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Bennett v. Berryhill

United States District Court, E.D. Virginia, Norfolk Division

February 15, 2019

RYAN ALLEN BENNETT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          Lawrence R. Leonard, United States Magistrate Judge.

         This matter is before the Court on Plaintiff Ryan Allen Bennett's ("Plaintiff) Amended Complaint, ECF No. 28, filed pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration ("the Commissioner"), denying Plaintiffs claim for a period of disability and Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("SSA"). Plaintiff filed a Motion for Summary Judgment and memorandum in support, ECF Nos. 32-33, and the Commissioner filed a Cross Motion for Summary Judgment and memorandum in support, ECF Nos. 35-36, which are now ready for recommended disposition. This action was referred to the undersigned United States Magistrate Judge ("the undersigned") pursuant to 28 U.S.C. §§ 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b), Eastern District of Virginia Local Civil Rule 72, and the April 2, 2002 Standing Order on Assignment of Certain Matters to United States Magistrate Judges. After reviewing the briefs, the undersigned makes this recommendation without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 7(J). For the following reasons, the undersigned RECOMMENDS that Plaintiffs Motion for Summary Judgment, ECF No. 32, be GRANTED, the Commissioner's Motion for Summary Judgment, ECF No. 35, be DENIED, and an Order be entered awarding Plaintiff disability benefits.

         I. PROCEDURAL BACKGROUND

         On July 11, 2013, Plaintiff protectively filed his application for DIB and SSI, alleging an onset date of October 31, 2010, due to a learning disability, scoliosis, attention deficit hyperactive disorder, and slight speech impairment. R. at 15, 58, 70-80, 91, 170-182, 202. His application was initially denied on January 14, 2014, and again denied upon reconsideration on October 1, 2014. R. at 15, 58-101. Plaintiff then requested a hearing in front of an administrative law judge, which was conducted on July 22, 2016. R. at 30-52. The Administrative Law Judge William T. Vest, Jr. ("the ALJ"), issued a decision denying Plaintiffs DIB and SSI applications on August 15, 2016. R. at 15-25. Plaintiff then filed a request with the Appeals Council to reconsider the ALJ's decision, which was denied by the Appeals Council on July 30, 2017. R. at 1-5. The Appeals Council denied Plaintiffs request for review because the Appeals Council found no reason under the rules to review the ALJ's decision, making the ALJ's decision the Commissioner's final decision. R. at 1. At no time during the administrative process did Plaintiff argue or assert that ALJs are inferior officers subject to the Appointments Clause.

         Having exhausted his administrative remedies, on October 2, 2017, Plaintiff filed his first complaint for judicial review of the Commissioner's decision. ECF No. 3. The Commissioner filed an Answer on December 22, 2017. ECF No. 7. The matter was referred to the undersigned U.S. Magistrate Judge ("the undersigned") on January 9, 2018. ECF No. 10. The Parties filed cross motions for summary judgment. ECF Nos. 12, 14. On August 14, 2018, Plaintiff filed a Motion for Leave to Amend Complaint and memorandum in support seeking to add Count II, which challenges the constitutionality of Commissioner's decision in Plaintiffs case. ECF Nos. 16, 17. The Commissioner filed a consent Motion for Leave to File Opposition to Plaintiffs Motion to Amend Complaint, ECF No. 19, which was granted, ECF No. 20. The Commissioner's Opposition to Plaintiffs Motion for Leave to Amend Complaint was filed on September 19, 2018. ECF No. 21. The Court then entered an Order setting a hearing on Plaintiffs Motion for Leave to Amend Complaint. ECF No. 18. Plaintiff filed a Motion for Extension to File Plaintiffs Rebuttal Brief, ECF No. 22, which the Court granted, ECF No. 23. The Court held a hearing on Plaintiffs Motion for Leave to Amend Complaint on September 20, 2018.[1] ECF No. 24. On October 9, 2019, Plaintiff filed a rebuttal brief, ECF No. 25, and on October 15, 2018, the Commissioner filed her reply, ECF No. 26. Thereafter on October 19, 2018, the Court granted Plaintiffs Motion for Leave to Amend Complaint and deemed Plaintiffs Amended Complaint ("Complaint") properly filed. ECF No. 27. On October 25, 2018, the Commissioner filed her Answer to the Complaint. ECF No. 29. On November 2, 2018, the Court granted the parties leave to file new cross-motions for summary judgment, ECF No. 30, after which the parties withdrew their earlier cross-motions for summary judgment. ECF Nos. 31, 34. On December 3, 2018, Plaintiff filed his second Motion for Summary Judgment and supporting memorandum, ECF Nos. 32-33, and on December 21, 2018, the Commissioner filed her second Cross-Motion for Summary Judgment and supporting memorandum, ECF No. 35-36. On January 4, 2018, Plaintiff filed a reply to the Commissioner's Cross-Motion for Summary. Therefore, the matter is now ripe for recommended disposition.

