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Joel Raymond Ruth v. Michael J. Astrue

May 31, 2011

JOEL RAYMOND RUTH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Yohn, J.

MEMORANDUM

Plaintiff, Joel Raymond Ruth, brings this action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3), seeking judicial review of the decision of the Commissioner of Social Security (the "Commissioner") denying his applications for disabled child's insurance benefits under Title II of the Social Security Act and for Supplemental Security Income ("SSI") under Title XVI of the Act. I referred the matter to a magistrate judge, who submitted a report and recommendation recommending that I affirm the Commissioner's decision to deny plaintiff disability benefits. Plaintiff has now filed objections to the magistrate judge's report. Although I reject plaintiff's argument that the record establishes his eligibility for disability benefits, because I cannot conclude that the Commissioner's determination at the final step of the evaluation process is supported by substantial evidence, I will sustain plaintiff's objections in part, and I will remand the matter to the Commissioner for further proceedings consistent with this memorandum.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural History

Plaintiff protectively filed applications for disabled child's insurance benefits and SSI on March 7, 2007, when he was eighteen years old and in the twelfth grade, alleging disability as of November 11, 1996, resulting from a central auditory deficiency, a speech impairment, learning difficulties, short-term memory loss, anxiety, and panic attacks. (R. 10, 49, 119.) The Social Security Administration denied plaintiff's claims for disability benefits on June 25, 2007. (R. 10, 52, 56.) Plaintiff timely filed a written request for a hearing, and a hearing was held before an administrative law judge ("ALJ") on November 12, 2008 (R. 10). Plaintiff, represented by counsel, testified at the hearing, as did his mother. The ALJ found that plaintiff was not disabled and issued an adverse decision denying both child's insurance benefits and SSI on December 1, 2008. (R. 10--18.) Plaintiff timely requested review by the Appeals Council. The Appeals Council denied this request for review on April 22, 2009, and as a result the ALJ's decision became the final decision of the Commissioner. (R. 1.)

Plaintiff filed this action on May 19, 2009, seeking review of the Commissioner's decision to deny him disability benefits. I referred the matter to a magistrate judge, who, in a report and recommendation dated October 28, 2010, concluded that the Commissioner's decision was supported by substantial evidence and thus recommended that I affirm the Commissioner's decision. Plaintiff has now filed objections to the magistrate judge's report, arguing that the magistrate judge erred in finding that the ALJ had considered all the relevant evidence in the record. Plaintiff argues that the magistrate judge "simply relied on the ALJ's recitation of the evidence instead of considering whether the evidence as a whole directs a different conclusion."

(Pl.'s Objections to the Report and Recommendation of the U.S. Magistrate Judge ("Pl.'s Objections") at 1.)

B. Factual Background

On November 11, 1996, when plaintiff was eight years old and in the second grade, he was diagnosed with a "central auditory process disorder." (R. 209--11.) He had been referred for an assessment of central auditory function "because of phonological delay and poor academic performance." (R. 209.) According to the evaluation report, plaintiff was "not comprehending letter sounds or the reading process." (Id.) Plaintiff had previously been evaluated by school personnel at the end of kindergarten, at which time they suspected a learning disability, and again in the first grade, at which time he was removed from the regular classroom for "special support services." (Id.) According to tests performed when he was in the first grade, plaintiff had a full-scale IQ of 87, a verbal IQ of 82, and a performance IQ of 96. (R. 232.)

Plaintiff received special-education services throughout the remainder of his schooling, and although he ultimately received a high-school diploma, he was reading and doing math at only a fourth-grade level. (R. 183.) During high school, plaintiff also attended Lehigh County Technical Institute, in the hospitality program (R. 129, 326), and after graduating from high school, plaintiff began a program, through his school district's intermediate unit, that provided additional instruction in reading and math. (R. 22--23, 29.)*fn1

Plaintiff's mental-health problems began to manifest themselves in 2003, when plaintiff was fourteen years old. After plaintiff reportedly burned his arm with a lighter because he was upset and had been feeling depressed since the death of his father's girlfriend, he was referred to a partial hospitalization program. (R. 244--45.) Plaintiff entered the Adolescent Transitions partial hospitalization program on May 6, 2003, and remained there until he was discharged on May 28, 2003. (R. 260.) At the time of admission, plaintiff reported experiencing hallucinations; he explained that at night he saw shadows that he believed were ghosts and demons that were going to harm him, and he also reported hearing strange, threatening voices. (R. 262.) Dr. William LeBoeuf, an adolescent psychiatrist who treated plaintiff while he was in the partial hospitalization program, diagnosed plaintiff with "major depressive disorder." (R. 260.) Dr. LeBoeuf assigned him a global assessment of functioning ("GAF") score of 30 at the time of admission (R. 263) and a GAF score of 40 at the time of his discharge (R. 260).*fn2 Dr. LeBoeuf prescribed certain medication and referred plaintiff to a clinic for outpatient therapy and medication management. (R. 261.)

