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Kasim B. v. Commissioner, Social Security Administration

United States District Court, N.D. Georgia, Atlanta Division

September 9, 2019

KASIM B., Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.

          FINAL ORDER AND OPINION

          JANET F. KING UNITED STATES JUDGE

         Plaintiff in the above-styled case brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration which denied his applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). For the reasons set forth below, the court ORDERS that the Commissioner's decision be AFFIRMED.

         Plaintiff KASIM B. (“Plaintiff” or “the claimant”) filed applications for DIB and SSI on April 10, 2014, alleging that he became disabled on October 12, 2012. [Record (“R.”) 206-220]. After his applications were denied initially and on reconsideration, an administrative hearing was held before the Administrative Law Judge (“ALJ”) on April 14, 2016. [R. 47-77, 78-135]. The ALJ obtained additional evidence subsequent to the hearing, namely, additional consultative examinations (“CEs”) and written responses to interrogatories from the vocational expert (“VE”) and this evidence was admitted without objection (along with Plaintiff's attorney representative's response).[1] The ALJ issued a decision denying Plaintiff's applications on June 23, 2017. [R. 16-44]. The Appeals Council denied Plaintiff's request for review on April 2, 2018. [R. 1-6]. Having exhausted his administrative remedies, Plaintiff filed a complaint in this Court on May 11, 2018, seeking judicial review of the final decision of the Commissioner. [Doc. 4].

         I. Statement of Facts

          The ALJ found the following facts [R. 21-37] as modified herein.[2]

         The claimant alleged that he cannot work because of mental health problems and a history of shoulder injury. [Exhibit 4E; Hearing Testimony, passim]. The claimant alleged difficulty lifting and reaching due to shoulder problems. For example, he stated that he can lift only 5 pounds and cannot lift his hand above the shoulder. The claimant also endorsed problems with his memory and stated that he performs tasks slowly. [Exhibit 4E]. At the hearing, the claimant testified that he never lived alone. According to the claimant, he lived with his grandparents until they died and then moved into a shelter.[3] The claimant stated that he has significant difficulty maintaining work pace. He reported difficulty understanding and focusing. The claimant said that he obtained his past work through vocational rehabilitation (“VR”), which included job training and coaching services. The claimant stated that he has been in contact with VR services since high school and has never obtained a job on his own (or without a job coach). The claimant testified that he cannot read at all (other than his own name) and cannot fill out a job application. Additionally, he reported ongoing problems related to his history of broken clavicle such as the inability to lift much weight.

         Opinion Evidence - Mental or Non-exertional Limitations

         In October 2014, the claimant attended a psychological CE with Alexander Brikman, Psy.D. (“Dr. Brikman”). [Exhibit 8F].[4] Dr. Brikman noted that, while the claimant spoke with a thick accent, his English was passable and that, although an interpreter was present, the claimant did not require use of the interpreter during the evaluation. The claimant preferred to speak in English, and he exhibited generally clear, coherent, goal directed, and pressure-free speech. He properly initiated conversation and responded appropriately to all questions asked. He related to the evaluator in a neutral interpersonal manner and rapport building was easily established at the outset of the evaluation and maintained throughout. He made good eye contact. The claimant was oriented times four. His pace of mentation was only mildly slow. His memory for remote events was within normal limits. His thinking was lucid and clear, and his insight and judgment were fair. His persistence was poor mainly due to motivational factors. The Test of Nonverbal Intelligence, Fourth Edition (“TONI-IV”) yielded an index score of 65, suggesting an extremely low range of intelligence. However, Dr. Brikman believed that these scores were invalid based on the fact that the claimant put forth little to no effort and on the outcome of the Rey's Test of Malingering. The Wide Range Achievement Test (“WRAT-IV”) also yielded a very low score (below pre-kindergarten level) on arithmetic. However, Dr. Brikman noted that these scores were also questionable. For instance, he noted that the claimant was often “one off” on his incorrect arithmetic responses.

         Dr. Brikman diagnosed the claimant with borderline intellectual functioning and malingering. He opined that the claimant has no difficulty tolerating psychological stress and pressures associated with day-to-day work activity. He has no difficulty understanding, remembering and following simple to complex instructions on a sustained basis, but he would likely encounter moderate difficulty with more detailed instructions. According to Dr. Brikman, the claimant's sustained concentration is suspected to be within normal limits; however, he would be expected to perform at a mildly reduced paced. Moreover, the claimant would require a moderate degree of supervision primarily due to motivational factors. The ALJ gave Dr. Brikman's opinion significant weight with the qualification that the claimant has fairly significant limitations, which would prevent him from performing complex instructions. [R. 30].

