Cornett v. Berryhill
Filing
19
MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 03/25/2019. (Bordwine, Robin)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
AARON BOONE CORNETT,
Plaintiff
)
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of Social Security, )
Defendant
)
Civil Action No. 1:17cv00035
MEMORANDUM OPINION
By: PAMELA MEADE SARGENT
United States Magistrate Judge
I. Background and Standard of Review
Plaintiff, Aaron Boone Cornett, (“Cornett”), filed this action challenging the
final decision of the Commissioner of Social Security, (“Commissioner”),
determining that he was not eligible for supplemental security income, (“SSI”),
under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 1381 et seq.
(West 2012 & 2018 Supp.). Jurisdiction of this court is pursuant to 42 U.S.C. §
1383(c)(3). This case is before the undersigned magistrate judge upon transfer by
consent of the parties pursuant to 28 U.S.C. § 636(c)(1). Neither party has
requested oral argument; therefore, this case is ripe for decision.
The court’s review in this case is limited to determining if the factual
findings of the Commissioner are supported by substantial evidence and were
reached through application of the correct legal standards. See Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as
“evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but may
be somewhat less than preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th
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Cir. 1966). ‘“If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is “substantial evidence.’” Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that Cornett protectively filed an application for SSI on
June 28, 2013, alleging disability as of June 28, 2013, based on an attention deficit
hyperactivity disorder, (“ADHD”); auditory processing disorder; obsessive
compulsive disorder, (“OCD”); anxiety disorder; a learning disability; panic
attacks; and speech impairment. (Record, (“R.”), at 198-201, 209, 213, 230-31.)
The claim was denied initially and upon reconsideration. (R. at 114-16, 119-20,
125-27, 129-31.) Cornett then requested a hearing before an administrative law
judge, (“ALJ”). (R. at 132.) A hearing was held on July 13, 2016, at which Cornett
was represented by counsel. (R. at 53-89.)
By decision dated September 1, 2016, the ALJ denied Cornett’s claim. (R. at
38-48.) The ALJ found that Cornett had not engaged in substantial gainful activity
since June 28, 2013, the alleged onset date of disability. (R. at 40.) The ALJ
determined that Cornett had severe impairments, namely borderline intellectual
functioning; autism; ADHD; a learning disability; anxiety; depression; and OCD,
but she found that Cornett did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in 20
C.F.R. Part 404 Subpart P, Appendix 1. (R. at 40-41.) The ALJ found that Cornett
had the residual functional capacity to perform a full range of work at all exertional
levels. (R. at 44.) The ALJ also found that Cornett could perform only simple,
routine and repetitive tasks that required only occasional interaction with coworkers and supervisors in an environment free from team work and over-theshoulder supervision; that did not require interaction with the general public or
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fast-paced production requirements; and that required him to make no more than
few, if any, work-related decisions. (R. at 44.) The ALJ found that Cornett had no
past relevant work. (R. at 46.) Based on Cornett’s age, education, work history and
residual functional capacity and the testimony of a vocational expert, the ALJ
found that a significant number of jobs existed in the national economy that
Cornett could perform, including the jobs of a dining room attendant/bus person, a
vehicle cleaner, janitorial cleaning occupations, all at the medium 1 exertional level;
as well as cleaning occupations, a vehicle cleaner and a photocopy machine
operator, all at the light 2 exertional level; and a document preparer at the
sedentary3 level of exertion. (R. at 47-48.) Thus, the ALJ concluded that Cornett
was not under a disability as defined by the Act, and was not eligible for SSI
benefits. (R. at 48.) See 20 C.F.R. § 416.920(g) (2018).
After the ALJ issued her decision, Cornett pursued his administrative
appeals, (R. at 195), but the Appeals Council denied his request for a review. (R. at
1-6.) Cornett then filed this action seeking review of the ALJ’s unfavorable
decision, which now stands as the Commissioner’s final decision. See 20 C.F.R. §
416.1481(2018). This case is before this court on Cornett’s motion for summary
1
Medium work involves lifting items weighing up to 50 pounds at a time with frequent
lifting or carrying of items weighing up to 25 pounds. If an individual can do medium work, he
also can do sedentary and light work. See 20 C.F.R. § 416.967(c) (2018).
