Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Henry v. Colvin

United States District Court, Sixth Circuit

September 23, 2013

JAMES B. HENRY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OF OPINION

NANCY A. VECCHIARELLI, Magistrate Judge.

This case is before the magistrate judge by consent. Plaintiff, James B. Henry ("Plaintiff"), challenges the final decision of the Commissioner of Social Security ("Commissioner") denying Henry's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 423, 1381(a). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.

I. Procedural History

On August 10, 2009, Plaintiff filed an application for SSI. (Tr. 17.) His application was denied initially and upon reconsideration. ( Id. ) Plaintiff timely requested an administrative hearing, and, on June 28, 2011, an administrative law judge ("ALJ"), conducted an administrative hearing. ( Id. ) Plaintiff was represented by counsel and testified on his own behalf at the hearing. ( Id. ) A vocational expert ("VE") also testified. ( Id. ) On July 20, 2011, the ALJ issued a decision in which she determined that Plaintiff is not disabled. (Tr. 17-38.) Plaintiff requested a review of the ALJ's decision by the Appeals Council, and when the Appeals Council declined further review on July 25, 2012, the ALJ's decision became the final decision of the Commissioner. (Tr. 1.)

On September 21, 2012, Plaintiff filed a complaint challenging the Commissioner's final decision. (Doc. No. 1) The parties have completed briefing in this case. (Doc. Nos. 19, 23, 24.) Plaintiff alleges that, for various reasons, substantial evidence does not support the ALJ's decision in this case.

II. Evidence

A. Personal and Vocational Evidence

Plaintiff was born on November 20, 1987 and was 21 years old at the time of his application. (Tr. 37.) He completed high school, and had past relevant work as a stock clerk. ( Id. )

B. Medical Evidence

1. Plaintiff's Reports to the Agency

In a September 15, 2009 Adult Disability Report, Plaintiff reported that he "severe depression, " and "trouble getting along with other people." (Tr. 200.) He complained of difficulty concentrating and following directions, as well as "poor reading and writing skills." ( Id. )

In a September 21, 2009 Adult Function Report, Plaintiff stated that he lived in an apartment with his girlfriend. (Tr. 209.) He indicated that, during the day, he watched television, played with his dog, ran errands, relaxed and bathed. (Tr. 210.) With the assistance of his girlfriend, he fed and watered his pets, which included a lizard, a turtle, a dog and an unspecified number of cats. ( Id. ) Plaintiff reported that he could attend to his personal needs without difficulty. (Tr. 211.) Plaintiff reported that he required reminders to brush his teeth and take his medication, and that his girlfriend helped him prepare meals. (Tr. 211) He mowed the lawn and cleaned, but indicated that, "I get down [and] don't wanna do it so people have to help me do it." (Tr. 212.) Plaintiff stated that he drove a car and grocery shopped, and was able to go out alone. ( Id. ) He was able to count change, but could not pay bills, handle a savings account or use a checkbook or money orders. (Tr. 213.) He regularly watched television with his family. ( Id. ) According to Plaintiff, he could pay attention for five minutes "or more, " did not finish what he started, had problems following written instructions because he had "trouble remembering" and could not follow spoken instructions because he had "problem[s] remembering and paying a[ttention]." (Tr. 214.)

2. Plaintiff's Education Records

Plaintiff's school records reflect that, in April 2002, a Weschler Intelligence Scale for Children, Third Edition ("WISC-III"), revealed that Plaintiff had a verbal IQ of 80, a performance IQ of 102 and a full-scale IQ of 89. (Tr. 225.) Plaintiff was the subject of an individualized education plan ("IEP") and, in May 2005, a school psychologist opined that Plaintiff's "behavior significantly hinders his academic functioning, " but observed that Plaintiff "appears to continue to show general intelligence within the average range." (Tr. 225, 226.) A May 2005 IEP re-evaluation report indicated that Plaintiff "needs to develop social skills to interact appropriately with peers and adults." (Tr. 218.) The school psychologist noted that Plaintiff had been diagnosed with attention deficit hyperactivity disorder ("ADHD") and depression, for which he was taking medication. (Tr. 230.) The psychologist noted that Plaintiff "often responds negatively when asked to do his work. He can get very angry and will not cooperate with reasonable teacher/staff requests." ( Id. ) The re-evaluation team determined that Plaintiff had "significant emotional/behavioral problems which makes [ sic ] him unable to participate in regular classes and in the general curriculum. He continues to be a youth with a disability." (Tr. 232.)

