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Erwin v. Colvin

United States District Court, Southern District of Indiana, Indianapolis Division

March 11, 2014

ROBERT L. ERWIN, Plaintiff,


Tanya Walton Pratt, Judge United States District Court

Plaintiff, Robert L. Erwin (“Mr. Erwin”), requests judicial review of the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his application for Supplemental Security Income (“SSI”). 42 U.S.C. §§ 405(g), 1383(c). Mr. Erwin’s Complaint alleges the Administrative Law Judge (“ALJ”) failed to accurately incorporate the medical expert’s opinion, posed an incomplete hypothetical to the vocational expert, and failed to discuss all of the vocational expert’s testimony. For the following reasons, the Court AFFIRMS the Commissioner’s decision and DENIES Mr. Erwin’s request for remand.


Mr. Erwin has been diagnosed with multiple physical and psychological conditions, which affect his daily life and limit his ability to work. However, a vocational expert testified that there would be work available for a hypothetical individual with Mr. Erwin’s limitations.

A. Procedural History

On July 15, 2011, Mr. Erwin filed an application for SSI under Title XVI of the Social Security Act, alleging a disability onset date of July 1, 2005. On October 13, 2011 and December 7, 2011, Mr. Erwin’s application was denied and denied upon reconsideration, respectively.

On October 3, 2012, a hearing was held before the ALJ, at which Mr. Erwin testified. Two medical experts, John A. Pella, MD, (“Dr. Pella”) board certified in internal medicine; and Larry Kravitz, PhD (“Dr. Kravitz”), a licensed clinical psychologist, testified by telephone conference call. Vocational expert, Constance Brown (“VE Brown”), testified in person.

On October 18, 2012, the ALJ denied Mr. Erwin’s claim, and on January 9, 2013, the Appeals Council denied his request for review.

B. Factual and Medical History

Mr. Erwin was forty-one (41) years old on the date his application was filed. In addition to mental impairments, he has a myriad of physical problems[1], including coronary artery disease, hypertension, chronic obstructive pulmonary disease, and obesity. He has limited education and previously worked as a construction worker, lube tech and assistant manager; however, he has not worked since 2005. His application for SSI is based on his July 11, 2011 application date. Mr. Erwin lives with his wife and spends most of his day watching television and napping.

Mr. Erwin demonstrated borderline intelligence. On December 28, 2010, he underwent a psychological examination that showed borderline to low average intellectual functioning. He was additionally diagnosed with alcohol dependence, adjustment disorder with depressed mood, a personality disorder, and borderline intellectual functioning.

Between April 2011 and May 2012, Mr. Erwin presented at the emergency room multiple times, and was seen by multiple doctors. At various times, he expressed ideas that he was very angry and might hurt someone; complained of increasing irritability, depression, anxiety, homicidal ideation, suicidal ideation, and alcohol abuse; and reported no interests and no friends. In one examination, Mr. Erwin was unable to complete a cognitive test, demonstrated limited insight and retarded motor activity, and presented a sad, irritable, and anxious mood.

During this time Mr. Erwin was diagnosed with a recurrent and severe major depressive disorder, an adjustment disorder with depressed mood, suicidal ideation, uncontrolled depression, an intermittent explosive disorder, alcohol abuse in remission, borderline intellectual functioning, an otherwise unspecified personality disorder with borderline traits, and agitation.

Doctors opined that Mr. Erwin had moderate limitations in his ability to interact appropriately with co-workers, understand and remember simple instructions, carry out simple instructions, make judgments on complex work-related decisions, and interact appropriately with the public. They further opined that Mr. Erwin had marked limitations in his ability to understand and remember complex instructions; carry out complex instructions; make judgments on complex work-related decisions; interact appropriately with the public, supervisors, and coworkers; and to respond appropriately to usual work situations and to changes in a routine work setting.

C. Administrative Hearing Testimony

At the October 3, 2012 hearing, medical experts Dr. Kravitz, Dr. Pella and V.E. Brown testified. Dr. Kravitz, testified regarding Mr. Erwin’s mental capacity and limitations. V.E. Brown, testified that there are presently existing jobs available in the economy for hypothetical individuals with Mr. Erwin’s limitations.

1. Medical expert’s testimony

Of importance here, is Dr. Kravitz testimony regarding his review of the evidence of Mr. Erwin’s mental impairment:

I believe that he would be capable of understanding, remembering, and carrying out short and simple instructions. I think, you know, given his work history and his general mental status, he does have the capability for detailed instructions as well, but at this day and time, he reports the issue of special education for math and reading. He did undergo [inaudible] testing in 2008, which yielded scores in the borderline range, so I [inaudible] be limited to only short and simple instructions. Persistence would be also limited in terms of sticking with tasks, maintaining sustainability. He’d be limited to simple repetitive tasks. The depression sometimes becomes significant. While claimant is able to do some chores around the house he does rely on his wife to really handle the majority of the household responsibilities, and . . . from a mental perspective, I think limiting him to simple, repetitive tasks in terms of sustainability is supported. I think Claimant’s most significant limitation has to do with his personal abilities. It’s worth noting that any kind of history of impulsivity, of [inaudible] temper, he was reportedly home from school for repeated altercations. That’s clearly an issue for him in terms of controlling his temper. For the most part [inaudible] it sounds like he’s socially withdrawn. The two more recent CEs that I did give him marks in [inaudible] in terms of most daring of interacting (sic) relating others. . . . You know, having said that it appears that he has for the most part, under the right conditions, able to keep his temper in check. He does have some positive relations within the family. I didn’t see any recent police involvement or documentation that he can’t manage himself when he goes to doctor’s appointments or goes to a store to pick up an item or two. So while that’s [inaudible] limitation, I think within the context of very brief and superficial contact he would be capable of workplace interaction. . . . I think really I would [inaudible] public contact because of a likelihood that it will increase his frustration and cause him to lash out. I would suggest that in a working environment that he could perform his work tasks relatively independently and where supervision was only task-focused and instructive, so for instance, the supervisor would just come by just to make sure that his work assignment was being done correctly and maybe directing him to the next work assignment, but any more direction from the supervisor would become problematic. I think he would be (sic) a relatively static work environment where the conditions stay the same from day to day including the work location preferably a work environment with only a limited number of coworkers, not a work environment where there was a significant turnover of other workers from day to day, so people he could become comfortable with.

Tr. at 47-49 (questions omitted).

The ALJ then questioned Dr. Kravitz to affirm synthesis of his opinion:

It’s your opinion based on your medical record that Mr. Erwin should be placed in the position where he only has to -- he only has to receive short and simple instructions, perform simple and repetitive tasks, and have only brief or superficial contact with others and no contact with the general public.

Tr. at 49. To this the doctor responded, “I wouldn’t put him in a work environment that was fast-paced or had strict production [inaudible].” Id.

After an examination of Dr. Kravitz by Mr. Erwin’s attorney, the ALJ asked for clarification whether Dr. Kravitz had set forth additional limitations in his subsequent testimony. Dr. Kravitz responded “No, the conditions I set forth with you I assumed counsel is kind of summarizing, and ...

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