Anthony v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on October 31, 2016. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
CHRISTOPHER S. ANTHONY
V.

PLAINTIFF
NO. 15-3063

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Christopher S. Anthony, brings this action pursuant to 42 U.S.C. §405(g),
seeking judicial review of a decision of the Commissioner of the Social Security
Administration (Commissioner) denying his claims for a period of disability and disability
insurance benefits (DIB) and supplemental security income benefits (SSI) under the
provisions of Titles II and XVI of the Social Security Act (Act). 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:
Plaintiff filed his applications for DIB and SSI on April 18, 2013, alleging an inability

to work since November 18, 1983, due to Asperger’s Syndrome; Sensory Intergrative
Dysfunction; Developmentally delayed; Developmental reading disorder; and Dyslexia.
(Doc. 12, pp. 216-228, 278, 283). An administrative hearing was held on May 21, 2014, at
which Plaintiff appeared with counsel, and he and his mother testified. (Doc. 12, pp. 35-74).
By written decision dated September 11, 2014, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe –
Asperger’s syndrome/autism. (Doc. 12, p. 21). However, after reviewing all of the evidence
1

presented, the ALJ determined that Plaintiff’s impairments did not meet or equal the level of
severity of any impairment listed in the Listing of Impairments found in Appendix I, Subpart
P, Regulation No. 4. (Doc. 12, p. 21). The ALJ found Plaintiff retained 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 perform simple, routine, and
repetitive tasks, in a setting where interpersonal contact is incidental to the
work performed. In addition, the claimant can respond to supervision that is
simple, direct, and concrete.
(Doc. 12, p. 22). With the help of the vocational expert (VE), the ALJ determined that during
the relevant time period, Plaintiff would not be able to perform his past relevant work, but
there were other jobs Plaintiff would be able to perform, such as bundle clerk, laundry
worker, and dining room bus person. (Doc. 12, p. 22).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which considered additional information and denied that request on July 7, 2015. (Doc. 12,
pp. 6-10). Subsequently, Plaintiff filed this action. (Doc. 1). This case is before the
undersigned pursuant to the consent of the parties. (Doc. 6). Both parties have filed appeal
briefs, and the case is now ready for decision. (Docs. 10, 11).
The Court has reviewed the entire transcript. The complete set of facts and arguments
are presented in the parties’ briefs, and are repeated here only to the extent necessary.
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. Ramirez v. Barnhart, 292 F. 3d 576, 583
(8th Cir. 2002). Substantial evidence is less than a preponderance but it is enough that a
reasonable mind would find it adequate to support the Commissioner’s decision. The ALJ’s

2

decision must be affirmed if the record contains substantial evidence to support it. Edwards
v. Barnhart, 314 F. 3d 964, 966 (8th Cir. 2003). As long as there is substantial evidence in the
record that supports the Commissioner’s decision, the Court may not reverse it simply
because substantial evidence exists in the record that would have supported a contrary
outcome, or because the Court would have decided the case differently. Haley v. Massanari,
258 F.3d 742, 747 (8th Cir. 2001). In other words, if after reviewing the record, it is possible
to draw two inconsistent positions from the evidence and one of those positions represents
the findings of the ALJ, the decision of the ALJ must be affirmed. Young v. Apfel, 221 F. 3d
1065, 1068 (8th Cir. 2000).
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). 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). A Plaintiff must show that his disability, not simply his impairment, has
lasted for at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential
evaluation process to each claim for disability benefits: (1) whether the claimant had engaged
in substantial gainful activity since filing his claim; (2) whether the claimant had a severe
physical and/or mental impairment or combination of impairments; (3) whether the
impairment(s) met or equaled an impairment in the listings; (4) whether the impairment(s)
3

prevented the claimant from doing past relevant work; and (5) whether the claimant was able
to perform other work in the national economy given his age, education, and experience. See
20 C.F.R. §§404.1520, 416.920 Only if the final stage is reached does the fact finder
consider the Plaintiff’s age, education, and work experience in light of his RFC. See McCoy
v. Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §§404.1520, 416.920,
abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20
C.F.R. §§404.1520, 416.920.
III.

Discussion:
Plaintiff’s sole argument in this matter is that the ALJ erred in his RFC determination.

RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is assessed using all relevant evidence in the record. Id. This includes
medical records, observations of treating physicians and others, and the claimant’s own
descriptions of his limitations. Gilliam’s v. Barnhart, 3 93 F.3d 798, 801 (8th Cir. 2005);
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from
symptoms such as pain are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3).
The United States Court of Appeals for the Eighth Circuit has held that a “claimant’s residual
functional capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.
2001). Therefore, 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). “[T]he ALJ is [also] required to set forth
specifically a claimant’s limitations and to determine how those limitations affect his RFC.”
Id. “The ALJ is permitted to base its RFC determination on ‘a non-examining physician’s
opinion and other medical evidence in the record.’” Barrows v. Colvin, No. C 13-40874

