1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

STEVEN R. HOWARD, JR., 

Plaintiff, 

vs. 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security, 

Defendant. 

)

)

)

)

)

)

)

)

)

)

)

NO. 3:13–CV-95 

OPINION AND ORDER

 This matter is before the Court for review of the Commissioner 

of Social Security’s decision denying Disability Insurance 

Benefits and Supplemental Security Income to Plaintiff Steven R. 

Howard, Jr. For the reasons set forth below, the decision of the 

Commissioner is REVERSED and this case is REMANDED to the Social 

Security Administration for further proceedings consistent with 

this opinion pursuant to sentence four of 42 U.S.C. section 405(g). 

BACKGROUND 

 In March of 2010, Steven R. Howard, Jr. (“Howard”), filed an 

application for Social Security Disability Insurance Benefits 

(“DIB”) under Title II of the Social Security Act, 42 U.S.C. 

section 401 et seq., and Supplemental Security Income (“SSI”) under 
2 

Title XVI of the Social Security Act, 42 U.S.C. section 1381, et. 

seq. Howard alleged that his disability began on February 1, 2010. 

The Social Security Administration (“SSA”) denied his initial 

applications and also denied his claims upon reconsideration. 

Howard requested a hearing, and on August 4, 2011, Howard 

appeared with his attorney at an administration hearing before 

Administrative Law Judge (“ALJ”) Melody Paige. Testimony was 

provided by Howard, the claimant’s wife, Rhianna Howard 

(“Rhianna”), and vocational expert (“VE”) Thomas A. Gusloff. On 

September 15, 2011, the ALJ issued a decision denying Howards’s 

claim, finding him not disabled because he could perform his past 

relevant work as a wire harness assembler and buffing machine 

operator. (Tr. 29.) 

Howard requested that the Appeals Council review the ALJ’s 

decision, but that request was denied. Accordingly, the ALJ’s 

decision became the Commissioner’s final decision. See 20 C.F.R. 

§ 422.210(a). Howard has initiated the instant action for judicial 

review of the Commissioner’s final decision pursuant to 42 U.S.C. 

section 405(g). 

 Howard was born on August 23, 1977, and was 32 years old on 

the alleged disability onset date of February 1, 2010. (Tr. 19, 

228.) He completed high school and specialized job training to 

obtain a commercial driver’s license (“CDL”). (Tr. 255.) His 

past relevant work includes employment as a truck driver, material 
3 

handler, buffing machine operator, mixing machine operator, 

grounds keeper, and wire harness assembler. (Tr. 29.) The medical 

evidence has been set forth in detail in both the ALJ’s decision, 

Howard’s opening brief, and the statement of the case provided in 

support of the Commissioner. There is no reason to repeat it all 

in detail here, although pertinent details are discussed below as 

needed.1

DISCUSSION 

Review of Commissioner’s Decision 

This Court has authority to review the Commissioner’s 

decision to deny social security benefits. 42 U.S.C. § 405(g). 

“The findings of the Commissioner of Social Security as to any 

fact, if supported by substantial evidence, shall be conclusive.” 

Id. Substantial evidence is defined as “such relevant evidence as 

a reasonable mind might accept as adequate to support a 

conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 

1420, 28 L. Ed. 2d 842 (1971) (citation omitted). In determining 

whether substantial evidence exists, the Court shall examine the 

record in its entirety, but shall not substitute its own opinion 

for the ALJ’s by reconsidering the facts or reweighing the 

evidence. See Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003). 

 

1 The Court has borrowed liberally from the parties’ briefs. 
4 

While a decision denying benefits need not address every piece of 

evidence, the ALJ must provide a “logical bridge” between the 

evidence and his conclusion that the claimant is not disabled. 

Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). 

As a threshold matter, for a claimant to be eligible for DIB 

or SSI benefits under the Social Security Act, the claimant must 

establish that he is disabled. 42 U.S.C. §§ 423(d)(1)(A) and 

1382(a)(1). To qualify as being disabled, the claimant must be 

unable “to engage in any substantial gainful activity by reason of 

any medically determinable physical or mental impairment which can 

be expected to result in death or which has lasted or can be 

expected to last for a continuous period of not less than 12 

months.” 42 U.S.C. § 423(d)(1)(A). To determine whether a 

claimant has satisfied this statutory definition, the ALJ performs 

a five-step evaluation: 

Step 1: Is the claimant performing substantially 

gainful activity? If yes, the claim is 

disallowed; if no, the inquiry proceeds to 

Step 2. 

Step 2: Is the claimant’s impairment or combination of 

impairments “severe” and expected to last at 

least twelve months? If not, the claim is 

disallowed; if yes, the inquiry proceeds to 

Step 3. 