         In June 16, 2016, the claimant attended another psychological CE, this time with John Muller, Ph.D. (“Dr. Muller”). [Exhibit 18F]. The claimant stated that he is illiterate and cannot read very well. He reported feeling frustrated and hopeless. The mental status examination and testing revealed a number of significantly abnormal results. For example, his attitude tended to be passive. He thought that it was July when it was June. He did not know what city he was in. He could not recall any of the 3 things he learned 10 minutes previously, what he had for dinner the night before, or the year of his graduation from high school. He could not spell the word “cat” forwards or backwards. Dr. Muller also administered the Weschler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”), which revealed very low scores, including a full scale IQ of only 42, which suggested that the claimant was functioning in the moderate range of mental retardation. In Dr. Muller's opinion, however, these results were not a valid estimate of the claimant's mental functioning abilities. For example, Dr. Muller stated that the claimant failed the Rey's Malingering Protocol and put forth “no effort during the abilities testing.” Dr. Muller stated that the claimant often missed sample items, “ostensibly on purpose” in a “naive attempt to exaggerate his intellectual limitations.” Dr. Muller also based his finding of malingering and exaggeration on the facts that the claimant could go about in public by himself, he could probably prepare himself a simple meal, and he could keep up his household.

         Dr. Muller diagnosed the claimant with malingering, borderline intelligence, and speech/sound disorder (without any current treatment). Dr. Muller opined that the claimant has mild limitation in understanding, remembering, and carrying out simple instructions and making judgments on simple work-related decisions, but extreme limitations with respect to complex instructions and decisions. According to Dr. Muller, the claimant has moderate limitations in interacting with the public, supervisors, and co-workers, but marked limitation in responding appropriately to usual work situations and to changes in a routine work setting. Dr. Muller stated that the claimant would be able to understand simple job-related directions, which he would probably perform at a below-average pace. The ALJ gave significant weight to Dr. Muller's opinion that the claimant can perform simple work at a somewhat reduced pace as well as his opinion that the claimant has moderate limitations in social interactions. [R. 31]. The ALJ assigned little weight to Dr. Muller's conclusion that the claimant has marked limitation in responding appropriately to usual work situations and to changes in a routine work setting. [R. 31].

         In February 2015, the claimant attended a psychological evaluation with Stacey Sweet, Psy.D. (“Dr. Sweet”), at the request of a VR Counselor. [Exhibit 13F]. Dr. Sweet's mental status examination and testing revealed a number of abnormal signs. For example, the claimant seemed irritable and somewhat nervous, and his social skills appeared to be awkward. According to Dr. Sweet, the claimant's accent and rapid speech made his speech difficult to understand. She found that the claimant presented as fidgety and easily distracted. Dr. Sweet also noted that the claimant seemed to have difficulty understanding instructions and that his verbal comprehension seemed to be limited. Moreover, the WAIS-IV yielded scores in the extremely low range, including a full scale IQ of only 47. His word reading, spelling, and math computation scores were on the first grade level, and his sentence comprehension fell within the pre-kindergarten level.

         In addition, Dr. Sweet observed that, although the claimant had never lived on his own, he admitted that he could cook, clean, do laundry, and shop without assistance. Dr. Sweet diagnosed the claimant with mild intellectual disability and adjustment disorder with mixed disturbance of emotions and conduct. Dr. Sweet opined that the claimant will struggle in any work placement and will likely do best in a day program with training in living skills and emotional adjustment. Dr. Sweet emphasized that social services are the top priority for Plaintiff because, without proper support and a stable living environment, the claimant's emotional and cognitive processing is unstable and poor. She recommended a referral to a program that can offer comprehensive social services and stated that the claimant appears to require housing assistance with a caretaker, living skills training, and emotional adjustment services. On the other hand, Dr. Sweet also noted that, with emotional stability, the claimant appears to be capable of learning basic, repetitive job tasks with close supervision and repetitive instruction and that, after a period of instruction and close supervision, the claimant may be capable of completing job tasks with more general supervision and instruction. Dr. Sweet stated that the claimant is likely to work best in a slow-paced, structured work setting with supportive supervision. She opined that jobs requiring strong interpersonal skills may not be appropriate for the claimant. The ALJ assigned Dr. Sweet's testing scores little weight because there was no express statement as to the validity of the scores.[5] However, the ALJ also observed that “Dr. Sweet's opinion actually seems somewhat consistent with the [RFC].” [R. 32].

