CLIFFORD J. PROUD, Magistrate Judge.
In accordance with 42 U.S.C. § 405(g), plaintiff Stephen B. Brandenberg is before the Court, represented by counsel, seeking review of the final decision of the Commissioner of Social Security denying him Supplemental Security Income (SSI) and Disabled Adult Child Insurance Benefits (DAC).
Plaintiff received SSI benefits based on disability as a child. In 2010 plaintiff reached the age of eighteen and eligibility for these benefits was redetermined. Plaintiff applied for disability insurance benefits as a disabled adult child in February, 2010. (Tr. 22). After holding an evidentiary hearing, ALJ Thomas C. Muldoon denied the application in a written decision dated August 13, 2012. (Tr. 22-32). The Appeals Council denied review, and the decision of the ALJ became the final agency decision. (Tr. 10-12). Administrative remedies have been exhausted and a timely complaint was filed in this Court.
Plaintiff raises the following points:
1. The ALJ made an error of law by failing to elicit testimony from a
Individuals who are eligible for SSI benefits as children the month before they reach the age of eighteen must have their disability redetermined under the rules for disability used for adults.
A "physical or mental impairment" is an impairment resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
Social Security regulations set forth a sequential five-step inquiry to determine whether a claimant is disabled. The Seventh Circuit Court of Appeals has explained this process as follows:
Stated another way, it must be determined: (1) whether the claimant is presently unemployed; (2) whether the claimant has an impairment or combination of impairments that is serious; (3) whether the impairments meet or equal one of the listed impairments acknowledged to be conclusively disabling; (4) whether the claimant can perform past relevant work; and (5) whether the claimant is capable of performing any work within the economy, given his or her age, education and work experience.
If the answer at steps one and two is "yes," the claimant will automatically be found disabled if he or she suffers from a listed impairment, determined at step three. If the claimant does not have a listed impairment at step three, and cannot perform his or her past work (step four), the burden shifts to the Commissioner at step five to show that the claimant can perform some other job.
This Court reviews the Commissioner's decision to ensure that the decision is supported by substantial evidence and that no mistakes of law were made. It is important to recognize that the scope of review is limited. "The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ."
The Supreme Court has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
ALJ Muldoon followed the five-step analytical framework described above. He determined that plaintiff had not been engaged in substantial gainful activity since the date of his application. He found that plaintiff had severe impairments of ADHD, depression, and a learning disorder and that these impairments do not meet or equal a listed impairment. The ALJ found that plaintiff had the residual functional capacity (RFC) to perform a full range of work at all exertional levels but with some nonexertional limitations. Based on the Medical-Vocational Guidelines, the ALJ found that plaintiff was able to perform jobs which exist in significant numbers in the national and local economy. (Tr. 22-32).
The Court has reviewed and considered the entire evidentiary record in formulating this Memorandum and Order. The following summary of the record is directed to the points raised by plaintiff.
As a child, plaintiff was considered disabled on the basis of attention deficit hyperactivity disorder and a motor dysfunction. (Tr. 429). In 2006, an ALJ reviewed plaintiff's record and determined plaintiff had been disabled since August 30, 1999. (Tr. 430). Plaintiff's developmental delays, poor testing results, and his visual-motor coordination problems led the ALJ in that case to determine plaintiff was disabled. (Tr. 427). Plaintiff was entitled to benefits until he reached the age of 18 in 2010. (Tr. 22).
Plaintiff was born on April 17, 1992 and was 20 years old when ALJ Muldoon issued his decision. (Tr. 530, 22). Plaintiff attended special education classes in high school and had no previous work experience. He was 5'6" and 260 pounds. He said he was unable to work because of a developmental disability, attention deficit hyperactivity disorder, and autism. (Tr. 534).
In a Function Report submitted in December of 2010 plaintiff stated his concentration caused him to be unable to focus and integrate external and internal information from his environment. He claimed his problems limited his ability to perform everyday tasks like driving a car, tying his shoes, and buttoning a shirt. (Tr. 559).
Plaintiff lived with his mother and she took care of his dog and cat. His medicine for ADHD interfered with his sleep if he did not take it early enough in the day. He needed his mother to help him regulate his medications and get to school on time. He had trouble shaving and getting ready in the mornings. (Tr. 560). He occasionally made meals in the microwave. (Tr. 561). He was unable to operate yard machinery properly and had trouble remembering how to use a dishwasher and laundry machine. He could not drive a car and relied on either the school bus or other individuals for rides. He was not able to understand how to use a checking or savings account. (Tr. 562). He occasionally visited with a friend that lived down the street and was trying to teach his pet Siberian husky to perform commands. (Tr. 563).
