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McClinton v. Saul

United States District Court, D. Nebraska

December 18, 2019

DAMON L. McCLINTON, Plaintiff,
ANDREW M. SAUL, [1] Commissioner of the Social Security Administration, Defendant.



         The plaintiff, Damon L. McClinton, filed his complaint (filing 1) seeking judicial review of the Commissioner's denial of his application for disability insurance benefits, and moved this Court for an order reversing the Commissioner's final decision. Filing 13. The Commissioner filed his motion to affirm the agency's final decision denying benefits. Filing 17. The Court finds that the Commissioner's decision is not supported by substantial evidence on the record, that the plaintiff's motion to reverse should be granted, and that the Commissioner's motion to affirm should be denied.


         1. Medical and Work History

         The plaintiff alleges that on August 28, 2016, just a few days short of his fifty-first birthday, he became unemployable because of his seizure disorder. Filing 10-5 at 2. The plaintiff had worked in the residential construction trade, primarily as a framing and finish carpenter, but later in his career as a construction site superintendent. Filing 10-6 at 16-22. He reports having four years of college and vocational training in construction. Filing 10-6 at 7. In 2012, the plaintiff suffered a significant closed head injury in a motor vehicle accident. Filing 10-7 at 2. His injury was described as an occipital cranium fracture and intraparenchymal hemorrhage with encephalomalacia of the right temporal lobes. He received treatment from Creighton Hospital, and when he recovered, he was discharged without any rehabilitation services.

         Shortly after discharge from Creighton Hospital, the plaintiff suffered his first grand mal seizure.[2] The plaintiff's next reported grand mal seizure occurred September 4, 2014, and was witnessed by the plaintiff's roommates. A computerized tomography (CT) scan taken of the plaintiff's head on this occasion showed encephalomalacia of the lateral inferior cortex and subcortical white matter of the right occipital lobe. Filing 10-7 at 7. The plaintiff was given a Dilantin prescription to help control future seizures, and advised to follow up with a neurologist. Id. The plaintiff, however, neither filled his Dilantin prescription, nor followed up with a neurologist. Filing 10-2 at 2.

         The plaintiff began working for All Purpose Utilities as a construction superintendent and carpenter in 2013. His employer offered employee health insurance, but did not cover the entire cost of the annual premium until the employee had participated in the insurance plan for ten years. The plan provided that in an employee's first year, the employee would be responsible for ninety percent of the premium cost and the employer would cover the remaining ten percent. Filing 10-2 at 67. In the employee's second year, the employee/employer cost-share went to 80/20, and so on until in year ten, the employer covered the employee's entire premium cost. Id. The plaintiff said he could not afford to participate in his employer's health insurance plan because he had child support obligations for two children. Filing 10-2 at 66.

         The plaintiff's next documented grand mal seizure occurred while he was at work on August 12, 2015. Filing 10-7 at 11-15. This event was witnessed by coworkers who saw the plaintiff fall and hit his head, opening about an inch-long scalp laceration. The seizure itself lasted for several minutes. The plaintiff was taken to the Midlands Hospital emergency room where he was described as somewhat postictal. The emergency room physician reported that the plaintiff had previously been in the emergency room for a seizure in September 2014, and also reported that the plaintiff had not complied with the recommendation of a neurology follow-up and had not filled the Dilantin prescription given to him in 2014. The plaintiff was again told to follow up with a neurologist, and was also given a prescription for a different anticonvulsant, Keppra.

         On April 20, 2015, the plaintiff was evaluated by Dr. Bernadette Hughes, of Omaha Neurological Clinic, Inc. Filing 10-7 at 2-5. Dr. Hughes noted that the plaintiff had two previous emergency room visits following grand mal seizures, and that he has not been compliant with past treatment and evaluation recommendation. Dr. Hughes also reported that the plaintiff was "a self-pay" and did not participate in employer-provided health insurance because he pays child support for two children. Filing 10-7 at 2. Dr. Hughes' diagnosis was epilepsy and recurrent seizures, most likely the result of his traumatic brain injury. Filing 10-7 at 3. Dr. Hughes prescribed a thirty-day supply of Keppra, 500 milligrams, to be taken twice daily. The plaintiff was instructed that he was not allowed to drive in the State of Nebraska until he was seizure-free for three months. Filing 10-7 at 4. Finally, Dr. Hughes recommended additional testing once the plaintiff obtained health insurance, which, according to Dr. Hughes, the plaintiff promised to obtain through his employer.

