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Jared Bular v. Michael Astrue

October 31, 2011


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


I. Introduction

Plaintiff, Jared Bular, brought this action pursuant to 42 U.S.C. ' 405(g), for judicial review of the final determination of the Commissioner of Social Security (ACommissioner@) which denied his application for disability insurance benefits (ADIB@) under Title II of the Social Security Act (AAct@), 42 U.S.C. " 401-403.

II. Background

Plaintiff was born on April 11, 1983, and was twenty-six years old at the time the Administrative Law Judge ("ALJ") issued his decision. (R. 15). He is a high school graduate, capable of communicating in English, and has worked approximately 20 hours per week as a stock room laborer at a Dick‟s sporting goods store ("Dick‟s") since 2007. According to Plaintiff, his job duties include unloading trucks, cleaning, and conducting general maintenance around the store. (R. 27). He also testified that on occasion his employer assigned him to stand by the front door of the store to greet customers. (R. 27-28).

Other than the position at the sporting goods store, Plaintiff has no past relevant work experience. (R. 15).

Plaintiff alleges disability as of January 1, 2006, due to a learning disability, Asperger‟s syndrome, attention deficit disorder, and asthma. Although Plaintiff worked after his alleged onset date, the ALJ determined that Plaintiff‟s earnings were below the threshold for a finding of substantial gainful activity. (R. 11).

A. Plaintiff‟s Physical Health History

While Plaintiff took medication for asthma and allergies, the record reflects that he does not suffer from any physically disabling conditions. (R. 162, 287, 292). For example, Plaintiff indicated in a disability function report submitted to the state agency that he could walk three miles or more without rest and had no other difficulties walking. (R. 143). Furthermore, after a July 9, 2007 check-up, Plaintiff‟s primary care physician Harry Silvis, M.D., reported that Plaintiff had not experienced an asthma attack since 2002. (R. 299). Approximately one year later, Dr. Silvis noted that Plaintiff was working regularly and only using his inhaler (Maxair) once per week. (R. 295).

B. Plaintiff‟s Mental Health History

In late September 1991, Plaintiff underwent the Wechsler Intelligence Scale for Children, Revised Test, which was given by a school psychologist, Evelyn Ruschel. (R. 110). Plaintiff, who was then ten years old, registered a verbal IQ of 80, a performance IQ of 84, and a full scale IQ of 80; taken together, the results revealed low average intelligence. (R. 110, 167, 175, 224, 230). Prior tests had showed a range of intelligence scores, including an IQ score of 108 when Plaintiff was five years old, based on the Stanford-Binet Intelligence Scale-Form L-M. (R. 167, 169, 224-25). According to Plaintiff‟s school psychologist, such variation was consistent with a learning disability, and the IQ score was only a minimal assessment of Plaintiff‟s actual intellectual capabilities. (R. 177, 229). As a result of the test scores, Plaintiff was placed in learning support classes from the second grade onward. (R. 135). He also received speech therapy. (R. 263). When he was in high school, however, he was mainstreamed under an individual education program. (R. 205-08).

On December 6, 2001, Plaintiff was administered the Wechsler Adult Intelligence Scale IQ Test, Third Edition ("WAIS-III"), on which he registered a full scale IQ of 72, placing him in the borderline range of intellectual functioning. (R. 182, 242). A few months later, on April 18, 2002, he was again administered the WAIS-III, the results of which showed a full scale IQ of 77, a verbal IQ of 75, and a performance IQ of 83. (R. 189, 232). Plaintiff‟s full scale IQ again placed him in the borderline range of intellectual functioning.

(R. 195). However, Nikolas Martin, Ed.D., who administered the test, opined that the results mildly underestimated Plaintiff‟s true intellectual functioning. (R. 236). In his view, Plaintiff could handle training and employment-related experiences of a mildly complex nature and was "best suited for mildly complex visual related activities linked to the [r]ealistic realm that may involve assembly, repair, maintenance or installation related activity." (R. 195, 236). Furthermore, Dr. Martin concluded that, despite Plaintiff‟s arithmetic disability, and reading decoding, reading comprehension, spelling, and expressive writing comprehension deficits, he had average nonverbal visual reasoning-related abilities, good physical health with both fine and gross motor skills intact, and a high degree of vocational motivation. (R. 201, 203, 239-40).