During his twelfth grade year, Plaintiff was home-schooled and received C's in all subjects except Art, in which he received an A. (Tr. 217, 233.) In prior years of high school, he had received varied marks, ranging from C's and D's in math and English to B's in science and social studies, and A's in physical education. (Tr. 233.)

3. Treatments and Examinations

On December 3, 2008, Plaintiff sought assistance at the Center for Individual and Family Services ("CIFS") in Mansfield, Ohio, where he was examined by a social worker. (Tr. 358.) He reported feeling chronically depressed and angry, with angry outbursts. (Tr. 358.) Plaintiff indicated that he used marijuana - as recently as the day before - and that he drank alcohol. (Tr. 362.) Plaintiff grew agitated during the examination because he was "bored." (Tr. 363.) The social worker noted that Plaintiff was unable to sit still during the examination. (Tr. 364.) The social worker diagnosed Plaintiff with mood disorder, ADHD, cannabis abuse and personality disorder. (Tr. 367.) The social worker recommended counseling. (Tr. 368.) With respect to Plaintiff's mental status, the social worker noted that his thought processes were logical, his mood was angry and his affect was inappropriate. (Tr. 370.)

On June 22, 2009, psychiatrist Rashad Pervez, M.D., examined Plaintiff. (Tr. 356-57.) Dr. Pervez noted that Plaintiff had a history of bipolar disorder and ADHD. (Tr. 356.) Plaintiff reported feeling depressed, lack of motivation and appetite, and difficulty sleeping. ( Id. ) Plaintiff reported working and having a girlfriend for the prior nine months. ( Id. ) Dr. Pervez described Plaintiff as cooperative with decreased psychomotor activity, and characterized his responses to questions as "slow and low in volume" and "coming with pauses." (Tr. 357.) Dr. Pervez opined that Plaintiff had fair concentration, memory, insight and judgment. ( Id. ) He diagnosed Plaintiff with bipolar disorder and ADHD, and prescribed Depakote, Remeron and Concerta. ( Id. )

On October 7, 2009, Dr. Pervez completed a mental functional capacity assessment for the Richland County Department of Jobs and Family Services. (Tr. 424-25.) He assigned Plaintiff moderate limitations in the ability to: understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being distracted by them; make simple, work-related decisions; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; respond appropriately to changes in the work setting; and be aware of normal hazards and take appropriate precautions. (Tr. 424.) He concluded that Plaintiff was "not significantly limited" in his ability to: remember locations and work-like procedures; understand and remember very short and simple instructions; carry out very short and simple instructions; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; and 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. ( Id. )

During a November 10, 2009 meeting with the Richland County Bureau of Vocational Rehabilitation ("BVR"), Plaintiff reported that he had gotten along well with his coworkers at his previous job operating a forklift at School Specialty. (Tr. 539.) During the meeting, Plaintiff "became angry with the [vocational counselor] and mumbled some inappropriate comments including some profane language, " and "became agitated, though he kept his actions under control." (Tr. 540.)

On November 20, 2009, Richard Litwin, Ph.D., examined Plaintiff at the request of the BVR. (Tr. 444-49.) He noted that Plaintiff was living with his girlfriend "of the past year." (Tr. 444.) The Weschler Adult Intelligence Scale, Third Edition, ("WAISC-III") revealed a verbal IQ of 63, a performance IQ of 68 and a full-scale IQ of 62, which Dr. Litwin characterized as being in the mild mental retardation range. (Tr. 445.) Dr. Litwin noted that it was "unclear" why there was such a disparity between those scores and Plaintiff's prior IQ test scores. ( Id. ) The Woodcock Johnson Tests of Achievement, Third Edition, ("Woodcock Johnson") revealed that Plaintiff achieved scores placing him at a second-grade level in spelling, word recognition, math, and reading comprehension; a first-grade level in oral comprehension; and below a first-grade level in picture vocabulary, reading rate, reading accuracy and comprehension. ( Id. ) Plaintiff demonstrated a severe impairment in the controlled oral word fluency test. ( Id. ) Dr. Litwin described Plaintiff as "essentially a non-reader with profound phonological dyslexia, " who was able to read or spell only common two or three syllable words. ( Id. )