Step 3: Does the claimant have an impairment or 

combination of impairments that meets or 

equals the severity of an impairment in the 

SSA’s Listing of Impairments, as described in 

20 C.F.R. § 404, Subpt. P, App. 1? If yes, 
5 

then claimant is automatically disabled; if 

not, then the inquiry proceeds to Step 4. 

Step 4: Is the claimant able to perform his past 

relevant work? If yes, the claim is denied; 

if no, the inquiry proceeds to Step 5, where 

the burden of proof shifts to the 

Commissioner. 

Step 5: Is the claimant able to perform any other work 

within his residual functional capacity in the 

national economy? If yes, the claim is 

denied; if no, the claimant is disabled. 

See 20 C.F.R. §§ 404.1520(a)(4)(i)–(v) and 416.920 (a)(4)(i)-(v); 

see also Herron v. Shalala, 19 F.3d 329, 333 n.8 (7th Cir. 1994). 

In this case, the ALJ found that Howard had not engaged in 

substantial gainful activity since February 1, 2010, his alleged 

onset date. (Tr. 21.) The ALJ found that Howard suffered from 

the following severe impairments: diabetes mellitus, hypertension, 

obesity, syncopal episodes or seizures of unknown etiology, and 

headaches. (Id.) However, the ALJ found that Howard did not have 

an impairment or combination of impairments that meets or medically 

equals the severity of one of the listed impairments in 20 C.F.R. 

Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 

404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (Tr. 22.) 

The ALJ made the following Residual Functional Capacity 

(“RFC”) determination: 

[T]he claimant has the [RFC] to perform medium work as 

defined in 20 CFR 404.1567(c) and 416.967(c) except: the 

claimant can never climb ladders, ropes, or scaffolds; 

the claimant can occasionally climb ramps and stairs, 

and balance, stoop, kneel, crouch, and crawl; the 

claimant must avoid even moderate exposure to hazards 
6 

such as dangerous machinery and unprotected heights; 

and, the claimant must avoid concentrated exposure to 

extreme heat and extreme cold. 

(Tr. 23.) Based upon Howard’s RFC, the ALJ found that Howard is 

able to perform his past relevant work as a wire harness assembler 

and buffing machine operator as they are generally and normally 

performed in the national economy. (Tr. 29-30.) 

Howard believes that the ALJ committed several errors 

requiring reversal when she failed to properly apply the law 

regarding the listing of impairments, failed to properly apply the 

evidence to her conclusions, improperly weighed evidence and made 

her own medical decisions, did not include all necessary 

restrictions or impairments when assessing the claimant’s RFC, and 

did not support her decision with substantial evidence. 

Relevant Medical Evidence and Facts 

Dr. Thomas Browne 

The record indicates that Howard initially saw Dr. Thomas 

Browne in January of 2009 after injuring his knee during a fall 

off the back of a semi-trailer. (Tr. 416.) Treatment options 

were limited because Howard had no health insurance, but during an 

April visit Dr. Browne prescribed Keflex and Vicodin. (Tr. 415.) 

In September of 2009, Howard fell off the back of a semi-trailer 

again and this time injured his shoulder; Dr. Browne referred him 

to an orthopedic specialist but recommended that he return to work 
7 

the following week. (Tr. 413-14.) In December of 2009, Howard 

presented to Dr. Browne for chest pain, dizziness, trouble 

breathing, and a cough. (Tr. 412.) In February of 2010, Howard 

returned to Dr. Browne complaining of episodic dizziness for the 

previous two months, and Dr. Browne referred him to Dr. Martin J. 

Murphy for evaluation of the dizziness issue. (Tr. 411.) Later 

that month, Howard returned to Dr. Browne after passing out at 

home. (Tr. 410.) Dr. Browne instructed Howard to go to the 

emergency room, but Howard did not feel he could afford it because 

he did not have health insurance. (Id.) On March 15 2010, Dr. 

Browne diagnosed Howard with syncope, hypertension, and diabetes. 

(Tr. 409.) The treatment notes indicate that Howard had had 

“several episodes of syncope” but was unable to be evaluated at 

that time due to his lack of insurance; however, once Howard was 

approved for Medicaid, he made it clear that he desired to be 

evaluated and treated, and Dr. Browne referred him to Dr. Abul W. 

Basher. (Id.) 

Howard returned to Dr. Browne on July 19 2010, for a checkup, and Dr. Browne noted that Howard had been suffering from 

recurrent syncopal episodes and had been advised by cardiology 

that, due to those episodes, he could not work. (Tr. 404.) Dr. 

