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Hackel v. Colvin

United States District Court, E.D. Wisconsin

February 22, 2016

DAWN M. HACKEL, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


NANCY JOSEPH, United States Magistrate Judge.

The plaintiff, Dawn M. Hackel, seeks judicial review of the final decision of the Commissioner of the Social Security Administration denying her claim for disability benefits and disability insurance benefits under the Social Security Act, 42 U.S.C. § 405(g). For the reasons stated below, the decision of the Commissioner is affirmed.


On December 23, 2010, Hackel applied for disability benefits and disability insurance benefits, alleging she had been disabled since December 1, 2009 due to cognitive and learning disabilities, attention deficit/hyperactivity disorder (“ADHD”), speech disorder, and difficulty with memory, concentrating, and thinking. (Tr. 219.) The claims were denied initially and upon reconsideration. A hearing was held before an Administrative Law Judge on May 15, 2013. Hackel appeared and testified, as did her father, Donald Hackel. Jeffery W. Lucas, a vocational expert, also testified at the hearing. (Tr. 23.)

In a written decision issued July 10, 2013, the ALJ found Hackel did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (the “Listings”). The ALJ further found Hackel had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, but with the following non-exertional limitations: limited to simple, routine, and repetitive work tasks; make only simple work related decisions; have only occasional contact with coworkers and supervisors; and never perform work that requires public contact. (Tr. 29.) The ALJ’s decision became the Commissioner’s final decision when the Appeals Council denied the plaintiff’s request for review.


1. Medical Evidence and Opinions

1.1 Treating Sources

On January 20, 2011, counselor Sofia Majid-Swanton conducted an initial information meeting with Hackel. Majid-Swanton noted that Hackel presented with a diagnosis of a learning disability (“LD”) and ADHD. (Tr. 325.) She noted that Hackel’s past treatments included participation in special education for all of her classes with the following accommodations: extra time for testing, reading, smaller room for testing, and tutoring. (Tr. 325-26.) Majid-Swanton stated that Hackel had a severe limitation in the area of work tolerance because she had difficulty remembering directions and following through on work tasks. (Tr. 326.) Hackel had a severe limitation in the area of work skills because she required a job coach to learn the jobs tasks of a minimum wage job. (Id.) Majid-Swanton further stated that Hackel had a severe limitation in the area of interpersonal skills because she had difficulty getting along with others on the job and had limitation in the area of self care because her parents paid bills for her. (Id.) Otherwise, Majid-Swanton noted that Hackel lived independently and was independent with her activities of daily living. (Id.) Hackel could also drive independently. (Id.) Finally, Majid-Swanton noted that Hackel had a limitation in the area of self direction because she had to go to her supervisor on occasion with assistance in decision making. (Id.)

On February 25, 2011, Hackel underwent an evaluation with Dana Ray Bernstein to assist with differential diagnosis and vocational planning. (Tr. 308.) Bernstein observed that Hackel was redundant about her history and frequently needed redirection. (Id.) Bernstein noted that interaction with Hackel was sometimes challenging because of her redundancy and seeming inability to process or make use of explicit feedback or to take cues from redirection. (Id.) Bernstein stated that Hackel lacked verbal inhibitor and self-monitoring skills and seemed unaware of immediate social impact. (Id.) Bernstein observed Hackel had a frustrated mood and became tearful during testing. (Tr. 309.) Hackel was sometimes fidgety and Bernstein noted sustained attention and concentration were limited. (Id.) Bernstein noted that Hackel lived alone in a condominium and that her father and brother provided her financial support. (Tr. 331.) Hackel began having delays at age two and had early childhood intervention. (Tr. 331-32.) She was diagnosed with ADHD as a child, but never took medication. (Tr. 332.) Hackel was “always” placed in LD classes. (Id.)

Bernstein administered the Wechsler Adult Intelligence Scale, fourth edition (WAIS-IV) test, in which she determined Hackel had a full scale IQ of 65. (Id.) Hackel obtained psychometric scores ranging from severely impaired to low average. Her IQ put her in the mildly impaired (toward borderline) range (R. 333.) Bernstein also administered the Woodcock-Johnson III Test. Bernstein opined that Hackel functioned in the mildly impaired range of intellectual abilities and noted that her basic academic abilities equaled or usually exceeded expectation. (Tr. 337.) Bernstein opined that Hackel did not have a learning disorder and stated that “her somewhat better than expected performance on some academic tasks might make one wonder whether she has modestly higher intellectual potential if only she could better direct her attention, monitor and regulate her own actions.” (Id.) (emphasis in original). Bernstein found that Hackel’s in-person presentation was highly consistent with a person who had ADHD. (Id.) Bernstein opined that Hackel would benefit from ADHD medication and noted that “[i]f Ms. Hackel were to have a positive response to medication, a much wider range of potential job placements might be possible.” (Tr. 337-38.) However, Bernstein opined that “[a]t this time, Ms. Hackel would need special job placement with job coaching” and that “[t]ask complexity and limited opportunity for social interaction would be primary placement considerations.” (Tr. 338.) Bernstein further opined that “unless Ms. Hackel were to have a favorable medication response, it would seem reasonable that some consideration be given to appealing her denial of Social Security Disability benefits because Ms. Hackel would likely eventually need to be placed at a sheltered work site (which she would likely reject).” (Id.) Bernstein diagnosed Hackel with ADHD-Not Otherwise Specified (“NOS”) and mild mental retardation. (Tr. 339.)

