Truelove v. Commissioner of Social Security

Filing 20

OPINION AND ORDER AFFIRMING the decision of the ALJ. Signed by Judge William C Lee on 3/19/2018. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
GARRICK TRUELOVE,

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Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

CIVIL NO. 1:17cv265

OPINION AND ORDER
This matter is before the court for judicial review of a final decision of the defendant
Commissioner of Social Security Administration denying Plaintiff's application for Supplemental
Security Income (SSI) as provided for in the Social Security Act. 42 U.S.C. §416(I). Section
405(g) of the Act provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a
certified copy of the transcript of the record including the evidence upon which the findings and
decision complained of are based. The court shall have the power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he
findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be
conclusive. . . ." 42 U.S.C. §405(g).
The law provides that an applicant for disability insurance benefits must establish an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to last for a continuous period of not less
than 12 months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental

impairment is "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). It is not enough for a plaintiff to establish that an
impairment exists. It must be shown that the impairment is severe enough to preclude the
plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th
Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill.
1979). It is well established that the burden of proving entitlement to disability insurance
benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v.
Cohen, 425 F.2d 20 (7th Cir. 1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record
as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.
Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786
(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,
552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,
42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also
Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after consideration of the entire record, the Administrative Law
Judge (“ALJ”) made the following findings:
1.

The claimant has not engaged in substantial gainful activity since October 21,
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2013, the application date (20 CFR 416.971 et seq.).
2.

The claimant has the following severe impairments: intermittent explosive
personality disorder; schizoaffective disorder; cannabis abuse; mood disorder;
borderline intellectual functioning (20 CFR 416.920(c)).

3.

The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4.

After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform a full range of work at all exertional levels
but with the following nonexertional limitations: limited to simple, routine and
repetitive tasks but not at a production rate pace (e.g assembly line work); only
simple work-related decisions; occasional contact with coworkers and the public;
time off task can be accommodated by normal breaks; and the claimant would be
absent from work one day a month.

5.

The claimant is unable to perform any past relevant work (20 CFR 416.965).

6.

The claimant was born on November 27, 1989, and was 23 years old, which is
defined as a younger individual age 18-49, on the date the application was filed
(20 CFR 416.963).

7.

The claimant has a limited education and is able to communicate in English (20
CFR 416.964).

8.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the claimant has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

9.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).

10.

The claimant has not been under a disability, as defined in the Social Security act,
since October 21, 2013, the date the application was filed (20 CFR 416.920(g)).

(Tr. 19-28).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability

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benefits. The ALJ’s decision became the final agency decision when the Appeals Council denied
review. This appeal followed.
Plaintiff filed his opening brief on December 22, 2017. On January 23, 2018, the
defendant filed a memorandum in support of the Commissioner’s decision. Plaintiff has declined
to file a reply. Upon full review of the record in this cause, this court is of the view that the
ALJ’s decision must be affirmed.
A five-step test has been established to determine whether a claimant is disabled. See
Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 229091 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test
as follows:
The following steps are addressed in order: (1) Is the claimant
presently unemployed? (2) Is the claimant's impairment "severe"?
(3) Does the impairment meet or exceed one of a list of specific
impairments? (4) Is the claimant unable to perform his or her
former occupation? (5) Is the claimant unable to perform any other
work within the economy? An affirmative answer leads either to
the next step or, on steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than step 3, stops
the inquiry and leads to a determination that the claimant is not
disabled.
Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162
n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature
of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
Plaintiff initially alleged disability beginning October 30, 2007, but then amended his
alleged onset date to November 28, 2007, the day after his 18th birthday (Tr. 217, 247, 260).
Plaintiff had previously filed an application for Childhood Disability Benefits (CDB) on
February 27, 2009, and was found disabled as of October 31, 2007, because of schizoaffective
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disorder and borderline intellectual functioning (Tr. 110). In December 2012, the agency
conducted a continuing disability review and found that Plaintiff was no longer disabled (Tr.
135-36, 178-85). Plaintiff did not appeal the cessation determination (Tr. 17). Instead, he
protectively filed the application for SSI at issue here. After a hearing, an ALJ found that Plaintiff
was not disabled at any point from the date of his SSI application through the date of the ALJ’s
April 12, 2016 decision (Tr. 17-28). The Appeals Council denied Plaintiff’s request for review of
this decision (Tr. 1-3), thereby rendering it the Commissioner’s final decision for purposes of
judicial review. 20 C.F.R. § 416.1481. The Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
In support of remand, Plaintiff first argues that the ALJ erred by not accounting for his
temper, blackouts, and inability to be trained for routine and simple safety procedures. Plaintiff
claims that he has ongoing episodes where he loses his temper. Plaintiff points out that the VE
testified that this is not consistent with competitive employment. Plaintiff claims that he is a
paranoid schizophrenic and thinks people are out to get him, yet the RFC states that he can be
around coworkers, supervisors, and the general public up to a third of the time. Plaintiff further
claims that the ALJ failed to address his blackouts and memory problems, as well as his attempts
at self-harm.
The Commissioner, however, points out that the ALJ found intermittent explosive
personality disorder to be a severe impairment at step two of the sequential evaluation (Tr. 19).
The ALJ acknowledged Plaintiff’s responses to his representative at the ALJ hearing, where
Plaintiff alleged that he has problems with his temper and loses his temper at home once or twice
a month (Tr. 24). The ALJ also considered Plaintiff’s testimony that he had problems controlling
his temper in his previous employment (Tr. 24). The ALJ considered Plaintiff’s father’s testimony

