HARROLD v. ASTRUE
Filing
16
ORDER re 1 Complaint filed by JERRY HARROLD: Decision of the Commissioner is AFFIRMED. Clerk directed to enter final judgment and close file. Signed by MAGISTRATE JUDGE GARY R JONES on 1/11/2012. (jws)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
JERRY HARROLD,
Plaintiff,
vs.
CASE NO. 1:10-cv-247-GRJ
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.
/
ORDER
Plaintiff appeals from a final decision of the Commissioner of Social Security (the
“Commissioner”) denying his applications for a period of disability, disability insurance
benefits, and supplemental security income. (Doc. 1.) The Commissioner has
answered (Doc. 9), and both parties have filed briefs outlining their respective positions.
(Docs. 14 and 15.) The parties consented to the exercise of jurisdiction by a United
States Magistrate Judge, and the case has been referred to the undersigned pursuant
to 28 U.S.C § 636(c). (Docs. 12, 13.) For the reasons discussed below, the
Commissioner’s decision is due to be AFFIRMED under sentence four of 42 U.S.C. §
405(g).
I. PROCEDURAL HISTORY
Plaintiff’s applications alleged a disability onset date of February 7, 2008, due to
stress, mental conditions, and inability to concentrate. R. 64-65, 116-21, 136. Plaintiff’s
applications were denied initially and upon reconsideration. Thereafter, Plaintiff timely
pursued his administrative remedies available before the Commissioner, and requested
a hearing before an Administrative Law Judge (“ALJ”). On March 8, 2010, the ALJ
conducted Plaintiff’s administrative hearing. R. 34-63. On April 6, 2010, the ALJ
issued a decision unfavorable to Plaintiff. R. 14-27. Plaintiff timely filed a request for
review with the Appeals Council, which denied his request. On December 15, 2010,
Plaintiff filed the instant appeal to this Court. Doc. 1.
II. STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial
evidence.1 Substantial evidence is more than a scintilla, i.e., the evidence must do
more than merely create a suspicion of the existence of a fact, and must include such
relevant evidence as a reasonable person would accept as adequate to support the
conclusion.2
Where the Commissioner's decision is supported by substantial evidence, the
district court will affirm, even if the reviewer would have reached a contrary result as
finder of fact, and even if the reviewer finds that the evidence preponderates against
the Commissioner's decision.3 The district court must view the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision.4
However, the district court will reverse the Commissioner's decision on plenary review if
1
See 42 U.S.C. § 405(g).
2
Foote v. Chater, 67 F.3d 1553, 1560 (11 th Cir. 1995) (citing W alden v. Schweiker, 672 F.2d 835,
838 (11 Cir. 1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842
(1971)); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11 th Cir. 1991).
th
3
Edwards, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11 th Cir. 1991).
4
Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11 th Cir. 1992) (holding
that the court m ust scrutinize the entire record to determ ine reasonableness of factual findings); Parker v.
Bowen, 793 F.2d 1177 (11th Cir. 1986) (finding that the court also m ust consider evidence detracting from
evidence on which the Com m issioner relied).
2
the decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law.5
The law defines disability as the inability to do any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be
expected to result in death, or has lasted or can be expected to last for a continuous
period of not less than twelve months.6 The impairment must be severe, making
Plaintiff unable to do her previous work, or any other substantial gainful activity which
exists in the national economy.7
The ALJ must follow five steps in evaluating a claim of disability.8 First, if a
claimant is working at a substantial gainful activity, she is not disabled.9 Second, if a
claimant does not have any impairment or combination of impairments which
significantly limit her physical or mental ability to do basic work activities, then she does
not have a severe impairment and is not disabled.10 Third, if a claimant's impairments
meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is
disabled.11 Fourth, if a claimant's impairments do not prevent her from doing past
5
Keeton v. Dep’t Health and Hum an Servs., 21 F.3d 1064, 1066 (11 th Cir. 1994).
6
42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505.
7
42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
8
20 C.F.R. §§ 404.1520, 416.920. The claim ant has the burden of proving the existence of a
disability as defined by the Social Security Act. Carnes v. Sullivan, 936 F.2d 1215, 1218 (11 th Cir. 1991).