         In December 2014, the State agency psychological consultant, George Hughes, Ph.D. (“Dr. Hughes”), concluded that the claimant has mild limitations in activities of daily living and moderate limitations in social functioning and with maintaining concentration, persistence, or pace. According to Dr. Hughes, the claimant had not had any episodes of decompensation of extended duration. [Exhibits 5A, 6A]. More specifically, he stated that the claimant will be able to remember location, work procedures, and simple instructions, but would have difficulty remembering many detailed instructions. Dr. Hughes opined that the claimant can carry out simple instructions, perform within a schedule, attend, and be punctual, but the claimant will struggle with detailed instructions. In Dr. Hughes' opinion, on occasion, the claimant may struggle to attend and to concentrate. However, Dr. Hughes explained that, the majority of the time, the claimant's concentration and attention should not be affected beyond a moderate limitation. According to Dr. Hughes, the claimant can sustain a regular routine, can work around others and is able to remain focused most of the time and make simple work-related decisions. The claimant's pace may be slowed, though this may occur only occasionally per week. Dr. Hughes stated that, on occasion, the claimant may report issues to the point of distracting others momentarily, that some manipulation of co-workers may be attempted, that the claimant may interrupt co-workers, and that he may ask questions or request demonstrations on how to complete a task. Dr. Hughes stated that the claimant appears capable of dealing with brief supervision. The ALJ assigned the opinion of Dr. Hughes significant weight. [R. 33].

         Collateral Source Statements

         In April 2016, James Harrison (“Harrison”), a Board Member of the Journey Men's Shelter (“Shelter”) where Plaintiff resides, provided a statement in support of the claimant's applications. [Exhibit 16E]. Harrison explained that he assisted the claimant in obtaining residence in the Shelter and that he continues to see the claimant at least once per month and speak with him via telephone on a fairly regular basis. According to Harrison, the claimant has significant difficulty in finding and holding employment and significant difficulty communicating, including reading, writing, and verbal expression. [Exhibit 16E]. The ALJ gave Harrison's statement less weight than the psychological CEs. [R. 33-34].

         Anthony Owens (“Owens”), a Shelter employee, also provided a statement in support of Plaintiff's applications. [Exhibit 18E]. Owens stated that he had known the claimant for over a year and reported significant limitations. For instance, Owens stated that the claimant does not know how to read and write, that he does not cook, and that he cannot carry out simple instructions unless constantly supervised. According to Owens, the claimant has lost four jobs since he has known him and is incapable of carrying out simple duties, such as washing dishes, mopping, and sweeping. The ALJ assigned Owens' opinion little weight. [R. 34].

         Medical / Opinion Evidence - Physical or Exertional Limitations

         As for musculoskeletal problems, the claimant attended a medical CE with Jessie Al-Amin, M.D. (“Dr. Al-Amin”), in October 2014. [Exhibit 7F]. The claimant reported a history of right shoulder and collarbone surgery. Indeed, an x-ray of the right shoulder revealed a healed fracture of the middle third of the clavicle. Moreover, the physical examination revealed some prominence of the right clavicle, as well as a decreased range of motion in the right shoulder. Dr. Al-Amin diagnosed the claimant with a right shoulder injury and pain. He opined that the claimant may lift as tolerated, that he can reach overhead but may have difficulty with above-right-shoulder work, that he can handle objects without difficulty, that he has no difficulty sitting but prolonged standing or walking may be problematic, and that he may have some difficulty climbing stairs. The ALJ determined that Dr. Al-Amin's opinion was entitled to significant weight.[6] [R. 34].

         In July 2014, State agency medical consultant, Karen Hulett, M.D. (“Dr. Hulett”), found on Initial Review that the claimant does not have any severe medical impairments. [Exhibits 1A, 2A]. In November 2014, on Reconsideration, State agency medical consultant, Shakoora Omonuwa, M.D. (“Dr. Omonuwa”), opined that the claimant can perform medium work, except that he can frequently reach in front and / or laterally, and frequently reach overhead with his right upper extremity, and that he must avoid concentrated exposure to pulmonary irritants. [Exhibits 5A, 6A]. The ALJ gave the opinions of the State agency physicians significant weight. [R. 35].

