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Kellet v. Saul

United States District Court, E.D. Pennsylvania

September 30, 2019




         Robert Kellet (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) to obtain review of the decision of the Commissioner of Social Security denying his claim for supplemental security income (“SSI”). He has filed a Request for Review to which the Defendant has responded. It is recommended that the relief sought by Plaintiff should be denied and the decision of the Commissioner of Social Security should be affirmed.


         Plaintiff received SSI benefits as a child due to his cognitive and academic difficulties. On February 4, 2011, those benefits were terminated. (Tr. 57.) Plaintiff filed his current SSI application on June 24, 2014, when he was twenty-five years old. The application was denied at the initial level. (Id. at 63.) Because Plaintiff's application is for SSI benefits, the relevant period at issue is from June 24, 2014, the date he protectively filed his application, through June 1, 2017, the date of the ALJ's decision. See 20 C.F.R. § 416.501 (SSI claimant cannot receive SSI payments for any period that precedes the month in which SSI application is filed).

         A hearing was held before Administrative Law Judge Kathleen McDade on June 1, 2017, at which Plaintiff, represented by counsel, and Vocational Expert (“VE”) Patricia Scott, appeared and testified.[1] (Id. at 32-55.) ALJ McDade issued an unfavorable decision on June 1, 2017, finding that Plaintiff has severe mental impairments, specifically an intellectual disorder and schizoaffective disorder bipolar type, but that Plaintiff failed to prove that his mental impairments would prevent him from performing work involving simple, routine tasks, simple decision-making, simple judgments, few workplace changes, the same station or location from day to day, no assembly line, tandem, or teamwork, no contact with the general public, and only occasional interaction with coworkers. (Id. at 18-26.) With these limitations, the ALJ found that Plaintiff could perform work existing in the national economy, with representative occupations being hospital cleaner, artificial flower sticker, hand bander, and truck washer. (Id. at 27-28.) The ALJ ultimately concluded that Plaintiff had not been disabled from June 24, 2014 through June 1, 2017. (Id. at 28.)

         A. Plaintiff's Early Life and Education

         Plaintiff was born in December of 1988. (Tr. 286.) He failed to demonstrate satisfactory educational progress, repeated fifth grade, and had difficulty with reading comprehension and basic arithmetic. (Id. at 325.) In the fifth grade, Plaintiff underwent a Comprehensive Evaluation Report (“CER”), which showed that he was “working much lower than what would normally be expected for a child his age and at his grade level.” (Id.) As part of the CER, the Wechsler Intelligence Scale for Children III (“WISC III”)[2] was administered and Plaintiff scored a Verbal IQ of 72, a Performance IQ of 60, and a Full Scale IQ of 64. (Id. at 308.) Plaintiff scored below average on every subtest, most notably in Information, Arithmetic, Digit Span, Picture Completion, Picture Arrangement, and Block Design. (Id.) Plaintiff was also given a Wechsler Individual Achievement Test (“WIAT”)[3] to measure his progress in reading and mathematics. (Id. at 310.) The WIAT revealed that Plaintiff read at the 2.7 grade level and performed mathematics at the 2.1 grade level. (Id. at 308.) As a result of the testing, Plaintiff was given an Individualized Education Program (“IEP”). (Id. at 317.) When Plaintiff was fourteen years old in 2002, he received SSI benefits due to his cognitive and academic difficulties. (Id. at 57.)

