WILLIAM B. MITCHELL CARTER, Magistrate Judge.
This action was instituted pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social Security denying the plaintiff supplemental security income under Title XVI of the Social Security Act.
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure for a Report and Recommendation regarding the disposition of:
For the reasons stated herein, I RECOMMEND the Commissioner's decision be
Plaintiff filed an application for Supplemental Security Income benefits in August 2009 (Tr. 110-18). The agency denied this application initially and upon reconsideration (Tr. 38, 39, 40, 41, 43, 44, 45, 46-48, 49-52). Plaintiff thereafter timely pursued and exhausted his administrative remedies, including a hearing before an administrative law judge (ALJ). The ALJ issued an unfavorable decision (Tr. 7-22), and the Appeals Council denied Plaintiff's request for review (Tr. 1-6). The ALJ's final hearing decision is ripe for review under 42 U.S.C. § 405(g).
Disability is defined as the inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). The burden of proof in a claim for social security benefits is upon the claimant to show disability. Barney v. Sec'y of Health & Human Servs., 743 F.2d 448, 449 (6th Cir. 1984); Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980); Hephner v. Mathews, 574 F.2d 359, 361 (6th Cir. 1978). Once the claimant makes a prima facie case that he cannot return to his former occupation, however, the burden shifts to the Commissioner to show that there is work in the national economy which claimant can perform considering his age, education, and work experience. Richardson v. Sec'y of Health & Human Servs., 735 F.2d 962, 964 (6th Cir. 1984); Noe v. Weinberger, 512 F.2d 588, 595 (6th Cir. 1975). AThis Court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record." Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (quoting Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997)). If there is substantial evidence to support the Commissioner's findings, they should be affirmed, even if the Court might have decided facts differently, or if substantial evidence also would have supported other findings. Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996); Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The Court may not re-weigh the evidence and substitute its own judgment for that of the Commissioner merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard allows considerable latitude to administrative decision makers because it presupposes there is a zone of choice within which the decision makers can go either way, without interference by the courts. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citing Mullen v. Bowen, 800 F.2d 535, 548 (6th Cir. 1986)); Crisp v. Sec'y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).
As the basis of the administrative decision of December 10, 2010, that plaintiff was not disabled, the ALJ made the following findings:
(Tr. 13-17).
Plaintiff raises one issue:
Plaintiff was 32 years old at the time of his alleged onset (Tr. 38). Plaintiff has a high school education, but no past relevant work (Tr. 16). Plaintiff alleged he became disabled in July 2009 (Tr. 25). After a review of the written evidence and the testimony at the hearing, the ALJ found Plaintiff had severe learning disability/Asperger's Syndrome, obsessive compulsive disorder, and schizoid personality disorder, but did not have an impairment or combination of impairments listed in, or medically equal to one listed in the regulations (Tr. 13). The ALJ found Plaintiff's subjective complaints of pain were not fully credible (Tr. 16).
The ALJ concluded Plaintiff retained the residual functional capacity (RFC) to perform the physical exertional requirements of medium work, but limited Plaintiff to understanding, remembering, and carrying out simple one and two step instructions, no dealings with the general public (except on rare occasions), only occasionally having contact with co-workers or supervisors, and adapting to only infrequent workplace changes (Tr. 14). Based upon vocational expert testimony, the ALJ found Plaintiff could perform various jobs within the medium level of work activity (Tr. 17, 33). Such jobs include price marker, kitchen helper, and cleaner (Tr. 17, 33). Based on these conclusions, the ALJ found Plaintiff not disabled as defined in the Social Security Act.
Plaintiff alleges disability due to severe anxiety/social phobia, obsessive compulsive disorder, and Asperger's syndrome. The record includes an October 12, 2009 report of a psychological evaluation by Arthur Stair II, M.A. and Charlton Stanley, Ph.D., Supervising Psychologist. Plaintiff was referred for the evaluation by the Disability Determination Section of the State of Tennessee. Plaintiff, age 32, came to the evaluation with his mother on October 8, 2009. Plaintiff reported school was okay but he had special classes. He reported trouble with reading and math but that his moods were okay and he was happy most of the time yet frustrated sometimes when he could not read well. Plaintiff reported he usually only drives short distances.
