United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE
Andrew Reid Walter, seeks judicial review of the
Commissioner's final decision denying his application for
social security disability benefits under Title II of the
Social Security Act. Mr. Walter has filed a complaint and has
requested the court to reverse the Commissioner's final
decision denying him disability benefits and to enter an
order awarding benefits. Alternatively, Mr. Walter requests
the court remand the matter to the Social Security
Administration for further proceedings.
appeal of the Commissioner's final decision denying
benefits is properly before the district court pursuant to 42
U.S.C. § 405(g). This matter was referred to this
magistrate judge pursuant to 28 U.S.C. § 636(b) and the
February 27, 2018, order of the Honorable Karen E. Schreier,
Statement of the Case
matter arises from Mr. Walter's application for SSD
benefits filed on April 8, 2016, alleging disability
commencing on November 1, 2009. AR169. Following denial of
his claim, initially and upon reconsideration, Mr. Walter
requested a hearing which was held on March 22, 2017, before
Administrative Law Judge (“ALJ”) Michael Balter.
AR104, 126. In the decision, ALJ Balter confirmed Mr. Walter
was insured for benefits through December 31, 2014. AR15.
unfavorable decision dated April 3, 2017, the ALJ denied Mr.
Walter's claim, finding that he suffers from “right
knee chondromalacia and meniscal tear, status post
arthroscopic surgery; chronic fatigue syndrome, residuals of
traumatic brain injury (“TBI”); post-traumatic
stress disorder; and depression, ” which are severe
impairments. AR10-27. The ALJ concluded that Mr. Walter
cannot perform his past relevant work as a computer support
specialist but retains the residual functional capacity
(“RFC”) to perform other jobs, i.e., electronics
worker and assembler, small products. AR25-26. Thus, the ALJ
rejected Mr. Walter's assertions and severity of his
symptoms associated with his post-traumatic stress disorder
(PTSD) and depression in that he is preoccupied by intrusive
thoughts and rumination, memory loss, poor concentration,
irritability, and other symptoms that prevent him from
reaching his conclusions, the ALJ relied on vocational expert
testimony and rejected the contrary opinion of Dr. Samuel
Bradshaw's compensation and pension examination.
AR392-96. Instead, he gave “significant weight”
to the opinion of the State agency consultants' physical
and mental assessments. AR24.
Walter requested review of the hearing decision on April 3,
2017, which was denied by the Appeals Council on June 27,
2017. AR1. Accordingly, the ALJ's decision became the
Commissioner's final decision.
Plaintiff's Age, Education and Work Experience
Walter was born on April 11, 1966. AR169. Mr. Walters is a
college graduate and a war veteran having served in Desert
Storm/Desert Shield, Enduring Freedom and Iraqi Freedom.
AR547, 549. In his medical records, Mr. Walter described many
traumatic events that occurred during his military service.
AR393. Dr. Bradshaw felt these traumatic events were
“significant.” AR394. Prior to these events, Mr.
Walter functioned at a high level. AR396. Mr. Walter received
an honorable discharge with the rank of Major from the United
States Army following 24 years of service. AR547. In 2009,
Mr. Walter retired from the military but “felt that he
would have been Boarded out if had not.” AR394. He was
having “night horror dreams” and missing at work
and was told by his superior that he had to do something.
AR406, 408. Mr. Walter has never abused substances. AR394.
Mr. Walter's past relevant work was in information
systems management for the United States Army. AR547.
Relevant Medical Evidence
a compensation and pension examination completed by
psychiatrist Dr. Samuel Bradshaw on January 11, 2010, Mr.
Walter indicated that at one time he had many friends but is
now down to just one and that was his wife. AR394. Mr. Walter
indicated he had difficulty going into crowds, had very
labile feelings where he would cry one minute and then
recover, was hyperirritable, easily startled, and had
problems with getting to sleep. AR394. In addition, Mr.
Walter complained he was sad constantly, had little energy,
poor concentration, and did not have fun. AR394. Dr. Bradshaw
stated Mr. Walter had no remissions in the last several years
and that these symptoms had gone on for the last three years.
AR394. Mr. Walter was somewhat anxious during the exam. He
was tearful, sad, and struggled with concentration at times.
