United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION & ORDER
Kathleen B. Burke United States Magistrate Judge
Tyler Douglas Hinds (“Plaintiff” or
“Hinds”) seeks judicial review of the final
decision of Defendant Commissioner of Social Security
(“Defendant” or “Commissioner”)
denying his application for social security disability
benefits. Doc. 1. This Court has jurisdiction pursuant to 42
U.S.C. § 405(g). This case is before the undersigned
Magistrate Judge pursuant to the consent of the parties. Doc.
14. For the reasons explained herein, the Court
AFFIRMS the Commissioner's decision.
November 13, 2014, Hinds protectively filed an application
for supplemental security income (“SSI”). Tr. 17,
118, 201-206. Hinds alleged disability beginning on August 8,
2014. Tr. 17, 101, 253. He alleged disability due to
depression, myotopic dystrophy, ADD, bipolar disorder,
learning disorder, and low IQ. Tr. 101-102, 142, 152, 258.
After initial denial by the state agency (Tr. 142-148) and
denial upon reconsideration (Tr. 152-156), Hinds requested a
hearing (Tr. 159-161). On May 23, 2017, a hearing was held
before an Administrative Law Judge (“ALJ”). Tr.
35-74. On October 17, 2017, the ALJ issued an unfavorable
decision, (Tr. 14-34), finding that Hinds had not been under
a disability, as defined in the Social Security Act, since
November 13, 2014, the date the application was filed (Tr.
18, 28). Hinds requested review of the ALJ's
decision by the Appeals Council. Tr. 196-198. On April 27,
2018, the Appeals Council denied Hinds' request for
review, making the ALJ's October 17, 2017, decision the
final decision of the Commissioner. Tr. 1-6.
Evidence A. Personal, vocational and educational
was born in 1990. Tr. 27. At the time of the hearing, Hinds
lived with his girlfriend in a house that his parents
purchased for him. Tr. 44-45. His girlfriend was staying with
him since she had moved out of one apartment and was waiting
to move into a new apartment. Tr. 44-45. Hinds attended
school through the twelfth grade and attended a technical
college where he learned about auto-related technical skills.
Tr. 42. Hinds was dismissed from the technical college in
March 2010. Tr. 42, 424, 425. Hinds relayed that he had been
suspended from the technical school due to the college
feeling he was unable to learn. Tr. 42. A letter from Mr.
Davis, department head at the technical college, noted that
Hinds faced academic challenges and there were also issues of
safety due to Hinds' difficulty in working with and
handling equipment. Tr. 424. Hinds last worked in the summer
of 2014 at Wal-Mart. Tr. 43, 679. Hinds had received
assistance through the Ohio Bureau of Vocational
Rehabilitation (“BVR”). Tr. 316-421, 679. BVR
closed Hinds' case on April 16, 2015, for the following
reasons “Refused Services or No. Further Services.
Based on our discussion today, you have a desire to stabilize
your health and explore Social Security, prior to considering
working.” Tr. 317.
April 10, 2014, Hinds saw Michael W. Walker, M.D., an
orthopedic physician at the Cleveland Clinic, for an opinion
regarding cramping and spasms that Hinds was having in his
hands and wrists. Tr. 560-561. Hinds' mother attended the
appointment with him. Tr. 560. Hinds relayed that he was
being treated for bipolar disorder and attention deficit
disorder and he had been having the reported wrist and hand
problems prior to being placed on medications for his
psychiatric disorders. Tr. 560. Hinds denied pain,
paresthesias, weakness, numbness or tingling. Tr. 560-561.
The cramping and spasms occurred when Hinds tried to use his
hands for manipulative activity, e.g., trying to open a jar.
Tr. 561. During such activity, Hinds indicated his fingers
and wrists cramped up. Tr. 561. Hinds denied any other joint
involvement or neck pain or neck trauma. Tr. 561. Hand x-rays
showed no significant abnormalities involving the fingers or
carpal bones. Tr. 561. During a physical examination, Dr.
Walker observed that Hinds had some difficulty unbuttoning
the sleeve on his shirt and he seemed to have lost some
dexterity in his hands. Tr. 561. There was no swelling with
regard to range of motion of Hinds' fingers, thumb, wrist
or elbows and there was no triggering of the flexor tendons.
Tr. 561. Dr. Walker diagnosed spasticity of the hands
bilaterally. Tr. 561. Dr. Walker did not see any obvious
orthopedic issues to explain Hinds' issues and
recommended a neurological consultation. Tr. 561.
