Bruce v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on March 30, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DAVEY LEE BRUCE

PLAINTIFF

v.

Civil No. 11-2057

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, David Bruce, brings this action under 42 U.S.C. § 405(g), seeking judicial review
of a decision of the Commissioner of Social Security Administration (Commissioner) denying his
claim for supplemental security income (“SSI”) under Title XVI of the Social Security Act
(hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this judicial review, the
court must determine whether there is substantial evidence in the administrative record to support
the Commissioner’s decision. See 42 U.S.C. § 405(g).
I.

Procedural Background:
The plaintiff filed his application for SSI on June 25, 2008, alleging disability due to back

pain, anger management issues, bipolar disorder, attention deficit hyperactivity disorder
“(ADHD”), and a learning disability since January 1, 1990. Tr. 96-98, 112-113, 124, 142, 144145, 153. His applications were denied initially and on reconsideration. Tr. 46-49, 53-54.
An administrative hearing was held on November 9, 2009. Tr. 26-43. Plaintiff was present
and represented by counsel. At this time, plaintiff was 20 years of age and possessed an tenth
grade education. Tr. 20, 29, 33, 35, 128. Plaintiff was reportedly enrolled in special education
classes from Kindergarten through tenth grade, resulting in limited reading and math skills. Tr.
33, 178. He had no past relevant work (“PRW”) experience, but had worked as a truck washer.
Tr. 21, 176.

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On April 14, 2010, the Administrative Law Judge (“ALJ”) concluded that, although severe,
plaintiff’s ADHD, mood/anger disorder, and borderline intellectual functioning (“BIF”) did not
meet or equal any Appendix 1 listing. Tr. 16-17. He found that plaintiff maintained the residual
functional capacity (“RFC”) to perform
a full range of work at all exertional levels, but with the following nonexertional
limitations: The claimant can do work in which interpersonal contact is incident
to the work performed, the complexity of tasks is learned and performed by rote,
with few variables and little judgment required. Supervision required is simple,
direct, and concrete.
Tr. 17-18. With the assistance of a vocational expert, the ALJ then found that plaintiff could still
perform work as a hand packager, auto detailer, and kitchen helper. Tr. 21.
Plaintiff appealed this decision to the Appeals Council, but said request for review was
denied on March 18, 2011. Tr. 1-6. Subsequently, plaintiff filed this action. Doc. # 1. This case
is before the undersigned by consent of the parties. Both parties have filed appeal briefs, and the
case is now ready for decision. Doc. # 10, 11.
II.

Applicable Law:
This court’s role is to determine whether the Commissioner’s findings are supported by

substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining
the record to find substantial evidence in support of the ALJ’s decision; we also consider evidence
in the record that fairly detracts from that decision.” Id. As long as there is substantial evidence
in the record to support the Commissioner’s decision, the court may not reverse the decision
simply because substantial evidence exists in the record to support a contrary outcome, or because
the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir.
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2001). If we find it possible “to draw two inconsistent positions from the evidence, and one of
those positions represents the Secretary’s findings, we must affirm the decision of the Secretary.”
Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A),
1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § § 423(d)(3),
1382(3)(c). A plaintiff must show that his disability, not simply his impairment, has lasted for at
least twelve consecutive months.
A.

The Evaluation Process:

The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his or her claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given his or her age, education, and experience. See 20 C.F.R. § § 404.1520(a)- (f)(2003). Only
if the final stage is reached does the fact finder consider the plaintiff’s age, education, and work
experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683 F.2d
1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
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III.

Discussion:
Of particular concern to the undersigned is the ALJ’s treatment of the evidence concerning

Plaintiff’s mental impairments. The evaluation of a mental impairment is often more complicated
than the evaluation of a claimed physical impairment. Andler v. Chater, 100 F.3d 1389, 1393 (8th
Cir. 1996). Evidence of symptom-free periods, which may negate the finding of a physical
disability, do not compel a finding that disability based on a mental disorder has ceased. Id.
Mental illness can be extremely difficult to predict, and remissions are often of “uncertain duration
and marked by the impending possibility of relapse.” Id. Individuals suffering from mental
disorders often have their lives structured to minimize stress and help control their symptoms,
indicating that they may actually be more impaired than their symptoms indicate. Hutsell v.
Massanari, 259 F.3d 707, 711 (8th Cir.2001); 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 12.00(E)
(1999). This limited tolerance for stress is particularly relevant because a claimant’s residual
functional capacity is based on their ability to perform the requisite physical acts day in and day
out, in the sometimes competitive and stressful conditions in which real people work in the real
world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (abrogated on other grounds).
In the present case, the evidence indicates that Plaintiff suffers from anger
management/impulse control issues. On July 23, 2008, Plaintiff underwent a Mental Diagnostic
Evaluation and Intellectual Assessment with Dr. Robert Spray, Jr. Tr. 175-181. Plaintiff indicated
that he was applying for disability benefits due to his “distress.” He indicated that his problems
began when his father passed away in 1997 or 1998. Although he had never been formally
diagnosed, Plaintiff stated that he suffered from bipolar disorder and couldn’t “do hardly
anything.” He reported a limited education and significant anger management issues. Plaintiff