His mother reported she did not think his emotions and mood were bad but he "had secluded from other people." He stays in his small bedroom most of the time. Plaintiff was not currently taking any medication, had not seen a doctor since he was eleven years of age and had never seen a psychiatrist or psychologist. The evaluator reviewed Plaintiff's personal and family history, academic and vocational history and legal history. His full scale IQ was assessed to be within the mid-borderline intellectual functioning range. His achievement scores ranged from a standard score of 55 to a standard score of 75. Some degree of learning disabilities was apparent. Plaintiff was administered 10 subtests of the WAIS-IV. His general cognitive ability was within the borderline range of intellectual functioning. Verbal reasoning abilities were in the low average range, better than 16% of his peers. His nonverbal reasoning ability was in the low-average range, better than 10% of his peers, his ability to sustain attention, concentrate and exert mental control was in the borderline range, performing better than 3% of his peers.
The Plaintiff's ability to make personal, social, and vocational adjustments were assessed based on the evaluation and testing. Plaintiff appeared capable of understanding simple information or directions with the ability to put it to full use in a vocational setting. His ability to comprehend and implement multistep complex instructions was at least moderately impaired given his borderline intellectual functioning and learning disabilities. Plaintiff's ability to maintain persistence and concentration on tasks for a full workday and workweek was at least moderately impaired based on borderline intellectual functions and learning disabilities. His social relationships were severely impaired as he reported withdrawal from others due to schizoid personality disorder. A GAF of 54 was assessed but Plaintiff was able to manage his own funds. The diagnostic impression was learning disorder NOS, schizoid personality disorder and borderline intellectual functioning (Tr. 217-222).
In March 2010, Dr. Ziegler conducted an in-home assessment of Plaintiff, where he opined that, "This patient's chronic conditions require frequent management and monitoring in order to prevent avoidable decline in condition." Dr. Ziegler also commented that he went to Plaintiff's house for the evaluation because, "in my professional judgment the risks to the patient's health of an office visit outweigh the benefits and the home visit is therefore medically-necessary in lieu of an office visit." Plaintiff "spends [the] majority of time in his room" and was diagnosed with Agoraphobia without panic attacks which is "not adequately controlled." He also reported mixed hyperlipidemia and tobacco use not adequately controlled. In his examination he noted Plaintiff was in no acute distress. He reported his orientation to be alert and oriented to person, place, and time, and further reported as to Mood and Affect that the patient was alert and cooperative. The report begins, "Mr. Crisp is a very pleasant 33 year old male whom I have been following." However, the testimony of Plaintiff indicated Dr. Ziegler was the family physician who was at the home to treat another family member (Tr. 28). There is no other evidence of treatment by this physician. Dr. Zeigler recommended a psychiatric consultation and encouraged Plaintiff to walk at least 3 times a week (Tr. 262-267).
Plaintiff obtained treatment from Dr. Solomon at Behavioral Health Associates in May 2010, where he was diagnosed with Asperger's Disorder, social phobia, attention deficit hyperactivity disorder, and obsessive-compulsive disorder with poor insight. Dr. Solomon's notes indicate that Plaintiff exhibited "a history consistent of a pervasive developmental disorder perhaps Asperger's type" noting inattentiveness and "delusional thoughts about people's intentions both in a work setting and in public in general." Plaintiff's mother reported delayed speech as an infant, hyperactivity as a youth, a brief history in the teenage years of breaking and entering and drug use, ongoing refusal to drink after anyone, and that she had to stop trying to get Plaintiff to work (Tr. 268-281).