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that Plaintiff’s emotions overwhelm him during a temper tantrum (Tr. 24). The ALJ also noted,
however, that mental health treatment records did not show persistent problems with anger (Tr.
24). The ALJ further noted that medical records throughout 2015 showed that with mental health
treatment and medications, Plaintiff reported improvement in his anger and other symptoms (Tr.
24, 25, 25). As the ALJ correctly noted, Plaintiff reported to his therapist that medications
continued to help with his anger and mood, and he denied any further outbursts (Tr. 494). Taking
the evidence as a whole, the ALJ included in the RFC a limitation that Plaintiff would likely be
absent one day a month because of problems controlling his temper, and he also limited Plaintiff
to only occasional social contact (Tr. 26). Plaintiff has failed to file a reply, and has not
addressed the Commissioner’s argument. Nor does Plaintiff discuss medication in his opening
brief, and does not dispute the evidence that the medication is helping him. In light of the
evidence that Plaintiff’s mental problems have subsided with medication, there is no basis to
remand on this point.
With respect to Plaintiff’s alleged blackouts, Plaintiff does not exactly explain what he
means by the term “blackouts,” but it appears that he means that he spaces out, blanks out, forgets
what he is doing, and that he “may lose track of what he is doing periodically”—not that he loses
consciousness (Tr. 93). Thus, Plaintiff appears to be alleging lapses in concentration—an area in
which the ALJ found moderate limitations (Tr. 22, 26). Plaintiff points to his allegation that he
“at times goes into a blackout,” citing Tr. 546, which is the portion of a discharge summary
documenting Plaintiff’s subjective complaints. Plaintiff does not allege that he presented ongoing
complaints of memory or concentration problems to his treating sources. Moreover, citing Exhibit
14F, the ALJ correctly noted that after having mental health treatment, Plaintiff’s mental status

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examinations performed by the Northeastern Center showed no problems with memory, attention,
concentration, or staying on task (Tr. 25, 498, 508).
With respect to the alleged “safety risks”, and allegations of self-harm, the Commissioner
points out that Plaintiff is not restricted from driving. In any event, it is clear that the ALJ
considered Plaintiff’s allegation that he was fired in 2014 because of safety reasons (Tr. 23). The
ALJ also considered Plaintiff’s brief inpatient psychiatric admission after being found on an
overpass with a plan to jump (Tr. 25). However, as the ALJ also noted, Plaintiff was under the
influence of both alcohol and marijuana at the time (Tr. 25). The ALJ also noted that Plaintiff had
no mental health treatment until February 2015, that he had no decompensations, no emergency
room treatment, and no legal issues as a result of mental health problems (Tr. 24). Significantly,
the ALJ also noted that the mental health treatment and medications resulted in symptom
improvement (Tr. 24, 25, 26). As the Commissioner correctly states, it is not clear what else
Plaintiff thinks the ALJ should have said on the issue of safety, or how the outcome of the case
would have been different if he had said more. Nor does Plaintiff identify any evidence of
additional functional limitations beyond those the ALJ found that the ALJ should have included
in the RFC. Clearly, Plaintiff has failed to show that remand is appropriate on this point.
Next, Plaintiff argues that the ALJ erred in not conducting the eight-step improvement
analysis for the continuing disability benefits period and in “fail[ing] to address that process”
(Plaintiff’s Brief at 10, 11). At issue before the ALJ was the SSI application that Plaintiff filed in
2013—not an appeal of the disability cessation. The ALJ correctly noted that Plaintiff did not
appeal the disability cessation determination, and Plaintiff appears to concede this point (Tr. 17,
Plaintiff’s Brief at 2). The December 14, 2012 notice of cessation informed Plaintiff that he could

