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Exzabrian W. v. Berryhill

United States District Court, D. Minnesota

December 20, 2018

Exzabrian W., Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          James H. Greeman, Esq., Greeman Toomey PLLC, counsel for Plaintiff.

          Gregory G. Brooker, Esq., Marisa Silverman, Esq., United States Attorney's Office, counsel for Defendant.



         Pursuant to 42 U.S.C. § 405(g), Plaintiff seeks judicial review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying his application for supplemental security income (“SSI”) benefits. This matter is before the Court on the parties' cross-motions for summary judgment, in accordance with D. Minn. LR 7.2(c)(1). (Doc. Nos. 12, 15.) The matter is referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636 and D. Minn. L.R. 7.2, 72.1. For the reasons stated below, this Court recommends that Plaintiff's motion be granted, Defendant's motion be denied, and this matter be remanded for further consideration of the opinion of Plaintiff's treating physician, Dr. Paul Erickson, that Plaintiff would be limited in his ability to respond appropriately to changes in a routine work setting.


         I. Procedural History

         Plaintiff applied for SSI under title XVI of the Social Security Act on May 2, 2014, alleging a disability onset date of September 1, 2006. (Tr. 230.)[1] The Social Security Administration (“SSA”) denied Plaintiff's application on October 30, 2014, and then again on reconsideration on March 31, 2015. (Tr. 138, 146.) At Plaintiff's request, a hearing before an Administrative Law Judge (“ALJ”) was held on December 7, 2016, and on May 17, 2017. (Tr. 38-79.) The ALJ denied Plaintiff's application on June 23, 2017, and the Social Security Appeal Council denied Plaintiff's request for review on August 30, 2017. (Tr. 1, 14.) The denial of review by the Appeals Council made the ALJ's decision the final decision of the Commissioner. 20 C.F.R. § 404.981.

         On October 13, 2017, Plaintiff filed this action seeking judicial review pursuant to 42 U.S.C. § 405(g). (Doc. No. 1.) On January 10, 2018, Defendant filed an Answer along with a certified copy of the administrative record. (Doc. Nos. 8, 9.) The parties have now filed cross-motions for summary judgement pursuant to the Local Rules. (Doc. Nos. 12, 15.)

         II. Factual Background

         Plaintiff was eighteen years old at the time of his alleged onset date of September 1, 2006. (Tr. 230.) Plaintiff was born and raised in Arkansas and moved to Minnesota in 2006. (Tr. 388, 330.) Records from the University of Minnesota Medical Center indicate that Plaintiff attended Special Education classes and dropped out of high school in eleventh grade. (Tr. 335.)[2] In 2016, Plaintiff did not have a permanent place to live, and he stayed back and forth with his aunt and his girlfriend. (Tr. 47, 364, 388.)

         Between 2006 and 2016, Plaintiff worked for several employers, including Atlas Staffing Inc., Twin City Maintenance Team Inc., and Redking Foods LLC. (Tr. 242-45.) Plaintiff's therapist, Dr. Deirdre Golden, indicated that Plaintiff had many jobs but the longest employment lasted only ninety days because of his low tolerance for frustration. (Tr. 456.)

         At issue in this appeal are Plaintiff's mental limitations. Plaintiff was first diagnosed with depression on September 13, 2006. (Tr. 331.) At his disability hearing on May 17, 2017, Plaintiff testified that he had problems with his temper and was frequently angry and anxious. (Tr. 50-51.) He testified to an eighth-grade education, and that he has difficulty reading. (Tr. 53, 55, 56.) Dr. Karen Butler, a licensed clinical psychologist, also testified at Plaintiff's hearing. (Tr. 56-66.) According to Dr. Butler, Plaintiff's ability to understand, remember, and apply information was moderately impaired. (Tr. 59.) Also according to Dr. Butler, Plaintiff's ability to interact with others was markedly impaired, his ability to concentrate and maintain pace was markedly impaired, and his ability to manage himself was markedly impaired. (Tr. 59-61.) Dr. Butler testified that these marked impairments were due to Plaintiff's frequent anger outbursts and his ongoing depression. (Id.)

         III. The ALJ's Findings and Decision

         In his decision dated June 23, 2017, the ALJ found that Plaintiff was disabled within the meaning of the Social Security Act and denied Plaintiff's SSI application. (Tr. 31.) The ALJ proceeded through the five-step evaluation process provided in the social security regulations. See 20 C.F.R. § 404.1520(a)(4). These steps are as follows: (1) whether the claimant is presently engaged in “substantial gainful activity”; (2) whether the claimant is severely impaired; (3) whether the impairment meets or equals a presumptively disabling impairment listed in the regulations; (4) whether the claimant can perform past relevant work; and, if not, (5) whether the claimant can perform other jobs available in sufficient numbers in the national economy. Id. § 404.1520(a)-(f).

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since May 2, 2014, Plaintiff's application date. (Tr. 19.) At step two, the ALJ found that Plaintiff had the following severe impairments: “bipolar disorder, antisocial personality disorder, borderline intellectual functioning, post traumatic stress disorder, right knee and right shoulder degenerative joint disease, and Graves disease with history of thyroidectomy.” (Tr. 19.)

         At step three, the ALJ found that Plaintiff's degenerative joint disease of the right shoulder and knee do not meet the requirements of Listing 1.02, and his thyroid gland disorder does not meet the listing for affected body systems under Listing 9.00B2. (Tr. 20.) The ALJ also found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of Listings 12.04 (depressive, bipolar, and related disorders), 12.05 (intellectual disorders), 12.08 (personality and impulse control disorders), and 12.11 (neurodevelopmental disorders). (Tr. 20.) Regarding the paragraph B criteria, the ALJ explained that Plaintiff has moderate limitations in understanding, remembering, or applying information; moderate limitations in interacting with supervisors, coworkers, and the public; moderate limitations in concentrating, persisting, or maintaining pace; and moderate limitations in adapting or managing oneself. (Tr. 20-22.)

         As it pertains to Listing 12.05, the ALJ reasoned that Plaintiff does not have significantly subaverage general intellectual functioning, significant deficits in current adaptive functioning, and manifestation of the disorder before age 22. (Tr. 22-23.) The ALJ noted that Plaintiff lives independently and cares for himself. (Tr. 23.) The ALJ also noted that although Plaintiff obtained a full-scale IQ of 70 or below, he does not have a marked limitation in two, or an extreme limitation in one, of the four areas of adaptive functioning. (Tr. 23.)

         Finally, the ALJ noted that no state agency psychological consultant concluded that a mental listing is medically equaled. (Id.) The ALJ gave “little weight” to the opinion of Dr. Butler, the impartial medical expert who testified that Plaintiff has marked limitations in his ability to interact with others, maintain concentration, persistence or pace, and adapt or manage himself. (Id.) The ALJ reasoned that the reports of consulting examiners Dr. Alford ...

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