Dr. Solomon's notes also indicate numerous jobs of short duration, hours spent playing video games, not liking crowds, periodic visual/olfactory hallucinations, significant obsessive symptoms such as not liking different foods touching each other on a plate, inability to eat in public restaurants, and rarely getting out of the house. Plaintiff would typically "easily quit things . . . often jumps to paranoid conclusions . . . and would likely deteriorate in a work-setting." The residual functional capacity evaluation shows marked limitations in the ability to understand, remember, and carry out detailed instructions (Tr. 252-253).
When Plaintiff was seen for the initial evaluation by Dr. Solomon, he noted Plaintiff to be a 33 year old with long term psychiatric problems, but with no previous psychiatric treatment, who presented to be evaluated in hopes to find out what kind of problems he had, what treatment might be available and wanting to get help getting disability benefits (Tr. 273). The initial evaluation consisted of history intake and interviewing Plaintiff and his mother (Tr. 273-75). Dr. Solomon noted Plaintiff's affect was generally Amatter of fact" and Plaintiff described his mood as Agenerally good" although his mother said he angers quickly when confronted (Tr. 279). Plaintiff denied hallucinations but demonstrated significant obsessive-compulsive symptoms. Dr. Solomon noted Plaintiff does not like to have food touching on his plate, does not like the texture of some foods, only eats with a special fork, does not like to eat in public places, and has to do some checking of doors. Dr. Solomon noted Plaintiff could engage in most activities of daily living, but does not like to leave his house. He reported he only leaves his house 4-5 times a year and prefers to have others deal with the public (Tr. 274). Plaintiff does not have any friends, but is able to function Afairly well" with his family although he gets distracted easily and quits things easily and would likely deteriorate quickly in a work-like setting (Tr. 274-75). Dr. Solomon prescribed a treatment plan including medication, a trial of Zoloft, and a recommendation that Plaintiff and his family visit the AIMS center to Ahelp with socialization and possibly work" (Tr. 281).
Dr. Solomon saw Plaintiff again on July 12, 2010. According to those session notes, Dr. Solomon diagnosed Plaintiff with Asperger's disorder, social phobia, and obsessive-compulsive disorder.
Finally, the record contains two January 14, 2010 Psychiatric Review Technique forms by Horace F. Edwards, Ph.D. In the first assessment which assessed the period from October 1, 1997 to March 4, 1999, Dr. Edwards indicated there was no medical or functional evidence found within the specified time period (Tr. 224-236). In the second assessment, also dated January 14, 2010, he found mild restrictions of daily living, moderate difficulties in maintaining social functioning and moderate difficulties in maintaining concentration, persistence or pace (Tr. 248). In the consultant notes section of his report he refers to the GAF of 54, the learning disability and Schizoid personality. Activities of daily living include driving short distances, interacting with family, interacting on computer, mowing the lawn, removing trash, chores, chats and playing games on line. Dr. Edwards noted no prescription for psychotropic medication. In his functional capacity assessment Dr. Edwards concludes Plaintiff has the ability to understand, remember, and carry out simple one and two step instructions, has the ability to sustain attention and concentration for periods of at least two hours in a typical 8 hour day but cannot deal with the general public. He found Plaintiff has the ability to relate appropriately with peers and supervisors and maintain appropriate social behaviors and can adapt to infrequent workplace changes and can travel to unfamiliar places (Tr. 254).
Plaintiff argues there is no substantial evidence to support the ALJ's decision and the ALJ gave improper weight to non-treating medical sources. On the other hand, the Commissioner argues it is the Plaintiff's burden of proving he is entitled to benefits and that the ALJ properly gave significant weight to the consulting psychologist. For reasons that follow, I conclude the Commissioner's decision is not supported by substantial evidence and remand under sentence four is the appropriate remedy.