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denied a history of mental health treatment, indicating that his mother wanted to take him to
Harbor View about a month ago, but “never got around to it.” Tr. 175-181.
Plaintiff was cooperative, anxious and fidgety, with a euthymic mood and an appropriate
and variable affect. Tr. 175-181. He was inattentive to detail and impulsive in responding to some
questions. Approximately four months prior, Plaintiff got into an altercation with his brother
injuring him. He reported feeling elated while fighting with his brother. Plaintiff indicated that
he often threatened others and/or slammed or threw things around. Tr. 175-181.
I. Q. testing revealed a full scale IQ of 74, indicative of BIF. Testing also confirmed that
Plaintiff was suffering from ADHD. Dr. Spray diagnosed Plaintiff with bipolar II disorder,
ADHD, and impulse control disorder and assessed Plaintiff with a global assessment of functioning
score (“GAF”) of 45-55. He concluded that Plaintiff’s attention span was below average, he
experienced difficulty in persisting with tasks related to his short fuse and being easily frustrated,
he tended to be impulsive resulting in maladaptive behaviors and judgments, he was likely to be
disorganized and to have difficulty staying on task, and he may be easily distracted by perceived
interpersonal slights. Further, Dr. Spray determined Plaintiff would be unable to manage funds
without assistance, due to his limited math and money management skills. Tr. 175-181.
On September 2, 2008, Plaintiff underwent a mental diagnostic evaluation with Dr. Patricia
Walz. Tr. 191-195. In addition to a face-to-face evaluation, Dr. Walz also reviewed Plaintiff’s
medical records. Plaintiff stated that he had applied for disability due to anger problems and his
inability to read and write well. This reportedly resulted in him not getting along well with coworkers and managers. He denied any history of psychiatric treatment or hospitalization, and
reported taking no psychotropic medications. When asked why he had not pursued treatment, he

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stated that it was because he never really thought he had a problem. Having two children now,
Plaintiff had decided that he needed to get help.
Plaintiff reported performing a few different jobs, but indicated that he had been fired from
or left each position due to his anger management issues. The longest he had ever held a job was
four months, with his most recent work being that of a truck washer. Plaintiff currently resided
with his mother and reported that he had never lived on his own. His wife and two children also
resided with his mother. Dr. Walz noted that he was cooperative with a euthymic mood, consistent
affect, clear and intelligible speech, and logical and goal directed thought processes. He reported
problems with cognition and stated that he could not stay focused on anything for any amount of
time. Dr. Walz concluded that Plaintiff’s presentation was consistent with a diagnosis of BIF. She
found no evidence of bipolar disorder, but did not note some hyperactivity. Dr. Walz diagnosed
Plaintiff with probable ADHD, probable impulse control disorder, rule out alcohol abuse, and BIF.
She then assessed him with a GAF of 50-55. She noted that he had adequate social skills; would
have difficulty with complex tasks; had difficulty with a task of sustained attention; persisted well
even when frustrated; and, processed information quickly, almost too fast to the point he made
mistakes. Tr. 191-195.
On June 29, 2009, Plaintiff underwent a diagnostic interview with Stephen Chiovoloni, a
licensed social worker with Western Arkansas Counseling and Guidance Center. Tr. 217-226.
Plaintiff reported taking no current prescription or non-prescription medications, and indicated that
he had not been treated for any medical or surgical condition within the last two years. He also
denied inpatient psychiatric treatment and medications, but reported some outpatient treatment six
months prior. Plaintiff admitted to suicidal thoughts and thoughts of harming others. Throughout
his life, Plaintiff reported extreme difficulties controlling his anger. He stated that he became
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“very vicious,” destroying objects and becoming physically violent with others, including his wife.
Plaintiff indicated that he was easily frustrated, and his frustration quickly escalated into anger and
violence. As a result, Plaintiff had a history of arrest for assault and a recent charge for threatening
his brother with a cinder block. Mr. Chiovoloni noted that Plaintiff was an extreme risk to others
and a moderate risk to himself. He determined that Plaintiff suffered from issues involving anger
management, bullying/intimidating others, communication problems, couples problems, impulse
control, low self esteem, paranoia or suspicion, and deficits in social skills. Mr. Chiovoloni
diagnosed Plaintiff with intermittent explosive disorder and depressive disorder not otherwise
specified. He then assessed Plaintiff with a GAF of 55, indicating moderate symptoms or
moderate difficulty in social, occupational, or school functioning. Mr. Chiovoloni found Plaintiff
to be in need of services to reduce the risk to him and others and to improve functioning and
emotional control. Plaintiff stated that he preferred therapy only and did not want to use
medications. Tr. 217-226.
Although the ALJ found Plaintiff ADHD and mood/anger disorder to be a severe
impairments, these impairments do not seem to be accounted for in the ALJ’s RFC assessment.
Instead, the ALJ attempts to down play Plaintiff’s issues by pointing out purported inconsistencies
among the three psychological assessments. After a thorough review of the evidence, we find the
evidence to be fairly consistent. Plaintiff had a history of physical altercations both as a teen and
as an adult. He admitted to problems controlling his anger and frustration levels, causing him to
quickly escalate into violent behavior. Plaintiff indicated that he had lost jobs in the past, due to
these anger management issues. Tr. 34, 191-195. He also had a prior arrest for assault, and a more
recent charge for threatening his brother with a cinder block. Tr. 217-226. Plaintiff’s wife was
even reportedly afraid Plaintiff might hurt their children. And, Mr. Chiovoloni concluded that
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Plaintiff posed a severe risk to others. The ALJ, however, failed to property consider the fact that
Plaintiff might pose a danger to others in a work environment. Reeder v. Apfel, 214 F.3d 984, 988
(8th Cir. 2000) (holding that the ALJ is not free to ignore medical evidence, rather must consider
the whole record).
Further, all of the examiners agreed that Plaintiff’s presentation was consistent with BIF,
which Plaintiff reported was the source of a great deal of his anger and frustration as he felt others
treated him differently due to his limited abilities. He also suffered from attention related
limitations due to his ADHD. Dr. Spray noted that Plaintiff experienced difficulty in persisting
with tasks related to his short fuse and being easily frustrated, he tended to be impulsive resulting
in maladaptive behaviors and judgments, he was likely to be disorganized and to have difficulty
staying on task, and he may be easily distracted by perceived interpersonal slights. Dr. Walz
agreed that Plaintiff would have difficulty with a task of sustained attention, and noted that he often
processed information too quickly, resulting in numerous mistakes. While the ALJ attempts to use
Plaintiff’s quick processing skills to evidence his work-related abilities, we do not find quick,
inefficient processing skills to be a highly sought after quality in an employee. Accordingly, we
believe the ALJ should reconsider the limitations imposed by Plaintiff’s ADHD and anger/impulse
control impairment.
The examiners also agreed that Plaintiff had a GAF score between 45 and 55. Contrary
to the ALJ’s opinion, a GAF of 41-50 is indicative of serious symptoms, while a GAF of 51 to 59
evidences moderate symptoms.

