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Grant v. Commissioner of Social Security

United States District Court, N.D. Indiana, Fort Wayne Division

December 15, 2017

ANDRE L. GRANT, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of SSA, [1] Defendant.



         Plaintiff Andre L. Grant appeals to the district court from a final decision of the Commissioner of Social Security (“Commissioner”) denying his application under the Social Security Act (the “Act”) for Supplemental Security Income (“SSI”).[2] (DE 1). For the following reasons, the Commissioner's decision will be AFFIRMED.


         Grant applied for SSI in March 2014, alleging disability as of January 12, 2009.[3] (DE 12 Administrative Record (“AR”) 219-26, 253-54). The Commissioner denied Grant's application initially and upon reconsideration. (AR 146-51, 155-57). Grant later amended his onset date to February 12, 2014. (AR 41).

         A hearing was held on July 2, 2015, before Administrative Law Judge William D. Pierson (“the ALJ”), at which Grant, who was represented by counsel; his friend, Annette Redfield; and a vocational expert, Marie Kieffer (the “VE”), testified. (AR 38-89). On September 17, 2015, the ALJ rendered an unfavorable decision to Grant, concluding that he was not disabled because despite the limitations caused by his impairments, he could perform his past relevant work as a parts hanger and industrial cleaner, as well as a significant number of other unskilled, medium exertional jobs in the economy. (AR 18-31). The Appeals Council denied Grant's request for review (AR 1-15), at which point the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 416.1481.

         Grant filed a complaint with this Court on January 21, 2016, seeking relief from the Commissioner's final decision. (DE 1). Grant advances four arguments in this appeal: (1) that new evidence submitted to the Appeals Council requires a remand; (2) that the ALJ failed to properly evaluate whether he met Listing 12.04, the affective disorders listing; (3) that the ALJ failed to adequately account for his mental and physical limitations in the residual functional capacity (“RFC”); and (4) that the ALJ failed to properly weigh certain opinion evidence. (DE 20 at 12-25).


         At the time of the ALJ's decision, Grant was 59 years old (AR 31, 219); had a high school education; and possessed past relevant work experience as a parts hanger in a factory, and in various jobs in factories and warehouses through a temporary agency (AR 259). In his application, Grant alleged disability due to heart problems; pain in his feet, legs, and right arm; and post traumatic stress disorder (“PTSD”). (AR 258).

         A. Grant's Testimony at the Hearing

         At the hearing, Grant testified as follows: Grant lives alone in an apartment, but he stays with his friend, Ms. Redfield, three to four days a week. (AR 43, 74-75). Grant's apartment is paid for by a program through Park Center, and he also receives a monthly bus pass and a stipend for food. (AR 43-45). Grant's driver's license was suspended 10 years earlier after an accident, so he takes the bus or his friends drive him places. (AR 44-45, 74). For the past 20 to 30 years, he used cocaine and consumed a liter of vodka on a daily basis; however, he had been clean since his hospitalization in February 2014. (AR 46, 54, 57-58). Grant claims his PTSD started after he saw someone being killed in 2006. (AR 55).

         Grant testified that his anxiety, his fear of being out in public and around people, and his nightmares all increased after he “got clean” in February 2014 and stopped self-medicating with alcohol and illegal drugs. (AR 55, 58). He started therapy at Park Center about a month after his February 2014 hospitalization, which is when Park Center got him into the free housing program. (AR 56-57). The program requires a home visit once a month and a counseling session every two weeks. (AR 57, 61). Park Center staff also assist Grant with making and keeping appointments. (AR 56-57). Grant goes to Carriage House three to five times a week, where he socializes with other people suffering from mental illness and participates in programs designed to support such individuals. (AR 59-60).

         When asked why he thought he could not work, Grant cited his lack of concentration, his nightmares, and his fear of being around large groups of people. (AR 61, 63). He does not go to the mall or the grocery store by himself due to his fear of being out in public. (AR 63). Grant has nightmares that disrupt his sleep two to three times a week, so he naps during the day. (AR 62-63).

