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Symes v. Colvin

United States District Court, D. South Dakota, Southern Division

July 1, 2015

SCOTT A. SYMES, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration; Defendant.


KAREN E. SCHREIER, District Judge.

Plaintiff, Scott A. Symes, seeks review of the decision of the Commissioner of the Social Security Administration denying his claim for social security disability insurance (SSDI) under Title II of the Social Security Act, 42 U.S.C. § 423, and supplemental security income (SSI) under Title XVI of that Act, 42 U.S.C. § 1382. The Commissioner opposes the motion and moves the court to affirm the denial. For the following reasons, the court affirms the decision of the Commissioner.


Symes applied for SSDI and SSI on August 25, 2011, alleging disability since June 30, 2008, due to several mental conditions, back problems, and a knee injury. AR 94, 220, 260.[1] Symes previously applied for SSDI and SSI and an Administrative Law Judge (ALJ) denied his request on June 29, 2011. AR 72-88. Symes did not appeal this decision and it became final; thus, the alleged onset date of his disability for this claim is June 30, 2011. 20 C.F.R. §§ 404.955, 404.957(c)(1); see Rogers v. Chater, 118 F.3d 600, 601 (8th Cir. 1997) (noting a claimant generally cannot seek benefits in a subsequent proceeding for any time period for which the prior proceeding had denied benefits). Symes's insured status for Title II benefits expired on September 30, 2011.[2] Thus, the relevant time period for Symes's Title II claim is the three months from June 30, 2011, through September 30, 2011. And the relevant time period for Symes's Title XVI claim is from June 30, 2011, through March 5, 2013.

The Social Security Administration (SSA) initially denied Symes's current application on January 20, 2012, and again upon reconsideration on May 4, 2012. AR 154, 167. Symes then requested an administrative hearing and appeared with counsel before ALJ Denzel R. Busick on February 11, 2013. See AR 26-68 (transcript of hearing). On March 5, 2013, the ALJ issued an unfavorable decision finding that Symes retained the residual functional capacity (RFC) to perform light work within certain parameters. AR 16. The ALJ denied Symes's claims, concluding a significant number of jobs existed that Symes could perform. AR 20-21. Symes timely filed a request for review by the Appeals Council, which was denied on June 20, 2014.[3] AR 1-2. On August 13, 2014, Symes commenced this action seeking judicial review of the Commissioner's denial of his claims. Docket 1. After briefing was complete, the Commissioner moved to file a supplemental administrative record. Docket 13. Symes opposes the motion. Docket 16 (Symes's response to Commissioner's motion); Docket 15 (supplemental record received).[4]


Symes was born on February 29, 1980. He was 33 years old at the time of the Commissioner's final decision on March 5, 2013. AR 124. Symes attended school through the eleventh grade. AR 31, 124. He has past relevant work experience as a supervisor, stock clerk, pizza baker, construction worker, food sales clerk, and kitchen helper. AR 271-77, 303.

I. Mental Impairments

The earliest records of Symes's mental impairments date back to November 2008. As part of his prior disability application, Symes completed an interview with psychologist Dr. Elwin Unruh on November 13, 2008.[5] AR 306-19. Dr. Unruh described Symes as "generally quite upbeat and responsive, " with no indication of any delusions or hallucinations. AR 307-08. He found that Symes was of average intelligence, with an IQ of 93, but that academically Symes operated significantly below average. AR 309. Dr. Unruh diagnosed Symes with bipolar disorder, a learning disability, and attention deficit/ hyperactivity disorder (ADHD). AR 309.

On April 18, 2011, Symes met with Dr. Melissa Spanggaard at Southeastern Behavioral HealthCare. AR 347-49. Symes reported feeling anxious about his upcoming disability hearing, and stated that he had not been applying for any jobs due to the upcoming hearing. AR 347-48. Dr. Spanggaard described Symes's mood as euthymic, [6] pleasant, and cooperative, with linear and goal-directed thought production. AR 348. Dr. Spanggaard noted that Symes exhibited fair attention, concentration, insight, and judgment, and diagnosed him with obsessive-compulsive disorder (OCD), intermittent explosive disorder, marijuana dependence in remission, nicotine dependence, and methamphetamine dependence in full sustained remission. AR 348. She also assessed personality disorder, not otherwise specified, and diagnosed a current global assessment of functioning (GAF) of 60.[7] AR 348. Dr. William Fuller supervised the interview and concurred with Dr. Spanggaard's diagnosis and treatment. AR 349. Dr. Fuller noted Symes's rapid speech and high energy levels during the interview. AR 349.

