Haas v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on July 28, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Civil No. 10-3012
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Korey Haas, 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 a period of disability, disability insurance benefits (“DIB”), and
supplemental security income (“SSI”) under Titles II and 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).
The plaintiff filed his application for DIB and SSI on December 26, 2006, alleging an
onset date of June 9, 2006, due to short-term memory loss, problems with impulse control and
anger management, migraine headaches, morbid obesity, organic brain disorder, and personality
disorder. Tr. 42, 104-113, 129-130, 143, 153. The Agency denied his application initially and
An administrative hearing was held on June 8, 2009. Tr. 8-32. Plaintiff was present and
represented by counsel. At this time, plaintiff was 22 years of age and possessed a high school
education with some college courses. Tr. 10-11, 48-49, 127. He had no past relevant work
(“PRW”) experience. Tr. 49.
On August 27, 2009, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s morbid obesity, organic brain disorder, and personality disorder did not meet
or equal any Appendix 1 listing. Tr. 42-44. The ALJ determined that plaintiff maintained the
residual functional capacity (“RFC”) to perform sedentary work that does not involve continuous
handling and fingering. Tr. 44-48. He also concluded that Plaintiff suffered from moderate
restrictions in maintaining social functioning; persistence, concentration, and pace; making
judgment on simple work-related decisions; understanding, remembering, and carrying out
detailed instructions; responding appropriately to usual work situations and routine work
changes; and appropriately interacting with supervisors. Further, the ALJ found that Plaintiff
could perform work where the interpersonal contact was incidental to the work performed; the
complexity of the tasks was learned and performed by rote with few variables and little
judgment; and, the supervision required was simple, direct, and concrete. With the assistance
of a vocational expert, the ALJ then found that plaintiff could perform work as a production
assembler, small products assembler, and hand packager/packer. Tr. 49-50.
Plaintiff appealed this decision to the Appeals Council, but said request for review was
denied on December 4, 2009. Tr. 1-4. Subsequently, plaintiff filed this action. ECF No. 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. ECF No. 8, 9.
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. 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.
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).
Of particular concern to the undersigned is the lack of medical evidence of record to
indicate Plaintiff’s work-related abilities and limitations. Well-settled precedent confirms that
the ALJ bears a responsibility to develop the record fairly and fully, independent of the
claimant’s burden to press his case.” Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004). In
determining whether an ALJ has fully and fairly developed the record the proper inquiry is
whether the record contained sufficient evidence for him to make an informed decision. See
Payton v. Shalala, 25 F.3d 684, 686 (8th Cir. 1994); Matthews v. Bowen, 879 F.2d 422, 424 (8th
The relevant medical evidence reveals as follows. On February 16, 2007, Plaintiff
underwent a mental evaluation with Dr. Stephen Harris. Tr. 187-192. Plaintiff reported being
involved in a motor vehicle accident on June 9, 2006, resulting in head injuries that affected his
memory and impulse control. Plaintiff indicated that he did not remember the remainder of that
summer, and now needed constant reminders to perform activities. Dr. Harris diagnosed him
with rule out attention deficit hyperactivity disorder (“ADHD”), rule out impulse control
disorder, past head trauma, and difficulty in interpersonal relationships, and he assessed him with
a global assessment of functioning (“GAF”) score of 52. Plaintiff was noted to get along pretty
well with others. Although he never went into a rage while at school, Plaintiff indicated that he
was very forgetful and did not remember necessary things. Dr. Harris opined that Plaintiff would
need daily supervision. He also stated that Plaintiff appeared to emphasize his difficulties. Tr.
On July 25, 2007, Plaintiff underwent a mental diagnostic evaluation with Dr. W. Charles
Nichols. Tr. 193-197. He reported anger control problems, symptoms consistent with anomia,
and short-term memory deficits following a car accident in June 2006. Plaintiff stated that he
recurrently punched through walls in his home and broke things items when angry. He indicated
that small things agitated him. Dr. Nichols noted that he had previously treated Plaintiff for
posttraumatic stress disorder in 2001, following an incident in which he was physically attacked
by another student at his school. He had also referred Plaintiff to Dr. Dollins, who had
However, Plaintiff only saw Dr. Dollins two or three times before
discontinuing the medication. In 2003-2004, Plaintiff was also treated by David Masterson at
Youth Bridge. Plaintiff was currently taking no psychotropic medications. He was only taking
Maxalt for migraine headaches.
Plaintiff stated that he smoked cannabis daily and had last used it the previous night. He
said it allowed him to “tone down,” so he did not have to listen to his mother tell him he was
nothing but a burden. Further, Plaintiff stated that he had begun binge eating after his accident,
and now weighed 380 pounds. His gait was slow and lumbering, and he sat slumped in his seat.