Plaintiff had problems interacting with others and he sometimes said or did inappropriate things. He reported having issues talking, seeing, completing tasks, concentrating, understanding, following instructions, using his hands, getting along with others, and with his memory. He could not follow written or spoken instructions without help (Tr. 564).
Plaintiff was represented by an attorney at the evidentiary hearing on March 15, 2012. (Tr. 861). Plaintiff was nineteen years old at the time of the hearing and lived in Alton, Illinois with his mother. (Tr. 862).
Plaintiff was enrolled in special education classes for math and English in high school before he graduated. (Tr. 863-64). At the time of the hearing, plaintiff was enrolled at Lewis and Clark Community College and taking mostly remedial courses. (Tr. 863). He was not doing well in his courses at community college because he found it difficult to focus and he frequently procrastinated. (Tr. 864).
Plaintiff did not have a driver's license because he was afraid to drive. (Tr. 865-66). He never attempted to take the test but he did take a driver's education class. His mom took him to his classes in the mornings because he feared public transportation. (Tr. 866).
During plaintiff's junior year of high school he worked in a student employment program. (Tr. 867). He swept stairs but it did not work out well so he quit after about five months. (Tr. 867-68). He did not perform much work outside of sweeping because he had problems performing other work. (Tr. 868). Plaintiff felt his depression and anxiety were keeping him from working at the time of the hearing. His mother took him to see a therapist, Joseph Orbaucher, several times a month to help with his depression. (Tr. 869). He was currently on medication to help treat depression but he did not think it helped. (Tr. 870).
Plaintiff had a few responsibilities around the house, like taking out the trash, but he had to be reminded to perform them. (Tr. 872). He did not have any hobbies other than using his computer. (Tr. 873).
The ALJ did not ask plaintiff any questions and a vocational expert did not testify.
Since 1999 plaintiff has been repeatedly diagnosed with ADHD by multiple medical professionals. (E.g., Tr. 245-47, 277, 370-3, 673). Plaintiff took Adderall, Strattera, and Focalin at different times to help manage the symptoms of ADHD. (Tr. 382-83, 392, 537, 550-55, 676-79). He felt the medications were not overly helpful and did not take them consistently. (Tr. 670, 708, 739).
Plaintiff had two psychological evaluations performed by Dr. Vincent
Plaintiff had difficulties following a sequence of instructions without having them repeated and simplified. He was able to remember five numbers forward and three backward, could recall three past presidents, and could spell world forward but not backward. He could count by threes to twenty-one and could name three cities. However, he was unable to recall any of the three items previously learned after a five minute interval. (Tr. 686). Dr. Vincent felt plaintiff did not meet the criteria for autism and that he could manage his own funds. Dr. Vincent reported his diagnostic impressions of plaintiff were ADHD and mood disorder. (Tr. 687).
Dr. Vincent's second psychological evaluation took place in February 2011. (Tr. 708). His findings were primarily similar with the previous evaluation with a few noted differences. Dr. Vincent noted plaintiff had minimal response to using Strattera for help with his ADHD. (Tr. 708). Dr. Vincent felt plaintiff's mood was moderately depressed, and his thought processes were slow and concrete with limited insight and judgment. (Tr. 709). After overseeing intellectual testing Dr. Vincent found plaintiff to be within the mild mentally retarded range with dependent personality traits. (Tr. 710-11).
In 2011, plaintiff began receiving treatment for his depression at Wellspring Resources and Community Counseling Center. (Tr. 733-83). He was diagnosed with major depressive disorder without psychotic features and started on antidepressants. (Tr. 738). At one point plaintiff was reportedly responding very well to the medications, however at his hearing he stated they were making him tired and were not helping his depression. (Tr. 808, 870).
Plaintiff was enrolled in special education classes from the first grade through high school. (Tr. 670). Plaintiff had multiple school reports indicating he had learning disorders and needed a great deal of attention to complete tasks as he was easily distracted. (E.g., Tr. 281, 302, 373, 389, 403). Plaintiff's intelligence and learning capabilities were assessed by multiple tests throughout the course of his academic career. His cognitive functioning tests revealed his intellectual capacity range was anywhere from "average" to "extremely low." (Tr. 613, 650). He graduated from high school in 2011 and took several classes at Lewis and Clark Community College. (Tr. 583, 739). Plaintiff primarily took remedial courses at community college and his grades were mostly C's and D's. (Tr. 583).
Plaintiff had two mental residual functional capacity assessments (RFC) performed. (Tr. 688-91, 712-715). The first RFC was performed by Donald Henson, Ph.D., in August 2010. (Tr. 688-91). Dr. Henson found plaintiff to be moderately limited in his ability to carry out detailed instructions and his ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (Tr. 688). Dr. Henson felt that regardless of plaintiff's limitations he was capable of performing simple routine activities and his interpersonal skills and adaptive behaviors were adequate for vocational involvement. (Tr. 690). In Dr. Henson's psychiatric review technique he found plaintiff mildly restricted in maintaining social functioning, concentration, persistence or pace. (Tr. 702).
