United States District Court, N.D. Indiana, South Bend Division
JON K. RIVERS, Plaintiff,
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
PHILIP P. SIMON, Chief District Judge.
Claimant Jon K. Rivers seeks review of the final administrative decision of the Commissioner of Social Security to deny his application for disability insurance benefits. Rivers has a history of cognitive difficulties, anxiety, and depression which he alleges stems from a concussion he sustained when a beam fell on him during his time in the military in the 1970s. He applied for disability benefits in 2009, alleging disability beginning December 15, 2008. After a hearing, the Administrative Law Judge denied Rivers's claim. On appeal, Rivers claims that the ALJ erred in several respects. I disagree that the ALJ's decision was deficient, especially not to the degree required for reversal under the deferential standard of review I must apply here. Therefore, because I find that the ALJ's decision was supported by substantial evidence as discussed below, I AFFIRM it.
Rivers is in his late fifties and has earned an associates degree in electronics. [Record at 266.] During the fifteen years before filing his disability claim, Rivers held jobs as a welder, security guard and production lapping worker. [R. at 205, 211.] He claims to have been fired from "probably fifty jobs or more, " attributing his inability to hold a job to psychiatric issues. [R. at 204, 320.] While the record does not confirm the loss of fifty or more jobs, it does say that Rivers was fired from his job as a security guard in December 2008 after falling asleep in his car, which he claims was due to a medication he was taking. [R. at 204, 320.] This is the same month Rivers listed as his disability onset date. [R. at 166.] However, it wasn't until approximately two months later, in February 2009, that Rivers claims he stopped working after being "involuntarily laid off, " presumably from a different job. [R. at 204.]
Rivers contends that his psychiatric problems stem from an accident which occurred during his time in the army. Rivers was in the Army Engineering Unit from May of 1974 until he was honorably discharged in May of 1977. [R. at 49.] Rivers suffered a concussion in either 1974 or 1975, after a metal beam hit him in the head. [R. at 204, 227, 321, 372.] Rivers contends that he has suffered from memory difficulties, post-traumatic stress disorder and high anxiety since that time. [R. at 352, 371-72.]
While Rivers has never been hospitalized due to psychiatric problems, he was treated by an outpatient mental health counselor/therapist and saw a psychiatrist throughout 1991. [R. at 320.] Additionally, over the years Rivers has been prescribed a variety of medications to treat his psychiatric issues, which include post-traumatic stress disorder and depression. [R. at 276.] He reports he was prescribed Desyrel in 1985, and then Prozac in the 1990s. [ Id. ] Rivers was first prescribed Zoloft in 1995, and he took that for 12 years. [R. at 321.]
In January 2008 Rivers saw a clinical social worker and complained of "bad depression" and a "new memory problem." He was given a refill for Zoloft, and was referred for a psychiatric evaluation. [R. at 308-10.] A year later, in March 2009, Rivers called the VA complaining of trembling in his hands. [R. at 305.] That same month, Rivers had a primary care consultation, and his examining physician questioned whether his trembling was caused by energy supplements or another recreational drug. [R. at 299-300.] A drug test ruled out recreational drug use. [R. at 316.] A few months later, in July, Rivers reported that his hand tremor had stopped after discontinuing use of an energy supplement. [R. at 289.] Shortly after this, on August 12, 2009, Rivers filed his original application for Social Security benefits. This claim was ultimately denied. [R. at 266.]
In November 2009 Rivers saw Dr. Pate for a consultative psychological examination regarding his pending claim. [R. at 320-23.] Rivers complained of trouble concentrating, reported hearing voices in his head, and said that he thinks about suicide every day. [R. at 320, 322.] Dr. Pate diagnosed dysthymia, ruled out a personality disorder, and assessed a Global Assessment of Functioning (GAF) score of 60. [R. at 323.] A month later, Dr. Johnson, a psychological consultant for the Disability Determination Bureau, performed a Psychiatric Review Technique evaluation and concluded that Rivers suffered from an impairment under Listing 12.04 (affective disorders), but suffered only mild or moderate limitations as a result of his dysthymia. [R. at 327-44.] At that time, Dr. Johnson also assigned Rivers a GAF score of 60. [R. at 343.]
