The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DARIN DUBROCK LURRY, JR.,
Plaintiff,
v. Civil Action 2:21-cv-09
Judge Edmund A. Sargus, Jr.
Magistrate Judge Jolson
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
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).
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
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).
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 (Ex. 5F/55). In November 2018, he was
doing well with his seizures since his medication change (Ex. 5F/91). In December
2018, he indicated that his last seizures were eight months earlier, in April 2018
(Ex. 5F/103). He noted in January 2019 that he was not having seizures and he was
doing well overall (Ex. 5F/127).
In March 2019, the social worker reported that a medical provider would not sign
a form stating that the [Plaintiff] could not work, as “outside of working with heavy
machinery, the [Plaintiff] could seek employment” as per the last office visit,
because his seizures were controlled (Ex. 5F/139). The [Plaintiff]’s father indicated
that his lawyer encouraged the [Plaintiff] not to work until a disability hearing date
was set. The [Plaintiff]’s father indicated that while the ONFI medication had been
effective for the seizures, he was experiencing significant side effects of the
medication including mood swings and aggression. He presented to the emergency
department in May 2019 with seizures and the [Plaintiff] was not certain whether
he had taken his medication (Ex. 5F/168). His father thought he may not have taken
his medication (Ex. 5F/184). An LT/Spect scan test was recommended in July 2019
(Ex. 6F/46). He indicated that he had a seizure sometime in late August 2019 and
that his typical seizure frequency was about once every 3-6 months (Ex. 6F/75). In
October 2019, he reported some focal seizures with twitching that most recently
happened about a month ago but typically occur many months to years apart (Ex.
6F/142). He also reported generalized tonic clonic seizures which decreased to
approximately one per month after a change of medication in May 2019 (Ex.
6F/142). His most recent generalized tonic clonic seizure was reportedly also about
a month earlier. His longest stretch without a seizure was about seven months.
Given his complaints of poor control with reported compliance, his doctor sent him
back to the EMU where they were unable to elicit any seizures despite provocation
and no medication (Ex. 5F/203). In July 2019 he denied any seizure since being
seen in May 2019 (Ex. 5F/36). Then, in October 2019 he reported a “partial seizure”
a month earlier (Ex. 5F/108).
Physical and neurological examinations after the [Plaintiff]’s 18th birthday were
again almost entirely normal, aside from an examination in the hospital directly
after a seizure episode, with subsequent examinations unremarkable. For example,
in February 2018, he was neurologically intact and ambulating without difficulty
(Ex. 4F/18). A neurological examination in March 2018 was unremarkable (Ex.
4F/40). Then, another examination the following day after another seizure cluster,
revealed that the [Plaintiff] neglected his left side with neurologic testing (Ex.
4F/74). He had some abnormal heel to shin cerebellar function, abnormal gait, and
truncal instability. He was generally off balance. He has some slow and sometimes
halting speech in July 2018 during a phone call in July 2018, that he related to
medication side effects (Ex. 5F/49). The neurological examination in December
2018 was normal and he had a normal gait (Ex. 5F/107). A neurological
examination in May 2019 was unremarkable (Ex. 5F/168). A neurological
examination in October 2019 was unremarkable with normal gait (Ex. 6F/145).
As for the diagnostic imaging results after the [Plaintiff]’s 18th birthday, an EEG
in July 2018 revealed a single, irregular, bilateral diffuse polyspike and wave
complex representing increased risk of seizure (Ex. 5F/35). An MEG in November
2018 was abnormal and revealed interictal dipoles with left frontotemporal
operculum, with left hemisphere language dominant (Ex. 5F/285). During spect CT
testing, the [Plaintiff] did not have seizure activity and a proper scan could not be
performed (Ex. 6F/123). The five[-]day EEG in November 2019 was normal (Ex.
6F/125).
(Tr. 31–33).
C. The ALJ’s Decision
The ALJ first found that Plaintiff was an adolescent on September 8, 2017, the application
date, but attained age 18 in January 2018. (Tr. 17). The ALJ found that Plaintiff has not engaged
in substantial gainful activity since September 8, 2017, the application date. (Id.). The ALJ
determined that prior to attaining age 18, Plaintiff had the following severe impairments: epilepsy;
ADHD; and a neurocognitive disorder. (Id.). The ALJ, however, found that none of Plaintiff’s
impairments, either singly or in combination, met or medically equaled a listed impairment prior to
Plaintiff attaining age 18. (Id.). The ALJ also determined that prior to attaining age 18, Plaintiff
did not have an impairment or combination of impairments that functionally equaled the severity
of the listings. (Tr. 18).