AR395. Mr. Walter indicated sleep impairment finding some
relief with medications. AR395. Dr. Bradshaw indicated Mr.
Walter met the Diagnostic and Statistical Manual for Mental
Disorder - IV criteria in that he had recurrent
re-experiencing, had few friends, stayed away from crowds,
was hyperirritable, and rather upset most of the time. AR395.
Dr. Bradshaw diagnosed Mr. Walter with severe post-traumatic
stress syndrome (PTSD) secondary to combat stressors,
depressive disorder secondary to PTSD, and chronic fatigue.
AR395. Dr. Bradshaw assigned a global assessment of function
score (GAF) of 45. AR395.
Bradshaw opined Mr. Walter had total occupational impairment
as he was unable to concentrate, unable to focus, had
repeated symptoms that kept him from completing any duties,
had marked social impairment, and his only social
relationship was his recently married wife, and “they
are already having some difficulties.” AR396.
January 27, 2010, Mr. Walter reported his most troubling
symptom was intrusive thoughts. AR433. During the mental
status exam his concentration was fair. AR434.
February 22, 2010, Dr. Hoerner concluded that the findings of
the exam were consistent with a diagnosis of traumatic brain
injury (TBI), “although the current clinical symptom
presentation was most consistent with the effects of
behavioral health conditions (e.g., PTSD, depression,
etc.)” AR369, 547-48.
the TBI consult on February 22, 2010, Mr. Walter rated the
following neurobehavioral symptoms as very severe: his
concentration, difficulty making decisions, difficulty
getting organized and ability to finish things, fatigue,
difficulty falling or staying asleep, feeling anxious,
depressed, irritability, and poor frustration tolerance.
AR367. Mr. Walter rated his forgetfulness as severe. AR367.
Mr. Walter conveyed that these symptoms among others
extremely interfered with his social interactions.
Walter underwent a detailed neuropsychological examination on
March 11, 2010, secondary to complaints of worsening
psychiatric symptoms, episodes of forgetfulness, poor
concentration, fatigability, sleep disturbance, chronic pain,
and headaches. AR546. During neuropsychological assessment
Mr. Walter reported the onset of his psychiatric symptoms
occurred following transition from the Persian Gulf in 1991.
AR548-49. The test indicated “a mild level of cognitive
dysfunction characterized by impaired executive
skills.” AR545. At the time of assessment Mr. Walter
endorsed the following symptoms: recurrent nightmares;
insomnia; feelings of guilt; avoidance behaviors; emotional
lability; heightened irritability; hypervigilance; depressed
mood; poor energy; and appetite reduction with 25-pound
weight loss. AR549. The physician observed Mr. Walter's
thought processes were mildly circumstantial, but he could be
redirected. AR549. During the neuropsychological testing Mr.
Walter had difficulty concentrating and required frequent
redirection. AR550. Mr. Walter exhibited mild cognitive
defects in executive function. AR552. His psychomotor
processing speed was borderline impaired and was in the
borderline impaired range of mental flexibility and visual
scanning. AR552. Mr. Walter has moderately impaired in
retention of information. AR552. Mr. Walter's
occupational and social functioning would be mitigated by his
psychiatric status. AR553.
March 18, 2010, Dr. Silverman diagnosed Mr. Walter with PTSD,
depressive disorder and likely traumatic brain injury. AR485.
Mr. Walter reported to Dr. Silverman that his concentration
and memory problems were significant. AR485. Mr. Walter
missed his appointment a day earlier and went to an
appointment that was scheduled for a different day. AR485.
Mr. Walter reported his wife handled his medications, he
avoided leaving the house, and often did not want to get out
of bed in the morning, and that he got tearful easily and
often. AR485. Dr. Silverman noted Mr. Walter's mood was
“up and down” and affect was anxious, and tearful
on one occasion. AR485.
March 24, 2010, an MRI scan of Mr. Walter's brain was
interpreted as abnormal with “mild periventricular
hyperintensity and multiple scattered T2/FLAIR bright signals
in bilateral frontal and parietal lobe subcortical and deep
white matter.” AR548. The pattern was
“nonspecific” and “could represent
posttraumatic change or early microvascular ischemic
Walter reported having three good days during an April 5,
2010, TBI screening follow-up with Dr. Hoerner. AR540. His
wife felt he was spending too much time in the house and he
reported that going out and interacting with the public was
difficult because of his irritability. AR540.