He was cooperative and talkative, described his mood as extremely angry, had very fluent and
expressive speech, exhibited clear articulation, and expressed goal directed and logical thoughts.
Upon testing, there were some signs that were suspicious for exaggeration , including latency and
poor performance on digit span forward, his capacity to recall details before and after the
accident in great details, and lack of significant cognitive issues during the interview. He also
recalled on one of three words after five minutes, but then recalled all three new words after one
minute. Further, Plaintiff described his symptoms with a degree of indifference, which was
unusual, almost as if he was detached from the content of what he was saying about his
symptoms and his life situation. Therefore, Dr. Nichols diagnosed Plaintiff with cognitive
disorder not otherwise specified,1 diagnosis deferred with histrionic personality traits, and
assessed Plaintiff with a GAF of 55. Based on his symptoms, Dr. Nichols noted that a moderate
degree of impairment with activities of daily living was expected. His social presentation was
atypical, although he likely had adequate social skills for most entry level jobs or those that did
not depend heavily on interaction with the public or co-workers. Plaintiff responded to the tasks
of the interview with adequate mental efficiency and was able to track and respond to various
Cognitive disorder not otherwise specified is a disorder characterized by cognitive dysfunction
presumed to be due to the direct physiological effect of a general medical condition. See D IA GN O STIC AN D
S TATISTICAL M AN U AL O F M EN TAL D ISO RD ERS IV-TR 179 (4th ed. 2000). Examples include postconcussional
types of questions and tasks. He showed consistent attention for basic cognitive tasks and
historical questions that were presented in the evaluation.
He did not appear to lose
concentration or demonstrate symptoms of fatigue. His concentration remained consistent as the
interview progressed, and he did not display signs of psychomotor slowing that could be
expected to interfere with job-like tasks. In response to mental status/cognitive tasks, the
claimant responded with average to above average pace on most tasks. Tr. 193-197.
On April 3, 2008, Plaintiff underwent a neuropsychological assessment with Dr. Michael
Whetstone of rehabilitation psychology services at the request of his primary care physician Dr.
Victor Armstrong. Tr. 218-226. Plaintiff indicated that he had been involved in an automobile
accident on June 9, 2006, resulting in a head injury. He reported a variety of cognitive and
personal changes as a result of this accident. Plaintiff described a variety of changes in
personality involving increased violence. He also complained of sleep disturbance, blackouts,
mood changes, and memory changes. In addition, Plaintiff endorsed some symptoms suggestive
of anxiety disorder versus PTSD. He denied a history of illicit drug or alcohol use, but admitted
to smoking one to one and one-half packages of cigarettes per day.
Overall, Plaintiff was cooperative and appropriate. His mood was somewhat withdrawn
and he appeared mildly depressed and at times almost indifferent. Plaintiff provided a lengthy
history as to his concerns and complaints and was able to provide a detailed social history
without difficulty. He stated that he had enrolled at Lyon College and completed classes between
2006 and 2007, with a major in pre-med. Plaintiff indicated that he had done “absolutely
nothing” over the previous year, aside from taking a class in medical terminology and obtaining
an A. He also reported taking a first aide responder class and obtaining an A.
Testing revealed a low average general working memory, reflecting weaknesses in
Plaintiff’s auditory delayed and visual delayed recall. His visual immediate recall was also
defective. He also had a full scale IQ of 112. As for motor strength and coordination, Plaintiff’s
upper extremity grip strength was low average in his right hand and slightly weak in his left
hand. Overall results suggested a mild discrimination between the right and left-handed abilities.
This was not consistent with Plaintiff’s right hand dominance, yet reflected a significant
weakness in both right and left handed grip strength. Dr. Whetstone diagnosed plaintiff with
cognitive disorder not otherwise specified involving weakness in general memory with
deficiency in visual immediate recall. A possible mild decline in general intellectual functioning
was also suggested by average performance in a variety of areas including verbal abstract
reasoning, attention and concentration, sequencing abilities, and graphomotor speed. Plaintiff’s
language and communication skills were generally strong for receptive and expressive language,
yet a right-sided auditory suppression was indicated. Dr. Whetstone strongly recommended an
audiologic evaluation to include a more focused assessment of auditory suppression in the right
ear. He also indicated that Plaintiff’s current weaknesses in visual immediate memory were
identified and might be amenable to improvement through vision training.
assessment of possible additional visual perceptual changes and/or visual memory was
suggested. Tr. 218-226.