2
Light work involves lifting items weighing up to 20 pounds at a time with frequent
lifting or carrying of items weighing up to 10 pounds. If someone can perform light work, he
also can perform sedentary work. See 20 C.F.R. § 416.967(b) (2018).
3
Sedentary work involves lifting items weighing up to 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking or standing is
often necessary in carrying out job duties. Jobs are sedentary if walking or standing is required
occasionally and other sedentary criteria are met. See 20 C.F.R. § 416.967(a) (2018).
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judgment filed February 15, 2018, and the Commissioner’s motion for summary
judgment filed April 19, 2018.
II. Facts
Cornett was born in 1994, (R. at 47, 198), which classifies him as a
“younger person” under 20 C.F.R. § 416.963(c). Cornett has a high school
education. (R. at 47, 58-59, 214.) He stated that he was enrolled in special
education classes. (R. at 59.) Cornett stated that he had a difficult time
remembering what he read. (R. at 59.) He stated the he could perform basic math,
such as adding and subtracting. (R. at 60.) Cornett stated that he took welding
classes in vocational school, but he did not obtain his certification. (R. at 67, 75,
214.) Cornett stated that he played video games, went fishing, drove four-wheelers
and performed occasional light household chores, which included dusting and
vacuuming, as well as helping his father mow grass. (R. at 60, 71, 224.) He stated
that being around people caused him to have panic attacks. (R. at 65.) Cornett
stated that he took medication for anxiety, which helped “a little bit.” (R. at 65.)
Cornett’s mother, Donna Cornett, (“D. Cornett”), also testified at Cornett’s
hearing (R. at 72-82.) D. Cornett stated that Cornett was enrolled in special
education classes and received speech therapy. (R. at 72-73.) D. Cornett stated that
Cornett could not process multi-step instructions. (R. at 78-79.) She stated that
Cornett had most difficulty with reading; however, he struggled with all subjects.
(R. at 73.) D. Cornett stated that she would not allow Cornett to obtain his driver’s
license because he was too impulsive and would “kill himself or somebody else.”
(R. at 75-76.) She stated that any change in Cornett’s surroundings would trigger
panic attacks. (R. at 79-80.)
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Cecilia Thomas, a vocational expert, also testified at Cornett’s hearing. (R.
at 83-88.) Thomas was asked to consider a hypothetical individual of Cornett’s
age, education and work history, who could perform work at all levels of exertion;
who could understand, remember and carry out simple, routine, repetitive tasks and
respond appropriately to occasional interaction with co-workers and supervisors in
an environment free from team work and over-the-shoulder supervision; that did
not require interaction with the general public or performance of fast-paced
production; and that did not require him to make more than a few, if any, workrelated decisions. (R. at 83-84.) Thomas stated that the individual could perform
medium, light and sedentary jobs that existed in significant numbers in the national
economy, including those in food service areas, cleaning of vehicles and
equipment, janitorial cleaning, photocopy machine operation and document
preparation. (R. at 84-86.) Thomas stated that there would be no jobs available
should the individual be precluded from all social interaction. (R. at 86-87.)
In rendering her decision, the ALJ also reviewed records from Tazewell
County Public Schools; Juli Harper, Ed.S., a school psychologist; Bradley T.
Kinder, M.S., a licensed professional counselor; Dr. Eric Shrader, M.D.; David T.
Ellis, Psy.D., a licensed psychologist; Louis Perrott, Ph.D., a state agency
psychologist; and Dr. Sreeja Kadakkal, M.D., a state agency physician. Cornett’s
attorney also submitted medical records from Ellis, Dr. Shrader and Pamela S.
Tessnear, Ph.D., a licensed clinical psychologist, to the Appeals Council. 4
4
Since the Appeals Council considered and incorporated this additional evidence into the
record in reaching its decision, (R. at 1-6), this court must also take these new findings into
account when determining whether substantiated evidence supports the ALJ’s findings. See
Wilkins v. Sec'y of Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991).
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On February 17 and 22, 2012, Juli Harper, Ed.S., a school psychologist,
evaluated Cornett to determine if he continued to qualify for special education
services. (R. at 296-99.) Cornett was 17 years old and was in the tenth grade. (R.
at. 296.) The Wechsler Adult Intelligence Scale – Fourth Edition, (“WAIS-IV”),
was administered, and Cornett obtained a verbal comprehension score of 76; a
perceptual reasoning score of 84; a working memory score of 74; a processing
speed score of 94; and a full-scale IQ score of 78. (R. at 297.) This full-scale IQ
score placed Cornett in the borderline range of intellectual functioning. (R. at 298.)
