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Colwell v. Berryhill

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

January 17, 2019

ALEC ROBERT COLWELL, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

          KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE

         Plaintiff, Alec Robert Colwell, seeks review of the decision of the Commissioner of the Social Security Administration denying his claim for supplemental security income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. § 1382. Docket 12. The Commissioner opposes the motion and urges the court to affirm the denial of benefits. Docket 13. For the following reasons, the court affirms the decision of the Commissioner.

         PROCEDURAL HISTORY

         Colwell filed an application for supplemental security income on July 31, 2013, alleging disability since June 13, 2013. AR 181. The Commissioner denied his claim initially on November 13, 2013, and upon reconsideration on February 6, 2014. AR 72, 82. Colwell then appeared with counsel before Administrative Law Judge (ALJ) Guy Koster at an administrative hearing on June 22, 2016. See AR 37 (transcript of hearing). The ALJ issued an opinion affirming the denial of benefits on August 11, 2016. AR 16. The Appeals Council denied Colwell's request for review on August 24, 2017. AR 1-3. Thus, Colwell's appeal of the Commissioner's final decision is properly before the court under 42 U.S.C. § 405(g).

         FACTUAL BACKGROUND

         Plaintiff, Alec Robert Colwell, was born on October 6, 1992. AR 40. He was 20 years old at the alleged disability onset date and 23 years old at the time of the administrative hearing. Id. Colwell is not married and lives with his mother, Pam Colwell. AR 40. Colwell and his mother moved from Florida to South Dakota around November 30, 2016, due to his mother's employment. AR 9. Colwell graduated from high school and attended college as a full-time student at Daytona State College starting January of 2015. AR 40, 265.

         Colwell stated he has not had steady employment. AR 41. He alleged that he has not been able to work since June 13, 2013, but has “done a couple of odd jobs for a short period of time . . . .” AR 40. One of these jobs involved Colwell moving furniture at a furniture liquidation store in Florida sometime in 2014. AR 41, 62-63. He worked at the furniture store for approximately a month. AR 41. Additionally, Colwell worked and lived with his grandparents from May 17, 2014, to July 13, 2014. AR 267.

         On February 2, 2009, Colwell was assessed by Licensed Psychologist, Denise Marandola, Ph.D. AR 281-83. Her assessment of Colwell supported a diagnosis of attention deficit hyperactivity disorder (ADHD) and medication was recommended. Id. Following Dr. Marandola's recommendation, Dr. Michael Hattan diagnosed Colwell with attention deficit disorder (ADD) on February 20, 2009. AR 359-60. Dr. Hattan prescribed Adderall to Colwell. AR 360.

         On May 29, 2013, Colwell was admitted to Mercy Medical Center's emergency room. AR 295. Colwell was brought in from the jail. AR 295-96. Dr. Thomas Benzoni, the emergency room physician, assessed Colwell as having “emotional problems” and released him because no further workup was necessary. AR 296.

         On June 13, 2013, the county sheriff deputies brought Colwell to Mercy Medical Center to be admitted to the Psychiatric Inpatient Unit under court committal petitioned by Colwell's family. AR 381, 658. Colwell tested positive for cannabinoid at his admitting. AR 306, 309. Dr. Kunal Patra acted as Colwell's physician during Colwell's stay in the Psychiatric Unit with Dr. Rodney Dean as the attending physician. AR 307. On July 3, 2013, Colwell was discharged from Mercy Medical Center with the plan to have him enter chemical dependency treatment at Synergy. AR 303. At his discharge, Colwell's GAF score was 55. Id. In Dr. Dean's Mental Health Summary document, Dr. Dean diagnosed Colwell with schizophrenia, paranoid type, chronic with acute exacerbation; polysubstance dependence; and nicotine dependence. Id.