9
20 C.F.R. § 404.1520(b).
10
20 C.F.R. § 404.1520(c).
11
20 C.F.R. § 404.1520(d).
3
relevant work, she is not disabled.12 Fifth, if a claimant's impairments (considering her
RFC, age, education, and past work) prevent her from doing other work that exists in
the national economy, then she is disabled.13
The burden of proof regarding the plaintiff’s inability to perform past relevant
work initially lies with the plaintiff.14 The burden then temporarily shifts to the
Commissioner to demonstrate that “other work” which the claimant can perform
currently exists in the national economy.15 The Commissioner may satisfy this burden
by pointing to the grids for a conclusive determination that a claimant is disabled or not
disabled.16
However, the ALJ should not exclusively rely on the grids when the claimant has
a non-exertional impairment which significantly limits his or her basic work skills or
when the claimant cannot perform a full range of employment at the appropriate level of
exertion.17 In a situation where both exertional and non-exertional impairments are
12
20 C.F.R. § 404.1520(e).
13
20 C.F.R. § 404.1520(f).
14
W alker v. Bowen, 826 F.2d 996, 1002 (11th Cir. 1987). See Also Doughty v. Apfel, 245 F.3d
1274, 1278 (11 th Cir. 2001).
15
Doughty at 1278 n.2 (“In practice, the burden tem porarily shifts at step five to the
Com m issioner. The Com m issioner m ust produce evidence that there is other work available in significant
num bers in the national econom y that the claim ant has the capacity to perform . In order to be considered
disabled, the claim ant m ust then prove that he is unable to perform the jobs that the Com m issioner lists.
The tem porary shifting of the burden to the Com m issioner was initiated by the courts, and is not
specifically provided for in the statutes or regulations.”) (internal citations omitted).
16
W alker at 1002 (“[T]he grids m ay com e into play once the burden has shifted to the
Com m issioner to show that the claim ant can perform other work.”)
17
Phillips v. Barnhart, 357 F. 3d 1232, 1243 (11th Cir. 2004); W olfe v. Chater, 86 F.3d 1072, 1077
(11 Cir. 1996); Jones v. Apfel, 190 F.3d 1224, 1229 (11 th Cir. 1999); W alker at 1003 (“the grids m ay be
used only when each variable on the appropriate grid accurately describes the claim ant’s situation”).
th
4
found, the ALJ is obligated to make specific findings as to whether they preclude a wide
range of employment.18
The ALJ may use the grids as a framework to evaluate vocational factors so long
as he introduces independent evidence of the existence of jobs in the national economy
that the claimant can perform.19 Such independent evidence may be introduced by a
vocational expert’s testimony, but this is not the exclusive means of introducing such
evidence.20 Only after the Commissioner meets this burden does the burden shift back
to the claimant to show that he or she is not capable of performing the “other work” as
set forth by the Commissioner.21
III. SUMMARY OF THE RECORD EVIDENCE
The relevant portions of the administrative record may be summarized as
follows. In 2006 Plaintiff was committed to the North Texas State Hospital (NTSH)
following his indictment for assault. Plaintiff had been drinking heavily and hit his uncle
in the head with a cordless drill during an altercation. The court ordered a competency
examination, and Dr. Berle Childers felt that Plaintiff had a delusional disorder with
paranoid features that compromised his ability to communicate with his lawyer. The
NTSH notes state that the psychological profile used by Dr. Childers reflected “one
score elevation that was considered in the pathological range on the scale. However,
there was no other indication of psychiatric illness or conditions.” R. 213-72. The
18
W alker at 1003.
19
W olfe at 1077-78.
20
See id.
21
See Doughty at 1278 n.2.
5
NTSH notes further reflect that Plaintiff’s “[m]ental status exam was unremarkable for
flagrant/overt Axis I symptomatology. He denied hallucinations of either an auditory or
visual nature. He denied neurovegetative symptoms consistent with mania or
depression. He denied homicidal and/or suicidal ideation. He did seem preoccupied at
times with issues of race and homosexuality . . . . At times these beliefs seem
delusional. At other times, he merely seems bigoted.” Id. at 218. Plaintiff was neat,
clean, cooperative, and his behavior was normal. His thought process was organized,
goal-directed, logical, and circumstantial; he was oriented to time, person, place, and
situation; his judgment and insight were fair; he had average intellectual functioning;
memory was grossly intact; and he was able to concentrate on, and pay attention to,
given tasks within an interview setting. Id. at 222-26, 238. The evaluator concluded
that Plaintiff should “[e]nter into competency training milieu as soon as clinically feasible
. . . [n]o medications at this time but will continue to monitor for signs of Axis I illness
that might respond to medications.”
