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Miller v. Colvin

United States District Court, N.D. Indiana, South Bend Division

August 19, 2014

RODNEY E. MILLER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JON E. DEGUILIO, District Judge.

On May 6, 2013, Plaintiff Rodney Miller filed his Complaint in this Court seeking review of the final decision of the Defendant Commissioner of Social Security (Commissioner). [DE 1.] The Commissioner filed an Answer on August 22, 2013. [DE 12.] On October 3, 2013, Miller filed his opening brief [DE 15], to which the Commissioner responded on January 10, 2014. [DE 23.] Miller filed a reply on January 31, 2014. [DE 26.] Accordingly, the matter is now ripe for decision. Jurisdiction is predicated on 42 U.S.C. ยง 405(g).

I. Procedural History

Miller filed an application for disability insurance benefits (DIB) and an application for supplemental security income (SSI)[1] in September 2006. (Tr. 114-27.) His applications were denied on October 31, 2006, and again on reconsideration on February 26, 2007. (Tr. 55-83.) On April 17, 2009, a hearing was held before Administrative Law Judge Steven J. Neary. (Tr. 40-54.) On September 11, 2009, ALJ Neary issued a decision denying the claims. (Tr. 25-39.) The Appeals Council denied a request for review on July 9, 2010. (Tr. 435-38.) After the parties consented to have the magistrate determine the matter, on July 30, 2011, Magistrate Judge Christopher A. Nuechterlein reversed and remanded the case to the Commissioner for further proceedings. (Tr. 441-55.) The Appeals Counsel then vacated ALJ Neary's decision and directed the issuance of a new decision with regard to all pending applications, including Miller's duplicative subsequent claims filed on July 19, 2010 (Tr. 456-60, 479), which were denied at both the initial and appeal stages. (Tr. 439-40, 510-13, 517-23.)

On February 13, 2012, the hearing on remand was held before ALJ Edward Studzinski (the ALJ). (Tr. 637-87.) On May 22, 2012, the ALJ issued a decision denying Miller's claims. (Tr. 476-96.) Miller's petition for review of the ALJ's 2012 decision was denied by the Appeals Council on February 2, 2013, making the ALJ's decision the final decision of the Commissioner. (Tr. 505-08.)

II. Facts

Miller was born on August 11, 1964 and he was 47 years old on the date the ALJ rendered his decision. (Tr. 115.) Miller alleges a disability onset date of January 1, 2005, and while he claims disability based on both physical and mental impairments, he does not contest the ALJ's findings relative to his physical impairments.[2] In short, the ALJ found that Miller suffered from the severe physical impairments of right rotator cuff tear with history of a partial tear and chronic obstructive pulmonary disorder (COPD). And for purposes of satisfying Listing 12.05C with respect to mental retardation, it is undisputed that Miller's severe physical impairments would satisfy Listing 12.05C's requirement that he have "a physical or other mental impairment imposing an additional and significant work-related limitation of function."[3] Because Miller's physical limitations are otherwise not at issue, the Court focuses on the evidence relevant to Miller's mental limitations.

A. Evidence of Mental Impairment

Miller's high school records from LaPorte County were destroyed in accordance with its standard procedure for the destruction of old records, but the special education secretary confirmed that while Miller attended school in LaPorte County, he received services as a student considered mildly mentally handicap and was referred for special education. (Tr. 93-294, 712-15.) Miller's academic transcripts from New Prairie High School show that Miller participated in special education for some of his core classes and received low grades in many of his other classes. (Tr. 297.) Miller's differential aptitude test scores from the 9th grade indicated that he was in the 15th percentile for verbal reasoning, 25th percentile for numerical ability, 25th percentile in abstract reasoning, 15th percentile for clerical spelling and accuracy, 5th percentile for mechanical reasoning, 30th percentile for spatial relationships, 40th percentile in spelling, and 5th percentile in language usage. (Tr. 298.) Further documentation from Miller's school age years was not available, but he did graduate from high school. (Tr. 664.)

At the age of 42, Miller was referred to licensed psychologist John Heroldt by the state agency for a mental status consultative examination. (Tr. 333-38.) After missing his first appointment due to oversleeping, during his examination on February 15, 2007, Miller reported getting stressed out, which caused him to get nervous, angry, and feel like killing himself- symptoms that could last for weeks at a time. (Tr. 333.) It was documented that Miller had a valid driver's license, but he had problems passing the licensing test and reported an inability to read the newspaper. (Tr. 333.) It was noted that Miller typically helped his mother by cleaning his room, taking out the garbage, and completing yard work, but his mother cleaned the rest of the house, did the laundry, and cooked. (Tr. 335.) Heroldt determined that Miller's memory was below average and he had severe difficulty with simple arithmetic calculations. (Tr. 334-35.) Heroldt noted that Miller's work tempo was average and his cognitive capacity was well below average and dull. (Tr. 335.) Heroldt opined that Miller suffered from anxiety disorder NOS (mixed anxiety-depressive disorder), he would not be capable of handling his own funds, and assigned him a Global Assessment of Functioning (GAF) score of 60.[4] (Tr. 335.)