         On July 3, 2013, Mercy Medical Center transferred Colwell to Synergy, a residential, chemical dependency treatment program. AR 304. Nicole Keegan, an intake clinician at Synergy, initially diagnosed Colwell with “cannabis, other substance, sedative, hypnotic, or anxiolytic, and nicotine dependence.” AR 493. On July 10, 2013, Colwell had a meeting with Collette McCullough, a nurse practitioner, for a psychiatric progress interview and medication review. AR 494. McCullough scored Colwell's GAF at 48 and diagnosed him with “Cannabis Dependence, Cough Syrup Dependence, K2 Abuse, Adderall Abuse, Psychotic Disorder, NOS; Probable Substance Induced; Rule out Bipolar Mood Disorder Type 1.” Id. On July 12, 2013, Colwell refused to take his medications. AR 492. This behavior continued until July 15, when Colwell walked off the unit and refused to return. Id.

         After leaving Synergy, Colwell was arrested and placed in jail for ten days. AR 658. After his release from jail, Colwell was readmitted to Mercy Medical Psychiatric Unit on July 25, 2013. AR 658. The day after Colwell was admitted, Dr. Patra noted that the major issues for Colwell, in addition to his recreational drug problems, were his psychosis and mood. AR 505. In Dr. Patra's Mental Health Summary, Colwell's discharge diagnoses included “schizoaffective disorder, bipolar type, most recently depressed; polysubstance dependence; rule out schizophrenia paranoid type, chronic with acute exacerbation.” AR 500. Colwell's GAF score was at 55. Id. Dr. Patra stated, “The patient actually improved significantly with his mood. He still had residual psychosis but was handling those much better.” AR 500-01.

         Following his stabilization, Mercy Medical Center discharged Colwell to the Pride Group in Le Mars, Iowa, on August 13, 2015. AR 500, 658, 791. Colwell's admitting diagnosis included schizoaffective disorder, bipolar type and polysubstance abuse/dependence. AR 791. While at the Pride Group, Colwell received structure, assistance, and supervision over his medication and daily activities. See AR 665-730, 801-47. Physician Assistant Albert Okine conducted all of Colwell's psychiatric evaluations at the Pride Group. See AR 654, 656, 658, 788. Colwell remained a resident of the Pride Group for nine months. AR 264.

         During his residency at the Pride Group, Colwell also attended mental health sessions at Plains Area Mental Health Center. AR 603. On August 21, 2013, during a mental status exam, Jan Smith, MS, observed, “Client states that he used to hear voices and that now he is taking his meds and is no longer hearing them.” AR 615. Additionally, Colwell received substance abuse treatment from Jackson Recovery Centers. AR 650.

         Following Colwell's inpatient treatments, Dr. Adly Thebaud became his primary physician. AR 46. Colwell continued on his current medication regimen as “he has done well on his present combination of psychotropic.” AR 861-62. At his August 11, 2014 appointment at Dr. Thebaud's office, Colwell did not have auditory or visual hallucinations, paranoid ideations, mood swings or racing thoughts. AR 861. He mentioned problems with focusing. Id. His GAF score was 50.862. Id. Colwell's most recent visit on the record with Dr. Thebaud's office occurred on April 7, 2016. Id. At that time, his GAF score was 60. Id. Again, Colwell's medication regimen went unchanged. AR 860. Notes from other appointments at the office, dated from November 23, 2015, to March 8, 2016, show that Colwell was stable and felt “good.” AR 860.

         On March 25, 2015, Dr. Thebaud drafted a letter pertaining to Colwell's mental health status. AR 266. The letter stated that Dr. Thebaud diagnosed Colwell with schizoaffective disorder and that he will need long-term maintenance on psychotropic medications. Id. He listed his symptoms and opinioned that his life will include marked restrictions on daily living activities, marked difficulty in maintaining social functions and lack of concentration, and a risk of many episodes of decompensation. Id. His letter ends with his conclusion that due to his condition, it is likely that Colwell will miss more than two days of work per month and require two or more unscheduled breaks in addition to the standard three breaks per day. Id.

