United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
BROWN UNITED STATES MAGISTRATE JUDGE.
brings this action under 42 U.S.C. § 405(g), seeking
judicial review of the Social Security Commissioner's
denial of his applications for disability insurance benefits
and supplemental security income under Titles II and XVI of
the Social Security Act. For the following reasons, the
Magistrate Judge RECOMMENDS that Plaintiff's Motion
for Judgment upon the Administrative Record (Doc. 13) be
DENIED and the Commissioner's decision be AFFIRMED.
applied for disability benefits in June 2013, alleging an
onset date of November 1, 2007. (AR, pp.
274-287). He later amended his alleged onset date to
May 12, 2013. (Id. at 318). His applications were
denied on initial review and upon reconsideration.
(Id. at 102-159, 163-168, 174-181). After an
administrative hearing (Id. at 46-101), the ALJ
issued an unfavorable notice of decision (Id. at
21-45). The Appeals Council declined to review the ALJ's
decision. (Id. at 1-6). Plaintiff thereafter
appealed the Commissioner's decision to this Court. (Doc.
1). Presently pending is the fully briefed
Plaintiff's Motion for Judgment upon the
Administrative Record. (Docs. 13, 14, 17, 18). This
matter has been referred to the undersigned for a Report and
Recommendation (“R&R”). (Doc. 19).
REVIEW OF THE RECORD
is legally blind in his left eye and has a history of left
knee surgery and reduced range of movement in his neck and
spine. Summary diagnosis of legal blindness in
Plaintiff's left eye is noted in the record. (See,
e.g., AR, p. 497). Arthroscopic surgery was performed on
Plaintiff's knee in October 2005. (Id. at 554).
His neck limitation reportedly was caused by a car accident
in 1995, and though it did not result in gross neurological
deficits, x-rays revealed probable acute right cervical
radiculopathy. (Id. at 555). Plaintiff presented to
Marathon Chiropractic for reduced range of movement and pain
in his spine in March 2015. (Id. at 639). He was
expected to make a full recovery, and treatment notes from
his regular appointments show improvement of his symptoms,
decrease in pain, and improved activities of daily living.
(Id. at 645-653).
additionally contends with ulcerative colitis. A biopsy in
September 1995 revealed severe active acute colitis.
(Id. at 547). Treatment notes show his condition was
overall much better in December 1995. (Id. at 548).
The condition was again confirmed by a colonoscopy in 2002
and a biopsy in 2005 which showed evidence of mild chronic
active colitis. (Id. at 549, 551). In 2002,
Plaintiff reported he had not taken his medication for over a
year and his symptoms had not been too bad. (Id. at
551). In the records provided, Plaintiff consistently denied
gastrointestinal or genitourinary complaints and did not
report chronic flares to his medical providers. (Id.
at 374, 448, 467-468, 476, 487-488, 495-496, 583-584,
590-591, 604-605, 611-612, 620-621, 629-630).
addition, Plaintiff presented to Gateway Medical Center and
the Montgomery Health Department from 2013 to 2014 for a
garden variety of maladies, including an allergic reaction to
an herbal supplement, bronchitis, ADD, depression,
prediabetes, skin tags, rashes, erectile dysfunction, flu
symptoms, numbness, and insomnia. (Id. at 374-425,
436-466, 523-537). Plaintiff displayed appropriate behavior
during his visits to Gateway Medical Center (Id. at
374, 449) and displayed an inappropriate reaction during a
visit at Montgomery County Health Department for which he
later apologized (Id. at 406).
2007 to 2015, Plaintiff received treatment for a number of
mental impairments, including Autism spectrum disorder, major
depressive disorder, ADD/ADHD, and Asperger's disorder.
(Id. at 467-511, 565-638). This care was primarily
provided during office visits with Shabeer Abubucker, M.D.,
and counseling sessions with John DeMarco, LPC-MHSP, at
Centerstone. Treatment notes show one visit in 2007, visits a
couple of times a year from 2009 to 2014, and nearly monthly
visits in 2014 and 2015. He missed several appointments
between 2014 and 2015. (Id. at 475, 486, 587).
his visits, Plaintiff reported depression, noise and visual
sensitivity, trouble establishing and following through with
priorities, irritability, ADD, forgetfulness, trouble
focusing, and mood swings. (Id. at 467-511,
565-638). Plaintiff endorsed thoughts of suicide in February
2012 (Id. at 507), but he consistently denied
suicidal or homicidal ideation in every subsequent visit.
(Id. at 467, 476, 487, 495, 583, 590, 604, 611, 620,
each visit with Dr. Abubucker, Plaintiff was casually
groomed, alert and oriented, and displayed mild impairment in
recent and remote memory. (Id. at 468, 477, 488,
496, 584, 591, 605, 612, 621, 630). He displayed a normal
mood and appropriate affect on all but two occasions during
which he was irritated or angry. (Id.). He was
focused during a majority of the visits. (Id. at
468, 477, 488, 496, 621, 630). In March 2015, Plaintiff
reported he was trying to make a video of his life and his
difficulties. (Id. at 604). Over the course of
Plaintiff's treatment, Dr. Abubucker prescribed Concerta,
Zyprexa, Cymbalta, Hydroxyzine, Wellbutrin, Neurontin,
Risperdal, Depakote, Lamictal, Trazodone, Clonidine,
Venlafaxine, Viagra, Abilify, Methylphenidate, Methylin,
Valproic acid, and Ritalin. (Id. at 574-575). Dr.
Abubucker settled on prescriptions for Concerta, Zyprexa,
Cymbalta, and Hydroxyzine. (Id. at 574).
from LPC DeMarco's counseling sessions generally noted
slight improvement in Plaintiff's goals. (Id. at
471, 473, 483, 492, 577, 594, 602, 627, 637). These goals
included handling angry feelings, identifying anger triggers
and appropriate responses, resolving interpersonal conflicts,
communicating and interacting with others, mood stabilization
and tolerance to change, and coping with sound and light
sensitivity. (Id. at 471, 473, 481, 483, 492, 501,
577, 594, 602, 624, 627, 633, 637). No progress was made in
several sessions (Id. at 483, 501, 624, 633), and a
decline was noted in one session (Id. at 481).
function report, Plaintiff described a typical day. He wakes
up between 8 a.m. and noon, takes care of personal needs,
takes his medication, fixes a simple meal, spends time online
checking his email-sometimes he gets distracted for hours
online-performs chores, goes shopping, makes dinner and
watches Netflix in the evening, and goes to bed between 1
a.m. and 5 a.m. (Id. at 335). Plaintiff reported he
has difficulty choosing and organizing his attire and he
frequently needs to use the restroom. (Id. at
335-336). He can wipe down countertops, clear the table,
sweep the floor, and wash dishes. (Id. at 337). He
goes outside several days a week and can drive while wearing
sunglasses but not at night. (Id. at 337-338). He
shops for groceries several times a week at smaller stores.
(Id. at 338). He can count change and use a
checkbook, but he does not pay bills or handle a savings
account. (Id. at 339). He interacts with a friend
once or twice a week, speaks with his mother on the phone,
and occasionally receives emails from friends and family.
(Id.). He attends a men's group through his
church weekly and attends church three times a month.
(Id. at 340). He generally takes notes on his laptop
during church services. (Id.). He reported trouble
lifting, squatting, standing, reaching, walking, kneeling,
talking, hearing, climbing stairs, seeing, remembering,
completing tasks, concentrating, understanding, following
verbal instructions, using his hands, and getting along with
others. (Id. at 341-342). He said he does not get
along with authority figures and does not handle stress or
changes in routine well. (Id. at 342-343). He made
similar statements in a second function report. (Id.
Wilson, M.D., performed a consultative evaluation on July 2,
2014. (Id. at 426). Plaintiff's visual acuity
with glasses was 20/40 with the right eye and with both eyes.
(Id.). Though Plaintiff could perceive light with
his left eye, he could not see the eye chart or count
Cheah, Psy.D., performed a consultative psychological
evaluation on July 16, 2014. (Id. at 429). Plaintiff
reported he could not manage his own finances but could
manage his medication, prepare elaborate meals, wash dishes,
vacuum, sweep, do laundry, drive weekly, watch television,
read about politics, socially interact with a friend, and
attend church occasionally. (Id. at 433). Dr. Cheah
found Plaintiff had an average range of intellectual
functioning, showed moderate impairment in his ability to
sustain concentration, and had no evidence of short-term,
long-term, or remote memory impairment. (Id.).
Plaintiff was anxious and showed evidence of a moderate
impairment in social relating and the ability to adapt to
change. (Id.). He could follow spoken and written
instructions, and he could handle finances. (Id.).
agency medical consultant Charles Settle, M.D., opined
Plaintiff did not suffer from severe impairments.
(Id. at 107, 120). On reconsideration, state
examiner James Millis, M.D., agreed with Dr. Settle.
(Id. at 135-136, 149-150).
examiner Jayne Dubois, Ph.D., found no evidence of repeated
episodes of decompensation and found moderate restriction of
activities of daily living, social functioning, and
maintaining concentration, persistence, or pace.
(Id. at 108, 121). Dr. Dubois opined Plaintiff could
maintain concentration, persistence, and pace for simple,
low-level detailed, and higher level multi-step tasks with
infrequent interruptions. (Id. at 111, 124).
Plaintiff could perform at a consistent pace with customary
breaks and due to mental health symptoms would infrequently
be absent or be unable to complete a normal work day.
(Id.). Plaintiff could interact superficially with
people, but he would work better with objects, and feedback
and criticism should be supportive. (Id. at 111,
124-125). He could additionally adapt to infrequent change.
(Id. at 112, 125). On reconsideration, state
examiner Andrew Phay, Ph.D., agreed with Dr. Dubois.
(Id. at 136, 140-141, 150, 154-155).
Abubucker completed a mental residual functional capacity
(“RFC”) assessment on January 15, 2015.
(Id. at 538-540). Dr. Abubucker opined Plaintiff was
moderately limited in the ability to remember locations and
work-like procedures, carry out very short and simple
instructions, ask simple questions or request assistance,
maintain socially appropriate behavior and adhere to basic
standards of neatness and cleanliness, and be aware of normal
hazards and take appropriate precautions. (Id.). He
further opined Plaintiff was markedly limited in his
abilities to maintain attention and concentration for
extended periods, perform activities within a schedule,
maintain regular attendance and be punctual within customary
tolerances, sustain an ordinary routine without special
supervision, work with others without being distracted by
them, make simple work-related decisions, complete a normal
workday and work week without interruptions from
psychologically based symptoms and perform at a consistent
pace without an unreasonable number and length of rest
periods, interact appropriately with the general public,
accept instructions and respond appropriately to criticism
from supervisors, get along with coworkers or peers without
distracting them or exhibiting behavioral extremes, respond
appropriately to changes in the work setting, set realistic
goals or make plans independently of others, and understand,
remember, and carry out detailed instructions.
(Id.). Dr. Abubucker opined Plaintiff could not
manage his funds. (Id. at 540).
Abubucker also submitted evaluations for Plaintiff based on
listing 12.04, affective disorders, and listing 12.06,
anxiety related disorders. (Id. at 542-546). He
opined Plaintiff was mildly restricted in activities of daily
living, markedly limited in social functioning, extremely
limited in concentration, persistence, and pace, and
experienced four or more episodes of decompensation of
extended duration. (Id. at 544). With respect to
affective disorders, Dr. Abubucker opined Plaintiff has
repeated episodes of decompensation and an environmental
change would trigger such an episode. (Id. at 545).
He opined the anxiety related disorder resulted in complete
inability to function independently outside of the home, but
he noted this was not a chronic occurrence. (Id. at
DeMarco submitted a letter on Plaintiff's behalf on June
30, 2015. (Id. at 541). He opined Plaintiff would be
unsuccessful in a work environment because he was late to
appointments, had trouble remembering appointments and to
take his medications, was easily agitated, had a sleep
disturbance, had trouble with interpersonal relationships,
and had significant light and sound sensitivities.
(Id.). Dr. Abubucker also signed the letter.
Davis, CFNP, from the Vanderbilt Department of
Gastroenterology, submitted a letter on Plaintiff's
behalf on October 8, 2015. (Id. at 654). CFNP Davis
explained Plaintiff had suffered from
“debilitating” ulcerative colitis for twenty
years and was being treated with a drug called Asacol.
The Administrative Hearing
was terminated from his job at a radio station due to
financial cutbacks. (Id. at 56). He asked his former
boss, “Would you say that my social clumsiness-type
things added to your decision for me being let go?” and
“Could you say in good faith if SSDI came to you, could
you say in good faith that some of my social clumsiness were
part of your decision-making in letting me go?”
(Id.). According to Plaintiff, his former boss
agreed to say those things. (Id.). Plaintiff then
took a job at Centerstone, where he worked as a peer
counselor. (Id. at 65). He stated he was fired
because he “escalated” on his supervisor.
(Id. at 66). Plaintiff testified he declined
under-the-table work because he did not want to jeopardize
his chance of receiving benefits. (Id. at 52).
testified his mental conditions are due to a mental breakdown
he had in 2007; this event was described as a panic attack
while he drove to work one day. (Id. at 52-54).
Whereas he had no trouble grocery shopping before 2007, he
testified he is now overwhelmed by the noises, volume of
people, and wide selection of products. (Id. at 59).
He now shops at smaller stores, like Dollar General.
(Id.). Plaintiff also testified to no driving issues
before 2007. (Id. at 60). Since 2007, however,
Plaintiff stated he cannot drive at night because headlights
hurt his brain. (Id.). His light sensitivity extends
to any lights, including the white background of a computer
screen. (Id. at 61). Plaintiff stated he was on a
stable medication regimen and while Dr. Abubucker recently
prescribed Zyprexa to stabilize Plaintiff's mood swings,
Zyprexa made him sleep too much. (Id. at 83-84).
stated he recently moved into public housing and was living
by himself. (Id. at 58). He attends church about
twice a month and does not go more frequently because he is
overwhelmed by sensory input. (Id. at 61-63). He
suggested he leaves his house once a day to buy groceries at
the nearby Dollar General. (Id. at 63). Plaintiff
stated he spends a lot of time looking at websites and
talking to people through online social networks-spending up
to eight hours online every day. (Id. at 84-85).
testified he has suffered from colitis for thirty years and
that he needs to use the restroom eight to twelve times a day
when he has a flare. (Id. at 67-68). A urinary tract
disorder causes additional bathroom visits. (Id. at
68). He also testified to extreme insomnia causing him to be
awake for three days in a row. (Id. at 67-68).
stated he has left-hand limitations which have not been
officially diagnosed. (Id. at 72-73). With his left
hand, Plaintiff can open doors but not jars, pick up objects
from a table, hold a writing utensil, and hold, raise, and
lower a full mug. (Id. at 77-78). Plaintiff stated
he cannot type with his left hand and must often revise his
typing. (Id. at 77).
testified his vision prevents him from working with small
objects, he can read 12-point font, he frequently trips over
objects on the floor, he can fold a cardboard box, and he can