         Dr. Hughes referred the plaintiff for an electroencephalograph (EEG), which was performed on October 20, 2015. Filing 10-7 at 44. The evaluation was reported as normal, no focal lateralizing or epileptiform features, but noted that a single EEG cannot rule out epilepsy and the findings should be correlated with the plaintiff's clinical presentation. The plaintiff saw Dr. Hughes again on December 2, 2015, at a general neurology clinic sponsored by the Nebraska Medical Center. Filing 10-7 at 45-47. She repeated much of the plaintiff's medical history in her patient note, and again reported that the plaintiff did not have health insurance and that he has not been able to fill the prescriptions he was given due to limited finances. Dr. Hughes acknowledged that the plaintiff had an EEG done since she last saw him, which she described as unremarkable. Filing 10-7 at 46. She reported reviewing a MRI of the plaintiff's brain that showed mild to moderate global volume loss more typical than his age, and multifocal gliosis in the right temporal and occipital lobes, which appeared to represent multifocal diffuse axonal injury in the frontal lobes bilaterally.

         Dr. Hughes' impression was that it was likely the plaintiff has complex partial seizures, generalized.[3] She was critical of the plaintiff for not refilling the Keppra she had previously prescribed. Filing 10-7 at 46-47. She reported that the plaintiff did well until his prescription ran out on November 26, and he did not refill it. She recognized the plaintiff's difficult financial condition and that he had applied for financial assistance through the University. She encouraged him to use " coupons." Dr. Hughes also reported that the plaintiff's story changes regarding his personal and family histories, but she did not identify any aspect of the plaintiff's description of his seizure condition that had changed.

         The plaintiff suffered another witnessed grand mal seizure at work on May 26, 2016. Filing 10-7 at 10. Emergency services were called, and the plaintiff was taken away by ambulance. The seizure was reported to have lasted for two minutes, and that the plaintiff was postictal with the rescue squad. The emergency room physician attributed this seizure to the plaintiff's noncompliance with medication. Filing 10-7 at 17. The plaintiff was again referred for follow-up with Dr. Hughes.

         Dr. Hughes reported seeing the plaintiff on June 28, 2016, at the Nebraska Medical Center General Neurology Clinic. Filing 10-7 at 47. Dr. Hughes noted that the plaintiff's last grand mal seizure was May 28, observed by a jobsite supervisor, and that it lasted for a couple minutes. Dr. Hughes also reported that the plaintiff's symptoms included complex partial seizures where he has periods of time when he sits down and has some automatistic-type behaviors. Dr. Hughes reported again that the plaintiff had not been compliant with taking the anticonvulsive medication that had been prescribed in the past, and had not followed through with obtaining assistance that may have been available to help him with the cost of his medication. Filing 10-7 at 48. But Dr. Hughes also noted that the plaintiff had been taking Keppra since his May 28 grand mal seizure event, and that he had been seizure-free since that time. Finally, Dr. Hughes reported releasing the plaintiff back to work as long as he did not drive or operate dangerous equipment. Filing 10-7 at 42.

         According to the plaintiff, he reached an agreement with his employer to stop working because of his seizures. Filing 10-2 at 44. The plaintiff's supervisor told him he was a great employee, but he was going to hurt himself or someone else because of his seizures. Filing 10-6 at 34. His last day of work with All Purpose was August 28, 2016. The plaintiff believed that he was still employable and applied for over 100 jobs after leaving All Purpose. But when the prospective employer asked why the plaintiff left his old job, he would disclose his seizure condition. After this disclosure, no prospective employer called back. Filing 10-6 at 34. The plaintiff also applied for unemployment benefits, again believing he could still work. Filing 10-2 at 60. When those benefits ran out on April 27, 2017, the next day the plaintiff applied for Social Security disability insurance. Filing 10-5 at 2, 10.

         The plaintiff began receiving medical services from the Douglas County Department of General Assistance Clinic in May 2017. The initial clinic intake note indicated that the plaintiff was now homeless. Filing 10-8 at 2. The plaintiff gave a description of his seizure history and said that he had been seizure-free for a while, but thinks he had a seizure last week. The clinic provided the plaintiff with a thirty-day Keppra supply and a prescription authorizing four refills. Filing 10-8 at 7. The plaintiff was asked to return to the clinic within two weeks to have his Keppra level checked, which he did. Filing 10-8 at 15.