Dr. Litwin noted Plaintiff's complaints of depression, auditory hallucinations and concern that "there is something wrong with his mind." (Tr. 446-47.) Plaintiff reported being self-conscious, mistrustful of others and uneasy in crowds. (Tr. 447.) Dr. Litwin diagnosed Plaintiff with bipolar disorder, mixed, severe with psychotic features; reading disorder; mathematics disorder; expressive language disorder; and ADHD-combined type, as well as mild mental retardation with depressive personality traits. ( Id. )

Dr. Litwin opined that Plaintiff would be unable to make change or work with money in the workplace. ( Id. ) He noted that Plaintiff had trouble sustaining attention and retaining information in the future, and would likely demonstrate rapid forgetting and very poor organizational skills. (Tr. 447-48.) According to Dr. Litwin, if Plaintiff made "good progress, " he would be best suited for "working outdoors or doing very simple, entry-level manual work. [Plaintiff] appears best suited for short term training with extensive job coaching and mentoring. He will need a rigid daily routine and strong use of organizational strategies to overcome deficits due to ADHA and weakness in memory." (Tr. 449.)

In April 2010, staff at the Ohio Department of Mental Retardation and Developmental Disabilities ("MRDD") assessed whether Plaintiff was eligible to receive services from that agency. (Tr. 492-512.) The evaluator, Angie Mollette, whose credentials are not included in the record, determined that Plaintiff had significant functional limitations in receptive and expressive language, self care, self direction, capacity for independent living, learning and economic self-sufficiency, and, thus was eligible for services through the MRDD. (Tr. 493.) Ms. Mollette noted that Plaintiff did not talk to strangers or initiate conversations, and required reminders to brush his teeth, shave and take his medication. (Tr. 499-502.) She noted that Plaintiff initiated activities, such as fishing, with his brother and girlfriend, and was able to maintain meaningful relationships. (Tr. 502.) Ms. Mollette indicated that Plaintiff "can independently make decisions, " but does not "follow through w[ith] decisions. He has a short attention span [and] can be easily inpatient [ sic ] or easily distracted." (Tr. 503.) She noted that Plaintiff took longer than two minutes to read a 103-word passage, opining that he read at "around a first grade level." (Tr. 508.) Plaintiff answered all of the questions about the contents of the document incorrectly. ( Id. )

On May 5, 2010, Dr. Pervez examined Plaintiff, noting Plaintiff's report that he was living with a girlfriend despite having ended the relationship some weeks prior. (Tr. 475.) Plaintiff was lethargic and complained of difficulty sleeping. ( Id. ) Plaintiff stated that he went out with his siblings and other people. ( Id. ) Dr. Pervez noted that Plaintiff was irritable and arguing with his mother, who attended the examination with Plaintiff. ( Id. )

On January 14, 2011, Plaintiff a counselor at CIFS noted Plaintiff's report that he had recently left a job interview because he felt anxious. (Tr. 483.) On April 21, 2011, Plaintiff reported to a counselor that he was living with his girlfriend, who had children, and that he enjoyed being around her children. (Tr. 482.)

4. Agency Reports

on October 1, 2009, agency consulting psychologist Paul Tangeman, Ph.D., completed a mental residual functional capacity ("RFC") assessment and a psychiatric review technique. (Tr. 405-08, 409-22.) Dr. Tangeman opined that Plaintiff was moderately limited in his ability to: understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; work in coordination with others without being distracted by them; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and respond appropriately to changes in the work setting. (Tr. 405-06.) Dr. Tangeman opined that Plaintiff's allegations were "partially credible, " noting that, although Plaintiff reported problems with concentration and attention, he was "completing tasks which require[d]... attention span [of] 1-2 hours" and that another psychiatrist had reported that Plaintiff had fair concentration. (Tr. 408.) Dr. Tangeman opined that Plaintiff was "capable of simple, repetitive tasks which do not require him to have more than occasional contact with public or to meet strict production quota." ( Id. ) In the psychiatric review technique, Dr. Tangeman assigned Plaintiff mild limitations in activities of daily living and maintaining social functioning; and moderate limitations in maintaining concentration, persistence and pace. (Tr. 419.)

On February 24, 2010, agency consulting psychiatrist David Demuth, M.D., performed a mental RFC assessment and psychiatric review technique. (Tr. 450-63, 464-67.) Dr. Demuth assigned Plaintiff moderate limitations in activities of daily living; maintaining social functioning; and maintaining concentration, persistence and pace. (Tr. 460.) He opined that Plaintiff was moderately limited in his ability to understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being distracted by them; 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; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; respond appropriately to changes in the work setting; and set realistic goals or make plans independently of others. (Tr..464-65.)

