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Peters v. Commissioner of Social Security

United States District Court, M.D. Florida, Tampa Division

September 13, 2017

Matthew Peters, Plaintiff,
Commissioner of Social Security, Defendant.


          Patricia D. Barksdale, United States Magistrate Judge

         This is a case under 42 U.S.C. §§ 405(g) and 1383(c)(3) to review a final decision of the Commissioner of Social Security denying Matthew Peters's claim for disability insurance benefits and supplemental security income.[1] He seeks reversal, Doc. 22; the Commissioner, affirmance, Doc. 23. This order adopts the summaries of facts in the Administrative Law Judge's (“ALJ's”) decision, Tr. 17-25, and in the Commissioner's brief, Doc. 23 at 2-4.[2]

         I. Framework

         The Social Security Administration uses a five-step sequential process to decide if a person is disabled, asking whether (1) he is engaged in substantial gainful activity, (2) he has a severe impairment or combination of impairments, (3) the impairment meets or equals the severity of anything in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, App'x 1, (4) he can perform any of his past relevant work given his residual functional capacity (“RFC”), and (5) there are a significant number of jobs in the national economy he can perform given his RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

         II. Issues

         Peters presents three issues: (1) whether the ALJ erred at step two by failing to find morbid obesity, psoriasis (reddish, silvery-scaled lesions, typically on the elbows, knees, scalp, and trunk), [3] and arthralgia (severe, noninflammatory joint pain) severe impairments; (2) whether the ALJ erred by failing to develop the record; and (3) whether the ALJ complied with the Eleventh Circuit's pain standard. Doc. 22 at 2, 7-8.

         III. Background

         Peters was born in 1979 and last worked in March 2008. Tr. 177, 184, 202, 215. He has a high-school education and experience as a stocker at a grocery store, a stocker and shipper at a distribution center, a shipper at a bagel factory, and a concession-stand worker at a movie theater. Tr. 203, 215. He alleges he became disabled in March 2008 from a learning disability and other mental impairments. Tr. 177, 184, 202. He is insured for disability insurance benefits through September 2008. Tr. 190. He was represented by an attorney during the administrative process. Tr. 15. He proceeded through the administrative process, failing at each level. Tr. 1-6, 12-29, 72-73, 82-83. This case followed. Doc. 1.

         IV. Evidence

         A. School Evidence

         According to transcripts from Peters's high school, his grades ranged from an F in English to an A in band. Tr. 264. A technical assessment completed at the school rated his general learning ability in the average range and recommended the following programs: auto body technology, auto services technology, construction trades technology, architectural drafting, heating/ventilating/cooling, machine trades technology, welding technology, electronics technology, graphic arts technology, and video/applied communications. Tr. 265. He scored above critical norms in spatial aptitude, form perception, manual dexterity, general learning ability, numerical aptitude, and clerical perception. Tr. 266-67.

         When Peters was in the eleventh grade, an examiner reported he had struggled with school and staff members were concerned but he was a “bright young man who has much potential.” Tr. 273. Math was a strength; he performed at a ninth-grade level and could apply knowledge to everyday life. Tr. 273. He read at almost an eighth-grade level and was “able to gain meaning from what he [read] even if he [was] unable to read each and every word in a passage.” Tr. 273. He often had to re-read a passage and needed time to process but could produce the correct response if given enough time. Tr. 273. His written-language skills were deficient, and he spelled at almost a fifth-grade level, though he appeared to understand sentence-writing mechanics. Tr. 273. His general knowledge was at a seventh-grade level. Tr. 273.

         An Individualized Educational Planning Committee report completed before graduation designates no primary handicap and indicates he completed a special education curriculum and regular vocational education. Tr. 268-70.

         B. Medical Evidence

         In March 2013, Thomas Antonek, Ph.D., examined Peters at the request of the Florida Department of Health, Division of Disability Determinations. Tr. 258-60. He conducted a clinical interview and a mental status examination, reviewed background information from the Division of Disability Determinations, and reported the following. Tr. 258.

         Peters's parents drove him to the appointment, and he completed the written paperwork “without incident.” Tr. 258. He was dressed casually, exhibited adequate hygiene, and looked his stated age. Tr. 258. His psychomotor movements were within normal limits. Tr. 258. He was cooperative and had adequate conversation skills but spoke softly; limited the conversation to short, simple, and concrete responses; showed marked impairment in the use of multiple nonverbal behaviors; and showed a lack of social and emotional reciprocity. Tr. 258. He had slow and concrete thought processes; no loose associations or flight of ideas; adequate concentration and attention; intact immediate, recent, and remote memory; impaired judgment and insight; low average intellectual ability; depressed mood; and congruent affect. Tr. 258. He was oriented to person, place, time, and situation and denied hallucinations and suicidal ideation. Tr. 258.

