Ali v. Colvin

Filing 20

MEMORANDUM OPINION-Substantial evidence in the record as a whole supports the ALJ's findings. The Commissioner's denial of Ali's benefits claim will be affirmed. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
NASSER KHALIL ALI,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN, Acting
)
Commissioner of Social
)
Security Administration,
)
)
Defendant.
)
______________________________)

4:15CV3056

MEMORANDUM OPINION

This matter is before the Court for judicial review of
a final decision of the Commissioner of the Social Security
Administration (“the Commissioner”).

Nasser Khalil Ali (“Ali”)

appeals the Commissioner’s final decision denying Ali’s
application for disability benefits.

After reviewing the record,

the briefs, and the applicable law, the Court finds that the
Commissioner’s decision should be affirmed.
Procedural Background
On or about August 10, 2012, Ali filed an application
for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) (Tr. 180-95).
plaintiff’s

On October 4, 2012, the

applications were initially denied (Tr. 94-97).

Ali

requested a reconsideration of his denial, which was again denied
(Tr. 102-11).

On January 17, 2013, Ali requested a hearing before an
administrative law judge (“ALJ”) (Tr. 114-15).

Ali disagreed

with the denial because he claimed he was unable to work due to
depression, stress, dizziness, sadness, and anger issues (Id.).
The ALJ, James Harty, held an administrative hearing on
October 21, 2013, in Wichita, Kansas (Tr. 34-55).

On January 23,

2014, the ALJ found that Ali was not under a disability within
the meaning of the Social Security Act from June 30, 2009 to the
date of the decision (Tr. 15-33).

On March 29, 2015, the Appeals

Council denied Ali’s request for review and affirmed the ALJ’s
decision (Tr. 1-6).

Ali timely filed this appeal on May 28, 2015

(Filing No. 1).
Factual Background
Ali alleges that he became disabled on June 30, 2009,
because depression, stress, dizziness, sadness, and anger issues
limited his ability to work (Tr. 180-95, 229).

Ali was born on

January 1, 1979, and was 34 at the time of the administrative
hearing (Tr. 180).

He has a sixth grade education, and has been

unemployed since 2011 (Tr. 229-30). He speaks very little English
and has to use an interpreter when visiting doctors (See Tr. 34042).

His previous job history includes dishwasher, meat cutter,

temporary laborer, and line worker (Tr. 230).

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Ali has been

diagnosed with major depressive disorder, post traumatic stress
disorder (“PTSD”), and schizoaffective disorder (Tr. 318, 399).
Ali sought treatment at the Community Mental Health
Center (“CMHC”) as early as 2001 (Tr. 333).

However, he has not

received continuous treatment from the CMHC throughout the years.
On May 9, 2012, Ali sought mental health treatment from the CMHC
(Tr. 316-27).

Ali reported frequent headaches and occasional

dizziness (Tr. 324).

He was diagnosed with major depressive

order, recurrent, and PTSD (Tr. 318).

Ali was referred to Tina

Vest, MSN, APRN, a mental health nurse practitioner (Id.).
On June 21, 2012, Ali visited Tina Vest (“Vest”) (Tr.
340-42).

Ali informed Vest that he felt like he could not work

due to marked agitation, anger, anxiety, and depression (Tr.
340).

Vest found Ali to be guarded but cooperative (Tr. 341).

Vest found no evidence of cognitive decline and Ali’s insight and
judgment to be fair (Id.).

Vest diagnosed Ali with major

depressive disorder recurrent, mood disorder NOS, and PTSD (Id.).
Vest prescribed Symbyax to address anger and hostility issues
(Tr. 342).

In addition, Ali was referred to psychotherapy (Id.).
On August 6, 2012, Ali had a follow up appointment with

Vest (Tr. 339).

Vest noted some improvement (Id.).

Ali reported

doing much better, which included sleeping better, less anxiety,
and hearing voices on a less frequent basis (Id.).
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On September

10, 2012, Ali visited Vest for another follow up (Tr. 338).
Vest’s impression was that Ali was stabilized (Id.).

Ali

reported doing much better, and he was less anxious and depressed
(Id.).

At this time, Ali had not been to psychotherapy, even

though he was referred (Id.).

Vest recommended therapy (Id.).

On November 26, 2012, Ali saw Vest again complaining of headaches
(Tr. 446).

Vest‘s impression was that Ali did not have a lot of

improvements (Id.).
services (Id.).

Vest signed Ali up for case management

On December 27, 2012, Ali had another follow up

with Vest (Tr. 447).

Vest found that Ali was improving (Id.).

Vest initiated case management to help with socialization and
access to services (Id.).

Vest stated, “I value whether or not

he has capacity or ability to work given his diagnosis.” (Id.).
On January 24, 2013, Ali saw Vest and his case manager (Tr. 448).
Vest noted that Ali had been out of his medications for four or
five days (Id.).

Vest found him to be stable, but needed to work

on socialization (Id.).
On February 26, 2013, and March 6, 2013, Ali underwent
a two-day psychological evaluation with Kristen Laib, M.S.(“ Ms.
Laib”), and Joseph Swoboda, Ph.D. (“ Dr. Swoboda”)(393-401).

Ali

was referred for a diagnostic evaluation by his community support
worker, and because Ali’s brother expressed concerns about Ali’s
ability to function independently and maintain employment (Tr.
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393).

The Brief Psychiatric Rating Scale (“BPRS”) was

administered (Tr. 396).

Ali received a score of 65, which falls

within the “markedly ill” category indicating a significant
presence of symptoms that are likely to affect Ali’s level of
functioning (Id.).

The Vineland-II was also administered to

assess adaptive behavior (Tr. 397).

Ali’s Adaptive Behavior

Composite was classified as “low” which indicates that his
adaptive functioning is below 99 percent of his peers (Id.).
Ms. Laib and Dr. Swoboda diagnosed Ali with
schizoaffective disorder and PTSD rule out:
NOS (Tr. 399).

cognitive disorder,

They found that Ali “is likely to experience

severe deficits in living independently and caring for his daily
needs.” (Tr. 400).

In addition, “occupational achievement is

likely to be severely limited.” (Id.).

Ms. Laib and Dr. Swoboda

found that Ali may have suffered a head injury as a young child
(Tr. 401).

They recommended that Ali participate in a full

neurological evaluation to identify possible brain abnormalities
(Id.).
On March 19, 2013, Vest met with Ali and noted no real
change and recommended injectable medication therapy for
compliance and adherence (Tr. 449).

On May 3, 2013, Vest noted

that Ali was much more improved (Tr. 450).
with his case manager (Id.).

Ali had been working

Ali’s mood was more stable, and he
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was less paranoid and suspicious (Id.).
joined a gym for exercise (Id.).

He was more social, and

On May 28, 2013, Vest noted

that Ali had improved, and that his mental status was essentially
normal (Tr. 451).
Vest (Tr. 452).

On June 27, 2013, Ali had a follow up with
Vest found Ali was responding well to

medications and was more social, and his paranoia improved if not
nonexistent (Id.).

Vest noted that Ali’s mental status was

essentially normal (Id.).
Ali met with his case manager twice in the month of
July 2013 (Tr. 488, 89).

On both occasions, Ali mentioned that

he was not getting outside the house as much, but he was still
going to the gym to swim (Id.).
was doing well (Id.).

The case manager noted that Ali

In September of 2013, Ali met with his

case manager three times (Tr. 485-86).

Ali reported that he was

continuing to get out of the house (Id.).

The case manager noted

that Ali appeared well groomed and alert on all three occasions
(Id.).

On October 1, 2013, Ali told his case manager that he had

been getting out of the house almost every day (Tr. 483).

Ali

went swimming every morning and played cards with friends every
night (Id.).

On October 15, 2013, Ali reported that he had not

been leaving the house, and had been staying up all night and
sleeping during the day (Tr. 484).

On October 22, 2013, Ali told

his case manager that he had been taking his medication
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improperly so that he could sleep all day and stay up all night
(Id.).

The same day, Ali met with Vest (Tr. 476).

Vest

instructed Ali to take his medications as prescribed (Id.).
Vest’s impression noted major depressive disorder recurrent,
moderate, mood disorder NOS, PTSD, decompensation (Id.).
Administrative Hearing
On October 21, 2013, ALJ Harty held an administrative
hearing regarding Ali’s request for social security (Tr. 34-55).
At the beginning of the hearing, Ali’s attorney made a request
for a consultative exam (Tr. 37).
Ali testified that he was unable to fill out a job
application due to his lack of knowledge of the English language
(Tr. 40).

When asked about what he does all day, Ali stated that

he sleeps during the day and stays up at night (Tr. 41-42).

Ali

testified that some of his daily activities include watching
television, doing laundry, going on walks, playing soccer, and
going to appointments (Tr. 41-43).
When asked about his depression diagnosis, Ali stated
that he feels very sad for two hours each day (Tr. 43).

Ali

testified that he was scared to go outside by himself (Tr. 44).
When asked about having a depressive or anxious episode at work,
Ali stated that he would need a seventeen-minute break (Tr. 45).
During a break, Ali would need to wash his face, get a drink, and
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sit for ten minutes (Id.).

However, when asked about the

medications he takes, Ali said that he felt good (Tr. 46-47).
Ali was on two medications, one for sleep, and one for
hallucinations, anxiety, and depression (Id.).

Ali also

testified that he had twelve to fourteen headaches per day (Tr.
47).
Next, the ALJ examined the Vocational Expert (“VE”)(Tr.
49).

The ALJ asked the following hypothetical:
Assume an individual of the
claimant’s age, education, training
and work history who does not
communicate in English. He can
perform a full range of work at all
exertional levels except he is
limited to performing simple tasks
that involve only simple workrelated decisions and in general
relatively few workplace changes.
He can occasionally interact with
supervisors and co-workers, but
must avoid interaction with the
general public. Could this person
perform any of the claimant’s past
work?

(Tr. 50).

The VE answered that Ali could perform all of the work

discussed in the hypothetical question (Id.).

The VE also stated

that there were other occupations that Ali could perform, such as
automobile detailer, packager machine, industrial cleaner, and
egg handler (Tr. 50-51).

The VE testified that the typical break

schedule for the occupations would consist of a fifteen-minute

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break every two hours with thirty minutes for lunch (Tr. 52).
The occupations generally do not allow for unscheduled breaks
(Id.).

In addition, the employee would have to work a 90-day

probationary period before missing days (Id.).

At that time, an

employee could only miss one or less days per month (Id.).
At the end of the hearing, Ali’s attorney made a
closing

statement (Tr. 53).

His attorney argued that due to his

diagnoses of schizoaffective disorder, PTSD, and depression,
along with his anger issues and head injury sustained as a child,
Ali cannot perform any meaningful work or substantial gainful
activity (Id.).

The ALJ closed the hearing and took the request

for a consultative examination under advisement (Tr. 54).
The ALJ’s Findings
The ALJ concluded that Ali had not been under a
disability within the meaning of the Social Security Act (Tr.
19).

The ALJ denied Ali’s request for a consultative evaluation

(Tr. 18).

The ALJ found the evidence of record to be thorough,

and an evaluation was not warranted (Id.).
The ALJ found that Ali met the insured status
requirements of the Social Security Act through June 30, 2009
(Tr. 20).

Ali had not engaged in substantial gainful activity

since the alleged onset date of June 30, 2009 (Id.).

The ALJ

concluded that Ali had the following severe impairments:
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reactive psychosis, major depression with psychotic features,
major depressive disorder, schizoaffective disorder, and PTSD
(Tr. 21).

The ALJ found that Ali did not have an impairment or a

combination of impairments that meets or medically equals the
severity as required by the regulation (Id.).

Finally, the ALJ

found that Ali has the residual functional capacity to perform a
full range of work at all exertional levels, that he could
perform simple tasks, and occasionally interact with supervisors
and coworkers (Tr. 22-23).
The ALJ found that Ali’s statements about the
intensity, persistence, and limiting effects of his psychological
impairments were not entirely credible (Tr. 23).

Medical records

indicate that Ali has a history of hallucinations, anxiety, and
difficulty socializing (Tr. 25).

However, when he was on

medication he had many improvements and some symptoms of his
impairments went away (Id.).

In addition, the ALJ found that

evidence of Ali’s work history in 2009 and 2011 weighs against
the credibility of his statements about the inability to work
(Tr. 26).
The ALJ found that Ali would be capable of performing
past relevant work as a line worker and meat trimmer (Tr. 27).
In addition, the ALJ noted that there were other jobs existing in
the national economy that Ali could perform (Tr. 28).
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As a

result, the ALJ found that Ali was not disabled under the Social
Security Act (Tr. 29).
Standard of Review
When reviewing an ALJ’s decision, the Court “must
determine ‘whether the ALJ’s decision complies with the relevant
legal requirements and is supported by substantial evidence in
the record as a whole.’”

Martise v. Astrue, 641 F.3d 909, 920

(8th Cir. 2011) (quoting Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010)).

“Substantial evidence” is:

relevant evidence that a reasonable
mind might accept as adequate to
support a conclusion. Substantial
evidence on the record as a whole,
however, requires a more
scrutinizing analysis. In the
review of an administrative
decision, the substantiality of
evidence must take into account
whatever in the record fairly
detracts from its weight. Thus,
the court must also take into
consideration the weight of the
evidence in the record and apply a
balancing test to evidence which is
contradictory.
Id. at 920-21.
“‘If, after reviewing the record, the court finds it is
possible to draw two inconsistent positions from the evidence and
one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.’”

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Partee v. Astrue, 638 F.3d

860, 863 (8th Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d 785,
789 (8th Cir. 2005)).

The Court may not reverse the ALJ’s

decision “merely because [the Court] would have come to a
different conclusion.”

Teague v. Astrue, 638 F.3d 611, 614 (8th

Cir. 2011)(citation omitted).
proving disability.”

The claimant “bears the burden of

Id. at 615.

Law and Analysis
Ali challenges the final decision of the Commissioner
of the Social Security Administration, which adopted the ALJ’s
findings that Ali was not disabled under the Social Security Act.
In his brief, Ali asserts three errors to the ALJ’s decision:
(1) The ALJ erred by finding that the consultative examination
for neuropsychological evaluation was not warranted; (2) the ALJ
erred because the ALJ’s decision to discredit Ali’s testimony was
not based on substantial evidence; and (3) the ALJ’s unfavorable
decision is not supported by the record as a whole.
1. The ALJ’s Denial of the Request for a Consultative
Examination.
Ali alleges that the ALJ failed to fully develop the
record when the ALJ denied his request for a consultative
neurological evaluation.

An ALJ has a duty to develop the

record, but “this duty is not ever-ending and an ALJ is not
required to disprove every possible impairment.”

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McCoy v.

Astrue, 648 F.3d 605, 612 (8th Cir. 2011)(citing Barrett v.
Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994)).

“The ALJ is

required to order medical examinations and tests only if the
medical records presented to him do not give sufficient medical
evidence to determine whether the claimant is disabled.”

Id.

(citing Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986)).
Dr. Swoboda recommended a neurological evaluation
because Ali reported that he suffered a head injury as a small
child (Tr. 401).

The ALJ noted that no other medical source had

ever recommended such testing for Ali (Tr. 18).

There is no

known injury, just a possible brain injury based on Ali’s alleged
head injury as a child (Tr. 401).

In addition, the ALJ found

Ali’s subjective complaints not entirely credible (Tr. 23).

As a

result, the ALJ found the record to be thorough, and the
evaluation to be unwarranted (Tr. 18).
In this case, the ALJ found that the medical records
were sufficient to determine whether Ali was disabled (Id.).

The

ALJ’s decision to deny the request for a consultative examination
was supported by substantial evidence.
2. Evaluation of Ali’s Credibility.
An ALJ’s credibility findings must be supported by
substantial evidence.
(8th Cir. 1992).

Robinson v. Sullivan, 956 F.2d 836, 839

When reviewing a claimant’s subjective
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complaint, the ALJ must consider the following:

the claimant’s

daily activities; the duration, frequency, and intensity of the
pain; precipitating and aggravating factors; dosage,
effectiveness and side effects of medication; and functional
restrictions.
Cir. 1984).

See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th
An ALJ is required to make an “express credibility

determination” when discrediting a social security claimant's
subjective complaints.
Cir. 2000).

Lowe v. Apfel, 226 F.3d 969, 971–72 (8th

If the ALJ gives a “good” reason for not crediting

the claimant that is supported by the record, the Court will
defer to the ALJ’s judgment.

Robinson, 956 F.2d at 841.

In this case, the ALJ found that Ali’s subjective
complaints were not fully credible due to the objective medical
evidence (Tr. 23).

The ALJ noted that Ali’s statements

concerning the intensity, persistence, and limiting effects of
the symptoms are not entirely credible (Id.).

When Ali was

compliant with his medication, Ali did not report problems with
his limitations and generally did well (Tr. 25).

While on

medication, Ali’s mental status was described as “essentially
normal” and his paranoia was described as “improved, if not
nonexistent” (Tr. 451-52).

In addition, the ALJ found that Ali’s

work history did not support the credibility of his assertion
that he could not work (Tr. 25).

Ali worked in 2009 and 2011

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(Tr. 26).

Ali did not lose or quit his job in 2009 due to his

impairments, but only stopped working because his contract
expired (Tr. 26).
Based on objective medical evidence, and past work
history, the ALJ did not find Ali’s subjective complaints to be
entirely credible.

The Court finds that the ALJ’s credibility

findings are supported by substantial evidence.
3. ALJ’s Decision Supported by the Record as a Whole.
The Court must affirm the decision of the ALJ “if it is
supported by substantial evidence in the record as a whole.”
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
“Substantial evidence is less than a preponderance, but enough so
that a reasonable mind might find it adequate to support the
conclusion.”

Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir.

2001)(citations omitted).

“The ALJ is in the best position to

determine the credibility of the testimony and is granted
deference in that regard.” Id.
Ali argues that the ALJ focused on limited episodes of
improvement which the record as a whole does not support.

The

claimant points to a history of problems with anger and
employment, his isolative personality, his communication and
language issues, and his mental health issues, to demonstrate
that he would not be able to obtain and keep employment.
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The

defendant argues that the claimant’s improvement with treatment
supports the ALJ’s decision that Ali’s mental impairments were
not disabling.

After reviewing the record, the Court finds that

the ALJ’s decision is supported by substantial evidence in the
record as a whole.
Conclusion
Substantial evidence in the record as a whole supports
the ALJ’s findings.

The Commissioner’s denial of Ali’s benefits

claim will be affirmed.

A separate order will be entered in

accordance with this memorandum opinion.
DATED this 15th day of July, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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