Browne issued a note that same day indicating Howard “has recurrent 

syncopal episodes” and is “unable to work at this time per 

cardiologist. I concur with them.” (Tr. 401.) 
8 

Dr. Abul W. Basher 

In March of 2010, per Dr. Browne’s referral, Howard presented 

to Dr. Abul W. Basher, a board certified cardiologist, with 

complaints of recurrent syncope (at least twice per week) for the 

previous two months and dizzy spells for the previous six months. 

(Tr. 445.) Dr. Basher suspected neurocardiogenic syncope and 

ordered a tilt table test. (Id.) On March 17, 2010, Howard 

underwent a tilt table test at LaPorte Regional Health System, and 

the result was negative for neurocardiogenic syncope; however, 

Howard did have “symptoms suggestive of Vertigo when the tilt table 

was brought to the upright position. He also remained tachycardic 

. . . during most of the tilting.” (Tr. 422-23.) Dr. Basher 

interpreted the test results and concluded that, although the tilt 

table test was negative, Howard was experiencing recurrent 

syncope; Dr. Basher prescribed Toprol and referred Howard to Dr. 

Mark A. Dixon, an electrophysiologist, for further evaluation.2 

(Tr. 434.) A few months later at one of Howard’s follow-up 

appointments, Dr. Basher opined, “I still personally think this is 

neurocardiogenic syncope. However, I would like to get another 

opinion from an Electrophysiologist in Indianapolis.” (Tr. 430.) 

In July of 2010, Dr. Basher noted that Howard continued to 

 

2 Dr. Basher also recommended that Howard start Lifewatch, a continuous 

cardiac monitoring system, but Howard reported that his cell phone did not 

properly charge so that monitoring was not undertaken. (Tr. 434.) 
9 

experience episodes of syncope as well as numbness of the left 

foot and headaches. (Tr. 427.) He explained that Howard was not 

able to get cardiac monitoring done due to coverage issues, and he 

referred Howard back to Dr. Dixon for possible loop recorder 

placement. (Id.) 

Dr. Mark A. Dixon 

Dr. Dixon, the Medical Director of Electrophyslology Services 

at the LaPorte Regional Health System, began seeing Howard in April 

of 2010 at the request of Dr. Basher for syncope of undetermined 

origin. (Tr. 463.) At that time, Howard reported having episodes 

of syncope at least twice weekly. (Tr. 464.) A new 

transtelephonic monitor was ordered after Howard’s first office 

visit, but the device reportedly did not work, and he was advised 

to return it. (Id.) Dr. Dixon did not actively participate in 

Howard’s care again until July of 2010, when his office received 

a call regarding Howard’s request to have a loop recorder 

implanted. (Id.) On August 4, 2010, Dr. Dixon performed a 

successful loop recorder implantation procedure. (Tr. 394-96.) 

Howard was seen by Dr. Dixon on August 13, 2010, for a wound check, 

and he was instructed to call the office if he experienced a 

syncopal episode so that the loop recorder could be evaluated. 

(Tr. 464.) In a letter sent to Howard’s attorney dated October 4, 

2010, Dr. Dixon noted that he had “received no notice of any 
10 

further syncopal episodes.” (Id.) Dr. Dixon requested that 

Howard’s other physicians make a confirmation of disability since 

he had received no further notice of additional syncopal episodes. 

(Id.) 

Approximately one month later, Howard saw Dr. Dixon again 

after Howard had reported that he had passed out the day before 

and that it was “happening more often.” (Tr. 462.) Dr. Dixon 

noted that the loop recorder had shown no arrhythmic etiology, but 

he suspected a type of vasodepressor disorder and referred Howard 

to a syncope center for further evaluation and testing. (Id.) 

Dr. Dixon stated, “[i]n light of recurrent syncopal episodes with 

no diagnosis, the patient should not drive [or] operate machinery.” 

(Id.) On November 22, 2010, Dr. Dixon drafted a letter to Howard’s 

attorney indicating that it was his “opinion that in light of 

recurrent syncopal episodes with no diagnosis, the patient should 

not drive or operate machinery until a definitive diagnosis can be 

made. Until that diagnosis can be made, a return to his current 

line of work should not occur.” (Tr. 463.) 

Dr. Dixon examined Howard on March 15, 2011. (Tr. 461.) 

Howard reported dizziness, syncope, and seizures almost daily, and 

Dr. Dixon’s impressions were that Howard suffered from “(1) 

vasovagal syncope (most likely), (2) no arrhythmias, (3) ‘seizure 

disorder,’ (4) peripheral neuropathy, [and] (5) chronic back 

pain.” (Tr. 461.) Dr. Dixon indicated that he concurred with Dr. 
11 

Kundi in that the syncope was not arrhythmic but could still be 

vasovagal. (Id.) 

