Jayson J. v. Saul

• Decision Date: 07 February 2020
• Docket Number: CIVIL NO. 2:19cv175
• Parties: JAYSON J., Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Indiana

JAYSON J.¹, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.

CIVIL NO. 2:19cv175

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA

February 7, 2020

OPINION AND ORDER

This matter is before the court for judicial review of a final decision of the defendant Commissioner of Social Security Administration denying Plaintiff's application for Disability Insurance Benefits (DIB) and Supplemental Security Insurance (SSI), as provided for in the Social Security Act. 42 U.S.C. § 423(a), § 1382c(a)(3). Section 405(g) of the Act provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g).

The law provides that an applicant for disability insurance benefits must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mentalimpairment is "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). It is not enough for a plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude the plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).

Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner's] findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed, 42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).

In the present matter, after consideration of the entire record, the Administrative Law Judge ("ALJ") made the following findings:

1. The claimant has not engaged in substantial gainful activity since February 29,2016, the application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairments: anxiety, autistic disorder, a personality disorder, and a seizure disorder (20 CFR 416.920(c)).

3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform work at all exertional levels, except he can occasionally balance, but he [can] never climb ladders, ropes, or scaffolds, never work at unprotected heights, never around moving mechanical parts, and never operate a motor vehicle for work. He is limited to performing simple, routine, repetitive tasks; simple work-related decisions; and few changes in a routine work setting. He can never tolerate exposure to the general public. He can work in proximity to others, but only with brief, incidental interaction with others and no tandem job tasks requiring cooperation with other workers to complete the task. Also, he can work where supervisors occasionally interact with him throughout the work day.

5. The claimant has no past relevant work (20 CFR 416.965).

6. The claimant was born on September 10, 1991 and was 24 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).

7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964).

8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).

9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).

10. The claimant has not been under a disability, as defined in the Social Security Act, since February 29, 2016, the date the application was filed (20 CFR 416.920(g)).

(Tr. 17 - 22).

Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability benefits. The ALJ's decision became the final agency decision when the Appeals Council denied review. This appeal followed.

Plaintiff filed his opening brief on November 1, 2019. On December 11, 2019, the defendant filed a memorandum in support of the Commissioner's decision, to which Plaintiff replied on January 2, 2020. Upon full review of the record in this cause, this court is of the view that the ALJ's decision must be remanded.

A five-step test has been established to determine whether a claimant is disabled. See Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 2290-91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test as follows:

The following steps are addressed in order: (1) Is the claimant presently unemployed? (2) Is the claimant's impairment "severe"? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled.

Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.

In his application for disability, Plaintiff alleged impairments including autism and related disorders, Asperger's Syndrome, seizure disorder, and a cyst in his brain. (AR 69.)

Plaintiff was diagnosed with severe (AR 73, 85) autism spectrum disorder (AR 199, 314,429) which was characterized as pervasive developmental disorder ("PDD") and Asperger's Syndrome (AR 403, 472.) His Asperger's Syndrome was documented formally as such in the record. (AR 403.) These disorders caused Plaintiff to have difficulty with changes in routine, tasks, and being in social settings, as he became easily overwhelmed. (AR 250, 313, 436.) In some assessments, care providers characterized his difficulty in social situations as an anxiety disorder. (AR 472); (see also AR 73, 85, 314.)

Plaintiff's seizure disorder was documented in the record as a severe type of minor motor seizure (AR 73, 85) and complex partial seizure (AR 403.) This type of seizure disorder caused Plaintiff to have focal seizures, where he would freeze and stare off for a while before becoming aware of his surroundings again. (AR 47-48, 52, 257.) He had these seizures a few times a week. (AR 49, 53, 403.) Plaintiff suffered from seizure disorder since he was about eight or nine years old. (AR 312.) In his childhood he suffered multiple severe convulsive seizures that caused left temporal lobe damage and resulted in severe short and long-term memory problems. (AR 312, 403.) An EEG in March 2010 showed left temporal theta slowing, meaning abnormal brain activity in that area, which is a common finding in young adults with developmental slowing and sometimes causes drowsiness and affects sleep cycles which Plaintiff had, by way of drowsiness throughout the day and difficulty falling sleeping and staying asleep. (AR 249, 403-04). In April 2013, a repeat EEG showed no abnormality in the left temporal region of the brain but left temporal theta slowing can be intermittent depending on the severity of the dysfunction so the latest scan cannot necessarily show that this abnormality no longer affects Plaintiff. Id. He had not had a convulsive seizure since 2006, but continued to have memory issues as a result of the brain damage he suffered. (AR 403, 491.) Due to his memory problems, Plaintiff could notremember things day to day, had difficulty following directions, and needed continuous reminders to do any chores around the home. (AR 44-45, 250, 491.)

Plaintiff's cyst was documented in the record by an MRI that showed a cyst on his pineal gland. (AR 404.)

Plaintiff's medical record was reviewed initially by Amy S. Johnson, Ph.D. (AR 78), and on reconsideration by Kenneth Neville, Ph.D. (AR 91), and he additionally underwent a consultative assessment by ...