Dr. Demuth opined that, with respect to understanding and memory, Plaintiff could "do moderately detailed tasks only." (Tr. 467.) With respect to sustained concentration and persistence, he concluded that Plaintiff's concentration was "moderately reduced for concentration, " that Plaintiff required reduced stress and could "carry out tasks in situations where duties are relatively static and changes can be explained." ( Id., ) According to Dr. Demuth, Plaintiff was capable of "tasks that do not require independent prioritization or more th[a]n daily planning." ( Id. ) With respect to social interaction, Dr. Demuth opined that Plaintiff "works best in small groups or alone" and could "sustain tasks as long as these involve only occasional and superficial interaction with others. He cannot work in situations where he needs to resolve conflicts or maintain a friendly and persuasive demeanor." ( Id. ) Finally, Dr. Demuth opined that Plaintiff was "dependent and needs structure." ( Id. )

C. Hearing Testimony

1. Plaintiff's Testimony

At his June 28, 2011 administrative hearing, Plaintiff testified as follows:

He generally lived with his mother and stepfather, although he had lived with two different girlfriends for a few months at a time. (Tr. 47.) He had attended special education classes since first grade. (Tr. 48-49.) Plaintiff was exempted from taking the proficiency tests required to graduate from high school. (Tr. 49.) He had received oneon-one tutoring while in school. ( Id. ) Plaintiff did not get along well with other students because he became "agitated very easy" and would "say things I shouldn't say." (Tr. 50.)

Plaintiff had worked at School Specialties, stocking school products, for two months. (Tr. 51.) His older brother, who worked there when he was home from college, helped Plaintiff get a job there. ( Id. ) Plaintiff had problems following directions, staying on task and arriving to work on time. (Tr. 51-52.) Plaintiff quit his job at School Specialties because he had only one point left in its progressive disciplinary system before he would be fired. (Tr. 52.) Thereafter, he drove a service truck for a towing company. (Tr. 53.) He worked at that job for two weeks, but was fired for making too many mistakes. (Tr. 54.)

Plaintiff had problems following directions because he tended to forget what he was supposed to do. (Tr. 55.) He had to be reminded to complete tasks like washing the dishes, brushing his teeth or taking out the garbage. ( Id. ) Plaintiff had to be reminded to take his medication. (Tr. 68.) His mother, stepfather and girlfriend reminded him to do things. (Tr. 55.) Plaintiff was easily distracted from tasks by noises or other people. ( Id. ) Plaintiff generally got along well with his family, but did not get along with people he did not know. (Tr. 56.) He saw his girlfriend a few times each week. ( Id. )

Plaintiff watched action movies on television, but generally had problems following the story line. (Tr. 56.) He had difficulty staying asleep at night. (Tr. 56-57.) Plaintiff did not read for enjoyment. (Tr. 57.) He felt that he read at about a fourth or fifth grade level, and could only read small words. ( Id. ) He did not read documents sent to him regarding his benefits applications, and "probably wouldn't understand it if I could read it." ( Id. ) In response to the ALJ's questions regarding how Plaintiff was able to obtain a driver's license, Plaintiff explained that he took the test on the computer, and read some of the questions with assistance from the staff at the testing location. (Tr. 57-58.) The others, he read himself. (Tr. 58.)

Plaintiff cooked food in the microwave, but burned food when he tried cooking on the stove. (Tr. 59.) He needed assistance doing laundry because he could not remember how to operate the machine. ( Id., ) He seldom washed dishes because he "didn't get them very clean." ( Id. ) He required assistance with grocery shopping, or else he would only buy junk food. (Tr. 59-60.)

Plaintiff had lived with a previous girlfriend, but they broke up because they argued about "simple stuff" and "just didn't really click." (Tr. 64-65.) He dated her for about six to eight months. (Tr. 66.) At the time of the hearing, he had been dating his then-current girlfriend for nine months. ( Id. ) She had two children; one was seven and the other was four. ( Id. ) Plaintiff got along well with them. ( Id. )

Plaintiff played video games on his game console for an hour or two each day. (Tr. 72-73.) He could complete the easier levels of the games, but "a lot of times [he] got frustrated and just quit." (Tr. 72.)

2. Vocational Expert's Testimony

The ALJ described the following hypothetical ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.