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Orozco v. Commissioner of Social Security Administration

United States District Court, D. Oregon, Eugene Division

July 18, 2014

LENYA M. OROZCO, Plaintiff,


JANICE M. STEWART, Magistrate Judge.


Plaintiff, Lenya Orozco, ("Orozco"), seeks judicial review of the final decision by the Social Security Commissioner ("Commissioner") denying her applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("SSA"), 42 USC §§ 401-433, and Supplemental Security Income ("SSI") under Title XVI of the SSA, 42 USC §§ 1381-1383f. This court has jurisdiction to review the Commissioner's decision pursuant to 42 USC § 405(g) and § 1383(c)(3). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c). For the reasons set forth below, the Commissioner's decision is reversed and remanded for an immediate award of benefits.


Orozco protectively filed for DIB and SSI on September 16, 2009, alleging a disability onset date of March 24, 2008. Tr. 215-21.[1] Her applications were denied initially and on reconsideration and she requested a hearing. Tr. 133-38, 157-64, 168-76. On February 17, 2012, Administrative Law Judge ("ALJ") James Yellowtail conducted a hearing. Tr. 87-132. Orozco, her husband, Raul David Orozco Fuentes ("Fuentes"), and a Vocational Expert ("VE") testified. Tr. 87. The ALJ issued a decision on March 8, 2012, finding Orozco not disabled. Tr. 10-31. The Appeals Council denied a request for review on January 24, 2014. Tr. 1-9. Therefore, the ALJ's decision is the Commissioner's final decision subject to review by this court. 20 CFR §§ 404.981, 416.1481.


Born in 1973, Orozco was 39 years old at the time of the hearing before the ALJ. Tr. 94. She graduated from high school, has some college education, and has worked as a human resources clerk, stock clerk, garment sorter, and pricer. Tr. 94-95, 124-126, 268-79. Orozco alleges that she became unable to work on March 24, 2008, due to the combined impairments of epilepsy, a cognitive disorder, major depressive disorder, and a general anxiety disorder. Tr. 237-38.

I. Medical Records

On October 30, 2007, Orozco began seeing Physician Assistant ("PA") JoDee R. Rundall. Tr. 478. Orozco related a history of seizures from birth and a history of anxiety and depression in her 20's, but was not having problems with depression or anxiety since becoming clean and sober in 1999. Id. PA Rundall prescribed Dilantin and referred Orozco to neurologist Sydney Piercey, MD. Tr. 480.

On January 15, 2008, Orozco reported worsening depression to PA Rundall, but no seizures since the October 2007 visit. Tr. 476. PA Rundall prescribed Celexa. Tr. 477.

On February 12, 2008, Dr. Piercey examined Orozco. Tr. 381. Orozco reported she began having seizures in early childhood and never had full control of them. Id. She reported two generalized seizures[2] in the past year while at work, one in July and the other in September 2007, and about one generalized seizure a month at home. Id. Orozco complained of difficulty with short-term memory and "assimilating new memory." Id. Dr. Piercey noted Orozco was mildly distracted. Tr. 382. She recommended slowly removing Orozco from Dilantin and prescribed Topamax instead. Tr. 383.

Orozco saw Dr. Piercey again on April 10, 2008. Tr. 374. In the interim, Orozco had been in telephone contact with Dr. Piercey and reported agitation with the Topamax and continuing seizures. Id. Dr. Piercey discontinued the Topamax and started Keppra and Zonegram. Id. By the April 10 appointment, Orozco stated she had not suffered a seizure in the last 20 days. Id. Orozco's electroencephalogram ("EEG") was abnormal with an epileptogenic focus most prominent in the left temporal region. Id.

On April 28, 2008, Orozco saw PA Rundall, and reported "a lot of confusion and fatigue" because of seizures that were affecting her work. Tr. 472. Orozco reported two generalized seizures in the past two months and partial seizures daily. Id. She had missed four days of work because of the seizures. Id. Her depression and anxiety were improved after Dr. Piercey had increased her Celexa dosage a month prior. Id. PA Rundall continued Orozco's prescriptions and recommended a follow-up with Dr. Piercey. Tr. 473.

Orozco saw Dr. Piercey the next day. Tr. 372. Orozco had not suffered any further generalized seizures, but was having partial seizures, was fatigued and confused, had lost weight, and had no appetite. Id. Dr. Piercey adjusted her medications. Tr. 372-73.