When the ALJ's findings are not supported by substantial evidence, or are legally unsound, the reviewing court should reverse and remand the case for further administrative proceedings unless Athe proof of disability is overwhelming or . . . the proof of disability is strong and evidence to the contrary is lacking." Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). I cannot say the evidence of disability is overwhelming and that no evidence exists on the other side, therefore I am recommending remand rather than reversal.
Plaintiff alleges disability due to severe anxiety/social phobia, obsessive compulsive disorder, and Asperger's syndrome. The following medical records were before the ALJ:
(1) an October 8, 2009 consultative examination by state agency psychologist Arthur Stair, M.A.; (2) a January 14, 2010 opinion of a state agency psychologist Horace F. Edwards, Ph. D., who reviewed the record as it then existed; (3) a report of an examination from a doctor's home visit on March 24, 2010 by Donald Ziegler, M.D.; and (4) treatment notes and diagnoses from Allen L. Solomon, M.D. of Behavioral Health Associates from May 10, 2010, June 22, 2010 and July 10, 2010.
The ALJ, in evaluating the intensity, persistence, and limiting effects of Plaintiff's symptoms and in making his findings on the credibility of Plaintiff's statements, relied heavily upon the findings of state agency psychologist Arthur Stair, M.A. (Tr. 15).
Plaintiff was referred for the evaluation by the Disability Determination Section of the State of Tennessee. Plaintiff came to the evaluation with his mother on October 8, 2009. Plaintiff reported school was okay but he had special classes. He reported trouble with reading and math but that his moods were okay and he was happy most of the time yet frustrated sometimes when he could not read well. Plaintiff reported he usually only drives short distances.
His mother reported she did not think his emotions and mood were bad but he "had secluded from other people." He stays in his small bedroom most of the time. Plaintiff was not currently taking any medication, had not seen a doctor since he was eleven years of age and had never seen a psychiatrist or psychologist (Tr,217). Mr. Stair reviewed Plaintiff's personal and family history, academic and vocational history and legal history. His full scale IQ was assessed to be within the mid-borderline intellectual functioning range. His achievement scores ranged from a standard score of 55 to a standard score of 75. Some degree of learning disabilities was apparent. Plaintiff was administered 10 subtests of the WAIS-IV. His general cognitive ability was within the borderline range of intellectual functioning. Verbal reasoning abilities were in the low average range, better than 16% of his peers. His nonverbal reasoning ability was in the low-average range, better than 10% of his peers, his ability to sustain attention, concentrate and exert mental control was in the borderline range, performing better than 3% of his peers (Tr. 218-220).
The Plaintiff's ability to make personal, social, and vocational adjustments were assessed based on the evaluation and testing. Plaintiff appeared capable of understanding simple information or directions with the ability to put it to full use in a vocational setting. His ability to comprehend and implement multistep complex instructions was at least moderately impaired given his borderline intellectual functioning and learning disabilities. Plaintiff's ability to maintain persistence and concentration on tasks for a full workday and workweek was at least moderately impaired based on borderline intellectual functions and learning disabilities. His social relationships were severely impaired as he reported withdrawal from others due to schizoid personality disorder. A GAF of 54 was assessed but Plaintiff was able to manage his own funds. The diagnostic impression was learning disorder NOS, schizoid personality disorder and borderline intellectual functioning (Tr. 221-222).
The ALJ next turned to the January 14, 2010 review of the record by state agency psychologist Horace F. Edwards, Ph. D. In referring to this report the ALJ notes:
The ALJ found this opinion consistent with the record as a whole and granted great weight to the opinion (Tr. 15).
Next, the ALJ pointed to the opinion of Donald Zeigler, M.D. Referring to his examination, the ALJ made the following findings:
(Tr. 15).
Finally the ALJ reviewed the May 5, 2010 intake interview of a treating psychiatrist, Dr. Allen Solomon. First, the ALJ remarks that the quality of the record is poor and the majority of the record illegible. The ALJ was able to make out part of the record because he deals with it in his opinion as follows:
(Tr. 16).