8, 2014, Hinds saw neurologist Sheila Rubin, M.D., at the
Cleveland Clinic for a consultation regarding his hands
locking up. Tr. 559-560. Hinds relayed that he had had
problems with his hands locking up his entire life. Tr. 559.
The problems had not gotten worse but his father noticed the
problem and suggested that Hinds have the problem looked at.
Tr. 559. Hinds explained that his hands “ball up”
when using them to cook or grip something tightly; he was
unable to do pull ups; he shook his hands to unlock them; his
symptoms were not painful; he did not have problems while
eating, shaving or writing; and cold weather made his
symptoms much worse. Tr. 559. Hinds indicated that he slept
well and his energy level was “terrific.” Tr.
559. Hinds reported always having a “speech
impediment.” Tr. 559. He denied shortness of breath,
chest pain, fever/chills, headaches, neck and back pain, or
memory problems. Tr. 559. Dr. Rubin's impression was
probable myotonic dystrophy type I, noting that Hinds
exhibited temporal balding, facial weakness, slurred speech,
and myotonia. Tr. 560. Dr. Rubin ordered an EMG/NCV, EKG and
cardiology and ophthalmology consults. Tr. 560. Dr. Rubin
noted that she was unable to order genetic testing; Hinds
would need to be referred to a genetics counselor for such
testing. Tr. 560.
15, 2014, Hinds saw Abdul R. Wattar, M.D., F.A.C.C., a
cardiologist at the Cleveland Clinic, to rule out myotonic
dystrophy associated cardiac abnormality. Tr. 556-559. Dr.
Wattar ordered a cardiac MRI. Tr. 558. Hinds denied any
current active cardiac symptoms. Tr. 558. Dr. Wattar's
physical examination findings were unremarkable. Tr. 557-558.
Hinds' cardiac MRI was performed on May 29, 2014. Tr.
562, 564-569. Hinds saw Dr. Wattar on June 12, 2014, for
follow up. Tr. 552-555. Dr. Wattar reviewed the cardiac MRI
test results, indicating that the MRI showed that the left
ventricle was normal in size, shape, and low normal function,
EF 54%; there were prominent trabeculations along the distal
apical walls and significant thinning of the mid-distal
lateral walls of the left ventricle, measuring 4-5 mm; there
were no segmental wall motion abnormalities; there were no
findings to suggest prior ischemic damage or an infiltrative
process; and there was normal aortic, mitral and tricuspid
valve function. Tr. 554. Hinds denied any current active
cardiac symptoms but noted occasional shortness of breath.
Tr. 554. Dr. Wattar offered to have a chest x-ray performed
but Hinds' mother declined and indicated that Hinds would
follow up with his primary care physician. Tr. 555. Dr.
Wattar advised Hinds to stop smoking. Tr. 555.
December 4, 2014, Hinds saw Kristen A. Smith, M.D., at
Associates in Neurology, Inc. with complaints of his hands
locking up on him for several years. Tr. 609-610. Hinds noted
that he had been seeing Dr. Rubin but she did not take his
insurance. Tr. 609. Hinds' mother accompanied him to the
appointment. Tr. 609. They relayed that Hinds had been seen
at the Cleveland Clinic and had been diagnosed with possible
myotonic dystrophy. Tr. 609. Hinds indicated that if he
balled his hands into fists they stayed that way. Tr. 609.
Also, he indicated that his mouth stayed open like a fish.
Tr. 609. Hinds' mother relayed that Hinds had breathing
problems as a baby; he had learning disabilities; his speech
was unclear; and he did not notice myotonic features in his
feet or larger muscle groups. Tr. 609. Hinds' mother
indicated that Hinds was looking for a job and she felt that
he should be employable. Tr. 609. On physical examination,
Dr. Smith observed that Hinds had “the typical gaping
mouth and narrow face, ” his speech was slightly
slurred; he exhibited involuntary movements, i.e., tonic
maintenance following muscle tension was observed, especially
in the hands and bilateral upper extremities; there were no
tremors; muscle atrophy was noted throughout; and diffuse
weakness with tonic maintenance of effort was observed. Tr.
609-610. Dr. Smith ordered EMG testing of the extremities and
indicated that she would see Hinds for follow up after the
testing was completed. Tr. 609.
testing of the right upper and lower extremities was
completed on January 10, 2015. Tr. 611-613. The testing
showed evidence consistent with myotonic dystrophy type I.