On May 1, 2008, Dr. Whetstone completed a disability verification form for the Harrison
Housing Agency. Tr. 227. He indicated that Plaintiff was disabled and could not engage in
substantial gainful activity because of a physical or mental impairment that was expected to
result in death or had lasted or could be expected to last continuously for at least 12 months. Tr.
On November 14, 2008, Dr. Kevin Jackson also completed a disability verification form.
At the onset, we note that none of the psychologists who performed a mental evaluation
of Plaintiff were asked to complete a mental RFC assessment. The only mental RFC assessment
was completed in 2007 by a doctor who never examined Plaintiff. It is also important to note
that he had access to only two of the mental evaluations performed on Plaintiff. 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).
We also note that the two doctors who assessed Plaintiff’s GAF, both assessed him with
scores in the 50s. Scores falling between 51 and 60 are indicative of moderate symptoms or
moderate difficulty in social, occupational, or school functioning. See DIAGNOSTIC
STATISTICAL MANUAL OF MENTAL DISORDERS IV-TR 34 (4th ed. 2000). Dr. Harris also opined
that Plaintiff would need daily supervision, but did not elaborate at to what this might entail. Tr.
187-192. Further, Dr. Whetstone completed a form indicating that Plaintiff was disabled. Tr.
227. And, Plaintiff has indicated that he suffers from anger and aggression issues that lead him
to experience violent outbursts. Although the ALJ did conclude that Plaintiff had moderate
limitations in many areas of functioning, without assessments from the psychologists who
actually treated him, we can not say that the ALJ’s RFC determination is supported by
substantial evidence. The record simply does not make clear what Plaintiff’s limitations are. An
ALJ’s determination concerning a claimant’s RFC must be supported by medical evidence that
addresses the claimant’s ability to function in the workplace.” Lewis v. Barnhart, 353 F.3d 642,
646 (8th Cir. 2003). Further, because this is a crucial issue, it is the ALJ’s duty to ensure that
the record is developed in this regard. See Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006)
(social security hearing is non-adversarial proceeding, and ALJ has duty to develop record fully;
duty may include seeking clarification from treating physicians if crucial issue is undeveloped
Accordingly, on remand, the ALJ is directed to request RFC assessments from all three
of the psychologists who examined Plaintiff. They should be asked to review plaintiff’s medical
records; to complete a mental RFC assessment regarding plaintiff’s capabilities during the time
period in question; and, to give the objective basis for their opinions, so that an informed
decision can be made regarding plaintiff’s ability to perform basic work activities on a sustained
basis during the relevant time period in question. Chitwood v. Bowen, 788 F.2d 1376, 1378 n.1
(8th Cir. 1986); Dozier v. Heckler, 754 F.2d 274, 276 (8th Cir. 1985). As there is also a question
concerning Plaintiff’s possible use/abuse of marijuana, they should also be questioned regarding
the impact of marijuana use/abuse on Plaintiff’s overall mental RFC.
Additionally, the ALJ discounts Plaintiff’s symptoms and subjective complaints because
the record does not contain any medical records documenting Plaintiff’s treatment following the
automobile accident in which he allegedly sustained a head injury and now complains of
resulting cognitive and memory problems. We note that records from Dr. Whetstone indicate
that Plaintiff was referred by his primary care physician, Dr. Victor Armstrong. A Dr. Kevin
Jackson also completed a disability verification form on Plaintiff’s behalf. There are, however,
no records from either of these doctors contained in the record. We also note Dr. Whetstone’s
examination revealing some weakness in grip strength in both the left and the right hands, and
notations by all three psychologists regarding Plaintiff’s morbid obesity. While we are cognizant
of Plaintiff’s duty to develop the record concerning his disability, we also note that the ALJ
shares in that duty. And, given the fact that the medical record is so scant and that the
impairments Plaintiff complains of are of such great significance, we do believe the ALJ had a
duty to request medical records from both of these doctors. His failure to do so constitutes a
failure to fully and fairly develop the record in this case. See Smith, 435 F.3d at 930. Therefore,
on remand, the ALJ is directed to obtain medical records from Plaintiff’s treating doctors.
Should these records be unavailable, a consultative examination with a neurologist should be
ordered complete with tests to determine the true impact of Plaintiff’s 2006 accident.
On remand, Plaintiff should also request medical records from all other doctors, clinics,
or emergency rooms from which he has sought treatment since his accident in June 2006.
Accordingly, we conclude that the ALJ’s decision is not supported by substantial
evidence and should be reversed and remanded to the Commissioner for further consideration
pursuant to sentence four of 42 U.S.C. § 405(g).
DATED this 28th day of July 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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