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Harley Lovejoy v. Commissioner of Social Security

November 8, 2011


The opinion of the court was delivered by: Magistrate Judge McHARGH


This case is before the undersigned pursuant to the consent of the parties. (Doc. 18). The issue before the Magistrate Judge is whether the final decision of the Commissioner of Social Security (the "Commissioner") denying Plaintiff Harley Lovejoy's application for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., is supported by substantial evidence, and therefore, conclusive.

For the reasons set forth below, the Court AFFIRMS the decision of the Commissioner.


On December 14, 2005, Harley Lovejoy ("Plaintiff" or "Lovejoy") filed an application for Supplemental Security Income benefits alleging that he became disabled on December 1, 2005.*fn1 (Tr. 182-84). Lovejoy's application was denied initially and upon reconsideration. (Tr. 121-26). He timely requested and was granted an administrative hearing before Administrative Law Judge Dennis R. Greene (the "ALJ" or "ALJ Greene"). (Tr. 129, 31-40).

On September 15, 2008, ALJ Greene conducted a hearing via video conference. (See Tr. 413-45). ALJ Greene presided over the hearing from Oak Brook, Illinois, whereas Plaintiff and his counsel appeared in Cleveland, Ohio. (Tr. 14). Vocational expert, Mr. James Breen, and Medical experts, Drs. James McKenna ("ME McKenna") and Kathleen O'Brien ("ME O'Brien"), also appeared at the hearing and offered testimony. (Tr. 413-45). On November 6, 2008, ALJ Greene issued an unfavorable decision denying Plaintiff's application for benefits. (Tr. 14-23). In his review of Plaintiff's application, the ALJ applied the five-step sequential evaluation analysis,*fn2 and concluded that Plaintiff was not disabled. Id. Subsequently, Lovejoy requested review of the ALJ's decision from the Appeals Council. (Tr. 9). However, on April 27, 2010, the council denied Lovejoy's request, thereby making ALJ Greene's decision the final decision of the Commissioner. (Tr. 4-6). Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

Plaintiff, born on August 28, 1979, was twenty-six years old on the date his application was filed, and deemed a "younger person" for Social Security purposes. (Tr. 152, 21); 20 C.F.R. § 416.963(c). Lovejoy attended school through the tenth grade and was enrolled in special education classes. (Tr. 420-21). Although he has maintained brief employment with various employers, none of these jobs qualified as past relevant work pursuant to 20 C.F.R. § 416.965. (See Tr. 440).


On February 13, 2006, Lovejoy presented to Dr. Mitchell Wax, a psychologist, for a consultative examination. (Tr. 361-67). Dr. Wax's evaluation report summarizing his observations of Plaintiff consistently noted that Plaintiff was malingering throughout the examination, causing Dr. Wax to diagnose Lovejoy with malingering. Id. For example, during Dr. Wax's examination of Plaintiff's sensorium and cognitive functioning, he remarked that it appeared as if Plaintiff was intentionally answering questions incorrectly. (Tr. 364). Notably, the doctor commented that Plaintiff "presented with no clear symptoms that were diagnosable" and that "[n]o assessment of his [global assessment of] functioning could be made due to malingering." However, he estimated that Plaintiff's IQ fell within the borderline to low average range. (Tr. 365-67).

On March 2, 2006, state agency consultative examiner, Dr. Allan Berger, conducted a review of Plaintiff's medical file to assess Plaintiff's physical residual functional capacity ("RFC"). (Tr. 368-75). Other than finding that Lovejoy had limited vision and should avoid all exposure to hazards such as machinery and heights, Dr. Berger opined that Plaintiff had no other restrictions on his physical ability to work. Id.

Next, on April 3, 2006, Dr. Alice Chambly, a state agency consultant, examined Plaintiff's medical record to assess his mental RFC. (Tr. 376-93). She opined that Lovejoy was moderately limited in the following areas of mental functioning: 1) understanding and remembering detailed instructions; 2) carrying out detailed instructions; 3) maintaining attention and concentration for extended periods; 4) completing a normal workday and workweek without interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods; 5) accepting instructions and responding appropriately to criticism from supervisors; and 6) responding appropriately to changes in the work setting. (Tr. 376-77). However, she found that he was "not significantly limited" in the remaining 14 areas of mental functioning examined. Id. After acknowledging Dr. Wax's diagnosis of malingering, Dr. Chambly concluded that there was not sufficient evidence in Lovejoy's file to refute the prior ALJ's determination that Lovejoy was capable of performing simple, routine tasks. (Tr. 378). Therefore, she adopted the prior ALJ's mental RFC dated April 29, 1999, pursuant to Acquiescence Ruling 98-4. Id.


ALJ Greene sought two medical experts to testify during Plaintiff's hearing, Drs. James McKenna and Kathleen O'Brien. First, Dr. James McKenna testified as to Lovejoy's physical impairments. ME McKenna is board certified in internal medicine and pulmonary disease. (Tr. 429). He testified that Lovejoy had monocular vision because he was effectively blind in his right eye, and that he would be vulnerable to hazards coming from his right side (Tr. 431-32).

Second, Dr. Kathleen O'Brien testified as to Plaintiff's mental impairments. Dr. O'Brien is a licensed clinical psychologist. (Tr. 433). She testified that it was impossible for her to determine Lovejoy's level of mental functionality because the consultative examinations in the file, which were performed four years apart, both diagnosed Plaintiff with malingering.*fn4 (Tr. 434). Additionally, ME O'Brien observed that Dr. Wax noted several instances during the evaluation when Lovejoy "began to apparently address questions with some honesty, and then caught himself and changed his answers." Id. Nevertheless, ME O'Brien remarked that Plaintiff's IQ score in the file, assessed when Plaintiff was 18 years old, would fall within the borderline intellectual range, and ...

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