Harper reported that Cornett struggled to comprehend written material. (R. at. 29899.) The Wechsler Individual Achievement Test, Third Edition, (“WIAT-III”), was
administered, and Cornett’s reading comprehension and math skills fell within the
low range, demonstrating significant difficulty completing these tasks. (R. at 29899.) Harper opined that Cornett continued to require special education services. (R.
at 299.)
On March 5, 2012, records from Tazewell County Public Schools show that
Cornett demonstrated weakness in the area of reading comprehension and math.
(R. at 253.) It was reported that Cornett had extreme difficulty staying focused and
on task; he required constant prompting to start and finish assignments; he required
repeated directions; and his cognitive ability scores ranged from borderline to the
average range. (R. at 254-55, 299.) Cornett was found to have a disability under
the disability category of “Specific Learning Disabled;” therefore, special
education services were continued. (R. at 255.)
On December 30, 2013, Bradley T. Kinder, M.S., a licensed professional
counselor, evaluated Cornett at the request of Disability Determination Services.
(R. at 300-05.) Kinder reported that Cornett’s hygiene, speech and mood were
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within normal limits; he was cooperative; he made good eye contact; his thought
processes were goal directed and unimpaired; no perceptual disturbances were
noted; his judgment and insight were fair; his fund of knowledge was fair; and he
displayed no difficulty with remote or immediate recall. (R. at 300-01.) Kinder
reported that Cornett presented with no mental health related problems, aside from
borderline intellectual functioning. (R. at 302.) The WAIS-IV was administered,
and Cornett obtained a full-scale IQ score of 78; a verbal comprehension score of
78; a perceptual reasoning score of 91; a working memory score of 77; and a
processing speed score of 81. (R. at 303-04.) Kinder noted that Cornett presented
with no symptoms consistent with ADHD, OCD or depression. (R. at 304.) Cornett
reported that he wanted to work. (R. at 301.) Kinder reported that he did have
concerns about Cornett’s ability to manage his own funds. (R. at 304.) Kinder
diagnosed ADHD, not otherwise specified, by history; mood disorder, not
otherwise specified, by reported history; mood disorder, not otherwise specified,
provisional; and borderline intellectual functioning. (R. at 305.) Kinder assessed
Cornett’s then-current Global Assessment of Functioning, (“GAF”), 5 score at 71.6
(R. at 305.) Kinder opined that Cornett could perform sustained complex tasks;
maintain regular attendance; work without routine supervision; interact with the
public; and would not be overwhelmed by routine stressors encountered in the
work place. (R. at 304.)
5
The GAF scale ranges from zero to 100 and “[c]onsider[s] psychological, social, and
occupational functioning on a hypothetical continuum of mental health-illness.” DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS FOURTH EDITION, (“DSM-IV”), 32
(American Psychiatric Association 1994).
6
A GAF score of 71 to 80 indicates that “[i]f symptoms are present, they are transient
and expectable reactions to psychosocial stressors ...; no more than slight impairment in social,
occupational, or school functioning....” DSM-IV at 32.
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On January 21, 2014, Louis Perrott, Ph.D., a state agency psychologist,
completed a Psychiatric Review Technique form, (“PRTF”), finding that Cornett
had mild restrictions on his activities of daily living, experienced only mild
difficulties in maintaining social functioning; experienced moderate difficulties in
maintaining concentration, persistence or pace; and had experienced no repeated
episodes of extended-duration decompensation. (R. at 95-96.)
Perrott also completed a mental assessment, finding that Cornett had
moderate limitations in his ability to understand, remember and carry out detailed
instructions; to maintain attention and concentration for extended periods; and to
complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods. (R. at 97-99.) Perrott stated that
Cornett’s work-related mental abilities were, otherwise, not significantly limited.
(R. at 97-99.)
On September 23, 2014, Dr. Sreeja Kadakkal, M.D., a state agency
physician, completed a PRTF, finding that Cornett had mild restrictions on his
activities of daily living; experienced only mild difficulties in maintaining social
functioning; experienced moderate difficulties in maintaining concentration,
persistence or pace; and had experienced no repeated episodes of extendedduration decompensation. (R. at 107-08.)
