UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

DAVID RUNNINGHA WK, Case No. 3:15-cv-01495-AA 

Plaintiff, OPINION AND ORDER 

v. 

CAROLYN W. COL VIN, 


Acting Commissioner of Social Security, 


Defendant. 

Tim Wilborn 


Wilborn Law Office, P .C. 


P.O Box 370578 

Las Vegas, NV 89137 

Attorney for Plaintiff 

Billy J. Williams 

United States Attorney 

Janice E. Hebert 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

1 - OPINION AND ORDER 


Case 3:15-cv-01495-AA Document 19 Filed 09/29/16 Page 1 of 12
Thomas M. Elsbeny 

Special Assistant United States Attorney 

Office ofthe General Counsel 

Social Security Administration 

701 Fifth Avenue, Suite 2900, MIS 221A 

Seattle, WA 98104-7075 

Attorneys for Defendant 

AIKEN, Judge: 

Plaintiff filed suit pursuant to the Social Security Act (the Act), 42 U.S.C. § 405(g), to 

obtain judicial review of the Commissioner's denial of his application for disability insurance 

benefits (DIB). Plaintiff argues that the case should be remanded for an award of benefits, or, 

alternatively, for further proceedings. After review of the record and the parties' submissions, the 

decision of the Commissioner is reversed and remanded for further proceedings. 

BACKGROUND 

On June 29, 2010, plaintiff filed an application for DIB, alleging disability as of May 10, 

2010. Tr. 37. His application was denied initially and on reconsideration. On June 10, 2013, 

plaintiff and a vocational expe1t (VE) appeared and testified before an Administrative Law Judge 

(ALJ). Tr. 61-111. On August 5, 2013, the ALJ issued a decision finding plaintiff not disabled 

within the meaning of the Act. Tr. 34-60. The Appeals Council denied plaintiffs request for 

review, rendering the ALJ's decision as the final decision of the Commissioner. Tr. 1-7. Plaintiff 

now seeks judicial review. 

Born in 1961, plaintiff was forty-eight years old as of the alleged onset date of disability, 

with a high school education and past relevant work as a brick mason. Tr. 52. He alleges 

disability since May 10, 2010 due to epilepsy, seizures, migraine headaches, and back and 

shoulder pain. 

2 - OPINION AND ORDER 


Case 3:15-cv-01495-AA Document 19 Filed 09/29/16 Page 2 of 12
STANDARD OF REVIEW 


The comi must affirm the Commissioner's decision if it is based on proper legal 

standards and the findings are suppmied by substantial evidence in the record. Hammock v. 

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It 

means such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations 

omitted). The court must weigh "both the evidence that supports and detracts from the 

[Commissioner's] conclusions." lvfartinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 

Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is 

rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

COMMISSIONER'S DECISION 

The Commissioner evaluated plaintiffs allegation of disability pursuant to the relevant 

five-step evaluation process. See 20 C.F.R. § 404.1520(a)-(g). 

At step one, the ALJ found that plaintiff had not engaged in "substantial gainful activity" 

since the alleged onset date of disability. Tr. 40; 20 C.F.R. § 404.1520(b). 

At steps two and three, the ALJ found that plaintiff has severe impahments of 

degenerative disc disease, seizures, and headaches, but that plaintiffs impainnents did not meet 

or equal the severity of a listed impairment which is considered "to be severe enough to prevent 

an individual from doing any gainful activity, regardless of his or her age, education, or work 

experience." Tr. 40-42; 20 C.F.R. § 404.1525(a); id. 404.1520(c),(d). 

The ALJ then assessed plaintiffs residual functional capacity (RFC) and found that 

plaintiff could perform light work, with limitations on balancing, stooping, kneeling, crouching, 

3 - OPINION AND ORDER 


Case 3:15-cv-01495-AA Document 19 Filed 09/29/16 Page 3 of 12
crawling, and climbing. Tr. 42; 20 C.F.R. § 404.1520(e). The ALJ also found that plaintiff 

"should avoid even moderate exposure to hazards such as heights and dangerous moving 

machinery." Tr. 42. Based on these findings, the ALJ found that plaintiff could not perform his 

past relevant work at step four. Tr. 52; 20 C.F.R. § 404.1520(f). 

