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Benison v. Berryhill

United States District Court, S.D. Alabama, Northern Division

July 31, 2017

MARVIN BENISON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         Plaintiff Marvin Benison brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”) and for Supplemental Security Income (“SSI”), based on disability, under Title XVI of the Act. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Doc. 21 (“In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States Magistrate Judge conduct any and all proceedings in this case, ... order the entry of a final judgment, and conduct all post-judgment proceedings.”)). Upon consideration of the administrative record, Benison's brief, and the Commissioner's brief, [1] it is determined that the Commissioner's decision denying benefits should be affirmed.[2]

         I. PROCEDURAL HISTORY

         Benison applied for DIB, under Title II of the Act, 42 U.S.C. §§ 423 - 425, and for SSI, based on disability, under Title XVI of the Act, 42 U.S.C. §§ 1381 -1383d, on September 19, 2011, alleging disability beginning on September 13, 2011. (Tr. 275, 279). His application was denied at the initial level of administrative review on December 14, 2011. (Tr. 171 -75). On January 19, 2012, Benison requested a hearing by an Administrative Law Judge (ALJ). (Tr. 82). After a hearing was held on January 29, 2013, the ALJ issued an unfavorable decision finding that Benison was not under a disability from the date the application was filed through the date of the decision, March 27, 2013. (Tr. 97-114, 142-57). Benison appealed the ALJ's decision to the Appeals Council, and, on May 16, 2014, the Appeals Council remanded his claim for further consideration by the ALJ. (Tr. 226, 158-62). A second hearing was held before an ALJ on December 23, 2014. (Tr. 54-95). On March 23, 2015, Benison's claim was again denied by the ALJ on the basis that he was not disabled under the Act. (Tr. 26-53). Benison again requested that the Appeals Council review the ALJ's decision. (Tr. 22-25). The Appeals Council denied his request for review of the ALJ's decision on August 24, 2016, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 2-5).

         After exhausting his administrative remedies, Benison sought judicial review in this Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1). The Commissioner filed an answer and the social security transcript on February 1, 2017. (Docs. 11, 12). Both parties filed briefs setting forth their respective positions and waived oral argument. (Docs. 14, 25, 26). The case is now ripe for decision.

         II. CLAIMS ON APPEAL

         Benison alleges that the ALJ's decision to deny him benefits is in error for the following reasons:

1. The ALJ erred in rejecting the opinions of Dr. Timberlake, one of the treating physicians, and Dr. Emig, a treating neurologist; and
2. The ALJ erred in failing to indicate the weight given to the opinions of Dr. Goff, a consulting psychologist, and Dr. Todorov, a treating neurologist.

(Doc. 14 at p. 2).

         III. BACKGROUND FACTS

         Benison was born on February 23, 1979, and was 32 years old at the time he filed his claim for benefits. (Tr. 116). Benison alleged disability due to a seizure disorder and adjustment disorder with depressed mood. (Tr. 61, 116). He graduated from high school after taking regular classes. (Tr. 63-64, 77). After high school, he attended Shelton State Community College and obtained a certification as a diesel mechanic. (Tr. 64). He has worked as a diesel mechanic, a shingle packer, and a grocery store cashier and stocker. (Tr. 64, 79, 90). Benison last worked on March 23, 2011. (Tr. 326). Benison engages in normal life activities such as handling his personal care, making sandwiches, going out for a walk, sometimes helping with household chores, shopping in stores, reading, watching TV, socializing with family and friends, and attending church and sports events with his wife and step child. (Tr. 66-67, 347-50, 378-82). He enjoys riding a four-wheeler. (Tr. 84-85). He is able to pay bills, count change, handle a savings account, and use a checkbook/money order. (Tr. 350). After conducting a hearing, the ALJ made a determination that Benison had not been under a disability during the relevant time period, and thus, was not entitled to benefits. (Tr.16-41).

         IV. ALJ'S DECISION

         After considering all of the evidence, the ALJ made the following findings that are relevant to the issues presented in his March 23, 2015 decision:

In July 2013, John R. Goff, Ph.D., completed a consultative psychological evaluation of the claimant at the request of the claimant's Representative (Exhibit 23F). His evaluation included psychological assessment with psychometric testing. On the WAIS-IV, the claimant scored a 78 in Verbal Comprehension, a 77 in Perceptual Reasoning, a 74 in Working Memory, and a 68 in Processing Speed. His full scale IQ score was 70, and his General Ability Index (GAl) was 75.
Dr. Goff noted that both his full scale IQ and his GAI scores were borderline scores. He further noted that the processing speed score fell within the mildly retarded range and that the other Index scores were borderline scores. Dr. Goff opined that the GAI of 75 was the best estimate. Dr. Goff also administered the Reitan-Indiana Aphasia Screening Test and informal clock drawing tasks, the fourth edition of the Wide Range Achievement Test (WRAT-IV), the abbreviated version of the third edition of the Wechsler Memory Scale (WMS-III)
supplemented with some additional memory scale items, and the Personality Assessment Inventory (PAI). Dr. Goff administered the WRAT-IV to determine the claimant's academic achievement levels. The claimant obtained standard scores of 86 for Word Reading, 77 for Spelling, and 83 for Math Computation. Dr. Goff noted that the Word Reading score was at the eighth grade level, the Spelling score was at the fifth grade level, and the Math Computation score was at the sixth grade level. He further opined that the Word Reading score might be the best estimate of the claimant's premorbid functioning and that there was a suggestion of a mild decline from previous levels of functioning. Dr. Goff also found that the claimant had some memory skills deficits after formal memory assessment. Dr. Goff diagnosed the claimant with borderline intellectual functioning and cognitive disorder (possible loss associated with seizure disorder) and opined that his borderline intellectual functioning represented an impediment to vocational activity.
The Diagnostic and Statistical Manual of Mental Disorders, fourth edition, text revision (DSM- IV-TR), published by the American Psychiatric Association (APA), clearly specifies that in addition to IQ scores, a diagnosis of intellectual disability must be supported by concurrent deficits or impairments in adaptive functioning in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (DSM-IV-TR, pg. 49). The fifth edition of the DSM (DSM-5), which was released in May 2013, makes it even more explicit that IQ alone is insufficient to establish a diagnosis of intellectual disability, and clinicians must examine the individual's overall level of functioning across three domains (conceptual, social, and practical). DSM-5 provides diagnostic criteria that include deficits in intellectual functioning -such as reasoning, problem-solving, planning, abstract thinking, judgment, academic learning, and learning from experience - confirmed by both clinical assessment and individualized, standardized intelligence testing. The guidance in DSM-5 explains that while intellectual disability does not have a specific age requirement, the symptoms must begin during the developmental period, and the diagnosis is based on the severity of deficits in adaptive functioning.
With this guidance in mind, the undersigned gives no weight to Dr. Goff's diagnoses and conclusions regarding the claimant's mental limitations. The claimant told Dr. Goff that he graduated high school and did not repeat any grade levels or receive any special education services. He testified at the hearing that he attended Shelton State Community College for two years and obtained certification as a diesel mechanic. He also testified that he could read and write well. The undersigned further notes that the claimant has a history of skilled work as a diesel mechanic as classified by the vocational expert. This work history supports the conclusion that regardless of his WAIS-IV scores, the claimant has demonstrated adaptive functioning at a much higher level than could reasonably be considered consistent with a diagnosis of borderline intellectual functioning.
* * *
The claimant reported that he has experienced seizures since he was fifteen years old and that they have gotten worse over time. He related that after a seizure, his head hurts and he is tired. However, the claimant told a consultative psychological examiner in July 2013 that his seizures had decreased since he started taking medications (Exhibit 23F), and he testified that he had only experienced two seizures in 2014.
He testified that he can no longer work as a mechanic because he cannot stand for a long time or lift heavy objects. He reported that he experienced fatigue as a side effect of his medication. However, he reported that on an average day he watches television and may take a walk. He also testified that he enjoys riding a four-wheeler about once a week and that he does some mechanic work "every now and then." He also admitted that he does some household chores, cooks sometimes, and goes to the grocery store to shop for groceries.
According to the medical evidence, the claimant did not experience any seizures from 2004 to 2010 (Exhibit 2F). However, he sought emergent care on March 8, 2011 and reported that he had experienced a seizure that morning (Exhibit 1F). Labwork indicated a sub-therapeutic level of Dilantin. Additionally, on March 22, 2011, the claimant told his neurologist, Alexandre B. Todorov, M.D., that he had experienced two seizures between February 20, 2011and March 22, 2011 (assumedly one of which was the seizure evidenced in Exhibit 1F). Based on the medical evidence, the claimant suffered one seizure in 2011, but he reported one additional seizure for which he apparently did not seek any medical treatment.
As for 2012, the medical evidence documents that the claimant had a seizure in March 2012 and in April 2012 (Exhibits 10F and 11F). Both times he sought emergency care following the seizures, and on both occasions his Dilantin level was found to be significantly sub-therapeutic. On March 29, 2012, his Dilantin level was 5.5, and on April 28, 2012, it was less than 2.5. The claimant was diagnosed with medication non-compliance in connection with his treatment for seizure on April 28, 2012. Additionally, the claimant's wife reported to the claimant's medical providers that the claimant may have missed his evening dose of Dilantin prior to the April 28, 2012 seizure. The claimant sought emergent treatment for a seizure again on July 14, 2012 (Exhibit 13F). At that time, he also reported experiencing a seizure ...

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