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Wiley v. Colvin

United States District Court, E.D. Missouri, Eastern Division

September 20, 2016

DAVID C. WILEY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          David D. Noce United States Magistrate Judge

         This action is before the court under 42 U.S.C. § 405(g) for judicial review of the final decision of the defendant Commissioner of Social Security denying the application of plaintiff David C. Wiley for disability insurance benefits (DIB) under Title II of the Social Security Act. For reasons set forth below, the final decision of the Commissioner is affirmed.

         I. BACKGROUND

         Plaintiff was born on September 9, 1959. (Tr. 135.) He filed his Title II application for disability insurance benefits on February 14, 2012, alleging disability beginning November 1, 2011. (Tr. 17, 35.) He subsequently amended his alleged onset date to December 2, 2011. (Tr. 17, 149.) His alleged disabling impairments are seizures and sleep apnea. (Tr. 154.) Plaintiff's application was denied initially, and he requested a hearing before an administrative law judge (ALJ). (Tr. 17.)

         On September 13, 2013, following a hearing, the ALJ issued a decision unfavorable to plaintiff. (Tr. 17-26.) The Appeals Council denied plaintiff's request for review. (Tr. 1.) Thus, the decision of the ALJ stands as the final decision of the Commissioner.


         On December 8, 2010, plaintiff visited SLUCare and was seen by Bingzhong Chen, M.D., for treatment following a seizure. At that time he was diagnosed with complex partial seizure disorder, right ear tinnitus, and sleep apnea. (Tr. 210-12.)

         On December 2, 2011, plaintiff visited People's Health Center (PHC) and was seen by Mariea Snell FNP (Family Nurse Practitioner). Plaintiff's chief complaint during the visit was seizures, memory loss, and blank mind episodes. Plaintiff was observed as having his memory intact and no sensory loss, and his deep tendon reflexes were preserved and symmetric. PHC diagnosed plaintiff with hypertension, localization-related (focal) (partial) epilepsy, and sleep apnea. (Tr. 226-28.)

         On January 13, 2012, plaintiff visited the Washington University School of Medicine Multidisciplinary Sleep Medicine Center, where he was seen by Darla Darby, D.O. There he was assessed with a history of obstructive sleep apnea (OSA) syndrome. Dr. Darby noted plaintiff's OSA had not been treated for about 3.5 years and he was eager to resume treatment with the continuous positive airway pressure system (CPAP). Further, plaintiff was diagnosed with complex partial seizures which were poorly controlled with Tegretol. The treatment plan included beginning Zonegram 100 mg daily and increasing by 100 mg per week until 400 mg daily. (Tr. 234-36.)

         On January 26, 2012, plaintiff visited Washington University for an 18 channel digital extended video EEG. The test results, interpreted by Dr. Darby, were abnormal due to right temporal sharp waves and left temporal slowing. The report further noted, “[t]he described sharp waves are typically seen in patients who have a history of focal onset seizures. The described left temporal slowing indicates regional cerebral dysfunction in the left hemisphere.” (Tr. 242.) That day plaintiff also underwent a diagnostic polysomnogram with continuous positive airway pressure titration. The test result was evidence of severe OSA. A CPAP machine was noted as an effective treatment for plaintiff's OSA. (Tr. 243-44.)

         On March 23, 2012, plaintiff visited St. Louis Connect Care (Connect Care) and was seen by Earl Schultz, M.D., his chief complaint being seizures. Dr. Schultz noted that plaintiff complained of seizures, staring spells, poor memory, ringing in his ears, and vertigo at times over the past several weeks. Plaintiff could not remember if he had an MRI or other imaging. Assessment of plaintiff was that he suffered from seizure disorder. Dr. Shultz's plan was to order laboratory studies and an EEG. (Tr. 270-73.)

         On April 10, 2012, plaintiff visited Washington University and was seen by Amy Licis, M.D., for a neurological exam. The assessment of plaintiff's mental status was that he was “alert, oriented, [with] normal spontaneous fluent speech with full comprehension.” The records indicated plaintiff had complex partial seizures. (Tr. 237-39.)