MWB, 2015 WL 1510159 at *11 (N.D. Iowa Mar. 31, 2015)(quoting from Willms v. Colvin,
Civil No. 12-2871, 2013 WL 6230346 (D. Minn. Dec. 2, 2013).
With respect to the weight given to the opinions of treating physicians, “[a]
claimant’s treating physician’s opinion will generally be given controlling weight, but it must
be supported by medically acceptable clinical and diagnostic techniques, and must be
consistent with other substantial evidence in the record.” Andrews v. Colvin, No. 14-3012,
2015 WL 4032122 at *3 (8th Cir. July 2, 2015)(citing Cline v. Colvin, 771 F.3d 1098, 1102
(8th Cir. 2014). “A treating physician’s opinion may be discounted or entirely disregarded
‘where other medical assessments are supported by better or more thorough medical
evidence, or where a treating physician renders inconsistent opinions that undermine the
credibility of such opinions.’” Id. “In either case-whether granting a treating physician’s
opinion substantial or little weight-the Commissioner or the ALJ must give good reasons for
the weight apportioned.” Id.
In this case, the ALJ was presented with several letters from Plaintiff’s mother, father,
principal caregiver, Godparent, a licensed professional counselor who counseled Plaintiff
from the seventh grade through the tenth grade, and a case manager who worked with
Plaintiff when he was in high school. (Doc. 12, pp. 252, 256, 258, 260, 336). The ALJ was
also presented with a Mental Diagnostic Evaluation, conducted by W. Charles Nichols,
Psy.D. (Doc. 12, p. 468), and a Mental RFC Assessment, completed by John P. Godfrey,
Ph.D. (Doc. 12, p. 478). The ALJ also had before him the treatment records of Plaintiff’s
long-time family physician, Dr. Russ Krienke, Medical Director of Austin Regional Clinic.
After evaluating all of the evidence of record, the ALJ afforded little or no weight to
the opinions expressed by Dr. Krienke, finding that his opinions were inconsistent with the
5

testing results and opinions of Dr. Nichols, which the ALJ gave substantial weight. (Doc. 12,
p. 20, 26). The ALJ also gave significant weight to the opinions of Mary Crook, a licensed
professional counselor, who worked with Plaintiff for approximately four years while he was
in high school. (Doc. 12, p. 20). The ALJ gave little or no weight to the opinions of Dr.
Godfrey, finding that his opinions were based upon a single interaction with Plaintiff, and
finding it to be at odds with other evidence in the record. (Doc. 12, p. 26). Finally, the ALJ
gave less weight to the opinions of Plaintiff’s friends and family than he gave to the opinions
offered by medical sources. (Doc. 12, p. 26).
Mary Crook began working with Plaintiff when he was in the seventh grade, and
continued to work with him off and on through the tenth grade. She kept in touch while he
finished his junior and senior years at Austin High School. (Doc. 12, p. 336). She believed
high school was better for Plaintiff simply because the other students gained enough manners
through maturity to not react when Plaintiff was different or inappropriate. Ms. Crook opined
that Plaintiff was unable to get and keep employment without assistance, but did see him as
trainable in many areas with “consistent training and job monitoring.” (Doc. 12, p. 336).
In his evaluation dated May 20, 2013, Dr. Nichols, who also met with Plaintiff only
one time, noted that Plaintiff was unable to recall much about his mental health history, and
believed Plaintiff’s mother appeared to “overfunction” for him in some areas of life. (Doc.
12, p. 468). Dr. Nichols also noted that Plaintiff reported he was suspended approximately
ten times from school for anger displays and talking back to teachers. (Doc. 12, p. 469). Dr.
Nichols found that Plaintiff presented as socially aloof and awkward with poor facial regard
and restricted affect, regularly displayed frustration and irritation with his mother, and
displayed rigid adherence to routines, schedules, and excessive orderliness with his

6

belongings. (Doc. 12, p. 472). He diagnosed Plaintiff with Asperger’s Disorder and gave him
a GAF of 60. (Doc. 12, p. 472). Dr. Nichols found that Plaintiff had mild impairment of
activities of daily living functioning, with primary impairments in social functioning; his
capacity to interact and communicate with others was likely to be aloof and unlikely to be
warm and spontaneous secondary to Asperger’s disorder; and his social mannerisms were
underdeveloped and awkward. (Doc. 12, p. 472). He noted that Plaintiff markedly struggled
with simple math and seemed to have a poor sense of timeliness, had average cognitive
abilities and mental efficiency, had average attention capacity, had average attention to detail
and response quality, and responded with average pace. (Doc. 472-473).
On September 27, 2013, Dr. Godfrey completed a Mental RFC Assessment and noted
that autism is not a treatable disorder, but is a chronic debilitating condition. (Doc. 12, p.
478). Dr. Godfrey found that as demonstrated by his behavior/responsiveness in the
interview, as well as his reported history, Plaintiff had marked abilities in all categories
relating to social interaction. (Doc. 12, p. 480). He found Plaintiff had a marked ability in
responding appropriately to changes in the work setting, and that Plaintiff’s impairment
substantially interfered wiith his ability to work on a regular and sustained basis at least 20%
of the time. (Doc. 12, pp. 480-481). Dr. Godfrey concluded that Plaintiff could work on a
regular and sustained basis in light of his mental impairment, such as a sheltered workshop,
where his cognitive inflexibility and difficulty with nuances of social reciprocity could be
taken into account. (Doc. 12, p. 481). He also found that the statement made by Angela
Morris, who was Plaintiff’s case manager when he was in high school, correctly portrayed
the kind of challenges that markedly impaired Plaintiff. He further found that Plaintiff could

