Sullivan v. Berryhill

• Decision Date: 09 January 2018
• Docket Number: No. 2:16-00083,2:16-00083
• Parties: SHANE LEE SULLIVAN, Plaintiff, v. NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

SHANE LEE SULLIVAN, Plaintiff, v. NANCY BERRYHILL,ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 2:16-00083

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NORTHEASTERN DIVISION

January 9, 2018

Judge Trauger/Brown

To: The Honorable Aleta A Trauger, United States District Judge.

REPORT AND RECOMMENDATION

This action was brought under 42 U.S.C. §§ 405(g) and 1383(c) for judicial review of the final decision of the Social Security Administration (SSA) through its Commissioner denying plaintiff's applications for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 416(I) and 423(d), and Supplemental Security Income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. For the reasons explained below, the undersigned RECOMMENDS that plaintiff's motion for judgment on the administrative record (Doc. 15) be DENIED and the Commissioner's decision AFFIRMED.

I. PROCEDURAL HISTORY¹

Plaintiff filed applications for DIB and SSI on January 30, 2013, alleging a disability onset date of January 24, 2013 in both instances. Plaintiff alleged disability due to injuries resulting from a single-car accident on January 24, 2013, i.e., neck pain, right hip fracture, knee pain, and possiblenerve issues. (Doc. 10, pp. 131, 141, 144, 216) Both claims were denied initially on May 24, 2013, and upon reconsideration on September 18, 2013.

Plaintiff requested a hearing before an ALJ on October 1, 2013. A hearing was held before ALJ George Evans on June 24, 2015. Plaintiff was represented at the hearing by attorney John Windle. Vocational expert (VE) Jane Hall testified at the hearing.

The ALJ entered an unfavorable decision on August 12, 2015 (Doc. 10, pp. 20-36), after which plaintiff filed a request with the Appeals Council on September 9, 2015 to review the ALJ's decision (Doc. 10, 17-19). The Appeals Council denied plaintiff's request on August 10, 2016. (Doc. 10, pp. 1-7)

Plaintiff brought this action through counsel on October 10, 2016 (Doc. 1), following which he filed a motion for judgment on the administrative record on April 24, 2017 (Doc. 15). The Commissioner responded in opposition May 25, 2017. (Doc. 21) Plaintiff did not reply. This matter is now properly before the court.

II. EVIDENCE²

A. Documentary Evidence

Plaintiff was airlifted to the Vanderbilt University Medical Center on January 24, 2013. He was provided emergency medical treatment, hospitalized briefly, discharged on January 26, 2013, and provided follow-on care through July 25, 2013. (Doc. 10, pp. 325-46, 350-52)

B. Kathryn Galbraith, Ph.D., evaluated plaintiff on September 9, 2013 on referral from the Tennessee Disability Determination Services (DDS). (Doc. 10, pp. 368-72) Dr. Galbraith summarized her evaluation as follows:

Mr. Sullivan appears to fall into the borderline range of intellectual functioning, though no formal intellectual testing was done at this time. He showed evidence of moderate impairment in his short term memory function. He showed evidence of moderate impairment in his concentration abilities. He showed evidence of moderate impairment in his long term and remote memory functioning.

His current psychiatric state was depressed. He shows evidence of a moderate impairment in his social relating. He appears to be moderately impaired in his ability to adapt to change. He appears able to follow instructions, both written and spoken. He appears to have had a stable work history. He appears unable to handle finances.

(Doc. 10, pp. 371-72) The evaluation was based on a clinical interview and mental status examination. Dr. Galbraith diagnosed plaintiff with adjustment disorder and depressed mood (Axis I), and borderline intellectual functioning (Axis II). (Doc. 10, p. 372) The only record before Dr. Galbraith at the time of the evaluation was an adult function report completed and signed by Beverly Sullivan - plaintiff's mother - on July 19, 2013.³,⁴ (Doc. 10, pp. 252-59, 368)

Plaintiff presented for a physical assessment on September 10, 2013. (Doc. 10, p. 377) Thereafter, on September 22, 2013, Dr. Michael Cox, M.D., completed a form captioned "MEDICAL ASSESSMENT TO DO WORK-RELATED ACTIVITIES (PHYSICAL)" - hereinafter Dr. Cox's medical source statement (MSS) - based on the "09/10/13" clinical record.⁵ Dr. Coxopined that plaintiff could: 1) lift 20lbs. occasionally in an 8-hour day; 2) lift 5 lbs. frequently in an 8-hour day; 3) stand, walk or sit a total of 2 hrs. in an 8-hour day, 30 mins. without interruption; 4) never climb, balance, stoop, crouch, kneel, or crawl; 5) not reach, bend, push or pull for no more than 2 hrs. in an 8-hour day. (Doc. 10, pp. 374-75)(bold omitted)