See DIAGNOSTIC

AND

STATISTICAL MANUAL

OF

MENTAL

DISORDERS IV-TR 34 (4th ed. 2000). Thus, it seems clear to the undersigned that Plaintiff’s
symptoms were moderate to severe, and would impact his ability to maintain attention and
concentration, get along with coworkers or peers, maintain socially appropriate behavior, accept
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criticism from supervisors, and respond appropriately to changes in work setting. And, we note
that the only mental RFC assessment of record was completed by a non-examining, consultative
psychologist. See Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999) (holding that the opinion of
a consulting physician who examined the plaintiff once or not at all does not generally constitute
substantial evidence). Accordingly, we believe that remand is necessary to allow the ALJ to
reconsider the combined limitations imposed by Plaintiff’s mental impairments and to obtain an
RFC assessment from a treating mental health professional, preferably a professional from Western
Arkansas Counseling and Guidance Center. 20 C.F.R. § 404.1523(ALJ must consider all
impairments in combination).
The ALJ also contends that the Plaintiff’s testimony concerning his reading limitations is
not credible because Plaintiff completed, signed, and dated the disability paperwork. The ALJ
argues this is evidence that he was able to read the paperwork and complete it without assistance.
We do not agree. It is possible that Plaintiff’s mother read the documents to him and completed
them for him, as he testified she did in all other cases, and that he merely signed the paperwork.
However, we can not say for certain one way or the other, as Plaintiff was not questioned about
this at the hearing. In fact, the majority of the information gleaned from the short administrative
hearing is of limited assistance to the undersigned. The hearing lasted a mere 19 minutes, and was
fully transcribed in approximately 14 pages. The ALJ asked limited questions and counsel’s
questions failed to really shed light on Plaintiff’s mental capacity to work.

“Superficial

questioning of inarticulate claimants or claimants with limited education is likely to elicit responses
which fail to portray accurately the extent of their limitations.” Lashley v. Sec. of Health & Human
Servs., 708 F.2d 1048, 1052 (6th Cir. 1983).

And, although the length of a hearing is not

dispositive, it is a consideration. Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994); Thompson v.
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Sullivan, 987 F.2d 1482, 1492 (10th Cir. 1993). Accordingly, we believe remand is necessary to
allow the ALJ to develop the record further concerning Plaintiff’s reading abilities, anger
management/impulse control issues, and the relationship between those impairments and his ability
to perform work-related tasks.
IV.

Conclusion:
Based on the foregoing, we reverse the decision of the ALJ and remand this case to the

Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g).
DATED this 30th day of March 2012.

J. Marschewski

/s/
HON. JAMES R. MARSCHEWSKI
UNITED STATES MAGISTRATE JUDGE

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