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Kelley v. Colvin

United States District Court, N.D. Indiana, Hammond Division, Lafayette

February 10, 2014

JASON D. KELLEY Plaintiff,


JON E. DEGUILIO, District Judge.

On November 21, 2012, Plaintiff Jason D. Kelley ("Kelley"), by counsel, filed his Complaint seeking review of the final decision of the Defendant Commissioner of Social Security ("Commissioner") [DE 1]. The Commissioner filed an Answer to Kelley's Complaint on February 11, 2013 [DE 11]. On May 2, 2013, Kelley filed his brief in support of his request to reverse the decision of the Commissioner [DE 15], to which the Commissioner responded on June 28, 2013 [DE 16]. On July 18, 2013, Kelley filed his reply [DE 19]. The matter is now ripe for ruling and jurisdiction is established pursuant to 42 U.S.C. ยง 405(g).


On August 25, 2010, Kelley filed a Title II application for disability insurance benefits ("DIB") and supplemental security income ("SSI") (Tr. 78-81), alleging a disability since August 1, 2010 resulting from a learning disability, mental retardation, ADHD, and problems with reading. (Tr. 224).[2] Kelley's applications were initially denied on September 3, 2010, and again upon reconsideration on October 28, 2010. (Tr. 82-95). Consequently, on November 2, 2010, Kelley requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 100-01).

On June 30, 2011, Kelley, represented by counsel, appeared and testified at a hearing held before ALJ Jason Mastrangelo in Valparaiso, Indiana. (Tr. 32-61). Kelley's mother, Margaret Sako, and a Vocational Expert ("VE"), Leonard Marion Fisher, Ph.D., also testified. (Tr. 61-76). Thereafter, the ALJ determined that Kelley was capable of performing his past work and other work in the economy, and thus, did not qualify for benefits. (Tr. 26). Kelley requested that the Appeals Council review the ALJ's decision, but his request was denied on August 16, 2012, making the ALJ's decision the Commissioner's final decision. (Tr. 5).


A. Medical Background

Kelley was born on May 20, 1982; therefore, he was 28 years old when he applied for disability and 29 years old on the date the ALJ issued his decision. (Tr. 38). A sixth grade educational evaluation completed in September 1994 provided that Kelley functioned academically at a first or second grade level. (Tr. 254). Various tests were also performed in September 1994, including the Wechsler Intelligence Scale for Children Test Third Edition ("WISC-III"), Wechsler Individual Achievement Test, the Adaptive Behavior Scale ("ABS"), and the Developmental Test of Visual-Motor Integration. (Tr. 182-188, 252-54). The WISC-III yielded a full-scale IQ score of 56, a verbal IQ score of 66, and a performance IQ score of 59, and these scores fell within the mild mentally handicapped range. (Tr. 184, 253). Additionally, the WISC-III revealed that Kelley's short term auditory memory was in the low average range, attention to visual detail and speed at remembering and reproducing symbols were in the borderline range, and all other subtests were within the mental retardation range. (Tr. 253). The ABS indicated that, while Kelley's personal self-sufficiency and social/personal adjustments were well developed, Kelley exhibited deficits in community self-sufficiency and social/personal responsibility. (Tr. 253). Overall, the tests revealed that Kelley's intellectual ability fell within the mildly mentally handicapped range and that his academic skills were within the first to second grade range. (Tr. 255). Accordingly, school psychologist Gail Mayton noted that Kelley still needed the school's special education services. (Tr. 254). September 1994 notes from Kelley's teachers indicate that they observed Kelley having continued difficulty with staying on task and completing homework and he often needed instructions repeated, however he did get along with his peers. (Tr. 187).

On September 27, 1995, WISC-III test results indicated that Kelley had a verbal IQ score of 66, a performance IQ score of 59, and a full-scale IQ score of 56. (Tr. 255). The Wechsler Individual Achievement Test revealed that Kelley performed reading, writing, and math skills at the first and second grade levels. (Tr. 255).

An annual review conducted in November 1995 indicated that Kelley was enrolled in the seventh grade in the mildly mentally handicapped program and he was functioning "very low" in the program compared to his program peers, he was having difficulty with memory and abstract reasoning, and he was reading at a second grade level. (Tr. 171-79). The records also indicated that he was earning low grades in his classes. (Tr. 174).

For the 1996-1997 academic school year, administrators again placed Kelley in a special education program for most of the school day because of his mildly mentally disabled status. (Tr. 165-70, 180). The records additionally noted that Kelley's skills were well below functional levels, he did not complete homework, and he was on Ritalin for ADHD.