Tr. 613. Also, it was noted that there may be superimposed
mild median mononeuropathy at the wrist, i.e., carpal tunnel
syndrome. Tr. 613, 614.
saw Dr. Smith on February 12, 2015, for follow up regarding
his myotonic dystrophy and for review of the EMG. Tr.
615-616. Hinds reported problems with heartburn and that he
occasionally noticed skipped heartbeats. Tr. 615. Hinds'
mother reported that Hinds' IQ was measured at 79. Tr.
615. During a physical examination, Dr. Smith observed that
Hinds was alert and in no acute distress; he exhibited the
typical gaping mouth and narrow face; he had mild impairment
of cognitive functions; his speech was slightly slurred; he
exhibited tonic maintenance following muscle tension -
especially of the bilateral hands and upper extremities;
there were no tremors; there was muscle atrophy throughout;
and there was diffuse weakness with tonic maintenance of
effort. Tr. 615-616. Dr. Smith assessed myotonic dystrophy
(primary) and mental retardation. Tr. 615. Dr. Smith referred
Hinds to Dr. Goldstein a cardiologist and Hinds was
encouraged to continue with psych. Tr. 615.
Dr. Smith's referral, on May 21, 2015, Hinds saw Robert
N. Goldstein, M.D., at LakeHealth Electrophysiology. Tr.
629-630. Dr. Goldstein noted the following general comments
regarding the history of Hinds' present illness - Hinds
had a history of myotonic dystrophy along with a variety of
psychiatric problems, including depression, bipolar disorder,
and low IQ; he had episodes of palpitations on occasion but
no frank syncope for the prior six years; he had heartburn;
Hinds was fairly active with no exertional symptoms; he had
no orthopnea or dyspnea with exertion; and Hinds had not had
a cardiac work-up. Tr. 629. On physical examination, Dr.
Goldstein observed that Hinds was a markedly thin male in no
acute distress; his affect was appropriate; and his mood was
pleasant. Tr. 629. Hinds' heart sounds were normal, there
were no murmurs, gallops or rubs. Tr. 629. Hinds exhibited
normal peripheral pulses bilaterally in the extremities and
there was no edema. Tr. 629. Neurological findings were
“grossly normal: intact, no abnormalities.” Tr.
629. An EKG was performed that same day and it showed normal
sinus rhythm; moderate voltage criteria for LVH that may
represent a normal variant in light of Hinds' thin body
habitus; and early repolarization abnormality. Tr. 630, 649.
Dr. Goldstein assessed myotonic dystrophy (primary) and
palpitations and he recommended an echocardiogram and a
2-week event monitor to further assess for arrhythmia. Tr.
629-630. The two-week event monitor findings showed a minimum
heartrate of 43 bpm, a maximum heartrate of 181 bpm, and an
average heartrate of 86 bpm. Tr. 631-640. An echocardiogram
was performed on June 25, 2015. Tr. 660-662. The impression
from that testing was that global left ventricular wall
motion and contractility were within normal limits, there was
an estimated ejection fraction of > 60% and there was a
trace of mitral regurgitation. Tr. 662, 668-672.
October 1, 2015, Hinds saw Dr. Smith for follow up regarding
his myotonic dystrophy and complaints of problems swallowing
that Hinds had been having for about a month. Tr. 703-704.
Dr. Smith's physical examination findings (Tr. 703-704)
were similar to the findings from February 2015 (Tr.
615-616). Dr. Smith referred Hinds to SLP for evaluation.
February 6, 2014, Hinds saw Jeffery Turell, M.D., at Premier
Behavioral Health Services. Tr. 596-597. Dr. Turell noted he
had last seen Hinds in October 2013. Tr. 596. Hinds reported
that he broke his thumb punching a punching bag hard. Tr.
596. Hinds was drinking regularly but did not see that
alcohol was a problem in his life. Tr. 596. He noted,
however, that his friends had conducted an
“intervention” with him about his alcohol use and
he had received a citation for disorderly conduct while
intoxicated about two months prior - he was walking home
after drinking. Tr. 596. Hinds reported that Adderall helped
him focus. Tr. 596. He had reduced the amount of Trazadone
that he was taking because it was too sedating. Tr. 596.
Hinds had been doing some work at his mother's apartment
building - cleaning and painting. Tr. 596. Also, he was doing
some interior construction type work with some friends to
help them out - he was not getting paid. Tr. 596. Dr. Turell
noted that Hinds was continuing to see Dr.