         Peters reported he had been diagnosed with learning disabilities in reading, writing, and comprehension in the second grade and was in special education classes throughout school. Tr. 259. He did not have many friends in school and preferred to be alone. Tr. 259. He began mental health treatment for depression in January 2013 (two months before the consultative exam). Tr. 259. He experiences sadness, helplessness, increased irritability, concentration difficulties, motivational difficulties, social isolation, withdrawal, and low self-esteem. Tr. 259. In a normal day, he gets up, watches television, showers, eats, and plays video games. Tr. 259. He can perform activities of daily living but lacks motivation. Tr. 259. His longest job was just over two years at a movie theater, but he was fired because he watched a few seconds of a movie. Tr. 259. His most recent job was working at a factory for about a year, but he left that job to move to Florida. Tr. 259. He has never lived independently, living first with his parents, then with his sister, and now with his grandparents. Tr. 259. He takes no medication. Tr. 259.

         Dr. Antonek summarized, “Overall, the score obtained on the ‘Mini Mental Status Exam' was in the High or Normal Range of functioning. This indicates that the claimant is unlikely to be suffering from cognitive impairment which would interfere with daily functioning.” Tr. 259 (internal emphasis omitted). He listed diagnoses of recurrent major depressive disorder, rule out Asperger's disorder, rule out reading disorder, and rule out disorder of written expression; assigned a Global Assessment of Functioning (“GAF”) scale rating of 50;[4] and opined Peters can manage funds. Tr. 260. He recommended individual psychotherapy to help coping skills, consultation with a psychiatrist or nurse for psychotropic medication, intellectual testing to assess baseline cognitive function and potential learning disabilities, and referral to vocational rehabilitation. Tr. 260. He opined Peters's emotional and psychological functioning are “guarded” and mitigating factors include “the chronic nature of the multiple co-morbid psychiatric conditions, the absence of any consistent contemporary employment history, the lack of independent living skills, and the inability to secure continuity of health care without health insurance or the economic resources to pay for services rendered.” Tr. 260.

         In June 2014, the Division of Vocational Rehabilitation referred Peters to Jeffrey Merin, Ph.D., P.A., for evaluation of his learning disability and a personality assessment. Tr. 277-83. Dr. Merin reviewed Peters's history and, in addition to the history described in other reports, noted he had been found guilty of possession of child pornography, had been sentenced to five years' probation (ending in 2019), and is a registered sex offender. Tr. 277-78. He also noted Peters complained of chest pain, palpitations, profuse sweating, generalized fear, and emotional factors that aggravate his psoriasis. Tr. 278.

         A mental status examination showed Peters was cooperative, compliant, and oriented in all spheres with no evidence of a formal thought disorder or manic condition. Tr. 278. He exerted “good levels of effort and motivation” but had trouble responding “in a cogent and timely manner.” Tr. 278. He had simplistic, concrete, and limited communication skills; gave coherent and logical information; displayed appropriate affect with no evidence of emotional distress; and described his mood as mildly depressed and anxious due to his probationary status and unemployment. Tr. 279. He wore a long-sleeved shirt though it was a hot day, explaining the sleeves protect his psoriasis. Tr. 278.

         Intellectual testing placed Peters in the average range for verbal comprehension and perceptual reasoning but revealed significant weaknesses in abstraction and vocabulary and relative weaknesses in attention, concentration, and fine motor dexterity under timed conditions. Tr. 280. His nonverbal abilities were in the average to above-average range. Tr. 280.

         Assessment of achievement factors showed “multiple learning disabilities including reading, writing, and arithmetic.” Tr. 280. Dr. Merin opined Peters has marked difficulties, is functioning between elementary- and middle-school levels, and has “exceptionally poor” processing speed and general vocabulary. Tr. 280. He was unable to read, comprehend, and respond reliably to a personality inventory, but other tests showed mild depression and compromised psychological factors. Tr. 281. Dr. Merin opined Peters's difficulties processing complex information beyond the middle-school level could “preclude an array of jobs that require basic academics as well as problem-solving strategies.” Tr. 282. He diagnosed Peters with reading disorder, disorder of written expression, mathematics disorder, persistent depressive disorder, major depressive disorder, generalized anxiety disorder, and an other specified personality disorder, and noted he had psoriasis and a felony conviction. Tr. 283. He concluded,

The combination of physical, cognitive/intellectual, as well as academic difficulties significantly compromises Mr. Peters'[s] capacity to maintain gainful employment at this time. However, with assistance and appropriate intervention, Mr. Peters may be capable of part-time work. A job coach will be necessary. Additionally, proper and appropriate psychiatric intervention will be necessary in order to help Mr. Peters minimize the negative effects of social withdrawal. In the absence of improvement, Mr. Peters'[s] prognosis for gainful employment is poor.

Tr. 283. He recommended a psychiatric evaluation to determine appropriate medication and job placement and that those with whom Peters works should clearly articulate all goals, responsibilities, and communications in writing. Tr. 283.