         On April 16, 2012, plaintiff visited Barnes Jewish Hospital (BJH) Neurodiagnostics and underwent a routine 32 channel EEG. The interpretation of findings, by Lawrence N. Eisenman, M.D., Ph.D., showed no focal, lateralized, or epileptiform abnormalities resulting in a normal awake and stage I and II sleep EEG. (Tr. 247.)

         On May 25, 2012, plaintiff visited Connect Care again and was seen by Morvarid Karimi, M.D. Since his last visit plaintiff had one seizure and was found on the ground, with mouth injuries to his cheeks and tongue, bladder incontinence, and had postictal dysarthria[1] that ended later that day. On the same day, Dr. Karimi's review of systems showed tinnitus and nasal passage blockage, but no sign of vertigo or memory lapse or loss. The plaintiff was assessed with epilepsy and recurrent seizures. Dr. Karimi prescribed Tegretol XR 200 mg and sertaline HCL 25 mg. Plaintiff was to begin taking a titrating dose of sertaline, beginning at 25mg increasing to 100mg. (Tr. 266-69.)

         On July 18, 2012, plaintiff visited BJH and was under the care of Eric John Huselton, M.D. Plaintiff stated seizures began seven years ago, but the first four years were well controlled on 200 mg of carbamazepine. Plaintiff now reports having 1-2 seizures a week, although he was still taking his carbamazepine every day. Further, plaintiff complains of a worsening memory and a buzzing in his head. Lastly, plaintiff's OSA was well controlled with the use of CPAP. Also on July 18, 2012, plaintiff underwent a health risk screening, revealing he has memory problems after seizures and some difficulty with activities of daily living where his family assists as needed. (Tr. 389-92.)

         On September 20, 2012, during a visit to BJH, records indicate plaintiff has a history of epilepsy, OSA, a mass removal from his nasal ridge, tinnitus, and a popping sensation in his ear. Plaintiff complained to Kevin Patel, M.D., of having no memory of entire trips that he has taken, no memory of having a mass removed from his nasal ridge, occasionally getting lost on walks, and being unable to tell his wife how long they had been married. Plaintiff complained that the ringing in the ears and popping sensation have caused him to discontinue the CPAP treatment. Dr. Patel referred plaintiff to the Ear Nose and Throat Clinic (ENT). (Tr. 379-82.)

         On September 28, 2012, plaintiff underwent an MRI, requested by Dr. Patel and interpreted by Aseem Sharma, M.D., on his brain and brain stem. The MRI report revealed a partial empty sella, [2] but otherwise a normal brain MRI without imaging evidence to explain the plaintiff's seizures. (Tr. 373-74.)

         On October 10, 2012, plaintiff followed up with BJH. His seizures were being handled by the neurology department, but the brain MRI and a routine lab test were negative. BJH decided he should continue with Tegretol and defer to the neurology department regarding continuing titration. As for the OSA, plaintiff stated the CPAP makes his tinnitus worse and prevents him from sleeping. He was, at that time, scheduled an ENT appointment to evaluate his tinnitus. (Tr. 369-70.)

         On October 22, 2012, plaintiff visited the ENT department and was seen by Shaun Desai, M.D. A history of epilepsy, OSA, mass removal from his nasal ridge, tinnitus, and popping sensation of his ears were noted. ENT's assessment of plaintiff's active problems was epilepsy and recurrent seizures, eustachian tube block, and OSA. ENT ordered a neck computed tomography (CT) with contrast and an audiogram, and noted that there will likely be a need for a nasal endoscopy and lesion biopsy. On October 30, 2012, plaintiff underwent an audio evaluation and CT with contrast in his neck. At that time, plaintiff complained of tinnitus in both ears. The CT was assessed and revealed no abnormalities. (Tr. 362-63.)