Plaintiff was discharged from NTSH on July 25, 2006, the court-mandated
discharge date, but because NTSH staff concluded he needed medication that could
not be provided before the discharge date he was re-admitted. At intake, Plaintiff
stated that he had “no problems” and no hallucinations, but agreed to take psychiatric
medication for the first time. Id. at 243-72. Plaintiff denied any history of psychiatric
treatment, and admitted a history of polysubstance abuse. Plaintiff was discharged
October 26, 2006, as competent to stand trial. Gail I. Johnson, M.D., diagnosed
Plaintiff with schizoaffective disorder, noting that he was improved and had done “very
well within his current treatment.” Id. at 264.
6
On November 30, 2007, Plaintiff sought treatment for anxiety and medication
evaluation through Urgent Care Gainesville. Although the notes initially disclosed
auditory hallucinations, during a psychiatric consult Plaintiff denied auditory or visual
hallucinations. A mental status examination showed that Plaintiff was pleasant,
cooperative, had good eye contact, his mood was, in his words, “not too bad”, his affect
was anxious. Plaintiff was assessed with reactive depression with anxiety features,
history of nicotine dependence, and polysubstance abuse (alcohol, cocaine, and crystal
meth). He was prescribed anti-anxiety medication and advised to follow up with the
Gainesville Mental Health Clinic. Id. at 484-93.
Plaintiff presented to the emergency department on February 8, 2008,
requesting a refill of anxiety medication. The notes reflect that Plaintiff had taken the
medication for 14 days following his 11/30/07 visit, and had missed an appointment with
the mental health clinic on 12/7/07. Plaintiff reported additional stress due to having
lost his job two days previously and that he was considering applying for disability
benefits. He reported occasionally hearing voices. Plaintiff was given a duplicate of his
previous prescription and scheduled for follow-up with the mental health clinic. Id. at
471.
On February 21, 2008, Plaintiff reported hallucinations, delusions, and difficulty
managing anger. He reported that he had lost his job the week before for fighting. He
was cooperative, with no visible hallucinatory behavior, normal affect, and appropriate
speech, with some slight psychomotor agitation. A depression screen suggested “mild
depression.” The physician noted that Plaintiff’s symptoms seemed consistent with an
Axis I psychotic disorder, with “substance abuse conceivably present or causative.” He
7
prescribed anti-psychotic medication and Plaintiff was scheduled to attend the mental
health clinic. Id. at 459-67.
Plaintiff underwent a psychiatric assessment at the VA Mental Health Clinic on
February 25, 2008. He was not on medication. Plaintiff described depressive episodes
beginning at age 35, manic episodes beginning at age 25, auditory hallucinations
beginning at age 13, visual hallucinations, thought insertion, paranoid delusions,
anxiety, and obsessive compulsive disorder (OCD) behaviors including washing his
hands 15 times per day and counting money, steps, and other items. Joanne T.
Donnell, ARNP, diagnosed Plaintiff with schizoaffective disorder, chronic, bipolar type;
OCD; and polysubstance abuse in sustained partial remission. She recommended
biweekly psychotherapy. Id. at 453-58.
On March 17, 2008, Tammy Hendrix, M.S.W., conducted an initial case
management visit for the VA’s Mental Health Integrated Supportive Action program
(MISA) while Plaintiff was confined in jail on a domestic battery charge. Plaintiff
displayed manic affect and disorganized cognitive status, but Ms. Hendrix noted that,
“once stabilized,” Plaintiff could be appropriate for the VA Supported Employment
Program (SEP). Ms. Hendrix assessed: “Polysubstance [disorder] (reports approx. 1
month sober), Newly diagnosed psychotic [disorder not otherwise specified] with no
consistent medication regimen. Minimal [auditory hallucinations], unsure as to [visual
hallucinations]. Manic affect, but overall pleasant mood and relatively coherent thought
process. Early abstinence, secondary to time in jail and absence of funds.” She
scheduled Plaintiff for MISA group appointments beginning in March 2008. Id. at 44648.