         II. RELEVANT FACTUAL BACKGROUND

         Plaintiff was born on August 2, 1985, and was twenty-five years old at the time of his alleged onset date of disability, making him a "younger individual" under the SSA's regulations. See R. at 32. See also 20 C.F.R. § 416.963(c) (defining anyone under the age of fifty as a "younger person."). On July 22, 2016, Plaintiff appeared, represented by Erick Bowman, Esq.[2] and testified before the ALJ at the administrative hearing. R. at 30, 33-42. The Plaintiffs mother, Karen Bennett, R. at 30, 42-48, and Linda Augins, an impartial vocational expert ("VE"), R. at 30, 48-51, also appeared and testified. The record included the following factual background for the ALJ to review:

         A. Plaintiffs Academic and Work History

         In 1989, Plaintiff was first deemed eligible for special education services by Virginia Beach City Public Schools. R. at 246, 256-57. At age four Plaintiff attended a handicapped preschool and thereafter continued with special education through elementary, middle, and high school. R. at 208, 246, 256-57. In high school Plaintiff was mainstreamed for English but performed poorly in that class. R. at 208. Plaintiff was unable to pass the Standard of Learning test, necessary to obtain a regular high school diploma, and ultimately graduated high school with a Special Diploma in 2005. R. at 208, 256-57.

         In 1999 Plaintiff was administered the Wechsler Intelligence Scale for Children - Third Edition ("WISC-III"), Wechsler Individual Achievement Test ("WIAT"), and the Development Test of Visual-Motor Integration ("VMI"). R. at 251. On the WISC-III, Plaintiff scored in the low average range for performance and verbal IQ and scored in the well below average/borderline range in all other categories. Id. Plaintiff also had a full scale IQ of 78, which falls in the well below average/borderline range. Id. The evaluator noted "these results place [Plaintiff] in the well below average to low average range of potential." Id. On the VMI, Plaintiff scored in the very low range, demonstrating that Plaintiff "probably encounters significantly more difficulty than is typical for his age group with the mechanisms involved in paper and pencil types of tasks." Id. On the WIAT, Plaintiff demonstrated "significant academic weakness in the areas of reading, writing, and math . . . [which] fall well below the average range and well below grade level expectations." R. at 251-52.

         A November 30, 2004 assessment for continued special education services indicated Plaintiff was receiving resource and vocational training in commercial food and that he was working toward a special education diploma. R. at 246. The evaluator identified problems with the legibility of Plaintiff s handwritten assignments unless Plaintiff is reminded to slow down and rewrite the assignment. Id. Plaintiff was provided extra time to complete assignments. Id. Plaintiffs academic achievement ranged from borderline to the extremely low range and, while Plaintiff was characterized as "diligent and cooperative" a "significant and unusual discrepancy between his ability and achievement was noted in the areas of reading, math, and written language." R. at 246-47. The assessment also indicated Plaintiff "had a job at Farm Fresh, but that his hours were gradually reduced until he had none on the schedule so [Plaintiff] quit." R. at 247.