On March 2, 2011, Majid-Swanton again saw Hackel and noted that she presented with the primary diagnosis of ADHD-NOS and mild mental retardation, which was diagnosed by Bernstein. (Tr. 324.) Majid-Swanton noted that it was evident during intake that Hackel had a severe limitation in the area of communication because she was redundant and obsessed about a certain issue and continually repeated herself when talking with others. (Id.) Majid-Swanton noted Hackel needed constant redirection and had severe limitations in the area of interpersonal skills because she lacked verbal inhibition and self monitoring skills. (Id.) Majid-Swanton also noted Hackel had severe limitations in the area of work skills because she required a job coach to learn her job skills and how to get along with others. (Id.) Hackel stated that she had a difficult time remembering directions and following through on work tasks. (Id.) Majid-Swanton found Hackel limited in the area of self direction because she stated she would need to consult with her supervisor if she was unsure about what decision to make at work. (Id.) Majid-Swanton also opined that Hackel was not limited as to mobility, self-care, and work tolerance, but was severely limited in communication, interpersonal skills/acceptance, and work skills. (Tr. 327-28.)

On March 7, 2011, Hackel was evaluated by Christina Engen, Ph.D of the Wisconsin Forensic Unit regarding her competency to proceed in a criminal proceeding. (Tr. 617.) Dr. Engen noted that Hackel demonstrated poor interpersonal boundaries throughout the interview but responded to strong and sometimes repeated redirection and structure. (Tr. 619.) Dr. Engen found, based on Hackel’s history and her manner of interaction, that Hackel had borderline intellectual functioning, but that her attention and concentration were sufficiently intact. (Id.) Dr. Engen opined that Hackel’s “personality structure” presented challenges when interacting with others, including court principles. (Tr. 621.) She found that Hackel was inclined to violate or intrude on interpersonal boundaries, was not inclined to be sensitive to social nuances, and would likely benefit from clear communication and expectations about her behavior. (Id.) Dr. Engen stated that “[t]hese aspects of [Hackel’s] functioning [did] not reflect an underlying mental illness or otherwise fall outside of her control. Rather, they appear[ed] to reflect the product of her underlying characterological structure.” (Id.) Dr. Engen opined that Hackel was competent to proceed and stated that although Hackel had impaired interpersonal skills, she found no information to suggest that she could not interact with her attorney other court principals in an appropriate manner. (Tr. 622.)

On March 9, 2011, Hackel wrote a letter to Jason Bergh with the Social Security Administration stating that she was under a lot of stress and frustrated at the time of her February 2011 evaluation with Bernstein because it brought up past memories, her mother had been sick and died three weeks prior to taking the test, and her father had been hospitalized just before the evaluation. (Tr. 306.)

On March 22, 2011, Hackel was evaluated by James Paquette, Ph.D. (Tr. 342.) Dr. Paquette noted Hackel appeared mildly anxious, but that her attention and concentration were adequate. (Id.) Dr. Paquette stated that Hackel’s vocabulary was in the borderline/very limited range and that she participated in special education classes throughout elementary, middle, and high school. (Id.) Dr. Paquette noted that Hackel resided independently in an apartment. (Tr. 343.) As to her work history, Dr. Paquette noted that Hackel had an “intermittent work history in entry level employment, ” with her longest period of employment being five years. (Id.) Hackel was laid off from that position due to downsizing. (Id.) Dr. Paquette noted that Hackel was able to work with co-workers and supervisors and could accept directions, constructive criticism, and changes in work routine. (Id.) Dr. Paquette further noted that Hackel cared for her elderly father without compensation, was autonomous concerning hygiene and self-care, was able to cook simple meals, launder independently, dined out with friends, shopped for groceries, and attended church. (Id.) Hackel’s father and brother occasionally supervised her budgeting and paying bills. (Id.) Dr. Paquette noted that Hackel described socializing with “a number of female peers” and found no evidence of a personality disorder. (Id.) Dr. Paquette stated that Hackel’s borderline intellectual functioning was “evident” and found that she had limited reading comprehension ability, which suggesting a learning disorder - NOS. (Tr. 344-45.) Dr. Paquette assessed a GAF score of 51.[1] (Tr. 345.)

