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Ball v. Commissioner of Social Security

United States District Court, Sixth Circuit

May 17, 2013

Candy M. Ball, Plaintiff,
v.
Commissioner of Social Security, Defendant,

REPORT AND RECOMMENDATION

VERNELIS K. ARMSTRONG, Magistrate Judge.

I. INTRODUCTION

Plaintiff Candy M. Ball ("Plaintiff") seeks judicial review pursuant to 42 U.S.C. § 405(g) of Defendant Commissioner's ("Defendant" or "Commissioner") final determination denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act, 42 U.S.C. §§§ 416(i), 423, and 1381 (Docket No. 1). Pending are the parties' Briefs on the Merits (Docket Nos. 12 and 13) and Plaintiff's Response (Docket No. 14). For the reasons that follow, the Magistrate recommends that the decision of the Commissioner be affirmed in part and reversed and remanded in part.

II. PROCEDURAL BACKGROUND

On October 6, 2008, Plaintiff filed an application for a period of DIB under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423 (Docket No. 10, p. 127 of 433). On that same day, Plaintiff filed an application for SSI under Title XVI of the Social Security Act, 42 U.S.C. § 1381 (Docket No. 10, p. 121 of 433). In both applications, Plaintiff alleged a period of disability beginning March 5, 2008 (Docket No. 10, pp. 121, 127 of 433). Plaintiff's claims were denied initially on March 3, 2009 (Docket No. 10, pp. 75, 79 of 433), and upon reconsideration on May 27, 2009 (Docket No. 10, pp. 85, 87 of 433). Plaintiff thereafter filed a timely written request for a hearing on July 7, 2009 (Docket No. 10, p. 92 of 433).

On November 29, 2010, Plaintiff appeared, pro se, for a hearing before Administrative Law Judge Michael Breton ("ALJ Breton") (Docket No. 10, pp. 51-66 of 433). Also appearing at the hearing was an impartial Vocational Expert ("VE") (Docket No. 10, pp. 64-66 of 433), and Plaintiff's grandfather, Clifton Young ("Mr. Young") (Docket No. 10, pp. 61-64 of 433). ALJ Breton found Plaintiff to have a severe combination of obesity and depression with an onset date of March 5, 2008 (Docket No. 10, p. 42 of 433).

Despite these limitations, ALJ Breton determined that, based on all the evidence presented, Plaintiff had not been disabled within the meaning of the Social Security Act at any time from the alleged onset date through the date of his decision (Docket No. 10, p. 46 of 433). ALJ Breton found Plaintiff had the residual functional capacity to perform a full range of work at all exertional levels with the following limitations: (1) no more than occasional climbing; (2) avoid exposure to ladders and hazards, including dangerous machinery; and (3) only engage in simple, routine, and unskilled tasks (Docket No. 10, pp. 43-44 of 433). ALJ Breton found Plaintiff capable of performing her past relevant work as a general laborer (Docket No. 10, p. 46 of 433). Plaintiff's request for benefits was therefore denied (Docket No. 10, p. 46 of 433).

On October 4, 2012, Plaintiff filed a Complaint in the Northern District of Ohio, Eastern Division, seeking judicial review of her denial of DIB and SSI (Docket No. 1). In her pleading, Plaintiff alleged that the ALJ failed to: (1) find Plaintiff's Attention Deficit Hyperactivity Disorder ("ADHD") to be a severe impairment; and (2) properly assess Plaintiff's mental residual functional capacity (Docket No. 12). Defendant filed its Answer on December 20, 2012 (Docket No. 9).

III. FACTUAL BACKGROUND

A. THE ADMINISTRATIVE HEARING

An administrative hearing convened on November 29, 2012, in Springfield, Massachusetts (Docket No. 10, p. 40 of 433). Plaintiff, pro se, appeared and testified via video from Mansfield, Ohio (Docket No. 10, pp. 56-61 of 433). Also present and testifying was Plaintiff's grandfather, Mr. Young (Docket No. 10, pp. 61-64) and VE Michael Dorvell ("VE Dorvell") (Docket No. 10, pp. 64-66 of 433).