On May 7, 2008, Orozco reported to Dr. Piercey no generalized seizures since the prior visit, but had suffered a few partial seizures which she described as a sensation that her eyes are moving. Tr. 370. She continued to have some fatigue and confusion, but had improved in the past week. Id. She was able to continue working at reduced hours. Id.

On June 4, 2008, Orozco reported to Dr. Piercey that she suffered a tonic-clonic seizure on May 14 and continued to have partial seizures daily which occurred when she concentrated. Tr. 388. Orozco was unable to work any longer because of the seizures and requested a six-week medical leave of absence. Id. Dr. Piercey noted her mood was depressed and tearful, primarily because of the seizures. Id. An ambulatory EEG on May 29, 2008, was abnormal, showing activity "typically seen in a patient with a history of idiopathic generalized epilepsy." Tr. 402-03. Orozco had reported to Dr. Piercey that she suffered two of her typical simple seizure events during the ambulatory EEG, and the EEG recorded events that "did at least partially correlate with the clinical events of feeling shaky and feeling partial seizures.'" Tr. 388, 403.

On June 20, 2008, at Dr. Piercey's request, otolaryngologist Nick C. Benton, MD, examined Orozco and discussed the implantation of a vagus nerve stimulator. Tr. 378. He advised that the stimulator could be quite helpful to control seizures and potentially reduce the need for medications. Tr. 379. On July 1, 2008, Dr. Benton surgically implanted the stimulator. Tr. 357.

On July 11, 2008, before the stimulator was activated, Orozco reported a recent generalized seizure to Dr. Piercey. Tr. 363. At that appointment, Dr. Piercey activated the stimulator. Id. On July 28, 2008, Orozco reported another generalized seizure, and Dr. Piercey adjusted the stimulator. Tr. 365.

On August 11, 2008, Orozco reported having a generalized seizure on August 1, 2008, and continued partial seizures, though less frequently. Tr. 376. She felt using a magnet helped with the partial seizures. Id. Dr. Piercey again adjusted the stimulator. Tr. 377.

Orozco next saw Dr. Piercey five months later on January 19, 2009, and reported no new generalized seizures since August 1, 2008. Tr. 386. She continued to have auras, but nothing to suggest a partial seizure with alteration of consciousness or loss of motor control. Id. She was enrolled in Linn Benton Community College and school was going well. Tr. 387.

Six months later, on July 10, 2009, Orozco saw PA Rundall for complaints of anxiety and insomnia. Tr. 462. She was experiencing stressors at home as her three-year-old son had been diagnosed with Type I Diabetes. Id.

At a follow-up examination on August 26, 2009, by Dr. Piercey, Orozco reported no generalized seizures since August 2008. Tr. 390. However, she was depressed and had panic attacks about three times a month. Tr. 392. Dr. Piercey prescribed Prozac and tapering off Celexa. Tr. 396.

On October 9, 2009, Orozco sought treatment at urgent care for nausea and reported two seizures in the preceding week. Tr. 454. On October 16, 2009, Orozco reported to Dr. Piercey that the Prozac had helped her depression, but that she had five seizures in the past couple of weeks which were interfering with her school. Tr. 523. Dr. Piercey reprogrammed her stimulator. Tr. 524. He discontinued Prozac which "most likely" had caused the seizures. Tr. 523-24. Dr. Piercey noted Orozco was applying for social security disability which she felt was "reasonable given the frequency and intensity of her refractory epilepsy." Tr. 524.

On October 11, 2009, Dr. Piercey wrote a letter stating that Orozco suffered from refractory (treatment resistant) epilepsy, released her to return to work or school on October 19, and asked that she be excused for all absences October 11-16. Tr. 517. She restricted Orozco from using heavy machinery or ladders and attendance at work or school when she had had a seizure in the past 24 hours or was having moderate to severe side effects from medication. Id. If her employer could not provide work within these restrictions, Dr. Piercey authorized temporary disability. Id. She expected these restrictions to be permanent. Id.

On October 30, 2009, Orozco reported one generalized tonic-clonic seizure since October 11. Tr. 521. Orozco reported that even one seizure was quite disruptive, especially with fatigue and confusion. Id. Dr. Piercey adjusted the stimulator and prescribed Neurontin. Id.

On December 22, 2009, Orozco reported to Dr. Piercey that she had no seizures in November, but had two in December. Tr. 611. She said it seemed the Neurontin had helped, but that when she ran out and could not afford to refill the prescription, she suffered a seizure the next day. Id.