On October 23, 1997, when Kelley was in the ninth grade, his level of functioning was re-evaluated. (Tr. 247-51). Testing revealed that Kelley had a verbal IQ score of 56, performance IQ score of 68, and full-scale IQ score of 58. (Tr. 248). The Adaptive Behavior Evaluation Scale (School Version) ("ABES-R") indicated that his adaptive behavior quotient[3] was just below average. (Tr. 250). School Psychologist Jennifer Koskey explained that Kelley "continue[d] to function in the range of a student who is mentally handicapped." (Tr. 251). She further asserted that, while Kelley increased his grade level in math, he continued to function at second and third grade levels with respect to his reading and spelling skills. (Tr. 251). She also noted that his adaptive behavior quotient was somewhat higher than expected, his self-care and communication skills were well developed, and he was able to complete simple household tasks and fix simple meals. (Tr. 251). However, she also recognized that Kelley experienced difficulty getting started on assignments and finishing them accurately after instructions were provided. (Tr. 251).

In March of 1999, Kelley's individualized education program report noted that he was pursuing a special education curriculum which focused on vocation and life skills. (Tr. 257). The report indicated that his reading skills were poor, he needed a lot of help with assignments for any general education class, and he functioned at a moderate mentally handicapped level. (Tr. 256, 259). In describing Kelley's strengths, the report noted that Kelley had good work habits and communication skills, and he worked well with his hands. (Tr. 258). The school ultimately implemented a series of educational modifications and accommodations to assist Kelley with his ability to learn, which included among other things the need to give written directions to supplement verbal directions, reduce visual distractions, and provide individualized allotted time to complete assignments. (Tr. 266).

Kelley's participation in the school's work experiences program in 1999/2000 and 2000/2001 revealed that he received good reviews, although he required more attention and direction than other employees in many aspects. (Tr. 274-77). Specifically, a review from his employer revealed that Kelley required more attention than other employees with regard to remembering instructions, performing tasks that required some imagination or decision-making, and taking initiative on the job. (Tr. 276). He also had some difficulty with remaining on task.

On November 13, 2000, school personnel conducted an assessment of Kelley's functioning. (Tr. 244-46). At the time, Kelley had been attending classes in the morning and then working at McDonald's. (Tr. 245). Notes from the evaluation indicated that he appeared to be doing well at his job, but that he did "not show much effort with academics in the classroom setting." (Tr. 245). Kelley's ABES-R evaluation resulted in a below average score of 78, where an average behavioral quotient would be 90 to 109. (Tr. 245-46). School Psychologist Jennifer Koskey noted that Kelley, who was in the twelfth grade at the time, demonstrated first and second grade skills and lacked communication and social skills. (Tr. 244, 246). Further, she recognized that although Kelley seemed to be gaining more from his experience in the workplace, he was less interested in classroom academics. (Tr. 246).

On August 17, 2009, consultative psychologist Dr. Victor Rini evaluated Kelley. (Tr. 287-89). With regard to Kelley's history, Dr. Rini noted that Kelley was single and living in his father's home with his two-year-old daughter. (Tr. 287). At the time, Kelley reported to Dr. Rini that he was in good physical health and denied any problems with anxiety or depression, yet he also complained that he had trouble sleeping for months. (Tr. 287). Dr. Rini observed that Kelley's mood and affect was "pleasant with underlying depression and anxiety." (Tr. 287). After conducting a WAIS-III examination, Dr. Rini found that Kelley had a verbal IQ score of 67, a performance IQ score of 72, and a full-scale IQ score of 66. (Tr. 283). Kelley's verbal and full-scale scores were described as extremely low, and his performance score was described as borderline. (Tr. 283). Dr. Rini asserted that Kelley was not bothered by anxiety or depression during testing and that accordingly, Kelley's test scores accurately measured his memory and intellectual abilities. (Tr. 287). Additionally, Kelley was assigned a Global Assessment of Functioning ("GAF")[4] score of 59. (Tr. 288).

During the evaluation, Kelley reported that he had obtained a driver's license by having the test read to him and reported that he was able to provide for his own personal care, cook, clean, grocery shop, perform cash transactions, do laundry, and pick up after his child. (Tr. 288). However, Dr. Rini emphasized that Kelley's "report of his own capabilities may not be altogether reliable" and explained that Kelley not only had significant and overt deficits with functional academic skills and social skills, he also "overstated his actual ability to function in other areas of adaptive function... based on his test scores, which suggest[ed]-for example- that he is not able to provide for his own home as he maintains he can." (Tr. 288). Based on his findings, Dr. Rini diagnosed Kelley with mild mental retardation and adjustment disorder with depression and anxiety. (Tr. 288). In conclusion, Dr. Rini emphasized that Kelley functioned in the extremely low range of intellectual ability, his memory and concentration were in the low average range, and his social functioning was below average. (Tr. 288).