         B. Plaintiff's Psychiatric Treatment

         On August 23, 2014, Plaintiff attempted suicide and on January 17, 2015, he began receiving psychiatric treatment at Albert Einstein Healthcare. (Id. at 327, 363.) The intake report indicated his complaints of depression, sleep difficulties, persistent sadness, appetite fluctuations, difficulty concentrating, suicidal ideations, and decreased interest in formerly-enjoyed activities. (Id.) Plaintiff also reported persistent irritability and mood swings, stating that “people talk[ed] about him” and that “no one [was] on [his] side.” (Id.) He frequently ruminated on death in his family and failed interpersonal relationships. (Id. at 327.) As a result, he thought that “[he didn't] belong here anymore, ” and had daydreams about committing suicide by stepping in front of a bus or train. (Id.) Plaintiff acknowledged a history of self-mutilation by cutting. (Id.) He reported difficulty maintaining jobs and that he was often fired for being distractible. (Id. at 328.) Plaintiff also noted positive relationships with his family and friends in the past, including his step-father, but that he was not seeing them regularly while living with a girlfriend. (Id.) In a mental status examination, Plaintiff reported a depressed mood with a sad and restricted affect and described some suicidal ideation, but he also exhibited logical and goal directed thought process, appropriate thought content, no abnormal issues with orientation or cognition, and fair insight and judgment. (Id. at 330.) Plaintiff appeared underweight and displayed some psychomotor retardation (slow movement or speech), but he was dressed appropriately and satisfactorily groomed and made good eye contact. (Id.) Further, Plaintiff “reported that he is skilled interacting with children and animals, that he has good social skills, and is a caring person.” (Id.) The examining psychiatrist, Dr. Kleven, diagnosed recurrent Major Depressive Disorder and noted Plaintiff's social isolation and prescribed him medication and therapy. (Id. at 331.) Plaintiff attended only one therapy session, where it was noted that he had difficulty changing thoughts, had “[o]vergeneralized and vague negative thoughts, ” and reported ongoing suicidal thoughts. (Id. at 340-343.)

         Twenty months later on August 23, 2016, Plaintiff returned to treatment at NHS Human Services because he reportedly wanted to reduce the frequency and severity of his flashbacks and depression and “to get my SSI.” (Id. at 363, 364.) As part of the intake, Liu Yalin, LCSW, completed a Strengths Based Comprehensive Assessment. (Id. at 361-65.) Plaintiff complained of insomnia, argumentativeness, depression, a learning disability, and auditory command hallucinations. (Id. at 361.) The therapist noted that Plaintiff was lethargic with reported fainting episodes, his mood was depressed, his affect was flat, and his thought content was paranoid and delusional. (Id. at 364.) Plaintiff reported that he was getting “bipolar medication” from a family physician, but there is no evidence of that treatment in the record. (Id. at 361.) Plaintiff also reported that he was skilled with “computer, technology skills.” (Id. at 362.)

         Dr. Irina Chikvashvili, D.O., an NHS psychiatrist, examined Plaintiff and noted his complaints of difficulty sleeping, low frustration tolerance, argumentativeness, mood swings, depression, auditory command hallucinations, visual hallucinations of spirits, and flashbacks. (Id. at 361, 363.) Plaintiff's appearance was neat and appropriate, his behavior was guarded but cooperative, his thought process was logical, speech normal, insight and judgment were fair, memory was intact and his fund of information was consistent with his background. (Id. at 364.) Plaintiff's estimated intelligence/cognitive ability was “average.” (Id.)

         One month later, Dr. Chikvashvili noted Plaintiff's reported daily auditory hallucinations that sometimes commanded him to kill himself and his reported visual hallucinations of spirits, particularly of his deceased grandparents. (Id. at 355.) Plaintiff reported having mood swings, depression, paranoia and avoiding people. (Id.) He reported intermittent suicidal ideations and a history of fist-fights. (Id. at 357.) Plaintiff also reported nightmares, flashbacks, and hypervigilance and that his step-father abused him from ages 11 to 16 and nearly killed him on several occasions by attempting to drown Plaintiff, hang him over a bannister, and beat him almost to death. (Id. at 355.) Plaintiff also reportedly witnessed the stabbing and shooting of his friend in 2008. (Id. at 355.) Dr. Chikvashvili diagnosed Plaintiff with bipolar type schizoaffective disorder, learning disability, and posttraumatic stress disorder (“PTSD”) and prescribed him medication with a fair prognosis. (Id. at 359, 360.)

         During follow-up appointments in October and December of 2016, Dr. Chikvashvili noted Plaintiff's reported paranoia and auditory and visual hallucinations, although Plaintiff reportedly took Risperdal[4] daily. (Id. at 370-72.) Plaintiff's mental status was “stable or improved” or “improving.” (Id. at 345, 347, 369-370, 371-372.) Plaintiff had a sad and anxious mood and constricted affect but his speech was normal, his thought process and associations were intact and normal, he was fully oriented, his memory was intact, his fund of knowledge was adequate, his insight and judgment were fair, his concentration was fair, and his language was intact. (Id. at 370, 372.) A Behavioral Health Treatment Plan recorded reported symptoms of mood lability, low self-concept, low frustration-tolerance, flashbacks, auditory hallucinations, visual hallucinations, paranoia, and racing thoughts but with reported improvement. (Id. at 351-354.)