         In September 2014, Ernesto Rodriguez, M.D., examined Peters as a new rheumatology patient. Tr. 284-87. Dr. Rodriguez observed he was a “pleasant white male in no distress, ” could walk without adaptive devices, was obese, was accompanied by his father, and used a right ankle monitoring brace. Tr. 284. Physical findings were normal except for diffuse psoriatic lesions over the trunk and extremities, sacroiliac joint tenderness to palpation, thoracic spine tenderness, sciatic notch tenderness, and dactylitis (finger inflammation) over the second digit of his left hand. Tr. 284-85. On a 28-joint exam, swelling was seen on one and tenderness on none. Tr. 286. Peters reported his current pain was 6 on a 10-point scale and, in the past week, his average pain level had been 5, his best pain level had been 3, and his worst pain level had been 8. Tr. 286. Dr. Rodriguez's assessment was “arthralgias, rule out inflammatory polyarthritis”; “questionable evidence of dactylitis”; well-controlled psoriasis; and morbid obesity that is likely contributing to his musculoskeletal complaints. Tr. 286. Dr. Rodriguez prescribed medication for the arthralgia, ordered imaging and lab work, and advised him to lose weight. Tr. 286- 87.

         In March 2013, in connection with the Social Security Administration's initial decision, Robin McCallister, Ph.D., reviewed the evidence and completed a psychiatric review technique assessment. Tr. 65-66. She opined Peters has a severe affective disorder and a mild restriction in activities of daily living; mild difficulties maintaining social functioning; moderate difficulties maintaining concentration, persistence, or pace; and has had no episode of decompensation of extended duration. Tr. 65.

         Dr. McCallister also completed a mental RFC assessment. Tr. 67-69. She opined Peters has no understanding or memory limitation. Tr. 67. On concentration, persistence, and pace, she opined Peters has moderate limitations in his ability to carry out detailed instructions, maintain attention and concentration for extended periods, work in coordination with or in proximity to others without being distracted by them, complete a normal workday and workweek without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods; and no significant limitations in his ability to carry out very short and simple instructions, perform activities within a schedule, maintain regular attendance, be punctual, sustain an ordinary routine without special supervision, and make simple work-related decisions. Tr. 67-68. On social functioning, she opined he has moderate limitations in his ability to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; no significant limitation in his ability to ask simple questions, request assistance, and get along with coworkers and peers without distracting them or exhibiting behavioral extremes; and no evidence of limitation in his ability to interact appropriately with the general public, accept instructions, and respond appropriately to criticism from supervisors. Tr. 68. On adaptation, she opined he has moderate limitations in his ability to respond appropriately to changes in work setting and no significant limitation in his ability to be aware of normal hazards, take appropriate precautions, travel in unfamiliar places, use public transportation, set realistic goals, and make plans independently of others. Tr. 68-69.

         Overall, Dr. McCallister opined Peters can understand and remember simple and detailed instructions, carry out simple and some detailed instructions in two-hour increments in an eight-hour day, relate adequately without potential for significant problems with coworkers and supervisors, and adapt to changes and pressures in a routine work environment. Tr. 69.

         On reconsideration, Pauline Hightower, Psy.D., repeated Dr. McCallister's opinions. Tr. 88-92.

         C. Self-Reported Evidence

         In February 2013, Peters, with the help of his sister, completed a function report and reported the following.

         He lives in a house with his family. Tr. 207. During the day, he showers, eats, visits his parents next door, watches television, eats again, sleeps, eats again, then sleeps again. Tr. 208. He sometimes sleeps all day and is up all night or does not sleep at all. Tr. 208. His sister sometimes drops off an animal for him to watch for a few days, but his grandmother helps him and he otherwise does not take care of any people or animals. Tr. 208. Daily, he prepares food such as spaghetti, sandwiches, hot dogs, or grilled food. Tr. 209. He can spend two hours doing laundry, two hours mowing, and one hour doing dishes, but only if someone asks him to. Tr. 209. He sometimes goes outside for an hour and travels by walking or driving. Tr. 210. He shops for groceries at Publix one or two times a week for ten minutes at a time but has to “hurry and get out.” Tr. 210. His hobbies are watching television and learning about history, and he does them daily. Tr. 211. He visits his parents daily and goes to church weekly, though he needs reminders to go places and needs someone to accompany him. Tr. 211.

         His conditions affect his ability to work because he cannot comprehend what he reads, has “high anxiety with lots of people, ” writes on a second-grade level, is “easily raged, ” and is depressed. Tr. 207. He has trouble talking, concentrating, understanding, following instructions, and getting along with others. Tr. 212. Those conditions have been present since childhood. Tr. 208. He has no problem with personal care and needs no reminders to take care of personal needs, groom himself, or take medicine. Tr. 208-09.

         He can walk about 280 feet before he needs to rest for 10 minutes. Tr. 212. His attention span varies depending on what he is paying attention to, and he does not finish what he starts, has trouble with written instructions because he cannot comprehend them, and has trouble with spoken instructions because he needs to be told multiple times. Tr. 212. He cannot pay bills, handle a savings account, or use a checkbook or money orders because he has never done so before. Tr. 210. Sometimes people make him mad for no reason, and since his conditions began, he keeps more to himself. Tr. 212. He was fired from a job at a movie theater because the supervisor did not like him but otherwise is “respectable” ...

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