The ALJ proceeded to step five, where the burden of proof shifts to the Commissioner to 

demonstrate that the claimant is able to perform work that exists in the national economy, after 

taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F.R. § 

404. l 520(g). Relying on the testimony of the VE, the ALJ found that plaintiff could perform 

other work as a mail sorter, small product assembler, and office helper. Tr. 53. Accordingly, the 

ALJ found plaintiff not disabled under the Act. 

DISCUSSION 

Plaintiff argues that the ALJ erred by failing to find that his seizure disorder met or 

equaled listing 11.03. Plaintiff also contends that the ALJ erred by rejecting the opinions of two 

treating physicians, plaintiffs testimony, and the statements of twenty-two lay witnesses, 

including plaintiffs wife. As a result, plaintiff maintains that the ALJ's RFC assessment is 

invalid and that he should be deemed disabled under the Act. 

The listings identify impaitments that are considered presumptively disabling. See 20 

C.F.R. §§ 404.1520(d), 404.1525(a). A claimant may establish disability at step three by showing 

that a severe impairment meets the criteria for a listing, or that the impairment is accompanied by 

symptoms that are equal in severity to those described in a listing. Id. § 404.1526(a). In deciding 

whether a claimant's impairment meets or equals a listed impaim1ent, the ALJ must provide 

more than a perfunctory analysis of the listing and must discuss the pertinent medical evidence. 

4 - OPINION AND ORDER 


Case 3:15-cv-01495-AA Document 19 Filed 09/29/16 Page 4 of 12
Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) ("An ALJ must evaluate the relevant evidence 

before concluding that a claimant's impairments do not meet or equal a listed impainnent. A 

boilerplate finding is insufficient to supp01i a conclusion that a claimant's impainnent does not 

do so"). 

To meet listing 11.03 for non-convulsive epilepsy, a claimant's impainnent must be 

"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." 20 C.F.R. § 404, Sbpt. P, Appx. 1, § 11.03. The seizures must include 

"alteration of awareness or loss of consciousness and transient postictal manifestations of 

unconventional behavior or significant interference with activity during the day." Id The record 

must include "at least one detailed description of a typical seizure," and the "testimony of 

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

professional observation is not available." Id § 11.00A. A description from a third party such as 

a family member is acceptable. Id.; SSR 87-6. 

In this case, the record reflects that plaintiff suffered three grand ma! seizures in the 

presence of medical providers in May 2011 and October 2012. E.g., Tr. 400-01, 409, 493, 852­

53. I find it unclear whether plaintiff alleges additional grand ma! seizures. Plaintiff and his wife 

also described other seizures, dubbed "pseudoseizures," that plaintiff experiences several times 

per week and sometimes per day. Tr. 70-71, 253, 305-06. Plaintiff and his wife describe these 

seizures as involving lip-smacking, staring "into space," slow and slurred speech, and occasional 

jerking head movements. They also state that he experiences severe anxiety, fatigue and 

confusion afterward. Tr. 71, 253, 305. Medical providers and family members have also 

5 - OPINION AND ORDER 


Case 3:15-cv-01495-AA Document 19 Filed 09/29/16 Page 5 of 12
witnessed plaintiffs pseudoseizures. E.g., Tr. 306, 786-88, 817, 824. 1 Dr. Cabahug, a treating 

neurologist, opined that plaintiffs severe anxiety triggers his pseudoseizures. Tr. 483, 487, 654. 

The ALJ found plaintiffs seizure disorder to be severe and imposed certain functional 

limitations imposed by Dr. Cabahug. Tr. 46. However, the ALJ found that plaintiffs seizure 

disorder did not meet the listings, stating, "I have reservations about the credibility of reporting 

concerning the frequency of the seizures and conclude that the severity of the claimant's seizures 

does not meet or medically equal the criteria of section 11.02 or 11.03." Tr. 42. The ALJ made 

no other findings at step three. 

Later in the decision, the ALJ found that the record included "some inconsistencies 

regarding the frequency of seizures repo1ied." Tr. 44. Specifically, the ALJ noted that treating 

neurologist Dr. Milford rep01ied that plaintiff had daily seizures, while Dr. Cabahug reported 

that plaintiff had seizures at least three to five times per week; the ALJ found that the differing 

repo1is suggested that "these providers were given conflicting information." Tr. 44, 648-655. The 

ALJ also found that a March 2012 medical rep01i of pseudoseizures two or three times per day 

conflicted with plaintiffs testimony of seizures three or four times per week. Tr. 44, 70-71, 817. 

