Crowder v. Saul

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. ERIN L. WIEDEMANN UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Lauran Crowder, brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a decision of the Commissioner of the Social Security Administration (Commissioner) denying her claim for supplemental security income (SSI) under the provisions of Title XVI of the Social Security Act (Act). 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 protectively filed an application for SSI on September 10, 2015, alleging an inability to work since September 10, 2015, due to mental illness. (Tr. 150, 166). The first administrative video hearing was held on November 21, 2016. (Tr. 83-119). Plaintiff testified via video from Russellville. (Tr. 87-98). John Richard Cowell, Plaintiff's uncle, also testified. (Tr. 99-111). Deborah Steele, Vocational Expert (VE), also testified via telephone. (Tr. 111-118). A supplemental hearing was held on October 31, 2017. (Tr. 122-143). Plaintiff and her attorney appeared, and Plaintiff was the only witness. (Tr. 128-145).

         In a written opinion dated April 30, 2018, the ALJ found that Plaintiff had the following severe impairments: borderline intellectual functioning; specific learning disability; attention-deficit hyperactivity disorder (ADHD); major depressive disorder; unspecified anxiety disorder; oppositional defiant disorder (ODD); and post-traumatic stress disorder (PTSD). (Tr. 19). However, after reviewing the evidence in its entirety, the ALJ determined that the Plaintiff's impairments did not meet or equal the level of severity of any listed impairments described in Appendix 1 of the Regulations (20 CFR, Subpart P, Appendix 1). (Tr. 19-22). The ALJ found Plaintiff retained the residual functional capacity (RFC) to perform a full range of work at all exertional levels but with the following non-exertional limitations: Plaintiff was “able to perform unskilled work where interpersonal contact with coworkers and supervisors is only incidental to the work performed, there is no contact with the public, the complexity of tasks is learned and performed by rote with few variables and little use of judgment, and the supervision required is simple, direct, and concrete.” (Tr. 22-33). Plaintiff had no past relevant work; however, with the help of a VE, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, such as cook helper, kitchen helper, sweeper cleaner, bin filler, gasket attacher/gluer, ordnance check weigher, and paper label assembler. (Tr. 33-34). Ultimately, the ALJ concluded that Plaintiff had not been under a disability within the meaning of the Social Security Act since September 10, 2015, the date the application was filed. (Tr. 34).

         Subsequently, Plaintiff requested a review of the hearing decision by the Appeals Council, which denied that request on October 29, 2018.^[2] (Tr. 1-7). Plaintiff filed a Petition for Judicial Review of the matter on December 21, 2018. (Doc. 1). Both parties have submitted briefs, and this case is before the undersigned for report and recommendation. (Docs. 11, 14).

         The Court has reviewed the transcript in its entirety. The complete set of facts and arguments are presented in the parties' briefs and are repeated here only to the extent necessary.

         II. Evidence Submitted:

         At the hearing before the ALJ on November 21, 2016, Plaintiff testified that she was born in 1997 and graduated from high school. (Tr. 89). Plaintiff was in special education classes in high school for Math and English. (Tr. 89). Testimony showed that Plaintiff did not have any past relevant work. (Tr. 90).

         Prior to the relevant time period, Plaintiff was treated for upper respiratory infections, influenza, ear infections, abdominal pain from an ovarian cyst and dysmenorrhea, gastritis, gastroenteritis, depression, violent behavior, cystitis, dermatitis, cellulitis, urinary tract infection, right shoulder pain, strained tendon in foot/ankle, headaches, ADHD, oppositional and disruptive behaviors, trauma-related problems, learning issues, cognition issues, and memory problems.

         As early as December of 2009, Plaintiff had a doctor visit at Dayspring Behavioral Health. (Tr. 889). Records indicated that she had a history of oppositional defiant disorder, impulse control disorder, ADHD, and adjustment disorder with depressed mood, and she was on medication at the time for the conditions. (Tr. 889). Dayspring records showed that Plaintiff's mother reported some improvement on the medication, such as a stabilization in Plaintiff's grades in February of 2011, an increase in calm behavior in November of 2010, and an improvement in her attention span in June of 2010. (Tr. 981-982, 984). Plaintiff underwent counseling and made some progress toward her goals but continued to struggle with oppositional defiance disorder and difficulty with authority and following rules. Her GAF scores remained between 38 and 55 during her services with Dayspring. She was discharged from Dayspring in October of 2012, and she was encouraged to continue working toward her goals and resume services with another outpatient mental health agency. (Tr. 913-914).

         From December of 2011, until May of 2012, Plaintiff was inpatient at Pinnacle Point for labile moods, violent and aggressive behavior, combativeness with siblings, belligerent behavior, destructive behavior, and noncompliance with medication. (Tr. 1089). While at Pinnacle Point, Plaintiff was involved in individual, group and family treatment, as well as recreational therapy and educational classes. (Tr. 1091). At discharge, Plaintiff was no longer exhibiting or verbalizing ongoing depressive or aggressive symptoms and denied homicidal or suicidal ideation. Plaintiff was to follow up with her Dayspring mental health professionals. (Tr. 1091). Her discharge diagnosis was mood disorder, disruptive behavior disorder, and ADHD with a GAF score of 42. (Tr. 1092).