Hackel met with Majid-Swanton on March 31, 2011 regarding her job search. (Tr. 371.) Majid-Swanton noted that Hackel tended to get side-tracked and needed to lead the conversation back to the task at hand. (Id.) Majid-Swanton stated that Hackel was “still bent about being labeled as mentally retarded.” (Id.)

Hackel treated with Karyn Gust-Brey, Ph.D at the Waukesha County Department of Health and Human Services approximately every two weeks from May 23, 2011 until May 21, 2012. During the intake assessment, Dr. Gust-Brey noted that Hackel’s memory and concentration were intact; however, Hackel reported difficulty in both areas in terms of work history. (Tr. 426.) Dr. Gust-Brey noted Hackel repeated herself frequently and estimated that she was of below average intelligence. (Id.) Hackel reported that she received learning disability services in school, was “slow, ” and had recently completed psychological testing which indicated mild mental retardation. (Id.) Dr. Gust-Brey noted Hackel lived on her own, but received financial and other assistance from her father. (Tr. 427.) Dr. Gust-Brey noted Hackel experienced a long history of employment difficulties and was unable to perform well on the job because of difficulties understanding and/or remembering things. (Id.) Hackel stated that she could perform simple, repetitive jobs. (Id.) Dr. Gust-Brey diagnosed Hackel with adjustment disorder with mixed anxiety and depressed mood, mild mental retardation, and assessed a GAF of 50. (Tr. 427.)

In the sessions that followed Hackel’s initial assessment, Dr. Gust-Brey consistently noted that Hackel’s symptoms included anxiety, depression, loss of mother, low self-esteem, and difficulty coping with employment issues because of disability. (Tr. 416-23, 438, 451-55, 460-61, 763-65.) Dr. Gust-Brey also noted that Hackel managed her stress and depression by staying active, including by socializing with family and friends. (Tr. 416-18, 420-22, 438, 453-55, 461, 469.)

While treating with Dr. Gust-Brey, Hackel underwent several competency evaluations regarding her ability to stand trial in a criminal matter. The record indicates that Hackel did not tell Dr. Gust-Brey about her legal problems, only that she “had an emergency” and a “personal situation.” (Tr. 763, 765.) On August 5, 2011, Hackel was evaluated by Dr. Erik Knudson. (Tr. 612-16.) Dr. Knudson noted that Hackel would not stop talking while he explained information and although he asked her to several times to stop and listen, she would not. (Tr. 613.) Dr. Knudson noted that Hackel was diagnosed with a learning disability as a child, was in special education classes, and has never lived independently. (Id.) Upon mental status examination, Dr. Knudson noted that Hackel spoke rapidly, that it was difficult to follow her train of thought at times due to her rate of speech, that she had a harsh tone and was argumentative, that she repeated herself, and that it was difficult to redirect her attention to other matters for more than a few seconds at a time. (Tr. 615.) Dr. Knudson stated that Hackel appeared to have below average intelligence, but her recent and remote memory were intact. (Id.)

Dr. Knudson diagnosed her with pervasive developmental disorder-NOS, borderline intellectual functioning, and mood disorder-NOS. (Id.) Dr. Knudson opined that Hackel had prominent difficulties with interpersonal relatedness and that it “appear[ed] clear that she [had] deteriorated in terms of her mental stability over the past year.” (Id.) He found that Hackel exhibited symptoms of a mood disorder, but was unwilling to consider treatment. (Id.) Dr. Knudson opined that Hackel’s intellectual abilities fell within a range between normal and mental retardation. (Id.) As a result, Dr. Knudson opined that Hackel lacked the substantial mental capacity to understand the proceedings and assist in her defense presently, but was likely to be restored to competency if provided treatment. (Tr. 616.) Dr. Knudson opined that Hackel needed psychotropic medications and that “[o]nce her emotional difficulties [were] improved, it [was] anticipated that she [would] be able to resume her prior level of functioning.” (Id.)

On January 5, 2012, Hackel underwent an additional competency evaluation by Brooke Lundbohm, Psy.D. (Tr. 527-33.) Dr. Lundbohm noted that Hackel exhibited marked thought disorganization, rapid and rambling speech, illogical thought processes, irritability, poor social boundaries, and impaired emotional control. (Tr. 530.) Dr. Lundbohm noted that Hackel was markedly difficult to engage in productive, collaborative discussion regarding her pending legal case and available legal options. (Id.) Hackel repeated the same statements over and over again. (Tr. 531.) Dr. Lundbohm diagnosed Hacked with pervasive development disorder-NOS, borderline intellectual functioning, anxiety disorder-NOS, and personality disorder-NOS. (Id.) Dr. Lundbohm opined that Hackel presently lacked the substantial mental capacity to rationally and factually understand her charges, participate in the court proceedings, or communicate with her defense attorney to aid in her own defense. (Tr. 532.) Dr. Lundbohm noted that Hackel’s mental status had declined since the March 2011 evaluation in which she was found competent to proceed. (Id.) Dr. Lundbohm noted that Hackel repeated her desire to be found not competent in an effort to have her charges dismissed, which she felt was indicative of her distorted thought processes and impaired reasoning capacities. (Tr. 533.) Dr. Lundbohm further opined that with treatment, Hackel would “more likely than not” attain competency within the available statutory time frame. (Id.)