         ADMINISTRATIVE HEARING

         During the administrative hearing, the ALJ heard testimony from Colwell, Ms. Colwell, and Mark Capps, a vocational expert. Colwell, represented by counsel at the hearing, testified about his education. AR 51. He testified that he is in his second year of college. Id. As a full-time student, he takes four classes per semester. Id. He stated that he tries to take as many online classes as possible, but also takes classes in-person. AR 52. Colwell testified his mother and a tutor often assist him with his schoolwork. AR 55. Russell, Colwell's tutor, only assists Colwell with his in-person classes. Id. Colwell stated he could not get his coursework done without the assistance of his mother or tutor. Id. His grades range from A's to failing. AR 56.

         Colwell also testified about the other activities in which he is involved. He testified that he spends time watching TV, making food, going to the beach with his little brother, and grocery shopping with his mother. AR 52, 53, 56. He testified that he helps around the house with chores. AR 54. He also testified that he plays recreational indoor hockey every Monday night. AR 53-54. Colwell told the ALJ about volunteering at an animal shelter at the end of 2014. AR 53. After a month, the shelter supervisor asked Colwell to not return because he could not stay on task. AR 53, 59. In addition, Colwell testified about his experiences at work. He provided testimony about why he was fired at the furniture store. AR 42. He explained that he had a difficult time completing the tasks that were asked of him. Id. His employer would ask him to do three or four things and he would only remember the first thing told to him. Id.

         During the hearing, Colwell discussed his current and past mental health status and issues. At the time of the hearing, Colwell testified that he saw a counselor, Bryce Laraway, every two weeks for one-hour appointments. AR 46, 57. Additionally, he saw Dr. Thebaud at Family Psychiatrics Services for the last two years, and Dr. Thebaud prescribed medication to him. AR 46, 48. His medication included Depakote (1 pill every night) and Clozapine (1.5 pill every day). AR 47-48. Colwell went to Dr. Thebaud's office once a month and primarily saw Jessica Shutt, an ARNP. AR 47. Colwell testified that he only met with Dr. Thebaud once back in March 2015 for an evaluation. Id.

         Colwell's testimony also contained details about his concentration. He testified that though he has been on medication and received counseling, he still struggled with his concentration. AR 50. He stated, “Focus, and concentration, and completing tasks are my biggest flaws right now.” Id. The ALJ asked Colwell about his concentration and possible memory issues. AR 57. Colwell replied, “I don't think it's memory loss; it's just . . . a lack of focus.” Id.

         Colwell testified that he can stay on task for an hour, but after that hour he needs a break. Id. He said two days out of the week, he is “completely a vegetable, ” becomes “spacey, ” and cannot get any task completed. AR 55. He explained that this occurs in the middle of the week - every week - because he starts to get “worn out.” Id.

         Colwell testified about his history of drug abuse. AR 42. Colwell admitted he began abusing drugs in 2009. AR 46. The drugs he abused were Coricidin (cough medicine), which he used three days a week, and marijuana, which he used a gram a day. AR 42. Colwell's testimony related his drug use to self-medicating; he would take Coricidin “to enhance [his] brain activity if . . . [his] brain was going slow, and [he would] use marijuana to calm it back down . . . .” AR 43. During the hearing, he explained the side-effects of his drug use included hallucinations, delusions, and voices in his head. AR 50. Because Colwell had been sober for the last two years, he no longer experienced those side effects. AR 43, 50. Colwell testified about his times in drug rehabilitation. AR 43. He testified that his most recent stay was at Keystone in October of 2013. AR 45. He previously received treatment at Jackson Recovery Centers and Plains Area Mental Health Center sometime in 2013. AR 43-44.

         Colwell's mother, Pam Colwell, also testified during the administrative hearing. AR 59. Ms. Colwell's testimony mainly pertained to her assistance in Colwell's life. She testified that she takes Colwell to 80% of his appointments, though when she is traveling, Colwell went to his appointments on his own. AR 60. Additionally, Ms. Colwell's biggest role is managing Colwell's schedule. AR 61. Ms. Colwell's testimony also contained information about Colwell's moods. She testified that on good days, she and Colwell can talk about homework and he is focused and engaged. AR 61. But on bad days, which happen every two weeks and last two to three days, “it's not soaking in and [Colwell] really isn't responding.” AR 61-62.