Dr. Kadakkal also completed a mental assessment, finding that Cornett had
moderate limitations in his ability to understand, remember and carry out detailed
instructions; to maintain attention and concentration for extended periods; and to
complete a normal workday and workweek without interruptions from
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psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods. (R. at 109-11.) Dr. Kadakkal
stated that Cornett’s work-related mental abilities were, otherwise, not significantly
limited. (R. at 110-11.)
The record shows that Dr. Eric Shrader, M.D., treated Cornett from 2009 to
2016 7 for ADD; malaise and fatigue; allergic rhinitis; actinic keratosis; a learning
disability; anxiety and depression with OCD; autism spectrum disorder, (“ASD”);
and auditory processing disorder. 8 (R. 34, 307-12, 323.) Treatment notes indicate
that Cornett’s anxiety and depression symptoms improved with medication. (R. at
34, 308.) In 2013, it was reported that Cornett’s ADD was doing well without
medication. (R. at 310.) In February 2014, Cornett complained of problems with
anger management; impulsive behavior; ADD; and difficulty concentrating,
prioritizing and staying on task. (R. at 309.) Cornett was started on medication for
ADD. (R. at 309.) In September 2014, Cornett reported not doing well with the
ADD medication; therefore, he stopped taking it. (R. at 308.) In October 2015, Dr.
Shrader reported that Cornett was fairly stable on Lexapro, but he was not
functional otherwise to be able to manage his own affairs and to have gainful
employment. (R. at 323.) Dr. Shrader diagnosed actinic keratosis; ASD;
intellectual impairment with learning disability; and allergic rhinitis, controlled.
(R. at 323.)
7
Dr. Shrader saw Cornett one time in 2009; two times in 2011; one time in 2013; two
times in 2014; one time in 2015; and one time in 2016. (R. at 34, 307-12, 323.)
8
Dr. Shrader referred Cornett to a neurologist for evaluation. (R. at 34.) However, the
record does not indicate that Cornett was seen by a neurologist.
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On March 26 and April 16, 2015, David T. Ellis, Psy.D., a licensed
psychologist, evaluated Cornett. (R. at 314-22.) Cornett presented to the evaluation
with his mother, who demonstrated a tendency to answer for Cornett. (R. at 31617.) It was reported that Cornett did “much better” when taking his medications.
(R. at 315.) Ellis reported that, when communicating with Cornett, he stared
directly back at him without blinking. (R. at 316.) He reported that Cornett’s
distinct adult appearance did not match his level of emotional and mental
development; he was not fully oriented, in that he did not keep track of specific
things such as date and time; he displayed fairly significant cognitive limitations;
his insight and judgment were “very limited;” his memory was intact, though
lacking in detail; concentration and focus difficulties were noted; speech was
stilted and was without a smooth flow or rhythm; and he was emotionally flat and
blunted. (R. at 316-17.) The WAIS-IV was administered, and Cornett obtained a
full-scale IQ score of 63; a verbal comprehension score of 58; a perceptual
reasoning score of 82; a working memory score of 55; and a processing speed
score of 76. (R. at 317-18.) The WIAT-III indicated that Cornett performed in the
below average range in reading and in the low range for oral language, reading
comprehension, written expression and math. (R. at 318-19.) The Gilliam Autism
Rating Scale-Third Edition, (“GARS-3”), indicated that Cornett suffered from
ASD. (R. at 320.) Ellis diagnosed ASD, moderate, with intellectual impairment;
intellectual disability, mild; and specific learning disorder in math, reading and
written expression. (R. at 320.) Ellis determined that Cornett could not function
independently. (R. at 321.)
On January 10, 2017, Pamela S. Tessnear, Ph.D., a licensed clinical
psychologist, evaluated Cornett at the request of Cornett’s attorney. (R. at 10-20.)
Tessnear noted that the Personality Assessment Inventory, (“PAI”), could not be
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administered due to Cornett’s poor comprehension and poor attention. (R. at 15.)