7

not manage his own funds, and that he was naïve and likely to be “predated upon.” (Doc. 12,
p. 481).
Angela Morris wrote two letters on Plaintiff’s behalf – one dated February 20, 2013,
and one dated May 13, 2014. (Doc. 12, pp. 252, 372). In the February 2013 letter, Ms. Morris
reported that she was Plaintiff’s case manager when he was in high school and was employed
as a specialist in the special education program specified as support for students with
emotional disabilities. (Doc. 12, p. 252). She stated that because of his Asperger’s, Plaintiff
could not distinguish motives of others, and that based on thirty-five years of teaching and
watching outcomes, she worried about what would become of Plaintiff unless he could get
some intervention or actual disability income apart from his parents. (Doc. 12, p. 253). She
noted that in the ten years since he graduated, Plaintiff had lost two jobs, and without
intervention, this was likely to continue. (Doc. 112, p. 252).
Less than one month after the ALJ’s decision, additional letters from family and
friends were submitted. 1 One was a letter from Plaintiff’s aunt, who stated that she had
thought about offering to take care of Plaintiff should something happen to her sister, but she
feared he might become angry about something and murder her in her sleep. (Doc. 12, p.
1

When the Appeals Council has considered material new evidence and nonetheless declined
review, the ALJ's decision becomes the final action of the Commissioner. We then have no
jurisdiction to review the Appeals Council's action because it is a nonfinal agency action.
See Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992). At this point, our task is only to
decide whether the ALJ's decision is supported by substantial evidence in the record as a
whole, including the new evidence made part of the record by the Appeals Council that was
not before the ALJ. As the United States Court of Appeals for the Eighth Circuit has noted,
"this [is] a peculiar task for a reviewing court." Riley v. Shalala, 18 F.3d 619, 622 (8th
Cir.1994). However, once it is clear that the Appeals Council considered the new evidence,
then we must factor in the evidence and determine whether the ALJ's decision is still
supported by substantial evidence. This requires us to speculate on how the ALJ would have
weighed the newly submitted evidence had it been available at the initial hearing. Flynn v.
Chater, 107 F.3d 617, 621 (8th Cir.1997). Thus, we have endeavored to perform this
function with respect to the newly submitted evidence.
8

377). In addition, a letter was submitted from the individual Plaintiff assisted with yard work
and gardening, which was referred to by the ALJ in his decision. (Doc. 12, p. 25). The ALJ
noted that Plaintiff had performed some yard work for a neighbor in exchange for payment
after his alleged onset date, and considered this a factor influencing his decision. (Doc. 12, p.
25). However, in the letter submitted by the neighbor, dated October 4, 2014, she reported
that Plaintiff was frustrated because the work had to be done by hand. (Doc. 12, p. 398). She
also found that she needed to work along with him constantly. “If I told him to do a task and
when he finished that, what to start next, he would tell me that he would not be able to
remember.” (Doc. 12, p. 398). She also stated that if she suggested that he finish a project
alone, he insisted that he could not do it by himself, and was not willing to change his
workday when she needed him to. (Doc. 12, p. 398). She reported that they agreed mutually
that he would not help her anymore. She concluded, “Chris perceives the world in a different
way than most of us do. This filter is built in and not of his choosing.” (Doc. 12, p. 398).
Although the ALJ gave Mary Crook’s opinion significant weight, he failed to address
her opinion that Plaintiff was unable to get and keep employment “without assistance,” and
that he would need “consistent training and job monitoring.” This is consistent with Dr.
Godfrey’s opinion, to which the ALJ afforded little or no weight.
The Court finds the ALJ’s conclusions are inconsistent with the weight he gave to the
various opinions. The Court also notes that the Eighth Circuit has found that “[t]he evidence
must show the claimant has ‘the 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.’” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)(quoting McCoy v.

9

Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (en banc), abrogated on other grounds, 524
U.S. 266, 118 S.Ct. 1984, 141 L.Ed.2d 269 (1998).
Accordingly, the Court finds this matter should be remanded in order for the ALJ to
obtain another in-depth mental diagnostic evaluation, along with a Mental RFC assessment
from a mental health expert, and to clearly set forth his findings that are consistent with the
entire record.
IV.

Conclusion:
Accordingly, the Court concludes that the ALJ’s decision is not supported by

substantial evidence, and therefore, reverses and remands this matter to the Commissioner for
further consideration pursuant to sentence four of 42 U.S.C. §405(g).
IT IS SO ORDERED this 31st day of October, 2016.
/s/ Erin L. Steer
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

10