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Yanez v. Berryhill

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

August 22, 2018

JERIMIAH RAUL YANEZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          JON E. DEGUILIO JUDGE

         Since age three, Plaintiff Jerimiah Yanez, has suffered from epilepsy involving grand mal seizures that required his hospitalization. The condition has required regular treatment from his family doctor and neurologist. Yanez also suffers from depression. In August 2013, he applied for disability insurance benefits alleging disability as of the date of his application. After holding a hearing, the administrative law judge (“ALJ”) disagreed and found that jobs existed which Yanez was capable of performing. The Appeals Council denied the request for review. Yanez then filed this action seeking judicial review of that decision, thereby invoking this Court’s jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, the Court remands this matter to the Commissioner for further proceedings.

         I. FACTUAL BACKGROUND

         Medical & Educational Records

         The record consists of Yanez’s medical records since late 2011, along with his educational records from high school. Those records reveal that Yanez was born in 1981 and that complications during his birth may be linked to his suffering from regular seizures-several smaller seizures a week and up to four grand mal seizures per year. The seizures are typically set into motion by everyday stress, and the residual effects, including fatigue, disorientation, memory loss, and upper extremity numbness/tingling, can last up to a couple of weeks. Yanez’s neurologist, Dr. Richard H. Strawsburg, has documented (in relevant part) Yanez’s suffering from bilateral upper extremity numbness and tingling since 2012 (Tr. at 594-640, 690-99, 833-56). Dr. Strawsburg has repeatedly recommended brain surgery, but Yanez testified that the treatment was not guaranteed to be effective.

         Dr. Kubley, Yanez’s family doctor, offered medical source opinions on February 6, 2014 and August 2, 2014 (Tr. 718-22, 735-39). On the February 2014 physical assessment form, Dr. Kubley indicated that Yanez’s symptoms would “frequently” interfere with the type of attention and concentration necessary to perform simple work-related tasks. He estimated that Yanez could sit, stand, and walk only 20 minutes at a time and only 1 hour out of 8. He indicated that Yanez would need an at-will sit/stand option and would need to take 3-4 unscheduled 15-minute breaks per day. He opined that Yanez could occasionally lift/carry up to 10 pounds. He estimated that Yanez could use his hands, fingers, and arms only 10% of the day, and that he would likely be absent from work 3-4 times a month. On the mental capacity assessment form he completed, Dr. Kubley assessed Yanez with moderate limitations in: understanding and memory; sustained concentration and persistence; and, adaptation. He assessed Yanez with marked limitations in social interaction.

         In his August 2014 opinion, Dr. Kubley indicated that Yanez suffered from drowsiness and fatigue from medications, and that symptoms would “constantly” interfere with the type of attention and concentration necessary to perform simple work-related tasks (Tr. 735-39). Dr. Kubley again assessed extreme limitations in Yanez’s ability to sit, stand, and walk, but this time estimated that Yanez could sit for 60 minutes at a time and could stand/walk for 15 minutes at a time. He then determined that Yanez could sit for 6 hours out of 8, and could stand/walk for 1 hour out of 8. Dr. Kubley again checked the box indicating that Yanez needed a sit/stand option. He indicated that Yanez would need to take 3-4 unscheduled 10-minute breaks per day. He estimated that Yanez could occasionally lift/carry 20 pounds, and could use his hands, fingers, and arms 50% of the workday on the right and 10% on the left. He estimated that Yanez would be absent from work 3-4 times a month. On the mental capacity assessment form, Dr. Kubley opined that Yanez had marked to extreme limitations in understanding and memory, mostly extreme limitations in sustained concentration and persistence, moderate to marked limitations in social interaction, and extreme limitations in adaptation.

         Dr. Kubley documented that Yanez suffers not only from seizures and depression, but from mild mental retardation. In fact, Yanez’s high school records indicate that his intelligence quotient fell within the mildly mentally handicapped range, and that Yanez received full-time special education courses because it was believed that he had a learning disability (Tr. 555-78).

         State Agent Opinions

         On October 8, 2012, Yanez underwent a psychological consultative examination with Dr. Utz (Tr. 589-92). Yanez reported that he had attempted college coursework, but could not focus. He was typically let go from jobs once they became aware of his seizures. On examination, Yanez appeared depressed and was very frustrated by his medical conditions. Dr. Utz diagnosed Yanez with depressive disorder, secondary to seizure disorder.

         Alan Wax, Ph.D., conducted a psychological consultative examination on March 11, 2014 (Tr. 730-33). Yanez reported having no friends, not wanting to talk with others, and disliking big crowds. Dr. Wax assessed Yanez with average to low-average cognitive functioning and diagnosed Yanez with severe major depressive disorder, recurrent. He assigned Yanez a Global Assessment of Functioning score of 53, which describes moderate symptoms.

         A state agency medical consultant opined on March 21, 2014, that Yanez could occasionally lift and carry 50 pounds and could frequently lift and carry 25 pounds (Tr. 384-86). Yanez could occasionally climb ramps and stairs, could never climb ladders, ropes, or scaffolds, could frequently balance, had no limitations in the remaining postural areas, and needed to avoid even moderate exposure to environmental hazards as a seizure precaution.

         Also in late March 2014, a state agency psychological consultant found Yanez to be moderately limited in a few areas, including social functioning and concentration, persistence, and pace (Tr. 383-88). The state agent concluded that Yanez could perform simple, repetitive tasks, but would probably need a position where he worked alone.

         ALJ Determination

         After reviewing the record, the ALJ concluded that Yanez had the residual functional capacity (“RFC”)[1] to perform medium exertional work limited in relevant part to simple, repetitive, and routine tasks involving only occasional use of the non-dominant left arm, frequent interaction with the public and coworkers, and occasional interaction with supervisors. In making this determination, the ALJ never mentioned Yanez’s documented low to average cognitive functioning (or mild mental retardation), gave Dr. Kubley’s opinions “little evidentiary weight,” and assigned the 2014 reviewing state agent opinions “some evidentiary weight.” In determining the type of work Yanez could perform, the ALJ rested on the vocational expert’s (“VE”) testimony that based on the (relevant) hypothetical posed to him, Yanez (who had no relevant past work), could perform unskilled work as an usher, arcade attendant, and information clerk. Accordingly, the ALJ found at step five that Yanez was not disabled.

         II. ...


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