United States District Court, D. Nebraska
DAMON L. McCLINTON, Plaintiff,
ANDREW M. SAUL,  Commissioner of the Social Security Administration, Defendant.
MEMORANDUM AND ORDER
M. GERRARD, CHIEF UNITED STATES DISTRICT JUDGE
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.
Medical and Work History
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.
after discharge from Creighton Hospital, the plaintiff
suffered his first grand mal seizure. 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.
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.
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.
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.
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
Hughes' impression was that it was likely the plaintiff
has complex partial seizures, generalized. 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 "GoodRX.com 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.
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 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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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 ...