The ALJ finally concludes his residual functional capacity assessment is "supported by the state agency psychologist's opinion, Mr. Stair's consultative evaluation of the claimant and my own thorough review of the record as a whole" (Tr. 16).
A Plaintiff has an expectation that a denial of benefits will be based upon and complete and fair review of the medical record. (See Reed v. Astrue, 2010 WL 386739 (W.D. Ky.) A failure to consider the record as a whole undermines the Secretary's conclusion. (Allen v. Califano, 613 F.2d 139, 145 (6
I concede that the ALJ's review of the entire record may or may not result in a different conclusion. On remand, the ALJ should seek a better copy of the medical record from Dr. Solomon, including any further medical treatment of Plaintiff, and obtain the opinion of a state agency reviewing Psychologist after a review of the entire medical record, including the reports of Dr. Zeigler and Dr. Solomon. There is no way for me to know what weight the ALJ might have given to the report of Dr. Solomon because I do not know what part of the report he was able to read, only that he could not read the majority of it. Further the state agency reviewing Psychologist reviewed neither Dr. Zeigler's nor Dr. Solomon's report, the only treating physicians in the record. Generally, it is the province of the ALJ to weigh conflicting medical evidence and make his decision regarding the credibility of the plaintiff. King v. Heckler, 742 F.2d 968, 974 (6 th Cir. 1984). The weighing of this evidence is the province of the ALJ, not mine.
For the foregoing reasons, I conclude the Commissioner's decision is not supported by substantial evidence. Accordingly, I RECOMMEND
Onset/History of Symptoms:
This 33 yr old white male with long term psychiatric problems but with no previous psychiatric treatment presents to be evaluated. He is hoping to find out what kind of problems may have what treatment may be available and is wanting help with getting a disability through Social Security.
Mother provided early childhood history. She knows that he has been different since birth. Although she states he bonded well as a toddler he would not sit in her lap did not want to be consoled. She describes him as being hyperactive since a toddler on. He had difficulties getting along with other children and tended to want to do parallel play for most of his childhood.
Mother describes that the patient speech was delayed. His first words were at one half to two years old. He did not speak in sentences when he started going to school. He did attend Head Start in the first grade. He as evaluated by TEAM Evaluation. Mother does not know the results and does not have a copy of the report. She describes that the patient attempted resource classes throughout his school year. He did graduate with a special diploma.
In elementary school the patient had problems because he had to ride the "short bus." This was a bus for the "retarded" kids. Despite having this concern he did not get into trouble in elementary school. He did try Ritalin from age 6 to 8. It did help slow him down but made him a "zombie". He would spend long time sitting and staring.
In middle school, parents divorced and he went back and forth between parents. (His parents married for 20 years, divorced for 10 years, remarried for the last nine years). He spent most of his time with father and was poorly supervised. He returned to mother when he was 15 yrs old. The patient started getting into trouble such as running away from home two times and on another occasion breaking into Red Bank High School.
In high school he moved back in with mother. At this point he got into the "wrong crowd." He started smoking and got into drug use. At one point he took the family car and went to Florida. On another occasion he was arrested when he took a friend to the friends uncle's house where they without the patient's knowledge, stole a TV.
The patient continued to do poor in school. He never learned to write cursive. At the end of high school he could not read well. This has improved with the use of a computer.
The patient has a short work history. The first was six months at a convenience store. This was a convenience store with a Taco bell and a TCBY. He feels he (p. 274) learned to do all the work. However everyone else got a raise except him. He believes that they wanted him to quit. All of his other jobs were temporary. He worked through Tennessee Temple. He was not getting many jobs and would not stay on the jobs. His longest job was two weeks. He has not worked since 1997. His last job was at Marshall Mize Ford. He worked as a lot attendant. During his work he hit a car, got nervous and quit. He has worked some with father who is able to put up with his behaviors.
The patient's hyperactivity has resolved. He does tend to walk constantly if he is on the phone.