On February 20, 2007, state agent Dr. F. Kladder completed a mental residual functional capacity (RFC)[5] assessment and psychiatric review technique. (Tr. 339-56.) Dr. Kladder found that Miller was not significantly limited in his ability to remember locations and work-like procedures, or in his ability to understand and remember very short and simple instructions. (Tr. 339.) Miller was deemed moderately limited in his ability to understand, remember and carry-out detailed instructions. (Tr. 339.) Dr. Kladder opined that Miller was not significantly limited in any other area, except he was moderately limited in his ability to maintain attention and concentration for extended periods. (Tr. 339-40.) Dr. Kladder believed that Miller had actually held a job for 7 years as a laborer for a landscaping and cleaning business, [6] and noted that Miller was able to drive a car, go out alone, shop in a store for simple items, count change, and attend church regularly. (Tr. 341.) It was Dr. Kladder's impression that Miller had a history of special education, suffered from an anxiety related disorder NOS, and had mild restrictions with his activities of daily living; mild difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, and pace; and no episodes of decompensation. (Tr. 343-53.) Dr. Kladder determined that Miller could perform simple routine tasks despite his cognitive limitations. (Tr. 341.)

Miller started therapy at the Swanson Center for his depression and anxiety in September 2007. (Tr. 402, 916-35.) Clinical social worker Amy Nieman assessed Miller as suffering from anxiety and mental retardation, and assigned him a GAF score of 52. Miller's records indicate he was then seen twice in 2008 for further therapy. On January 28, 2008, Nieman stated in a narrative letter that Miller faced problems of depression, anxiety, and worrying to a debilitating point. (Tr. 402.) Further, she noted that Miller had difficulty completing tasks and learning new skills due to his symptoms. (Tr. 402.) She wrote that Miller "would like to improve his life and be more gainfully employed, " but he is prevented from doing so by his anxiety and depression. (Tr. 402.) Miller's February 13, 2009 discharge summary indicated he suffered from anxiety disorder NOS, had a GAF score of 50, [7] and had lost his job and did not return for future therapy. (Tr. 916.)

On June 2, 2009, the state agency referred Miller for a psychological examination and WAIS-IV intelligence testing. (Tr. 418.) Licensed clinical psychologist Nancy Link noted that Miller reported constant right rotator pain and being depressed nearly every day. (Tr. 419.) Miller's "cognitions indicated discouragement, recurrent suicidal ideation, and negative outlook towards the future." (Tr. 420.) The report listed behavioral observations including characteristics of poor hygiene, appearing disheveled, seemingly immature, manipulative, impulsive, easily distracted, and restless. Link described Miller as lacking insight, having poor judgment and depressed mood, as well as a concrete and guarded thought process. (Tr. 419-20.) While Link noted that Miller had fair concentration, she also noted that he was only able to be attentive for periods of less than fifteen minutes. (Tr. 420.) Link noted Miller's sporadic work history which consisted of odd jobs that lasted only 2-3 months. Id.

Miller's results on the intelligence test indicated that he had a Full Scale IQ of 57, which was within the extremely-low range of functioning. (Tr. 421-22.) However, Link noted that the results were not considered a valid representation of Miller's current functioning because he did not attempt to answer somewhat difficult questions and did not put forth good effort. (Tr. 421.) Link believed that Miller's adaptive functioning was similar to others diagnosed with borderline intellectual functioning, and thought he appeared more functional than those diagnosed with mild mental retardation. (Tr. 422.) Ultimately, Link reasoned that Miller suffered from depressive disorder NOS and borderline intellectual functioning (provisional), and assigned Miller a GAF score of 60, noting he "does not have the ability to manage his own funds." (Tr. 423.) It was Link's opinion that Miller should be considered "moderately impaired in terms of work related activities in respect to his overall signs and symptoms of depression and slow learning ability." (Tr. 423.)

On October 7, 2010, Miller underwent a second consultative examination by Dr. Heroldt who noted that Miller was late for his appointment with clothing disheveled, his work tempo was below average, his cognitive capacity was well below average, he had an inability to handle his own funds, and he was suffering from major depressive disorder. (Tr. 859-62.)