Similarly, the ALJ rejected plaintiffs wife's statements regarding the frequency of his seizures, 

finding them inconsistent with plaintiffs reports. Tr. 49. In other words, the ALJ rejected each 

and every opinion, report, and statement regarding the frequency of plaintiffs seizures and 

cursorily found that plaintiffs seizures did not meet listing 11.03; the ALJ did so without 

resolving the noted inconsistencies or making factual findings as to the frequency or severity of 

plaintiffs seizures. 

1 Page 824 of the transcript ofrecord is the first page of a medical rep01i dated March 24, 

2012; page 817 is the second page ofthe same report. 

6 - OPINION AND ORDER 

Case 3:15-cv-01495-AA Document 19 Filed 09/29/16 Page 6 of 12
Likewise, the ALJ did not discuss or explain why the combined effects of plaintiffs 

seizures, headaches, and anxiety did not equal listing 11.03. In particular, the ALJ failed to 

consider the effects of plaintiffs pseudoseizures and discounted their severity. In finding 

plaintiffs seizures not disabling, the ALJ noted that Dr. Cabahug attributed plaintiffs 

pseudoseizures to anxiety, and that medical reports similarly indicated that plaintiffs seizures 

were a "form of pseudoseizure or conversion reaction rather than a grand ma! seizure." Tr. 44­

45. The ALJ further discounted the effects of plaintiffs pseudoseizures when she noted that a 

reviewing physician did not consider evidence of plaintiffs pseudoseizures: "I doubt that 

knowing the majority of seizures were pseudoseizures rather than epileptic seizures would lead 

the doctor to opine a more restrictive functional capacity." Tr. 46. 

However, the ALJ is not a medical expe1i, and in making this finding, the ALJ 

improperly substituted her own interpretation of the medical evidence for the opinion of a 

medical professional. Tackett v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999); Jackson v. 

Comm 'r Soc. Sec. Admin., 2016 WL 1670963, at *4 (D. Or. Apr. 26, 2016) ("It is enor for an 

ALJ to substitute his own judgment for that of a medical professional."). Moreover, m 

dismissing plaintiffs pseudoseizures and their severity, the ALJ considered the record m 

piecemeal fashion, cherry-picking evidence that supported the denial of benefits, rather 

considering the evidence of record as a whole. See Leingang v. Colvin, 2015 WL 4623696, at *8 

(E.D. Wash. Aug. 3, 2015) ("Moreover, the ALJ rejected the various medical opinions 

piecemeal, without considering the fact that their consistency with each other should have 

bolstered the reliability of the whole."). 

7 - OPINION AND ORDER 


Case 3:15-cv-01495-AA Document 19 Filed 09/29/16 Page 7 of 12
The Commissioner likewise discounts plaintiff's pseudoseizures, remarking that 

plaintiff's own recitation of the record describes only three seizures in a two-year period. Def.'s 

Brief at 4. While that may be true with respect to plaintiff's grand ma! or convulsive seizures, Tr. 

400-15, 846-54, the record reflects reports of frequent pseudoseizures witnessed by plaintiff's 

wife, his family members, and medical providers. Tr. 253, 305-06, 783-87, 817, 816, 824. 

Moreover, medical records explain that pseudoseizures "look a lot like epileptic seizures," with 

"loss of consciousness" or "twitching or jerking." Tr. 788. Though "pseudoseizures originate in 

the mind, they are real to the person having the episode. They can be frightening and cause the 

patient to feel out of control." Tr. 788. 

In sum, plaintiff's pseudoseizures are documented by medical reports and third-party 

witnesses, and two treating physicians found numerous limitations as a result of the seizures. 

Yet, based on this record, it is unclear whether and to what extent the ALJ took plaintiff's 

pseudoseizures into account when determining whether his seizures met or equaled listing 11.03. 