         On September 28, 2017, the plaintiff was found on the ground outside the Wentworth Apartments. Filing 10-7 at 55. The plaintiff was taken by ambulance to the Bergan Mercy Medical Center emergency room. The initial assessment reported that the plaintiff was confused at the scene and upon arrival at the emergency department. He had an inch-long laceration to his forehead that was cleaned and closed with three stitches. Filing 10-7 at 57-58. The plaintiff was also given 1, 000 milligrams of Keppra intravenously.

         The plaintiff returned to the Douglas County Clinic on October 12, 2017, to renew his Keppra prescription and to have his stitches removed. Filing 10-8 at 15. Dr. Kevin Reagan examined the plaintiff. Dr. Reagan's patient note described the plaintiff's medical history and detailed the plaintiff's report of his September 28 emergency room visit. Dr. Reagan questioned the plaintiff's consistency with taking his medications and wanted to follow up with the plaintiff regarding his medications in two weeks. Filing 10-8 at 14. The plaintiff reported back to the Clinic on October 26, November 9, and November 20 for medication reviews, blood pressure checks, and a flu shot on November 9. Filing 10-8 at 12-14.

         The plaintiff's November 20 visit concerned a blood pressure check and a blood draw to see whether his Keppra level was within the therapeutic range. Filing 10-8 at 12. The progress note indicates that the plaintiff was fine during the blood draw, but afterwards the plaintiff was not responding to the medical staff, but just had a blank stare. He was given some water, a banana, and 1, 000 milligrams of Keppra. Dr. Reagan noted that the plaintiff gradually became more responsive over the next thirty minutes. Dr. Reagan and the clinic staff would not allow the plaintiff to, on his own, take the bus back to where he was staying. The plaintiff gave the staff permission to contact a friend who came to the clinic and picked him up. The lab report dated November 22 showed that the plaintiff's Keppra level was below the therapeutic range. Filing 10-8 at 17. According to the plaintiff, he was told that his Keppra level was probably low because his metabolism was eating the Keppra up as fast as he could take it. Filing 10-2 at 56. On November 27, Dr. Reagan increased the plaintiff's Keppra from one 500 milligram tablet twice a day, to three 500 milligram tablets in the morning and two tablets at night. Filing 10-8 at 12.

         The plaintiff was rejected when he next returned to the clinic on December 26, because his authorization for services had lapsed. Filing 10-2 at 56-57; filing 10-8 at 11. The plaintiff reapplied and was then seen in clinic on January 22, 2018. During the time that the plaintiff was not authorized for services, he ran out of Keppra. Once he was reauthorized, his Keppra prescription resumed at the increased dosage Dr. Reagan had ordered in November. The plaintiff had blood drawn on February 20 for another therapeutic level check, and now his Keppra level was within the therapeutic range. Filing 10-8 at 16.

         2. Administrative Hearing

         A hearing before an Administrative Law Judge (ALJ) was held on May 30, 2018, in which the plaintiff and a vocational expert were the only witnesses. The vocational expert was not present at the hearing, but testified without objection by telephone conference. Filing 10-2 at 37. The hearing opened with the plaintiff's counsel identifying what he considered to be the main issues, which were whether the plaintiff's seizures would require him to miss work on a frequent basis or require unscheduled breaks, and whether the level of Keppra that he is required to take causes problems with fatigue. Filing 10-2 at 36-37.

         The plaintiff's counsel argued that the agency's initial determination that the plaintiff was not disabled was based on his alleged noncompliance with prescribed medication, which since May 2017 was no longer true. See filing 10-2 at 37-38. The plaintiff admitted that he did not do everything he could to get his seizures under control when he was working. Filing 10-2 at 66. However, since May 2017, when the plaintiff started receiving care from Dr. Reagan at the Douglas County Clinic, he has been compliant with his prescribed Keppra. Filing 10-2 at 38. The plaintiff also said that since Dr. Reagan adjusted his Keppra dosage, he has consistently taken his medication as prescribed. Although he continues to have blackout seizures, he now has very few grand mal seizures. Filing 10-2 at 52.

         The plaintiff said that Keppra made him very tired. Filing 10-2 at 57. He currently takes three Keppra tablets in the morning around 8:00 a.m., and two around 6:00 p.m. Filing 10-2 at 58. After taking Keppra in the morning he was drowsy, and after taking his evening tablets, he is usually asleep by 8:00. The plaintiff said that his doctor was concerned about the amount of Keppra he was taking because he has only one kidney, having donated a kidney to a friend before his traffic accident and brain injury. Filing 10-2 at 60; filing 10-8 at 2.

