United States District Court, N.D. Georgia, Atlanta Division
FINAL ORDER AND OPINION
F. KING UNITED STATES JUDGE
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.
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). 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].
Statement of Facts
ALJ found the following facts [R. 21-37] as modified
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. 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.
Evidence - Mental or Non-exertional Limitations
October 2014, the claimant attended a psychological CE with
Alexander Brikman, Psy.D. (“Dr. Brikman”).
[Exhibit 8F]. 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
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].
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
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].
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.
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. However, the ALJ also observed that
“Dr. Sweet's opinion actually seems somewhat
consistent with the [RFC].” [R. 32].
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].
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].
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].
/ Opinion Evidence - Physical or Exertional Limitations
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. [R. 34].
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].
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].
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. [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].
Responses To Post-Hearing Vocational Interrogatories
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].
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].
Standard of Review
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).
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 ...