On October 27, 2010, Miller underwent another WAIS-IV intelligence test and an interview with clinical psychologist Joyce Scully. (Tr. 883.) Consultative examiner Joyce Scully, Psy. D., reported that the longest Miller ever held a job was a year. Overall, Miller was cooperative and the test scores appeared to be an adequate representation of his current functioning. (Tr. 884.) Specifically, Miller's verbal comprehension score was 63; his perceptual reasoning score was 75; his working memory score was 63, his processing speed score was 76, and his full scale IQ score of 64 placed him "in the extremely low end of intellectual functioning and... in the mildly mentally retarded range." (Tr. 882.) Miller was described as having major depression by history and "[m]ild mental retardation as evidenced by his adaptabilities which are also impaired. He has to be told when to take a shower and he has lived under the care of his mother for all of his life." (Tr. 884-85.) Scully noted the many tasks Miller regularly completed around the house and assigned Miller a GAF score of 65.[8] (Tr. 885.) Scully recommended that "[i]f claimant were to be awarded funds, I believe they would be best served to put in his brother or mother's name. His math skills were rudimentary and below average, as well as problems with information with long-term memory being impaired. Claimant probably would be best served working at Michiana Industries or a place such as a Sheltered Workshop." (Tr. 885.)

On November 11, 2010, state agent Dr. Ken Lovko completed a mental RFC assessment and psychiatric review technique and concluded that Miller was moderately limited in his ability to understand, remember and carry-out detailed instructions, maintain attention and concentration for extended periods, and respond appropriately to changes in his work setting. (Tr. 886-87.) After noting that Miller's longest job lasted for 7 years (again, a fact not supported by his earning records), Lovko opined that:

[T]he evidence suggests that claimant can understand, remember, and carry-out unskilled tasks without special considerations in many work environments. The claimant can relate on at least a superficial basis on an ongoing basis with co-workers and supervisors... can attend to task[s] for sufficient periods of time to complete tasks... [and] can manage the stresses involved with unskilled work.

(Tr. 888.)

Dr. Lovko believed Miller suffered from major depressive disorder and mild mental retardation, but noted there was no testing completed before the age of 22. (Tr. 891-93.) It was Dr. Lovko's opinion that Miller had (1) mild restriction of activities of daily living; (2) mild difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no episodes of decompensation. (Tr. 900.) Further, the evidence did not establish the presence of "C" criteria. (Tr. 901.)

On January 14, 2011, state agent Dr. Kenneth Neville reviewed all of the evidence in the file and affirmed the November 2010 assessment. (Tr. 905.)

On February 21, 2012, social worker Julie Albano of the Swanson Center completed a mental RFC assessment and diagnosed Miller with dysthymic disorder with an assigned GAF score of 50. (Tr. 1039-43.) Ms. Albano believed that Miller was unable to meet competitive standards necessary to maintain attention for two hours, work in coordination with/or proximity to others without being unduly distracted, accept instruction and respond appropriately to criticism from supervisors, and get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes. (Tr. 1041.) He also could not meet competitive standards of neatness and cleanliness because he would forget to shower. (Tr. 1042.) The report states that the impairments have lasted or could be expected to last at least twelve months, but that he would likely not miss work because of the impairments. (Tr. 1043.) She described that Miller would "have suicidal thoughts and not want to come to work but will force himself to come to work." (Tr. 1043.) Last, Ms. Albano noted that Miller could not manage his benefits in his own interest. (Tr. 1043.)

B. Hearing Testimony

At the February 13, 2012 hearing before ALJ Studzinski, Miller and Vocational Expert (VE) Micha Daoud testified. (Tr. 639-87.) Prior to the hearing testimony, Miller's counsel reiterated that Miller has had over 30 unskilled jobs in the last 15 years that lasted for only short durations. Miller's counsel argued that this high number of fleeting jobs is the result of a person who really wants to work, but is unable to on account of his mental limitations. He also contended that Miller's medical records are limited because Miller does not have insurance or the resources to get needed medical help.

1. Miller's Testimony

Miller testified that all of his jobs ended after a supervisor expressed dissatisfaction with his work, often because he moved too slowly or despite doing his best they just didn't like his work. (Tr. 652-54, 658, 671-74.) Miller admitted to becoming stressed when criticized, often losing his temper, and quitting or getting fired in response to the criticism. Id.

Miller described a typical day as involving his watching television and helping his mom around the house, including washing dishes and cleaning his room. (Tr. 667-69.) Miller also took out the garbage, mowed the grass, and went grocery shopping. (Tr. 659-60.) He confirmed that he was unable to do arithmetic beyond simple addition and subtraction, and that he was limited in his reading ability-for instance, while he could read prices at the grocery store and street signs, he could not read novels or the TV guide. (Tr. 660-63.) He further explained that he graduated high school with assistance from special education classes. (Tr. 664-65.) Relative to his hygiene, Miller explained that he only took showers once or twice a week and he sometimes wore the same clothes for more than one day. (Tr. 664.)

Miller acknowledged that he was not receiving medical treatment because he could not afford it, although he was able to receive some therapy at the Swanson Center. (Tr. 664.) The only medication Miller took was aspirin for ...

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