April 29, 2010, he presented for a follow up of PTSD with Dr.
Santos. AR494. During the exam he reported his thoughts as
being “scrambled.” AR496. During a physical on
May 3, 2010, Mr. Walter presented as tangential and
loquacious. AR427. His mood was elevated and he was grandiose
in demeanor. AR427. Mr. Walter was hypomanic. AR428.
18, 2010, Dr. Silverman noted Mr. Walter reported feeling
terrible, that his wife was frustrated with his memory
problems and didn't like being around him. AR482. During
the exam Dr. Silverman noted Mr. Walter's speech
sometimes increased in volume and his mood was terrible. Mr.
Walter was frustrated and tearful.
Silverman noted on August 25, 2010, that Mr. Walter reported
mood cycles where he would feel good for 3 to 4 days and then
felt bad, that his anger control was very bad, he had high
anxiety and that his sleep was ok with Trazodone except that
he usually woke up in 3-4 hours. AR480. Mr. Walter's
speech sometimes increased in volume, his motor activity was
restless, his mood was terrible, he was frustrated and
tearful and his thoughts were mildly tangential. AR480.
a compensation and pension examination on October 21, 2010,
Mr. Walter admitted to “violent” mood swings.
AR386. Mr. Walter's medical history indicated difficulty
staying and falling asleep, sleeping 15 hours a day at times,
decreased attention, difficulty concentrating, difficulty
with executive functions (speed of information processing,
goal setting, planning, organizing, prioritizing, etc.),
moderate memory impairment and irritability, and restlessness
which interfered with relationships. AR386. His psychiatric
manifestations included flight of ideas, loquaciousness and
November 23, 2010, Mr. Walter had a psychiatry consult with
Dr. Santos. AR406. In response to questions regarding
psychological or emotional problems in the past 30 days, Mr.
Walter stated he experienced serious depression, anxiety or
tension, and trouble understanding, concentrating or
remembering. AR407. When asked to spell WORLD backward, he
did it “by repeated the spelling again and again world
D, world L, world R.” AR409. Mr. Walter could only
remember one of three words. AR409. Mr. Walter remembered RED
but did not remember APPLE. AR410. When Mr. Walter was given
instructions, he wrote himself notes because he would not
remember otherwise. AR410. Mr. Walter indicated he had short
term memory problems due to intrusive thoughts. AR411. For
PTSD, Mr. Walter endorsed a score of 72 and for depression
Mr. Walter scored 19. AR409. Mr. Walter's diagnosis was
PTSD and mood disorder, depressed and he was given (GAF) of
50-55. AR409. Dr. Santos found it “difficult to figured
(sic) this gentleman getting to rank of Major.” AR410.
December 17, 2010, Mr. Walter stated he liked spending time
in his favorite place, his garage. AR534. He reported he
wrote things down and tried to do things, but his wife got
irritated. AR534. He reported irritability was a big issue
for him. AR534. Mr. Walter only remembered 2 of 5 words.
AR534. Dr. Santos felt Mr. Walter was in a plateau. AR536.
Mr. Walter reported he mostly woke up two times on average
and went back to sleep, but the Trazodone helped. AR536.
February 22, 2011, Mr. Walter reported his family life was
affected by his “lack of emotions.” AR532. Mr.
Walter only remembered 2 of 5 words. AR533. His mood was
consistent with his mental disorder. AR533. Mr. Walter
reported that he usually woke up two times and went back to
sleep as the Trazodone helped. AR533.
April 26, 2011, Mr. Walter reported some days were better and
some were not. AR529. Mr. Walter reported it took him about
25 minutes to one hour to go to sleep. AR529. Mr. Walter only
remembered 2 of 5 words. AR530.
October 6, 2011, Mr. Walter reported some days were better
and some were not. AR526. Mr. Walter only remembered 2 of 5
December 20, 2011, Mr. Walter voiced concerns regarding
organization and that he struggled and needed to work harder.