In the six domains of functioning that are pertinent to a child’s benefits application, Plaintiff
was found to have less than marked limitation in: acquiring and using information, attending and
completing tasks, interacting and relating with others, moving about and manipulating objects, and
caring for himself. (Tr. 22–27). Plaintiff was found to have marked limitation in health physical
well-being. (Tr. 27). Because a finding of one “extreme” limitation or two “marked” limitations
is needed in order to support an award of benefits, the ALJ denied Plaintiff’s claim prior to attaining
age 18. (Id.).
The ALJ determined that because Plaintiff did not have an impairment or combination of
impairments that met, medically equaled any listing or functionally equaled the listings, Plaintiff
was not disabled prior to attaining age 18. (Tr. 28). The ALJ then determined that since attaining
age 18, Plaintiff has not developed any new severe impairments. (Id.). The ALJ found that since
attaining age 18, Plaintiff does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1. (Id.) In assessing the severity of Plaintiff’s mental impairment utilizing the “paragraph
B” criteria of the mental listings, the ALJ found that Plaintiff has moderate limitations in
understanding, remembering, or applying information; moderate limitations in interacting with
others; moderate limitations in the ability to concentrate, persist, or maintain pace; and moderate
limitations in the ability to adapt or manage oneself. (Tr. 29–30).
As to Plaintiff’s residual functional capacity (“RFC”), the ALJ opined:
After careful consideration of the entire record, [the ALJ] find[s] that, since attaining
age 18, the [Plaintiff] has the residual functional capacity to perform light work as
defined in 20 CFR 416.967(b) except he can frequently climb ramps and stairs; never
climb ladders, ropes, or scaffolds; never work around hazards such as unprotected
heights or work in proximity to exposed moving mechanical parts; never engage in
occupational driving; and never operate heavy machinery. Mentally, he can do
simple, routine, repetitive, short-cycle tasks at an average pace without strict time or
production demands; interact constantly with others on matters limited to the
straightforward exchange of information without negotiation, persuasion, or conflict
resolution; and can adapt to rare changes in duties consistent with simple tasks that
are explained or demonstrated, but he may require one to two reminders when
learning a new task.
(Tr. 30).
As for the relevant opinion evidence, the ALJ found,
As for the opinion evidence, the reviewing physician opinions with the State
Agency Division of Disability Determinations (DDD) are persuasive overall (Ex.
1A and 3A). The state agency physical consultants at both the initial and
reconsideration levels opined that the [Plaintiff] had no exertional limitations with
postural and environmental limitations. These opinions are supported by the bulk
of the objective medical evidence in the record in which the [Plaintiff] has epilepsy
as supported by diagnostic imaging and intermittent seizures. Moreover, state
agency medical consultants are highly qualified physicians who are experts in the
evaluation of the medical issues in disability claims under the Act. In this instance,
their opinions are well-supported by the medical evidence of record, and I have
adopted some limitations on heights and hazards. However, I have added an
exertional limitation to the light level, given the safety concerns with lifting and
carrying heavier weights as well as his noted fatigue at times.
The state agency psychological consultant at the initial and reconsideration level
opined that the [Plaintiff] can do work with one or two steps; can do work with low
production demands/work quotas; no social limitations; and no articulated
adaptation limitations. These opinions are generally supported by the bulk of the
objective medical evidence in the record, which shows some mental symptoms
upon examination, along with a history of complaints of mood issues, a “spacy”
sensation, and irritability. I find the state agency mental opinions persuasive in
limiting him to unskilled work, with pace/production limits. This is also consistent
with the WAIS-IV full scale IQ score of 71 from testing in May 2018 (Ex. 4F/230).
However, I find him further limited in social interaction and adaptation, for the
reasons described in Finding 5 above. The neuropsychological examination noted
some difficulty learning new tasks, and so the degree of adaptation should be
limited. The [Plaintiff]’s father also testified to, and reported, some mood swings
and irritability which is not typically observed but given the consistency of the
complaints is considered, as well as some difficulty tolerating frustration, which
also warrant limits on adaptation as well as social interaction. Specifically, the
undersigned limited the type of social interaction the [Plaintiff] could perform, but
not the amount, as he is typically pleasant and cooperative. However, given his
deficits in tolerating frustration and stressors, the undersigned included the kinds of
social interactions more likely to promote conflict or frustration. I did not limit him
to any specific number of task steps. I find this is not a useful way to describe
complexity, as nearly any task can be divided into additional steps. Moreover, I
find the record supports the ability to perform unskilled work, given his daily
activities (including video games, which are complex) and intelligence testing.