Dr. Samiullah K. Kundi 

In November of 2010, per a referral from Dr. Browne, Howard 

began seeing Dr. Samiullah K. Kundi, a neurologist with Indiana 

Neurology Specialty Care, for evaluation of his syncopal episodes. 

(Tr. 500.) Howard reported to Dr. Kundi that he had been 

experiencing the episodes for the past year and that the current 

frequency of the episodes was about two to three times a day. 

(Id.) He described the episodes to Dr. Kundi as “starting with 

light-headedness, sweating with some vertigo and then loss of 

consciousness; lasting from 20 seconds to 1 minute.” (Id.) He 

reported having “post-episode confusion and exhaustion for about 

2 hours.” (Id.) Howard also reported having headaches for the 

past sixteen years following a car accident in which he lost 

consciousness. (Id.) After an examination with mainly normal 

findings, Dr. Kundi’s impressions were that Howard’s episodes 

appeared to be consistent with syncope. (Tr. 502.) He noted that 

there was a “possibility of superimposed posttraumatic complex 

partial seizures” considering the “post-episode confusion and 

exhaustion as well as reported history of suffering during the 

episodes.” (Id.) Dr. Kundi ordered an MRI, a CT, an EEG, and 
12 

considered EMG/nerve conduction studies depending on the results 

of the other testing. (Id.) 

During a January 2011 follow-up visit, Howard reported 

continued passing out episodes almost daily (with a frequency of 

up to three times a day) and daily headaches; Dr. Kundi remarked 

that Howard had not been able to have an MRI done due to the loop 

recorder, but he noted that both the EEG and the CT were 

unremarkable. (Tr. 497-99.) The report was roughly the same in 

February, and Dr. Kundi’s impression after considering the testing 

done to date was that “[t]he spectrum appears to be more consistent 

with neurocardiogenic syncope” with a “possibility of 

posttraumatic complex partial seizures.” (Tr. 494-96.) He 

scheduled Howard for EMG/nerve conduction studies and recommended 

getting a second opinion from an electrophysiologist in 

Indianapolis. (Tr. 496.) In March of 2011, Dr. Kundi interpreted 

the results of the electrodiagnostic nerve conduction study as 

being “consistent with sensorimotor peripheral neuropathy, 

moderate in intensity and axonal in etiology.” (Tr. 485.) He 

noted that there was “no electrodiagnostic evidence of lumbosacral 

radiculopathy or compression peroneal neuropathy” and that 

“[c]linical correlation [was] required.” (Id.) In April and May 

of 2011, Dr. Kundi noted that Howard’s workup thus far had been 

unremarkable; however, he indicated that, based on Howard’s daily 

episodes of passing out, the “possibility of convulsive syncope 
13 

[could not] be excluded” nor could the “possibility of superimposed 

diabetic autonomic neuropathy . . . with resultant syncope.” (Tr. 

488-93.) 

In addition to the office visits with Howard, Dr. Kundi filled 

out a Seizure Residual Functional Capacity Questionnaire dated 

January 25, 2011. (Tr. 478-82.) In it, Dr. Kundi diagnosed Howard 

with syncope, chronic daily headaches, and suspected seizures. 

(Tr. 478.) Dr. Kundi opined that Howard’s seizures were likely to 

disrupt his co-workers and that he would need more supervision at 

work than an unimpaired worker. (Tr. 480.) He also opined that 

Howard could not work at heights, work with power machines, operate 

a motor vehicle, or take a bus alone. (Id.) Finally, Dr. Kundi 

noted that Howard would need to take unscheduled breaks of a 

variable nature during an eight hour work day, would likely be 

absent from work more than four days a month, and was incapable of 

even “low stress” jobs. (Tr. 481.) 

Dr. Martin J. Murphy 

In April of 2010, Dr. Martin J. Murphy, a physician board 

certified in psychiatry, neurology, and electrodiagnostic 

medicine, evaluated Howard at the request of Dr. Basher. (Tr. 

321-22.) He noted that Howard’s neurological examination was “not 

remarkable” and that the history was “most suggestive of episodes 
14 

of syncope associated with at times valsalva maneuver suggestive 

of vasovagal episodes.” (Tr. 322.) 