8
Progress notes by a social work intern who visited Plaintiff in jail on April 8, 2008,
reflect that while Plaintiff’s appearance was disheveled, he was alert and oriented x4,
made good eye contact, his thought process was logical and coherent, and he exhibited
no overt delusional thinking. His affect was normal with regular range and his mood
was anxious. The social worker assessed: “Early sobriety as a result of vet being
incarcerated. Vet reports taking his meds and is currently experiencing minimal
paranoia.” R. 434-35.
On April 18, 2008, Plaintiff reported “no chronic medical problems that
interfere[d] with his life,” that he was not taking any medication regularly, and he had no
medical problems in the last 30 days. Id. at 421. On April 21, 2008, Ms. Hendrix
assessed polysubstance abuse, newly-diagnosed psychotic disorder NOS with no
consistent medication regimen, minimal auditory hallucinations, and manic affect. Id. at
420.
In May 2008, Plaintiff was released from jail and transported to the Gainesville
VA Medical Center for appointments and medication, followed by transport and
placement in Serenity House, Daytona, under VA contract. Dr. James C. Byrd
provisionally diagnosed bipolar disorder, but wanted to rule out impulse control
disorder, and substance-induced mood disorder. Plaintiff reported having worked for a
while at Hunter Marine, but his work history became erratic and he was banned from
the day labor pool. Plaintiff stated he had experienced auditory hallucinations in the
past, although it was unclear whether such hallucinations were related to substance
abuse. Plaintiff was alert and oriented x4, mildly guarded but conversational and
cooperative. Plaintiff was further assessed as “[g]enerally pleasant, fairly full,
9
congruent affect, speech is spontaneous, logical, relevant, and goal-directed. No
delusions. No A/V hallucinations. Insight and judgment are limited but adequate[.]” Id.
at 407-09.
On June 10, 2008, Plaintiff was seen in the outpatient clinic complaining of pain
in his right leg (knee and hip) that had recently become more intense. Plaintiff reported
that he fractured the leg in 1981 in a car crash. Radiographs reflected minimal
degenerative changes in the right hip and trochanter bursal calcifications. Plaintiff was
advised to take anti-inflammatories and was given knee support. Id. at 348, 371, 37576.
On June 24, 2008, psychiatrist Celia Rodriguez, M.D., assessed psychotic
disorder, not otherwise specified, alcohol abuse in remission, and osteoarthritis. She
noted Plaintiff reported auditory hallucinations. Id. at 349-50.
On July 17, 2008, during an interview with Anne Catherine Opuda, ARNP,
Plaintiff’s MISA program case manager, Plaintiff denied any substance abuse problem,
stating that he did have one in the past, but was recovered and now his primarily
problem with “getting along with people.” Plaintiff reported auditory hallucinations but
did not appear to be responding to “internal stimuli.” He stated that he needed to find a
job now that he was taking psychiatric medication. That same day, Plaintiff and Serenity
House staff requested an additional 30 days of treatment, and Plaintiff’s stay was
extended to August 19, 2008. Id. at 335-36.
Plaintiff was discharged from Serenity House on August 19, 2008, and
transferred to Dogwood, a VA transitional housing facility. In a letter dated September
10
2, 2008, Ms. Opuda noted that Plaintiff was participating in MISA daily and was under
court order to participate in treatment. Id. at 308, 318-19.
A progress note on September 3, 2008 indicated Plaintiff had “psychosis NOS
with bipolar features” and cited goals of stabilizing Plaintiff’s psychotic and mood
symptoms by March 2009, primarily with medication. The progress note indicated that
Plaintiff would be referred to the VA supported employment program in order to meet
his objective of getting a job by March 2009. Id. at 534-35.
Plaintiff participated in outdoor MISA group activities in August and September
2008, including one-mile nature walks along Hogtown Creek, and hikes at Paynes
Prairie State Park and a hike into the sinkhole at the Devil’s Millhopper State Park. Id.
at 502, 519, 524. Plaintiff’s disability claim for an alleged service connected right hip
injury was denied because his hip injury preceded his military service. Id. at 599.
Plaintiff reported right knee pain to Janet M. Caruso, M.D. on September 22, 2008, and
she noted no deformity, effusion, warmth, or erythema, negative drawer test, and no
joint space widening, but crepitus with motion. Id. at 508-10.
