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Socialsecuritydisabilitylawyer.usUnited States Court of Appeals For the Seventh Circuit CHRISTINE BJORNSON, MICHAEL J. ASTRUE, Commissioner of Social Security, Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 10 C 5835—Elaine E. Bucklo, Judge.
ARGUED DECEMBER 14, 2011—DECIDED JANUARY 31, 2012 Before POSNER, MANION, and WOOD, Circuit Judges.
POSNER, Circuit Judge. This is an appeal from a decision by the district court affirming the denial ofsocial security disability benefits by an administrativelaw judge, whose decision became final when the SocialSecurity Administration's Appeals Council denied theapplicant leave to appeal the Council's decision.
After an automobile accident in 1999 Christine Bjornson began having severe back pains. Three years later she was diagnosed with a "Chiari malformation,"which is a protrusion of brain tissue into the spinalcanal. The malformation may have been caused by theaccident, but probably not; the cause, however, is irrele-vant. After three operations on her brain and spine in2002, the vision and speech problems that the Chiarimalformation had caused lessened substantially but shedeveloped hydrocephalus—a buildup of cerebrospinalfluid in the brain—that required the installation of ashunt in her brain, to drain the fluid. It took three instal-lations to place the shunt properly, the last in 2003. Toalleviate the severe headaches caused or aggravated bywhat appear to have been a total of nine brain and spinaloperations that she had undergone, she was prescribeda number of powerful pain medications, includingOxyContin, Percoset, Lyrica, and methodone, often inconjunction.
She hasn't worked since the auto accident. She was last insured for social security disability benefits inJune 2005 (when she was 34 years old), so only if shewas disabled from full-time work by that date is sheeligible for benefits.
At the first of two disability hearings she testified that since before her last-insured date she has had constant,excruciating headaches four or five days a week, whichcause her to vomit when she stands up. She takes herpain medications when she wakes up and then goesback to bed for hours because she "could not do any-thing else because of her pain medications." She alsohas severe back pain, aggravated by obesity, but itdoes not appear that the back pain is disabling in itself, though it compounds the effects of the headaches onher ability to work.
At the first hearing the administrative law judge decided that Bjornson should be examined by a physicianhired by the Illinois Department of Human Services,which works with the Social Security Administrationin determining eligibility for social security disabilitybenefits. See Illinois Department of Human Services,"Disability Determination Services," www.dhs.state.il.us/page.aspx?item=29979 (visited Dec. 30, 2011). This wasdone, and the physician, Dr. Muhammad Rafiq, reportedthat Bjornson "gets frequent severe headaches three tofour times per week during which she cannot stand," andthat in an 8-hour day she can sit for an hour and ahalf, stand for an hour, and walk for half an hour—therest of the time she has to lie down. The limitation onstanding may be caused by her back pain as well as herheadaches—it is unclear from Rafiq's report which.
Other doctors' reports note Bjornson's "chronic head- aches, neck pain, intermittent visual problems, swal-lowing problems, slurred speech, and bilateral fingernumbness." Dr. Ira Goodman, a pain specialist whohad treated Bjornson since 2003, noted her complaintsof constant headaches and diagnosed her with(among other things) occipital neuralgia, a type of head-ache that involves piercing, throbbing, or "electric-shock-like" chronic pain in the neck and head. He alsoremarked her cervical spine pain, lower-back pain, a three-week stretch of nonstop headaches, and daytime somno-lence because of her pain medications. The administra- tive law judge did not mention the diagnosis of occipitalneuralgia.
All the evidence we've described thus far, except for Dr. Rafiq's, concerns diagnoses and treatments that
Bjornson received before June 2005. The record also
contains a good deal of evidence, besides Rafiq's, con-
cerning Bjornson's diagnoses and treatments since
then. None of this evidence indicates that her symp-
toms have worsened—that if she is disabled today, never-
theless she wasn't disabled before her last insured date.
Yet the government's brief argues the irrelevance of all
post-June 2005 medical data, an argument that
both is factually mistaken and violates the Chenery rule,
because the administrative law judge ruled that post-
June 2005 medical data could be considered—and he was
right, as there was no reason to believe that Bjornson's
ability to work had declined since then. Ray v. Bowen,
843 F.2d 998, 1004-06 (7th Cir. 1988); Potter v. Secretary of
Health & Human Services, 905 F.2d 1346, 1348 (10th Cir.