Plaintiff was readmitted to the partial hospitalization program on September 10, 2003, as a result of anxiety attacks and hallucinations. (R. 268--69.) Upon admission, he was assigned a GAF score of 30. (R. 271.) He was discharged on September 30, 2003, with a diagnosis of anxiety disorder and was assigned a GAF score of 50 at that time. (R. 268.)*fn3

Plaintiff began outpatient therapy in December 2003. Following a psychiatric evaluation on March 3, 2004, Dr. Harold Heckman, the examining psychiatrist, reported that plaintiff "appeared to think and organize material in a very slow manner. It was hard for him to answer questions and he frequently needed the questions to be repeated." According to Dr. Heckman, plaintiff "was able to do one digit multiplication in his head correctly . . . but refused to attempt serial seven subtractions, failing to be able to subtract seven from one hundred."*fn4 Dr. Heckman noted that plaintiff's "affect was considerably flat," and that "[h]is thought was coherent but not always relevant and his goal direction was fairly poor." Dr. Heckman also noted that plaintiff had not recently experienced any hallucinations. Dr. Heckman assigned plaintiff a GAF score of 45 and recommended that he continue with his medication and therapy. (R. 274--75.)

In a medication progress note on December 16, 2004, Dr. Heckman observed that plaintiff was doing well, notwithstanding that he had discontinued his medications, and concluded that plaintiff's diagnoses of psychosis and anxiety were in remission. (R. 276.)

In connection with plaintiff's disability claims, plaintiff underwent a psychological examination by a consulting state-agency psychologist, Gerald A. Zimmerman, Ph.D. (R. 325.) In a report dated May 25, 2007, Dr. Zimmerman noted that plaintiff had "some hesitating speech" and that "[s]ometimes it appeared as if [plaintiff] had some trouble locating words," but that plaintiff "was able to communicate adequately" and "could easily be understood." (R. 326.) Dr. Zimmerman stated that plaintiff's "thought processes [were] responsive" and that he was "logical." (R. 327.) According to Dr. Zimmerman's report, plaintiff "worked on all of the tasks with minimal difficulties" and "persisted on the tasks." (R. 329.) Dr. Zimmerman observed that plaintiff "worked diligently and tried to do the best he could." (Id.) According to the report, plaintiff "was able to concentrate adequately" (R. 327) and displayed "adequate" judgment (R. 328).

Dr. Zimmerman noted that plaintiff's mood was "stable," although plaintiff reported that "[s]ometimes he does get depressed." Plaintiff reportedly said that he was not currently depressed and that he did not have any suicidal thoughts. Although plaintiff reported that he had had hallucinations when he was about fifteen years old, he reportedly denied any recent "perceptual disturbances." Dr. Zimmerman observed that plaintiff was "not fearful" and did "not demonstrate a great deal of anxiety." (R. 327.)

Plaintiff was given an intelligence test, and according to Dr. Zimmerman's report, plaintiff had a full-scale IQ of 74-which "indicates borderline intellectual functioning"-a verbal IQ of 73, and a performance IQ of 79. (R. 329.) Dr. Zimmerman noted that plaintiff's working memory was "quite limited" and that his "working memory index of 67 [brought] his overall [IQ] score down somewhat." (R. 330.) Looking at plaintiff's scores on the individual substests, Dr. Zimmerman observed that plaintiff "seems to do well with visual motor tasks." (R. 330--31.) "On the other hand," Dr. Zimmerman observed, "skills that represent concentration and attention were quite limited, especially when trying to manipulate numbers." (R. 331.) Dr. Zimmerman also noted that "[g]eneral vocabulary and verbal expressive skills were limited as well." (Id.)

Dr. Zimmerman diagnosed plaintiff with a learning disorder (central auditory processing disorder) and borderline intellectual functioning and assigned him a GAF score of 58. (R. 328.) He concluded that plaintiff could "do simple and repetitive tasks" and was "likely to work well on tasks that require repetition and routine." (R. 331.) He noted that plaintiff "seem[s] to be able to get along with people fairly well" and concluded that "in a world of work he is likely to relate fairly well." (Id.) According to Dr. Zimmerman, plaintiff "may work slowly but methodically," but "has the capability of showing motivation and putting forth effort." (Id.)

Dr. Zimmerman also completed a "medical source statement" assessing plaintiff's ability to do work-related activities. He reported that there were no or minimal limitations on plaintiff's ability to understand, remember, and carry out short, simple instructions and that there were moderate limitations on his ability to understand, remember, and carry out detailed instructions, as well as to make judgments on simple work-related decisions. Dr. Zimmerman further reported that there were no or minimal limitations on plaintiff's ability to interact appropriately with the public, supervisors, and co-workers, but that there were moderate limitations on his ability to respond appropriately to work pressures in a usual work setting as well as to respond appropriately to changes in a routine work setting. (R. 332--34.)

