Devere v. Social Security Administration Commissioner
Filing
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MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 7, 2016. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
ANDREW MORTON DEVERE
V.
PLAINTIFF
NO. 15-5039
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Plaintiff, Andrew Morton Devere, 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 (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 protectively filed his applications for DIB and SSI on June 26, 2012, alleging
an inability to work since June 1, 1994, due to Asperger’s disease and pervasive
developmental disorder. 1 (Tr. 118-128, 149, 153). An administrative hearing was held on
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Asperger Disorder – (1) a pervasive developmental d. characterized by severe and enduring impairment in
social skills and restrictive and repetitive behaviors and interests, leading to impaired social and occupational
functioning but without significant delays in language development; however, constructs of Asperger d. other
than those in DSM include the criteria of less social impairment than in autism and in impaired
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August 13, 2013, at which Plaintiff was represented by counsel, and he, his mother, and his
employer 2 testified. (Tr. 31-65).
By written decision dated September 16, 2013, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe –
Asperger’s disease and pervasive developmental disorder. (Tr. 18). However, after reviewing
all of the evidence 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. (Tr. 18). 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: he can perform simple, routine, repetitive tasks, in
settings where interpersonal contact is incidental to the work performed, and
supervision is simple, direct, and concrete.
(Tr. 21). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would be able to perform such jobs as hand packer, sweeper,
and poultry hanger. (Tr. 26).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied that request on December 8, 2014. (Tr. 1-5). 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).
II.
Applicable Law:
communications. (2) a DSM diagnosis that is established when the specified criteria are met. Stedman’s
Medical Dictionary 568 (28th ed. 2006).
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As will be discussed in further detail later in this opinion, at the time of the hearing, Plaintiff was working
part-time at Spring Woods Behavioral Health Hospital. (Tr. 46).
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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
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.
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The Commissioner’s regulations require her 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)
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.
III.
Discussion:
Plaintiff argues that the ALJ erred in disregarding the opinions and findings of Dr.
Richard D. Back, Ph.D., and Dr. Connie K. Venhaus, Ph.D.; erred in failing to consider all of
Plaintiff’s impairments in combination; and erred in his RFC determination. (Doc.10).
Plaintiff was born in 1989. (Tr. 149). The record in this case reflects that a
Psychological Evaluation was performed on Plaintiff by Daniel I. Drake, Ph.D., on July 26,
1996, when Plaintiff was diagnosed with oppositional defiant disorder, mixed receptiveexpressive language disorder, and was given a GAF score of 60. (Tr. 285). On December 15,
1998, Dr. Terry L. Efird, Ph.D., referred Plaintiff for consideration of special education and
related services. (Tr. 274).
Five years later, on January 28, 2003, Dr. Back conducted a Mental Status and
Evaluation of Adaptive Functioning. (Tr. 270). Dr. Back noted that Plaintiff’s
communication area of adaptive behavior was severely impaired, and that his concentration
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was markedly impaired on Digit Span. (Tr. 272-273). Dr. Back diagnosed Plaintiff with
pervasive developmental disorder, NOS, and opined that Plaintiff’s condition was not
expected to improve within 12 months. (Tr. 273). Dr. Back concluded that Plaintiff’s
adaptive functioning was consistent with a diagnosis of Mental Retardation. “(The claimant
is not mentally retarded, but his level of adaptive functioning is severely impaired).” (Tr.
273).
On June 6, 2008, Gene Chambers, Ph.D., conducted a Mental Diagnostic Evaluation,
and noted that when asked about the limitations that Plaintiff might have in working a job,
Plaintiff was unable to articulate his deficiencies. (Tr. 301). Plaintiff’s mother then spoke to
Dr. Chambers independently, and acknowledged that she had very little information about
Asperger’s disorder, but from what she had read, he did seem to fit that diagnostic category.
