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Jensen v. Berryhill

United States District Court, E.D. Wisconsin

April 25, 2018

CHRISTIANA JENSEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.

          DECISION AND ORDER

          LYNN ADELMAN DISTRICT JUDGE

         The Social Security Administration found plaintiff Christiana Jensen disabled as a child, awarding her supplemental security income benefits. After she turned 18, the agency reviewed her status under the rules for adults, finding her no longer disabled as of September 1, 2010. (Tr. at 116, 138, 171, 940.) Plaintiff challenged this determination, but an Administrative Law Judge (“ALJ”) upheld it following a hearing. (Tr. at 118-31.) Plaintiff sought judicial review, and I remanded the matter on the parties' stipulation. (Tr. at 1078-80.) The remand order indicated, in pertinent part, that:

the ALJ will reevaluate Plaintiff's residual functional capacity and account for all of her moderate and other limitations, including those resulting from her moderate difficulties in concentration, persistence, or pace; explain how the mental limitations in the residual functional capacity assessment were crafted and how they accommodate assessed limitations; and reevaluate the medical evidence including medical opinion evidence.

(Tr. at 1079.)

         The ALJ held a second hearing, at which he received additional expert testimony, then issued another unfavorable decision. Plaintiff again seeks judicial review, arguing that the ALJ failed to consider the opinions of two agency psychological consultants, who recommended a number of “moderate” mental limitations; improperly evaluated the credibility of her statements regarding the severity of her symptoms and limitations; and relied on flawed vocational testimony in concluding that jobs existed within her limitations.

         I. FACTS AND BACKGROUND

         A. Medical Evidence

         Plaintiff alleged disability based on a variety of impairments, including attention deficit hyperactivity disorder (“ADHD”), learning disorder, anxiety, depression, seizures, Tourette's syndrome, hearing loss, and fibromyalgia. She also reported a history of abuse and post-traumatic stress disorder symptoms. As part of its review of her status, the agency obtained the opinions of several consulting experts. The record also contains records and reports from treating sources.

         1. Consultants

         On September 14, 2010, Jack Spear, Ph.D., reviewed the record and prepared a psychiatric review technique form, evaluating plaintiff under Listing 12.02, organic mental disorders, and Listing 12.05, mental retardation. (Tr. at 407.) Under the “B criteria” of the Listings, he found mild restriction of activities of daily living; no difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, and pace; and no episodes of decompensation. (Tr. at 417.) In a mental residual functional capacity (“RFC”) report, he endorsed moderate limitations in her ability to carry out detailed instructions, maintain attention and concentration for extended periods, complete a normal workday without interruptions from psychological symptoms, and perform at a consistent pace without an unreasonable number of breaks. (Tr. at 403-04.) He concluded that plaintiff retained “the ability to perform (at least) unskilled work.” (Tr. at 405.)

         On January 20, 2012, Darrell Hischke, Ph.D., performed a mental status evaluation. Dr.

         Hischke opined that plaintiff no longer met the diagnostic criteria for ADHD, although she did continue to have some problems with concentration, likely due to her anxiety. Plaintiff also reported a history of Tourette's syndrome and seizures. She described the seizures as periods of time when she stares, lasting from 30 seconds to 10 minutes. She indicated that she had been told she had mental retardation, and she did have a learning disorder when she was in school. She had difficulty with big words and sometimes had trouble understanding instructions and needed reminders on how to complete a task. Dr. Hischke diagnosed anxiety disorder, not otherwise specified, and history of learning disorder, with a GAF of 70.[1]

         Regarding her ability to do work-related activities, he opined:

Her ability to understand, remember, and carry out instructions appears to be mildly limited. Her ability to sustain concentration, persistence, and pace appears to be mildly limited. Her ability to relate to supervisors and coworkers appears to be within normal limits. Her ability to cope with routine work stress and adapt to changes appears to be mildly limited.

(Tr. at 476.)

         On February 15, 2012, Janis Byrd, M.D., reviewed the record and completed a physical RFC assessment, listing a primary diagnosis of seizures and secondary diagnosis of chronic pelvic pain. (Tr. at 479.) Dr. Byrd opined that plaintiff could perform light exertional level work (Tr. at 480), with no further limitations other than avoiding even moderate exposure to hazards (machinery, heights, etc.) (Tr. at 483). Considering the medical evidence and plaintiff's reports, Dr. Byrd found a light RFC with a precaution for seizures reasonable. (Tr. at 486.)