In April 2011, Symes also began receiving therapy from counselors at Southeastern Behavioral. AR 378. On April 20, 2011, Symes told his counselor that he was unsure about working with Employment Connection Services because finding employment would mean he would have to pay more for rent and utilities and would decrease his food stamps. AR 375. On May 6, 2011, his counselor indicated that Symes's mood and thoughts seemed to be within normal limits, and his dress and hygiene were "good." AR 371. Symes continued meeting with a counselor about once a month through 2011. AR 351-73, 393-414. The counselor consistently described Symes's mood and thought process as "appropriate." See, e.g., AR 353, 355, 361, 394, 401. On July 20, 2011, Symes told his counselor "he has been sleeping more during the day and staying up all night... playing games and hanging out with friends." AR 361.

Dr. Chad Erickson, [8] another doctor at Southeastern Behavioral, evaluated Symes on August 1, 2011. Dr. Erickson noted Symes's good grooming and hygiene, good mood, linear and goal-directed thought production, good insight, and fair judgment. AR 344. Symes reported smoking marijuana "on occasion, " said that things were "going fairly well, " and denied any OCD symptoms. AR 344. Dr. Fuller supervised the interview and concurred with Dr. Erickson's analysis, noting that the "patient's mental status findings were those of a pleasant and cooperative male who is appropriately dressed and easy to relate to. Mood is euthymic and actually quite positive and energetic." AR 345. Dr. Erickson saw Symes for a follow-up appointment on September 12, 2011. AR 341. Symes stated that he had low energy and low motivation, but otherwise felt that he was doing "fairly well" and believed that his OCD symptoms were under "fairly good control." AR 341. He reported continuing to use marijuana on occasion. AR 341. Dr. Erickson noted Symes's good grooming and hygiene, and prescribed Provigil to help with the daytime drowsiness.[9] AR 342. Dr. Fuller again concurred with Dr. Erickson's analysis. AR 342. On October 3, 2011, Dr. Erickson noted that Symes had discontinued taking Wellbutrin and still had low energy, but things were "going pretty good for the most part" and that Symes's OCD symptoms were under control. AR 390. Dr. Fuller again concurred. AR 391.

On November 14, 2011, Symes met with Dr. Erickson and stated that he "feels that things have been going quite well for him." AR 388. He stated that he had much higher energy levels during the day. AR 388. Dr. Erickson noted that he exhibited good grooming and hygiene, he seemed cooperative, friendly, and alert, and showed good insight and judgment. AR 388. Dr. Erickson wrote that Symes's OCD was "well controlled." AR 388. Dr. Fuller supervised and concurred, noting that Symes's mental status findings were "relatively negative." AR 389.

On January 5, 2012, Dr. Brian Kidman completed a physical consultation evaluation in conjunction with Symes's disability application. AR 380-83. Although the evaluation focused on Symes's physical ailments, Dr. Kidman noted that Symes appeared "euthymic and upbeat." AR 382. On March 5, 2012, Dr. Erickson followed up with Symes at Southeastern Behavioral. Symes stated that things were going "fairly well, " he was working odd jobs with his father, and denied any problems with depression, sadness, anxiousness, or suicidal tendencies. AR 386. Symes expressed some frustration with his recent weight gain. AR 386. Dr. Fuller supervised and noted that Symes's mental status findings and appearance were within normal limits. AR 387. On June 4, 2012, Symes told Dr. Erickson that he discontinued Fluvoxamine[10] because the state stopped paying for it, and overall he felt "more irritable and a bit more anxious." AR 520. Dr. Erickson prescribed Viibryd, [11] and noted that Symes was cooperative and alert, with linear and goal-directed thought production, good insight, and good judgment. AR 520-21. Dr. Erickson further noted that Symes's OCD was "well controlled." AR 521. Dr. Fuller supervised and concurred. AR 521.

