Kane v. Berryhill

          ORDER

          STEVEN E. RAU UNITED STATES MAGISTRATE JUDGE

         Pursuant to 42 U.S.C. § 405(g), Plaintiff Kathryn G. Kane (“Kane”) seeks review of the Acting Commissioner of Social Security's (“Commissioner”) denial of her application for social security income (“SSI”) and disability insurance benefits (“DIB”). See (Compl.) [Doc. No. 2]. The parties filed cross-motions for summary judgment. (Mot. for Summ. J.) [Doc. No. 17]; (Def.'s Mot. for Summ. J.) [Doc. No. 19]. For the reasons set forth below, the Court grants Kane's Motion for Summary Judgment in part, denies the Commissioner's Motion for Summary Judgment and remands this case for further consideration consistent with this Order.

         I. BACKGROUND

         A. Procedural History

         Kane protectively filed for SSI and DIB on December 18, 2013, citing an alleged onset date (“AOD”) of March 1, 2008. (Admin. R.) [Doc. No. 12 at 145, 304, 305, 307]. Kane claimed disability due to a bipolar disorder, depressive disorder, generalized anxiety disorder, posttraumatic stress disorder, and a personality disorder.^[1] (Id. at 145-46). During evaluation for her other mental impairments, Kane also presented with borderline intelligence. See, e.g., (id. at 469, 481, 1193-94). Kane's claim was denied initially and upon reconsideration. (Id. at 14). Following a hearing, the administrative law judge (the “ALJ”) denied benefits to Kane on February 9, 2016. See (id. at 14-30). The Appeals Council denied Kane's request for review on March 3, 2017, rendering the ALJ's decision final. (Id. at 1-3); see also 20 C.F.R. § 404.981.^[2]Kane initiated the instant law suit on March 31, 2017. (Compl.).

         B. Factual Background

         At the time of her AOD, Kane was twenty-eight years old which makes her a “younger person.” (Admin. R. at 145); see also 20 C.F.R. § 404.1563(c). Kane did not complete high school, dropping out in the twelfth grade, but obtained her GED in 2000. See, e.g., (Admin. R. at 40, 352).

         1.Testimony Before the ALJ

         a. Kane

         Kane testified that she currently lives with her mother and five-year-old daughter. See (id. at 55-56). Kane testified that she lived with her mother for the first four years of her daughter's life and that her mother helped raise her daughter. See (id. at 56). Kane also testified that at one point her mother moved out to live in a senior center, but Kane “couldn't do it” and so her mother moved back in to help with her daughter. See (id.). Kane testified that she receives $437 a month in general assistance, $400 of which she gives her mother as rent. See (id. at 56, 57). Kane also stated that she receives food stamps, but does not know the amount. (Id. at 56).

         With respect to activities of daily living, Kane testified that she shops about once a month for groceries using the food stamps, routinely drives her daughter six blocks to school, and does not cook, although she can prepare TV dinners and toast. See (id. at 57-59). Kane stated that her daughter is becoming more independent and tends to some of her own self-care needs like getting food or making a sandwich. See (id. at 58). Kane stated that she does not clean, or do the dishes, but can do the laundry with help from her daughter. (Id. at 60). When home, Kane rarely watches TV or reads. See (id. at 61). When home with her daughter, they play with dolls, and Kane sings her the “ABCs.” See (id. at 62-63).

         Kane's longest lasting employment before her AOD lasted approximately three years when she performed automobile oil changes. See (id. at 44). Kane stated she was fired because she was not good with money or customers. See (id.). After her AOD, Kane testified that she worked in a limited capacity: being cast in a television commercial and working for her brother in the food industry loading trucks. See (id. at 43-45). Kane stated that while she worked with her brother, her mother would not let her waitress because she “didn't get along with people.” (Id. at 45).

         At various times throughout Kane's testimony, the ALJ admonished Kane for not answering the questioned asked, failing to allow the ALJ to finish her question, or answering the question in a manner that was not helpful to the ALJ. See, e.g., (id. at 58, 59, 60, 62). Kane also testified that her mother helped her pass her GED exam. See (id. at 69-70). Specifically, Kane alleges that she was able to call her mother using her cell phone to obtain answers on math related questions while the proctor was distracted “doing . . . artsy craftsy stuff at her desk.” See (id. at 68-70).

         b. Kane's Mother

         Kane's mother testified that she helps “a lot” with the care of both Kane and Kane's daughter. See (id. at 86). For example, Kane's mother testified that Kane

runs out of food money, so the last two weeks of the month, I buy food and I pay insurance on her car, . . . buy clothes for both [Kane and her daughter] and all the necessities, . . . welfare doesn't provide toilet paper and pop and things like that, so I do my best.

(Id. at 86). Furthermore, Kane's mother stated that Kane was not capable of tending to her own personal care completely and that Kane was often reminded to shower, for example. See (id. at 86-87). Kane's mother also corroborated Kane's testimony that she provided help over the phone during her GED examination because she “wanted her to get a diploma” and provided help with the “math and history questions.” (Id. at 89).

         2. Medical Evidence ^[3]

         a. Stephen J. Antonello

         Stephen J. Antonello, PhD (“Dr. Antonello”), conducted his first psychological evaluation of Kane on May 11, 2011. See (id. at 477-86) (Dr. Antonello's first report). Dr. Antonello conducted a second psychological evaluation of Kane on January 7, 2014. See (id. at 465-76) (Dr. Antonello's second report). During both interviews Kane presented with a depressed affect. See (id. at 466) (presented with “a depressed emotional affect”); (id. at 478) (presented with a “dull and depressed emotional affect”). Dr. Antonello's opinions are largely consistent between the two evaluations. For example, Dr. Antonello concluded that Kane suffers from “[m]ajor depression”; “[p]osttraumatic stress disorder”; “social, generalized, obsessive, and panic anxiety”; “[b]oderline personality disorder”; “[a]voidant personality disorder”; and “[b]orderline intellectual functioning.” See (id. at 471, 482-83). Furthermore, Dr. Antonello opined that Kane was not capable of working an eight-hour work day, was “likely to have marked difficulty maintain social functioning, and marked difficulty maintaining concentration, persistence, and pace of activities.” See (id. at 473, 485). In support of these opinions, Dr. Antonello stated that Kane's depression, anxiety, posttraumatic stress disorder, and personality disorder are likely to cause her marked difficulty and ultimately work to reduce her employability. See (id. at 472, 484).

         The primary difference in the psychological evaluations center around results from objective tests, particularly Weschler Adult Intelligence Score-3rd Edition (“WAIS-III”)^[4] test results and Wide Range Achievement Test-3 (“WRAT-3”)^[5] test results. The Court addresses each of these tests below.

         i. ...