On September 17, 2013, Dr. Fawz Schoup, Ph.D., conducted a psychological assessment of plaintiff's record, and completed a mental residual functional capacity (RFC) assessment, upon reconsideration. (Doc. 10, pp. 101-02, 105-06) Dr. Schoup, who considered Dr. Galbraith's September 2013 report, noted that there was "no evidence of cognitive impairments." (Doc. 10, p. 101) Dr. Schoup also determined that plaintiff had the mental RFC to: 1) "understand and remember . . . low level detailed tasks"; 2) "maintain [concentration, performance, and persistence] for low level detailed tasks"; 3) "interact with the public on [an] occasional basis," but was not otherwise significantly limited in his social interaction; 4) "adapt to gradual change." (Doc. 10, pp. 120-21)

Plaintiff was evaluated by Roy Bilbrey, Ph.D., on June 28, 2015 following the administrative hearing. (Doc. 10, pp. 390-98) Plaintiff requested that Dr. Bilbrey perform "a psychological evaluation for the purpose of providing the information to his attorney to be included in his application for social security benefits . . . [and] requested that all results of the evaluation be forwarded to his attorney, Mr. John Mark Windle." (Doc. 10, p. 390) Dr. Bilbrey wrote the following relevant entries in his report based on clinical interview, mental status examination, and Wechsler Adult Intelligence Scale (WAIS)-IV and Wide Range Achievement Test-3 testing:

Mr. Sullivan was alert and oriented in all spheres. His speech was spontaneous and he was relevant and coherent. . . . His affect appeared to be within normal limits . . . . He denies the presence ofany hallucinations, delusions, or other deviant mentations or thought disorders. . . . His immediate memory is adequate . . . . His memory for recent events is adequate . . . . His memory for remote events appears to be adequate . . . . He did not appear to have any difficulty concentrating. His judgment and reasoning abilities appear to be adequate . . . . He is capable of thinking in abstract terms . . . . His stream of thought is adequate . . . .

. . .

Mr. Sullivan . . . did not appear to have any difficulty concentrating throughout the process.

. . .

Mr. Sullivan is capable of relating to others and interacting and communicating effectively with them.

. . .

The scores on the Wechsler Adult Intelligence Scale-IV do not accurately represent Mr. Sullivan's level of intellectual functioning. The scores predict academic achievement, and Mr. Sullivan appears to have learning disabilities in the areas of reading and mathematics computation. His Processing Speed was also considerably low, as was his Verbal Comprehension. Word knowledge and general factual knowledge would require good reading ability. He is definitely not mentally deficient, and his true level of intellectual functioning is estimated to be in the Low Average range. . . .

(Doc. 10, pp. 391-92) Dr. Bilbrey diagnosed plaintiff with a reading and mathematics disorder, but rendered no diagnosis as to personality disorder or mental retardation (Axis II). (Doc. 10, p. 393)

Dr Brent Staton⁶ completed a physical medical assessment on July 9, 2015, hereinafter Dr. Staton's MSS. Dr. Staton opined that plaintiff: 1) could lift 15 lbs. occasionally in an 8-hour day; 2) could lift 5 lbs. frequently in an 8-hour day; 3) could stand or walk a total of 2 hrs. in an 8-hour day, 30 mins. without interruption; 4) could sit 2-3 hrs. in an 8-hour day, 30 mins. withoutinterruption; 5) could never climb, balance, stoop, crouch, kneel, or crawl; 6) was limited in his ability to reach, bend, push or pull. (Doc. 10, pp. 380-82)

B. The Administrative Hearing

The ALJ established the following upon initial questioning of plaintiff: 1) plaintiff graduated from high school with a special education diploma (Doc. 10, pp. 48-49); 2) he was unable to read, write, or spell well (Doc. 10, pp. 48-49); 3) but for his physical limitations, his depression alone would not prevent him from working (Doc. 10, p. 51).

The colloquy below transpired between the ALJ and counsel pertaining to records of intelligence testing:

ALJ: Do we have any IQ testing, Mr. Windle, in the record?

ATTY: No, sir, Galbr[ai]th . . . did no formal testing, but f[ound] that borderline . . . .

ALJ: But no school records that you could obtain . . . . I think I looked through them, but I couldn't find any IQ scores. Any IQ scores?

ATTY: No . . . I'm sorry, your honor, there's no IQ scores. It['s] . . . just reflective of his Department of Education high school certificate, which he says he got partial requirements. . . . Everything's applied math and agriculture. He basically took special ed classes . . . .

ALJ: You'd think there'd have been some testing along the way.

ATTY: Yeah, your honor, I would think so. That's . . . what they sent me. But I can go back and check that again. . . . At that period of time, there's usually . . . an intelligence scale.

(Doc. 10, pp. 54-55) Plaintiff's attorney adduced the following upon subsequent questioning of plaintiff: 1) he could read "some words" in a newspaper, but not "big words" (Doc. 10, p. 58); 2) hisability to concentrate varied (Doc. 10, p. 60); 3) his short term memory was limited (Doc. 10, p. 60).

The ALJ asked the VE provide an assessment of plaintiff's work history at the conclusion of co...