Bruder for counseling. Tr. 596. Hinds denied a
depressed mood or anxiety symptoms and indicated his sleep
and appetite were fine. Tr. 596. Dr. Turell observed Hinds to
be casually dressed; he was cooperative; he was clam; his
speech was fluent, spontaneous, and low; his thought process
was concrete; he denied suicidal ideation; his cognition was
grossly average to below average; his insight was limited;
and his judgment was poor. Tr. 597. Dr. Turell's
assessment was that Hinds continued to make poor decisions;
he was in denial about the problems alcohol was causing in
his life; his mood was stable; Adderall was helping with
concentration; he had not yet obtained IQ testing; and he had
stumbled upon types of work that he might do well in rather
than jobs he had applied for in the past that he did not do
well in. Tr. 597. Dr. Turell diagnosed bipolar II disorder,
ADHD combined type, alcohol abuse and a reading disorder. Tr.
597. Dr. Turell reduced Hinds' Trazadone and recommended
that Hinds cut down on his drinking and complete IQ testing.
a May 8, 2014, visit with Dr. Turell, Hinds stated he was a
loser and people did not give him a chance. Tr. 598. Adderall
was continuing to help with his concentration; his appetite
was the same; and he was not drinking as often. Tr. 598.
Hinds was unemployed and living with his parents. Tr. 598.
Dr. Turell's assessment was depressed/poor self-worth
based on life circumstances and medical problems. Tr. 598.
Diagnoses included bipolar II disorder, ADHD combined type,
alcohol abuse; adjustment disorder with anxiety; and reading
disorder. Tr. 598.
saw Dr. Turell again on August 7, 2014. Tr. 599. Hinds had a
job at Walmart. Tr. 599. Hinds was interested in increasing
his Adderall to help with his concentration due to the
increased demands of work. Tr. 599. Hinds had a girlfriend.
Tr. 599. Diagnoses included bipolar II disorder, ADHD
combined type, alcohol abuse; anxiety disorder, NOS; and
reading disorder. Tr. 598. Dr. Turell continued to recommend
cognitive testing. Tr. 599. Hinds had not been able to
schedule the testing due to conflicts. Tr. 599. Dr. Turell
increased Hinds' Adderall and continued his other
medications. Tr. 599.
saw Dr. Turell on January 8, 2015. Tr. 600. Hinds had been
fired from Walmart after a cart had hit a car. Tr. 600. Hinds
had a job interview scheduled for January 12, 2015. Tr. 600.
Hinds was going snowboarding. Tr. 600. Hinds had
neuropsychological testing performed on October 9,
2014. Tr. 600. Hinds reported inconsistent
medication compliance. Tr. 600. Hinds indicated that periods
of sadness lasted about an hour and then faded. Tr. 600. His
up moods lasted longer - “for days, weeks.” Tr.
600. On mental examination, Dr. Turell observed that
Hinds' mood was better than usual. Tr. 600. He was
cooperative. Tr. 600. His affect was flat. Tr. 600. His
speech was fluent, spontaneous, increased and his tone was
low. Tr. 600. His thought process was circumstantial; his
cognition was diminished; his insight was partial; and his
judgment was poor. Tr. 600. Diagnoses were bipolar II
disorder, ADHD combined type, alcohol abuse; anxiety
disorder, NOS; reading disorder; and borderline intellectual
functioning. Tr. 600. Dr. Turell encouraged good sleep
hygiene and he made some modifications to Hinds'
medications. Tr. 600. Hinds denied medication side effects.
Hinds saw Dr. Turell on June 25, 2015, he relayed that he had
been denied social security disability. Tr. 643. Hinds was
planning on appealing. Tr. 643. Hinds was living with a
roommate in a house. Tr. 643. Hinds reported inconsistent
medication compliance, noting he had probably missed a few
days. Tr. 643. Hinds reported being irritable but he denied a
depressed mood, anxiety, elevated mood or psychosis. Tr. 643.
