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Brooks v. Colvin

United States District Court, D. Colorado

July 21, 2015

DAVID A. BROOKS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



Plaintiff, David Brooks, appeals from the Social Security Administration (“SSA”) Commissioner’s final decision denying his application for disability insurance benefits, filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Jurisdiction is proper under 42 U.S.C. § 405(g). Oral arguments will not materially aid in the resolution of this appeal. After consideration of the parties’ briefs, as well as the administrative record, I AFFIRM the SSA Commissioner’s final order.


Plaintiff seeks judicial review of the Commissioner’s decision denying his December 2010 application for Social Security disability insurance benefits, claiming he became disabled on September 15, 2008. [Administrative Record (“AR”) 137-38] The application was initially denied at the administrative level. [AR 70-72] An Administrative Law Judge (“ALJ”) subsequently conducted a hearing on July 12, 2012, and issued a written ruling on July 24, 2012, denying Plaintiff’s application on the basis that Plaintiff was not disabled because he was capable of performing his past relevant work as a baker (Step Four). [AR 37-57, 20-30] On August 15, 2013, the SSA Appeals Council denied Plaintiff’s request for reconsideration, making the denial final for the purpose of judicial review. [AR 1] Plaintiff timely filed his complaint with this court seeking review of the SSA Commissioner’s final decision.


Plaintiff was born on July 8, 1960, and was 51 years old on the date he was last insured (on December 31, 2011) and was 52 years old at the time of the ALJ’s decision. [AR 40, 137, 145] He testified that he obtained a twelfth grade education. [AR 40, 197] His prior work history consists of: cabinet maker/installer, furnace and air condidioning (HVAC) installer, and a baker at a grocery store. [AR 171-76] Plaintiff alleges that he became disabled on September 15, 2008. [AR 20, 137]

The medical records reveal that Plaintiff has a history of epilepsy since childhood, as well as low back pain and high blood pressure. [AR 290]

Prior to his alleged onset date, in March and April 2007, Plaintiff experienced two epileptic seizures during which he suffered injuries. [AR 271] In December of 2007, it appears Plaintiff was not compliant with his anti-seizure medication (Dilantan) and his anti-hypertension medication. [AR 267-71] Plaintiff’s Dilantin was lower than therapeutic range when it was measured on July 18, 2008. [AR 267] On July 30, 2008, Plaintiff suffered a tonic-clonic seizure at work and was taken to the emergency room at Exempla St. Joseph Hospital. [AR 254-62] Plaintiff admitted to alcohol abuse and non-compliance with his medications. [AR 254] His Dilantan was again measured below therapeutic range. [AR 255, 267] At his follow-up with his treating physician assessed “seizure disorder related to alcoholism.” [AR 267]

After his alleged onset date, Plaintiff suffered another seizure on June 9, 2010, and received treatment in the emergency room at the University of Colorado Hospital. [AR 240-47] At that time Plaintiff admitted to daily alcohol use and Dilantin non-compliance. The diagnositic impressions of Kristen Nordenholtz M.D., the attending physician, was alcohol withdrawal seizure with sub-therapudic anti-convulsant medication. [AR 240] A CT scan of his head, to establish the cause of a headache, was normal. [AR 239] Plaintiff was advised to take Dilantin for seizures and Tranxene to avoid withdrawal from alcohol cessation. [AR 240-47]

Thereafter, on July 12, 2010, Plaintiff established care at University of Colorado Hospital Neurology Clinic. [AR 236-38] At that time Plaintiff told Laurence Williams, M.D. that he was noncompliant with his medications, that he had a problem with alcohol, and his wife no longer let him drink during the week. [AR 236] Plaintiff’s Dilantin level was excessively high at this visit. [AR 249] Dr. Williams noted that Plaintiff’s alcohol was “likely a factor [in his seizures] but clearly not the whole story” based on his family history. [AR 238] Dr. Williams’ assessment was: benign essential hypertension; seizure disorder; and alcohol abuse. [AR 237]

During his next office visit on August 9, 2010, Plaintiff advised Dr. Williams he was drinking 2 beers a day, and that he was willing to stop but needed something to treat the shakes that typically last 2-3 days with alcohol cessation. [AR 234] Dr. Williams noted that he believed alcohol “hasn’t brought on [the] seizures – that is a separate issue.” [AR 234] On August 30, 2010, Plaintiff reported to Dr. Williams that he had stopped drinking, and he continued to take extended release Dilantin. [AR 230] When Plaintiff returned to Dr. Williams on September 20, 2010, he advised him that he had generally been abstaining from alcohol. [AR 228]

Plaintiff then saw Laura Strom, M.D., for an evaluation on October 8, 2010, where he reported 3 to 4 seizures per year for the past few years. [AR 225-26] Plaintiff reported drinking only on the weekends, but Dr. Strom noted that it was unclear as to how much. [AR 226] Her examination of Plaintiff found a full range of motion in Plaintiff’s back, but some limitation in the lumbar spine due to pain with “palpable tenderness in the lumbar region, left greater than right.” [AR 226] A sensory exam was intact, except a pattern at L4 and L5 where there was some subjective decrease in pinprick. [AR 227] Gait testing was normal except Plaintiff had difficulty with tandem gait and stabilized himself by using handholds. [AR 227] EEG testing was normal. [AR 224-27] Dr. Strom added Lamictal/Lamotringine to his Dilantin to control Plaintiff’s seizures. [AR 227]

On November 17, 2010, Plaintiff was seen by a nurse practitioner, Carol Hennessy, in Neurology at the University of Colorado Hospital. [AR 221-22] Her impression was generalized tonic-clonic seizures, with no breakthrough seizures since September, and a slow transition from Dilantin to Lamictal. [AR 221] Her neurological evaluation showed he was alert, oriented and had normal, spontaneous speech, with a somewhat depressed mood. [AR 221] Plaintiff had several missed steps on tandem walking. [AR 222] An EEG was normal with no evidence of epileptiform activity. [AR 222]

During his February 16, 2011 visit with Ms. Hennessy, Plaintiff reported having a seizure on January 13, 2011, after he had stopped taking the Dilantan on his own. [AR 284] At that visit Plaintiff reported a little dizziness and some blurred vision. [AR 284] He also reported drinking 2 beers on both Saturday and Sunday. [AR 284] Ms. Hennessy reported that he was pleasanly cooperative and was in no acute distress, but had a somewhat depressed affect. [AR 284] He showed a slightly wide-based gait with some veering side to side, especially on turning, and was completely unable to tandem walk. [AR 285]

On February 11, 2011, Stuart Lerman, M.D., a nonexamining physician with the State agency, reviewed Plaintiff’s medical records and opined that he had a severe primary impairment of epilepsy, but no medically determinable impairment related to his low back pain as there was no objective medical evidence of such impairment. [AR 58-68] He further opined that Plaintiff had the RFC for medium work, with additional postural and environmental limitations due to seizure precautions. [AR 60-61]

During his next visit with Ms. Hennessy on April 13, 2011, Plaintiff continued to transition off Dilantin and to Lamictal. [AR 282] His primary complaint at this visit was chronic back pain that was getting worse, but he had not followed up with any testing or treatment. [AR 282-83] Physical examination revealed a somewhat depressed appearing man who was again noted to have ...

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