         From 2005 to 2010 Plaintiff worked at Pizza Hut as a food preparer. R. at 257. Plaintiffs responsibilities included making pizza dough, setting up ingredients, stocking the back of the restaurant with deliveries, and assisting delivery drivers with folding boxes. R. at 33. Pizza Hut began reducing his hours until he was only working 2-3 hours a week. R. at 33, 37, 257. Although unconfirmed by the employer, Plaintiff and his mother believe the reduction in hours was the result of Plaintiff s inability to keep up with the pace of the work. R. at 37, 41, 44, 257. At some point during this employment Plaintiff moved and was no longer within walking distance from his job. R. at 33. Thereafter, Plaintiff either took public transportation to work or a family member would drive him. R. at 37. Ultimately, Plaintiff quit his job at Pizza Hut because the significant reduction in his hours made the cost of traveling to and from work prohibitive. R. at 37.

         B. Plaintiffs Function Report

         On September 4, 2013, Plaintiffs mother completed an Adult Function Report in which she indicated Plaintiff does some household chores, including mowing the lawn, raking leaves, pulling weeds, loading and unloading the dishwasher, and doing laundry with supervision. R. at 209, 211. Plaintiff can prepare quick and easy meals for himself including sandwiches, canned food, frozen entrees, and cereal. R. at 11. However, Plaintiff spends the majority of his time-10 to 12 hours a day-on his computer, playing video games, or watching television. R. at 209, 213. Plaintiffs mother reported no problems with personal care, but that Plaintiff needs special reminders to brush his teeth, use deodorant, and take showers. R. at 210-11. Plaintiff was unable to pass driver's ed in high school and does not have a driver's license. R. at 212. Plaintiff gets around by walking or by car, goes to the grocery store with his mother once every two weeks for an hour, and has no income or bills. Id. According to Plaintiffs mother, he has difficulty completing tasks, concentrating, understanding, and following instructions. R. at 214. Plaintiff can follow instructions if the instructions are detailed and Plaintiff goes slow but has a harder time with spoken instructions because he has nothing to refer back to. Id.

         C. Plaintiffs Medical Records

         On January 10, 2014, Plaintiff saw consultative examiner Rand Rhoad, Psy.D., for a mental evaluation and psychological testing. R. at 257. On mental status evaluation, Dr. Rhoad found Plaintiff generally intact with some deficits in immediate auditory memory skills. R. at 258. Plaintiffs composite scores on the Wechsler Adult Intelligence Scale - Fourth Edition ("WAIS-IV") was in the low average range. R. at 259. Plaintiffs scores were all in the low average range and Plaintiffs full scale IQ was also in the low average range. Id. Dr. Rhoad found no signs of exaggerated symptoms and determined Plaintiff was credible. R. at 260. Dr. Rhoad assessed Plaintiff had a learning disorder, adjustment disorder with depressed mood, personality disorder, and a global assessment of functioning ("GAF") of 55. Id. Dr. Rhoad concluded Plaintiff may be capable of performing simple repetitive work assignments, he likely would benefit from a job coaching program, and that he would "require a rather significant degree of extra supervision and assistance in performing of tasks on a consistent basis in the work environment." R. at 261.

         On January 13, 2014, Patricia Bruner, Ph.D., a state agency psychological consultant, reviewed Plaintiffs medical records and concluded Plaintiff was limited in understanding and memory, concentration and persistence, social interaction, and adaptive limitations. R. at 64-65. She found Plaintiff was moderately limited in his ability to understand and remember detailed tasks, comprehend and recall complex directions, carry out detailed instructions, maintain attention and concentration for extended periods, sustain an ordinary routine without special supervision, complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods, following complex directions, complete a normal workday/week, work without some additional supervision, interact appropriately with the general public, get along with coworkers or peers without distracting them or exhibiting behavioral extremes, interact with others, respond appropriately to changes in the work setting, and handle normal work stress. Id.