         On February 16, 2015, Edmund Musholt, Ph.D., prepared a psychiatric review technique form, evaluating plaintiff under Listing 12.02, organic mental disorders, and 12.06, anxiety-related disorders. (Tr. at 495.) Under the B criteria of the Listings, he found no restriction of activities of daily living; no difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, and pace; and no episodes of decompensation. (Tr. at 505.) In a mental RFC report, he endorsed moderate limitations in her ability understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, complete a normal workday without interruptions from psychological symptoms, perform at a consistent pace without an unreasonable number of breaks, and respond appropriately to changes in the work setting. (Tr. at 487-88.) He concluded that Dr. Hischke's “assessment is reasonable and supports ability to perform unskilled work.” (Tr. at 489.)

         2. Treating Sources

         On March 1, 2011, plaintiff saw a therapist at Empower Counseling, complaining of difficulty sleeping, nightmares, and recurrent distressing memories. (Tr. at 769.) The therapist diagnosed learning disability, anxiety disorder with panic attacks, and mood disorder, with a GAF of 59. (Tr. at 770.) Plaintiff received counseling at this location from March to September 2011 (Tr. at 773-86) and at Professional Psychological Services in 2012 and 2013 for anxiety disorder (Tr. at 833-45).[2]

         On September 23, 2013, plaintiff saw Dr. Arshad Ahmed, a neurologist, for evaluation of her seizures, which she described as brief staring spells where she became unresponsive. She had previously been treated with Topamax and Clonidine but had been off those medications due to pregnancy and breast feeding. She was unable to elaborate clearly on the duration or frequency of these spells. She did not report a history of convulsive seizures. On exam, she displayed delayed thought processing and mild cognitive difficulties. (Tr. at 766.) Dr. Ahmed prescribed Lamictal. (Tr. at 767.)[3]

         On February 11, 2014, plaintiff saw Tim Caufield, Ph.D., for evaluation of possible cognitive limitations related to a history of seizure disorder and difficulties in the past when she attended school. (Tr. at 847.) Based on testing and interview, Dr. Caufield assessed major depressive disorder, generalized anxiety disorder, mild mental retardation, seizure disorder and Tourette's syndrome, with a GAF of 52 and a guarded prognosis. Regarding her capability for work, he stated: “She reportedly does not have difficulty following simple directions adequately, but is prone to seizure episodes, and mood fluctuations that would likely lead to difficulties with her ability to maintain competitive employment.” (Tr. at 851.) Plaintiff saw Dr. Caufield for counseling sessions through July 2014. (Tr. at 852-62.)

         On October 31, 2014, Michael Kula, Psy.D., completed a neuro-cognitive evaluation at the request of Dr. Ahmed. (Tr. at 18). Dr. Kula diagnosed adult attention deficit disorder, pervasive learning disability, anxiety disorder, and dysthymic disorder-severe. On testing, her abilities predominantly fell in the low average range, commensurate with her prior learning disability and underlying attention deficit disorder. The test data also indicated adequate functioning with regard to her frontal lobe functioning, in that she was able to address simple, moderate, and even moderately complex measures of frontal lobe functioning appropriately. However, she would have difficulty with regard to extremely complex measures of frontal lobe functioning. Therefore, she would have difficulty in being able to establish, maintain, and change mental sets, as well as initiate, plan, and organize activities and projects. Likewise, she would have difficulties with regards to concept formation, flexible problem solving, planning coherently, working methodically, setting priorities, and strategizing mindfully. It appeared that her pre-existing learning disability, attention deficit disorder, as well as her severe level of anxiety and depression, were seen as the etiology for her difficulty in being able to focus, attend, and concentrate on information. Dr. Kula recommended psycho-pharmacological and psycho-therapeutic treatment for her severe levels of anxiety and depression. (Tr. at 23.)

         In a January 16, 2015, report, Dr. Ahmed listed a diagnosis of generalized non-convulsive epilepsy, with a stable prognosis, and symptoms of brief staring episodes and short-term memory impairment, which would occasionally interfere with the attention and concentration needed to perform even simple work tasks. (Tr. at 33.) He opined that plaintiff could continuously sit for 20 minutes and stand for 20 minutes, and in an eight-hour workday stand/walk for about four hours and sit for at least six hours. (Tr. at 33-34.) She also required a job that permitted shifting positions at will and unscheduled breaks. She could frequently lift 10 pounds, occasionally 20, and occasionally engage in postural movements. (Tr. at 34.) Her impairments were likely to produce good and bad days, and more than four absences per month. These limitations applied since September 23, 2013. (Tr. at 35.)