1990) (per curiam); Dousewicz v. Harris, 646 F.2d 771, 774
(2d Cir. 1981).
One physician, Dr. Chukwuemeka Ezike, testified that while Bjornson has a history of chronic headachesattributable to the Chiari malformation and has beentreated for "headaches, nausea, vomiting, and someparasthesia" (numbness or tingling in the limbs), he "didnot find enough . . in the medical records" to justifyDr. Rafiq's opinion. He believed that her "pain was notwell substantiated after 2003," and he did "not find theevidence that says she cannot sustain [a] sedentary job." His testimony goes on and on, but what we havequoted is the only intelligible portion of it that bears onBjornson's ability to hold a full-time job. Elsewhere hedid say that "because of the persistence of the symptomsand the fact that she was on high dose opiates, that's notin my professional opinion based on reasonable degreeof medical certainty that physically she would be unableto sustain unemployment at that time . . [W]e do nothave any evidence physically." But we don't knowwhat this passage means.
The rest of Dr. Ezike's testimony, which was continually and confusingly interrupted by the admin-istrative law judge, is epitomized in the followingexchange and seems, to the limited extent that it is evenintelligible, irrelevant: BY ADMINISTRATIVE LAW JUDGE: Dr. Azekee [sic], are we in the general realm of what that chiari malformation is? Are we all, what? Yeah. I think you have the basic, you have the basic correct pathology of this kind. Just basically thebrain is not supposed to be in the spinal canal.
Any time you have any part of the brain which in the spinal canal then you describe as a chiari malfor-mation of which you have four types. That's oneand two times and type four. At one, of course, is themost common, which is what the patient had or had.
And they usually, they try to first [INAUDIBLE] they don't have any symptoms or they do not have anyabnormality. But when you have injuries, such as inthis case, she has a lumbar top, or a lumbar idetesurgery procedure that precipitated the, the brain toremove a little bit more lower in the canal, resultingin symptoms that she was experiencing. And at thatpoint, most doctors will recommend that you havesurgery to, to prevent further herniation down.
The problem when brain goes down more into thecanal, the spinal canal, of course, is smaller thanthe brain. So the more it goes down, the more youhave strangulation.
—then it goes from [INAUDIBLE] deformity is smaller than the brain, and is pulling down. Then youhave a filter will collect and cut off some of the ceil-ing. And the ceiling will not result in, most of the time,what it causes, it causes damage of the spinal tract,neck, in the columns, of the spinal tract, so that themost of the time it gives you symptoms of problemwith [INAUDIBLE] syndrome, the lower extremity, thelower muscle nerve syndrome the upper extremities.
Okay. So it might be related to left arm weakness? I mean it's possible? Well, it's possible, but it is absolutely I think it's more if, if the left arm was [INAUDIBLE] when theyget to, if as a result of the surgery, part of themalformation itself.
Okay. Well maybe, from the surgery. But some- thing might have gone, happened, which would causesome left arm weakness. Right? Possibly? Many things are possible, Your Honor.
One turns with relief to a November 2008 evaluation Christine Bjornson has been a patient of mine sinceOctober, 2003. She is being treated for chronic head-ache related to multiple surgeries for Chiari malforma-tion as well as for low back pain related to degenera-tive disk disease, lumbar facet arthropathy andsacroiliitis with lower extremity pain related tolumbar radiculopathy. She has responded some tointerventional treatments and medical manage-ment but remains unable to work primarily due tonoticeable increases in pain with prolonged sittingor standing. The last MRI of the lumbar spine wasperformed in June 2006 and showed degenerativedisk disease at both L4-5 and L5-S1 with disk protru-sion. She has failed to gain significant improve-ment with IDET and is not willing to undergo alumbar spinal fusion at these levels, which I think isappropriate. It is my opinion that she will need on-going treatment of her pain with periodic inter- ventional procedures, which do give benefit for upto months at a time, as well as pharmacological man-agement. Even with these forms of treatment sheexperiences great difficulty caring for her family,and I think that functioning in a job on a sustainedbasis would be extremely difficult if not impossibleas she cannot sustain one position for any lengthof time.