         On September 30, 2014, David Deaver, Ph.D., reviewed Plaintiffs medical records and agreed with Dr. Bruner's assessment that Plaintiff could engage in simple, repetitive tasks on a routine basis. R. at 88.

         D. Hearing Testimony

         At the hearing Plaintiff testified that he lived in a home with his mother, aunt, and uncle. R. at 34. Plaintiff has never lived alone. R. at 42. Plaintiff testified he was unmarried, had no children, no income, and that his mother supported him. Id. Plaintiff testified he had a special diploma and did not have difficulty with simple math, reading, or writing. R. at 35. Plaintiff stated he was not on medication and was not being treated. R. at 38. Plaintiff has never had a driver's license. R. at 39-40. Plaintiff testified that at home he mowed the lawn, did the dishes, took out the trash, and picked up heavy things when asked. R. at 35, 39. Plaintiff enjoyed video games and played in excess often hours per day. R. at 39. Plaintiff stated he often forgot to maintain his hygiene and his mother would have to help him pick out clothes, remind him to brush his teeth, put on deodorant, and shower. R. at 41. Plaintiff discussed that at his former job at Pizza Hut he made pizza dough, set up ingredients, stocked the back of the restaurant with deliveries, and assisted delivery drivers with folding boxes. R. at 33. Plaintiff testified Pizza Hut kept reducing his hours. Id. Plaintiff believed the reduction in hours was because he was too slow. R. at 41. Plaintiff testified he used to live within walking distance from Pizza Hut but that he moved fifteen to twenty minutes away and that it cost money for him to get to work. R. at 33, 37. Plaintiff stated he ultimately quit that job and has not looked for a job since then. R. at 33-34.

         Plaintiffs mother, Karen Bennett, also testified at the hearing. Ms. Bennett stated Plaintiff did not have a driver's license and she did not believe Plaintiff could live on his own or pay his own rent or bills. R. at 46. She believed Plaintiff would need a significant degree of extra supervision to perform tasks in a work environment. R. at 47. She stated he has needed extra supervision his whole life and got extra supervision through special education. Id. Ms. Bennett testified that Plaintiff regularly forgot to do common hygienic tasks and that she often reminded Plaintiff to do those things. R. at 43. She stated she had to help him shave because he would often miss spots and not shave close enough. Id. She testified Plaintiff could pick out his own clothes, but that she would have to make sure his clothes matched and were not wrinkled. Id. She stated he only had a few chores, but that he often forgot to do them; once reminded, he would be able to complete them. R. at 44. Ms. Bennett stated Plaintiffs main chores included mowing the lawn and taking out the garbage. R. at 45. She testified that she had to make sure Plaintiff completed his chores correctly. R. at 45. For example, when Plaintiff took the garbage out she had to make sure he got all the garbage and the garbage bag was tied correctly, R. at 45, and when Plaintiff mowed the lawn she had to make sure Plaintiff has not missed spots, R. at 44. Ms. Bennett testified that Plaintiff was often confused when given general directions and does not know where to start unless told specifically what needs to be done. R. at 45. She testified that Plaintiff would get depressed and during these times Plaintiff would lay in bed, watch television, would not smile or joke, stay in his room, and isolate himself. R. at 46. Ms. Bennett discussed Plaintiffs past work at Pizza Hut, noting that Pizza Hut reduced Plaintiffs hours to one day a week. R. at 44, 48. Plaintiff told her his reduction in hours was because he was unable to keep up with the tasks they gave him. R. at 44. She testified that when Plaintiff first began working at Pizza Hut they lived within walking distance of his work. R. at 48. When they moved they moved farther away but still lived close enough that Plaintiff could take a single bus to get there. R. at 48.

