United States District Court, W.D. Missouri, Western Division
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
ROBERT E. LARSEN, Magistrate Judge.
Plaintiff Philips Jaax seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Titles II and XVI of the Social Security Act ("the Act"). After a careful review of the evidence and applicable law, I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is not disabled. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed.
On November 13, 2009, plaintiff applied for disability benefits alleging that he had been disabled since March 15, 2008. Plaintiff's disability stems from "ADHD, Depression & breathing problems, mood and anxiety disorders, PTSD & sleep disorders, personal injuries from Wal-Mart Pharmacy filling wrong prescription." (Tr. at 135). Plaintiff's application was denied on August 23, 2010. On March 8, 2012, a hearing was held before an Administrative Law Judge. On April 27, 2012, the ALJ found that plaintiff was not under a "disability" as defined in the Act. On July 31, 2013, the Appeals Council denied plaintiff's request for review. Therefore, the decision of the ALJ stands as the final decision of the Commissioner.
II. STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a "final decision" of the Commissioner. The standard for judicial review by the federal district court is whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner's decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Commissioner's decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). "The Court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450 U.S. 91, 99 (1981)).
Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the substantial evidence standard presupposes a zone of choice within which the decision makers can go either way, without interference by the courts. "[A]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision." Id .; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of proving he is unable to return to past relevant work by reason of a medically-determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Commissioner to establish that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000); Brock v. Apfel, 118 F.Supp.2d 974 (W.D. Mo. 2000).
The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled. These regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1. Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
2. Does the claimant have a severe impairment or a combination of impairments which significantly limits his ability to do basic work activities?
No = not disabled.
Yes = go to next step.
3. Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
4. Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5. Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.
IV. THE RECORD
The record consists of the testimony of plaintiff, vocational expert Joseph H. Torres, M.Ed., and medical expert Joseph Malancharuvil, Ph.D., in addition to documentary evidence admitted at the hearing. Plaintiff also attaches an "Attending Physician's Statement" to his brief, although that exhibit was not a part of the record before the ALJ.
A. ADMINISTRATIVE REPORTS
The record contains the following administrative reports:
The record shows that plaintiff earned the following income from 1997 through 2011:
Year Earnings Year Earnings 1997 $ 2, 462.68 2005 $ 10, 569.69 1998 5, 248.38 2006 18, 959.66 1999 52.50 2007 42, 472.77 2000 2, 278.11 2008 29, 669.69 2001 211.57 2009 8, 429.00 2002 17, 855.81 2010 8, 389.48 2003 11, 032.93 2011 0.00 2004 7, 092.56
(Tr. at 132-133).
Missouri Supplemental Questionnaire
In a Missouri Supplemental Questionnaire dated July 10, 2010, plaintiff indicated that he uses a computer for one to two hours at a time (Tr. at 176). He has a driver's license but he does not drive because he doesn't have a car and he is an "irresponsible driver at times" (Tr. at 176).
Function Report - Third Party
Plaintiff's mother completed a Function Report - Third Party on August 8, 2010 (Tr. at 179-186). She reported that plaintiff watches a lot of news shows on television. Plaintiff prepares his own meals daily, and his cooking habits have not changed as a result of his condition. He does his own laundry but performs no other household chores. He has to be encouraged to pick up after himself. When he goes out, he is able to walk, ride in a car, use public transportation, drive, and he can go out alone. He shops for food, clothing and medicine in stores. Plaintiff has anger problems and does not follow or understand directions. He can walk two blocks before needing to rest.
B. SUMMARY OF TESTIMONY
During the March 8, 2012, hearing, plaintiff testified; and Joseph Torres, M.Ed., a vocational expert, and Joseph Malancharuvil, Ph.D., a medical expert, testified at the request of the ALJ.
1. Plaintiff's testimony.Plaintiff's testimony.
Plaintiff has a bachelor's degree (Tr. at 30). He last worked the month before his administrative hearing and was terminated a few days before the hearing (Tr. at 26). He was working as a tax preparer for Jackson Hewitt (Tr. at 26). Plaintiff testified that he was terminated because Jackson Hewitt could not accommodate him by providing sensitivity training dealing with his specific disabilities and could not give him time off to go to doctor appointments and for his administrative hearing (Tr. at 26). Plaintiff was also trying to help out his employer by doing research on his own regarding fraud that he suspected was going on in the company; however, his employer did not believe he should be spending his time on that rather than on his assigned duties (Tr. at 26-27). Plaintiff was also being "especially friendly to females" at work and his employer felt that he was creating a hostile work environment (Tr. at 27). Plaintiff tried working from home but that did not work out: "I was trying to go beyond my job description, and I was noticing some different types of fraudulent exercises that were occurring within the company and notifying them, and they said that was outside my job description and they were unable to accommodate me again, so, for that position." (Tr. at 27-28).
Plaintiff did not work from December 2008 to October 2009 (Tr. at 28). Between 2008 and 2010, he got back pay from lawsuit settlements from two companies and he lived off that (Tr. at 28). After December 2010, plaintiff received unemployment compensation - he indicated that he was willing and able to work full time (Tr. at 28).
Plaintiff currently lives in a house with his mother and sister (Tr. at 29). Plaintiff has a driver's license and drives sometimes, although he speeds too much and sometimes drives recklessly (Tr. at 29). He drove to the administrative hearing (Tr. at 29). He does not drink alcohol as long as he takes his medication - "I'm very stabilized when I take my medication." (Tr. at 31). The last time he consumed alcohol was the beginning of February, i.e., the month before his administrative hearing (Tr. at 31). Plaintiff would typically use alcohol (six to ten beers a day) after losing a job because he would become lost (Tr. at 33). He was not taking his medication properly and he was very sad that he was not able to keep a job (Tr. at 33).
Plaintiff owned a $20, 000.00 boat that he did not know how to operate - he had it for his friends to use (Tr. at 31). Plaintiff said it was too complex for him to operate (Tr. at 32). Someone stole it in July 2010 (Tr. at 31-32).
At the time of the hearing, plaintiff was attending Swope Parkway Behavioral Health Center and he was trying to get "intensive outpatient" through either Truman Medical Center or Shawnee Mission Medical Center (Tr. at 32). He wants to get treatment for his mood disorder, his anxiety and his inability to keep a job (Tr. at 32-33). "[E]ven with medication, I still have trouble. I, I still have trouble sometimes managing my life." (Tr. at 33).
In a typical day, plaintiff spends a lot of time researching spirituality and the law on the Internet (Tr. at 39). He reads about what is going on in the world (Tr. at 39).
When plaintiff does have a job, he becomes too focused on finding fraud rather than doing his job (Tr. at 40). He believes he is incapable of being a nighttime janitor, where he would not be around a computer or fraud, because he would "end up finding a computer" and doing his own research instead of doing his job (Tr. at 40-41). "I have to do research, constantly" (Tr. at 41). If he had a janitorial job where there were no computers around, he would wind up getting on his mobile phone to get on the Internet (Tr. at 41).
When he starts to research who he is and where he comes from, he finds that it is more important for him to find answers than it is to work (Tr. at 47). Plaintiff believes that this is worse when he is sober (Tr. at 47).
Plaintiff has a hard time with authority (Tr. at 41). He can't tolerate someone ordering him around all the time or yelling at him (Tr. at 41).
Plaintiff has friends he talks to occasionally, but most of his friends have families now and have gone their own way (Tr. at 42).
Plaintiff has nightmares frequently (Tr. at 42). He has been doing a lot of research on Luciferianism and Satanism and he has nightmares about those things (Tr. at 42). On a good night, he sleeps five or six hours; other nights he gets no sleep at all (Tr. at 42). During the day plaintiff gets very scared that he is dying (Tr. at 43). He has panic attacks all the time (Tr. at 43). He recently had three panic attacks and was hospitalized, just a few days before the hearing (these hospital records are not a part of the administrative record) (Tr. at 43). He has three or four panic attacks every two to three weeks (Tr. at 43). He hyperventilates, he gets very scared, he feels like he is about to lose something (Tr. at 43-44). His panic attacks last a day, sometimes longer (Tr. at 44).
Plaintiff has never been treated for post traumatic stress disorder, but it stems from when his father was murdered when plaintiff was eight years old (Tr. at 44). Plaintiff, at age 31, cannot get over his father's death and it causes him problems on a daily basis (Tr. at 44). He thinks people are out to kill him like they killed his father (Tr. at 45). The week before the hearing, he got lost in Lee's Summit and "several hours later, I didn't even know where I was. I was miles, miles away from the city." (Tr. at 45).
Plaintiff has problems with concentration and an inability to focus - he cannot follow instructions (Tr. at 45). When he does have a job, he spends his time trying to find fraud or someone's illegal actions and it becomes an obsession to him (Tr. at 45). He tries to read a couple pages of a book but he gets stuck on the first couple of sentences over and over for up to 45 minutes at a time (Tr. at 45-46). When he is reading the Internet, he has to read things ten times to get through it and move onto something else (Tr. at 46).
Plaintiff does not cook (Tr. at 46). His mother and sister are getting fed up because plaintiff does not prepare any food, and sometimes he just doesn't eat (Tr. at 46). Plaintiff used to go out, but recently he has not been; and since he was fired from his last job he had not been going out at all (Tr. at 46).
2. Medical expert testimony.
Medical expert Joseph Malancharuvil, Ph.D., a clinical psychologist, testified at the request of the Administrative Law Judge (Tr. at 30). Dr. Malancharuvil reviewed plaintiff's medical records (Tr. at 30).
Plaintiff has ADHD but it is not significant - he was able to complete a Bachelor's degree (Tr. at 33-34). He has a mood disorder not otherwise specified with narcissistic features (Tr. at 34). Plaintiff has no restriction in activities of daily living; mild limitations in social functioning; and mild limitations in cognitive disruption, persistence or pace (Tr. at 34). Plaintiff does not have a serial psychiatric problem but his "personality style... seems to get him into trouble" (Tr. at 34). That, however, does not preclude all functions (Tr. at 34). As a result, plaintiff would be restricted to tasks that do not require emotionally charged, intense, interpersonal interactions (Tr. at 34). "So, he's not a candidate to be a [inaudible] or an HR person, or things like that, where emotional processing is required for - as an essential part of [the] job. But on normal transactions there are no problems." (Tr. at 34). Plaintiff needs no other restrictions unless he continues to drink, and in that event he should not operate any hazardous machinery (Tr. at 35).
Although plaintiff's medical records mention questionable psychosis, Dr. Malancharuvil found no evidence of psychosis (Tr. at 35). "[T]he overall picture [from the medical records] is that the claimant definitely has some underlying issues, most personality related, and it is not unusual with people with this personality to have periods of depression when things do not go the way they want it to go. It's a reactive depression, which is inherent to the personality side, but it is not a mental illness per se." (Tr. at 35-36). Consistent with his personality and interpersonal problems, he has gotten into serious difficulties and trouble - he feels very empty and depleted and becomes despondent (Tr. at 36). "A casual evaluation would make it look like he has bipolar condition, but it is not. It's really - he's not - he will not present himself consistently with the same type of mood." (Tr. at 37).
There is nothing that prevents him from carrying on normal transactions in his social life (Tr. at 37). He is very charming, and he was overly social with the women in his office - he has social ability (Tr. at 37). He is not necessarily using his judgment in the relationships (Tr. at 37). Despite the consistent diagnoses of ADHD, plaintiff only has mild impairments in concentration, persistence and pace (Tr. at 38). "[I]f he has ADHD from childhood, and he has successfully completed a Bachelor's Degree, and he's engaged in activities that require quite a good bit of skill, you now, tax preparation, consultation, and other types of things. His Attention Deficit Hyperactivity Disorder, while it may be there, it's not interfering with his capacity to function within the limits I have assigned." (Tr. at 38). There is no objective ...