The neuropsychological evaluation of psychologist Ari Rabkin, Ph.D., is not
persuasive (Ex. 5F/206-212). The neuropsychological evaluation in May 2018
revealed evidence of executive dysfunction, cognitive slowing, and bilateral fine
motor deficits. He struggled with more complex tasks that required planning ahead
and higher order reasoning. While I agree that the [Plaintiff] has some
psychological deficits, the record as a whole does not support that they are more
than moderate, and they have been accommodated by reducing complexity (to
simple tasks, though he has average cognition), pace, social interaction and
adaptation in the RFC above. I also note[] that the purpose of this evaluator’s
opinions was to identify the interventions that would benefit the [Plaintiff]. Under
the Act, we are tasked with identifying the most he could do in a working
environment, not the ideal environment. For example, high school level academic
work is quite challenging and certainly more demanding that a typical unskilled
occupation. Therefore, while I accept that the [Plaintiff] would benefit from the
interventions proposed, they are not medically necessary to allow him to perform
the range of unskilled work adopted here. Moreover, as noted, he was never
identified as learning disabled in school and he was not placed on an IEP. Dr.
Anderson estimated he had average intelligence based on his performance during
the consultative examination. Also, the neuropsychologist saw him only on two
occasions, for testing and then to discuss the results, and both were done before his
seizures were well controlled on his current medications. I have limited complexity
to simple tasks, which, by definition, require only a brief demonstration or up to a
month to fully learn, and do not find a basis to adopt Dr. Rabkin’s proposed
accommodations. Lastly, I note that the neuropsychologist believed that some
mood or anxiety problems could be a factor in the [Plaintiff]’s performance, but the
[Plaintiff] has never followed up with mental health treatment or further evaluation.
The opinion of psychological consultative examiner, Eric Anderson, Ph.D., is not
persuasive overall (Ex. 3F). Dr. Anderson opined that the [Plaintiff] was able to
remember and carry out instructions—both one to two step instructions and more
complex instructions; sustain attention, concentration, and persistence, and to
persist in work-related activity; maintain effective social interactions on a
consistent and independent basis with supervisors, coworkers, and the public; and
he has the ability to deal with the normal pressures in a competitive work setting.
This opinion was made after a thorough evaluation of the [Plaintiff] and it is
somewhat consistent with the broader record insofar as it finds no more than
moderate limitation in any of the four areas of mental functioning. However,
overall, Dr. Anderson appears to overestimate the [Plaintiff]’s abilities, as he
appears to articulate no specific functional limitations, which would support finding
no severe mental health limits at all. Dr. Anderson was not given an opportunity to
review the collateral record including the earlier neuropsychological evaluation.
While the [Plaintiff] performed well on the date of this exam, the record as a whole
appears to support some limits, which I have set out above.
(Tr. 34–35).
Plaintiff has no past relevant work. (Tr. 36). Relying on the vocational expert’s testimony,
the ALJ concluded that since attaining age 18, Plaintiff could perform jobs that exist in significant
numbers in the national economy, such as a garment sorter, packager, and cleaner. (Tr. 36–37).
She therefore concluded that Plaintiff “has not been under a disability, as defined in the Social
Security Act, since September 8, 2017, the date the application was filed . . . .” (Tr. 37).
II. STANDARD OF REVIEW
The Court’s review “is limited to determining whether the Commissioner’s decision is
supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g). “[S]ubstantial
evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers
v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of Health &
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). The Commissioner’s findings of fact must also
be based upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To this
end, the Court must “take into account whatever in the record fairly detracts from [the] weight” of
the Commissioner’s decision. Rhodes v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL
4881574, at *2 (S.D. Ohio Aug. 17, 2015).
III. DISCUSSION
Plaintiff raises a narrow assignment of error: that the ALJ’s finding at step five was not
supported by substantial evidence because she relied on self-contradictory testimony from the
vocational expert (“VE”). (Doc. 11 at 7–13).
At step five of an ALJ’s sequential analysis, the ALJ determines whether the claimant, based
on the claimant’s residual functional capacity and vocational factors (such as age, education, and
work experience), can “make an adjustment to other work.” 20 C.F.R. § 404.1520(g)(1). Although
the claimant “bears the burden of proof during the first four steps, . . . the burden then shifts to the
Commissioner at step five.” Staymate v. Comm’r of Soc. Sec., 681 F. App’x 462, 469 (6th Cir.