Dr. Donna Hudspeth, a psychologist, performed plaintiff's second RFC in March 2011. (Tr. 712-715). She found plaintiff moderately limited in his ability to understand, remember, and carry out detailed instructions, to work in coordination with or in proximity to others without being distracted by them, to interact appropriately with the general public, to get along with coworkers or peers without distracting them or exhibiting behavioral extremes, to respond appropriately to changes in the work setting, and to set realistic goals or make plans independently of others. (Tr. 712-13).
Dr. Hudspeth found plaintiff capable of understanding, remembering, and performing simple, rote, and routine tasks. She felt more complex tasks could be frustrating for plaintiff and that he should not deal with the public but could communicate with a supervisor. She opined that plaintiff was capable of making ordinary work decision and complying with the structure of a work routine. (Tr. 714). In Dr. Hudspeth's psychiatric review technique she found plaintiff moderately limited in his ability to maintain social functioning, concentration, persistence or pace. (Tr. 726).
Plaintiff believes the ALJ erred in his RFC determination by not including the functional consequences of plaintiff's ADHD. Specifically, plaintiff finds fault in the ALJ's failure to include limitations on concentration, persistence and pace in his determination.
RFC is "the most you can still do despite your limitations."
The ALJ acknowledged that plaintiff had a severe impairment of ADHD and that he had moderate difficulties with concentration, persistence and pace. The only restriction he placed on plaintiff's ability to work was the nonexertional limitation of "simple and routine tasks." Plaintiff criticizes the usage of this language and cites a series of Seventh Circuit cases in support, most notably,
In
The Commissioner argues that the case at hand falls under the alternative phrasing exception to the rule. She argues that the ALJ relied upon Dr. Henson's evaluation in determining the RFC and that "simple and routine tasks" was a specific restriction that satisfied the alternative phrasing exception in
The exception exists when the terms "concentration, persistence and pace" were omitted but "it is manifest that the ALJ's alternative phrasing specifically excluded those tasks that someone with the claimant's limitations would be unable to perform."
In
This Court finds the case at hand to fit under the rule in
This is not what occurred in the case at hand. The ALJ agreed that concentration, persistence and pace impairments existed for plaintiff at least to a moderate degree but failed to include them in his limitations or analysis of work capabilities. Plaintiff cited several portions of the record that established impairments with concentration and memory. Plaintiff argues that these difficulties are disabling and cites portions of the record indicative of those impairments.
The Commissioner correctly noted that several of the instances plaintiff cites occurred when he was a child. However, plaintiff also cites several portions of the record that occurred after he reached eighteen and that indicate his problems with concentration and memory. For example, plaintiff struggled concentrating in interviews with Dr. Vincent. (Tr. 685-687). He could not remember to bring home his text books so he had to have an extra set for his home. (Tr. 642). He cannot drive because he cannot concentrate and focus enough to be able to do so safely. (Tr. 556, 559). While these problems may not translate into plaintiff being entirely disabled, these issues should have been factored into the ALJ's determination of plaintiff's work capabilities. All of plaintiff's limitations need to be analyzed to assure reviewing courts that there is substantial evidence of the jobs plaintiff can do.
This Court next looks at plaintiff's contention that the ALJ erred in not consulting a vocational expert. The ALJ looked to the Medical-Vocational Guidelines (the "grids") in his determination that plaintiff was not disabled. He stated that if the claimant has solely nonexertional limitations that relying on the grids was appropriate. This is error. The Seventh Circuit has held that that "where a nonexertional limitation might substantially reduce a range of work an individual can perform, the use of the grids would be inappropriate and the ALJ must consult a vocational expert."
The ALJ found plaintiff had severe ADHD, depression, and nonexertional limitations of simple and routine tasks. There is substantial evidence within the record that establishes plaintiff had difficulty with memory and concentration. (E.g., Tr. 281, 302, 373, 389, 403). As discussed above, the ALJ acknowledged plaintiff's moderate difficulties with concentration, persistence and pace. Similarly to
The Court wishes to stress that this Memorandum and Order should not be construed as an indication that the Court believes that plaintiff is disabled or that he should be awarded benefits. On the contrary, the Court has not formed any opinions in that regard, and leaves those issues to be determined by the Commissioner after further proceedings.
The Commissioner's final decision denying Stephen B. Brandenberg's application for social security disability benefits is
The Clerk of Court is directed to enter judgment in favor of plaintiff.
