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Cote v. Colvin

United States District Court, W.D. Wisconsin

February 1, 2017

JASON COTE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          Stephen L. Crocker Magistrate Judge

         Plaintiff Jason Cote is seeking review of a final decision by defendant Carolyn W. Colvin, Acting Commissioner of Social Security, denying his claim for disability insurance benefits and supplemental security income under the Social Security Act. 42 U.S.C. § 405(g). On December 29, 2009, plaintiff filed an application for disability insurance benefits alleging that he had been disabled since June 1, 2009 as a result of a learning disability, attention deficit hyperactivity disorder, behavioral issues and high blood pressure. Admin. Rec. (AR) 418-21, 523. After Administrative Law Judge Arthur Schneider denied Plaintiff's claim on June 17, 2011, AR 216-25, plaintiff appealed and filed an application for supplemental security income on June 30, 2011.

         The Appeals Council remanded Plaintiff's case for a new hearing, directing the administrative law judge to consider both applications. AR 231-32. After a second hearing in November 2012, ALJ Schneider again denied Plaintiff's claim. AR 234-49. Plaintiff appealed and the Appeals Council remanded a second for (1) evaluation of the opinions of Dr. David Biscardi, a state agency consultant, and Dr. Gary Ludvigson, a consultative examiner; (2) further evaluation of Plaintiff's mental impairments in accordance with 20 C.F.R. §§ 404.1520a and 416.920a; (3) reconsideration of Plaintiff's residual functional capacity; and (4) additional evidence from a vocational expert. AR 264-66.

         A third hearing before a different ALJ was held on June 18, 2014. In a written decision dated August 8, 2014, ALJ Thomas Springer denied Plaintiff's claims. The ALJ found that even though plaintiff suffered from the severe impairments of attention deficit hyperactivity disorder and a learning disorder, he retained the residual functional capacity for work at all exertional levels subject to the following non-exertional limitations: (1) routine tasks; (2) being off task up to 10 percent of the workday in addition to regular breaks; (3) a reasoning development level of no more than two on the Dictionary of Occupation Title's General Educational Development scale; (4) little to no contact with the public; (5) only occasional interaction with co-workers and supervisors; (6) no fast-paced or production-rate tasks; (7) few if any workplace changes; and (8) no more than simple decision making. Relying on the testimony of a vocational expert, the ALJ found that plaintiff was capable of performing his past work as a housekeeper and stocker and bagger as well as work as an order filler, production worker and food checker. AR 18-47. The Appeals Council denied Plaintiff's subsequent request for review, making the August 2014 decision the final decision of the Commissioner.

         Plaintiff now seeks judicial review of that decision, asserting that he is entitled to an award of benefits because the ALJ committed five errors:

(1) he failed to explain why he did not adopt certain limitations assessed by the consulting physicians even though he gave the physicians' opinions significant weight;
(2) he did not explain how the limitations he did adopt accounted for Plaintiff's moderate limitations in concentration, persistence or pace and social functioning;
(3) he did not consider properly whether Plaintiff's impairments met or equaled Listing 12.05(c) (intellectual disability);
(4) he did not reach a well-supported conclusion with respect to Plaintiff's past work; and
(5) he gave incorrect and inadequate reasons for not finding plaintiff credible.

Dkt. 13.

         For the reasons discussed below, I am remanding this case so that the ALJ can adequately account for Plaintiff's moderate limitations in concentration persistence or pace and social functioning, support the limitations he adopts in his residual functional capacity assessment with evidence in the record and fully explain his listing analysis. Because I am remanding the case on other grounds, it is unnecessary to address Plaintiff's remaining challenges related to his past work and credibility. Finally, I am declining Plaintiff's request for a judicial award of benefits because plaintiff has not shown that the record compels a finding of disability.

         The following facts are drawn from the administrative record in this case:

         RECORD FACTS

         Plaintiff was born on April 2, 1987, making him 22 years old when he applied for benefits and 27 years old at the time of his third administrative hearing. AR 22, 176. Throughout preschool, elementary school and middle school, plaintiff lagged academically to the degree that he was placed in special education classes for most subjects. AR 27, 177. In October 1993, Plaintiff's full IQ score was 92; in October 1996, it was 81; and in January 1999, it was 78. AR 27. He was prescribed Ritalin but he stopped taking it because it made him tired. AR 192. After continuing to have problems during his freshman and sophomore years in high school, plaintiff left school and enrolled in a high school equivalency diploma program in May 2004. Id. He graduated in May 2005. AR 27.

         From 2004 to 2013, plaintiff worked for periods of three to six months as a housekeeper in a hotel, valet parking attendant, automotive shop worker, grocery stocker and fast food worker and shift manager. AR 183-89. He has problems with co-workers and supervisors. AR 195. Plaintiff's last job was as a food preparer at Arby's for 30 to 40 hours a week from April 13, 2013 to the beginning of August 2013. AR 179-81. He quit following an argument with his manager. He testified at the hearing that he would try to go back to work if a job was available to him. Id. Before starting work at Arby's, plaintiff collected unemployment benefits. AR 182. Although plaintiff alleges that he was disabled at that time, he needed to work for financial reasons. AR 183.

         Plaintiff has received minimal medical treatment for his alleged impairments. After plaintiff left school, there is little mention of cognitive delay or attention difficulties in his medical records until February 17, 2010, when he complained of fatigue and lack of focus during a physical examination. AR 27, 963. Plaintiff began taking Ritalin again as an adult in 2011, and he testified that it helps calm him. AR 192.

         On November 6, 2012, one of Plaintiff's treating physicians, Dr. Daniel Kattenbraker, completed a form related to Plaintiff's ability to perform work-related activities. AR 1429-30. He checked boxes stating that Plaintiff's impairments would preclude him from performing various tasks related to semi-skilled and skilled work for no more than 10 percent of the workday and tasks related to unskilled work for no more than five percent of the workday. Id. Dr. Kattenbraker found that plaintiff had no difficulties in performing daily activities, social functioning or maintaining concentration, persistence or pace. AR 1230.

         After plaintiff applied for social security benefits in 2009 and 2011, the agency referred him for consultative examinations of his mental impairments, and several state agency physicians reviewed his medical record. ...


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