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appeal the cessation if he so desired, and it informed him how to do so; how to get assistance to
do so; and that he would need to appeal within 60 days (Tr. 178-80). As noted, Plaintiff did not
appeal. Instead, he filed a new application for SSI (Tr. 247).
The ALJ considered Plaintiff’s implied request to reopen the cessation determination (as
evidenced by Plaintiff’s citing an alleged onset date of disability during the previously
adjudicated period), but ultimately decided that the record provided no reason to reopen the prior
applications (Tr. 17). As the Commissioner points out, the ALJ’s finding on this point is not
subject to judicial review. See 20 C.F.R. § 416.1403(a)(5) (administrative actions that are not
initial determinations, including the denial of a request to reopen a determination or decision, are
not subject to judicial review).
Plaintiff also argues that the ALJ should have considered whether he became re-entitled to
CDB under Title II of the Act (Plaintiff’s Brief at 11). Plaintiff fails to note, however, that to
become re-entitled, a claimant must apply for re-entitlement. See 20 C.F.R. § 404.351 (“If your
entitlement to child’s benefits has ended, you may be re-entitled on the same earnings record if
you have not married and if you reapply for re-entitlement.” (Emphasis added)). There is no
indication in the record, nor does Plaintiff even allege, that he applied for re-entitlement, as the
regulations require. Thus, there is no basis for Plaintiff’s allegation that the ALJ erred by not
considering whether Plaintiff became re-entitled to CDB, and there is no need for remand on this
point.
Next, Plaintiff argues that his condition meets or equals Listing 12.05C. Listing 12.05C
describes “significantly sub-average general intellectual functioning” with deficits in adaptive
functioning initially manifested before age 22, as well as a “valid verbal, performance, or full

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scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and
significant work-related limitation of function.” See 20 C.F.R. 404, Subpart P, Appendix 1, §
12.05C.5 Further, “[f]or a claimant to show that his impairment matches a listing, it must meet all
of the specified medical criteria. An impairment that manifests only some of those criteria, no
matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
In the present case, the ALJ found that Plaintiff’s borderline intellectual functioning (BIF)
was a severe impairment at step two of the sequential evaluation (Tr. 19). At step three, the ALJ
found that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of any of the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (Tr. 21). In so doing, the ALJ noted that the State agency medical consultants who
reviewed this case at the initial and reconsideration levels opined the same (Tr. 21). The ALJ
acknowledged that additional evidence had been submitted after these doctors reviewed this
case, and explained that nothing in that evidence suggested that their conclusions were incorrect
(Tr. 21).
The ALJ considered Plaintiff’s school records, showing that he received special education
services in high school for emotional disability (Tr. 25). The ALJ also considered Plaintiff’s
2009 IQ scores: a full scale IQ of 75; verbal IQ of 81; and performance IQ of 72, which placed
him in the borderline range of intellectual functioning (Tr. 25). The ALJ further considered that
Plaintiff graduated from high school, could read, write, add, subtract, and manage money, and had
previously worked (Tr. 23, 26). Plaintiff said that he understands what he reads in newspapers,
follows television program story lines, and checks out books in the library with his own library
card (Tr. 25). The ALJ noted that Plaintiff had an expired driver’s license, cooks two to three