         At the hearing, the VE was presented with a total of three hypotheticals. The first hypothetical presented asked the VE to consider an individual with Plaintiffs age, education, and work experience with a residual functional capacity ("RFC") allowing for medium work as defined in the regulations, except that individual should not engage in frequent pushing or pulling with lower extremities and no climbing, and that the individual be limited to simple, repetitive non-production job tasks without frequent interactions with either the general public or coworkers. R. at 49. The VE testified that such an individual could perform work as an order picker, a hand packager, or an office cleaner and that a significant number of such jobs existed in the national economy. Id. For the second hypothetical, the VE testified that, assuming the same hypothetical individual, but the individual needed a significant degree of extra supervision and assistance in performing tasks on a consistent basis in a work environment, there would be no jobs available. R. at 50. For the third hypothetical, the VE testified that, assuming the first hypothetical individual, but with only superficial contact with coworkers and the public, the individual could still perform the work of an order picker or hand packager. Id. Lastly, upon questions by Plaintiffs counsel, the VE testified that it would be considered sheltered employment if an individual needed a job coach or job coaching program to maintain that employment. R. at 50-51.

         III. THE ALJ'S FINDINGS OF FACT AND CONCLUSIONS OF LAW

         A sequential evaluation of a claimant's work and medical history is required in order to determine if the claimant is eligible for benefits. 20 C.F.R. §§ 404.1520, 416.920; Mastro v. Apfel, 270 F.3d 171, 177 (4th Cir. 2001). The ALJ conducts a five-step sequential analysis for the Commissioner, and it is this process that the Court examines on judicial review to determine whether the correct legal standards were applied and whether the resulting final decision of the Commissioner is supported by substantial evidence in the record. Id. The ALJ must determine if:

(1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment.

Strong v. Astrue, No. 8:10-cv-00357, 2011 WL 2938084, at *3 (D.S.C. June 27, 2011) (citing 20 C.F.R. §§ 404.1520, 416.920); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (noting that substantial gainful activity is "work activity performed for pay or profit."); Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962) (noting that there are four elements of proof to make a finding of whether a claimant is able to engage in substantial gainful activity). "An affirmative answer to question one, or negative answers to questions two or four, result in a determination of no disability. Affirmative answers to questions three or five establish disability." Jackson v. Colvin, No. 2:13cv357, 2014 WL 2859149, at *10 (E.D. Va. June 23, 2014) (citing 20 C.F.R. § 404.1520).

         Under this sequential analysis, the ALJ made the following findings of fact and conclusions of law: First, the ALJ found that Plaintiff had not engaged in substantial gainful activity during the period from his alleged onset date of October 31, 2010 through his date last insured. R. at 17. Second, the ALJ determined that Plaintiff suffered from the following severe impairments: learning disorder NOS, personality disorder, osteochondral lesion of the left ankle, and obesity. Id. The aforementioned impairments were found to be severe as they caused more than minimal limitations in the Plaintiffs ability to perform basic work activities. Id. To the extent that Plaintiff alleged other impairments, the ALJ found such impairments to be non-severe because they either did not exist for a continuous period of twelve months, were responsive to medication, did not did require any significant medical treatment, or did not result in any continuous exertional or nonexertional functional limitations. R. at 18.

         With respect to Plaintiffs mental impairments, the ALJ found that when considered singly and/or in combination, these did not meet or medically equal the criteria of listings 12.02, 12.04, or 12.08. Id. Specifically, the ALJ found that Plaintiffs mental limitations did not satisfy "paragraph B" criteria because Plaintiff suffered only mild restrictions to activities of daily living; moderate difficulties in social functioning; moderate difficulties in concentration, persistence, and pace; and Plaintiff experienced no episodes of decompensation that had been of extended duration. R. at 18-19. The ALJ also found "paragraph C" criteria was not satisfied because the record did not indicate a medically documented history of impairments of at least two years' duration that has caused more than minimal limitations of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, as well as repeated episodes of decompensation, each of extended duration; a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demand or change in the environment would be predicted to cause the individual to decompensate; or current history of one or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. R. at 19-20. The ALJ also considered Plaintiffs obesity and determined it did not meet or medically equal a listing. R. at 20.