He was frustrated with myotonic dystrophy and social
security. Tr. 643. On mental examination, Hinds' affect
was frustrated; his mood was congruent; his speech was
fluent, spontaneous, increased but at a slow rate, with a low
tone, and his voice was gravelly; his thought process was
circumstantial, concrete, and he perseverated; his cognition
was average and grossly intact; his insight was partial and
his judgment was poor. Tr. 643. Dr. Turell assessed Hinds as
being stable, noting he had been denied social security
disability and was unable to hold a job. Tr. 643. Dr. Turell
continued to diagnose bipolar II disorder, ADHD combined
type, alcohol abuse; anxiety disorder, NOS; reading disorder;
and borderline intellectual functioning. Tr. 643. Dr. Turell
recommended that Hinds continue with his current treatment
and he encouraged regular exercise and Hinds' appeal of
the social security decision. Tr. 643.
saw Dr. Turell again on October 15, 2015. Tr. 713. Hinds
reported being compliant with his medication. Tr. 713.
However, he did relay that he has taken his girlfriend's
medication one time. Tr. 713. Hinds' kitten had died
which was causing him to feel down. Tr. 713. Hinds'
quality of sleep was terrible. Tr. 713. Trazadone was no
longer helping Hinds' sleep. Tr. 713. Hinds reported
anxiety regarding his girlfriend's health. Tr. 713. On
mental examination, Dr. Turell observed Hinds' mood was
sad; his affect was down; his voice was gravelly with fluent,
spontaneous and increased speech with a low tone; his thought
process was circumstantial and concrete; his cognition was
limited; his insight was partial and his judgment was poor.
Tr. 713. Dr. Turell discontinued Trazadone, added melatonin,
and continued all other treatment. Tr. 713. Dr. Turell
continued to encourage regular exercise and advised him not
to take someone else's medication. Tr. 713.
continued to see Dr. Turell from January 27, 2016, through
January 12, 2017. Tr. 719-724, 726-730, 736-740, 747-749,
754-756. During a January 17, 2016, visit, Hinds reported
that he was doing “pretty good” since his last
visit in October. Tr. 724. He was a little more depressed -
he was waiting for his girlfriend to get out of the hospital.
Tr. 724. Hinds' concentration was fine on Adderall. Tr.
724. Hinds had gotten a place in Eastlake. Tr. 724. He had
been with his girlfriend for six months. Tr. 724. Dr. Turell
continued Hinds' current treatment and encouraged regular
exercise. Tr. 723.
an April 21, 2016, visit, Dr. Turell's assessment was
that Hinds reported mild irritability; he was living a
disorganized life but at his baseline. Tr. 721. Dr. Turell
made some medication adjustments. Tr. 721. He recommended
that Hinds engage in daily physical activity; he should use
Adderall regularly, not just on the days/times he thinks he
needs to, and he should see a speech pathologist for his
swallowing difficulties. Tr. 721.
16, 2016, Hinds complained of poor concentration, anxiety
regarding his future health, ADHD symptoms, pain in his
hands, and frustration and irritability. Tr. 736. He denied a
depressed mood. Tr. 736. Hinds had run out of Adderall on
June 5. Tr. 736. Dr. Turell restarted Adderall and continued
Abilify and Lamictal. Tr. 739. Dr. Turell indicated that
Hinds had “a clear and convincing burden of physical
and mental conditions affecting his ability to work.”
a September 22, 2016, visit, Hinds reported that he did not
like how his medication made him feel. Tr. 726. Hinds felt he
was more depressed on Abilify and Lamictal. Tr. 726. He
reported a better mood since getting back with his girlfriend
- they were living together. Tr. 726. His mother and
girlfriend were at the visit with him. Tr. 726. Hinds had
stopped drinking. Tr. 726. He continued to smoke about a pack
of cigarettes per day. Tr. 726. Dr. Turell discontinued
Abilify and Lamictal, continued Adderall and added Depakote.
Tr. 727. Dr. Turell noted he was going to write a letter for
disability. Tr. 727.
a December 8, 2016, visit with Dr. Turell, Hinds requested
standardized psychological testing and a letter describing
his problems and situation. Tr. 747. Hinds was very angry at
the judge. Tr. 747. On mental examination, Hinds' speech
was fluent and spontaneous; his thought process was
tangential, concrete, and he perseverated; his affect was
angry/frustrated; he was cooperative but animated; and he
reported having interesting dreams. Tr. 747. Hinds was not
drinking but he continued to smoke. Tr. 747. Dr. Turell
increased Hinds' Depakote and continued Adderall. Tr.