On September 29, 2008, Plaintiff reported to a MISA psychiatrist that he was
doing well and denied any mania or depression. Plaintiff stated that when he starts
thinking too fast, he can calm himself down. Plaintiff expressed that he attended MISA
group activities daily, and enjoyed the program. Id. at 502-03.
Plaintiff’s MISA group counseling progress notes reflect that he was consistently
alert, appropriate, and engaged in the program, which focused on overcoming
addiction. See e.g. id. at 309, 315-87, 519, 715, 722.
11
X-rays of Plaintiff’s right knee on October 17, 2008, showed hyperostosis, but no
joint effusion, arthritis, or other focal bony abnormality. Id. at 738. A cane was ordered
for Plaintiff. Id. at 561. Plaintiff underwent an orthopedic consultation with Scott L.
Myers, M.D., on November 14, 2008; treatment notes reflect that Plaintiff had a
“progressive catching and locking sensation in his right knee” with mild antalgic gait and
full range of motion. X-rays revealed small osteophytes in the right knee, but no
significant sclerosis and no cystic changes. The physician noted a possible medial
meniscus tear and ordered an MRI. The MRI indicated hyperostosis, intact ligaments,
and no meniscal tear. Id. at 641, 736-37.
On November 18, 2008, Dr. Byrd noted Plaintiff was doing fairly well, with stable
moods. Id. at 637-40. On November 26, 2008, Ms. Opuda noted that Plaintiff’s
diagnosed mental disorders were stable, he was getting along with roommates,
interacting socially with other veterans, and reported his mood was good. Id. at 626-27.
A progress noted dated December 1, 2008 indicated that Plaintiff was not interested in
the VA supported employment (SE) program but was interested in the Transitional
Work Experience (TWE) program and Ms. Opuda made a consult. Id. at 618. On
December 10 and 31, 2008, Ms. Opuda noted that Plaintiff’s polysubstance abuse was
in “sustained remission,” he was getting along with his roommates and interacting
socially with other vets, and he was engaging helpfully in chores. Plantiff’s mental
status was assessed as: Alert, oriented x4, able to articulate feelings, described mood
as “good,” constricted affect, thought process coherent and responses relevant to topic,
appropriate eye contact without pressured speech, adequate attention and working
12
memory, no suicidal/homicidal ideation, no auditory/visual hallucinations, no evidence
of delusional thinking. Id. at 596, 608-09.
The progress notes reflect that in 2009, Ms. Opuda consistently noted a
diagnosis of “stable” bipolar disorder with psychotic features versus impulse control
disorder, although there was some exacerbation of symptoms in late 2009 including
reported auditory hallucinations and irritability. See id. at 596, 647-48, 653, 663, 672,
678, 721, 725, 728, 863, 890, 902, 929, 977, 997, 1018. Plaintiff was enrolled in TWE
on February 4, 2009, and performed average or above average work as a
groundskeeper. His site supervisor indicated that Plaintiff was “an asset . . . [v]ery
dependable in all duties performed.” However, Plaintiff was terminated from the TWE
program on March 26, 2009, after testing positive for cocaine. Id. at 709.
Plaintiff re-entered residential substance abuse treatment at Serenity House on
July 17, 2009, and was discharged 60 days later, having met goals of sobriety and
mental stability. Id. at 763-77. Serenity House notes at discharge indicate that “Jerry
has the ability to gain employment and earn income. Jerry has a strong desire to seek
and obtain employment.” Id. at 799.
Plaintiff returned to the VA’s Dogwood transitional housing in September 2009,
and then moved to an apartment at Bailey Village, another VA transitional housing
facility, in October 2009. Plaintiff reported that he occasionally looked for job openings
and did “side jobs” helping friends and doing minor repairs for extra money. Plaintiff
was given information about the VA’s supported employment program because he met
the diagnostic criteria, with a goal of competitive employment in the community, but
expressed that he would like to return to the TWE to complete that program. Progress
13
notes indicate that Plaintiff could be “re-referred in the future as appropriate once
veteran is motivated to seek employment in the community.” Id. at 894-96.
As of December 2009, Plaintiff had not begun an active job search, but remained
involved in MISA activities, including actively participating in an exercise group four
days per week and one-mile walks. He reported a goal of securing employment in the
community, and specifically expressed interest in securing work in either a factory or
warehouse setting. Id. at 972-73, 1046.