         Third, the ALJ determined that Plaintiff had the RFC to perform medium work as defined by the SSA regulations, except that Plaintiff could not push and/or pull with his lower extremities on more than a frequent basis, he cannot climb, and he is limited to simple and repetitive non-production pace job tasks without frequent interaction with the general public or co-workers. Id.

         While the ALJ determined that Plaintiffs medically determinable impairments could reasonably be expected to cause the symptoms alleged by Plaintiff, the ALJ found that "[Plaintiffs] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons discussed elsewhere in this decision. Specifically, he has had little to no treatment for his alleged symptoms, he did not stop working because of his impairments, and he has extensive activities of daily living." R. at 21.

         The ALJ noted that Plaintiff was in special education classes in school where he demonstrated the ability to work independently, ask for assistance when needed, following instructions, and complete assignments. Id. Plaintiff received extra time to complete written assignments, which contributed to his academic success. Id. Plaintiff has discontinued taking Ritalin, which he took in school and received a special education diploma. Id. The ALJ stated Plaintiff worked at Pizza Hut and he did not stop working because of his impairments, but rather that his hours were reduced to three hours a week and Plaintiff speculates that this reduction in hours was because he performed tasks too slowly. Id. Plaintiffs speculation was never confirmed by his employer, he did not have a job coach at that employment, and he testified he was able to perform his job duties without a problem. Id. Plaintiff stated he was not able to walk to work after his family moved. R. at 21-22. The ALJ determined that Plaintiffs alleged symptoms were not the reason he stopped working, that Plaintiff did not require a significant degree of extra supervision, and that there was no support for the need of a job coach. R. at 22.

         The ALJ gave moderate weight to the opinion of Dr. Rhoad. Id. The ALJ observed Dr. Rhoad's opinion that Plaintiff may be capable of performing some type of simple and repetitive work, but due to his learning disability he may benefit from a job-coaching program and that he would require a rather significant degree of extra supervision and assistance with performing tasks on a consistent basis in the work environment. Id. Dr. Rhoad also stated Plaintiffs tolerance for stress would be moderately limiting and that he could complete tasks associated with normal workday or workweek if provided appropriate employment opportunities and assistance. Id. The ALJ surmised that "[w]hile the record supports a capacity for no more than simple repetitive work, it does not support the need for extra supervision, a job coaching program, and limitations based on stress." Id. The ALJ concluded that Plaintiffs activities of daily living were extensive because he plays video games upwards often hours per day, can care for his personal needs, wash dishes, vacuum, sweep, cut grass, garden, and lift objects. Id. Plaintiff does not have problems with personal care but needs to be reminded to perform these activities. R. at 23.

         The ALJ gave moderate weight to the testimony of Plaintiffs mother and does not agree with her statements that Plaintiff needs extra supervision. Id. The ALJ noted that Plaintiffs mother testified that she had to remind Plaintiff to perform daily activities and help him shave. Id. Plaintiffs mother explained that Plaintiff had to be reminded to do his chores, must receive very specific directions one at a time, and that she had to follow-up on Plaintiffs chores to ensure he completed his tasks correctly. Id. She testified that Plaintiff did not have problems with co-workers at Pizza Hut but that he spends a lot of time in his room, is unable to foster friendships, and she agrees with Dr. Rhoad that Plaintiff needs supervision and limited contact with others. Id.

         The ALJ also considered, but did not assign weight to, the nontreating, nonexamining medical source opinions made by the state agency medical and psychological consultants. Id. The consultants found Plaintiff able to perform simple tasks without being required to have frequent interaction with others, but moderate limitations with completing a workday or workweek, as well as working without some additional supervision. R. at 23-24. The consultants determined Plaintiff had mild restrictions to his activities of daily living, moderate difficulties in maintaining social functioning and concentration, persistence, or pace, and that he had not experienced any repeated episodes of decompensation. Id.

         Fourth, the ALJ determined that Plaintiff was unable to perform his past relevant work as a kitchen helper because Plaintiff had ...


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