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Wolfe v. Berryhill

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

June 21, 2017

LUCAS WOLFE
v.
NANCY BERRYHILL, [1] ACTING COMMISSIONER OF SOCIAL SECURITY

          MEMORANDUM

          THOMAS A. WISEMAN, JR. SENIOR U.S. DISTRICT JUDGE

         Pending before the Court is Plaintiffs Motion for Judgment on the Administrative Record (Docket No. 23). For the reasons stated herein, Plaintiffs Motion is GRANTED.

         INTRODUCTION

         On August 18, 2009, Plaintiff filed an application for disability insurance benefits, alleging diabetes, hip-back injury, and severe anxiety-depression, with an onset date of January 1, 2007. Administrative Record ("AR"), found at Docket No. 12, p. 170.[2] His claim was denied initially and on reconsideration, and Plaintiff then filed a timely written request for a hearing. An Administrative; Law Judge (" AL J") held a hearing on March 7, 2012, at which Plaintiff and his wife testified, as did j a vocational expert. AR, pp. 35-98.

         The ALJ found that Plaintiff was not disabled under the Social Security Act ("SSA"). AR, | pp. 16 and 28. The ALJ found that Plaintiff is under a disability, but a substance use disorder is a contributing factor material to the determination of disability and, therefore, Plaintiff is not disabled (under the SSA. Id., pp. 15-16.

         ADMINISTRATIVE HEARING

         Plaintiffs wife, Emily Wolfe, testified at the hearing that, when her husband becomes psychotic, he is delusional, hears voices and thinks that either unseen forces or someone is trying to hurt him. AR, p. 42. She stated that most of the time when he is psychotic, Plaintiff has absolutely no clue what is going on and does not even remember a lot of things. Id., p. 43. She testified about Plaintiffs various medications and how they helped or did not help Plaintiff. For example, she stated that he did not do well with Haldol; he was not psychotic on Risperdal, but it had strong side effects (sleepiness and sluggishness) and he had a hard time maintaining focus; and Ability did not control his psychotic disorder (it "just didn't work."). Id., pp. 44-46, 49 and 51. She also testified that the most effective medication for Plaintiff is Risperdal and she trusts him to be alone with their children when he is compliant with that medication. Id., p. 67.

         Mrs. Wolfe testified that she did not think Plaintiff was using any illegal drugs at the time of the hearing and that she was not aware of Plaintiff s using any drugs other than marijuana. AR, p.62. She also testified about Plaintiffs use of alcohol, including a night when he had been drinking and attacked her. Id., pp. 63-64. She stated that Plaintiff does not participate in any kind of drug or alcohol rehabilitation. Id., p. 65. She testified that the reason Plaintiff could not meet the demands of a full-time job, even though he is better on the Risperdol and is not smoking pot, is because he "needs lots and lots of sleep, " has a "really short attention span, " and cannot "maintain the focus to follow through on things." Id., p. 69.

         Plaintiff testified that he graduated from high school and has credit for two college courses. AR, pp. 70-71. He testified that the last time he worked was in 2005 or 2006, as a landscape foreman. Id., p. 72. He stated that the majority of the work he had done in the past 15 years was framing houses, landscaping and brick masonry, which involved lots of heavy, manual labor. Id., pp. 75-76. Plaintiff testified that he was "drinking and drugging" when he did this work and he has used marijuana, LSD and cocaine. Id., p. 76. He said that the last time he smoked marijuana was about a month and a half before the hearing. Id.

         Plaintiff testified that he drives his children to school and to their grandparents' house and drives sometimes to the grocery store and restaurants. AR, pp. 79-80. He testified that what prevents him from working now is the medication he takes, Risperdol. Id., p. 80. When asked why he would not be able to perform a job like he used to (landscaping or carpentry work), Plaintiff answered:

I don't remember ever not really having an episode at one of my jobs, where I felt like someone was messing with me or someone was having an influence and impact on my life that, you know, would lead me to thinking irrationally or to get scared. So I don't see that that would ever change even if I got a job in the near future. My attention span on the medication is not really as strong as it used to be when I was younger,

AR, p. 81.

         Plaintiff testified that he was being treated for his mental impairments at The Guidance Center in Franklin, Tennessee, and medical personnel there prescribe his medications. AR, pp. 82-83. Plaintiff stated that, for fun, he sometimes went kayaking, but that, at the time of the hearing, he did not do a whole lot other than take care of the kids. Id., pp. 84-85. He stated that he was "not real, real effective" with keeping his home straight and picked up. Id., p. 85.

         When asked why he had so many employers (27) in the past, Plaintiff testified:

Just, I never stayed at a job long, whether it be that I couldn't handle it physically or if I mentally ran into problems with maybe someone that I worked with. I had problems with people that I worked with in the past. Sometimes I just, the redundancy of work sometimes just got to me where I couldn't handle it.

AR, p. 85. Plaintiff also testified about being neglected and abused when he was a child. Id., pp. 86-87. He testified about having fear and anxiety, which are better on the Risperdol, and about getting sluggish in the afternoon and being really tired in the evenings. Id., p. 88.

         The vocational rehabilitation counselor, Gail Ditmore, testified that she had reviewed the exhibits from Plaintiffs file to familiarize herself with Plaintiff s vocational background. AR, p. 90. She testified that Plaintiff s prior jobs, landscape foreman and framer, are both heavy exertion level jobs, based on lifting and carrying things. Id., p. 91.

         The ALJ posed a hypothetical question to Ms. Ditmore as follows----assuming a person with Plaintiffs age, education and work experience who could perform somewhat between light and medium exertional work, occasionally lift and carry up to 40 pounds, frequently lift and carry up to 20 pounds, do the same amount of pushing and pulling with similar weights, stand and/or walk a total of 6 hours during an 8-hour workday and sit for up to 8 hours in an 8-hour workday, could understand and remember only simple one to-three step tasks, concentrate and persist on such tasks for two-hour periods with normal routine breaks, interact with supervisors at least two-thirds of the workday, and interact with co-workers and the general public only one-third of the workday, could adapt to limited change and could set limited independent goals[3] - could that person perform any of Plaintiffs former past work? AR, p. 92. Ms. Ditmore testified that the past work was not possible. Id. She also testified, however, that there are other unskilled occupations in the national economy that such a person would be able to perform - assemblers, cleaners and dishwashers. Id., pp. 92-93.

         Plaintiffs counsel changed the hypothetical question to add the following limitations: interruptions caused by psychologically based symptoms and an unreasonable number and length of rest periods for at least 10% of the time. Ms. Ditmore responded that no work would be possible with those added limitations. AR, p. 94. Similarly, when Plaintiffs counsel added limitations for 10% of the time in the ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances, Ms. Ditmore said that no work would be possible. Id., pp. 95-96. Plaintiffs counsel posited that the hypothetical person also had "marked" limitations[4] in the ability to maintain attention; marked impairment in the ability to work in coordination with or in proximity to others without being unduly distracted; marked limitation in the ability to accept instructions and respond appropriately to criticisms from supervisors; marked limitations in the ability to get along with co-workers and peers without unduly distracting them or exhibiting behavioral extremes; marked limitation in the ability to respond appropriately to changes in a routine work setting; and the need for rest periods one to two and a half hours a day, at least two or three days a week.[5] With each limitation, Ms. Ditmore answered that no work would be possible. AR, pp. 96-97. Ms. Ditmore also testified that a marked limitation in one's ability to concentrate and persist, caused by medication sedation, would also preclude the jobs she had identified that Plaintiff could perform. AR, p. 97.

         THE FIVE-STEP INQUIRY

         The claimant bears the ultimate burden of establishing an entitlement to benefits by proving his "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The claimant's physical or mental impairment must result from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3).

         Moreover, disability under the Social Security Act means not simply that the individual is unable to perform his previous work, but that he cannot, considering his age, education, and work experience, engage in any other find of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. § 423(d)(2)(A). In addition, an individual shall not be considered to be disabled for purposes of determining disability if alcoholism or drug addiction would be a contributing factor material to the Commissioner's determination that the individual is disabled. 42 U.S.C. 423(d)(2)(C).

         In determining disability, the SSA and the ALJ consider a five-step sequential evaluation process. The Sixth Circuit has described these five steps as:

         (1) A claimant who is engaging in substantial gainful activity will not be found to be ...


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