         As to his physical condition, Grant complained of having problems with his feet in that they feel like “blocks, ” which sometimes causes him to stumble. (AR 65). He elevates his feet when he is at home. (AR 65-66). He has been told that his foot problem is due to having poor circulation. (AR 66). He wears plastic foot braces bilaterally that extend eight inches up his ankles. (AR 67-68). Grant estimated that he could stand for two to four hours before needing to elevate his feet for the rest of the day; walk for 45 minutes or four to five blocks; and lift three gallons of milk, stating that his balance interferes with his ability to pick up heavier items.[5] (AR 69-73).

         B. Summary of the Relevant Medical Evidence Pertaining to Grant's Physical Health

         On March 3, 2014, Grant underwent cardiac testing through Matthew 25 Clinic, which was negative for ischemia at 68% predicted heart rate. (AR 479). An examination revealed decreased sensation in his feet to below his ankles. (AR 467). His impairments included peripheral neuropathy, gastroesophageal reflux disease (“GERD”), a history of hepatitis C, and atypical chest pain. (AR 466). He had no limitation in walking, but did complain of difficulty with standing due to pain in his ankles. (AR 466). In April 2014, Grant obtained shoe inserts for bilateral arch pain. (AR 464).

         On June 18, 2014, Grant was seen by Dr. Gage Caudell, a podiatrist, at Fort Wayne Orthopedics regarding his bilateral foot pain, which worsened with prolonged standing, lifting, or carrying. (AR 550-52). X-rays of Grant's feet showed narrowing to the mid-foot joints and calcification of the vessels. (AR 551). Dr. Caudell diagnosed posterior tibial tendinitis with associated flat feet. (AR 551). He prescribed lace-up ankle braces for Grant. (AR 551). At a return visit one month later, Grant was doing better, reporting that the ankle braces were helping. (AR 854).

         On June 25, 2014, Grant was examined by Dr. H.M. Bacchus for purposes of his disability application. (AR 565-57). The examination was generally unremarkable, other than a depressed mood and a flat affect. (AR 566). Dr. Bacchus's impressions were: heart problems; PTSD per history, treated and monitored; GERD, treated; and pain in feet, right arm, and legs per history. (AR 566). Dr. Bacchus opined that Grant had the physical functional capacity to perform regular duties, that he appeared stable currently in regard to his heart, and that a mental health evaluation would be beneficial. (AR 566).

         On June 30, 2014, Dr. J.V. Corcoran, a state agency physician, reviewed Grant's records and concluded that he could lift 25 pounds frequently and 50 pounds occasionally; stand or walk six hours in an eight-hour workday; and sit for six hours in an eight-hour workday. (AR 95-96). Another state agency physician, Dr. J. Sands, affirmed Dr. Corcoran's assessment on September 10, 2014. (AR 131).

         On July 15, 2014, Grant presented to Dr. Mark Dickmeyer for initiation of primary care. (AR 772). Grant reported that he had been doing fairly well since his February 2014 hospitalization, though he expressed concerns about having symptoms of tinnitus and some gait instability that occurred later in the day when his legs feel swollen and “blocklike.” (AR 772). Dr. Dickmeyer observed no peripheral edema, and Grant's pedal pulses were good bilaterally. (AR 773). His lower extremity strength was normal, and his gait was slightly wide-based but stable. (AR 773). Dr. Dickmeyer prescribed medications, including aspirin and Coreg for coronary artery disease. (AR 77-374). A hepatitis function panel was positive for hepatitis C. (AR 774-75). Dr. Dickmeyer included “[d]izziness with a subjective sense of gait disturbance” in Grant's diagnoses. (AR 774).

         On October 16, 2014, Grant returned to Dr. Dickmeyer, complaining of right shoulder stiffness and intermittent stiffness of his lower body, which was causing him to stumble. (AR 779). Grant had also been having some lightheaded spells, particularly when he stood up abruptly. (AR 779). On examination, Grant demonstrated a slight limitation in abduction and rotation of his right shoulder, but without pain or tenderness. (AR 780). Dr. Dickmeyer referred Grant to a gastroenterologist for his hepatitis C. (AR 371, 570, 780). On March 19, 2015, Grant saw Dr. Dickmeyer for complaints of headaches. (AR 785). He was prescribed medications. (AR 786).