Plaintiff sought treatment with Dr. Byrd in December 2009 after reporting
increased auditory hallucinations, but reported improvement a few days later with
medication adjustment. Id. at 964-66. In January 2010, Plaintiff showed no evidence
of paranoia or excessive guardedness, he had good emotional control, he was friendly,
conversational and cooperative; his affect was fairly full and congruent, and he had no
delusions or auditory/visual hallucinations. Dr. Byrd noted a diagnosis of bipolar
disorder with psychotic features. Id. at 1049-53.
Plaintiff was 46 years old at the time of the administrative hearing in March 2010.
He testified that he completed school through twelfth grade, and served in the Army for
three years. Plaintiff drove a tractor-trailer in the Army. At the time of the hearing,
Plaintiff lived in a VA apartment with a roommate. Plaintiff reported a dual diagnosis of
mental health issues and substance abuse. His VA housing is a sober-living facility,
and he continued to participate in the MISA program. Plaintiff testified that he had not
used illegal drugs since 2005 and had been sober for almost a year. Plaintiff testified
that he suffers from shakes, and that he has hallucinations once or twice every two or
three months, lasting four or five days. When he is not attending meetings in the MISA
14
program, Plaintiff watches TV, shops for food, and prepares his own meals. Plaintiff
uses a cane due to a problem with his right knee locking up, and stated that he was
being evaluated for surgery. Plaintiff testified that he could sit for no more than two
hours at a time due to his knee and mental issues, that he could stand 45 minutes to an
hour, and that he could walk a couple of blocks without his cane before his leg would
hurt. Plaintiff testified that he could lift 25-30 pounds while sitting.
With respect to the reported diagnosis of bipolar disorder, Plaintiff testified that
he cycles up and down often, and that he has difficulty sleeping when he is up. When
he is down, he does not see his friends and sometimes goes without eating. Plaintiff
testified that MISA had been big help with his mental health problems, and that he
attends meetings five days a week from 9:00 a.m. to 2:00 p.m. Plaintiff usually donates
plasma twice a week for extra money. R. 34-55.
The ALJ asked a vocational expert (VE) to consider a hypothetical individual of
Plaintiff’s age, education, and work experience, with an RFC for a restricted range of
light work, including simple work-related tasks and some moderately complex tasks,
and only superficial contact with co-workers and the public. The VE testified that such
an individual could work as a data examination clerk (850 jobs in the region and
220,000 jobs in the nation), clerical worker (750 jobs in the region and 185,000 jobs in
the nation), or cashier (800 jobs in the region, 130,000 jobs in the nation). Id. at 58-59.
IV. ALJ’S FINDINGS
The ALJ determined that Plaintiff met the earnings requirements of the Act
through August 30, 2008. In his review of Plaintiff’s testimony and the medical records,
the ALJ determined that Plaintiff suffered from the severe impairments of bipolar
15
disorder (provisional), and mechanical and musculoskeletal problems affecting the use
of his right leg. The ALJ concluded that Plaintiff did not have an impairment or
combination of impairments that met or equalled the listings. The ALJ concluded that
because Plaintiff’s mental impairments, as documented in the record, do not reflect at
least two “marked” limitations, or one “marked” limitation and “repeated” episodes of
decompensation, the Paragraph B criteria were not satisfied under section 12.03 of the
listings. The ALJ also concluded that the Paragraph C criteria (inability to function
outside of a highly supported living situation) were not satisfied because there was no
evidence of such “florid” psychotic episodes or mental disorder which reflected an
inability to function outside of such a living situation, apart from Plaintiff’s alcohol
dependence. The ALJ observed that when participating in drinking or drug abuse,
Plaintiff exhibits moderate restrictions in daily activities, social functioning, and
concentration, persistence, or pace. Without substance abuse, Plaintiff exhibits no
more than mild restrictions in activities of daily living, and moderate difficulties in social
functioning and in concentration, persistence, or pace.
In making these findings, the ALJ noted that he had the opportunity to personally
assess Plaintiff’s statements regarding his symptomology at the hearing. The ALJ
noted that Plaintiff’s testimony that he had not used drugs since 2005 was at odds with
his other statements in the record admitting more recent drug use, and with his
dismissal from the TWE in 2009 due to a positive drug screen. The ALJ noted that
Plaintiff had made inconsistent statements about his social/family history with respect to
whether he was married and how many children he had.
