Belinda Flanery v. Shirley S. Chater, Commissioner of the Social Security Administration

ALSOP, District Judge,

dissenting.

Because I do not agree with the majority that the substantial evidence in the record shows that Flanery meets all of the requirements under Section 11.03 of the Listings, I respectfully dissent. As the majority notes, Listing 11.03 lays down the requirements for Epilepsy-Minor Motor seizures. It provides:

'Epilepsy-Minor motor seizures (petit mal, psychomotor, or focal), documented by EEG and 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.

As the majority points out there is evidence of seizures documented by abnormal EEG results, however, the substantial evidence on the record does not show that Flanery has experienced these seizures with the frequency required in the listing. The majority found that the testimony of Flanery and her husband showed that she had seizures occurring more than once weekly. The ALJ discredited the testimony of Flanery’s husband finding it was based upon an uncritical ac*351ceptance of Flanery’s complaints and motivated in part by the desire to see her obtain benefits. Tr. 22. He discounted Flanery’s subjective complaints, finding they were inconsistent with the medical findings and Flanery’s functional limitations. Id. Questions of credibility are for the trier of fact and the Court usually defers to such a finding if the ALJ explicitly discredits a claimant’s testimony and gives good reason for doing so. See Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir.1990). Here the ALJ did both.

The majority found the testimony of Flanery and her husband was supported by statements from other witnesses and a doctor who witnessed a seizure. While these statements show that Flanery experienced seizures, none show that the seizures occurred more frequently than one weekly.

I cannot agree with the majority that the medical evidence shows that Flanery meets the 11.03 Listing. The majority relies upon a statement made by Dr. Goza in 1991 to establish that Flanery has partial seizures. I disagree that Dr. Goza’s 1991 statement supports such a finding. Even if his statement that Flanery’s “seizures appear to be well controlled”, Tr. 180, is understood as the majority proposes to refer only to Flanery’s grand mal seizures, the statement does not indicate that Flanery was experiencing uncontrolled frequent petit mal seizures. Dr. Goza indicated that he had “some question whether she still may be having partial seizures”. Id. A statement Dr. Goza made in 1993 reiterated his doubts about whether Flanery was experiencing partial seizures. Tr. 246. In that statement he observed that it was difficult to be certain whether episodes Flanery claimed to be having almost daily, in which “her eyes are fluttering and she is unable to respond appropriately for a short time but doesn’t lose consciousness,” are partial seizures. Id.

The only other medical evidence offered to show that Flanery meets the 11.03 Listing is a statement made in August 1994 by a neurologist, Dr. Brown, who after talking with Flanery and reviewing her history stated that her seizures had been poorly controlled on the drug she was taking. Tr. 252. The ALJ found that the neurologist’s statement was based upon Flanery’s subjective complaints and discredited it. As the ALJ had found the testimony of frequent uncontrolled seizures from Flanery and her husband was not credible, the ALJ could properly conclude in the absence of medical evidence that a report based upon such testimony was unreliable.

The evidence of Flanery’s daily activities also shows she does not meet the listing requirement. The record shows that she takes care of a house and three children, and does the cooking, laundry, and other household chores. She has no restrictions on daily activities from her physician, other than her use of an automobile, heavy machinery, and firearms.

The substantial evidence in the record does not show that Flanery meets the listing requirements of 11.03 and therefore I would affirm the district court’s affirmance of the denial of SSI benefits by the Commissioner based upon substantial evidence in the record as a whole.