Therefore, the Mini-Mental State Examination, (“MMSE”), Hamilton Anxiety
Rating Scale, (“HAM-A”), and Hamilton Depression Rating Scale, (“HAM-D”),
were administered. (R. at 15-16.) Results of the MMSE indicated that Cornett’s
cognitive functioning was intact. (R. at 15.) Results of the HAM-A and HAM-D
indicated that Cornett suffered from no more than mild anxiety and mild
depression. (R. at 16.) Tessnear reported that Cornett was appropriately dressed;
his social interaction was awkward; cooperation was fair; communication was
good; his rate and volume of speech were normal; he displayed limited insight into
his actions or their impact on other people; he had poor insight, memory and his
intellectual limitations contributed to poor judgment; he had poor remote history;
his attention and concentration were poor; and his stream of thought was generally
logical, though his speech was so impoverished that there was little opportunity to
observe process of thought. (R. at 16-17.) Tessnear diagnosed ASD. (R. at 18.)
Tessnear opined that Cornett had the cognitive ability to follow simple
instructions; he required assistance for regular work attendance because of the
inability to provide his own transportation; he was unable to initiate activities,
make independent decisions or adhere to time constraints; he required special
supervision to stay on task due to distractibility; he was unable to function in a
sustained manner due to needing redirection; he could not maintain concentration,
persistence and pace over a sustained period; social functioning was impaired by
poor judgment, thus, he could not work with the public or co-workers; and he
would require a low-stress environment. (R. at 19-20.) She reported that Cornett
was not able to manage his own funds. (R. at 19.) Tessnear reported that Cornett
would not interact well with others and could be aggressive when agitated;
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therefore, he could not work with the general public, co-workers or supervisors.
(R. at 19.)
III. Analysis
The Commissioner uses a five-step process in evaluating SSI claims. See 20
C.F.R. § 416.920 (2018). See also Heckler v. Campbell, 461 U.S. 458, 460-62
(1983); Hall v. Harris, 658 F. 2d 260, 264-65 (4th Cir. 1981). This process requires
the Commissioner to consider, in order, whether a claimant 1) is working; 2) has a
severe impairment; 3) has an impairment that meets or equals the requirements of a
listed impairment; 4) can return to his past relevant work; and 5) if not, whether he
can perform other work. See 20 C.F.R. § 416.920. If the Commissioner finds
conclusively that a claimant is or is not disabled at any point in this process, review
does not proceed to the next step. See 20 C.F.R. § 416.920(a)(4) (2018).
Under this analysis, a claimant has the initial burden of showing that he is
unable to return to his past relevant work because of his impairments. Once the
claimant establishes a prima facie case of disability, the burden shifts to the
Commissioner. To satisfy this burden, the Commissioner must then establish that
the claimant has the residual functional capacity, considering the claimant’ s age,
education, work experience and impairments, to perform alternative jobs that exist
in the national economy. See 42 U.S.C.A § 1382c(a)(3)(A)-(B) (West 2012);
McLain v, Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall, 658 F.2d at 26465; Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980).
As stated above, the court’s function in this case is limited to determining
whether substantial evidence exists in the record to support the ALJ’s findings.
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This court must not weigh the evidence, as this court lacks authority to substitute
its judgment for that of the Commissioner, provided her decision is supported by
substantial evidence. See Hays, 907 F.2d at 1456. In determining whether
substantial evidence supports the Commissioner’s decision, the court also must
consider whether the ALJ analyzed all of the relevant evidence and whether the
ALJ sufficiently explained her findings and her rationale in crediting evidence. See
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Cornett argues that the ALJ erred by failing to properly consider Ellis’s
opinion. (Memorandum In Support Of Motion For Summary Judgment,
(“Plaintiff’s Brief”), at 3-7.) Cornett also argues that the Appeals Council erred by
refusing to consider the report and opinion of Tessnear. (Plaintiff’s Brief at 7-11.)
The ALJ found that Cornett could perform only simple, routine and
repetitive tasks that required only occasional interaction with co-workers and
supervisors in an environment free from team work and over-the-shoulder
supervision; that did not require interaction with the general public or fast-paced
production requirements; and that required him to make no more than few, if any,
work-related decisions. (R. at 44.)
Based on my review of the record, I do not find that substantial evidence
exists to support the ALJ’s finding as to Cornett’s residual functional capacity, in
that it did not take into account Cornett’s problems with attention and
concentration. Cornett’s mother testified that Cornett had difficulty with task
completion. (R. at 78.) She stated that Cornett had difficulty following direction
unless someone was standing over him giving him one-step directions. (R. at 81.)