AR523. Mr. Walter reported he spent a lot of time in his
house and fixed his motorcycle and tried to keep his mind
occupied. AR523. Mr. Walter only remembered 2 of 5 words.
AR524. Mr. Walter's mood was consistent with his mental
March 20, 2012, Mr. Walter reported he had messed up big time
because he overspent twice. AR520. He was in anger management
with Dr. Offenbach. AR520. During the exam he appeared
follow up for PTSD with Dr. Santos on June 26, 2012, Mr.
Walter reported he “takes it one day at a time”
and must keep organized because of his cognitive problems.
AR518. Mr. Walter only remembered 2 of 5 words. AR518.
a follow up appointment on October 9, 2012, Mr. Walter
indicated the Quetiapine made him feel like staying in bed all
day. AR515. He reported he was still dealing with anger
control and that his thoughts tended to race. AR515. During
the exam, Mr. Walter was pleasant, but Dr. Santos could tell
he was stressed and it was difficult for him to keep this
November 6, 2012, Dr. Santos met with Mr. Walter after he got
out from the PTSD support group because the support group was
very important in Mr. Walter's treatment and Dr.
Santos' appointment conflicted with the support group
schedule. AR512. Mr. Walter reported he was again not
sleeping well when he was off the Trazodone. AR512. During
the exam, Mr. Walter was sleepy because he was not sleeping
as well at night. AR513.
December 5, 2012, Mr. Walter reported the Trazodone helped
him sleep but the problem was that he felt tired during the
first portion of the day. AR509. He was sleepy during the
a follow up for PTSD on March 12, 2013, Mr. Walter reported
having bad gory dreams. AR506. He reported he only takes the
Quetiapine if the nightmares did not permit him to go back to
sleep and he needed to rest. AR506. He reported the
nightmares were at their least intensity. AR506.
9, 2013, Mr. Walter presented for a follow up of PTSD with
Dr. Santos. AR503. Mr. Walter reported he was having bad gory
dreams but not the nightmares. AR503. During the exam he was
sleepy and had not taken care of his personal care because he
had not wanted to be late for his appointment. AR504. He was
working in group therapy to try and improve his appearance
and get out more. AR505. Mr. Walter wrote everything down as
a way of reminding himself of things. AR505.
October 29, 2013, he reported that he realized he needed to
spend more time outside his house and that his oldest son
must push him out the door to go do something. AR500. He
reported that coming to see Dr. Santos helped with his
intrusive thoughts. AR500. He presented with a scruffy
appearance and was working in group therapy to try and
improve his appearance. AR501-02. Mr. Walter did not write
things as he did not bring a notebook but when reminded by
Dr. Santos, he wrote some on his med sheet. AR502.
as January 17, 2014, Mr. Walter reported that he spent most
of his time in his basement and avoided going out on his own
because he did not trust anyone. AR475. Mr. Walter reported
his main problem was still anger. AR475.
February 3, 2014, Mr. Walter came to his appointment with a
sheet of paper with several issues to address. AR488. Mr.
Walter noted ongoing issues with PTSD and admitted to being
“all over the place today.” AR488.
another follow up on March 12, 2014, he presented as
obviously depressed and voiced some sense of worthlessness.
AR497. His appearance was scruffy. AR498.
October 31, 2014, he presented for follow up of PTSD with Dr.
Santos. AR491. Mr. Walter was taking his meds as his son
wrote them on the caps. AR492. Mr. Walter's hair was
long, curly and wild in appearance. AR493. He reported his
thoughts as “scrambled.” AR493.
March 15, 2016, during group session Mr. Walter reported
noticing rumination when he is in bed, while driving, and
while sitting on the couch and he tried to listen to the
radio or keep his mind busy to distract himself. AR646.
March 22, 2016, Mr. Walter completed the BDI-II which
measures current symptoms of depression. AR628. His score was
34 indicating a severe level of depression. AR633. He
reported he had noticed more traumatic memories than
rumination in the last week. AR644.
March 31, 2016, during an appointment with Dr. Santos, Mr.
Walter had a wild appearance with hair messed and he wore a
long coat and gloves as he felt it was cold outside. AR635.