         The medical record also indicated that Plaintiff was admitted to BridgeWay in July of 2012 for six days. (Tr. 994). Intake notes revealed that Plaintiff had also been hospitalized in the past at Youth Villages (a residential setting) due to her impulsive and aggressive behaviors. (Tr. 997). Plaintiff was showing severe aggression toward her developmentally delayed brother and also throwing things at her mother. She was also noncompliant with her medications. (Tr. 994). Plaintiff reported at intake that Plaintiff had hit one brother in the eye with an object and that she was showing aggression toward her brothers. (Tr. 994-995). She admitted to not taking her medication and stated that her mood was usually “good” but that she did experience anger on a daily basis. (Tr. 995). Records indicated that Plaintiff attend group sessions while at BridgeWay; that she completed daily self-inventories and assignments on anger; and that she completed a risk assessment. During inpatient, Plaintiff was noted to be sleeping well, not displaying any aggression, tolerating her medication, and in agreement to complying with her medication as an outpatient. (Tr. 995). Plaintiff's diagnosis upon discharge was disruptive behavior disorder, sexual abuse as a child, history of ADHD and a GAF score of 45. (Tr. 996).

         On September 11, 2012, Plaintiff underwent a psychoeducational evaluation by Jo Ella Peever, M.Ed., which showed that Plaintiff's overall level of achievement was very low; her math score was low average; her reading and written expression were in low range; and she had a significant deficit in the area of visual perception. (Tr. 679). Her adaptive behavior and functional skills assessment both indicated areas of statistical significance and were within expected ranges. She demonstrated specific learning disabilities in basic reading skills, reading comprehension, reading fluency, math calculation skills, and written expression. (Tr. 679).

         On October 2, 2012, Jane Barrett, the speech pathologist at Plaintiff's school, completed testing on Plaintiff, which showed that Plaintiff's global language skills were within the average range for her age. (Tr. 658-662).

         The medical record also showed that Plaintiff was receiving individual psychotherapy services as early as August of 2014 at Counseling Associates, Inc. for major depressive disorder, oppositional defiant disorder, and relational problems; however, Plaintiff was discharged on July 24, 2015 for lack of contact with Plaintiff. (Tr. 870).

         During the relevant time period, the medical record showed that on September 23, 2015, Stephanie Houston, Plaintiff's resource teacher, completed a teacher questionnaire. (Tr. 648-655). Ms. Houston indicated that based on her daily interaction with Plaintiff, she had an obvious problem in the area of acquiring and using information. (Tr. 649). Specifically, she struggled with working alone, required extra help, and needed a lot of structure and support overall. (Tr. 649). Ms. Houston noted that Plaintiff had a serious problem with attending and completing tasks and had to be kept on task and focused regularly. (Tr. 650). Plaintiff had a slight problem overall in interacting and relating to others. (Tr. 651). Plaintiff did not have any issues with moving about and manipulating objects. (Tr. 652). Lastly, Ms. Houston suggested that Plaintiff had a serious to very serious problem in the area of caring for herself. (Tr. 653).

         On October 26, 2015, Andrea Edgmon, a social worker, completed a Function Report on Plaintiff's behalf. (Tr. 330-337). Edgmon reported that Plaintiff had limited adaptive living skills; that she had issues regarding interaction with others; that she would get angry and frustrated easily: that she had to be prompted to bathe; that she had no money management skills; and that she had no ability to follow complex directions. (Tr. 330). She noted that Plaintiff lived alone, but that she would get herself up, take the bus to and from school, occasionally have a friend pick her up to go to church, and stay around the camper until bedtime. (Tr. 330). She stated that Plaintiff would wear improper or ill-fitting clothing; that she would only bathe once a week unless prompted; and that she did not care for her hair or shave. (Tr. 331). Plaintiff could prepare simple meals, and she was able to physically do housework. (Tr. 332). Ms. Edgmon noted that while Plaintiff did not drive and was unable to manage money, she was able to shop in stores for food and personal items. (Tr. 333). Plaintiff was social in that she liked to watch movies, go to church, and hang out with her little sister. (Tr. 334). However, she had trouble getting along with others, including verbal outbursts, becoming easily agitated, and displaying oppositional behavior. (Tr. 335). She could pay attention for five to ten minutes, could not finish what she started, and would get confused with instructions. (Tr. 335). Ms. Edgmon noted that Plaintiff was not on any medication at the time she completed the report. (Tr. 337).

