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Tidwell v. Colvin

United States District Court, E.D. Missouri, Eastern Division

August 25, 2014

CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.


CAROL E. JACKSON, District Judge.

This matter is before the Court for review of an adverse ruling by the Social Security Administration.

I. Procedural History

On October 16, 2009, [2] plaintiff Talbott Tidwell filed applications for a period of disability, disability insurance, Title II, 42 U.S.C. §§ 401 et seq., and supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of January 1, 2003, which was subsequently amended to January 1, 2009. (Tr. 219-27, 257). After plaintiff's applications were denied on initial consideration (Tr. 120-23), he requested a hearing from an Administrative Law Judge (ALJ). (Tr. 135).

Plaintiff and counsel appeared for a hearing on April 28, 2011. (Tr. 36-66). The ALJ issued a decision denying plaintiff's applications on March 8, 2012.[3] (Tr. 14-33). The Appeals Council denied plaintiff's request for review on March 26, 2013. (Tr. 1-4). Accordingly, the ALJ's decision stands as the Commissioner's final decision.

II. Evidence Before the ALJ

A. Disability Application Documents

Plaintiff completed Disability Reports in 2006, 2008, and 2009. (Tr. 268-75, 293-99, 355-62). He listed his disabling conditions as learning disabilities, unspecified hearing problems, allergies, borderline diabetes, and poor eyesight. He stated that he was able to read at the third-grade level and perform math at the second-grade level. (Tr. 269). He also stated that he would "go[] off into his own little world, " and that it could take several minutes to get his attention. (Tr. 294). He stated that he needed somebody with him at all times to help him with his jobs. (Tr. 356). He took medication to control his blood pressure. (Tr. 272).

Plaintiff completed a Function Report in 2006. (Tr. 285-92). He stated that he spent his waking hours looking for a job. He could pay bills and count change, but could not manage a bank account. He identified his areas of difficulty as understanding and getting along with others. In 2008, he completed the Missouri Supplemental Questionnaire, with the help of a Social Security claims representative. (Tr. 307-14). He identified reading, math, and memory as his areas of difficulty. He stated that he did not play games or watch television.

Plaintiff's mother and sister completed Third-Party Function Reports in 2008. (Tr. 316-26, 330-37). Plaintiff lived in a boarding hotel at that time and did not drive. His mother drove him to stores, appointments, and to look for jobs. They reported that plaintiff was able to prepare simple meals for himself and, with time and reminders, could complete mowing and household repairs. He could pay bills, count change, and handle a bank account. He could not read written instructions and was "fair" at following spoken instructions. Mrs. Tidwell identified her son's areas of difficulty as hearing, completing tasks, and getting along with others. Plaintiff's sister saw him three or four times a week when she took him to see his probation officer and counselor. She stated that plaintiff sat around and slept and was depressed; she also said, however, that he cooked himself full-course meals every day. He was capable of managing household chores, including mowing, laundry, and cleaning. As to his ability to handle money, plaintiff's sister thought he "messed up" counting change and was unable to manage bank accounts. In addition to the problem areas identified by his mother, plaintiff's sister stated that he had difficulties with understanding, following instructions, reaching, memory, concentration, and handling stress and changes in routine. Plaintiff's mother completed another Function Report in December 2009. (Tr. 366-73). She described plaintiff as "walk[ing] all day with his head cut off" and stated that sometimes he was mad at the world. She also stated that he had "fears of people."

B. Hearing on April 28, 2011

Plaintiff was 36 years old at the time of the hearing. He received special education services throughout his school years and graduated from high school. He was living with a friend in exchange for his food stamps. He had never been married. (Tr. 47-48). He had never had a driver's license, though he was in the process of trying to get one at the time of the hearing. Plaintiff testified that he is barely able to read a newspaper, cannot read menus, and had to have the motor vehicle license test read to him. (Tr. 49). He can write his name but not his address and needs help filling out forms.

Plaintiff last worked at a McDonald's restaurant. He generally spent 5 hours out of every 8-hour shift cleaning the building and picking up the grounds, and three hours cooking. (Tr. 51). He testified that he was fired for not disclosing his prior felony conviction on the job application. However, plaintiff testified that the omission was accidental as he did not see the question on the application. (Tr. 52). Plaintiff worked as custodian for the Meramec County school district from 1990 until 2002 when he was fired after being convicted of a felony. Plaintiff was incarcerated in the Franklin County jail for a period of time. Id . He was arrested again in June 2010 and was incarcerated for 8 months. (Tr. 56).

Plaintiff testified that he had no physical impairments that kept him from working. He had difficulty with reading, writing, memory and concentration, and got angry when people corrected him. (Tr. 53-54). He was able to cook and clean, but needed help with grocery shopping because he could not read labels. (Tr. 57). He agreed that he had mood swings -after the term was defined for him - and he did not like being in crowds. He used to see a counselor before he went to jail and planned to start again because his probation officer wanted him to do so. He thought he would be on probation for another 5 years.

James E. Israel, M.Ed, a vocational expert, provided testimony regarding the employment opportunities for an individual of plaintiff's age, education, and work experience, who had no exertional limitations; who was limited to occupations that do not require written communication; involve only simple, routine, repetitive tasks; and require only occasional decision-making. In addition, Mr. Israel was asked to assume that the individual could have no interaction with the public and only casual, infrequent contact with co-workers. Mr. Israel opined that such an individual would be able to perform work in three areas: cleaning; packing and wrapping; and assembly and production. (Tr. 60-61). Mr. Israel was then asked to assume that the individual was restricted to jobs where production quotas were measured only at the end of the day, rather than on an hourly basis. This additional limitation reduced the total number of assembly and production jobs by 20%. If the individual were limited to jobs in which contact with a supervisor was limited to no more than once a day, the available jobs in all areas decreased by 10%. Mr. Israel opined that there were no jobs available for an individual who could not engage in any decision-making. On examination by plaintiff's counsel, Mr. Israel opined that the identified jobs can be performed by someone who is not literate. (Tr. 64-65).

C. Records

The records reflect that plaintiff received special education services starting in kindergarten. A psychological evaluation in March 1980, when he was 5 years old, showed delays in cognitive development. (Tr. 433). It was noted that plaintiff had a serious brain infection when he was 3 years old.[4] Subsequently, he experienced epileptic seizures, for which he was taking medication, and he was thought to be mentally retarded. The examiner noted that plaintiff was unable to dress himself and had been observed to limp. (Tr. 435, 433). Tests of cognitive functioning placed plaintiff in the mild mental retardation range of intelligence, with relative weaknesses in general comprehension and verbal fluency. His conceptual maturity was considerably below age-level. (Tr. 435). A speech and language evaluation in second grade established that plaintiff did not know the alphabet, his birthday, or his home address and he could not write his name or re-tell a story. (Tr. 415). An Individualized Education Plan (IEP) created when plaintiff was 7 years old noted that he had a severe hearing loss in his right ear, weak fine motor skills, and walked with a limp. In addition, he had poor academic skills and needed speech and language therapy. (Tr. 408). In ninth grade, plaintiff's word recognition and spelling skills were below a third-grade level. (Tr. 418). His scores on the WISC-R were 58 for Verbal IQ, 69 for Performance IQ, and 60 for Full Scale IQ, and he was assessed to be in the educable mentally handicapped range. (Tr. 423). He was described as immature, overly dependent, and impulsive, with temper outbursts. In addition, he engaged in hitting and fighting, disobeyed rules, lied, had difficulty expressing himself and understanding directions, and gave up easily. (Tr. 422).

Plaintiff underwent a court-ordered competency examination in 2002 after he was charged with child molestation. (Tr. 561-67). Intelligence testing placed his cognitive abilities within the mild mental retardation range and it was determined that he lacked capacity to proceed in the criminal matter. He was committed to the Department of Mental Health and was held in custody at the St. Louis Psychiatric Rehabilitation Center from September 2004 until February 2005. Evaluators noted that plaintiff's immediate and recent memory were good, while his remote memory suffered due to his cognitive limitations. His insight was fair and his judgment was fairly good while in a structured setting. (Tr. 564). He generally complied with program rules and, overall, his behavior was appropriate and stable. (Tr. 565). When plaintiff learned that a finding of incompetence would result in his remaining in the hospital for a period of time, he expressed a desire to be found ...

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