On September 3, 2010, state agency physician Dr. Donna Unversaw completed a mental residual functional capacity ("RFC")[5] assessment and a psychiatric review technique based on Kelley's medical records. (Tr. 290-307). She opined that Kelley was not significantly limited in his ability to understand, remember, and carry out short and simple instructions or in his ability to remember locations and work-like procedures, but that he was moderately limited in his ability to understand, remember, and carry out detailed instructions. (Tr. 290). Additionally, Dr. Unversaw determined that Kelley was not significantly limited in his ability to maintain attention and concentration, to perform activities within a schedule with regular attendance, to sustain an ordinary routine without special supervision, to work with or in proximity to others without being distracted by them, to make simple work-related decisions, to sustain concentration and persistence, and to interact socially with the public, co-workers, and supervisors. (Tr. 290-91). She further opined that Kelley demonstrated no significant limitations with adaptation. (Tr. 291).

After noting Kelley's 1994 WISC scores and 2009 WAIS scores, along with Dr. Rini's findings, Dr. Unversaw opined that Kelley was capable of performing simple work. (Tr. 292). Notably, Dr. Unversaw also believed Kelley suffered from mental retardation (having had a valid verbal, performance, or full scale IQ of 60-70), but found that Kelley only had mild limitations in performing activities of daily living and maintaining social functioning, with moderate difficulties in maintaining concentration, persistence, or pace, and no episodes of decompensation. (Tr. 294-304). Subsequently, on October 28, 2010, state agency physician Dr. Joelle Larsen reviewed the evidence and affirmed Dr. Unversaw's assessment. (Tr. 308).

B. Hearing Testimony

On June 30, 2011, a hearing was held during which Jason Kelley, his mother, and the Vocational Expert ("VE") testified. (Tr. 32-77).

1. Kelley's Testimony

Kelley confirmed that he spent several years in a special education program and was able to graduate high school. (Tr. 39). While in school, he sometimes drifted off and teachers had to remind him to pay attention. (Tr. 57). At the time of the hearing, Kelley had been employed for one week in a 90-day trial period with Vanguard. (Tr. 36, 41). He obtained the position after walking in and completing his own application. (Tr. 41-42). At Vanguard, he noted he assists with assembling semi-trailers, but has had difficulty learning the job, which includes operation of overhead cranes. (Tr. 40, 41). Notably, Kelley had already been told about mistakes he was making. (Tr. 48).

Regarding previous employment, Kelley testified that he never had a job that lasted more than six months. (Tr. 42). In 2010, he was employed by Anchor Truck Center washing semitrucks; however, he confirmed that the job ended after a few months because the company "said [he] had an attitude towards other people." (Tr. 43). Thereafter, Kelley worked full-time as a dishwasher at Yesteryear's Meats, but he had to leave the job within two months because of family-related matters. (Tr. 43). Kelley also worked for three months as a dishwasher at Sand Creek Country Club ("Sand Creek"). (Tr. 44). He testified that at Sand Creek, he occasionally fell behind and that another worker would assist him in getting caught up. (Tr. 59-60). Kelley further explained that he only fell behind three or four times and that it was attributable to the restaurant being very busy. (Tr. 72). He felt that he was capable of keeping a reasonable pace otherwise. (Tr. 73). Despite the occasional struggle to keep up, Kelley was not reprimanded or fired from Sand Creek. (Tr. 59-60). Rather, his job at Sand Creek was terminated after he walked out because his employer would not permit him to go to the hospital when his eye was bothering him. (Tr. 44).

When asked what inhibited him from working, Kelley explained that he had trouble concentrating on the work, although he denied having any physical problems. (Tr. 47, 48). He asserted that the more tasks he is given, the more distracted he becomes. (Tr. 47). Kelley explained that he was able to work several hours without becoming distracted, but thereafter he sometimes began "spacing off" and then stopped paying attention to what he was doing. (Tr. 48). He believed he could lift 90 to 100 pounds at a time. (Tr. 46).

Kelley testified that he lives on his own but his bills and the rent are taken care of in exchange for his helping out around the house, and he takes care of his four-year-old daughter with help from his mother. (Tr. 38, 49, 52). He explained that his mother sometimes assists him with cooking, laundry, and watching his daughter. (Tr. 52, 53). While Kelley previously had difficulty doing laundry, once he was taught how to properly separate the clothing and operate the washer, he no longer experienced difficulty with laundry. (Tr. 54). He has his driver's license and can use his GPS to help him travel from one place to another. (Tr. 39, 288). Kelley asserted that, while he continues to struggle with reading some words, he is able to read children's books to his daughter. (Tr. 40). He believed that he could manage his own finances, but had difficulty with it at times and had trouble tracking the balance of his food stamps. (Tr. 49-50). Kelley also maintained that he was capable of taking care of his personal needs, such as showering, changing, and getting his clothes together. (Tr. 56). He also did not have any difficulty operating his cellular phone or using a gas pump. (Tr. 61).

Kelley testified that he enjoyed fishing, canoeing, and playing baseball and basketball. (Tr. 53). He explained that he has a temper, but treats others with respect if they do the same. (Tr. 55). Kelley denied taking medications or engaging in any type of counseling (Tr. 56), although he was previously taking Ritalin until ...

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