The ALJ reviewed Plaintiff’s provisional diagnosis of bipolar disorder and
16
diagnosis of psychotic disorder NOS, but also noted that the course of Plaintiff’s mental
health treatment at the VA was focused on substance abuse/dual recovery, relapse
prevention, and therapeutic social activities, and that most of Plaintiff’s treatment at the
VA had been delivered by social workers and health technicians. The ALJ noted
Plaintiff’s active participation in MISA’s programs and activities, including completing
group exercise walks over varied terrain with no reported limitation or restriction due to
medical or behavioral/mental problems or deficits. The ALJ concluded that the “contact
notes of the dual recovery program do not document any significant limitation due to
‘signs’ or ‘symptoms’ of ‘schizophrenia’ or of ‘bipolar’ that hindered the claimant from
being active, participatory, involved, communicative, relational, oriented, alert and
aware notwithstanding assessments of ‘substance abuse in sustained remission’ and
‘bipolar disorder with psychotic features.’”
The ALJ determined that:
Other than the polysubstance abuse, the claimant’s primary challenge has
been assessed as reflecting inadequate social skills and angry/aggressive
behavior. However, there is no demonstrated medically imposed disorder,
behavior, or limitation which would significantly interfere with the
claimant’s ability for self-supportive work activity within his vocational
capacity on [a] regular, reliable, responsible, compliant, cooperative, and
continuing basis, given interest or motivation on the part of the claimant.
Capacity, from a mental and behavioral standpoint, was demonstrated by
the VA contacts. The whole of the evidence is in keeping with the
absence of any clear cut diagnostic label and with provisional diagnosis,
other than the polysubstance abuse.
Based on the physical and mental limitations documented in the record, the ALJ
determined that Plaintiff had the RFC for a restricted range of sedentary work. The
mental restrictions accepted by the ALJ were simple work related tasks and some
moderately complex tasks involving superficial contact with co-workers, supervisors, or
17
the public.
In evaluating Plaintiff’s complaints regarding his symptoms, the ALJ noted that
Plaintiff had complained of knee pain and testified that he had to sit with the leg
extended, but there was no documentation in the record of an impairment that would
reasonably be expected to produce debilitating pain that would prevent Plaintiff from
performing work within his vocational capacity on a regular basis.
The ALJ concluded that Plaintiff’s knee problem precluded his past relevant work
in various labor jobs and as a chemical factory worker. Based on his assessment of
Plaintiff’s RFC for a restricted range of sedentary work, and Plaintiff’s age, education,
and work experience, the medical-vocational grids directed a finding that Plaintiff is not
disabled. The VE’s testimony established that Plaintiff could perform a significant
number of jobs in the economy given interest or motivation on the part of Plaintiff.
V. DISCUSSION
Plaintiff makes three arguments in opposition to the Commissioner’s decision.
First, Plaintiff contends that the ALJ failed to properly assess Plaintiff’s mental RFC.
Plaintiff contends that the ALJ minimized Plaintiff’s mental health problems because the
Plaintiff also suffers from substance abuse problems. As support for this argument,
Plaintiff points to the 2006 records of the NTSH, where Plaintiff was committed
pursuant to court order following his indictment on assault charges. Plaintiff alleges
that these records are more significant than Plaintiff’s VA records because Plaintiff did
not have access to drug and alcohol while he was committed to NTSH. Plaintiff
contends that the NTSH records establish that Plaintiff is seriously psychotic.
In response, the Commissioner points out that the NTSH records pre-date
18
Plaintiff’s alleged date of disability onset, February 7, 2008. As the Commissioner
notes, the record reflects that Plaintiff successfully worked as a full-time laborer after
his discharge from NTSH, from December 6, 2006, to August 25, 2007. See R. 169-70,
204. The Commissioner contends that in any event the NTSH records do not reflect
greater functional limitations than those found by the ALJ, because Plaintiff’s
symptoms, if he in fact had a psychiatric illness, improved and he was stable and
competent upon discharge.
Notwithstanding that the NTSH records pre-date Plaintiff’s disability onset date,
this Court must look at the entire record, and all of the relevant evidence, as it applies
the substantial evidence standard. Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th
Cir.1983). In this case, it is clear that the ALJ considered the NTSH records, noting
Plaintiff’s April 2006 arrest for aggravated assault and resulting commitment. See R.
