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Jerry Harrold v. Michael J. Astrue

January 11, 2011


The opinion of the court was delivered by: Gary R. Jones United States Magistrate Judge


Plaintiff appeals from a final decision of the Commissioner of Social Security (the "Commissioner") denying his applications for a period of disability, disability insurance benefits, and supplemental security income. (Doc. 1.) The Commissioner has answered (Doc. 9), and both parties have filed briefs outlining their respective positions. (Docs. 14 and 15.) The parties consented to the exercise of jurisdiction by a United States Magistrate Judge, and the case has been referred to the undersigned pursuant to 28 U.S.C § 636(c). (Docs. 12, 13.) For the reasons discussed below, the Commissioner's decision is due to be AFFIRMED under sentence four of 42 U.S.C. § 405(g).


Plaintiff's applications alleged a disability onset date of February 7, 2008, due to stress, mental conditions, and inability to concentrate. R. 64-65, 116-21, 136. Plaintiff's applications were denied initially and upon reconsideration. Thereafter, Plaintiff timely pursued his administrative remedies available before the Commissioner, and requested a hearing before an Administrative Law Judge ("ALJ"). On March 8, 2010, the ALJ conducted Plaintiff's administrative hearing. R. 34-63. On April 6, 2010, the ALJ issued a decision unfavorable to Plaintiff. R. 14-27. Plaintiff timely filed a request for review with the Appeals Council, which denied his request. On December 15, 2010, Plaintiff filed the instant appeal to this Court. Doc. 1.


The Commissioner's findings of fact are conclusive if supported by substantial evidence.*fn1 Substantial evidence is more than a scintilla, i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion.*fn2

Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision.*fn3 The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision.*fn4 However, the district court will reverse the Commissioner's decision on plenary review if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law.*fn5

The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than twelve months.*fn6 The impairment must be severe, making Plaintiff unable to do her previous work, or any other substantial gainful activity which exists in the national economy.*fn7

The ALJ must follow five steps in evaluating a claim of disability.*fn8 First, if a claimant is working at a substantial gainful activity, she is not disabled.*fn9 Second, if a claimant does not have any impairment or combination of impairments which significantly limit her physical or mental ability to do basic work activities, then she does not have a severe impairment and is not disabled.*fn10 Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is disabled.*fn11 Fourth, if a claimant's impairments do not prevent her from doing past relevant work, she is not disabled.*fn12 Fifth, if a claimant's impairments (considering her RFC, age, education, and past work) prevent her from doing other work that exists in the national economy, then she is disabled.*fn13

The burden of proof regarding the plaintiff's inability to perform past relevant work initially lies with the plaintiff.*fn14 The burden then temporarily shifts to the Commissioner to demonstrate that "other work" which the claimant can perform currently exists in the national economy.*fn15 The Commissioner may satisfy this burden by pointing to the grids for a conclusive determination that a claimant is disabled or not disabled.*fn16

However, the ALJ should not exclusively rely on the grids when the claimant has a non-exertional impairment which significantly limits his or her basic work skills or when the claimant cannot perform a full range of employment at the appropriate level of exertion.*fn17 In a situation where both exertional and non-exertional impairments are found, the ALJ is obligated to make specific findings as to whether they preclude a wide range of employment.*fn18

The ALJ may use the grids as a framework to evaluate vocational factors so long as he introduces independent evidence of the existence of jobs in the national economy that the claimant can perform.*fn19 Such independent evidence may be introduced by a vocational expert's testimony, but this is not the exclusive means of introducing such evidence.*fn20 Only after the Commissioner meets this burden does the burden shift back to the claimant to show that he or she is not capable of performing the "other work" as set forth by the Commissioner.*fn21


The relevant portions of the administrative record may be summarized as follows. In 2006 Plaintiff was committed to the North Texas State Hospital (NTSH) following his indictment for assault. Plaintiff had been drinking heavily and hit his uncle in the head with a cordless drill during an altercation. The court ordered a competency examination, and Dr. Berle Childers felt that Plaintiff had a delusional disorder with paranoid features that compromised his ability to communicate with his lawyer. The NTSH notes state that the psychological profile used by Dr. Childers reflected "one score elevation that was considered in the pathological range on the scale. However, there was no other indication of psychiatric illness or conditions." R. 213-72. The NTSH notes further reflect that Plaintiff's "[m]ental status exam was unremarkable for flagrant/overt Axis I symptomatology. He denied hallucinations of either an auditory or visual nature. He denied neurovegetative symptoms consistent with mania or depression. He denied homicidal and/or suicidal ideation. He did seem preoccupied at times with issues of race and homosexuality . . . . At times these beliefs seem delusional. At other times, he merely seems bigoted." Id. at 218. Plaintiff was neat, clean, cooperative, and his behavior was normal. His thought process was organized, goal-directed, logical, and circumstantial; he was oriented to time, person, place, and situation; his judgment and insight were fair; he had average intellectual functioning; memory was grossly intact; and he was able to concentrate on, and pay attention to, given tasks within an interview setting. Id. at 222-26, 238. The evaluator concluded that Plaintiff should "[e]nter into competency training milieu as soon as clinically feasible . . . [n]o medications at this time but will continue to monitor for signs of Axis I illness that might respond to medications."

Plaintiff was discharged from NTSH on July 25, 2006, the court-mandated discharge date, but because NTSH staff concluded he needed medication that could not be provided before the discharge date he was re-admitted. At intake, Plaintiff stated that he had "no problems" and no hallucinations, but agreed to take psychiatric medication for the first time. Id. at 243-72. Plaintiff denied any history of psychiatric treatment, and admitted a history of polysubstance abuse. Plaintiff was discharged October 26, 2006, as competent to stand trial. Gail I. Johnson, M.D., diagnosed Plaintiff with schizoaffective disorder, noting that he was improved and had done "very well within his current treatment." Id. at 264.

On November 30, 2007, Plaintiff sought treatment for anxiety and medication evaluation through Urgent Care Gainesville. Although the notes initially disclosed auditory hallucinations, during a psychiatric consult Plaintiff denied auditory or visual hallucinations. A mental status examination showed that Plaintiff was pleasant, cooperative, had good eye contact, his mood was, in his words, "not too bad", his affect was anxious. Plaintiff was assessed with reactive depression with anxiety features, history of nicotine dependence, and polysubstance abuse (alcohol, cocaine, and crystal meth). He was prescribed anti-anxiety medication and advised to follow up with the Gainesville Mental Health Clinic. Id. at 484-93.

Plaintiff presented to the emergency department on February 8, 2008, requesting a refill of anxiety medication. The notes reflect that Plaintiff had taken the medication for 14 days following his 11/30/07 visit, and had missed an appointment with the mental health clinic on 12/7/07. Plaintiff reported additional stress due to having lost his job two days previously and that he was considering applying for disability benefits. He reported occasionally hearing voices. Plaintiff was given a duplicate of his previous prescription and scheduled for follow-up with the mental health clinic. Id. at 471.

On February 21, 2008, Plaintiff reported hallucinations, delusions, and difficulty managing anger. He reported that he had lost his job the week before for fighting. He was cooperative, with no visible hallucinatory behavior, normal affect, and appropriate speech, with some slight psychomotor agitation. A depression screen suggested "mild depression." The physician noted that Plaintiff's symptoms seemed consistent with an Axis I psychotic disorder, with "substance abuse conceivably present or ...

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