Bjornson testified at the second hearing, consistently with her testimony at the first, that she needed the shuntin her brain replaced but that the neurosurgeon shehad consulted had refused for fear that it might bringback her hydrocephalus and require still another brainsurgery. (His report was consistent with that testimony.)She testified that "there's nothing more they [the doctors]can do for me," and that the pain medications help "alittle" but "usually . . just knock me out and I sleepthrough the headaches." She testified that she spendsmost of her day lying down.
The administrative law judge concluded that Bjornson was capable of performing sedentary work (she hadbeen at various times before her accident a waitress, an off-track betting teller, and a clerk in a real estate office),albeit with some limitations—mainly that she be ableto sit or stand whenever she wanted to. He asked thevocational expert (an expert who testifies in disabilityhearings about whether there is a substantial numberof jobs in the local economy that the claimant isphysically and mentally able to perform) whethergiven these limitations Bjornson could satisfy the require- ments of such a job. The vocational expert testifiedthat Bjornson could work as a clerk in a real estate officebecause she "could remain in a seated position longenough to perform data entry tasks." The administrativelaw judge asked whether her opinion would changeif Bjornson had to lie down "at least an hour duringthe workday at irregular intervals every day differ-ently"—to which the vocational expert replied that inthat event "there would be no jobs [she] could perform."And in response to a further question from the admin-istrative law judge—what if Bjornson had occasionalbad headaches that caused her to miss two days ofwork?—the vocational expert answered: that too"would knock her out of all work." Nevertheless theadministrative law judge concluded that Bjornsonwas not disabled.
Reading the administrative law judge's opinion, we first stubbed our toe on a piece of opaque boilerplatenear the beginning, where, after reciting Bjornson's de-scription of her medical condition, the opinion states:"After careful consideration of the evidence, the under-signed [administrative law judge] finds that theclaimant's medically determinable impairments wouldreasonably be expected to cause the alleged symptoms;however, the claimant's statements concerning the in-tensity, persistence and limiting effects of thesesymptoms are not credible to the extent they are incon-sistent with the above residual functional capacity assess-ment." The government's brief describes this passage asa "template," by which it means a passage drafted bythe Social Security Administration for insertion into any administrative law judge's opinion to which it per-tains.
This "template" is a variant of one that this court (and not only this court) had criticized previously—that"after considering the evidence of record, the under-signed finds that claimant's medically determinableimpairments would reasonably be expected to producethe alleged symptoms, but that the claimant's state-ments concerning the intensity, persistence and limitingeffects of these symptoms are not entirely credible." InParker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010), wecalled this "meaningless boilerplate. The statement bya trier of fact that a witness's testimony is ‘not entirelycredible' yields no clue to what weight the trier offact gave the testimony" (emphasis in original); seealso Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir. 2011);Martinez v. Astrue, 630 F.3d 693, 696-97 (7th Cir. 2011);Spiva v. Astrue, 628 F.3d 346, 348 (7th Cir. 2010). "Suchboilerplate language fails to inform us in a meaningful,reviewable way of the specific evidence the ALJ con-sidered in determining that claimant's complaintswere not credible. More troubling, it appears that theCommissioner has repeatedly been using this sameboilerplate paragraph to reject the testimony of nu-merous claimants, without linking the conclusory state-ments contained therein to evidence in the record oreven tailoring the paragraph to the facts at hand, almostwithout regard to whether the boilerplate paragraphhas any relevance to the case." Hardman v. Barnhart,362 F.3d 676, 679 (10th Cir. 2004) (citation omitted).
The present "template," which adds at the end of the previous one ". . to the extent they are inconsistent withthe above RFC assessment," is even worse, thoughthe government's brief defends it with great vigor—while at the same time both mistakenly describing it asthe identical boilerplate criticized in the previous casesand confusing it with form orders that the Social SecurityAdministration has authorized when an administrativelaw judge "chooses to make a wholly favorable [to theapplicant] oral decision at the hearing." Social SecurityAdministration, "Oral (Bench) Decision Procedures,"w w w . s s a .g o v / O P _ H o m e / h a l l e x / I - 0 5 / I - 5 - 1 - 1 7 . h t m l(visited Dec. 24, 2011), and "Findings Integrated Templates(FIT), Social Security Online," www.ssa.gov/appeals/fit(visited Dec. 24, 2011). The government regards the"template" as an indispensable aid to the Social SecurityAdministration's overworked administrative law judges.