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times a week without difficulty, and grocery shops (Tr. 24). The ALJ also considered the State
agency psychological consultants’ opinions that Plaintiff was capable of understanding,
remembering, and carrying out unskilled tasks, attend to those tasks for a sufficient time to be
able to complete them, relate to others on at least a superficial basis, and manage work stress (Tr.
26). In light of the above, this court agrees with the Commissioner that the ALJ’s finding that
Plaintiff’s mental conditions did not meet the requirements of any listed impairment are
supported by substantial evidence.
Plaintiff claims that Listing 12.05C is applicable to his condition because he has a full
scale IQ “likely within a standard deviation of 70” (Plaintiff’s Brief at 11). However, Plaintiff
offers neither factual nor legal support for this claim. The fact remains that Plaintiff’s lowest IQ
valid score is 72, which places his condition out of the range of Listing 12.05C. As noted above,
if even one element of a Listing is not satisfied, then the Listing itself is not satisfied. Moreover,
by noting Plaintiff’s account of his functional abilities, as well as medical source opinions on
those abilities, the ALJ showed that Plaintiff did not have the requisite deficits in adaptive
functioning that Listing 12.05 requires.
Plaintiff alleges that the ALJ should have sought expert testimony on the listing
equivalence issue. However, the signature of a State agency medical consultant on a Disability
Determination and Transmittal Form ensures that a designated medical expert has considered the
question of medical equivalence. SSR 96-6p, 1996 WL 374180 (S.S.A.). The evidence of record
therefore includes expert opinions indicating that Plaintiff’s impairments do not medically equal a
Listing (Tr. 156, 167). See SSR 96-6p at *3 (the requirement to receive expert opinion evidence
into the record may be satisfied by a Disability Determination and Transmittal Form signed by a

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State agency consultant). Clearly, Plaintiff has failed to produce any evidence contradicting the
ALJ’s finding, supported by substantial evidence in the record, that his impairment does not
medically meet or equal a Listing. Thus remand is not appropriate.
Next, Plaintiff alleges that the ALJ failed to fully consider his upper right extremity
impairment. However, the record clearly shows that the ALJ thoroughly addressed both
Plaintiff’s allegations about the after-effects of his right elbow fracture sustained in a fall in
January 2012, and the medical evidence relevant to it (Tr. 20). Additionally, the ALJ
appropriately considered Plaintiff’s subjective complaints about elbow pain as directed in the
regulations at 20 C.F.R. § 416.929. The ALJ considered Plaintiff’s allegations that he has
occasional trouble lifting and moving his elbow, as well as Plaintiff’s estimate that he can only
lift and carry 25 pounds because of pain (Tr. 23-24). The ALJ also noted that, among other
activities, Plaintiff indicated that he does laundry once a month and sweeps/vacuums once a week
without any trouble (Tr. 24).
In finding Plaintiff’s elbow impairment not severe at step two of the sequential evaluation,
the ALJ appropriately considered x-ray results, as well as documentation of post-surgical healing
and Plaintiff’s failure to follow prescriptions for physical therapy and advice to stop smoking to
aid the healing process (Tr. 20). The ALJ further noted that State agency medical consultants
found Plaintiff’s elbow impairment to be non-severe because it did not meet the 12-month
durational requirement (Tr. 21, 160, 161). See 20 C.F.R. § 416.920(a)(4)(ii) (referencing the
need for a severe medically determinable physical or mental impairment (or combination of
impairments) that meets the durational requirement in 20 C.F.R. § 416.909). The ALJ gave those
opinions great weight because they were consistent with the overall evidence of record,