School records show that Cornett had extreme difficulty staying focused and on
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task, he required constant prompting to start and finish assignments, and he
required repeated directions. (R. at 254, 297, 299.) In February 2014, Cornett
complained of problems with anger management; impulsive behavior; ADD; and
difficulty concentrating, prioritizing and staying on task. (R. at 309.) Ellis reported
that Cornett was not fully oriented, in that he did not keep track of specific things
such as date and time; he displayed fairly significant cognitive limitations; his
insight and judgment were “very limited;” his memory was intact, though lacking
in detail; concentration and focus difficulties were noted; speech was stilted and
was without a smooth flow or rhythm; and he was emotionally flat and blunted. (R.
at 316-17.) In October 2015, Dr. Shrader reported that Cornett was fairly stable on
Lexapro, but he was not functional otherwise to be able to manage his own affairs
and to have gainful employment. (R. at 323.) Dr. Shrader diagnosed ASD and
intellectual impairment with learning disability. (R. at 323.) In addition, a state
agency psychologist and a state agency physician opined that Cornett had moderate
limitations in his ability to maintain attention and concentration for extended
periods; to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods. (R. at 98, 110.) While Kinder is
the only mental health expert of record who did not note significant problems with
Cornett’s attention and concentration, the ALJ stated that she was giving Kinder’s
opinions little weight. (R. at 46.)
Cornett also argues that the Appeals Council erred by refusing to consider
the report and opinion of Tessnear. (Plaintiff’s Brief at 7-11.) First, Cornett’s
contention that the Appeals Council did not consider the evidence from Tessnear is
simply incorrect. The Appeals Council did consider this evidence in declining to
review the ALJ’s decision. (R. at 2.) That being the case, this court also must
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consider this evidence in determining whether substantial evidence supports the
ALJ’s decision. See Wilkins, 953 F.2d at 96. While Tessnear’s evaluation took
place in January 2017, four months after the ALJ’s decision, I find that it is
relevant to Cornett’s claim. Tessnear diagnosed ASD, and her assessment
concerning Cornett’s work-related abilities stem from that diagnosis. (R. at 18-20.)
Tessnear reported that Cornett had awkward social interaction; he displayed
limited insight into his actions or their impact on other people; he had poor insight
and his intellectual limitations contributed to poor judgment; he had poor remote
memory; his attention and concentration were poor; and his stream of thought was
generally logical, though his speech was so impoverished that there was little
opportunity to observe process of thought. (R. at 16-17.) Tessnear opined that
Cornett was unable to initiate activities, make independent decisions or adhere to
time constraints; he required special supervision to stay on task due to
distractibility; he was unable to function in a sustained manner due to needing
redirection; he could not maintain concentration, persistence and pace over a
sustained period; social functioning was impaired by poor judgment, thus, he could
not work with the public or co-workers; and he would require a low-stress
environment. (R. at 19-20.)
While the ALJ did not have Tessnear’s opinion, it is similar to the findings
of Ellis and Dr. Shrader, in that Cornett would require special supervision to
function independently. (R. at 19-20, 321, 323.) While the record shows that
Cornett was fairly active, many of the cited activities, including playing video
games, fishing, driving his ATV and performing light household chores, say little
about Cornett’s ability to sustain work for an eight-hour workday without special
instructions or additional supervision. (R. at 60, 71, 224, 226, 316.) The fact that
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Cornett could perform a few activities by himself does not outweigh the substantial
evidence from his school records, his doctor’s opinions and the testimony of D.
Cornett showing that he would require additional supervision or special instruction.
See Davis v. Comm’r of Soc. Sec., 2017 WL 4052827, at *7 (W.D. Va. Aug. 22,
2017) (treating a need for supervision as a functional limitation).
Based on the above, I do not find that substantial evidence exists to support
the ALJ’s finding as to Cornett’s residual functional capacity. Thus, I do not find
that substantial evidence exists in the record to support the ALJ’s finding that
Cornett was not disabled. I will vacate the Commissioner’s decision and remand
Cornett’s claim to the Commissioner. An appropriate Order and Judgment will be
entered.
DATED:
March 25, 2019.
Pamela Meade Sargent
s/
UNITED STATES MAGISTRATE JUDGE
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