(Tr. 301). Dr. Chambers found Plaintiff’s speech to be limited to understand and that he had
noticeable difficulties pronouncing R sounds, as well as L sounds. (Tr. 303). He was also
slow to formulate his responses. (Tr. 303). Dr. Chambers believed Plaintiff likely had
Borderline to Low Average Intelligence. (Tr. 303). Dr. Chambers reported that Plaintiff
would continue to carry a diagnosis of Pervasive Developmental Disorder, and did appear to
be more like an Asperger’s disorder. (Tr. 304). Dr. Chambers diagnosed Plaintiff with
Pervasive Developmental Disorder (Asperger’s Disorder), Developmental Learning
Disorders, and gave Plaintiff a GAF score of 45-55. (Tr. 304). He further found that
Plaintiff’s capacity to communicate and interact in a socially adequate manner was limited,
based on his Asperger’s Disorder, which included social limitations, and that Plaintiff’s
capacity to communicate in an intelligent and effective way was also limited, not only by his
speech, but by his slowness and processing information. (Tr. 304). Dr. Chambers found
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Plaintiff’s capacity to cope with the typical mental/cognitive demands of basic work-like
tasks had limitations, based on his diagnostic category. (Tr. 305). Dr. Chambers concluded
that Plaintiff’s capacity to attend and sustain concentration on basic tasks, and to sustain
persistence in completing tasks had limitations, and that his capacity to complete work-like
tasks within an acceptable time frame had significant limitations, based on his slowness in
processing and performing executive type functions. (Tr. 305).
On July 16, 2009, Letitia C. Hitz, Ph.D., conducted a Psychological Screening
Evaluation of Plaintiff. (Tr. 330). She reported that Plaintiff graduated from Prairie Grove
High School, and was in special education during his schooling. (Tr. 330). He had special
assistance by the resource teacher as needed, along with accommodations, such as modified
tests and extra time for tests. (Tr. 330). She opined that in training, Plaintiff would benefit
from an apprenticeship program with explicit instruction not relying on book learning, and,
on the job, should be able to operate simple equipment and learn routinized jobs with a
limited number of steps, and that help would probably be needed to establish contingencies
for dealing with deviations from work routine. (Tr. 331).
By report dated July 16, 2013, Loree G. Alrawhani, an Employment Training Advisor
for Workforce, reported that Plaintiff had been a participant in the Workforce Investment Act
Year Round Youth Program (“Workforce”), which is designed for youths in grades 9-12,
since April of 2004, and noted that Plaintiff had difficulty remembering how to complete
tasks correctly and must be shown “multiple times” the correct way to complete the task. (Tr.
244). She indicated that Plaintiff forgot procedures from one work day to the next and had to
be reinstructed on how to accomplish the same task. Although she stated that Plaintiff had
improved in the area of repetitive tasks, it had taken almost two years doing the same task to
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learn, and that adding a new task was a challenge for both Plaintiff and his supervisor. (Tr.
244). She noted her concern that after graduation, Plaintiff would not be able to hold down a
regular full time job in order to support himself, and believed that if Plaintiff was eligible for
social security disability, he would seek out other resources available to him to make his life
productive, yet have the reassurance that he had the financial support he would need to
survive while he struggled with the issues and barriers of everyday life. (Tr. 244).
Also by report dated July 16, 2013, Paul F. DeArmond reported that Plaintiff was
assigned to him at Prairie Grove Battlefield State Park through the “Workforce” program for
a period of 18-24 months, and that it was explained to him that Plaintiff was a special needs
person which he soon experienced. (Tr. 245). He stated that Plaintiff required very close
supervision on most every task, and that he found him using tools in an unsafe manner
performing simple jobs in questionable ways, and sometimes unsafely, and sometimes using
material unwisely and excessively. (Tr. 245). Although he found Plaintiff to be very sweet
and pleasant, he required a lot of work. (Tr. 245).
After graduation from high school, Plaintiff attempted to receive education through
Northwest Arkansas Community College, but was unable to complete more than two courses
per semester and was not able to pass both of the courses. (Tr. 411). Thereafter, Plaintiff
attended the Arkansas Career Training Institute Hot Springs Rehabilitation Hospital
(“ACTI”), beginning on August 14, 2011. (Tr. 365).