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including records from Plaintiff’s treating physician, Trina Chapman-Smith, M.D., discussed
below (Tr. 21).
The ALJ also considered the results of the consultative examination that H.M. Bacchus,
Jr., M.D. performed on August 3, 2014—including that the elbow fracture was fully healed; and
that Plaintiff had 4/5 grip strength on the right, slight atrophy of the intrinsic hand and thumb
muscles, and reduced range of motion in the elbow (Tr. 20, 483). The ALJ then observed that
Plaintiff did not return to a doctor for elbow problems until July 2015, when he complained of
right elbow pain (Tr. 20).
As noted above, the ALJ also considered treatment notes from Dr. Chapman-Smith in
early 2016, showing improvement in Plaintiff’s elbow impairment. Dr. Chapman-Smith
documented full strength in the right upper extremity, joint swelling, slight tenderness, normal
range of motion, normal stability, and normal muscle strength/tone (Tr. 20, 565, 567-68). The
ALJ later noted that Naproxen helped the pain, and that stiffness, swelling, muscle weakness and
myalgias had resolved (Tr. 20). In addition, the ALJ considered Dr. Chapman-Smith’s March
2016 opinion and explained why it was not supported by the evidence. In so doing, the ALJ noted
that Naproxen helped the pain and that there were only slight problems with the elbow noted on
physical examinations (described as “tenderness at tip of elbow only” and a normal exam with
“slightly, not very impressive” tender medial epicondyle)(Tr. 26, 565-66, 567-68). Thus, the
ALJ ably demonstrated that he fully considered both Plaintiff’s subjective complaints and the
medical evidence relevant to Plaintiff’s elbow impairment.
Plaintiff asserts that the ALJ improperly discounted SSA’s consultative examiner, while
dismissing Dr. Chapman-Smith’s later physical examination as “cursory” and less attentive than

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Dr. Bacchus’s examination. However, nothing in the record shows that Dr. Chapman-Smith was
less attentive to her own patient than Dr. Bacchus was during his examination. Both Dr. Bacchus
and Dr. Chapman-Smith conducted standard physical examinations that included observation of
the elbow and evaluations of strength, stability, muscle tone, range of motion (Tr. 483, 565,
567-68).
Plaintiff alleges that the “hand-isolating questions of the ALJ at the hearing would have
been particularly misleading” in light of Plaintiff’s BIF and emotional problems, citing Tr.
60-63). The Commissioner notes that there was a moment at the hearing where Plaintiff appeared
not to understand that the ALJ had moved on from asking about his elbow to asking about his
hands, but Plaintiff does not allege that he remained confused once the ALJ clarified that he had
moved on to talk about Plaintiff’s hands (Tr. 63). Moreover, Plaintiff was represented by an
attorney at the hearing—the same attorney who now represents him (Tr. 34). Had the temporary
confusion not been resolved at the time, Plaintiff’s attorney could have resolved it.
Plaintiff cites only to his own subjective complaints to allege that he had ongoing
limitations in his elbow. It is well-settled that a claimant’s own subjective statements cannot
establish disability. 20 C.F.R. § 416.929(a) (statements about your pain or other symptoms will
not alone establish that you are disabled).
Plaintiff suggests that the ALJ did not adequately credit his “work ethic” and his “gusto
for work” . However, as the Commissioner points out, at step one of the sequential evaluation,
the ALJ addressed the work Plaintiff did after his application date (Tr. 19). The ALJ considered
the amount of money Plaintiff earned in 2013, and his testimony that he was fired because he was
spacing out on the job (Tr. 19). The ALJ appropriately considered this work activity to be an

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unsuccessful work attempt, rather than disqualifying substantial gainful activity (Tr. 19). An
unsuccessful work attempt is “work that you are forced to stop or reduce below the level of
substantial gainful activity after a short time because of your impairment.” See 20 C.F.R. §
404.974(a)(1). Thus, the ALJ acknowledged that plaintiff tried to work in 2013 (and for 2.5
weeks in 2014), but found, in Plaintiff’s favor, that at that time, his impairments prevented him
from being able to do so. As the rest of the ALJ’s decision explains, later evidence shows that
with mental health treatment, Plaintiff’s conditions improved enough for him to be able to
perform unskilled work with certain additional mental limitations (Tr. 19-28).
This court finds that the ALJ appropriately considered all Plaintiff’s subjective
complaints in light of the rest of the evidence of record, and he cited substantial evidence to
support his finding that Plaintiff’s elbow impairment was not severe. Remand is not warranted.
As none of Plaintiff’s arguments have any merit, the decision of the ALJ must be
affirmed.
Conclusion
On the basis of the foregoing, the decision of the ALJ is hereby AFFIRMED.

Entered: March 19, 2018.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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