         VE Hearing Testimony

         During the administrative hearing before the ALJ, John D. Blakeman, an impartial VE, characterized the claimant's past relevant work as a Store Laborer as “Laborer, Stores” (Dictionary of Occupational Titles (“DOT”) 922.687-058), which is considered medium and unskilled work with a Specific Vocational Preparation (“SVP”) level of 2. [R. 74-75; Exhibit 23E].

         The VE also initially identified the position of a Bagger, consistent with the claimant's identification of his past work. [R. 75; Exhibit 2E]. However, the VE stated that the position, although listed as a “Bagger” by the claimant, was more consistent with a Store Laborer classification.[7] [Exhibit 5E]. The claimant performed this work within the past 15 years, at substantial gainful activity levels and for a duration that would have allowed him to learn the job. [Exhibits 5E, 12D].

         VE Responses To Post-Hearing Vocational Interrogatories

         As noted supra, the ALJ supplemented the medical record in this case following the administrative hearing. As a result, the ALJ did not have the benefit of the most up-to-date medical findings to present to a VE at the hearing. The ALJ submitted written vocational interrogatories to the VE for responses. [Exhibit 23E]. The VE's interrogatory responses stated that, given the claimant's age, education, experience, and RFC, the hypothetical claimant would be capable of performing the claimant's past relevant work as a Store Laborer. [Exhibit 23E at 1]. The ALJ deemed the VE's testimony consistent with the information contained in the DOT pursuant to SSR 00-4p. Therefore, in comparing the claimant's RFC with the demands of his past relevant work, the ALJ found that the claimant is able to perform the Store Laborer position as it is generally performed. [R. 36].

         Alternatively, the ALJ also found that the claimant was capable of performing other jobs existing in the national economy. [R. 36-37]. To determine the extent to which these limitations erode the unskilled medium occupational base, the ALJ asked the VE whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and RFC. [R. 37; Exhibit 23E]. The VE's response to the interrogatory stated that, given all of these factors, the individual would be able to perform the requirements of representative occupations such as: Laundry Worker (DOT # 361.685-018, medium and unskilled work, SVP of 2, with approximately 29, 000 jobs in the national economy) and Housekeeping, Cleaner (DOT # 323.687-014, light and unskilled, SVP of 2, with approximately 926, 000 jobs in the national economy). [Exhibit 23E]. The ALJ again found that the VE's testimony concerning the step five inquiry was consistent with the DOT. [R. 37]. Based upon the interrogatory responses submitted by the VE, the ALJ found that, considering the claimant's age, education, work experience, and RFC, the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy. [R. 37].

         II. Standard of Review

          An individual is considered to be disabled if he is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). The impairment or impairments must result from anatomical, psychological, or physiological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques and must be of such severity that the claimant is not only unable to do his previous work but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. See 42 U.S.C. §§ 423(d)(2) and (3).

         “We review the Commissioner's decision to determine if it is supported by substantial evidence and based upon proper legal standards.” Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. at 1440. “Even if the evidence preponderates against the [Commissioner's] factual findings, we must affirm if the decision reached is supported by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). “‘We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].'” Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11thCir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). “The burden is primarily on the claimant to prove that he is disabled, and therefore entitled to receive Social Security disability benefits.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing 20 C.F.R. § 404.1512(a)). Under the regulations as promulgated by the Commissioner, a five step sequential procedure is followed in order to determine whether a claimant has met the burden of proving his disability. See Doughty, 245 F.3d at 1278; 20 C.F.R. §§ 404.1520, 416.920. At step one, the claimant must prove that he is not engaged in substantial gainful activity. See id. The claimant must establish at step two that he is suffering from a severe impairment or combination of impairments. See id. At step three, the Commissioner will determine if the claimant has shown that his impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See Doughty, 245 F.3d at 1278; 20 C.F.R. §§ 404.1520, 416.920. If the claimant is able to make this showing, he will be considered disabled without consideration of age, education, and work experience. See id. “If the claimant cannot prove the existence of a listed impairment, he must prove at step four that his ...


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