         C. Consultative Examination Report

         Plaintiff saw consultative examiner William Davis, Psy.D., on October 17, 2014. (Tr. 273-85.) Dr. Davis' testing was consistent with Plaintiff's earlier IQ testing: his Full Scale IQ and Processing Speed Index were 59. (Id. at 277.) Plaintiff's Verbal Comprehension Perceptual Reasoning, Working Memory, and Processing Speed Composites were extremely low and Dr. Davis diagnosed Plaintiff with an intellectual disability, major depressive disorder, and anxiety disorder. (Id. at 278.) Dr. Davis performed the Wide Range Achievement Test, Fourth Edition (“WRAT-IV”), [5] which showed that Plaintiff read at ¶ 5.4 grade level. (Id. at 276.)

         Plaintiff complained of difficulty falling asleep, lost appetite, and recent weight loss. (Tr. 273.) He noted severe depression with sadness, crying spells, worthlessness, hopelessness, low energy, and recurrent suicidal thoughts; he had recently “thought of jumping off a bridge, or being hit by a train.” (Id. at 274.) He reported daily anxiety symptoms with excessive worry and apprehension, difficulty recalling previously learned material and learning new material, and comprehending spoken and written instructions. (Id.) Dr. Davis noted that Plaintiff presented as immature, with a poor manner of relating to others, and poor social skills. (Id.) He found that Plaintiff had lethargic motor behavior, word finding difficulties, a confused thought process, depressed affect, and dysthymic mood. (Id. at 275.) Plaintiff's memory skills were impaired, his cognitive functioning was below average, and his general fund of information was likely limited. (Id.) Dr. Davis opined that Plaintiff would not be able to manage his own funds. (Id. at 279.)

         D. ALJ Hearing, Unfavorable Determination, and Appeals Council Denial

         Plaintiff testified at the ALJ hearing that he had several jobs, but that these jobs all ended very quickly and he was fired because he was “disorganized, ” his mind would become distracted, and he would forget what he was doing. (Tr. 40-41.) He tried to read children's books, but often had to re-read them in order to understand their contents, and he used a cell phone, but people often did not understand his text messages that he sent. (Id. at 44-45.) He related that he only cooked simple meals (described as toasting waffles) because he burned more complicated meals. (Id. at 46.) He stated that he experienced nightmares every night because he witnessed his friend's murder (Tr. at 47), auditory and visual hallucinations every day (Id. at 48), and suicidal thoughts every three days. (Id. at 49.)

         The ALJ issued an unfavorable decision. (Id. at 15-31.) She found only two severe impairments: intellectual disorder and schizoaffective disorder, bipolar type. (Id. at 20.) She did not consider PTSD among Plaintiff's severe impairments. (Id.) The ALJ found that Plaintiff did not meet or equal the criteria of a listed impairment. (Id. at 20-23.) She stated that Listings 12.05.B.1 and 12.05.B.2 were met “as school records indicate IQ scores performed by school psychologists were similarly low (testing done in 2000 showed a . . . Full Scale IQ of 64), and, in 9th grade, he was functioning at the 3rd and 4th grade levels for math, writing and reading.” (Id. at 22.) The ALJ stated that “the claimant's condition does not satisfy requirements of 12.05.B.3.” (Id.) She did not mention that Plaintiff was awarded SSI as a child, and found moderate limitations in understanding, remembering, or applying information and in concentrating, persisting, or maintaining pace. For both categories, she cited an identical list of activities that Plaintiff could perform, rather than any medical evidence. (Id. at 21.) The ALJ found moderate limitations in interacting with others because Plaintiff could “go[] out with friends occasionally and socialize[] with family members, . . . had a long-term relationship, lived with his girlfriend for a while, had visitation with his daughter, . . . and was engaged to be married.” (Id.) Finally, the ALJ found mild limitations in adapting or managing oneself because “he [was] able to take care of his personal needs without assistance, have a girlfriend [with] whom he had lived and have a long-term relationship, socialize with friends and family members, and have no problems with doctors, babysit, and work and hold a job.” (Id.) The ALJ concluded that “[t]hese factors indicate a greater level of functional independence and life/work skills than have been alleged.” (Id. at 23.)