Plaintiff began seeing Dr. Arif Husain, a psychiatrist, on August 7, 2008. At his initial psychiatric evaluation, Dr. Husain observed that plaintiff spoke "softly and need[ed] time to process information and answer questions." Plaintiff reported that in the past he had been treated with medications but that he had stopped taking those medications. He reported that "he gets anxious and angry" and reported "episodes of panic attacks," but denied any recent "psychotic symptoms like hallucinations, delusions or paranoia" and denied that he had any "suicidal thoughts, ideations or plans." Dr. Husain stated that "[a] review of depression at this time shows mild depression and a review of mania shows an inability to focus or concentrate, with mild racing thoughts and irritable mood." Dr. Husain diagnosed plaintiff with bipolar disorder, as well as a learning disorder and borderline intellectual functioning, and assigned him a GAF score of 35. Dr. Husain prescribed new medication and noted that plaintiff "would benefit from individual therapy." He also recommended that plaintiff be referred to a work program so that he could work under supervision. (R. 398--99.)

After canceling two medication-management visits, plaintiff saw Dr. Husain again on September 18, 2008. Plaintiff reported that he was "doing well." Plaintiff "stated that his mood has been improved, but not totally," and because plaintiff reported "some anxiety and paranoia," Dr. Husain adjusted the dosage of his medication. (R. 401--03.)

Approximately one month later, on October 16, 2008, Dr. Husain completed a medical source statement assessing plaintiff's ability to do work-related activities. Dr. Husain stated that he had diagnosed plaintiff with bipolar disorder, a learning disorder, and "mental retardation unspecified" and in the accompanying checklist of symptoms, identified the following symptoms of plaintiff's disorder: poor memory; sleep disturbance; emotional lability; delusions or hallucinations; recurrent panic attacks; anhedonia or pervasive loss of interests; feelings of guilt or worthlessness; difficulty thinking or concentrating; suicidal ideation or attempts; oddities of thought, perception, speech or behavior; social withdrawal or isolation; manic syndrome; intrusive recollections of a traumatic experience; persistent irrational fears; generalized persistent anxiety; and pathological dependence or passivity. He stated that plaintiff had "severe mental illness" and assigned plaintiff a GAF score of 30. (R. 405.)

Dr. Husain stated that plaintiff was "unable to work" because of his "severe intellectual impairment and mood changes" and reported, by checking a box, that plaintiff's ability to perform the various mental activities associated with work was "poor or none." Specifically, Dr. Husain checked "poor or none" for fifteen of the sixteen listed mental activities: ability to remember locations and work-like procedures; ability to understand, remember, and carry out very short and simple instructions; ability to understand, remember, and carry out detailed instructions; ability to maintain attention and concentration for extended periods (e.g., 2 hours or more at a time); ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; ability to sustain an ordinary routine without special supervision; ability to work in coordination with or proximity to others without being distracted by them; ability to make simple work-related decisions; ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; ability to interact appropriately with the general public; ability to accept instructions and respond appropriately to criticism from supervisors; ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; ability to respond appropriately to changes in the work setting; ability to travel in unfamiliar places or use public transportation; and ability to set realistic goals or to make plans independently of others. (R. 406--09.)*fn5

At his disability hearing, plaintiff testified that he lived with his mother and seventeen-year-old sister (R. 22) and that he had never worked (R. 23).*fn6 He testified that he did not have any friends and had never had a girlfriend, and that he spent most of his time with his mother.

(R. 32.) According to plaintiff, he did not play sports (R. 23) but did "[a] little bit of walking" for exercise (R. 24). He spent a typical day playing video games, playing with action figures, and watching television. (R. 26.) He testified that he helped with some household chores, but only after repeated prodding from his mother. (R. 24--25.) He said that he attended church once or twice a month. (R. 24.)

When asked by the ALJ to explain "the problems you're experiencing that interfere with your ability to work," plaintiff replied that he has "anxiety attacks and . . . get[s] very nervous around people." (R. 25.) Plaintiff testified that he did not drive because he had anxiety attacks (R. 28) and that he had stopped attending the special program at the intermediate unit because he had "too many panic attacks" (R. 29). He explained that in high school, he had been in a small class, but at the intermediate unit, he was with more people, which made him nervous and scared him. (R. 29--30.) According to plaintiff, while attending the intermediate unit, he had panic attacks four or five times a week; the panic attacks lasted from "a half an hour to an hour" and caused him to feel "cold, shaky and overheated and sweaty." (R. 30.) He testified that when he had such a panic attack, his teacher would take him to the nurse's office, where he would stay until the attack subsided. (Id.)

Plaintiff testified that he has difficulty following both written and oral instructions as well as difficulty remembering things. (R. 30--31.) He also testified that he was easily distracted and that when he started something-such as a video game-he generally could not finish it, because he would get distracted. (R. 32.)

Plaintiff's mother also testified at the hearing. She testified that plaintiff could not handle money or make change, and that she handled his savings account for him. (R. 37.) She explained that he could use a washing machine, but only with assistance: "He would need somebody there basically over his shoulder to explain to him what he's supposed to do step-by-step." (R. ...


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