Yet when we asked the government's lawyer atargument what the "template" means, he confessed hedid not know.
One problem with the boilerplate is that the assess- ment of the claimant's "residual functional capacity"(the bureaucratic term for ability to work) comes laterin the administrative law judge's opinion, not"above"—above is just the foreshadowed conclusionof that later assessment. A deeper problem is that theassessment of a claimant's ability to work will often(and in the present case) depend heavily on the credi-bility of her statements concerning the "intensity, persis-tence and limiting effects" of her symptoms, but thepassage implies that ability to work is determined first and is then used to determine the claimant's credibility.
That gets things backwards. The administrative lawjudge based his conclusion that Bjornson can dosedentary work on his determination that she was exag-gerating the severity of her headaches. Doubts aboutcredibility were thus critical to his assessment of abilityto work, yet the boilerplate implies that the determina-tion of credibility is deferred until ability to work isassessed without regard to credibility, even though itoften can't be. In this regard we note the tension betweenthe "template" and SSR 96-7p(4), www.ssa.gov/OP_Home/rulings/di/01/SSR96-07-di-01.html (visited Jan. 4, 2012),which states that "an individual's statements about theintensity and persistence of pain or other symptomsor about the effect the symptoms have on his or herability to work may not be disregarded solely becausethey are not substantiated by objective medical evidence."The applicant's credibility thus cannot be ignored in de-termining her ability to work (her residual functionalcapacity, in SSA-speak).
The Social Security Administration had better take a close look at the utility and intelligibility of its "templates." The administrative law judge based his doubts about Bjornson's credibility on his assessment of the medicalreports or testimony of the three doctors whom we'vementioned, Goodman, Rafiq, and Ezike. He remarked thatDr. Goodman's treatment notes report that Bjornson'scomplaints about headaches had become less fre-quent—that she had complained about them only fourtimes in a nine-month period—and that although her headaches "have been an ongoing problem since beforeshe started coming to see me in 2003 . . she can deal withthat," although she "must sit or lie down several timesper day to control pain." The administrative law judgeappears to have overlooked Bjornson's testimony thatshe had concluded that the medical profession couldn'tdo anything more for her headaches—by this timeshe had had multiple brain surgeries—except give herpainkillers that knock her out; if that testimonyis credited, it would explain why her complaints todoctors about headaches diminished over time. Theadministrative law judge did not mention Dr. Goodman'sfurther statements that the headaches "were alwayspresent" and that Bjornson had complained of "non-stopheadaches" that had lasted for three weeks.
And it was a mistake to infer from Goodman's quoted statement, as the administrative law judge did in rulingthat Bjornson can work as long as she has a sit-standoption, that sitting down several times a day is all thatshe would have to do in order to be able to hold a 9 to5 job. Apart from the ambiguity not explored by theadministrative law judge of the term "control pain,"Dr. Goodman's statement that Bjornson "must sit or liedown several times per day to control pain" is consistentwith Bjornson's testimony that often she must lie down,not stand or sit down, to alleviate the pain. One doessedentary work sitting (the word "sedentary" is from theLatin word "sedere," which means "to sit"), but not lyingdown.
The administrative law judge rejected Dr. Rafiq's evi- dence (remember that he opined that Bjornson could sit, walk, or stand for a total of only three hours in an eight-hour workday—90 minutes (sitting) + 60 minutes (stand-ing) + 30 minutes (walking)—which means that shewould have to be able to lie down for the other five hoursin the workday), saying that "those limitations are notsupported by [Dr. Rafiq's] own clinical observations."Well, obviously Dr. Rafiq didn't conduct an eight-hourexamination of Bjornson. The administrative law judgefaulted Rafiq for "rel[ying] on collateral evidencein concluding that Bjornson's functioning was somarkedly limited." He did not explain what he meantby "collateral evidence," but probably he meant theother treatment notes in the record—yet Dr. Rafiqwould have been remiss not to consult them and toweigh them in forming his own judgment.