1. PLAINTIFF'S TESTIMONY

At the time of the hearing, Plaintiff was a thirty-year-old female with one two-year-old son (Docket No. 10, p. 56 of 433). Plaintiff testified that she graduated from high school (Docket No. 10, p. 56 of 433). Plaintiff indicated that she had a minor criminal history which included two misdemeanors, one for possession of marijuana, and another for fighting with her roommate's son (Docket No. 10, pp. 58-59 of 433).

Plaintiff stated that she last worked at a clothing thrift store as a general laborer inspecting clothes (Docket No. 10, p. 57 of 433). Plaintiff was placed in this job by the Ohio Department of Job and Family Services ("ODJFS") and worked thirty hours per week (Docket No. 10, pp. 56-57 of 433).

Plaintiff was terminated in September 2010, and testified that she would have otherwise continued working in the store (Docket No. 10, pp. 57-58, 61 of 433). When asked, Plaintiff stated that her biggest obstacle to returning to working was her tendency to get easily distracted and her need to constantly be moving around (Docket No. 10, p. 58 of 433).

Plaintiff testified briefly about her depression (Docket No. 10, p. 60 of 433). Plaintiff stated that she had been diagnosed with depression and had been going to counseling for over a year (Docket No. 10, p. 60 of 433). She also indicated that she takes Trazodone to help her sleep and Zoloft to help with her depression (Docket No. 10, p. 60 of 433). According to Plaintiff, these medications do not work (Docket No. 10, p. 60 of 433).

With regard to her residual functional capacity, Plaintiff indicated that she can drive, cook, clean, and do the laundry for herself and her son (Docket No. 10, p. 59 of 433). Plaintiff also testified that she can go grocery shopping alone, but prefers to go with her grandmother (Docket No. 10, p. 59 of 433). Plaintiff takes care of her son and can change and bathe him on her own (Docket No. 10, p. 59 of 433).

2. MR. YOUNG'S TESTIMONY

Plaintiff's grandfather, Mr. Young, testified that Plaintiff lived with him and his wife until three years prior to the hearing (Docket No. 10, p. 62 of 433). He stated that Plaintiff had been diagnosed with ADHD and alleged that Plaintiff had anger management problems (Docket No. 10, p. 62 of 433). When asked to explain these anger management issues, Mr. Young stated "I know if you go in the grocery store with her, she's going to get into [an] argument with somebody in there, standing someplace where she don't think they should be" (Docket No. 10, p. 62 of 433). Mr. Young also claimed that Plaintiff suffered from a sleep disorder and alleged that Plaintiff does not handle money well (Docket No. 10, p. 63 of 433). Mr. Young testified that Plaintiff spends money on a whim and has her grandparents manage her welfare checks (Docket No. 10, pp. 63-64 of 433).

3. VOCATIONAL EXPERT TESTIMONY

Having familiarized himself with Plaintiff's file and vocational background prior to the hearing, the VE described Plaintiff's past work as a clothing sorter in a non-profit organization as light and unskilled, and as a general laborer as medium and unskilled (Docket No. 10, p. 65 of 433). The ALJ then posed his first hypothetical question:

Assume we have an individual with the same age, educational background and past work experience as the claimant. Further assume the individual retains a residual functional capacity for work with the following additional limitations: there would be no exertional limitations; there would be no more than occasional climbing; no ladders; no hazards or dangerous machinery; the individual would be limited to simple, routine, unskilled tasks. Given those limitations, could such an individual perform the claimant's past relevant work?

(Docket No. 10, p. 65 of 433). Taking into account these limitations, the VE testified that such an individual would be able to perform all of Plaintiff's past relevant work (Docket No. 10, p. 65 of 433).

ALJ Breton then posed his second hypothetical question, stating "[f]urther assume that the individual would have marked limitations in the abilities to maintain persistence and pace, given those limitations, could such an individual perform the claimant's past work or any other work?" (Docket No. 10, p. 65 of 433). The VE testified that, with these additional limitations, such an individual would be incapable of performing both Plaintiff's past relevant work as well as any other work in the national economy on a regular, sustained, full-time basis (Docket No. 10, p. 66 of 433).