2017) (quotation marks and citations omitted omitted). To satisfy that burden, “the Commissioner
must identify a significant number of jobs in the economy that accommodate the claimant’s residual
functional capacity and vocational profile.” Id. (quotation marks and citation omitted omitted). In
doing so, the ALJ may “take administrative notice of reliable job information available from various
governmental and other publications.” 20 C.F.R. § 404.1566(d). The Dictionary of Occupational
Titles (“DOT”) “is one such publication upon which an ALJ may rely.” Springer v. Comm’r of
Soc. Sec., 451 F. Supp. 3d 744, 765 (E.D. Mich. 2020) (citation omitted). “The ALJ may also seek
the views of [a VE], who may present evidence that includes information from outside the DOT,
including other reliable publications, information obtained directly from employers, or from a VE’s
. . . experience in job placement or career counseling.” Id. (quotation marks and citations omitted).
Where an ALJ relies solely on a VE’s hearing testimony, as the ALJ did in this case, (see
Tr. 37), the Court must decide whether substantial evidence supports the ALJ’s decision to do so.
See Springer, 451 F. Supp. 3d at 765 (citation omitted) (noting that, whether the ALJ’s decision to
rely on the VE’s testimony is supported by substantial evidence is decided on a case-by-case basis
considering, as a whole, the VE’s testimony and the administrative record). At base, the Court must
be able to engage in a “meaningful review” of the ALJ’s decision. Moyers v. Colvin, No. 3:13-
0959, 2015 WL 1013992, at *21 (M.D. Tenn. Mar. 9, 2015), report and recommendation adopted,
No. 3:13-cv-0959, 2015 WL 1467178 (M.D. Tenn. Mar. 30, 2015).
Relevant here, “substantial evidence does not support an ALJ’s decision to deny disability
benefits where the VE’s testimony was unclear.” Zerby v. Comm’r of Soc. Sec. Admin., No.
1:13cv1405, 2014 WL 3956778, at *6 (N.D. Ohio Aug. 13, 2014) (citations omitted); see also
Springer, F. Supp. 3d at 767 (“Without such a bridge or other explanation by the ALJ concerning
why she found the VE’s experience-based opinion concerning the number of jobs to be reliable,
this Court cannot meaningfully review the ALJ’s finding of reliability.”); Moyers, 2015 WL
1013992, at *21 (remanding where the VE’s testimony was “unacceptably vague” prohibiting
“meaningful review of the Commissioner’s decision”). That is what happened in this case.
The ALJ crafted an RFC which “accounted for the claimant’s epilepsy by limiting him to
light work (due to the risk of harm if he seized carrying something heavier, and his noted fatigue at
times, which could be a medication side effect) . . . .” (Tr. 33). In other words, Plaintiff’s risk of
seizure at work was accounted for in the RFC. When the ALJ questioned the VE at the hearing,
she described a hypothetical individual,
who could perform a range of light work as that’s defined in our regulations and
the DOT. This individual can frequently climb ramps and stairs, never climb
ladders, ropes or scaffolds, or work around hazards such as unprotected heights, or
work in proximity to exposed mechanical parts, cannot engage in occupational
driving or the operation of heavy machinery. Mentally, this individual can perform
simple, routine, repetitive, short-cycle tasks at an average pace without strict time
or production demands. Could interact constantly with others, but on matters
limited to the straightforward exchange of information without negotiation,
persuasion or conflict resolution, and could adapt to rare changes in duties
consistent with simple tasks that are explained and demonstrated. He may require
one or two reminders when learning a new task. Can this hypothetical individual
perform any work consistent with someone of the claimant’s age, education and
past work experience?
(Tr. 74). In response, the VE testified there were some occupations that were consistent with the
hypothetical, including Garment Sorter, Packager, and Cleaner. (Id.). Additionally, the ALJ asked
the VE some hypotheticals related to working off-task, absenteeism, and supervision. (Tr. 75).
When Plaintiff’s counsel was permitted to examine the VE, he asked,
based on your education and experience, do you have an opinion about what the
tolerance is for seizure activity in the workplace by employers, particularly if an
individual has grand mal or generalized clonic-type seizures that would require
calling EMS for treatment? . . . [D]o you have an opinion about what tolerances are
for that?
(Tr. 76). The VE replied that, “generally, with that type of seizure -- and even if there’s just one,
and that is a condition that’s uncontrolled where that could happen at any time, that is work
preclusive. It’s a liability issue.” (Id.).