18. The ALJ observed that Plaintiff was not found to have “an exculpable mental or
other impairment or disorder, mental disease, or mental defect, and he was competent
to go to trial.” Id.22
The NTSH records are ambiguous as to whether Plaintiff’s problems stemmed
from a mental disorder or from a personality disorder or objectionable personable
beliefs. In any event, the extensive, contemporaneous records from the VA, as
summarized above, provide ample support for the ALJ’s conclusion that Plaintiff is not
disabled on account of his mental impairments, singly or in combination with his
22
The ALJ m ade a factual error by stating that after the 2006 Texas com m itm ent Plaintiff was
transitioned into intensive case m anagem ent at Serenity House and then into VA care. The Serenity
House and VA placem ents were m ade following Plaintiff’s release from jail in Florida in 2008. This
m isstatem ent was harm less because it had no bearing on the ALJ’s assessm ent of Plaintiff’s
im pairm ents.
19
physical impairments.
Plaintiff next contends that the ALJ erred at Step Four in determining Plaintiff’s
mental RFC. Plaintiff argues that the ALJ’s conclusions about what the Plaintiff can or
cannot do, given his severe mental health impairments, are arbitrary because the ALJ
failed to obtain a mental RFC by a state agency or consulting or treating psychologist or
psychiatrist. This argument is without merit. As the Commissioner points out, the
record reflects that opinions of state agency consulting physicians were not obtained
because Plaintiff and his counsel at the administrative level failed to cooperate with the
consultants, and therefore there was insufficient evidence to complete the
assessments. R. 273-86, 293-307. Inasmuch as it is Plaintiff’s burden to produce
evidence of his RFC, the ALJ did not err in determining Plaintiff’s RFC on the basis of
the record evidence.
For his final argument, Plaintiff contends that the ALJ’s hypothetical to the VE did
not include all of Plaintiff’s limitations because it did not include most of the 20 areas
covered on the Commissioner’s Mental RFC Assessment Form. As noted, no
assessment form was completed because Plaintiff did not cooperate in an assessment.
In assessing Plaintiff’s RFC on the basis of the record evidence, the ALJ addressed
each of the four broad functional areas from the “B Criteria” of the Psychiatric Review
Technique Form, with and without consideration of Plaintiff’s substance abuse. R. 23;
See 20 C.F.R. §§ 404.1520a(c)(3); 416.920a(c)(3). Considering Plaintiff’s substance
abuse, the ALJ determined he had moderate limitations with respect to activities of daily
living, moderate limitations in social functioning, and moderate limitations in
concentration, persistence, and pace. Without the substance abuse, the ALJ
20
determined that Plaintiff had only mild limitations with respect to activities of daily living
and moderate limitations in social functioning and concentration, persistence, and pace.
In determining the extent of Plaintiff’s functional limitations, the ALJ determined that
Plaintiff’s subjective complaints were not fully credible – a finding that Plaintiff does not
contest. The moderate mental functional limitations found by the ALJ are supported by
substantial evidence in the extensive records documenting Plaintiff’s treatment, and
such limitations were adequately incorporated into the hypothetical posed to the VE,
which limited requirements to simple work related tasks and some moderately complex
tasks involving superficial contact with co-workers, supervisors, or the public.
Accordingly, the Court concludes that the ALJ’s decision is fully supported by the
substantial evidence of record. The ALJ did not err in evaluating the Plaintiff’s mental
residual functional capacity and properly determined Plaintiff’s mental impairment in
evaluating Plaintiff’s RFC. The hypothetical posed to the VE included all of the
limitations included in the RFC and therefore the VE’s opinion that there was other work
in the national economy existing in significant numbers that Plaintiff could perform
constituted substantial evidence upon which the ALJ properly could rely in determining
that Plaintiff was not disabled.
VI. CONCLUSION
In view of the foregoing, the decision of the Commissioner is AFFIRMED. The
Clerk is directed to enter final judgment and close the file.
DONE AND ORDERED in Gainesville, Florida, this 11th day of January 2011.
s/ Gary R. Jones s/GaryR.Jon
GARY R. JONES
United States Magistrate Judge
21
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