Dr. Jessica McIlrath, another doctor at Southeastern Behavioral, saw Symes on July 30, 2012. Symes stated that he started taking Prozac in place of Viibrid, and the Prozac was working well. AR 517. Symes reported that he had been having some angry outbursts, but was in anger management. AR 517. He also reported obsessive behavior such as checking locks and windows and fixating on noises outside of his residence. AR 517. He described "manic" episodes where he became irritable and angry, and Dr. McIlrath discussed how these episodes do not sound like mania in the traditional sense. AR 518. He also stated that he continued to use marijuana, but claimed to be attempting to reduce his usage. AR 517. Dr. McIlrath questioned whether Symes's prior diagnosis of bipolar disorder was given while he was actively abusing methamphetamines in the past.[12] AR 518. She described Symes as "grandiose, " but "pleasant and cooperative" with coherent, logical, and goal-directed thoughts, and assigned him a GAF score of 60. AR 518. Dr. Fuller concurred, stating that Symes "was smiling and joking" and appeared articulate. AR 519. On September 17, 2012, Dr. McIlrath examined Symes. AR 515. Symes reported that a female friend was staying with him, and her behavior was causing him frustration. AR 514. He admitted to using marijuana more frequently, and was experiencing some "vague suicidal and homicidal thoughts" with no intent to carry through with anything. AR 514-15. Dr. McIlrath noted that Symes appeared anxious, irritable, "a bit unstable, " and "somewhat dramatic, " but clear and alert. AR 516. Dr. Fuller concurred. AR 516.

On September 30, 2012, Symes was admitted to Avera McKennan Hospital after overdosing on Provigil and Trazodone. AR 467. Dr. Heather Chester-Adam evaluated Symes on October 1, 2012, and noted poor concentration, judgment, and insight, but a cooperative, pleasant, and euthymic attitude. AR 440. Symes was admitted to inpatient treatment through South Dakota Human Services Center on October 1, 2012. AR 450. Inpatient records noted that Symes "was pleasant with staff and peers" and denied suicidal thoughts. AR 497-99. Symes was discharged on October 12, 2012. AR 508. On the date of his discharge, Cynthia Jensen, M.Ed., noted that Symes "had been attending groups and participating with them. He denied feeling depressed or suicidal... [he] expressed feeling hopeful that he will continue to feel good upon discharge." AR 509-09. Symes was prescribed an increased dose of Prozac upon discharge and assigned a GAF score of 60. AR 511.

On November 19, 2012, Dr. McIlrath followed up with Symes at Southeastern. AR 511. Symes reported feeling "jittery all the time" since being discharged from the South Dakota Human Services Center, but also complained of "extreme amotivation and fatigue." AR 511. Symes discussed at length his position on medical marijuana and his use of marijuana to "self-medicate." AR 511. Dr. McIlrath noted that Symes's amotivation and fatigue would likely be worsened by smoking marijuana. AR 511. Dr. McIlrath described Symes's mood during the interview as calm and neutral, his speech as clear, spontaneous, and non-pressured, his judgment and insight as "marginal, " and his thoughts as logical, coherent, goal-directed, and less dramatic than during his previous visit. AR 512. She noted that Symes denied any suicidal or homicidal ideation. AR 512. Dr. Fuller supervised and concurred with Dr. McIlrath's findings. AR 513. He noted that "the patient's mental status findings were those of a well-groomed Caucasian male, slightly animated and anxious at times but overall reasonable [sic] competent." AR 513.

II. Back and Knee Pain

Symes visited Dr. Nathan Unruh, D.C., [13] at Envive for chiropractic care on April 4, 2011, May 4, 2011, and August 1, 2011. AR 337-40. On April 4, 2011, Symes described severe pain in his lower back, neck, and middle back. AR 337. He reported an increase in pain with transition from one position to another, and a decrease in pain with stretches, treatments, and ice. AR 337. Dr. Unruh assessed segmental dysfunction of the cervical, thoracic, lumbar, and pelvic region, and assessed Symes's prognosis as fair. AR 337. On May 4, 2011, Symes reported dull, constant cervical, lumbar, and thoracic discomfort. AR 338. He described the pain as mild to moderate. AR 338. Dr. Unruh prescribed ice in the case of inflammation. AR 338. On August 1, 2011, Symes again complained of constant, dull cervical, lumbar, and thoracic discomfort, and stated that the pain was mild to moderate. AR 338. Symes reported that his daily activities affected his back pain. AR 338. Dr. Unruh performed chiropractic manipulative therapy to the sacroiliac joints, thoracic spine, and cervical and lumbar areas. AR 338.