Moreover, I find significant the ALJ's failure to make factual findings as to the severity and 

frequency of plaintiff's seizures. Ifplaintiff's pseudoseizures occur as described more than once 

per week, he could be presumptively disabled under listing 11.03; if plaintiff's pseudoseizures 

occur more than twice per month, he is unable to sustain competitive employment according to 

the VE's testimony. The VE testified that employers in the competitive workplace would not 

tolerate frequent disruptions or more than two absences per month. Tr. 108-09. 

As a result, the ALJ' s cursory statement at step three "is inadequate and warrants 

remand." Barnett v. Barnhart, 381 F.3d 664, 670 (7th Cir. 2004) ("All that the ALJ ever said is 

that he disbelieved Barnett's testimony concerning the number of seizures she was experiencing; 

8 - OPINION AND ORDER 

Case 3:15-cv-01495-AA Document 19 Filed 09/29/16 Page 8 of 12
he never affomatively determined how many seizures he believed Barnett actually experienced. 

And, thus, we cannot discern if the ALJ ever considered whether Barnett's impairment equals 

Listing 11.03 despite her assumed lack of credibility."). 

The ALJ also rejected the opinions of plaintiffs treating neurologists, Drs. Cabahug and 

Milford in finding plaintiffs seizures not disabling. Dr. Cabahug completed a seizure 

questionnaire and indicated that plaintiff experienced generalized epileptic and pseudoseizures, 

and that plaintiffs severe anxiety triggered his pseudoseizures. Dr. Cabahug opined that plaintiff 

suffered from seizures approximately three to five times a week, if not more; that plaintiff 

experiences confusion, exhaustion, irritability, muscle strain, and paranoia for several minutes 

after a seizure; and that plaintiffs medication caused lack of aletiness. Tr. 652-54. Dr. Cabahug 

opined that plaintiff would require extra supervision at a workplace, his seizures likely would 

disrupt coworkers, and he likely would be absent from work more than four days per month. Tr. 

653-55. 

The ALJ accepted cetiain limitations noted by Dr. Cabahug in earlier medical reports and 

gave them "significant weight." Tr. 46. At the same time, the ALJ rejected Dr. Cabahug's 

opinion that plaintiff likely would be absent from work more than four days per month and could 

not return to work. The ALJ found that the ability to work is an issue reserved to the 

Commissioner and that Dr. Cabahug's opinion on plaintiffs likely absences was "mere 

speculation," with no supporting rationale. Tr. 47. The ALJ did not discuss Dr. Cabahug's 

statement that plaintiff suffered from pseudoseizures three to five times per week, other than 

previously noting the inconsistent reports of seizure frequency. The ALJ also failed to address 

the limitations noted by Dr. Cabahug that suppotied his opinion, including confusion, 

9 - OPINION AND ORDER 


Case 3:15-cv-01495-AA Document 19 Filed 09/29/16 Page 9 of 12
exhaustion, initability, muscle strain, paranoia, and lack of ale1iness caused by plaintiffs 

seizures and medication. Tr. 653-54. The ALJ also failed to discuss Dr. Cabahug's opinion that 

plaintiffs seizures would be disruptive to co-workers and his anxiety would prevent him from 

performing even a "low-stress" job. Tr. 654-55. Given that Dr. Cabahug was a treating 

neurologist who saw and examined plaintiff on several occasions, the ALJ did not provide 

legally sufficient reasons to discount Dr. Cabahug's opinion regarding the frequency of 

plaintiffs seizures or their effect on plaintiffs ability to work. 2 Orn v. Astrue, 495 F.3d 625, 632 

(9th Cir. 2007) (an ALJ must provide either clear and convincing or specific and legitimate 

reasons to reject the opinion of a treating physician, which is generally given more weight than 

that of a non-treating physician). 

Dr. Milford likewise answered a seizure questionnaire and indicated that plaintiff had 

daily seizures and experienced confosion, exhaustion, and irritability afterward. Like Dr. 