748. Dr. Turell noted that Hinds was still impulsive and
clearly unable to work and that Hinds' plans to apply for
disability were appropriate. Tr. 749.
his January 12, 2017, visit with Dr. Turell, Hinds reported
doing “pretty good.” Tr. 754. He was applying for
social security disability for the sixth time and was very
angry at the judges. Tr. 754. He denied a depressed mood but
had anxiety over losing his girlfriend. Tr. 754. Hinds'
affect was described as amused and animated. Tr. 755. He
denied suicidal ideation but indicated he had thoughts of
judges committing suicide. Tr. 755. He relayed homicidal
ideation towards a woman in North Carolina but noted he would
never see her again. Tr. 755. In his assessment, Dr. Turell
indicated that Hinds was stable but he still displayed poor
judgment and anger and he made vague threatening statements
but did not act on them. Tr. 755.
December 22, 2015, Dr. Smith completed a functional capacity
evaluation. Tr. 713-714. Dr. Smith opined that Hinds
was limited to rarely lifting/carrying 5-10 pounds;
standing/walking a total of 1-2 hours in an 8-hour workday;
and he could never climb, balance, stoop, crouch, kneel or
crawl. Tr. 714. Also, Dr. Smith opined that Hinds'
impairment affected his ability to be around temperature
extremes or vibration because Hinds' muscle weakness was
likely worse in the cold and with vibration. Tr. 714. Dr.
Smith opined that she would expect Hinds to miss more than 4
days per month of work and would be off task more than 20% of
the time due to pain or fatigue. Tr. 715. If Hinds was
working a sedentary job, Dr. Smith opined that Hinds would
need to lie down 2 hours or more during an 8-hour workday.
Tr. 715. Dr.
opined that Hinds would be able to use his hands less than
10% of the time during an 8hour workday. Tr. 715. Dr. Smith
opined that Hinds would need to take unscheduled breaks more
than 4 times per day (beyond normal morning, lunch, and
afternoon breaks). Tr. 715. Dr. Smith explained her opinions,
stating Hinds “has myotonic dystrophy, which is a
condition marked by progressive muscle impairment, difficulty
releasing muscle contraction, and frequently,
cardiomyopathy.” Tr. 715. Dr. Smith stated further,
“Myotonic dystrophy is progressively disabling and
results in death [and] he is unable to be employed in any
setting on a long-term basis.” Tr. 715.
7, 2015, state agency reviewing physician William Bolz, M.D.,
completed a physical RFC assessment. Tr. 111-114. Dr. Bolz
opined that Hinds had the RFC to lift and/or carry 20 pounds
occasionally and 10 pounds frequently; he could stand and/or
walk for a total of about 6 hours in an 8-hour workday and
sit for a total of about 6 hours in an 8-hour workday; he had
limited ability to push and/or pull with his upper
extremities bilaterally - limited to frequently using hand
controls due to myotonic dystrophy; he could never climb
ladders/ropes/scaffolds due to myotonic dystrophy; he was
limited to frequent bilateral handling and fingering; and he
would have to avoid all exposure to hazards - machinery and
unprotected heights - due to myotonic dystrophy. Tr. 111-113.
reconsideration, on August 26, 2015, state agency reviewing
physician Paul Morton, M.D., reached the same conclusions as
Dr. Bolz. Tr. 129-131.
January 5, 2016, Dr. Turell completed a Mental Source
Assessment (Mental) wherein he rated Hinds' functional
abilities in 20 work-related tasks related to understanding
and memory; sustained concentration and persistence; social
interaction; and adaptation. Tr. 716-718. Dr. Turell found
that Hinds was unable to perform of 13 of the 20 tasks; he
would have noticeable difficulty performing 1 of the tasks
more than 20% of the workday or workweek; he would have
noticeable difficulty performing 2 of the tasks 11-20% of the
workday or workweek; and he would have noticeable difficulty
performing 4 of the tasks no more than 10% of the workday or
workweek. Tr. 716-717. Dr. Turell opined that Hinds would
likely be absent from work about 4 days per month; he would
be off task 20% of the time during the workday; and he would
need to take unscheduled 15-minutes breaks beyond the normal
breaks and lunch period more than 4 times per day. Tr. 717.
Dr. Turell explained that his opinions were supported by
neuropsychological testing completed by Dr. Mekota, an
associate in his office, which showed a full-scale IQ in the
borderline range, low average attention/processing speed,
calculation, concentration with impairment of inhibitory
control. Tr. 718. Dr. Turell added further comments,
Given Tyler's consistent history of difficulty with
applying for jobs, limited success being offered an
interview, and short duration of holding a job before getting
fired, Tyler has not shown the ability to maintain full-time
employment which also fits with a history of poor
The difficulty he faces as a result is that “trouble
finds Tyler, ” meaning due to deficits in executive
function, intellectual function, and social skills, he
invariably performs or behaves in way that results in
dismissal/termination of employment.