Out of the blue the administrative law judge remarked of Dr. Rafiq that "doctors sometimes express an opinionin an effort to assist a patient with whom they sympa-thize. While it is difficult to confirm the presence of sucha motive, it is more likely in situations wherethe opinion in question departs substantially from therest of the evidence of record, as in the current case."Actually the doctor's evidence was consistent withmost of the rest of the evidence. And the suggestion thathis evidence was based on sympathy for Bjornson isboth unsupported and implausible. She is not hispatient; the Illinois state agency that works with theSocial Security Administration retained and paid himto conduct a single examination of a total stranger. Hisfirst medical report (of two reports) states that Bjornson"was informed that this examination was solely for pro- viding information to the Bureau of Disability Deter-mination Services and did not constitute a pa-tient/physician relationship." The administrative law judge expressed doubt about Bjornson's credibility on the further ground of her "activi-ties of daily living," notably that she can walk up to oneblock, sit or stand for up to 15 minutes, lift 10 pounds,bathe and dress normally, and even drive and shop.
But she had never testified that she was immobilized,and indeed she had testified that she had one or twogood days each week—for all that appears, the activitiesrecited by the administrative law judge are concentratedin those days. Doubtless she dresses and bathes morefrequently than twice a week, but one can have awfulheadaches yet still dress and bathe. The critical dif-ferences between activities of daily living and activitiesin a full-time job are that a person has more flexibilityin scheduling the former than the latter, can get helpfrom other persons (in this case, Bjornson's husbandand other family members), and is not held to aminimum standard of performance, as she would be byan employer. The failure to recognize these differencesis a recurrent, and deplorable, feature of opinions byadministrative law judges in social security disabilitycases. See Punzio v. Astrue, supra, 630 F.3d at 712; Spiva v.
Astrue, supra, 628 F.3d at 351-52; Gentle v. Barnhart, 430F.3d 865, 867-68 (7th Cir. 2005); Draper v. Barnhart, 425F.3d 1127, 1131 (8th Cir. 2005); Kelley v. Callahan, 133 F.3d583, 588-89 (8th Cir. 1998); Smolen v. Chater, 80 F.3d1273, 1284 n. 7 (9th Cir. 1996).
The administrative law judge gave decisive weight to testimony by Dr. Ezike, even though he is not a painspecialist, like Goodman, and, unlike both Goodmanand Rafiq, had not examined Bjornson. (So all theevidence Dr. Ezike relied on was "collateral," unlikeDr. Rafiq, whom the administrative law judge criticizedfor relying on such evidence.) He noted with approvalDr. Ezike's testimony that the medical evidence con-cerning Bjornson's condition after 2003 "supported asedentary residual functional capacity finding." Yet onthe previous page of his opinion he had rebukedDr. Goodman for saying that Bjornson "remained unableto work," remarking that "statements that a claimant isdisabled or unable to work are not medical opinionsbut are dispositive administrative findings . . reservedto the Commissioner" of social security. The remark isimprecise. The pertinent regulation says that "a state-ment by a medical source that you are ‘disabled' or‘unable to work' does not mean that we will determinethat you are disabled." 20 C.F.R. § 404.1527(e)(1). That'snot the same thing as saying that such a statement isimproper and therefore to be ignored, as is furthermade clear when the regulation goes on to state that"the final responsibility for deciding" residual func-tional capacity (ability to work—and so whether theapplicant is disabled) "is reserved to the Commissioner."§ 404.1527(e)(2) (emphasis added). And "we will notgive any special significance to the source of an opinionon issues reserved to the Commissioner." § 404.1527(e)(3)(emphasis added).
The second medical report that Dr. Rafiq submitted was a form that the Illinois disability determinationsagency had asked him to fill out, and one of the ques-tions was how long Bjornson could sit, stand, and walkand what she did when she couldn't do any of thosethings. When he stated on the form that she couldsit, stand, and walk for a total of only three hours inan eight-hour workday, he was not invading any pre-rogative reserved to the Social Security Administration.