In January 2010, Rivers went to the VA complaining of memory problems, anxiety, and personality changes. [R. at 352.] While at the VA, Rivers met with Dr. Lydon for a psychiatric evaluation. [R. at 371.] Dr. Lydon administered a Montreal Cognitive Assessment (MOCA), recording a score of 22/30. [R. at 372.] Dr. Lydon diagnosed Rivers with a cognitive disorder and an anxiety disorder and depression, and assessed a GAF score of 45. [R. at 374.] Dr. Lydon explained that Rivers would "benefit from a comprehensive neuropsychological evaluation to determine extent of psychiatric and cognitive difficulty." [ Id. ] That same month Rivers filed his reconsideration for Social Security benefits, which was denied. [R. at 266.] Following this second denial, in May 2010 Rivers requested a hearing before an ALJ. [ Id. ]
Approximately six months after requesting a hearing, in November 2010, Rivers went to the VA Hospital emergency room complaining of having taken too much of his medication. [R. at 382.] Dr. Goodman examined Rivers and noted that the majority of Rivers's problems have historically been psychiatric. [ Id. ] Dr. Goodman recorded a past medical history of paranoia, depression, and cognitive impairment, but does not appear to have done any new or independent assessment of Rivers's psychological state. Dr. Goodman admitted Rivers to the Indiana Veteran's Home due to an "inability to care for himself and having some increasing difficulty in walking." [ Id. ] In February of 2011, Dr. Goodman completed a Medical Provider Questionnaire for Listings 12.04 and 12.06, concluding that Rivers met the requirements for listing 12.06 (anxiety-related disorders), but was unable to determine if he met listing 12.04 (affective disorders). [R. at 385-93.] Additionally, shortly after his admission to the Veteran's Home but before his administrative hearing, in December 2010, Rivers's medical records indicate (with almost no explanation) that he was diagnosed with paranoia and dementia. [R. at 437.]
In July 2011 Rivers appeared, represented by counsel, for his hearing before the ALJ. Medical experts Dr. Lee Fischer and Dr. Don Olive appeared at the hearing, as well as Vocational Expert Michael Blankenship. [R. at 43-101.] At the hearing Rivers testified that he had been living in a Veterans Home for the past seven months, and was no longer driving due to concentration problems. [R. at 47, 49-50.] He also testified that, despite holding "a small, menial job" at the Veterans home pushing nonambulatory patients to physical therapy, he was unable to work because of memory and concentration problems. [R. at 50, 65, 94.] Dr. Olive testified that Rivers had been admitted to the Veterans home "predominantly for physical reasons, " and felt that Rivers would be capable of simple, repetitive tasks or unskilled work with no strict deadlines or production quotas and only occasional contact with other people. [R. at 90-93.] Finally, vocational expert Mr. Blankenship testified that a hypothetical individual of Rivers age, education and work experience, with no physical limitations but with the designated mental limitations, could perform the following "medium, " unskilled positions: hospital cleaner, hand packager, and stores laborer. [R. at 95, 98-99.] Rivers's attorney asked if there were any job for an individual who is unable to stay on task for one third of the workday, and Mr. Blankenship answered that he was not aware of any such job. [R. at 99.]
The ALJ issued a decision denying Rivers benefits in August 2011. [R. at 24-38.] The ALJ employed the five-step analysis standard in disability benefits cases. At step one, the ALJ confirmed that Rivers had not engaged in substantial gainful activity since his application date. [R. at 26.] At step two, the ALJ concluded that Rivers suffered from the following severe impairments: cognitive disorder, depression, and anxiety. [ Id. ] At step three, the ALJ determined that Rivers did not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. [R. at 27-29; 20 C.F.R. Part 404, Subpart P, Appendix 1.] After considering the entire record, the ALJ found that Rivers had the residual functional capacity to perform a full range of work at all exertional levels, but with the following nonexertional limitations: work limited to simple and repetitive tasks, commensurate with unskilled work; work limited to no more than occasional contact with the general public, coworkers, and supervisors; and work that does not require fast paced production standards. [R. at 29-36.] At step four, the ALJ found that Rivers was unable to perform any of his past relevant jobs. [R. at 36.] However, at step five the ALJ found that there were a significant number of jobs in the national economy that Rivers could perform. [R. at 36-37.]
The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. [R. at 4-8.] Rivers timely sought ...