April 19, 2016, Mr. Walter completed the BDI-II which
measures current symptoms of depression. AR628. His score was
35 indicating a severe level of depression. AR628. Mr. Walter
reported he was still struggling with rumination. AR628.
August 23, 2016, Mr. Walter saw Dr. Santos. AR607. Mr. Walter
reported he was sleeping with his medications but felt he was
sleeping more than he should. AR607. His sleep was
interrupted by dreams. AR607. He reported he was having
intrusive thoughts and tried to sing songs from tv shows to
distract himself. AR607. His physical appearance was
improved. AR608-09. Mr. Walter reported when he had a bad
night with dreams he was more irritable. AR609.
28, 2017, Mr. Walter saw Dr. Santos and reported he felt he
was sleeping more than he should and his sleep was
interrupted by dreams. AR613. He reported intrusive thoughts
and tried to sing tv songs to distract himself. AR613. He was
attending group therapy and when it was announced they would
be talking about convoys, it brought memories and “him
having to deal the subject a week ahead of the group and
wonder how he will handle [it] etc.” AR613-14. Mr.
Walter reported feeling down and he took Prazosin when he
felt disturbed by nightmares. AR614. He presented with wild
appearance and hair that was messed and he wore a long coat
and gloves as he said that he felt it was cold outside.
Evidence Submitted to the Appeals Council
submitted to the Appeals Council included an addendum from
Dr. Santos dated March 1, 2017. AR9. Dr. Santos is Mr.
Walter's treating psychiatrist and has been since 2010.
Id. Dr. Santos opined that Mr. Walter's PTSD
would make it difficult for Mr. Walter to be functional and
“he is seriously limited with difficulties in memory
and would have difficulty in working on (sic) proximity with
others as he does not respond well to criticism.”
Id. Dr. Santos further opined that Mr. Walter would
be unable to complete a working day with his impairment and
is unable to maintain socially appropriate behaviors.
Id. Dr. Santos opined that Mr. Walter's
condition is permanent, and that his chronic depression has
“magnified” his physical injuries. Id.
Finally, Dr. Santos noted that Mr. Walter had been retired
from the United States Army since 2009 and “had not
worked in years.” Id.
Summary of Testimony
Walter testified at the hearing held on March 22, 2017. Mr.
Walter's responses to questions posed by the ALJ are
often disjointed and rambling. AR40-52.
response to the ALJ asking if he had problems concentrating,
Mr. Walter answered yes. AR45. Mr. Walter stated that he
watches a lot of TV and tries to keep his mind occupied so he
does not get any bad thoughts of “war and stuff”
in his head and will start to ruminate. AR45.
asked Mr. Walter if medication helped his night terrors.
AR46. Mr. Walter answered “it doesn't fix it but it
does curb it a little.” AR46-47. When asked about being
out in crowds, Mr. Walter replied, “I don't do
that” and that he does not go to Walmart. AR46. The ALJ
asked if Mr. Walter had any friends and Mr. Walter indicated
his son Joe and the doctors at the VA. AR47.
Walter said he spends a lot of time in his basement and that
he had a motorcycle and that he just “cleans it.”
Walter said he cooked his own meals but couldn't leave
the kitchen if the stove was on because his son Joe told him
not to. AR48.
Walter was planning to get a medical discharge from the
military, but a VA veteran's service officer told him to
just retire normally. AR50.
questioned the vocational expert (VE) as follows: the ALJ
asked the VE to assume a person with Mr. Walter's age,
education and work experience. AR55. He further asked the VE
to assume such a person was limited to light duty work.
Id. The person could lift 20 pounds occasionally, 10
pounds frequently, and would be limited to standing and
walking for 4 hours in an 8-hour day but could sit for up to
6 hours in an 8-hour day. Pushing and pulling limitations
were the same as lifting and carrying. Id. The
person could only occasionally climb ladders, ropes,
scaffolds, ramps and stairs. Id. the person could
occasionally reach overhead with the left non-dominant upper
extremity. Id. The person could understand and
remember simple instructions, carry out routine and
repetitive tasks, and was limited to simple, work-related
decisions. Id. He could tolerate changes within a
routine work setting and could occasionally interact with the
public, co-workers, and supervisors. AR55. Given this
hypothetical, the VE opined such a person could not perform
Mr. Walter's past relevant work. Id. The VE
opined, however, that such a person that jobs remained within
the national economy in the light, unskilled category that
such a person could perform. AR56.
example, such a person could perform the job of electronics
worker, DOT 726.687-010. In the regional economy (Minnesota,
North Dakota, South Dakota) there existed between 1, 200 to
1, 500 such positions. Id. In the national economy,
there existed approximately 40, 000 such positions.
job that fit the hypothetical was assembler, small products.