Dr. Mahmoud Yassin Kassab 

In May of 2010, at the request of the state agency, Howard 

was examined by Dr. Mahmoud Yassin Kassab. (Tr. 329-332.) Howard 

reported that he began having episodes of syncope in January of 

2010 when he “passed out and dropped to the floor for 36 seconds 

to 1 minute” which was followed by confusion; these episodes 

happened several times a week. (Tr. 329.) Dr. Kassab’s clinical 

examination results were normal, but he was left with the 

impression that Howard presented with symptoms of syncope or 

seizure; Dr. Kassab recommended doing EAG for further assessment, 

and MRI of the brain, and a psychiatric evaluation. (Tr. 329-30.) 

Dr. Joelle J. Larsen 

Dr. Joelle J. Larsen performed a consultative psychiatric 

examination of Howard in May of 2010. (Tr. 333-45.) According to 

Dr. Larsen, Howard had a coexisting non-mental impairment that 

required referral to another medical specialty. (Tr. 333.) She 

noted that Howard alleged only physical impairments, had no social 

problems, had normal memory and concentration problems with the 

exception of when he experienced black outs, exhibited no signs of 

depression or anxiety, and was credible. (Tr. 345.) 
15 

Dr. J.V. Corcoran 

In June of 2010, a state agency reviewing physician, Dr. J.V. 

Corcoran, evaluated the medical records that were available to him 

at that time3 and completed a residual functional capacity 

assessment of Howard. (Tr. 347-54.) He opined that Howard could 

occasionally lift fifty pounds, frequently lift twenty-five 

pounds, stand/walk for about six hours in an eight hour workday, 

and sit about six hours in an eight hour workday. (Tr. 348.) The 

evidence he cited in support of that conclusion included “syncopal 

episode, non-cardiac or neurologic in origin per TP records.” 

(Id.) Dr. Corcoran noted that Howard’s symptoms were “partially 

credible, etiology unknown for syncopal episodes.” (Tr. 352.) In 

July of 2010, Dr. Richard Wenzler, another state agency reviewing 

physician, evaluated the same evidence and agreed with the prior 

denial decision, noting that the impairment had “not been shown to 

have met durational issues.” (Tr. 355.) 

Seizure Log 

Howard’s wife, Rhianna, compiled a seizure log for the period 

of May 2011 through early August of 2011. (Tr. 504-510.) In it, 

 

3 Howard notes that only exhibits 1F through 3F were available at the time 

of his report. (DE #17, p. 5.) 
16 

she noted the dates and times of Howard’s seizures and pass outs. 

(Id.) 

SSA Hearing Testimony 

At the SSA hearing held on August 4, 2011, Howard testified 

that he “pass[ed] out, you know, it might not be every day, but 

most of the times it’s pretty much every day I have seizures.” 

(Tr. 46.) He indicated that his wife had to stay with him “pretty 

much most of the time.” (Tr. 49.) When asked about his seizures, 

Howard indicated the following: 

I really can’t tell much about it. I usually pass out, 

and then I know after I come to, my whole body it just 

hurts – it’s really, you know, real tense and sore. So, 

it takes – sometimes, you know, I can come out of them 

within – when I come to, it only takes about an hour. 

Sometimes it’s longer until I can actually start, you 

know, recognizing things. 

(Tr. 58.) Howard testified that Dr. Kundi had seen him experience 

a seizure when he was in his office. (Id.) He also testified 

that he had chronic headaches. (Tr. 58-59.) 

Rhianna testified that she witnessed Howard’s seizures and 

described them as follows: 

He gets a glazed look in his eyes before he passes out 

and he’s kind of – and he’ll just drop to the floor and 

he’s out for – I don’t know, 20 or 30 seconds. And then 

he starts to come to but he’s not there yet. Then he 

starts the tremors –you’ll see his hand and fingers will 

start to shake and then he starts to convulse. His whole 

body goes stiff and he’ll do that for a few seconds and 

he’s done with the seizure and then I have to wake him 

up, which it takes me about sometimes like five minutes 
17 

to get him to talk to me, because I’m like shaking him 

– wake up, wake up. 

(Tr. 72-73.) When asked to differentiate between the “seizures” 

and “passing out” as noted on the logs she kept with the help of 

her daughter, she stated, “Sometimes he’ll just pass out. If he’s 

sitting on the couch – I don’t know why but he’ll just be out for 

a few seconds . . . completely, like you just knocked him out. . 

. .” (Tr. 73.) When asked how long it took him to get back to 

normal after such an episode, she indicated that she had to shake 

him and stated, “Sometimes hours because he’s like – he acts like 

he’s drunk, he’s all – not right. His speech is slurred at first, 

then he’s real groggy the rest of the day.” (Tr. 73-74.) 