         Finally, plaintiff received chiropractic treatment from Michael Anderson, D.C., for neck, upper back, shoulder, and lower back pain.[4] On August 30, 2016, Dr. Anderson opined that plaintiff may be able to tolerate 16-20 hours of work per week with sedentary to light duty activities. (Tr. at 1562.)

         B. Hearing Testimony

         1. First Hearing

         On July 8, 2014, plaintiff appeared with counsel for a hearing before the ALJ. (Tr. at 45.) The ALJ also summoned a medical expert and a vocational expert (“VE”). (Tr. at 46.)

         a. Plaintiff

         Plaintiff testified that she was 23 years old, married, with two children, ages five and one. (Tr. at 52-53.) She graduated high school, in special education classes. She had never worked full-time (Tr. at 53) but had worked part-time at the YMCA and a card outlet shop (Tr. at 54-55). She was then being assisted by DVR with interviews/resumes and training to work as a crew member at Wendy's. (Tr. at 55-57.) She did not yet have a driver's license, having failed the test numerous times. (Tr. at 76.) Her husband drove her. They had been married about three years. (Tr. at 58.) She cared for the children while her husband worked. (Tr. at 59.)

         Plaintiff testified that on a typical day she would wake up, make cereal for breakfast, and watch a movie or go outside to play with the kids. (Tr. at 59.) She would read books to them “that are little and not as many words.” (Tr. at 60.) They would have lunch and do more playing or getting things done around the house. Her husband prepared notes for things that needed to be done, which he would read to her a few times. (Tr. at 60.)

         Plaintiff testified that she was able to attend to her own hygiene and prepare simple meals for herself and the children. (Tr. at 61.) She was also able to do a little bit of cleaning but had problems bending because of her back. She saw a chiropractor every week, which helped. She was able to walk without a cane or assistive device. (Tr. at 62.) She was unable to do laundry by herself because of the weight, but she could operate the machine. (Tr. at 63.) If she shopped by herself she would get distracted and buy junk food. (Tr. at 64.) She was able to use a food stamp card to checkout. She also played card games and watched TV with the kids. (Tr. at 65.) She had one friend she texted, but they did not really spend time together. (Tr. at 66.) She had a computer at home but no internet, and they just used it for music. She played X-box once in awhile. (Tr. at 67.) She denied other hobbies. (Tr. at 68.) Plaintiff testified that she had nerve problems - her left arm went numb, and she got a lot of pain in her shoulders and upper back. (Tr. at 69.) She saw the chiropractor for that. (Tr. at 70.) She took “brain pills” for her staring spells, which helped. (Tr. at 70-71.) She was able to follow a routine and take her pills as prescribed. (Tr. at 77-78.) During these spells, which lasted from 10 seconds to 10 minutes, she would just stare and do nothing. On the medication, they happened once or twice per day; she did not know how often the spells happened before the pills. (Tr. at 75.) Her daughter recognized when she was having a spell and would try to get her out of it, smacking her face. (Tr. at 76.) She did not worry about taking care of her children when he had a spell, and she had never been to the emergency room because of a spell. (Tr. at 77.) She also saw a psychologist once or twice per week for counseling, which she found helpful. (Tr. at 72-74.) She did not think she could live on her own. (Tr. at 76.)

         b. Dr. Kravitz

         The medical expert, Larry Kravitz, a psychologist, identified severe impairments of anxiety disorder and learning disability; his review of the file did not support a finding of ADHD. (Tr. at 82-83.) However, he noted that the record at that point did not include the DVR records or the records from plaintiff's treating psychologist. (Tr. at 89.) He continued:

[T]he claimant presents to me here as fairly concrete. Her word usage is very limited, her grammatical use is very simplistic. She seems to become confused on a periodic basis with any communication that's more than very simple in nature. So she seems more limited than the record would indicate.

(Tr. at 92.)

         Based on the record, however, Dr. Kravtiz testified that plaintiff did not meet or equal a Listing. (Tr. at 92.) On review of the B criteria, he found moderate restriction in activities of daily living, social functioning, and concentration, ...


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