April 20, 2017, Dr. Turell completed another Mental Source
Assessment (Mental) wherein he again rated Hinds'
functional abilities in 20 work-related tasks related to
understanding and memory; sustained concentration and
persistence; social interaction; and adaptation. Tr. 763-764.
Dr. Turell found that Hinds was unable to perform of 13 of
the 20 tasks; he would have noticeable difficulty performing
1 of the tasks more than 20% of the workday or workweek; he
would have noticeable difficulty performing 3 of the tasks no
more than 10% of the workday or workweek; and no problem
performing 2 of the tasks. Tr. 763-764. Dr. Turell opined
that Hinds would likely be absent from work about 3 days per
month; he would be off task over 20% of the time during the
workday; and he would need to take unscheduled 15-20-minute
breaks beyond the normal breaks and lunch period about 4
times per day. Tr. 764. When asked to state the medical
findings that supported his opinions, Dr. Turell stated:
Tyler suffers from ADHD, bipolar disorder, and myotonic
dystrophy. These conditions affected his academic trajectory,
for which he had an IEP in school. Tyler has an easygoing
nature but is plagued by poor decision-making and poor
concentration resulting in difficulty obtaining and
maintaining employment. Tyler has tried many jobs, but has
been fired from all of them after only a short time. Trouble
always seems to find Tyler, and in the workplace this results
in termination of his employment.
Turell further commented that “Tyler is truly incapable
of full-time employment. Aside from his issues with poor
concentration, it is his poor executive function and decision
making that render him unemployable.” Tr. 765.
August 20, 2015, Rick Brunner, Ph.D., M.S.W., authored a
“To Whom It May Concern” letter, wherein he
expressed his sincere and full support for Hinds'
application for disability benefits. Tr. 701. Dr. Brunner
stated he had been meeting with Hinds (and his mother) since
2009 for approximately 50 therapy sessions. Tr. 701. During
that therapy, Dr. Brunner indicated he had encouraged Hinds
to find employment and had referred him to BVR because of the
difficulties he was having finding work. Tr. 701. Dr. Brunner
indicated that BVR had recently closed Hinds' case and
suggested that he apply for disability. Tr. 701. Dr. Brunner
relayed that Hinds had been diagnosed with ADHD and bipolar
disorder and, despite taking prescribed medications, he
continued to struggle with focus, poor decision making,
impulsivity, and mood swings. Tr. 701. Dr. Brunner stated
further that Hinds would love to work but “due to his
psychiatric struggles and now his battle with Myotonic
Dystrophy, he is often full of despair regarding his
future.” Tr. 701.
3, 2017, Dr. Brunner completed a Mental Source Assessment
(Mental) wherein he rated Hinds' functional abilities in
20 work-related tasks related to understanding and memory;
sustained concentration and persistence; social interaction;
and adaptation. Tr. 821-823. Dr. Brunner found that Hinds was
unable to perform 8 of the 20 tasks; he would have noticeable
difficulty performing 11 of the tasks more than 20% of the
workday or workweek; and he would have noticeable difficulty
performing 1 of the tasks 11-20% of the workday or workweek.
Tr. 821. Dr. Brunner opined that Hinds would likely be absent
from work more than 4 days per month; he would be off task
over 20% of the time during the workday; and he would need to
take unscheduled 15-minutes breaks beyond the normal breaks
and lunch period about 4 times per day. Tr. 822. When asked
to state the medical findings that supported his opinions,
Dr. Brunner indicated “ongoing ADHD, bi-polar &
borderline I.Q.” Tr. 822. Dr. Brunner commented further
that Hinds had not been able to maintain full-time employment
in the past even with the ongoing assistance and supervision
of a job coach. Tr. 822.
12, 2017, Dr. Brunner provided another letter wherein he
stated that he fully supported Hinds' applying for
disability benefits. Tr. 825-826. Dr. Brunner offered his
opinion as to why he believed that Hinds' impairments
fell within Listings 12.04 and 12.05. Tr. 825. In his letter,
Dr. Brunner characterized Hinds' impairments as having a
marked or extreme effect on his ability to function in his
daily life. Tr. 825.