         On January 15, 2013, Dr. Patel of BJH noted his review of plaintiff's paraneoplastic panel. Dr. Patel stated that plaintiff's potassium channel antibody is positive at a level 6-7 times the upper limit of normal. Further, Dr. Patel was concerned that plaintiff was experiencing limbic encephalitis which could produce an epilepsy emanating from the temporal lobes, as was noted on his prior EEG, and could give rise to a progressive memory deficit as plaintiff had previously reported. (Tr. 307.)

         On February 11, 2013, plaintiff admitted himself to BJH for a planned procedure to have a mass removed from his chest by surgeon Traves Dean Crabtree, M.D. The principal and secondary diagnoses were moderate-size anterior mediastinal mass, concern for possible thymoma[3] or teratoma, and recurrent seizure disorder. He remained in the hospital for six days after the operation. The postoperative diagnosis was a moderate size anterior mediastinal mass with concern for possible thymoma or teratoma. (Tr. 403, 418.)

         On March 18, 2013, plaintiff was admitted into BJH for scheduled immunomodulatory[4] therapy under the care of Robert Bucelli, M.D. Plaintiff's chief complaints were seizures and memory loss. During the examination, plaintiff's wife stated that she was monitoring his Tegretol to ensure correct dosage and plaintiff had not had any seizures since the hospitalization in February of 2013. During discharge on March 27, 2013, plaintiff's neurologic condition was described as “alert and oriented” as well as having a recall memory of 3/3 at zero minutes and 2/3 at five minutes with prompting. Dr. Bucelli noted that plaintiff “clearly has large gaps in his memory, ” not being able to recall two surgeries in the past two years. (Tr. 450-51.)

         On April 15, 2013, plaintiff was seen at BJH. During the visit, Dr. Huselton completed a Medical Source Statement (MSS) assessment. The findings were as follows: (1) plaintiff's current diagnoses were seizure disorder and autoimmune limbic encephalitis; (2) plaintiff's symptoms and recommended treatment can be summarized as seizures, memory impairment with a prescription for Prednisone and Tegretol; (3) plaintiff has memory impairment that would impair his ability to maintain attention and concentration, and to make decisions; and (4) plaintiff is unable to engage in full time employment because of his impaired memory, seizure disorder, and inability to maintain focus and would be unable to work with machinery, heights, etc. because of his seizures. (Tr. 484-85.)

         On May 14, 2013, plaintiff moved to amend the alleged onset date of disability to December 2, 2011. (Tr. 149.) Also, on May 14, 2013, the hearing before the ALJ was held. At the request of the ALJ at the hearing, plaintiff was referred for a psychological evaluation.

         ALJ Hearing

         On May 14, 2013, a video hearing was held. The plaintiff and his wife, Laura Wiley, appeared in St. Louis, Missouri and the hearing was presided over from Chicago, Illinois. The plaintiff was 52 years old at the time of the hearing. He was 5 feet 5 inches tall and weighed 213 pounds. He lived with his wife and stepdaughter who both had jobs that brought income into the house. His last job was driving a forklift in 2010 when he was fired because his health problems became a safety issue. He filed and received unemployment for a total of one year and never received any workers compensation. (Tr. 33-38.)

         Plaintiff testified to the following. Plaintiff is unable to work because of his seizures, not being competent, and anxiety. His seizures come on without warning and he feels drained afterwards like he just got through running in the park. He has no memory of what his body is doing during the seizure. The draining feeling lasts about 15 to 20 minutes, at which point he just sits back and rests. (Tr. 38-39.)

         Plaintiff has memory problems. He is not able to recall movies he has seen with his wife, and when his brothers call and check up on him. In March of 2013, he was admitted to the hospital to undergo infusions. He does not feel he has improved since he has been released from the hospital. (Tr. 39-41.)

         Plaintiff was on 70 milligrams of Prednisone a day. His side effects from that medication include weight gain. He worked for Fed-Ex and Unisource at the same time. He operated a forklift at Unisource for 25 years. He started having problems at Unisource, while interacting with his co-workers. He was accused of jumping off of the machine and charging a fellow worker. Another incident occurred when he ran into a steel beam. He has altercations or verbal fights ...

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