On June 21, 2006, Plaintiff began seeing a psychologist, Avril D. Zaharoff, Ph.D., for treatment of his ADD, at the recommendation of Dr. Silvis. (R. 309, 245-46). Plaintiff saw Dr. Zaharoff until October 20, 2006, when he started working at a toy factory. (R. 252).

Two months later, on December 20, 2006, Plaintiff, who was having difficulty functioning in a work situation, began seeing Ravi Kant, M.D., at the recommendation of the Pennsylvania Office of Vocation Rehabilitation (R. 247-48, 255-57, 263, 327-28). During his initial visit with Plaintiff, Dr. Kant noted that he appeared "calm and pleasant and somewhat shy and reluctant to talk." (R. 263). Additionally, he displayed no obvious symptoms of depression, anxiety, or psychosis and did not have behavioral issues. (R. 263). Dr. Kant opined that Plaintiff had borderline intellectual functioning and mild dysarthria. (R. 263).

Dr. Kant further opined that Plaintiff appeared to be somewhat concrete in his thinking process, but his insight and judgment were fair. (R. 263). As a result of his findings, Dr. Kant diagnosed Plaintiff with Asperger‟s disorder and ADD without hyperactivity, for which he prescribed Adderall. (R. 263).

On January 17, 2007, Dr. Kant noted that Plaintiff was tolerating his dosage of Adderall, which seemed to increase his ability to pay attention at home. (R. 265). Although Plaintiff experienced a few sleepless nights and lost weight, he had no major side effects. (R. 265). Accordingly, Dr. Kant continued Plaintiff on Adderall. (R. 265).

One month later, Dr. Kant reported that Plaintiff continued to respond well to Adderall and felt "more alert with medication and able to do things without being told." (R. 267). In addition, according to Dr. Kant‟s treatment notes, Plaintiff was continuing to stay busy around the house, but had not been in any work situations. (R. 267). After the checkup, Dr. Kant raised Plaintiff‟s Adderall dosage to 30 milligrams. (R. 268).

At their next visit on April 12, 2007, Dr. Kant reported that Plaintiff experienced no side effects from his medication. (R. 269). He also indicated that Plaintiff was calm, pleasant, and interactive, with no obvious symptoms of depression or anxiety. (R. 269). Furthermore, it was noted that Plaintiff was scheduled to begin a job shadowing program, which, according to Dr. Kant, Plaintiff "fe[lt] good about it." (R. 269). On June 14, 2007, Dr. Kant again indicated in his notes that Plaintiff continued to experience no medication side effects. (R. 269). Dr. Kant also noted that Plaintiff had obtained a part-time job with a cabinet maker and that he "fe[lt] good about it." (R. 269).

Dr. Kant next saw Plaintiff on August 9, 2007, at which time he reported that Plaintiff continued to work one or two days a week with the cabinet maker. (R. 274). According to Dr. Kant‟s notes, Plaintiff was struggling with his mood because he had received "many rejections when [he] put in [job] applications." (R. 274). On the other hand, Dr. Kant also indicated that Plaintiff had been doing many things on his own without being told as often. (R. 274).

Before Plaintiff‟s next appointment with Dr. Kant, he obtained a job at Dick‟s in Washington, Pennsylvania. (R. 275). On October 11, 2007, Dr. Kant recorded in his notes that Plaintiff was happy about his new job. (R. 275). Dr. Kant also opined that Plaintiff was doing better in taking initiative and doing things while on Adderall. (R. 276).

Over the next several months, Dr. Kant documented that Plaintiff‟s mental health condition remained stable. For example, in early December 2007, Dr. Kant remarked that Plaintiff was doing well at work, although his hours had recently been cut due to the holidays.

(R. 275). On January 31, 2008, Dr. Kant noted that Plaintiff had been feeling happy overall because he was doing well at work, he had stopped ...

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