On February 29, 2012, Plaintiff underwent a Psychological Evaluation by Connie K.
Venhaus, Ph.D., and Simone Collins, M.S., Practicum Student. (Tr. 169). This psychological
evaluation was requested by the social services department to clarify current intellectual and
adaptive functioning, and to assist in treatment planning. (Tr. 169). It was noted that Plaintiff
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had never lived independently, and received special education services throughout schooling
for learning disorders in reading and written expression. (Tr.l 169). Dr. Venhaus reported that
Plaintiff’s mother indicated that he was able to learn routines after multiple repetitions
accompanied by written instructions, and that Plaintiff became quite anxious if he was asked
to perform quickly, and required close supervision at work and home in order to accomplish
tasks. (Tr. 170). Dr. Venhaus found that Plaintiff’s ability to keep information in mind and
“online” long enough to perform mental operations with it was quite low on Digit Span and
Arithmetic subtests, and that his ratings would suggest “very significant deficits in his
independent living skills with regard to communication, community use, functional
academics, home living, health and safety, leisure, self-care, self-direction, social activities,
and work.” ((Tr. 172). Dr. Venhaus further concluded that Plaintiff’s deficits in adaptive
functioning precluded him from managing activities of daily living at a developmentallyappropriate level, and that he evidenced significant deficits in working memory. (Tr. 172).
She opined that he would function most effectively in supported employment settings that
offered significant structure, guidance, and feedback, and that jobs that required multitasking,
rapid performance of tasks, and independent decision making should be avoided. (Tr. 173).
Dr. Venhaus diagnosed Plaintiff with Pervasive Developmental Disorder, NOS, and gave
him a GAF score of 60. (Tr. 173).
In May of 2012, Plaintiff was nearing the end of his training, and one of his
instructors at ACTI, Curtis Faulkner, indicated Plaintiff was doing a “great job” and was
“work ready.” (Tr. 322). In June of 2012, however, a counselor at Arkansas Rehabilitation
Services indicated that Mr. Faulkner had some concerns about Plaintiff making some
decisions in life when it came to employment and keeping a job. (Tr. 385).
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On August 15, 2012, non-examining consultant, Jerry R. Henderson, Ph.D.,
completed a Psychiatric Review Technique report and a Mental RFC Assessment. (Tr. 341,
355). Dr. Henderson concluded that Plaintiff retained the capacity for simple and repetitive
tasks in an environment in which interpersonal contact was only incidental (unskilled). (Tr.
358). On January 24, 2013, non-examining consultant, Kevin Santulli, Ph.D., affirmed Dr.
Henderson’s findings. (Tr. 419).
Plaintiff was again seen by Dr. Back for a Mental Diagnostic Evaluation on July 29,
2013. (Tr. 420). Dr. Back noted that Plaintiff drove past his office several times, despite
having specific directions from his mother, got lost, and called the receptionist to finish
getting there. (Tr. 421). Dr. Back noted that Plaintiff was employed on a part-time basis at a
cafeteria at Springwoods Psychiatric Hospital, thirty hours per week. (Tr. 422). Dr. Back
reported that Plaintiff’s mother said the only reason he continued to have this job was his
supervisor had appointed herself “angel” to him. (Tr. 422). Dr. Back found Plaintiff’s speech
to be generally difficult to understand, secondary to a speech problem. (Tr. 423). Dr. Back
further found that the current signs, symptoms, and information from his mother were
consistent with autism. (Tr. 425). Dr. Back diagnosed Plaintiff with Autistic Disorder and
gave him a GAF score of 45-55. (Tr. 425). Dr. Back then concluded that Plaintiff suffered
from marked impairments in three areas: his day to day adaptive functioning – finding he
was incapable of completing activities of daily living independently; his capacity to
communicate and interact in a socially adequate manner; and his capacity to sustain
persistence in completing tasks. (Tr. 425). He also found Plaintiff was not able to manage
funds without assistance. (Tr. 426).
