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Holman v. Berryhill

United States District Court, W.D. Arkansas, Fort Smith Division

February 9, 2017

CHRISTOPHER S. HOLMAN PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration[1] DEFENDANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Christopher Holman, brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of Social Security Administration (“Commissioner”) denying his claims for a period of disability, disability insurance benefits (“DIB”), child's insurance benefits (“CIB”), and supplemental security income (“SSI”) benefits under Titles II and XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this judicial review, the court must determine whether there is substantial evidence in the administrative record to support the Commissioner's decision. See 42 U.S.C. § 405(g).

         I. Procedural Background:

         Plaintiff filed his applications for benefits on October 25, 2012, alleging an onset date of May 1, 2003, due to juvenile diabetes type 1, attention deficit hyperactivity disorder (“ADHD”), bipolar disorder, anxiety disorder, depression, and a hernia in his groin area. (ECF No. 10, pp. 18, 299-310, 318, 323) Plaintiff was 19 years old when he filed his applications, had a limited education, and had no past relevant work. (ECF No. 10, p. 29) The Commissioner denied his applications initially and on reconsideration. At the Plaintiff's request, an Administrative Law Judge (“ALJ”) held an administrative hearing on March 25, 2015. (ECF No. 10, pp. 39-63) Plaintiff was present and represented by counsel.

         On July 14, 2014, the ALJ concluded that the Plaintiff's diabetes, moderate depression, and personality disorder with borderline traits were severe, but concluded they did not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. (ECF No. 10, p. 21) He then found Plaintiff capable of performing unskilled, light work. (ECF No. 10, p. 22) With the assistance of a vocational expert, the ALJ found the Plaintiff could perform work as a small product assembler, office helper, and warehouse checker. (ECF No. 10, p. 30)

         The Appeals Council denied the Plaintiff's request for review on November 6, 2015. (ECF No. 10, p. 6-11) Subsequently, Plaintiff filed this action. (ECF No. 1) This matter is before the undersigned for report and recommendation. Both parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 12, 14)

         II. Applicable Law:

         This Court's role is to determine whether substantial evidence supports the Commissioner's findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial evidence is less than a preponderance but it is enough that a reasonable mind would find it adequate to support the Commissioner's decision. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). We must affirm the ALJ's decision if the record contains substantial evidence to support it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). As long as there is substantial evidence in the record that supports the Commissioner's decision, the Court may not reverse it simply because substantial evidence exists in the record that would have supported a contrary outcome, or because the Court would have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). In other words, if after reviewing the record it is possible to draw two inconsistent positions from the evidence and one of those positions represents the findings of the ALJ, we must affirm the ALJ's decision. Id.

         A claimant for Social Security disability benefits has the burden of proving his disability by establishing a physical or mental disability that has lasted at least one year and that prevents him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). A Plaintiff must show that his disability, not simply his impairment, has lasted for at least twelve consecutive months.

         The Commissioner's regulations require her to apply a five-step sequential evaluation process to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the claimant is able to perform other work in the national economy given his age, education, and experience. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Only if he reaches the final stage does the fact finder consider the Plaintiff's age, education, and work experience in light of his residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982), abrogated on other grounds by Higgins v. Apfel, 222 F.3d 504, 505 (8th Cir. 2000); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

         III. Discussion:

         On appeal, Plaintiff raises four issues: (1) whether the ALJ erred in failing to fully and fairly develop the record; (2) whether the ALJ erred at steps two and three of the sequential analysis in his evaluation of the Plaintiff's multiple mental impairments and failure to properly apply the special technique; (3) whether the ALJ erred in his RFC determination; and, (4) whether the ALJ failed to properly evaluate the Plaintiff's subjective complaints and apply the Polaski factors.

         Plaintiff contends that the ALJ erred at step two of the sequential analysis. At step two, a claimant has the burden of providing evidence of functional limitations in support of his contention of disability. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). “An impairment is not severe if it amounts only to a slight abnormality that would not significantly limit the claimant's physical or mental ability to do basic work activities.” Id. (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987); 20 C.F.R. § 404.1521(a)). “If the impairment would have no more than a minimal effect on the claimant's ability to work, then it does not satisfy the requirement of step two.” Id. (citing Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007)).

         The undersigned finds this case to be particularly troubling, given the inconsistencies in the mental health diagnoses provided by the treating sources and the examining and non-examining consultants. The ALJ primarily relied on the 2013 assessment provided by consultative examiner, Dr. Steve Shry. While this is allowed in cases where the treating source evidence is internally inconsistent or contradicted by other evidence of record, the diagnoses and opinions of a treating physician are generally entitled to more weight than is the opinion of a one-time consultative examiner or a non-examining consultant. See SSR 96-2p; Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000) (citing 20 C.F.R. § 404.1527(d)(2)); Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999) (holding that the opinion of a consulting physician who examined the plaintiff once or not at all does not generally constitute substantial evidence).

         We also note that the evaluation of a mental impairment is often more complicated than the evaluation of a claimed physical impairment. Andler v. Chater, 100 F.3d 1389, 1393 (8th Cir. 1996). Evidence of symptom-free periods, which may negate the finding of a physical disability, do not compel a finding that disability based on a mental disorder has ceased. Id. Mental illness can be extremely difficult to predict, and remissions are often of “uncertain duration and marked by the impending possibility of relapse.” Id. Individuals suffering from mental disorders often have their lives structured to minimize stress and help control their symptoms, indicating that they may actually be more impaired than their symptoms indicate. Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir.2001); 20 C.F.R. Pt. 404, Subpt. P., App. 1, ' 12.00(E) (1999). This limited tolerance for stress is particularly relevant because a claimant's residual functional capacity is based on “the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.” McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (abrogated on other grounds).

         In April 2012, the ALJ ordered the first consultative mental evaluation with Dr. Steve Shry. (ECF No. 10, pp. 674-677) On the Wechsler Adult Intelligence Scale III, Plaintiff obtained a verbal score of 74, a performance score of 73, and a full scale score of 71. On the Wide Range Achievement Test, he scored at the third grade level in math, the fourth grade level in spelling, and the seventh grade level in reading. After finding the test scores to be both valid and accurate, Dr. Shry diagnosed Plaintiff with adjustment disorder; depression with mild to moderate mixed anxiety features; mathematics disorder; and, borderline intellectual functioning. He opined that Plaintiff would not be able to manage funds without assistance because he was not capable of performing basic calculations adequately and would have mild ...


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