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Joseph v. Berryhill

United States District Court, M.D. Tennessee, Nashville Division

June 13, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff 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.


         Plaintiff applied for disability benefits in June 2013, alleging an onset date of November 1, 2007. (AR, pp. 274-287).[1] 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).


         A. Medical Records[2]

         Plaintiff 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).

         Plaintiff additionally contends with ulcerative colitis.[3] 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).

         In 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).

         From 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).

         During 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, 629).

         During 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).

         Notes 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).

         B. Opinion Evidence

         In a 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. at 512-522).

         Woodrow 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 fingers. (Id.).

         E-Ling 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.).

         State 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).

         State 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).

         Dr. 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).

         Dr. 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 546).

         LPC 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. (Id.).

         Claire 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. (Id.).

         C. The Administrative Hearing

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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 see ...

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