ALJ’s Evaluation of Claimant’s Syncope or Seizure Disorder 

The ALJ considered listings 11.02 and 11.034 and concluded 

that Howard’s severe impairment, namely syncopal episodes or 

 

4 (1) 11.02 Epilepsy - convulsive epilepsy, (grand mal or psychomotor), 

documented by detailed description of a typical seizure pattern, including 

all associated phenomena; occurring more frequently than once a month, in 

spite of at least 3 months of prescribed treatment. With: 

A. Daytime episodes (loss of consciousness and convulsive seizures) or 

B. Nocturnal episodes manifesting residuals which interfere 

significantly with activity during the day. 

20 C.F.R. Pt. 404, Subpt.P, App. 1, § 11.02. 

 (2) 11.03 Epilepsy - nonconvulsive epilepsy (petit mal, psychomotor, or 

focal), documented by detailed description of a typical seizure pattern, 

including all associated phenomena; occurring more frequently than once 

weekly in spite of at least 3 months of prescribed treatment. With alteration 

of awareness or loss of consciousness and transient postictal manifestations 

of unconventional behavior or significant interference with activity during 

the day. 
18 

seizures of unknown etiology, does not satisfy listing-level 

criteria because: 

[t]here is insufficient evidence in the record of the 

frequency alleged by claimant, and emergency room 

treatment is generally required for breakthrough 

seizures. The record shows no medically documented 

seizures that occurred at listing-level frequency, or 

even at all. Per testimony, the claimant has more 

seizures than are medically documented. However, there 

is no way to confirm this, and the overall credibility 

of the witnesses at the hearing was not good. 

(Tr. 22.) According to Howard, the ALJ erred by improperly 

evaluating the evidence related to the frequency of the seizures 

and by making patently wrong credibility determinations. 

 Howard begins by arguing that the ALJ’s decision is flawed 

because it does not adequately reference any evidence in the record 

that contradicts the alleged frequency of his seizures. During 

the hearing, Howard testified that he had seizures “pretty much 

every day.” He indicated that he usually passes out, and when he 

comes to he is sore and has trouble recognizing things for a period 

of time afterwards. Rhianna testified consistently, stating that 

that she had witnessed many of his seizures; she described them in 

detail including tremors, shaking, convulsing, and stiffness along 

with slurred speech and grogginess afterwards. The seizure log, 

compiled by Rhianna and their daughter, records the times and dates 

of Howard’s seizures and/or “pass outs” throughout the months of 

 

20 C.F.R. Pt. 404, Subpt.P, App. 1, § 11.03. 
19 

May, June, and July of 2011. There are twenty-five recorded 

seizures and/or pass outs recorded in May, twenty-three in June, 

and fourteen in July. The log for August of 2011 is only partially 

completed but records two seizures and/or pass outs within the 

first three days of the month.5 

The medical documents regarding the frequency of Howard’s 

seizures indicate that he reported seizures to his physicians 

beginning in February of 2010 with worsening frequency to and 

through May of 2011. For example, Howard reported an episode of 

passing out at home to Dr. Browne in February of 2010, several 

episodes of syncope in March of 2010, and recurrent syncopal 

episodes in July of 2010. When Howard first began seeing Dr. 

Basher in March of 2010, he reported weekly episodes of syncope 

and continued syncope throughout July of 2010. During his first 

visit with Dr. Dixon in April of 2010, Howard reported twice weekly 

episodes of syncope, and during November of 2010, he reported that 

it was “happening more often.” In March of 2011, he reported 

dizziness, syncope, and seizures almost daily. As to Dr. Kundi, 

Howard reported daily syncopal episodes during his first visit in 

 5 While the Commissioner argues that the seizure log is only Howard’s 

“subjective, uncorroborated allegations,” the Court agrees with Howard that the 

seizure log is not subjective; rather, it is other objective evidence compiled 

by a third party witness to those seizures that was then further elaborated 

upon by Rhianna during the hearing. See 20 C.F.R. § 404.1528(b); 20 C.F.R. § 

404.1529(a); see also 20 C.F.R. Pt. 404, Subpt.P, App. 1, § 11.00 (“Testimony 

of persons other than the claimant is essential for description of type and 

frequency of seizures if professional observation is not available.”). 
20 

November of 2010 and throughout January, February, March, April 

and May of 2011. 

Although the ALJ found that Howard’s syncopal episodes or 

seizures of unknown etiology were a severe impairment, she 

concluded there was insufficient evidence in the record with regard 

to the frequency of those seizures to satisfy listing-level 

criteria. She took specific issue with the fact that there was no 

emergency room treatment, no medically documented seizures, and 

that no one but Howard’s family members had witnessed a syncopal 

episode. However, as Howard points out, there is no requirement 

that medical sources must witness seizure activity for listing 

frequency to be established, and a lack of emergency room visits 

does not necessarily correlate to frequency. See Boiles v. 