         The plaintiff said he experienced two types of seizures. Filing 10-2 at 53. One was what he called a grand mal seizure-where he would totally lose consciousness, and according to witnesses, his body would flail, jerk and stiffen. The second seizure was what the plaintiff called a blackout-where he would appear to be wide awake but staring at something that was not there. He said both seizures would last for about two to three minutes, and he would be very disoriented when he came out of the seizure. He also said that he felt very drained after a seizure and would have to sleep for maybe two to three hours, depending on the type of seizure. Filing 10-2 at 54. The plaintiff estimated that it took four to six hours to totally recover from a seizure. Filing 10-2 at 55.

         The plaintiff provided a written statement indicating the dates he experienced seizures from September 2016 to July 3, 2017. Filing 10-6 at 26. The plaintiff also provided calendars for the years 2017 and 2018, with dates circled or crossed out, that he said showed the days on which he experienced seizures. Filing 10-2 at 48-50; filing 10-6 at 62; filing 10-8 at 19. The plaintiff represented that his seizure list was made as the seizures occurred. Filing 10-6 at 26. The plaintiff's documents indicate that between September 2016 and April 2018 inclusive, the plaintiff generally experienced two to six seizures in a given month. The most seizures the plaintiff experienced in a month was eight in January 2018. The plaintiff said that now most of his seizures were the blackout type. Filing 10-2 at 64-65.

         The plaintiff said that he has been homeless since he left his last job. Filing 10-2 at 58. He spends much of the day in a Ralston city park and in the Ralston library. Filing 10-2 at 59-60. During the winter, he slept on a couch in an apartment complex garage that was used to store furniture tenants left behind when they moved or were evicted. Filing 10-2 at 59. During the day he tries to stay away from others in a "protected place" so that if he has a grand mal seizure, an ambulance would not be called. Filing 10-2 at 63. The cost of an ambulance was something he could not afford.

         The plaintiff testified that he has not been employed or done any work for anyone whatsoever since August 2016. Filing 10-2 at 43. The decision to stop working was a joint agreement with his employer for his safety and for the benefit of the company. When he had a seizure on the job, an ambulance would be called, and he would go to the hospital emergency room for evaluation. Usually the treating doctor would take him off work-sometimes for as long as a month. The plaintiff estimated that for the eight months in 2016 when he worked for All Purpose, he missed two months due to seizures. Because he was an hourly employee, he was not paid for his time away from work. Filing 10-2 at 44-45.

         The plaintiff testified that he did not believe he would be of any benefit to a company because of his seizures. Filing 10-2 at 61. He would not be at his full potential and would be a danger to himself and other employees. Sooner or later, he would have a seizure, pass out, and end up in an ambulance. Filing 10-2 at 62. The plaintiff said that normally he will detect a strange chemical smell, which is a warning that a seizure is about to occur. Filing 10-2 at 51. When he gets the warning, he can quickly sit down and prepare himself so that he doesn't fall. But when there is no warning, he can drop anywhere.

         The ALJ posed the following hypothetical to the vocational expert. Assume a worker with the plaintiff's past relevant work history, who did not have any exertional limits, and was able to perform work that did not require exposure to hazards such as work at unprotected heights, work near dangerous, unguarded, moving machinery, or operating motor vehicles. Filing 10-2 at 70. The vocational expert said that such worker would be unable to perform the plaintiff's past relevant work as a construction supervisor. The vocational expert was then asked whether there would be an occupational base for such worker apart from such worker's past relevant work. Filing 10-2 at 71. The vocational expert said yes, and identified three jobs in the medium, unskilled category existing in the national economy-a commercial cleaner, a dishwasher or kitchen helper, and a housekeeper. Filing 10-2 at 71.

         The plaintiff's counsel asked the vocational expert her opinion whether that same occupational base would be available if the hypothetical worker would miss four days of work per month because of seizures. Filing 10-2 at 71. The vocational expert said that specific situation is not covered in the Dictionary of Occupational Titles, but based on her background and experience, she believed that missing four days per month would not allow for any full-time, sustained work in any occupation. Filing 10-2 at 71-72. The vocational expert was asked to opine on an employer's tolerance for missing work in a month. She said missing two days in a month for an illness would not be a problem, but consistently missing two or three days every single month would probably lead to an employer discontinuing the worker's employment. The plaintiff's counsel next asked the vocational expert to consider the ALJ's hypothetical employee, but who would also ...

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