On January 5, 2012, Dr. Brian Kidman performed a consultative evaluation for Symes's disability application. AR 380-383. Symes alleged back pain, fused vertebrae scoliosis, degenerative disc disease, left knee injury, and acid reflux disease as physical bases for disability. AR 380. Symes described lower back pain shooting into the upper back when he stoops, twists, or bends over. AR 380. He claimed that he could not sit for more than one hour, lie down for more than 15 minutes, stand for more than half an hour, walk for more than a block or 5 minutes, or lift more than 40 pounds without experiencing back pain. AR 380-81. Symes stated that ice and chiropractic treatment temporarily relieve the pain, but housework, repetitive motions, sitting, or standing for too long cause him greater pain. AR 381. He listed the pain as a 4 or 5 out of 10. AR 381.

Symes reported to Dr. Kidman that he had knee surgery on his left knee at age 18 for patellar dislocation. AR 381. He stated that since then, he has experienced burning pain in that knee when standing for more than two hours. AR 381. He stated that he did not have any knee pain when sitting, but could not walk for more than 5 or 10 minutes before experiencing burning pain. AR 381. He stated that kneeling was very painful, and he could not stoop or bend more than a couple times in an hour before experiencing pain in the knee. AR 381. Symes reported that his acid reflux disease sometimes burns and gags him and gives him hiccups, but "this is the least of his problems." AR 381. Dr. Kidman took x-rays of Symes's back and knee and described the results as generally unremarkable, other than the x-rays of the lumbosacral spine, which showed severe scoliosis and apparent fusion of the L4-5 vertebrae. AR 383.

On August 15, 2012, Dr. Erik Jacobson evaluated Symes for a general health physical and STD check at the Avera McKennan Downtown Clinic. AR 525. Symes reported stable chronic back pain. AR 525. Dr. Jacobson found him to be in good physical health with no acute findings. AR 525.


On March 5, 2013, the ALJ issued a decision denying Symes's application for benefits. AR 12-21. In doing so, the ALJ used the sequential five-step evaluation process.[14] At step one, the ALJ determined that Symes had not engaged in substantial gainful activity since June 30, 2011, the alleged onset date in accordance with Symes's first application for benefits that was denied on June 29, 2011. AR 14. At step two, the ALJ found that Symes suffered from severe impairments, namely obsessive compulsive disorder, attention deficit disorder, antisocial personality disorder, status-post spinal fusion, degenerative disc disease, left knee injury, and arm pain. AR 14. At step three, the ALJ determined that Symes did not have an impairment or combination of impairments that met or medically equaled a listed impairment. AR 14-16. At step four, the ALJ determined that Symes had the RFC to perform light work within certain parameters. AR 16. Based on this RFC determination, the ALJ concluded that Symes could not perform any past relevant work. AR 19-20. At the fifth and final step, the ALJ considered testimony of a vocational expert and determined that Symes was capable of performing other jobs that existed in significant numbers in the national economy. AR 20-21. Accordingly, the ALJ found that Symes was not disabled and thus did not qualify for benefits under the Social Security Act. AR 21.


The court must uphold the ALJ's decision if it is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g) ("The findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive...."); Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.'" Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir. 2006)). The court considers evidence that both supports and detracts from the ALJ's decision. Moore v. Astrue, 623 F.3d 599, 605 (8th Cir. 2010). If the Commissioner's decision is supported by substantial evidence in the record as a whole, the court may not reverse it merely because substantial evidence also exists in the record that would support a contrary position or because the court would have determined the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).

In determining whether the Commissioner's decision is supported by substantial evidence in the record as a whole, the court reviews the entire administrative record and considers six factors: (1) the ALJ's credibility determinations; (2) the claimant's vocational factors; (3) medical evidence from treating and consulting physicians; (4) the claimant's subjective complaints relating to activities and impairments; (5) any third-party corroboration of claimant's impairments; and (6) a vocational expert's testimony based on proper hypothetical questions setting forth the claimant's impairment(s). Stewart v. Sec'y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (citing Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).

The court also reviews the Commissioner's decision to determine if an error of law has been committed, which may be a procedural error, the use of an erroneous legal standard, or an incorrect application of the law. Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are reviewed de novo with deference accorded to the Commissioner's ...

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