DOT 706.684-022. Id. This job is also considered
light duty, unskilled work. Id. Regionally, the VE
estimated there were 600 to 700 positions available, and
nationally, upwards of 20, 000 positions available.
ALJ's second hypothetical asked the VE to assume the same
limitations, except the person was limited to sedentary work,
with the same non-exertional limitations. AR57. Assuming
these limitations, the ALJ stated such a person could perform
the jobs of circuit board screener, DOT 726.684-110. AR 58.
For that job, there would be 300-400 regional positions and
12, 000 positions nationally. Id. Such a person
could also perform the job of final assembler, DOT
713.687-018. That job would have 250 openings regionally and
9, 000 nationally. Id. Another suitable job would be
a lens inserter, DOT 713.687-026. Such a job would have 200
openings regionally, and 8, 000 in the national economy.
vocational expert testified that a person who is unable to
maintain concentration for a two-hour period would not be
able to perform competitive work. AR58. The vocational expert
also testified that a person who missed two or more days of
work per month would not be able to maintain competitive
employment. AR58. In addition, the vocational expert
testified that a person limited to no interaction with
public, co-workers or supervisors would not be able to
perform competitive work. AR59.
Standard of Review
reviewing a denial of benefits, the court will uphold the
Commissioner's final decision if it is supported by
substantial evidence on the record as a whole. 42 U.S.C.
§ 405(g); Minor v. Astrue, 574 F.3d 625, 627
(8th Cir. 2009). Substantial evidence is defined as more than
a mere scintilla, less than a preponderance, and that which a
reasonable mind might accept as adequate to support the
Commissioner's conclusion. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Klug v.
Weinberger, 514 F.2d 423, 425 (8th Cir. 1975).
“This review is more than a search of the record for
evidence supporting the [Commissioner's] findings, and
requires a scrutinizing analysis, not merely a rubber stamp
of the [Commissioner's] action.” Scott ex rel.
Scott v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008)
(internal punctuation altered, citations omitted).
assessing the substantiality of the evidence, the evidence
that detracts from the Commissioner's decision must be
considered, along with the evidence supporting it.
Minor, 574 F.3d at 627. The Commissioner's decision
may not be reversed merely because substantial evidence would
have supported an opposite decision. Woolf v.
Shalala 3 F.3d 1210, 1213 (8th Cir. 1993); Reed v.
Barnhart, 399 F.3d 917, 920 (8th Cir. 2005). If it is
possible to draw two inconsistent positions from the evidence
and one of those positions represents the Commissioner's
findings, the Commissioner must be affirmed. Oberst v.
Shalala, 2 F.3d 249, 250 (8th Cir. 1993). “In
short, a reviewing court should neither consider a claim de
novo, nor abdicate its function to carefully analyze the
entire record." Mittlestedt v. Apfel, 204 F.3d
847, 851 (8th Cir. 2000)(citations omitted).
court must also review the decision by the ALJ to determine
if an error of law has been committed. Smith v.
Sullivan, 982 F.2d 308, 311 (8th Cir. 1992); 42 U.S.C.
§ 405(g). Specifically, a court must evaluate whether
the ALJ applied an erroneous legal standard in the disability
analysis. Erroneous interpretations of law will be reversed.
Walker v. Apfel, 141 F.3d 852, 853 (8th Cir.
1998)(citations omitted). The Commissioner's conclusions
of law are only persuasive, not binding, on the reviewing
court. Smith, 982 F.2d at 311.
The Disability Determination and the Five-Step
Security law defines disability as the inability to do any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than
twelve months. 42 U.S.C. Â§' 416(I), 423(d)(1); 20
C.F.R.' 404.1505. The impairment must be severe, making
the claimant unable to do his previous work, or any other