The patient's average day consists of him getting up in the morning and taking his medication. He then drinks a Coke. He may watch a movie on TV. He then spends time playing on the computer either Ever Quest for Second Life. He will do some weed-eating maybe every other week. He will take out the trash.
Mother states she has stopped trying to get the patient to work. He states that the art(?) he knows the outcome of working. He believes that his job will be given to people who need the job such as a person with a child. He thinks he is a threat to other people when he works. The threat is that he will take the job away from someone else. Mother believes that the patient is unable to work because he is unable to do multi step instructions. For instance if he is given multiple instructions he'll only remember the first one or maybe two instructions.
The patient does not like crowds. He feels everyone is looking at him in a crowded situation.
The patient denies having hallucinations. He will smell cake cooking about once a year. He also sees things out of the corner of his eye about once a year. When he goes out on a sunny day he begins to see a bunch of colors until he is unable to see. This has occurred for the last three years. He denies being overly sensitive to two other sensations.
The patient has significant obsessive symptoms. For instance he does not like food to touch the other on the plate. He is unable to eat in restaurant because he doesn't know what to order and because it's a public place. He has to do some checking of doors. He won't eat many vegetables but will eat meats. He can't stand the textures of certain foods such as beans or mushrooms. He only eats with a special fork.
He won't drink after anyone. If he leaves a drink in a room and then comes back worry that it's been tampered with and can't drink it. He has the same routine everyday.
Mother states that he can get very angry quickly. If he disagrees with family lead to severe anger. He doesn't get violent but does get mad in ____. Note mood swings noted.
Activities of Daily Living: The patient is able to do all of his activities of daily living. However other people have to go and get food since he does not leave the house. He is able to go to Lowes about two or three times a year. He only leaves the house 4 to 5 times a year. Even though he smokes he has to have other people get his cigarettes.
Social Functioning: The patient has no friends in the real world. He's never been involved with sports. He does fairly well with family at these events. He is afraid of having friends in the real world; afraid they will get him into trouble. He does not go to stores alone. If he does go out with other people he lets them deal with the public.
Concentration, Persistence and Pace: Patient gets easily distracted. His is unable to focus on TV if other things are going on in the room.
Deterioration or Decompensation in a Work like Setting: Patient will easily quit things. He often jumps to paranoid conclusion and either quits jobs or avoids the situation. He has had no relationship with girls since high school. He would likely (p. 275) deteriorate quickly and in a work like setting.
p. 279
Comment: This 33 year old white male appears his stated age. He is dressed with a ball cap t-shirt jeans and tennis shoes. He has a beard and mustache. He has a fairly strong southern accent. He's alert and oriented times three. Denies having any hallucinations. His affect was mostly matter of fact. He describes his mood as being generally good. Mother reports he can get angry quickly when confronted. Much of the history did come from mother. The patient to describe having delusional thoughts about people's intention both in a work setting and in public in general.
p. 280
This 33 year old white male presents with a history consistent of a pervasive developmental disorder perhaps Aspergers type. Starting from a young age he was delayed in speech. He also did not bond completely well and was unlike other children. He had difficulties with concentration in the school setting. Since then he has developed a history consistent with an inability to be in public settings. This may partly be due to his paranoia or his inability to cope in social settings. His primary symptoms include his obsessive compulsive disorder problems, social phobia and inattentiveness. He agreed to a trial of Zoloft to see if this could help with some of the obsessiveness and social anxiety. Depending on the results we may consider use of stimulants for focus. There is a strong family history of a mood disorder. The possibility of bipolar disorder needs to be considered. He agreed to the following: (p. 281)
1) Trial of Zoloft 100 mg. Side effects and risk reviewed.
2) Recommended that the family visit the AIMS center to help with socialization and possibly work
3) Recommended that family continue to attempt to get him on Social Security
4) Consider changing his Tagamet to Pepcid to decrease drug drug interactions