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At the hearing held before the ALJ on August 13, 2013, Plaintiff’s boss, Penny
Saunders, testified that Plaintiff had been working for her since December of 2012, and that
he cooked, cleaned, served and delivered trays, and “picked up stuff.” (Tr. 46). She testified
that she had rearranged the menu for him so that he could read the instructions and see what
had to be done, and how it had to be done. (Tr. 47). She stated that she and others worked as
a team and reminded him every day they were with him of what he needed to do, and that
they took the extra time because he had become very special. (Tr. 47). She stated that
Plaintiff still needed constant reminders, and that he sometimes would get distracted and
overwhelmed. (Tr. 49).
Plaintiff’s mother also testified at the hearing, noting that Plaintiff had improved so
much, but throughout his life, had been very delayed. (Tr. 52). She stated that if there was
something she would want him to do, she would need to be very specific about what she
wanted him to do. (Tr. 52). She believed Plaintiff needed somebody to check on him
regularly, and did not think he would be able to have any other job other than working for
Ms. Saunders. (Tr. 56).
As stated earlier, the ALJ found Plaintiff would be able to perform a full range of
unskilled work at all exertional levels. (Tr. 21). In making this determination, the ALJ gave
great weight to the opinions of the non-examining state agency consultants, and gave limited
weight to the opinions of Dr. Venhaus, Dr. Back, Plaintiff’s mother, and third parties. (Tr.
22-25).
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
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descriptions of his limitations. Guilliams v. Barnhart, 393 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 13-4087MWB, 2015 WL 1510159 at *15 (quoting from Willms v. Colvin, Civil No. 12-2871, 2013
WL 6230346 (D. Minn. Dec. 2, 2013).
The regulations provide that more weight is generally given to the opinion of a source
who has examined a claimant than to the opinion of a non-examining source. 20 C.F.R. §§
404.1527(c)(1); 416.927(c)(1). In this case, after considering the record as a whole, the Court
cannot say there is substantial evidence supporting the weight the ALJ gave the various
opinions.
The ALJ stated that he relied “heavily on the opinion of Dr. Henderson, noting that he
and Dr. Santulli were “trained and experienced in the area of disability evaluations according
to Social Security disability program rules.” (Tr. 22). He found both of their opinions to be
entirely consistent with the evidence of record. (Tr. 22). The ALJ discussed Dr. Venhaus’
opinion, and agreed with her opinion that Plaintiff would function most effectively in a
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supported employment setting that offered significant structure, guidance, and feedback, but
would need to avoid multitasking, rapid performance of tasks, and independent decision
making. (Tr.22). However, the ALJ noted that for purposes of disability adjudication, an
individual’s RFC represented the most they can do, and not the least. (Tr. 22).
The ALJ addressed Dr. Back’s opinion, acknowledging that Dr. Back found Plaintiff
had marked limitations in three areas. (Tr. 23). However, the ALJ gave Dr. Back’s opinion
little weight, because Dr. Back’s opinion “relies wholly on the statement of the claimant’s
mother and adopts it,” and relied on the “results of a one-time-only examination of the
claimant, and the subjective reports of the claimant and his mother.” (Tr. 23). The Court
observes that contrary to the ALJ’s assertion, Dr. Back examined Plaintiff two separate times
– in 2003 and 2013.
In this case, the Court finds that the ALJ failed to sufficiently explain the reasons he
gave the opinions of the non-examining physicians more weight than the examining
physicians, and therefore remands this matter to the Commissioner in order for him to more
fully explain why he gave the non-examining physicians’ opinions greater weight than those
of the examining physicians. The Court also suggests that the ALJ give the opinions from the
non-medical sources, such as counselors and instructors, and previous employers “serious
consideration” in accordance with SSR 06-3p. See Hallett v. Colvin, No. 1:13-CV00725(MAT), 2016 WL 551614 at *4 (W.D.N.Y. Feb. 12, 2016). The ALJ should then reevaluate his RFC.
IV.
Conclusion:
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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 7th day of March, 2016.
/s/ Erin L. Steer
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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