         On October 28, 2015, Plaintiff underwent a mental diagnostic evaluation by Dr. Steve Shry, Ph.D. (Tr. 693-695). Initially, Plaintiff's social worker, who was also interviewed, reported Plaintiff's issues with independent living, poor decision making, and anger management. Dr. Shry noted Plaintiff's diagnosis of major depressive disorder and oppositional defiant disorder through Counseling Associates. Plaintiff denied inpatient treatment, said she was not currently on medication, and reported a lack of medical insurance and financial resources. (Tr. 693). Dr. Shry observed that Plaintiff was pleasant but passive and non-spontaneous; was cooperative; had a normal and stable mood; had a normal speech pattern; affect was mood congruent; had a normal range of expression; had liner and relevant responses; had well-connected and goal directed associations; and had no evidence of psychotic process. (Tr. 693-694). Dr. Shry noted that Plaintiff was oriented to time, place and person; that she did not appear to demonstrate any unusual mannerisms or behaviors; that she was able to cite basic biographical information, but incorrectly cited other information; that she had received psychiatric treatment but was not on any mediation; and that she appeared to meet the diagnostic criteria for specific learning disorder and borderline intellectual functioning (Tr. 694-695). Dr. Shry concluded that Plaintiff was poorly groomed but was pleasant and did not appear to be impaired in her ability to communicate and interact in a socially adequate manner. (Tr. 695). Dr. Shry opined that she could communicate in an intelligible and effective manner; that she did not appear to be significantly impaired in her ability to cope with the typical demands of basic work like tasks when the tasks were simple, but due to her learning disorder and her intellectual functioning, she might be significantly impaired in this area when tasks were complex; that she attended well and did not seem impaired in her ability to attend and sustain concentration on tasks; that she did not tolerate frustration well and would likely demonstrate significant impairment in her ability to sustain persistence when completing tasks when under stress due to her intellectual function level; and she did not appear to be impaired in her ability to complete simple work like tasks within an acceptable time frame, but could be impaired in this area if tasks were complex. (Tr. 695).

         On November 30, 2015, Dr. Sheri L. Simon, Ph.D., a non-examining medical consultant, completed a mental RFC assessment where she determined that Plaintiff had the capacity for work where interpersonal contact was incidental to work performed, e.g. assembly work; complexity of tasks was learned and performed by rote, few variables, little judgment; and supervision required was simple, direct and concrete (unskilled). (Tr. 162).

         Instructor, Ms. Debbie McBurney, completed a Communications Assessment on Plaintiff on December 7, 2015, as part of an overall psychological and speech and language evaluation at Forrester-Davis Developmental Center. (Tr. 1284). Ms. McBurney stated that Plaintiff “needed prompts” when handling situations involving conflict or anger, but that she was able to independently handle the majority of various types of social communication and interaction. (Tr. 1284-1287). Other instructors noted Plaintiff's need for prompts in areas of exercise, nutrition, and some social community. (Tr. 1295-1299).

         On March 25, 2016, Dr. Kay M. Gale, a non-examining medical consultant, completed a mental RFC assessment where she affirmed Dr. Simon and determined that Plaintiff had the capacity for work where interpersonal contact was incidental to work performed, e.g. assembly work; complexity of tasks is learned and performed by rote, few variables, little judgment; and supervision required was simple, direct and concrete (unskilled). (Tr. 180).

         On April 13, 2016, Plaintiff resumed counseling at Counseling Associates with Dr. Mervin Leader. (Tr. 1115). Plaintiff's Intake Assessment indicated problems with physical, emotional and sexual abuse resulting in trauma. (Tr. 1115). Plaintiff reported that she was currently residing with her aunt and uncle because she was unable to get along with her mother. (Tr. 1116). She stated that she attended church services with her family, but she did not interact with her peers outside of school. The examiner noted that Plaintiff had a cooperative attitude, was well-groomed, had a normal mood, intact short-term memory, fair judgment and insight, appropriate behavior and affect, and posed no risk of violence. (Tr. 1116). Plaintiff was diagnosed with PTSD. (Tr. 1116).

         During Plaintiff's counseling session on April 20, 2016, Dr. Leader noted that her judgment and insight were fair. (Tr. 1117). On April 27, 2016, Plaintiff opened up to Dr. Leader about her history of sexual abuse and her sexual abuse of her brothers. She explained that she had worked through the abuse in counseling and did not need further treatment for that issue. (Tr. 1118). At her May 11, 2016, session, Plaintiff's uncle reported to Dr. Leader that he was concerned about Plaintiff's attention seeking behavior and that she had been messaging men and giving them her personal information. (Tr. 1120). At her May 19, 2016, session, she reported that she had been staying with her mother for a week and that it was going “fairly well.” (Tr. 1119). Plaintiff was also excited about her upcoming graduation. (Tr. 1119).

         At Plaintiff's June 2, 2016, session with Dr. Leader, Plaintiff's uncle joined her, and they discussed her relationship with her mother. (Tr. 1121). At her June 6, 2016, session Plaintiff and Dr. Leader discussed choosing her battles with those around her, and Dr. Leader's ...