Cabahug, Dr. Milford stated that plaintiffs seizures likely would disrupt co-workers and require 

additional supervision of him, and that plaintiff could not sustain employment. Tr. 648-51. The 

ALJ rejected Dr. Milford's opinion primarily because he had treated plaintiff for only two 

months and had not witnessed a seizure. The ALJ fo1iher stated that the evidence did not support 

the frequency of seizures Dr. Milford repmied. Tr. 47. Even if Dr. Milford did not witness a 

seizure, other medical providers and family members did; and the regulations accept reports from 

third paiiies other than medical providers. 20 C.F.R. § 404, Shpt. P, Appx. 1, § 11.00A; SSR 87­

2 The ALJ also noted that the signature on Dr. Cabahug's seizure report looked different 

from his signature on other medical repmis. Tr. 47. However, no evidence suggests that Dr. 

Cabahug did not complete the seizure report, and another medical repo1i by Dr. Cabahug 

includes the same signature. Tr. 498. To the extent the ALJ had concerns about the authenticity 

of the report, she had a mechanism to address it by contacting Dr. Cabahug for confirmation or 

clarification. E.g., 20 C.F.R. § 404.1520b(c). 

10 - OPINION AND ORDER 

Case 3:15-cv-01495-AA Document 19 Filed 09/29/16 Page 10 of 12
6. Further, contrary to the ALJ's statement, the record includes reports of daily pseudoseizures. 

Tr. 305-06, 816-17, 824, 846-54. 

Plaintiff maintains that if the court credits the opinions of Drs. Cabahug and Milford, the 

record establishes that plaintiff has pseudoseizures more than once per week and that his 

seizures, combined with his related headaches and anxiety, equal if not meet listing 11.03. 

Accordingly, plaintiff argues that the case should be remanded for benefits. However, the record 

contains various and differing reports about the frequency of plaintiffs pseudoseizures, and it is 

not this court's role to resolve inconsistencies in the record. While I note that even a conservative 

estimate of plaintiffs pseudoseizures would render plaintiff unable to sustain full-time 

employment according to the VE, I cannot find that "the record has been fully developed and 

further administrative proceedings would serve no useful purpose." Dominguez v. Colvin, 808 

F.3d 403, 408 (9th Cir. 2015). 

Plaintiff also argues that the ALJ erred by finding him not credible and by rejecting the 

lay statements of twenty-two witnesses, including plaintiffs wife. The ALJ found plaintiffs 

allegations less than credible because of his daily activities, his one-time use of a power saw, and 

the varying reports of his seizures. Tr. 44-46. Plaintiff does not allege that his headaches and 

seizures prevent him from doing any and all activity, and his daily activities are not inconsistent 

with his allegations. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (a claimant need not 

be "incapacitated" to establish eligibility for benefits); Tate v. Apfel, 167 F.3d 1191, 1196-97 

(8th Cir. 1999) ("[C]laimants may have a disabling seizure disorder and still be able to perfo1m 

some daily home activities."). As plaintiff points out, migraines and twice weekly seizures would 

not necessarily interfere with watching his daughter play softball, occasional gardening or 

11 - OPINION AND ORDER 

Case 3:15-cv-01495-AA Document 19 Filed 09/29/16 Page 11 of 12
volunteer work, but they would interfere with sustained employment under the listings and 

according to the VE. Tr. 46, 108-09. Fmiher, plaintiffs one-time and admittedly ill-advised use 

of a saw does not justify the complete rejection of his seizure allegations. Tr. 45, 90. Finally, as 

explained above, it is unclear whether the ALJ considered plaintiffs pseudoseizures when 

rejecting his allegations and the lay witness statements. Therefore, reconsideration of this 

evidence is appropriate on remand. 

On remand, the ALJ shall consider the medical record as a whole and further develop the 

record as necessary. The ALJ shall make findings regarding the frequency and severity of 

plaintiffs seizures and related symptoms, including pseudoseizures and migraine headaches, and 

their effect on plaintiffs ability to work. The ALJ also shall reconsider plaintiffs testimony and 

the lay witness statements, particularly those ofplaintiffs wife. 

CONCLUSION 

The ALJ's finding that plaintiff was not disabled under the Act is not supported by 

substantial evidence in the record. Accordingly, the decision of the Commissioner is 

REVERSED and REMANDED for further administrative proceedings. 

IT IS SO ORDERED. 

DATED thisc!Jf/day of September, 2016. 

LrlL~ Ann Aiken 


United States District Judge 


12 - OPINION AND ORDER 


Case 3:15-cv-01495-AA Document 19 Filed 09/29/16 Page 12 of 12