Plaintiff’s hypothetical was grounded in the record. Plaintiff experienced six seizures which
required calling emergency medical services between February 2018 and May 2019. (Doc. 11 at
8–9 (citing Tr. 729, 755, 764, 782, 819, 865, 893, 1108)). And the VE indicated that even one such
seizure would be work-preclusive, which contradicted her testimony that there were sufficient
occupations in the national economy for Plaintiff. But the ALJ did not meaningful resolve this
discrepancy. Rather, she “accept[ed] the vocational expert’s analysis, as it is not contradicted and
her sources of data are considered reliable . . . .” (Tr. 36). Based solely on the VE’s testimony, the
ALJ concluded that a finding on non-disability was appropriate because there were sufficient
occupations which Plaintiff could perform (Tr. 37).
Perhaps the ALJ did not find Plaintiff’s hypothetical for the VE entirely on-point for the
case at hand. Notably, the VE remarked that her opinion was relevant to “a condition that’s
uncontrolled . . . .” (Tr. 76). And there appeared to be skepticism in the ALJ’s opinion regarding
the extent to which Plaintiff’s condition was capable of being controlled and was being properly
managed. For instance, the ALJ concluded that adjustments to Plaintiff’s medication shortly after
his eighteenth birthday “appear[ed] to have largely controlled his seizures.” (Tr. 31). She also
remarked that “[h]is increased seizure frequency was noted to be likely due to missed doses and
altered medication timing.” (Id.). She cited instances in which Plaintiff, or his father, reported to
medical professionals that they were unsure if Plaintiff had taken his medication prior to
experiencing a seizure. (Tr. 31–32 (citing Tr. 851, 1126)). And she noted an instance in which a
social worker reported that a medical provider would not sign a form stating that Plaintiff could not
work, under the belief that Plaintiff’s seizures were controlled. (Tr. 32 (citing Tr. 1081)).
Still, Plaintiff’s “longest stretch without a seizure was about seven months.” (Id.). In May
and September of 2019, the year preceding the hearing, Plaintiff reported experiencing seizures.
(Id. (citing Tr. 1306, 1378)). Plaintiff also identified numerous instances in the medical records in
which his seizures are described as “intractable” (Doc. 11 at 9 (citing Tr. 532, 949, 1045, 1131,
1268, 1412)), “drug resistant” (Id. (citing Tr. 845, 1049, 1135, 1450)), and “medically refractory”
(Id. at 9–10 (citing Tr. 1302, 1307), all of which suggest that the condition was not controlled.
Further, the ALJ explicitly accounted for the risk of seizure at the workplace in her RFC
determination, suggesting she was not entirely convinced that the seizures were controlled. (Tr.
33).
This conflicting evidence does not establish with certainty that Plaintiff’s seizures were
controlled, and so it remains unclear why the ALJ disregarded the VE’s testimony that an
uncontrolled seizure condition would be work-preclusive. The ALJ did not acknowledge that the
VE’s testimony was self-contradictory and relied on it to make the determination that Plaintiff could
perform any of the three occupations described. (Tr. 36–37). In sum, the VE’s testimony was
unclear as to whether Plaintiff could perform the relevant occupations, but the ALJ did not explain
how she resolved the conflicts in the testimony. Because “substantial evidence does not support an
ALJ’s decision to deny disability benefits where the VE’s testimony was unclear[,]” the
Undersigned finds that substantial evidence does not support the ALJ’s finding at step five. Zerby,
2014 WL 3956778, at *6.
Thus, a limited remand is necessary for the narrow purpose of conducting another step-five
analysis to assess which, if any, of the three occupations can be performed under the epilepsy
restrictions set forth in the ALJ’s RFC. See, e.g., Springer, 451 F. Supp. 3d at 768 (ordering remand
for the limited purpose of conducting another step-five analysis); Woodruff v. Astrue, No. 1:12-cv-
1752, 2013 WL 821336, at *7 (N.D. Ohio Mar. 5, 2013) (same).
IV. CONCLUSION
Based on the foregoing, it is RECOMMENDED that the Court REVERSE the
Commissioner’s non-disability finding and REMAND this case to the Commissioner and
Administrative Law Judge under Sentence Four of § 405(g).
V. PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed finding or recommendations to which objection is made, together with supporting
authority for the objection(s). A District Judge of this Court shall make a de novo determination of
those portions of the Report or specific proposed findings or recommendations to which objection
is made. Upon proper objection, a District Judge of this Court may accept, reject, or modify, in
whole or in part, the findings or recommendations made herein, may receive further evidence or
may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation
will result in a waiver of the right to have the district judge review the Report and Recommendation
de novo, and also operates as a waiver of the right to appeal the decision of the District Court
adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
Date: October 13, 2021 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE