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Kitzero v. Berryhill

United States District Court, N.D. Alabama, Northeastern Division

May 18, 2018

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.


         Claimant, Jennifer Kitzero, commenced this action on November 3, 2017, pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and thereby denying her claim for a period of disability and disability insurance benefits. For the reasons stated herein, the court finds that the Commissioner's ruling is due to be affirmed.

         The court's role in reviewing claims brought under the Social Security Act is a narrow one. The scope of review is limited to determining whether there is substantial evidence in the record as a whole to support the findings of the Commissioner, and whether correct legal standards were applied. See Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983).

         Claimant contends that the Commissioner's decision is neither supported by substantial evidence nor in accordance with applicable legal standards. Specifically, claimant asserts that: (1) the ALJ's decision about what jobs plaintiff is capable of performing was not supported by substantial evidence; (2) the ALJ improperly considered the consultative examiner's opinion; (3) the ALJ improperly rejected findings by a counselor at the Alabama Department of Rehabilitation; and (4) the ALJ improperly evaluated whether claimant had the ability to obtain additional medical treatment. The court will address all of those issues, but in a slightly different order than they were presented by claimant. Upon review of the record, the court concludes that claimant's contentions are without merit.

         A. Consultative Examiner's Opinion

         Social Security regulations provide that, in considering what weight to give any medical opinion, the Commissioner should evaluate: the extent of the examining or treating relationship between the doctor and patient; whether the doctor's opinion can be supported by medical signs and laboratory findings; whether the opinion is consistent with the record as a whole; the doctor's specialization; and other factors. See 20 C.F.R. § 404.1527(c). See also Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir. 1986) (“The weight afforded a physician's conclusory statements depends upon the extent to which they are supported by clinical or laboratory findings and are consistent with other evidence as to claimant's impairments.”).

         Katie Lewallen, Ph.D., a licensed psychologist, examined claimant on December 2, 2014. Claimant reported to Dr. Lewallen that she suffered a traumatic brain injury in a 2000 automobile accident. Claimant lived with her parents and reported daily activities including self care, watching television, cleaning the house, going out with her mother, and helping her mother cook. She reported having “a very hard time following directions or instructions, ” and being unable to cook by herself, drive, shop alone, or manage her finances independently. Dr. Lewallen administered the Wechsler Adult Intelligence Scale (WAIS-IV) test, which resulted in verbal comprehension and perceptual reasoning scores in the low average range, working memory scores in the average range, and processing speed scores in the borderline range. During the clinical examination, Dr. Lewallen observed claimant experiencing some difficulties with depth perception, including needing to hold on to the wall while walking. She also observed claimant looking away when she was talking. Claimant presented as “somewhat immature” for her age. She was not able to complete the serial 7's exercise, but she could count backward from 20 and spell the word “world” backwards. Her immediate and remote memory were within normal limits, but her recent memory “appeared impaired, ” and her fund of information was poor. She was fully oriented, well-groomed, and, despite the observation that she sometimes looked away during a conversation, Dr. Lewallen stated that she maintained “average” eye contact. Her speech was logical and coherent, and her response to humor was good. Her mood was euthymic, her affect congruent, and her demeanor playful and friendly. She was cooperative, but her motor activity was slowed. Her thought content, insight, and judgment all were average, but her memory and fund of knowledge were below average. Dr. Lewallen's diagnostic impression was mild neurocognitive disorder, including visual-perceptual details, as a result of traumatic brain injury. Dr. Lewallen found that claimant's “overall level of social and adaptive functioning appears moderately to severely impaired, ” and her prognosis for employment was “poor.” While claimant appeared to have the motivation to work, she “would likely require significant training and supervision to manage work responsibilities and accommodate her visual impairment.” Dr. Lewallen's summary observations were as follows:

Jennifer and her mother Regina reported significant deficits with visual perception and short-term memory as a result of traumatic brain injury. She does not take any medication and reported few physical health concerns outside the context of her TBI. Functional limitations include deficits following instructions and managing overall life responsibilities. She is highly dependent on her family for assistance at this time. Results of the WAIS-IV indicate that her working memory falls in the average range of functioning; however, I recommended additional testing to assess her overall memory functioning, particularly delayed recall.

Tr. 371-74.

         The ALJ afforded little weight to Dr. Lewallen's opinions because they were “not supported by and are inconsistent with the overall weight of the evidence in the record as a whole.”[1] That decision was consistent with applicable law and supported by substantial evidence. As an initial matter, the ALJ was not required to accept Dr. Lewallen's statement that claimant's prognosis for employment was poor, because the decision of whether a claimant is disabled is not a medical opinion, but is a decision “reserved to the Commissioner.” 20 C.F.R. §§ 404.127(d). Additionally, while claimant makes much of the ALJ's decision not to place significant weight on the results of Dr. Lewallen's psychometric testing, those results do not do much to advance claimant's disability status. While claimant's processing speed scores fell within the borderline range, her other subscores and her composite score fell within the average and low average ranges. The ALJ accounted for deficits in claimant's intellectual functioning by adding non-exertional limitations to claimant's residual functional capacity finding. The other evidence in the record also is consistent with Dr. Lewallen's assessment. Claimant relies upon a discharge note from the initial hospital stay following her 2000 accident, which states that her attention span, judgment, and insight were poor, [2] but that statement says very little about her current level of functioning, especially considering that claimant has worked several different jobs during the many years since her accident. Claimant also argues that the ALJ was wrong to credit the opinions of consultative physical examiner Dr. Sherry Lewis and state agency physician Dr. Samuel Chastain over that of Dr. Lewallen, because Dr. Lewis and Dr. Chastain did not perform standardized testing and did not have access to Dr. Lewallen's test results. That point also is of little consequence, as Dr. Lewis and Dr. Chastain were engaged to provide opinions about claimant's physical abilities, not her mental limitations. In summary, the record does not reflect that claimant has received much treatment for her mental condition, and there is no evidence that she experiences any mental limitations greater than those imposed by the ALJ.

         B. Vocational Rehabilitation Counselor's Opinion

         Claimant also asserts that the ALJ improperly considered the assessment from Lillian Butler, her counselor at the Alabama Department of Rehabilitation Services. Ms. Butler submitted a letter dated March 28, 2016, and stating:

Please be advised that Jennifer Kitzero has been a client of the Alabama Department of Rehabilitation Services since May 27, 2015. She is participating in our supported employment program, which is designed to help people who have the most significant disabilities gain and maintain employment. Although Jennifer has significant workplace limitations, which you can surmise from the attached medical records and ADRS determinations, we have great hope that we will be able to help her gain and maintain employment in the future.

Tr. 386. The attached “Functional Limitation/Priority Assessment” form, which was completed on October 10, 2015, and described limitations that were “evident from observation, ” stated that claimant:

. . . is not capable of independently leaving the home/moving about in the community. Requires accompaniment, monitoring and/or physical assistance for mobility.
. . . presently and/or recurrently demonstrates limitations that often require accompaniment or assistance to leave the home or navigate in the community.
. . . in a manner other than those described above, has a diminished ability to independently walk, climb stairs or a ladder, or sustain a standing or seated position.

Tr. 387 (ellipses in original). With regard to communication skills, the form stated that claimant:

. . . is non-verbal or else substantially impoverished/limited in his or her use of formal language, even within chosen/primary mode of communication. Includes a person who requires an intermediary with personal knowledge or history with the individual.
. . . has limited capacity to retain verbal or written communication which affects the ability to follow-through with instructions or work tasks.
. . . has limited or impoverished expressive or receptive language skills that result in not being understood by others or the misrepresentation of verbal or written communication. Occurs to an extent that adversely affects personal and work interactions.
. . . does not perceive or often misinterprets auditory or visual information (including body language) to an extent that noticeably diminishes effective communication in the workplace or in training.

Tr. 387 (ellipses supplied). With regard to self-direction, claimant:

. . . cannot direct his or her own care; relying instead upon others to establish health routines, obtain & dispense medication, choose a healthy diet, structure an environment to avoid/remove risk, may require a “Payee” for benefits other than self (if over 18).
. . . demonstrates limited abilities to self-correct, anticipate the outcome of negative choices, and/or change behavior in response to feedback.
. . . is unlikely to or has demonstrated the inability to independently recognize and/or avoid hazardous, unsafe conditions.
. . . experiences or has a history experiencing negative consequences as a result of difficulties with independent ...

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