After Dr. Lundbohm’s evaluation, Hackel underwent a legally mandated hospitalization. (Tr. 486.) She was admitted on January 20, 2012, and a staff psychiatrist, Dr. Marshall Bales, conducted an initial assessment. (Tr. 486-87.) He stated that her “chief complaint” was “[p]lain and simple, I want to be incompetent.” (Tr. 486.) Dr. Bales noted that Hackel underwent numerous evaluation of competency with some varying diagnostic impressions and varying impressions on competency. (Id.) Dr. Bales noted that Hackel’s records suggested some impairments in cognition and disorganized thought. (Id.) He noted Hackel’s history of special education classes in school and that she repeated the issue of competency. (Id.) Dr. Bales listed her current problems as pending legal charges, possible borderline intellectual functioning, and lack of insight. (Tr. 487.) He estimated her treatment to take 7-30 days. (Id.)

An initial assessment by social services on January 23, 2012 noted that Hackel had a history of special education; had never lived independently, residing in the family home for all of her life; and appeared motivated to present herself as a self-sufficient and capable woman, stating that she drives a car, takes care of herself, and can get herself out of the legal situation. (Tr. 575.) The social worker noted that Hackel stated she was seeing a therapist at Waukesha County Human Services for “stress, anxiety, adjustment disorder - nothing clinical.” (Id.)

While undergoing inpatient treatment, progress notes showed on January 27, 2012 that Hackel stated “I have to keep acting incompetent while I’m here to get my charges dropped for my drunk driving, ” “I had no choice my attorney told me I have to do this to get my charges dropped, ” and “I just want to go home, this is taking too long to prove my disabilities, but I have to keep acting incompetent.” (Tr. 703.)

A therapeutic services screening was conducted on January 30, 2012. (Tr. 582.) The evaluator noted that Hackel had her own place and also stayed with her father. (Id.) Hackel used to bowl on a league. (Id.) While she was able to communicate, she often stated the same information a number of times. (Id.) The evaluator noted that Hackel was rather animated about being “incompetent” and that she had “disabilities” and that “things aren’t going to change.” (Id.) The evaluator noted that Hackel was able to attend to an activity for at least 30 minutes and that she had good memory recall. (Tr. 583.)

On January 31, 2012, a speech and language services evaluation was conducted. (Tr. 505.) The evaluator found that Hackel demonstrated below average skills in the ability to comprehend written and spoken language, which could be exacerbated by her decreased attention to task. (Tr. 508.) Hackel showed difficulty with expression, which demonstrated a below average ability to express herself using sentences. (Id.) The evaluator found that Hackel’s test scores suggested that she might lack the content, knowledge, and vocabulary to express her ideas and understand ideas of others. (Id.) The evaluator also found that Hackel’s limited knowledge and vocabulary contributed to her having difficulty learning new information. (Id.) Hackel showed decreased recall of new information after a delay. (Id.) These deficits were observed during testing and conversation, particularly regarding her wanting to be deemed incompetent. (Id.) The evaluator noted Hackel seemed to repeat wanting to be deemed incompetent. (Id.) The evaluator found that reading was a weakness, and when possible, unfamiliar information should not be presented in this form. (Id.)

On February 1, 2012, social services conducted an additional evaluation of Hackel. (Tr. 577.) The evaluator stated that Hackel’s father confirmed that she had been “slow” since she was 2 or 3 years old and that she showed poor judgment and could not follow directions. (Tr. 577.) The evaluator noted Hackel continued to have difficulties with social interactions, cognitive impairment, and deficits in receptive language skills. (Tr. 579.)

Inpatient records noted on February 12, 2012 that Hackel threw a cup of ice at a peer. (Tr. 643.) A record from February 13, 2012 showed Hackel’s cognition, insight, and judgment were impaired and that she continued to be incompetent to proceed. (Tr. 718.) On February 14, 2012, Dr. Philip Sweet, a staff psychiatrist, evaluated Hackel’s competence and issued a report to the judge. (Tr. 472.) Dr. Sweet opined that Hackel had pervasive development disorder-NOS and that it was “of a fairly mild degree” and that she was competent to proceed. (Tr. 474.) A treatment record dated February 21, 2012 assessed her GAF score at 52, as did a record dated February 28, 2012. (Tr. ...

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