Barnhart, 395 F.3d 421, 425-26 (7th Cir. 2005). 

Similarly, although the Commissioner argues that “not one 

diagnostic study has confirmed that [Howard] is truly having 

seizures,” it is the frequency of those seizures that is at issue, 

not their existence. The ALJ did note that diagnostic tests such 

as the tilt table test, EEG, EKG, and loop recorder cardiac monitor 

revealed negative or unremarkable findings; yet, she failed to 

adequately explain why those findings were inconsistent with the 

alleged frequency of Howard’s reported seizures. This is 

especially problematic given the fact that Howard’s treating 

physicians continued to diagnose Howard with syncope even after 
21 

the results of those tests were known.6 See e.g. Boiles, 395 F.3d 

at 425 (remanding, in part, because the ALJ did not explain the 

relevance of the lack of EEG evidence for his finding that the 

seizures were not severe enough to equal a listing). If the ALJ 

believed the frequency of Howard’s seizures was unclear or in 

question, she was required to solicit additional evidence on the 

issue. Boiles, 395 F.3d at 426 (citing Smith v. Apfel, 231 F.3d 

433, 437-38 (7th Cir. 2000)). When a medical opinion is not 

inconsistent with past treatment, an ALJ can rectify the problem 

by gathering more information to flesh out that opinion. Barnett 

v. Barnhart, 381 F.3d 664, 669 (7th Cir. 2004) (“Thus, the ALJ 

should have contacted [the doctor] for clarification of her medical 

opinions, asking for more detail regarding the frequency of [the 

 

6 For example, in July of 2010 Dr. Browne indicated that Howard had 

“recurrent syncopal episodes” and was “unable to work at this time.” Despite 

the negative tilt table tests in March of 2010, Dr. Basher diagnosed Howard 

with recurrent syncope, and several months later he indicated that he still 

personally believed that Howard had neurocardiogenic syncope. In November of 

2010, Dr. Dixon noted that the loop recorder had shown no arrhythmic etiology 

but indicated that he suspected a type of vasodepressor disorder; later that 

month he drafted a letter to Howard’s attorney stating that in light of 

Howard’s recurrent syncopal episodes with no diagnosis, Howard should not 

drive, operate machinery, or return to work until a definitive diagnosis 

could be made. In March of 2011, Dr. Dixon’s impressions were that Howard 

most likely suffered from vasovagal syncope, and he stated that he concurred 

with Dr. Kundi that the syncope was not arrhythmic but could still be 

vasovagal. In November of 2010, Dr. Kundi’s impression after an examination 

with mainly normal findings was that Howard’s episodes were consistent with 

syncope. After he ordered and evaluated further testing, Dr. Kundi opined in 

February of 2011 that, considering the testing that had been done to date, 

the “spectrum appear[ed] to be more consistent with neurocardiogenic syncope” 

with a “possibility of posttraumatic complex partial seizures.” In April and 

May of 2011, after further testing and evaluation, Dr. Kundi noted that the 

“possibility of convulsive syncope [could not] be excluded” not could the 

possibility of superimposed diabetic autonomic neuropathy . . . with 

resultant syncope.” 
22 

claimant’s] seizures or for updated medical records that supported 

[the doctor’s] opinion that [the claimant] was disabled.”). Here, 

the ALJ simply stated that she gave little weight to the treating 

source opinions from Howard’s physicians because they were 

“apparently based primarily on [Howard’s] subjective reports that 

are themselves not fully credible, because no diagnosis for [his] 

syncope has been established.” She neither gathered additional 

information nor asked for clarification, and the result is that 

she failed to determine how many seizures she believed Howard was 

actually experiencing. See Boiles, 395 F.3d at 427 (remanding for 

further proceedings, in part, because the ALJ made no finding about 

the frequency of the claimant’s seizures and noting that the record 

had to be more developed on that point). 