         The ALJ found that Plaintiff had “the residual functional capacity to perform a full range of work at all exertional levels” with some non-exertional limitations. (Id.) She stated that “the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence.” (Id. at 25.) To support this conclusion, she slightly reworded the list of activities that she cited while describing Plaintiff's ability to understand, remember, or apply information or to concentrate, persist, and maintain pace. (Id. at 21, 25-26.) The ALJ also discredited Plaintiff's history of auditory and visual hallucinations, stating that “[n]o one has observed him responding to internal stimuli despite his intermitted reports of hearing and seeing things.” (Id. at 25.) Finally, she opined without citing to medical support, that “[w]hile he has had consistently low IQ scores…, his adaptive functioning has exceeded these IQ scores.” (Id. at 23.)

         The ALJ gave some weight to opinions that predated Plaintiff's alleged onset of disability: she gave partial weight to a consultative examination report dated January 13, 2011, and she found persuasive January 25, 2011 and July 19, 2011 Disability Determination Service assessments. (Id. at 24, 26.) All three opinions were given during Plaintiff's previous application. Partial weight was given to the opinion of Dr. Davis, but the ALJ noted that “[she found] no support for any marked limitations and [that] the residual functional capacity [did] exclude complex tasks and limits changes to a minimum.” (Id. at 26.) The ALJ gave partial weight to the opinion of Dr. Poloni, who assessed Plaintiff's case at the initial level of review, noting that “the undersigned has assigned greater limitations in social functioning [than Dr. Poloni] based on the longitudinal record.” (Id.)

         Plaintiff asks this Court to vacate the ALJ's decision on the basis that the ALJ erroneously found that he did not meet or equal in severity Listing 12.05. He contends that he meets the criteria of Listing 12.05B.2 and that the ALJ's finding to the contrary resulted from her disregarding valid evidence. He also contends that the ALJ erred by “continuously citing innocuous transitory activities” to prove that he was not disabled, and improperly weighing the medical opinions of record.

         Plaintiff argues that the ALJ erred by focusing on minor achievements to disprove disability, simply providing a list of activities that he could do, without explaining the relevance of these activities, and by failing to assess more pertinent medical evidence. Plaintiff also argues that the ALJ continuously provided legally inadequate and sparse analysis of his Intellectual Disorder and downplayed the severity of his symptoms in order to find that he did not meet listing 12.05B.2. Plaintiff asks this Court to vacate the ALJ's decision on the basis that the ALJ erroneously found that he did not meet or equal in severity Listing 12.05. He contends that he meets the criteria of Listing 12.05B.2, and that the ALJ's finding to the contrary resulted from her disregard of valid evidence, her error in continuously citing innocuous transitory activities to prove that Plaintiff was not disabled, and improperly weighing the medical opinions of record. Finally, Plaintiff alleges that the ALJ relied on her own lay observations and opinions about Intellectual Disability and did not base her decision on any relevant opinion evidence.


         The role of this Court on judicial review is to determine whether there is substantial evidence in the administrative record to support the Commissioner's final decision. Any findings of fact made by the Commissioner must be accepted as conclusive, provided that they are supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence” is deemed to be such relevant evidence as a reasonable mind might accept as adequate to support a decision. Richardson v. Perales, 402 U.S. 389, 407 (1971)(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). See also Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 507 U.S. 924 (1993). Thus, the issue before this Court is whether the Commissioner's final decision of “not disabled” should be sustained as being supported by substantial evidence. Moreover, apart from the substantial evidence inquiry, a reviewing court must also ensure that the ALJ applied the proper legal standards in evaluating a claim of disability. Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984). This Court's review of legal questions presented by the Commissioner's decisions is plenary. Schaudeck v. Comm'r of Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999).

         To prove disability, a claimant must demonstrate that there is some medically determinable basis for an impairment that prevents her from engaging in any ‘substantial gainful activity' for a statutory twelve-month period. 42 U.S.C. § 423(d)(1). Each case is evaluated by the Commissioner according to a five-step process:

The sequence is essentially as follows: (1) if the claimant is currently engaged in substantial gainful employment, [he] will be found not disabled; (2) if the claimant does not suffer from a “severe impairment, ” [he] will be found not disabled; (3) if a severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last continually for at least twelve months, then the claimant will be found disabled; (4) if the severe impairment does not meet prong (3), the Commissioner considers the claimant's residual functional capacity (“RFC”) to determine whether [he] can perform work [he] has done in the past despite the severe impairment - if [he] can, [he] will be found not disabled; and (5) if the claimant cannot perform [his] past work, the Commissioner will consider the claimant's RFC, age, education, and past work experience to determine whether [he] can perform other work which exists in the national economy. See id. § 404.1520(b)-(f).

Schaudeck, 181 F.3d at 431-32 (3d Cir. 1999). The claimant bears the burden of proof at steps one through four, while the burden shifts to the Commissioner at the fifth step to establish that the claimant is capable of performing other jobs in the local and national economies, in light of her age, education, work experience and residual functional capacity. Poulos v. Comm'r of Social Sec., 474 F.3d 88, 92 (3d Cir. 2007).


         A. Whether the ALJ Erred by Focusing on Minor Achievements to Disprove Disability

         Plaintiff contends that the ALJ erred by “continuously citing innocuous transitory activities” to prove that he was not disabled. Plaintiff contends that the ALJ relied upon minor activities and copied and pasted a near-identical list of daily activities at three points in her Decision. In addition, according to Plaintiff, the ALJ erred by over-emphasizing the activities that he could perform. (Tr. 21, 25-26.) Plaintiff also contends that the ALJ fell short of her statutory duties by drawing unreasonable inferences based on these activities.

         Plaintiff cites Frankenfield v. Bowen, in which the Third Circuit held that the ALJ erred by overly-relying on certain activities of daily living. Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988). The ALJ summarily found that “[t]he claimant's contentions with respect to [his functional limitations] … [were] inconsistent with” the record. Id. at 407. Thus, the ALJ determined that the claimant was not disabled, but “point[ed] to no [medical] evidence tending to support [this] conclusion.” Id. at 408. The Court found that the ALJ erred because he rejected “medically credited symptomatology based solely on … [his] observation of the claimant at the hearing, and [the] claimant's testimony that he took care of his personal needs, performed limited household chores, and occasionally went to church, ” and the case was remanded for further consideration of the claimant's functional limitations. Id. Plaintiff contends that the ALJ erred similarly in this case because she did not explain her basis for attributing weight to these transitory activities and she ignored other pertinent evidence. Plaintiff contends that the ALJ repeated this list of activities to support her conclusions, without explaining the relevance of these activities to her conclusions.

         As noted by Defendant, the ALJ considered Plaintiff's reported activities in the step three finding, when the ALJ found that Plaintiff's impairments, including his intellectual disorder, did not meet the criteria for a listed impairment (Tr. 20-23), and in the RFC finding, when the ALJ found that Plaintiff could perform a reduced range of unskilled work. (Id. at 23-26.) Defendant correctly notes that Plaintiff bore the burden of proof with respect to these findings. At step three, Plaintiff was required to prove that his impairments were so severe that they met all of the requirements of a listed impairment, such that Plaintiff could be presumed to be unable to perform any gainful activity, and the ALJ found only that Plaintiff failed to meet his burden of proof due, in part, to the activities he performed during the relevant period. (Id. at 20-26.)

         Under the substantial evidence standard, a reviewing court should not disturb a finding of the ALJ as long as more than a scintilla of evidence supports an inference drawn by an ALJ. The ALJ found Plaintiff's reports about his activities did not support his allegations about being unable to function due to intellectual disorder and other mental health impairments. (Id. at 20-26.) Defendant points to the following record evidence which provides more than the necessary scintilla of evidence to support this finding:

• Plaintiff watched children, ages 3 and 6, once or twice a week for 3-4 hours a day, took them to school, and make sure they were behaving themselves when at home. (Tr. 43.) Plaintiff read children's books to his nephew, although he reported that he sometimes had to go back and read them again to understand them. (Id. at 44.)
• Plaintiff worked part-time as a host and bussed tables at Famous Dave's, a barbecue restaurant, for about a year during the end of the relevant period. (Id. at 39-40, 163.) Plaintiff reported that he was let go from this job on July 4, 2016, because he refused to come in on his day off. (Id. at 40.)
• Plaintiff completed community college coursework. (Id. at 328.)
• Plaintiff performed household chores, like cleaning his room, washing dishes, preparing simple meals, doing laundry, and taking out the trash. (Id. at 44, 179, 181, 187, 287.) Both Plaintiff and his mother reported that he finished his chores if he started them, and, although he may need written instructions explained, that he ...

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