         On May 29, 2015, Grant returned to Dr. Caudell, reporting that he attempted to exercise when the weather got better, which increased his bilateral foot pain. (AR 850-52). He stated that it felt like he had “no circulation” and that there were “cement blocks on his feet, ” which then caused him balance problems. (AR 850). He reported that his foot pain and his balance had worsened since his last visit. (AR 850). Dr. Caudell prescribed custom AFO short braces and ordered an arterial ultrasound. (AR 851-52). A Doppler ultrasound revealed no flow limiting stenotic disease. (AR 844-46). Grant returned to Dr. Caudell in July. (AR 843). At that visit, Dr. Caudell assessed bilateral posterior tendinitis with associated flatfoot and pain in his lower extremities, which could be peripheral artery disease. (AR 843). Dr. Caudell recommended that Grant have his right AFO adjusted, and that Grant consider surgery in the future if his braces failed to sufficiently alleviate his symptoms. (AR 843).

         C. Summary of the Relevant Medical Evidence Concerning Grant's Mental Health

         On February 3, 2014, Grant presented to the emergency room for complaints of chest pain, reporting that he had used large amounts of cocaine and alcohol. (AR 394). His physical and mental exams were normal. (AR 395). Grant was transferred to a substance abuse treatment facility. (AR 417, 421-22).

         On February 7, 2014, Grant was evaluated by James Keifer, a clinical social worker at Park Center, as a follow up to his recent mental health hospitalization. (AR 490-98). Grant reported seven past inpatient stays for substance-related treatment and a history of six to eight substance-related arrests. (AR 493). Mr. Keifer noted that Grant had poor judgment and minimal insight, given his extensive history of alcohol and drug use. (AR 494-95). Grant's mood and affect were depressed, but his thought content and memory were normal. (AR 494). Grant was diagnosed with polysubstance dependence and PTSD. (AR 497).

         On May 8, 2014, Richard Hite, Ph.D., a psychologist at Park Center, completed a one-page “Permanent Supportive Housing Verification of Disability Form, ” representing that Grant was a homeless person with a qualifying disability. (AR 804). For purposes of qualifying for occupancy in the program, the disability could be a mental, emotional, or physical impairment or chronic problems with alcohol or drugs. (AR 804).

         Treatment records from Park Center reveal that Grant was seen for medication management and for skills training and development from May 2014 through May 2015. (AR 596-737). The treatment plan focused on Grant's decision making, self organization, and managing his health needs and daily activities. (AR 596-737). By June 2014, Grant reported to Park Center staff that he was “doing well, ” that things were “going good” for him, and that his medications and anxiety were “well-managed.” (AR 632, 646). In May 2015, Grant reported to Park Center staff that being in crowds and riding a noisy bus was still a problem for him, but that he was able to attend classes, was focusing on self improvement, and was enjoying socializing at the Carriage House. (AR 709). Park Center staff indicated that Grant was “coping well” at the time. (AR 709).

         On June 23, 2014, Grant was examined by Alan Kirk Stage, Ph.D., for purposes of his disability application. (AR 560-63). He presented with a flat affect, and his presentation suggested feelings of anxiety and depression. (AR 561). His behavior suggested mild difficulties with inattention and distractibility due to anxiety. (AR 561). A mental status exam indicated that his immediate memory, recent memory, and working memory were low average; his remote memory was intact. (AR 563). His serial ability and verbal abilities were also low average. (AR 563). Dr. Stage assessed that Grant appeared to be experiencing longstanding feelings of anxiety and depression since witnessing a fatal stabbing in 2006. (AR 563). Dr. Stage diagnosed Grant with PTSD; major depressive disorder, moderate; and a substance-related disorder. (AR 563).

         On June 25, 2014, Ken Lovko, Ph.D., a state agency psychologist, reviewed Grant's records and found that he was moderately limited in understanding, remembering, and carrying out detailed instructions; maintaining attention and concentration for extended periods; completing a normal workday and workweek without interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods; interacting appropriately with the general public; maintaining socially appropriate behavior and adhering to basic standards of neatness and cleanliness; responding appropriately to changes in the work setting; and setting realistic goals or making plans independently of others. (AR 108-10). Dr. Lovko concluded in his narrative that Grant could “understand, remember, and carry-out unskilled tasks without special considerations in many work environments, ” “relate on at least a superficial and ongoing basis with co-workers and supervisors, ” “attend to task for sufficient periods of time to complete tasks, ” and “manage the stresses involved with unskilled work.” (AR 110).