B. MEDICAL RECORDS

1. CHILDHOOD MEDICAL AND EDUCATIONAL RECORD

Plaintiff's childhood medical record dates back to May 23, 1986, when Plaintiff was seen at the Chapman Clinic in Fort Worth, Texas, by what appears to be a general practice family physician (Docket No. 10, p. 290 of 433). On June 26, 1991, at the age of ten, Plaintiff underwent a Gordon Diagnostic System test to assess her delay, vigilance, and distractibility tasks (Docket No. 10, p. 189 of 433). With regard to delay tasks, Plaintiff's results showed a mixture of scores ranging from normal to abnormal (Docket No. 10, p. 189 of 433). Plaintiff had a significant tendency toward being impulsive and her response to situations was unpredictable (Docket No. 10, p. 189 of 433). Plaintiff's vigilance tasks showed that Plaintiff had a significant deficit in her ability to sustain attention, consistent with ADHD (Docket No. 10, p. 189 of 433). Results from the distractibility tasks confirmed these assessments (Docket No. 10, p. 189 of 433). A summary of Plaintiff's test results indicate that Plaintiff had problems with depression and anxiety that were prominent with ADHD (Docket No. 10, p. 189 of 433). Plaintiff also possessed a number of traits that were consistent with an ADHD diagnosis, including being: argumentative, confused and crying, cruel to animals and playmates, disobedient, and easily frustrated (Docket No. 10, p. 190 of 433). Test results also showed that Plaintiff possessed very strong feelings of inferiority, would act immaturely and lie, and would engage in temper tantrums and loud play (Docket No. 10, p. 190 of 433). It was recommended that Plaintiff undergo complete psychological, learning disability, and IQ testing, as well as a pharmacotherapy assessment (Docket No. 10, p. 190 of 433).

Plaintiff was prescribed Ritalin on September 7, 1991 (Docket No. 10, p. 291 of 433). Her dosage gradually increased from five milligrams per day to twenty milligrams per day (Docket No. 10, p. 291 of 433). Plaintiff remained on the twenty-milligram dosage from October 29, 1991, through May 20, 1994 (Docket No. 10, pp. 291-93 of 433).

Plaintiff's grades were a mixture of average and below average (Docket No. 10, pp. 158, 161, 178, 183 of 433). Standardized testing indicated that Plaintiff's intellectual ability was above the mentally retarded range (Docket No. 10, p. 176 of 433). A Comprehensive Individual Assessment found Plaintiff demonstrated significant academic or developmental deficits in the areas of math, written language, reading, and spelling (Docket No. 10, p. 175 of 433). Plaintiff began special education classes in the fourth grade (Docket No. 10, p. 171 of 433). She continued to receive such services through high school (Docket No. 10, p. 170 of 433). By tenth grade, there was concern that Plaintiff's high school graduation was in jeopardy (Docket No. 10, p. 178 of 433). Plaintiff's Individualized Education Program ("IEP") indicated that Plaintiff was exempt from some proficiency tests, but was required to take a ninth grade proficiency exam in both reading and math in order to graduate (Docket No. 10, p. 150 of 433).

2. CURRENT MENTAL HEALTH MEDICAL RECORD[1]

Plaintiff's current medical record dates back to June 2008 when Plaintiff reported for Alcohol and Drug Usage Screenings on June 13, 2008, at New Beginnings Recovery Services ("New Beginnings") (Docket No. 10, p. 433 of 433). Plaintiff was referred to New Beginnings' weekly Women's Group Counseling for a period of eight weeks (Docket No. 10, p. 344 of 433). Plaintiff was discharged from New Beginnings on September 10, 2008 (Docket No. 10, p. 344 of 433).

Plaintiff's mental health treatment records then jump to March 31, 2009, when Plaintiff first sought treatment at the Marion Area Counseling Center ("MACC") (Docket No. 10, p. 372 of 433). Plaintiff admitted to being depressed and having a poor attitude (Docket No. 10, pp. 372-73 of 433). Plaintiff described herself as being "very impulsive" and indicated that she had worked eight jobs in the past five years (Docket No. 10, pp. 374, 378 of 433). Plaintiff was diagnosed with ADHD, depressive disorder, and cannabis dependence (episodic) (Docket No. 10, p. 381 of 433). She was also assigned a Global Assessment of Functioning ...


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