But his statement inescapably implied that she can'twork full time, for what employer would hire for a full-time job someone who has to lie down for five hoursduring the workday? The administrative law judge not only forgot his dis- missive view of physicians' testimony relating toissues "reserved to the Commissioner" when he cameto Dr. Ezike, but compounded the inconsistency byadding that he was "assign[ing] substantial weight toDr. Ezike's opinions, as he is familiar with the SocialSecurity disability program, reviewed all availablemedical evidence, listened to Bjornson's testimony [atthe second administrative hearing] regarding her symp-toms and functional limitations, and issued opinionsconsistent with the rest of the medical evidence record."Apart from the fact that Dr. Ezike's testimony wasnot "consistent with the rest of the record," his familiaritywith the social security disability program could berelevant only if it permitted him to offer an opinionconcerning Bjornson's eligibility—which the administra-tive law judge had just said was the prerogative of theSocial Security Administration. The regulation does state that "the amount of understanding of our disabilityprograms and their evidentiary requirements that anacceptable medical source has . . [is among the] relevantfactors that we will consider in deciding the weight togive to a medical opinion." § 404.1527(d)(6). But theadministrative law judge seems to have forgottenthat when he dismissed Dr. Rafiq's evidence. And remem-ber that it was a sister government agency (in effect) ofthe Social Security Administration that had hiredDr. Rafiq to examine Bjornson, which implies that Rafiqwas believed to know as much as he needs to knowabout the social security disability program in order tobe able to give an informed professional opinionabout the physical condition of an applicant for disa-bility benefits.
It is impossible to tell, moreover, whether Dr. Ezike based his skepticism about the severity of Bjornson'spain (her "pain was not well substantiated after 2003")on the absence of corroborating objective medicalevidence, which if he did would be in tension with SSR 96-7p(4) ("an individual's statements about the intensityand persistence of pain or other symptoms or aboutthe effect the symptoms have on his or her ability to workmay not be disregarded solely because they are not sub-stantiated by objective medical evidence"), or on hisinterpretation of her report of her pain as quoted orparaphrased in the notes of the other doctors (anotherpossible interpretation of "[her] pain was not well sub-stantiated after 2003"). If the former, his opinion is bothimplausible for there was plenty of corroborating medicalevidence—and in tension with SSR 96-7p(4), as we said; and if the latter it adds nothing to those notes and thosedoctors' conclusions and does not undermine Bjornson'stestimony that she had abandoned hope of being ableto deal with her headaches other than by a combinationof painkillers that made her somnolent with (what goeswith somnolence) lots of lying down. Dr. Ezike mayhave based his testimony on the fact that the other doc-tors' treatment notes indicated that Bjornson's complaintsabout headaches were intermittent.
The Social Security Administration's administrative law judges are overworked, but if one may judge fromthe transcript in this case, the two hearings proceeded ina leisurely, even meandering, fashion. Whatever thecause, the administrative law judge's opinion failed tobuild a bridge between the medical evidence (alongwith Bjornson's testimony, which seems to have beenfully consistent with that evidence) and the conclusionthat she is able to work full time in a sedentary occupa-tion provided that she can alternate sitting and stand-ing. See Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011);Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009) (percuriam); cf. Hardman v. Barnhart, supra, 362 F.3d at 678-79.
The judgment of the district court is reversed and the matter returned to the Social Security Administrationfor further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Información de apoyo a Profesionales Agosto 2006 Revisado Enero 2010 Comentario Si bien la prevalencia de la epilepsia activa puede situarse entre el 5 – 10 / 1.000, en nuestra población de personas con P.C.I., especialmente en los cuadros más severos, esta proporción es muy superior. Las crisis aparecen, por regla general, en el primer año de vida y es habitual que mantengan una frecuencia mayor o menor de episodios críticos a lo largo de su vida y que, por tanto, estén medicados de manera permanente. No podemos olvidar que estamos hablando de personas con muchos trastornos asociados y con deterioro progresivo de su estado de salud. Por tanto, si tenemos que emplear medicación antiepiléptica, debemos considerar, muy especialmente en estos casos, la conveniencia de: