Courtney v. Berryhill
Filing
20
MEMORANDUM OPINION granting 13 Cross MOTION for Summary Judgment , denying 18 Opposed MOTION for Summary Judgment and Response to Defendants Brief (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiff,
§
§
v.
§
§
NANCY A. BERRYHILL,
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§
August 20, 2018
David J. Bradley, Clerk
CHRISTIAN DEAN COURTNEY,
CIVIL ACTION NO. H-17-2876
MEMORANDUM OPINION
Pending before the court1 are Plaintiff’s Motion for Summary
Judgment (Doc. 18) and
Judgment (Doc. 13).
Defendant’s Cross-Motion for Summary
The court has considered the motions, the
responses, the administrative record, and the applicable law. For
the reasons set forth below, the court DENIES Plaintiff’s motion
and GRANTS Defendant’s motion.
I.
Case Background
Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for
judicial review of an unfavorable decision by the Social Security
Administration (“SSA”) Commissioner (“Commissioner” or “Defendant”)
regarding Plaintiff’s claim for supplemental security income under
Title XVI of the Social Security Act (“the Act”).
1
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedur e 73.
Doc. 11, Ord. Dated
Dec. 15, 2017.
A.
Medical History
Plaintiff was born on April 4, 1996, and was eighteen years
old on the date of redetermination of disability under adult
standards.2 Plaintiff had received supplemental security income as
a child.3
Plaintiff sought treatment at the Lone Star Family Health
Center beginning in March 2014.4
In his first appointment,
Plaintiff’s grandmother described his attention deficit hyperactive
disorder (“ADHD”) symptoms as the following: “short attention span,
impulsive behavior, hyperactive behavior, easy distractibility,
poor listening, careless mistakes, difficulty remaining seated,
[and] excessive talking and interrupting others.”5 Plaintiff had
taken Adderall for a long time, which helped to quell
symptoms.6
Plaintiff’s
bipolar
symptoms
were
reported
his
as
“distractibility, racing thoughts, periods of excess energy and
loss of interest, [and not including] flight of ideas.”7 Plaintiff
was re-prescribed Adderall for ADHD and was instructed to “adopt
healthy behaviors” such as exercising, wearing a seatbelt, eating
2
See Tr. of the Admin. Proceedings (“Tr.”) 12, 18, 31.
3
See Tr. 10.
4
See Tr. 388.
5
Id.
6
See id.
7
Id.
2
healthy, and refraining from smoking.8 Plaintiff was referred for
a psychiatric evaluation.9
On June 25, 2014, Plaintiff reported
that he had one poor sleeping episode.10
Plaintiff was described
as “alert, oriented to name” with a “stable mood” and “consistent”
affect and, while he had a low level of eye contact due to staring
at his cell phone, he had a goal-oriented thought process and
“normal” speech.11 Plaintiff reported no hallucinations, paranoia,
or suicidal or homicidal ideation.12 Plaintiff was taking Adderall
for ADHD and Depakote and Seroquel for bipolar disorder.13
Plaintiff underwent a psychiatric evaluation on March 27,
2014.14
It was noted that Plaintiff graduated high school in
January 2014 and had moved in with his grandmother where he was not
“doing
much.”15
medications.16
Plaintiff
had
been
“doing
well”
with
his
Plaintiff displayed a cooperative attitude, an
appropriate affect, a euthymic mood, spontaneous speech, a focused
thought process, no hallucinations, no delusions, no homicidal
8
See Tr. 389.
9
See id.
10
See Tr. 382.
11
Id.
12
See id.
13
See id.
14
See Tr. 371-75.
15
Tr. 371.
16
Id.
3
ideation, and no suicidal ideation, impaired insight, or limited
judgment.17 He was oriented and his concentration was intact.18 It
was noted that Plaintiff had bipolar disorder, Asperger’s syndrome,
ADHD, and oppositional defiant disorder (“ODD”).19
On April 3,
2014, Plaintiff’s global assessment of functioning (“GAF”) score
was fifty, indicating serious symptoms or any serious impairment.20
Plaintiff returned to the Lone Star Family Health Center on
October 9, 2014.21
Marwan Al-khudhair, M.D. (“Dr. Al-kudhair”)
noted that Plaintiff had “no behavioral problems” and “no eating
difficulties.”22
Plaintiff slept ten hours every night.23
On
November 5, 2014, Plaintiff was treated by Robert Bogan, M.D. (“Dr.
Bogan”).24
Plaintiff reported that he had “mostly been doing well
recently” and that he was not experiencing any unprovoked changes
in mood.25 Plaintiff was still taking Adderall and explained that
it was helping him focus on Facebook.26
17
See id.
18
See id.
19
See Tr. 376.
20
See Tr. 368.
21
See Tr. 442.
22
Id.
23
See id.
24
See Tr. 441.
25
Id.
26
See id.
4
Plaintiff’s grandmother
explained that when he took the Adderall, he was “easier to deal
with” and that it helped his appetite remain “normal.”27 Plaintiff
was cooperative, displayed an appropriate affect, had normal
speech, goal-oriented thoughts, and had no suicidal ideation,
homicidal ideation, or psychosis.28
Plaintiff returned on March 4, 2015, for treatment related to
his
bipolar
disorder,
reporting
difficulty
sleeping.29
His
grandmother stated that he was able to sleep better once he took
his
medication.30
normal.31
Plaintiff’s mental status examination was
On July 8, 2015, Plaintiff reported that his mood was
“good” and that he was counseling people online about their mental
issues.32
It was noted that Adderall was helping Plaintiff focus
and that it suppressed his appetite.33
However, Plaintiff had
trouble sleeping, as he would sometimes stay up for three days at
a time and then sleep for two straight days.34
Another mental
status examination was conducted which was relatively normal, but
27
Id.
28
See id.
29
See Tr. 518.
30
See id.
31
See id.
32
See Tr. 513.
33
See id.
34
See id.
5
noted that his speech was slow.35
Plaintiff underwent counseling on August 26, 2015.36
He had
normal psychomotor and activity levels, and easily established
rapport; the counselor described him as “friendly” and “adequately
groomed.”37 Plaintiff’s eye contact was appropriate, his speech was
normal, his thoughts were logical and undirected, and his mood was
positive with a wide range of emotion.38
Plaintiff’s grandmother
expressed her concern over his sleeping habits.39 Plaintiff stated
that he did not want to work because he did not want to interact
with people; he also reported that he talked with his friends on
Skype, played video games, and looked at the internet.40 Plaintiff
reported that he had begun an online relationship with an eighteenyear-old woman in South Dakota who would come live with him in two
years after she completed college.41
Plaintiff attended another therapy session in December 2015.42
He was described by the counselor in a similar manner to his August
2015 appointment and his thoughts were deemed rational and goal-
35
See id.
36
See Tr. 505.
37
Id.
38
See id.
39
See id.
40
See id.
41
See id.
42
See Tr. 493.
6
oriented.43
The counselor noted that Plaintiff did not give a
specific reason for missing his previous appointments, as the last
counseling appointment he attended was in August 2015.44 Counseling
notes reflect that, because Plaintiff stayed up late watching
television, he often overslept.45
It was recorded that Plaintiff
expressed a lack of interest in receiving therapy, explaining that
he would rather stay at home.46 Plaintiff stated he had no interest
in working, and his grandmother concurred that he should not work.47
In October 2015, Plaintiff reported that he was doing well and
had no complaints.48 Plaintiff was counseled to lose weight through
better nutrition and exercise.49
On January 14, 2016, Plaintiff
requested a refill of Adderall due to a recent weight gain.50
Plaintiff reported daily episodes related to his bipolar disorder,
symptoms
of
which
included
distractibility,
hyperactivity,
agitation, and poor concentration, and Dr. Al-khudhair noted that
his symptoms were moderately severe but improving with medication.51
43
See id.
44
See id.
45
See id.
46
See id.
47
See id.
48
See Tr. 496.
49
See Tr. 497.
50
See Tr. 489.
51
See id.
7
Plaintiff also attended a psychotherapy appointment on that same
date.52 There, Plaintiff displayed “fidgety” motor activity and was
dressed casually with adequate hygiene.53
Plaintiff had normal
speech and appropriate eye contact with no homicidal or suicidal
ideation or psychosis.54 His mood was “anxious” with a “wide range
of emotion” and an “appropriately shifting affect.”55 Plaintiff’s
thoughts were not goal-oriented but were described as rational.56
Plaintiff reported that he sometimes felt like “punching somebody”
due to frustration and stated that he was bored at home and would
not ride his bike anymore because there was no one to hang out
with.57
Plaintiff
reported that he had carried a knife for
protection since he was ten years old.58
On
March
appointment.59
30,
2016,
Plaintiff
returned
for
a
clinic
Plaintiff’s bipolar symptoms of distractibility,
hyperactivity, agitation and poor concentration were noted as
moderately severe but improving with medication.60
52
See Tr. 492.
53
See id.
54
See id.
55
Id.
56
See id.
57
See id.
58
See id.
59
See Tr. 487.
60
See id.
8
The symptoms
occurred three times a week rather than daily and were worsened
when provoked by emotional or family-related stress.61 It was noted
that Plaintiff had not sought follow-up psychiatric treatment as
instructed by his doctors.62
B.
Disability Redetermination
Plaintiff applied for supplemental security income benefits on
March 1, 2005, alleging an onset date of February 1, 2004.63
In a
disability report dated May 13, 2014, Plaintiff reported the
following
medical
disorder,
ADHD,
conditions:
ODD,
learning
Asperger’s
syndrome,
disabilities
and
bipolar
high
blood
pressure.64 Plaintiff explained that he had never worked.65
In an
updated disability report from July 29, 2015, it was reported that
Plaintiff “seem[ed] more depressed.”66
In
support
of
Plaintiff’s
application,
several
people,
including his grandmother, wrote letters contending that Plaintiff
was disabled.67
Marilyn Abbott, a neighbor and retired teacher,
opined that Plaintiff was “severely disabled,” noting his mood
61
See id.
62
See id.
63
See Tr. 192-206.
64
See Tr. 210.
65
See id.
66
Tr. 246.
67
See Tr. 266-73.
9
swings and difficulty concentrating.68
Another neighbor, Kalen
Bogart, wrote that Plaintiff had “high” intellectual functioning
that was impaired by his lack of concentration, problematic
temperament, and difficulty regulating his mood.69
On
September
3,
2014,
a
psychiatric
review
technique
assessment was performed by Mischca Scales, Ph.D., (“Dr. Scales”).70
Dr. Scales noted Plaintiff’s ADHD and bipolar disorder diagnoses
and stated that Plaintiff displayed symptoms of hyperactivity.71
In terms of Plaintiff’s degree of limitation, Dr. Scales concluded
that Plaintiff did not meet the paragraph B criteria, finding that
he had: (1) mild restriction in activities of daily living; (2)
moderate difficulties in maintaining social functioning; (3)
moderate difficulties in maintaining concentration, persistence, or
pace; and (4) no episodes of decompensation.72 Plaintiff also was
found not to meet the paragraph C criteria.73
A mental residual functional capacity (“RFC”) assessment was
also completed by Dr. Scales on that same date.74
Plaintiff was
found to be not significantly limited in the following areas: the
68
See Tr. 271.
69
See Tr. 273.
70
See Tr. 415-27.
71
See Tr. 416-18.
72
See Tr. 425.
73
See Tr. 426.
74
See Tr. 429-31.
10
ability to remember locations and work-like procedures; the ability
to understand and remember very short and simple instructions; the
ability to carry out very short and simple instructions; the
ability to maintain attention and concentration for extended
periods; the ability to perform activities within a schedule,
maintain regular attendance, and be punctual within customary
tolerances; the ability to sustain an ordinary routine without
special supervision; the ability to make simple work-related
decisions;
assistance;
the
the
ability
to
ability
ask
to
simple
accept
questions
instructions
or
request
and
respond
appropriately to criticism from supervisors; the ability to get
along
with
coworkers
or
peers
without
distracting
them
or
exhibiting behavioral extremes; the ability to maintain socially
appropriate behavior and to adhere to basic standards of neatness
and cleanliness; the ability to be aware of normal hazards and take
appropriate precautions; the ability to travel in unfamiliar places
or use public transportation; and the ability to set realistic
goals or make plans independently of others.75
Plaintiff was found to be moderately limited in the following
areas: the ability to work in coordination with or proximity to
others without being distracted by them; the ability to complete a
normal
workday
and
workweek
without
interruptions
from
psychologically based symptoms and to perform at a constant pace
75
See Tr. 429-30.
11
without an unreasonable number and length of rest periods; the
ability to interact appropriately with the general public; and the
ability to respond appropriately to changes in the work setting.76
Plaintiff was found to be markedly limited in his ability to
understand, remember, and carry out detailed instructions.77
Dr.
Scales concluded that Plaintiff could “understand, remember and
carry out only simple instructions, make decisions, attend and
concentrate for extended periods, interact adequately with others,
and respond appropriately to changes in routine work settings” and
that Plaintiff’s allegations were “not wholly supported” by the
record.78
On September 9, 2014, the SSA found Plaintiff was not disabled
upon re-evaluation using the adult standard for disability.79
On
May 20, 2015, the SSA again found Plaintiff not disabled upon
reconsideration.80
administrative
Administration.81
Plaintiff
law
judge
The
ALJ
76
the
Social
granted
Plaintiff’s
Security
request82
and
See Tr. 107-20, 436.
81
of
an
See Tr. 93-95, 435.
80
(“ALJ”)
before
Tr. 431.
79
hearing
See id.
78
a
See Tr. 429-30.
77
requested
See Tr. 121-26.
82
Plaintiff’s original hearing was set for March 9, 2016. However,
Plaintiff had not obtained representation at that time and requested to postpone
that hearing until he could find representation. The ALJ granted his request and
12
conducted a hearing on July 29, 2016.83
C.
Hearing
At the hearing, Plaintiff, his grandmother Mary Sanchez
(“Sanchez”), and a vocational expert, Cheryl Swisher (“Swisher” or
“VE”) testified.84
Plaintiff was represented by an attorney.85
Plaintiff testified that he was unmarried and lived with his
grandmother.86
Plaintiff was able to read and write English and
perform basic mathematic skills.87
In terms of education and
training, Plaintiff earned a high school diploma but did not have
any vocational training.88 Citing his mood swings, sleep patterns,
asthma, and other issues, Plaintiff explained that he had never
looked for a job.89
While attending Huntsville High School, Plaintiff was enrolled
in a special education program where he received extra educational
assistance.90
During his tenure at that school, there was an
incident where Plaintiff became angered by the teacher helping him,
reset the hearing for July 29, 2016.
83
See Tr. 26-77.
84
See id.
85
See Tr. 28.
86
See Tr. 31-32.
87
See Tr. 32.
88
See id.
89
See Tr. 32-33.
90
See Tr. 79-88.
See Tr. 33-34.
13
and he left school without permission.91
Plaintiff was arrested twice as a juvenile.92
Plaintiff
explained that in one instance, he was “framed” by a girl who cut
her shirt with scissors and blamed him.93
The other incident
occurred on September 29, 2010, when he was aggressive towards a
Child Protective Services (“CPS”) case worker, prompting, in part,
his admission to a psychiatric hospital that same date.94 Plaintiff
said that he did not touch the case worker, but he did become angry
with her because “[s]he was making [his] grandmother cry.”95
Plaintiff
was
hospitalized
three
times
for
psychiatric
problems, with the latest occurrence in 2010, at age fourteen.96
Plaintiff frequently missed school days in 2010, and, as a result,
CPS removed him from his grandmother’s home and placed him in
psychiatric care at IntraCare Hospital.97
Once he was discharged
from IntraCare Hospital, he was involuntarily taken by CPS to Bayes
Achievement Center (“Bayes Center”), a residential treatment and
educational center for children with special needs and behavioral
91
Tr. 34.
92
See Tr. 39-40.
93
See id.
94
See Tr. 40.
95
Id.
96
See Tr. 34-35.
97
See Tr. 35-38.
14
problems.98
Plaintiff explained that there was housing for the
students and that, in addition to attending classes, students were
required to clean their dorm area and take care of animals.99
Plaintiff’s attorney explained that Plaintiff’s records from
the Bayes Center showed that he “enjoyed interacting with peers”
but needed “to be monitored closely when talking to peers for
appropriateness.”100
Plaintiff explained that he would “cuss”
frequently, and if he became angry with another student, he would
sometimes strike them.101 While Plaintiff was enrolled at the Bayes
Center, he was on “pretty good” behavior and was rewarded, as a
result, with community outings.102
On the outings, there would
usually be one to two staff members per four students.103 Plaintiff
was also allowed weekend visits with his grandmother.104 Plaintiff
refused to return to the school after these visits and he
physically resisted getting into the school van.105
As a result,
the Bayes Center had to bring four staff members to pick him up
98
See Tr. 36-37.
99
See Tr. 37-38.
100
Tr. 39.
101
Id.
102
Tr. 40-41.
103
See Tr. 41.
104
See Tr. 41-42.
105
See id.
15
after a home visit.106
Plaintiff explained that he did not like
attending the Bayes Center because his freedoms were limited,
however, he acknowledged that he could not return to Huntsville
High School because of the incident where he ran from the school.107
As of the date of the hearing, Plaintiff stated that he had
been living with his grandmother, Sanchez, for around a year and a
half, following his release from the Bayes Center.108 Plaintiff
explained that his mother died years earlier after suddenly
collapsing and hitting her head on the counter.109
Plaintiff’s
attorney stated that some reports said that his mother’s death was
a suicide, reports which Plaintiff denied.110
prompted
an
in-patient
admission
to
His mother’s death
IntraCare
Hospital.111
Plaintiff stated that he was depressed at the time and had suicidal
thoughts.112
Plaintiff also became angry when other people talked
to him about how his mother died.113
Sanchez accompanied Plaintiff to his medical appointments, and
Plaintiff testified that he received treatment at “quite a few
106
See Tr. 42.
107
See Tr. 43.
108
See Tr. 43-44.
109
See Tr. 46.
110
See id.
111
See id.
112
See Tr. 47.
113
See id.
16
places.”114
Plaintiff acknowledged that he did not always pay
attention to what doctors told him, citing his short attention
span, and he would often let his grandmother talk to the doctor
instead.115
Plaintiff’s
clothing.116
grandmother
also
shopped
for
his
Upon questioning by his attorney, Plaintiff stated
that he did not always get along with his grandmother and sometimes
he would become very angry at her because she nagged him about
doing chores.117
They fought on a daily basis.118 Plaintiff’s room
did not have a lock on the door because the last time he was taken
to Bayes Center, he locked himself in his room and barricaded the
door.119
Plaintiff acknowledged that Sanchez had to remind him to
bathe; otherwise, he would only bathe twice per week, citing the
fact that he rarely would leave the house to socialize.120
In
interactions with new people, Plaintiff explained that he was
“shy.”121 Plaintiff had one friend “outside of Facebook” who would
114
Tr. 44.
115
See Tr. 55.
116
See Tr. 46.
117
See Tr. 51.
118
See Tr. 52.
119
See Tr. 53.
120
See Tr. 44-45.
121
Tr. 39.
17
come to Sanchez’s apartment around three times per month.122
However, Plaintiff recounted an incident where Sanchez called the
police on this friend, and the friend was no longer allowed to
visit.123
Plaintiff
occasionally helped his grandmother with
cleaning, carrying groceries, and watering plants.124
Citing a lack of motivation, Plaintiff testified that he had
“not cleaned his room in ages.”125
Plaintiff sometimes watched
television and was normally able to understand the plot line.126
Plaintiff also swam, but experienced back pain and soreness the
next day.127 Following his doctor’s advice to exercise, Plaintiff
rode his bicycle around his neighborhood.128
Plaintiff sometimes
experienced blurriness in his left eye and was prescribed glasses,
but, as he wanted contact lenses, he did not wear his glasses
often.129
Due to high blood pressure, Plaintiff took heart-related
medication.130 When he experienced high blood pressure, he was not
122
Tr. 45.
123
See Tr. 51.
124
See Tr. 47-48.
125
See Tr. 48.
126
See id.
127
See Tr. 48-49.
128
See Tr. 45.
129
See Tr. 45-46.
130
See Tr. 49.
18
be able to get out of bed due to pounding headaches.131
However,
the medication addressed these headaches with no side effects.132
Plaintiff also took medications for his psychiatric issues, but
explained that he did not always wake up early enough to take
them.133
While these medications did help with his mental issues
“[a] bit,” Plaintiff still had no motivation and interest in
activities.134
In
crowds
“[c]onstricted,
of
people,
Plaintiff
claustrophobic,”
and
stated
that
he
uncomfortable.135
felt
When
Plaintiff went to McDonald’s, he sat in a booth in the back of the
restaurant because he was worried that the restaurant might be
robbed.136 Plaintiff said he usually would go to a drive-through.137
Plaintiff was excused from the hearing, and Sanchez began her
testimony.138
Sanchez explained that she had custody of Plaintiff
since he was seven years old.139 Sanchez said that Plaintiff always
had mental problems and, as a result, had a difficult time at
131
See id.
132
See Tr. 49-50.
133
See Tr. 50.
134
See Tr. 50-51.
135
Tr. 54.
136
See id.
137
See Tr. 55.
138
See Tr. 55-56.
139
See Tr. 57.
19
school.140 Sanchez visited his school approximately once a week due
to Plaintiff’s behavioral issues.141
Plaintiff often bit other
students for making fun of him for his mental issues.142 Plaintiff
received his high school diploma from Huntsville High School
although his course work was completed at the Bayes Center.143
Sanchez explained that she had requested that Plaintiff be
removed from the courtroom because she did not want him to become
angry during her testimony.144 Plaintiff’s grandmother said that he
had a “temper” and had threatened to hit her on one occasion years
earlier.145 She also testified that when the state agency worker
came to their residence to check on them, Plaintiff assured the
case worker that he would not hurt Sanchez.146
According to Sanchez, Plaintiff did not have anyone visit him
at their apartment.147 Plaintiff refused to clean his room, so she
would clean it for him.148
140
See Tr. 57-58.
141
See Tr. 58.
142
See id.
143
See Tr. 59.
144
See id.
145
See id.
146
See id.
147
See Tr. 60.
148
See id.
149
Plaintiff read books on occasion.149
See Tr. 64.
20
Sanchez had to insist that he bathe himself, which he would only do
one to three times per month.150
Without her insistence, Sanchez
thought that he would never take a bath.151
Plaintiff would take
the trash out if she asked, but he only liked to do it after dark
so he would not be seen by anyone.152
Plaintiff did not cook for
himself, but knew how to cook eggs.153
Sanchez believed that
Plaintiff could not live on his own because he would spend his
money and not remember to pay his bills.154
Plaintiff often
performed three to four tasks at one time.155
At one point in time, Plaintiff tried to work for Sanchez’s
brother.156
Plaintiff was only able to work for four hours before
burning himself on the machine with which he was working.157
Sanchez also explained that Plaintiff would have difficulty working
outside because he would get “overheated.”158 Sanchez believed that
Plaintiff had difficulty remembering to complete tasks and spelling
150
See Tr. 60.
151
See id.
152
See Tr. 61.
153
See Tr. 60.
154
See Tr. 61, 64.
155
See id.
156
See Tr. 61-62.
157
See Tr. 62.
158
Id.
21
easy words correctly. 159
Sanchez drove Plaintiff to his doctor’s appointments.160 She
did not want Plaintiff to get a driver’s license because he got
lost easily.161
She explained that sometimes Plaintiff got lost
when he was biking, but he learned when he was lost to go to a
certain area and from there to go home.162
Sanchez reported that Plaintiff did not handle stress well.163
Sanchez opined that Plaintiff would never get married.164
She
stated that he had a girlfriend who lived in Kentucky that he met
online but had never spent time with her in-person.165
At the conclusion of Sanchez’s testimony, the VE discussed the
capability of an individual with Plaintiff’s RFC to perform jobs in
the national or regional economy.166
The ALJ presented the following hypothetical individual:
I want you to assume a person of [Plaintiff’s] age,
education and work experience, who is limited to being
able to understand, remember and carry out simple, well,
let me say this, one or two-step tasks, could not operate
at a production rate or pace work. The individual would
159
See id.
160
See Tr. 63.
161
See id.
162
See id.
163
See Tr. 63-64.
164
See Tr. 64.
165
See Tr. 65.
166
See Tr. 67-77.
22
be limited to simple, work-related decisions and could
work in an environment which has few, if any workplace
changes. Furthermore, the individual would be limited to
occasional interaction with the public, and occasional
interaction with co-workers.
Based off of that
hypothetical, is there work that such a person could
do?167
The VE opined that Plaintiff could perform work as a yard
worker, laundry worker, or office cleaner.168
The ALJ then added
limitations to the hypothetical individual:
All right, for the second hypothetical, the individual
would be limited to the same limitations as stated in the
first hypothetical, however, I want you to make the
following change. Instead of occasional interaction with
the public, the individual would be limited to no
interaction with the public.
And the remaining
limitations would remain the same. Are there jobs that
exist that such a person could do?169
The VE opined that a person with such limitations could perform the
yard worker, laundry worker, or office cleaner positions.170
For the third hypothetical individual, the ALJ added: “And for
the third hypothetical, if an individual is off-task more than 20
percent of the workday in addition to the limitations that were
previously given, is there other work that could be done?”171
The
VE responded that there would be no such jobs for this hypothetical
167
Tr. 69.
168
See Tr. 69-70.
169
Tr. 70-71.
170
See Tr. 71.
171
Id.
23
individual. 172
Plaintiff’s attorney presented a series of follow-up questions
for the VE.173
To all of Plaintiff’s attorney’s hypothetical
limitations, the VE opined that there would be no jobs in the
national or regional economy that such an individual could perform
on a full-time basis.174 The limitations posed by the attorney were
as follows: (1) “the hypothetical individual would need to be
prompted by his employer or supervisor two times every hour to
complete a task, would there be any jobs in the national economy
such an individual could perform” on a full time basis; (2) “the
hypothetical individual has a marked limitation in his ability to
maintain reliability, further indicating [that Plaintiff] would be
tardy once or twice a week, would be absent from work two to three
times per month, would there be any jobs in the national economy
such an individual could perform;” (3) “the hypothetical individual
should have no contact with the public, supervisors or co-workers
because of social inappropriateness . . . would there be any jobs
in
the
national
economy”
on
a
full-time
basis;
(4)
“the
hypothetical individual has a marked limitation in his ability to
accept
instructions
and
response
to
criticism;”
(5)
“the
hypothetical individual wouldn’t bathe for two to three months . .
172
See id.
173
See Tr. 71-75.
174
See id.
24
. and would be unclean;” (6) “the hypothetical individual would
have thoughts of intentionally attempting to harm a co-worker or a
supervisor or the public, and would exercise such a thought if he
felt that they were being unfair to him in any type of manner . .
. assume that a person had that type of thought and would have
threatening gestures to follow-up on that . . . this would occur
once a week;” (7) “the hypothetical individual requires a highly
structured work environment;” (8) “the hypothetical individual
would need positive reinforcement every hour and verbal redirection
every hour.” 175
After Plaintiff attempted to interrupt the ALJ’s questioning
of the VE, the ALJ directed the questioning back to Plaintiff,
asking about his issues with heavy work and authority figures.176
Plaintiff explained that his back hurt when he lifted heavy objects
or swam; the ALJ inquired whether there were no medical records
regarding Plaintiff’s physical condition, to which Plaintiff’s
attorney responded that he was not aware of any.177
As to his
statement that he despised authority figures, Plaintiff stated that
“because every time I end up with an authority figure, I end up
getting restrained or something or they end up just being high and
mighty, and I just can’t stand that attitude set, and it pisses me
175
Id.
176
See Tr. 75-77.
177
See Tr. 75-77.
25
off such much that I want to punch them.”178
D.
Commissioner’s Decision
On
September
decision.179
12,
2016,
the
ALJ
issued
an
unfavorable
Because Plaintiff turned eighteen on April 3, 2014,
his disability application had to be re-evaluated under the
standard for adults.180
Plaintiff was eligible for supplemental
security income benefits as a child through the month prior to the
month he turned eighteen.181
The ALJ recognized the following
impairments as severe: “Asperger’s syndrome; bipolar disorder;
Attention-Deficit Hyperactivity Disorder (ADHD); and oppositional
defiant disorder” but noted that Plaintiff’s obesity, hypertension,
and asthma were not severe impairments as there was no objective
medical evidence demonstrating that these conditions caused him
limitations.182
Plaintiff’s severe impairments, individually or collectively,
did not meet or medically equal disorders described in the listings
of the regulations183 (the “Listings”), according to the ALJ.184 In
178
Tr. 76.
179
See Tr. 7-19.
180
See Tr. 12.
181
See id.
182
Id.
183
20 C.F.R. Pt. 404, Subpt. P., App. 1.
184
See Tr. 13.
26
particular, the ALJ considered Listings 12.02 (neurocognitive
disorders), 12.04 (depressive, bipolar, and related disorders), and
12.10 (autism spectrum disorder).185
Because Plaintiff only had
mild restriction in daily activities, moderate restriction in
social functioning, moderate difficulties with concentration, and
no episodes of decompensation after attaining the age of eighteen,
the ALJ determined that Plaintiff did not meet the paragraph B
criteria.186
The ALJ also found that Plaintiff did not meet the
paragraph C criteria.187
In
determining
Plaintiff’s
RFC
to
perform
work-related
activities, the ALJ discussed Plaintiff’s claimed symptoms and his
medical treatment and stated that she followed the regulatory
requirements as to both.188 When considering Plaintiff’s symptoms,
the ALJ first evaluated whether a medically determinable impairment
could reasonably be expected to produce the alleged symptoms.189
Second, the ALJ
determined the “intensity, persistence, and
limiting effects of the claimant’s symptoms to determine the extent
to which they limit[ed] the claimant’s functioning,” looking to
other evidence in the record for those symptoms that are not
185
See id.
186
See Tr. 13-14.
187
See Tr. 14.
188
See Tr. 14-18.
189
See Tr. 14-15.
27
substantiated by objective medical evidence.190
The ALJ discussed Plaintiff’s medical treatment, including
records from his appointments with Lone Star Family Health Center
and Tri County MHMR.191 The ALJ explained that the medical evidence
contained no opinion from a treating physician finding that
Plaintiff was disabled.192
The mental assessments of the state
agency medical consultants were given significant weight, with the
ALJ finding them to be wholly consistent with the record.193
The ALJ engaged in a thorough recounting of Plaintiff’s and
his grandmother’s testimony regarding the symptoms he experienced
as a result of his impairments.194 Specifically, the ALJ discussed
the symptoms associated with his mental impairments and the impact
that they had on his life.195
The ALJ found that Plaintiff’s
testimony was “not entirely consistent with the medical evidence
and other evidence in the record.”196 Therefore, the ALJ only gave
Plaintiff’s and his grandmother’s testimony partial weight.197 The
ALJ concluded:
190
Tr. 15.
191
See Tr. 16-18.
192
See Tr. 17.
193
See Tr. 17-18.
194
See Tr. 15.
195
See id.
196
Tr. 16.
197
See id.
28
After careful consideration of the evidence, the
undersigned finds the claimant’s medically determinable
impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence, and limited
effects of these symptoms are not entirely consistent
with the medical evidence and other evidence in the
record for the reasons explained in this decision.198
The ALJ found Plaintiff capable of performing a full range of
work at any level of exertion.199
The following nonexertional
limitations were included in Plaintiff’s RFC: (1) “understanding,
remembering, and carrying out instructions involving 1-2 step tasks
with no production rate or pace work;” (2) “can make only simple,
work-related
decisions in an environment with few, if any,
workplace changes;” and (3) “can occasionally interact with
coworkers and the public.”200
Plaintiff had no past relevant work or transferable skills
because he had never held a job.201
Plaintiff was considered a
younger individual with a high school education and the ability to
communicate in English.202
The ALJ relied on the VE’s testimony
that Plaintiff could perform work in the national or regional
economy such as a yard worker, laundry worker, or office cleaner.203
198
Id.
199
See Tr. 14.
200
Id.
201
See Tr. 18.
202
See id.
203
See Tr. 19.
29
Therefore, the ALJ concluded that Plaintiff could make a successful
adjustment to work and was therefore not under a disability as of
September 30, 2014.204
Plaintiff appealed the ALJ’s decision, and, on July 17, 2017,
the Appeals Council denied Plaintiff’s request for review, thereby
transforming the ALJ’s decision into the final decision of the
Commissioner.205
II.
Standard of Review and Applicable Law
The court’s review of a final decision by the Commissioner
denying disability benefits is limited to the determination of
whether: (1) the ALJ applied proper legal standards in evaluating
the record; and (2) substantial evidence in the record supports the
decision.
A.
Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).
Legal Standard
In order to obtain disability benefits, a claimant bears the
ultimate burden of proving he is disabled within the meaning of the
Act.
Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).
Under
the applicable legal standard, a claimant is disabled if she is
unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment. . . which
has lasted or can be expected to last for a continuous period of
not less than 12 months.”
204
See id.
205
42 U.S.C. § 423(d)(1)(a); see also
See Tr. 1-6.
30
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
The
existence of such a disabling impairment must be demonstrated by
“medically acceptable clinical and laboratory diagnostic” findings.
42 U.S.C. § 423(d)(3), (d)(5)(A); Jones v. Heckler, 702 F.2d 616,
620 (5th Cir. 1983).
To determine whether a claimant is capable of performing any
“substantial gainful activity,” the regulations provide that
disability claims should be evaluated according to the following
sequential five-step process:
(1) a claimant who is working, engaging in a substantial
gainful activity, will not be found to be disabled no
matter what the medical findings are; (2) a claimant will
not be found to be disabled unless he has a “severe
impairment;” (3) a claimant whose impairment meets or is
equivalent to [a Listing] will be considered disabled
without the need to consider vocational factors; (4) a
claimant who is capable of performing work that he has
done in the past must be found “not disabled;” and (5) if
the claimant is unable to perform his previous work as a
result of his impairment, then factors such as his age,
education, past work experience, and [RFC] must be
considered to determine whether he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20
C.F.R. § 404.1520. The analysis stops at any point in the process
upon a finding that the claimant is disabled or not disabled.
Greenspan, 38 F.3d at 236.
B.
Substantial Evidence
The widely accepted definition of “substantial evidence” is
“that quantum of relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.” Carey v. Apfel, 230
31
F.3d 131, 135 (5th Cir. 2000).
It is “something more than a
scintilla but less than a preponderance.”
Id.
The Commissioner
has the responsibility of deciding any conflict in the evidence.
Id.
If the findings of fact contained in the Commissioner’s
decision are supported by substantial record evidence, they are
conclusive, and this court must affirm.
42 U.S.C. § 405(g).
Only if no credible evidentiary choices of medical findings
exist to support the Commissioner’s decision should the court
overturn it. See Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.
1988).
In applying this standard, the court is to review the
entire record, but the court may not reweigh the evidence, decide
the issues de novo, or substitute the court’s judgment for the
Commissioner’s judgment.
Brown v. Apfel, 192 F.3d 492, 496 (5th
Cir. 1999). In other words, the court is to defer to the decision
of the Commissioner as much as is possible without making its
review meaningless.
Id.
III. Analysis
Plaintiff requests judicial review of the ALJ’s decision to
deny disability benefits. Plaintiff asserts that the ALJ erred by
finding that Plaintiff’s mental impairments did not meet the
Listings.
Defendant argues that the ALJ’s decision is legally
sound and is supported by substantial evidence.
Plaintiff contends that he meets the Listing, often citing
medical records from the time period before he turned eighteen.
32
However, these records are not relevant to the determination of
whether Plaintiff was disabled after he turned eighteen and could
not properly be relied upon by the ALJ to determine if he met the
adult listings.
These records supported a finding of disability
before Plaintiff turned eighteen but the SSA had to redetermine if
he was disabled once he became an adult.
The relevant medical evidence does not support a finding that
Plaintiff meets any mental health Listing.
For example, in his
appointment from June 2014 at the Lone Star Family Health Center,
he had only one non-sleeping episode and his behavior was normal
other than decreased eye contact due to looking at his cell phone.
In October 2014, his grandmother reported that he had no behavioral
problems or eating issues and he was sleeping ten hours a night.
His mental status examinations from that year were normal, he was
cooperative, and had an appropriate affect. He had normal speech
and no suicidal or homicidal ideation.
Plaintiff was repeatedly
told to seek psychiatric counseling and failed to comply, often
cancelling or failing to attend scheduled appointments without good
cause.
While Plaintiff testified that he did not get along well
with others, he spent time on the internet where he interacted with
others, including asking a girl he met to live with him. Plaintiff
showed no interest in attempting to work.
Plaintiff engaged in
daily activities including exercise, helping his grandmother by
carrying groceries and watering plants, talking with friends on
33
Facebook and Skype, and socializing with a friend who visited his
apartment.
Additionally, the ALJ’s determination is supported by the
findings of the state agency consulting physicians, who found that
Plaintiff only had moderate or mild limitations as to the paragraph
B criteria.
These opinions were consistent with the medical
evidence in the record and provide substantial evidence in support
of the ALJ’s finding that Plaintiff did not meet any Listing.
Therefore, the ALJ’s decision finding that Plaintiff did not
meet any Listing was supported by substantial evidence
and
Plaintiff’s motion should be denied.
IV. Conclusion
Based on the foregoing, the court DENIES Plaintiff’s Motion
for Summary Judgment (Doc. 18) and GRANTS Defendant’s Cross-Motion
for Summary Judgment (Doc. 13).
SIGNED in Houston, Texas, this 20th day of August, 2018.
______________________________
U.S. MAGISTRATE JUDGE
34
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