normal cranial nerves, normal muscle tone, and normal coordination (Ex. 1F/50). Neurological and physical examinations in November 2017 were also normal (Ex. 2F/12, 38, and 89).

(Tr. 20-21).

The ALJ then considered Plaintiff's medical records concerning Plaintiff's physical symptoms after he turned 18 years of age:

He went to the emergency department for seizures in February 2018 (Ex. 4F/15). He was been doing well for approximately three months, until he was incarcerated for bringing a weapon to school and his medication timing was altered (Ex. 4F/18-19). His increased seizure frequency was noted to be likely due to missed doses and altered medication timing. He also reported to the emergency department in March 2018, on the day he started a new job at McDonalds (Ex. 4F/40). He had a cluster of seizures the following day as well (Ex. 4F/68). He noted that he had taken his medication, but had not eaten anything all day and been awake late the night before. His ONFI dose was increased at this time (Ex. 4F/69). His seizure control had been “much better, ” in early 2018, with two episodes of poor compliance noted as likely triggering seizures (Ex. 4F/146). Later in March 2018, the [Plaintiff] again had a seizure, though his father felt he may have once again missed a medication dose, as he was staying with his aunt (Ex. 4F/152).

He had another breakthrough seizure in April 2018 (Ex. 4F/185-195). He indicated he had been compliant with his medication at this time, though had a recently had a medication change and he had more seizures after taking a Klonopin bridge. He had another seizure in the emergency department and took Ativan and fosphenytoin at that time to get them controlled. He reported he was doing better and not having seizures in June 2018 after being started on ONFI (Ex. 5F/17). He noted that he had not had a seizure in a long time in July 2018 (Ex. 5F/49). He indicated he had no seizures to report through September 2018