         On September 10, 2014, Maura Clark, Ph.D., another state agency psychologist, affirmed Dr. Lovko's assessment. (AR 119-20, 123-25, 132). Dr. Clark further concluded that Grant did not satisfy the “A” diagnostic criteria of Listings 12.04, Affective Disorders, or 12.06, Anxiety-Related Disorders. (AR 32, 119). In assessing the “B” criteria of these listings, Dr. Clark found that Grant had moderate difficulties in maintaining social functioning and in maintaining concentration, persistence, or pace; and mild restrictions in activities of daily living. (AR 119-20, 132). Dr. Clark found that the evidence also did not establish the presence of “C” criteria. (AR 120, 133).

         In May 2015, Stacey Ruiz, a clinician at Park Center, documented that Grant was attending school and performing his assignments for a college course. (AR 636). Grant stated that he really wanted to focus on his classes. (AR 637).

         On June 24, 2015, Paula Martin, MS, LSW, LMHC, a clinical social worker at Park Center, completed a mental medical source statement on Grant's behalf. (AR 793-98). She indicated diagnoses of PTSD and dysthymic disease. (AR 793). As clinical findings, she reported that Grant had received addiction treatment at various institutions and that he has depression, anxiety, sleep issues, and flashbacks. (AR 793). She identified his symptoms as suicidal thoughts, a blunt affect, difficulty concentrating, persistent mood or affect disturbances, paranoid thinking, irrational fear of a specific situation, and sleep disturbance. (AR 794). She opined that in a normal workday and workweek, Grant could: (1) for 80 to 89% of the time, remember work-like procedures, understand and remember simple instructions, carry out simple instructions, maintain attention for two-hour periods, make simple work-related decisions, ask simple questions, accept instructions and respond appropriately to criticism, be aware of normal hazards and take appropriate precautions, set realistic goals or make plans independently of others, and adhere to basic standards of neatness and cleanliness; (2) for 70 to 79% of the time, maintain regular attendance and be punctual, sustain an ordinary routine without special supervision, work in coordination with or proximity to others without undue distraction, complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, get along with coworkers without unduly distracting them or exhibiting behavioral extremes, respond appropriately to changes in a routine work setting, deal with normal work stress, understand and remember detailed instructions, carry out detailed instructions, deal with stress of semiskilled and skilled work, interact appropriately with the general public, and maintain socially appropriate behavior; and (3) for less than 70% of the time, travel to unfamiliar places or use public transportation. (AR 795-96).

         Additionally, Ms. Martin opined that Grant would find working with other people, dealing with the public, and a lack of meaningfulness of work to be stressful. (AR 796). She assessed that Grant had marked difficulties in maintaining social functioning; marked deficiencies of concentration, persistence, or pace; moderate restrictions of activities of daily living; and one or two episodes of decompensation. (AR 797). Ms. Martin indicated that Grant had a history of one or more years' inability to function outside a highly supportive living arrangement with an indication of continued need for such living arrangement. (AR 797). She estimated that Grant's impairments would cause him to be absent from work more than four days a month. (AR 798). Finally, Ms. Martin represented that alcohol or substance abuse did not contribute to any of the limitations that she had set forth in the mental medical source statement. (AR 798). Karen Lothamer, a psychiatric nurse practitioner, and Dr. Lambertson counter-signed the mental medical source statement. (AR 798).

         D. Additional Mental Health Evidence Submitted to the Appeals Council

         The following additional mental health records were submitted to the Appeals Council after the ALJ issued his decision:

         Grant was seen at Park Center for continued skills training and development on June 1, June 19, June 22, and July 9, 2015. (AR 857-59, 865-70). He was attending Carriage House three to four times a week and was trying to work out twice a week to help with stress reduction. (AR 866). He reported feeling stressed by recent fireworks due to his sensitivity to loud noises. (AR 870). Grant failed to appear for his appointment on June 15, 2015, ...

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