On January 27, 2010, psychologist J. Mark Wagener, PhD, examined Orozco at the request of the agency. Tr. 557. Orozco reported that due to her seizures she was on medical leave from her job and had dropped out of classes at the community college. Id. She stated that the seizures made her depressed and that the "medications have a lot of side effects." Id. She reporting having nine seizures in October and two in November and that the medication and vagus nerve implant did not control the seizures. Id. She also told him she had scarring on her brain and that her memory was affected. Id.

Dr. Wagener noted Orozco's short- and long-term memory appeared to be intact. Tr. 559. Her ability to maintain concentration was fair. Id. Her ability to vocalize abstractions was poor and her response latencies were slow. Id. Her mood was mildly depressed; she did not appear to be exaggerating symptoms; and the information provided appeared consistent with observed behavior. Id. Testing revealed an average range of intellectual functioning, with a statistically significant difference between Verbal IQ and Performance IQ. Id. Orozco's working memory was statistically significantly lower than both verbal comprehension and perceptual organization. Id. Her performance on the Trail Making test was slow and suggestive of abnormal brain functioning. Tr. 560. Dr. Wagener diagnosed Orozco with Major Depressive Disorder and Cognitive Disorder NOS. Id. He opined that Orozco's "ability to sustain concentration and maintain attention and to persist at tasks would be significantly impaired by depressive symptoms." Id.

On March 8, 2010, Dr. Piercey again examined Orozco. Tr. 613. Orozco reported no seizures in January, but one on February 4 and another on March 6. Id. She had "much depression" with the seizure in February and some suicidal thoughts. Id. She stated she was compliant with medication and not suffering side effects from the Neurontin and Zonegram. Id. Dr. Piercey noted increased depressive symptoms and referred Orozco for psychiatric treatment. Tr. 614.

On March 11, 2010, psychologist Joyce Fusek, PsyD, examined Orozco. Tr. 600. Orozco reported suffering from depression most of her life which had become more prominent in the prior several months. Id. She had to drop out of school because she could not concentrate and had a lot of anxiety and depression around her son's illness. Id. Despite the Celexa prescribed by Dr. Piercey, Orozco indicated she "is continuing to feel depressed including some suicidal thinking, low mood, difficulty coping, feeling overwhelmed, suicidal ideation although no intent and poor functioning in general." Id.

Dr. Fusek conducted a personality inventory which indicated "at least a moderate level of pathology" characterizing Orozco's overall personality organization. Tr. 602. Orozco's "foundation for effective intrapsychic regulation and socially acceptable interpersonal conduct appeared sufficient or incompetent." Id. Her profile suggested a "pervasive apprehensiveness, intense and variable moods, prolonged periods of dejection and self-deprecation, and periods of withdrawal, isolation, and unpredictable anger." Id. Dr. Fusek noted the test results were valid and suggested that Orozco answered in an honest manner. Tr. 601. Dr. Fusek diagnosed Major Depression (recurrent, severe without psychotic features); Generalized Anxiety Disorder; Psychoactive substance abuse, NOS; and Depressive Personality Disorder, with borderline and dependent traits. Tr. 604. Dr. Fusek opined that the test strongly suggested a great deal of clinical depression, anxiety, and that Orozco would need weekly, long-term treatment, and psychiatric management of medication to stabilize her symptoms. Id.

During a March 30, 2010 psychotherapy session, Orozco reported continuing to feel fairly overwhelmed, having a hard time getting out of bed, being very depressed, and unable to do a lot other than watch her son at which she failed at times by falling asleep. Tr. 596. Dr. Fusek noted that Orozco appeared anxious. Id. At her April 16, 2010 session, Orozco's mental status was still anxious, and Dr. Fusek worked with her on coping strategies. Tr. 595.

On April 13, 2010, PA Rundall examined Orozco for complaints of left arm pain and popping of her left shoulder. Tr. 675. Orozco reported "bad depression with anxiety attacks" three times a week. Id. Her last grand mal seizure was in March, but she continued to experience little partial seizures every three days. Id. PA Rundall noted deteriorated and worsening depression/anxiety and recommended psychiatric treatment. Tr. 677.

On April 26, 2010, Orozco reported to Dr. Piercey she was still having about one generalized seizure a month, and "little seizures" without alteration of consciousness or loss of motor control. Tr. 615. She was compliant with medication, but stated that she would be losing her insurance ...

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