United States District Court, M.D. Tennessee, Northeastern Division
The Honorable Aleta A Trauger, United States District Judge.
REPORT AND RECOMMENDATION
Brown, United States Magistrate Judge.
action was brought under 42 U.S.C. §§ 405(g) and
1383(c) for judicial review of the final decision of the
Social Security Administration (SSA) through its Commissioner
denying plaintiff's applications for Disability Insurance
Benefits (DIB) under Title II of the Social Security Act (the
Act), 42 U.S.C. §§ 416(I) and 423(d), and
Supplemental Security Income (SSI) under Title XVI of the
Act, 42 U.S.C. §§ 1381 et seq. For the
reasons explained below, the undersigned
RECOMMENDS that plaintiff's motion for
judgment on the administrative record (Doc. 15) be
DENIED and the Commissioner's decision
filed applications for DIB and SSI on January 30, 2013,
alleging a disability onset date of January 24, 2013 in both
instances. Plaintiff alleged disability due to injuries
resulting from a single-car accident on January 24, 2013,
i.e., neck pain, right hip fracture, knee pain, and
possible nerve issues. (Doc. 10, pp. 131, 141, 144, 216) Both
claims were denied initially on May 24, 2013, and upon
reconsideration on September 18, 2013.
requested a hearing before an ALJ on October 1, 2013. A
hearing was held before ALJ George Evans on June 24, 2015.
Plaintiff was represented at the hearing by attorney John
Windle. Vocational expert (VE) Jane Hall testified at the
entered an unfavorable decision on August 12, 2015 (Doc. 10,
pp. 20-36), after which plaintiff filed a request with the
Appeals Council on September 9, 2015 to review the ALJ's
decision (Doc. 10, 17-19). The Appeals Council denied
plaintiff's request on August 10, 2016. (Doc. 10, pp.
brought this action through counsel on October 10, 2016 (Doc.
1), following which he filed a motion for judgment on the
administrative record on April 24, 2017 (Doc. 15). The
Commissioner responded in opposition May 25, 2017. (Doc. 21)
Plaintiff did not reply. This matter is now properly before
was airlifted to the Vanderbilt University Medical Center on
January 24, 2013. He was provided emergency medical
treatment, hospitalized briefly, discharged on January 26,
2013, and provided follow-on care through July 25, 2013.
(Doc. 10, pp. 325-46, 350-52)
Kathryn Galbraith, Ph.D., evaluated plaintiff on September 9,
2013 on referral from the Tennessee Disability Determination
Services (DDS). (Doc. 10, pp. 368-72) Dr. Galbraith
summarized her evaluation as follows:
Mr. Sullivan appears to fall into the borderline range of
intellectual functioning, though no formal intellectual
testing was done at this time. He showed evidence of moderate
impairment in his short term memory function. He showed
evidence of moderate impairment in his concentration
abilities. He showed evidence of moderate impairment in his
long term and remote memory functioning.
His current psychiatric state was depressed. He shows
evidence of a moderate impairment in his social relating. He
appears to be moderately impaired in his ability to adapt to
change. He appears able to follow instructions, both written
and spoken. He appears to have had a stable work history. He
appears unable to handle finances.
(Doc. 10, pp. 371-72) The evaluation was based on a clinical
interview and mental status examination. Dr. Galbraith
diagnosed plaintiff with adjustment disorder and depressed
mood (Axis I), and borderline intellectual functioning (Axis
II). (Doc. 10, p. 372) The only record before Dr. Galbraith
at the time of the evaluation was an adult function report
completed and signed by Beverly Sullivan - plaintiff's
mother - on July 19, 2013.,  (Doc. 10, pp. 252-59, 368)
presented for a physical assessment on September 10, 2013.
(Doc. 10, p. 377) Thereafter, on September 22, 2013, Dr.
Michael Cox, M.D., completed a form captioned “MEDICAL
ASSESSMENT TO DO WORK-RELATED ACTIVITIES (PHYSICAL)” -
hereinafter Dr. Cox's medical source statement (MSS) -
based on the “09/10/13” clinical
record. Dr. Cox opined that plaintiff could: 1)
lift 20lbs. occasionally in an 8-hour day; 2) lift 5 lbs.
frequently in an 8-hour day; 3) stand, walk or sit a total of
2 hrs. in an 8-hour day, 30 mins. without interruption; 4)
never climb, balance, stoop, crouch, kneel, or crawl; 5) not
reach, bend, push or pull for no more than 2 hrs. in an
8-hour day. (Doc. 10, pp. 374-75)(bold omitted)
September 17, 2013, Dr. Fawz Schoup, Ph.D., conducted a
psychological assessment of plaintiff's record, and
completed a mental residual functional capacity (RFC)
assessment, upon reconsideration. (Doc. 10, pp. 101-02,
105-06) Dr. Schoup, who considered Dr. Galbraith's
September 2013 report, noted that there was “no
evidence of cognitive impairments.” (Doc. 10, p. 101)
Dr. Schoup also determined that plaintiff had the mental RFC
to: 1) “understand and remember . . . low level
detailed tasks”; 2) “maintain [concentration,
performance, and persistence] for low level detailed
tasks”; 3) “interact with the public on [an]
occasional basis, ” but was not otherwise significantly
limited in his social interaction; 4) “adapt to gradual
change.” (Doc. 10, pp. 120-21)
was evaluated by Roy Bilbrey, Ph.D., on June 28, 2015
following the administrative hearing. (Doc. 10, pp. 390-98)
Plaintiff requested that Dr. Bilbrey perform “a
psychological evaluation for the purpose of providing the
information to his attorney to be included in his application
for social security benefits . . . [and] requested that all
results of the evaluation be forwarded to his attorney, Mr.
John Mark Windle.” (Doc. 10, p. 390) Dr. Bilbrey wrote
the following relevant entries in his report based on
clinical interview, mental status examination, and Wechsler
Adult Intelligence Scale (WAIS)-IV and Wide Range Achievement
Mr. Sullivan was alert and oriented in all spheres. His
speech was spontaneous and he was relevant and coherent. . .
. His affect appeared to be within normal limits . . . . He
denies the presence of any hallucinations, delusions, or
other deviant mentations or thought disorders. . . . His
immediate memory is adequate . . . . His memory for recent
events is adequate . . . . His memory for remote events
appears to be adequate . . . . He did not appear to have any
difficulty concentrating. His judgment and reasoning
abilities appear to be adequate . . . . He is capable of
thinking in abstract terms . . . . His stream of thought is
adequate . . . .
. . .
Mr. Sullivan . . . did not appear to have any difficulty
concentrating throughout the process.
. . .
Mr. Sullivan is capable of relating to others and interacting
and communicating effectively with them.
. . .
The scores on the Wechsler Adult Intelligence Scale-IV do not
accurately represent Mr. Sullivan's level of intellectual
functioning. The scores predict academic achievement, and Mr.
Sullivan appears to have learning disabilities in the areas
of reading and mathematics computation. His Processing Speed
was also considerably low, as was his Verbal Comprehension.
Word knowledge and general factual knowledge would require
good reading ability. He is definitely not mentally
deficient, and his true level of intellectual functioning is
estimated to be in the Low Average range. . . .
(Doc. 10, pp. 391-92) Dr. Bilbrey diagnosed plaintiff with a
reading and mathematics disorder, but rendered no diagnosis
as to personality disorder or mental retardation (Axis II).
(Doc. 10, p. 393)
Brent Staton completed a physical medical assessment on
July 9, 2015, hereinafter Dr. Staton's MSS. Dr. Staton
opined that plaintiff: 1) could lift 15 lbs. occasionally in
an 8-hour day; 2) could lift 5 lbs. frequently in an 8-hour
day; 3) could stand or walk a total of 2 hrs. in an 8-hour
day, 30 mins. without interruption; 4) could sit 2-3 hrs. in
an 8-hour day, 30 mins. without interruption; 5) could never
climb, balance, stoop, crouch, kneel, or crawl; 6) was
limited in his ability to reach, bend, push or pull. (Doc.
10, pp. 380-82)
The Administrative Hearing
established the following upon initial questioning of
plaintiff: 1) plaintiff graduated from high school with a
special education diploma (Doc. 10, pp. 48-49); 2) he was
unable to read, write, or spell well (Doc. 10, pp. 48-49); 3)
but for his physical limitations, his depression alone would
not prevent him from working (Doc. 10, p. 51).
colloquy below transpired between the ALJ and counsel
pertaining to records of intelligence testing:
ALJ: Do we have any IQ testing, Mr. Windle, in the record?
ATTY: No, sir, Galbr[ai]th . . . did no formal testing, but
f[ound] that borderline . . . .
ALJ: But no school records that you could obtain . . . . I
think I looked through them, but I couldn't find any IQ
scores. Any IQ scores?
ATTY: No . . . I'm sorry, your honor, there's no IQ
scores. It['s] . . . just reflective of his Department of
Education high school certificate, which he says he got
partial requirements. . . . Everything's applied math and
agriculture. He basically took special ed classes . . . .
ALJ: You'd think there'd have been some testing along
ATTY: Yeah, your honor, I would think so. That's . . .
what they sent me. But I can go back and check that again. .
. . At that period of time, there's usually . . . an
(Doc. 10, pp. 54-55) Plaintiff's attorney adduced the
following upon subsequent questioning of plaintiff: 1) he
could read “some words” in a newspaper, but not
“big words” (Doc. 10, p. 58); 2) his ability to
concentrate varied (Doc. 10, ...