Furthermore, while Howard’s wife, Rhianna, provided a seizure 

log and testified in detail as to the manner and frequency of the 

seizures she and her daughter personally witnessed, the ALJ 

discounted Rhianna’s testimony because the “overall credibility of 

the witnesses at the hearing was not good.” In doing so, the ALJ 

failed to elaborate on Rhianna’s lack of credibility other than to 

note that her descriptions of the seizures seemed generic, that 

she did not explain why Howard had never required emergency room 

care, and that she did not seem to be alarmed by the frequency of 

the seizures. Putting aside the issue of emergency room care (as 
23 

it is not required),7 the Court finds that the ALJ’s stated reasons 

given to discredit Rhianna’s testimony are based on a narrow view 

of the record and are patently wrong. Although the ALJ classified 

Rhianna’s descriptions as “generic,” the record reflects that she 

testified in detailed (albeit not medically sophisticated) terms 

with regard to the physical and mental effects both during and 

after Howard’s episodes. The fact that Rhianna “did not seem to 

be alarmed” by the daily seizures is not an indication that she 

was necessarily lying about their frequency; rather, it is 

consistent with the fact that the seizures had become a matter of 

routine in the Howard household. Finally, to the extent that the 

ALJ discounted Rhianna’s testimony simply because it tracked 

Howard’s own testimony, that credibility determination is patently 

wrong as well. See Barnett, 381 F.3d at 670. While the ALJ stated 

she believed the credibility of Howard and Rhianna was “not good” 

regarding the frequency of the seizures, she never “affirmatively 

determined” the number of seizures she believed Howard experienced 

so it is not clear whether Howard’s impairment meets or equals the 

listing despite the alleged lack of credibility. Id. 

Ultimately, “[a]lthough a claimant has the burden to prove 

disability, the ALJ has a duty to develop a full and fair record. 

Failure to fulfill this obligation is ‘good cause’ to remand for 

 

7 See Boiles, 395 F.3d at 425-26. 
24 

gathering of additional evidence.” Smith, 231 F.3d at 437 

(internal citation omitted).8

 

Howard’s Remaining Arguments 

Having found remand necessary because the ALJ did not 

adequately support her decision that Howard’s condition was not 

equal in severity to a listed impairment, the Court finds no 

compelling reason to address Howard’s remaining arguments in 

detail. The Court makes no findings regarding the merits of 

 

8 The Court notes that on June 10, 2016, Howard filed a motion to supplement 

his reply brief with additional information regarding the actions of the SSA 

in a subsequent application made by Howard. (DE #25.) The government did 

not file a response to the motion to supplement. On September 27, 2016, this 

Court granted the motion to supplement, stating that it would consider the 

information as a supplement to Howard’s reply, but took no position as to the 

ultimate result of that consideration on the pending review. (DE #26.) As 

pointed out by Howard, there is a circuit split in how district courts are 

directed to treat a subsequent finding of disability by the SSA. In Allen v. 

Comm’r of Soc. Sec., 561 F.3d 646, 652-53 (6th Cir. 2009), the Sixth Circuit 

Court of Appeals held that a subsequent favorable decision finding a claimant 

disabled the day after the initial decision denying benefits did not warrant 

a sentence six remand because the decision itself standing alone, as opposed 

to the submission of new and material substantive evidence, could not be used 

to change the outcome of the prior proceeding. On the other hand, in a 

similar situation, the Ninth Circuit Court of Appeals held that because of 

the “‘reasonable possibility’ that the subsequent grant of benefits was based 

on new evidence not considered by the ALJ as part of the first application,” 

remand pursuant to sentence six was appropriate for further consideration of 

the factual issues based on the existence of the later favorable decision. 

Luna v. Astrue, 623 F.3d 1032, 1034-35 (9th Cir. 2010). Most recently, the 

Eleventh Circuit Court of Appeals addressed the situation and sided with the 

Sixth Circuit, noting that “[a] decision is not evidence any more than 

evidence is a decision.” Hunter v. Soc. Sec. Admin. Comm’r, 808 F.3d 818, 

822 (11th Cir. 2015) (“the mere existence of a later favorable decision by 

one ALJ does not undermine the validity of another ALJ’s earlier unfavorable 

decision or the factfindings upon which it was premised”). This Court agrees 

with the Sixth and Eleventh Circuits and finds that, in this case, Howard did 

not meet his burden of showing that remand is proper pursuant to sentence six 

based on the mere existence of the subsequent favorable decision. See Allen, 

561 F.3d at 653. However, the Court takes no position on any possible 

substantive evidence that may be presented upon remand consistent with the 

rest of this opinion. 
25 

Howard’s claims. On remand, the ALJ should consider all of the 

evidence in the record, and, if necessary, give the parties the 

opportunity to expand the record so that the ALJ may build a 

logical bridge between the evidence and her conclusions. 

CONCLUSION 

 For the reasons set forth above, the decision of the 

Commissioner is REVERSED and this case is REMANDED to the Social 

Security Administration for further proceedings consistent with 

this opinion pursuant to sentence four of 42 U.S.C. section 405(g). 

DATED: January 23, 2017 /s/RUDY LOZANO, Judge 

 United States District Court