         Ms. Colwell also testified about Colwell's mental health. She said that Colwell was diagnosed with ADD in 2009 and bipolar in June of 2013. AR 63. Between 2014 and 2015, Colwell saw Dr. Josette Romain, a doctor at Dr. Thebaud's office. AR 60. She testified that Colwell's prescriptions require a brief monthly doctor visit. AR 61. She stated that as long as the medications are working and there are no hospitalizations, these visits are routine. Id. The last topic Ms. Colwell testified about was Colwell's employment. She discussed Colwell's most recent employment at Cardinal Farms, which is owned by Colwell's maternal grandparents, in early 2013. AR 62. Additionally, she testified about Colwell's time working at the furniture store in Florida before his bipolar diagnosis. AR 62-63.

         Mark Capps testified as the vocational expert during the administrative hearing. AR 65. The ALJ posed a hypothetical to Capps about a person the same age, education, and lack of exertional limitations as Colwell but who was limited to performing work that required only a simple routine, repetitive tasks, a low stress stable environment involving few changes in the routine work setting, simple work-related decisions, and only occasional contact with the general public. AR 65. In response, Capps testified that such a person could perform unskilled work like a hand packager, floor cleaner, or warehouse worker. AR 65-66. Capps testified that the same person from hypothetical one who could only maintain concentration, persistence, and pace for up to two-hour segments could still work as a hand packager, floor cleaner, or warehouse worker. AR 66. In response to a third hypothetical question posed by the ALJ, Capps testified that a person who was unable to maintain concentration, persistence, and pace, required two or more unscheduled breaks during the work day, and would be absent two or more day a month would not be able to perform work on a full-time competitive basis. Id. Colwell's attorney asked Capps whether each alleged symptom from Colwell's impairments, individually - that is, (1) unable to maintain concentration, persistence, and pace at work; (2) requiring two or more unscheduled breaks during a regular work day; (3) missing two or more days of work in a month - would be cause for termination. AR 69. Capps answered that each alleged symptom alone would be cause for termination. Id.

         ALJ DECISION

         Employing the five-step analysis associated with an application for social security benefits, the ALJ denied Colwell's claim on August 11, 2016. AR 30. At step one, the ALJ found that Colwell had not engaged in substantial gainful activity since July 31, 2013, the application date. AR 18. At step two, the ALJ determined Colwell had the following severe impairments: schizoaffective disorder, bipolar type and polysubstance abuse/dependence in sustained remission. Id.

         At step three, the ALJ concluded Colwell does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. At step four, the ALJ found that Colwell has the residual functional capacity (RFC) to perform a full range of work at all exertional levels but with some non-exertional limitations.[1] AR 20. At step five, the ALJ held that the transferability of job skills was not an issue because Colwell did not have past relevant work. AR 29. The ALJ found that there are jobs that exist in significant numbers in the national economy that Colwell can perform considering his age, education, work experience, and RFC. Id. Thus, the ALJ concluded that Colwell is not disabled under the Social Security Act. AR 30.

         STANDARD OF REVIEW

         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 of Social Security 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 conclusion.' ” Teague, 638 F.3d at 614 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). When reviewing the record, “the court ‘must consider both evidence that supports and evidence that detracts from the Commissioner's decision.' ” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)). 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)).

         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 construction of the Social Security Act. Id. (citing Juszczyk v. Astrue, 542 F.3d 626, 633 (8th Cir. 2008)).

         THE FIVE STEP PROCEDURE FOR DISABILITY DETERMINATIONS

         Disability is defined as the “inability to engage in 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 12 months[.]” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(3)(A). “An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy[.]” 42 U.S.C. § 423(d)(2)(A). An ALJ must apply a five-step procedure when determining if an applicant is disabled. Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993). The steps are as follows:

         Step One: Determine whether the applicant is presently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(b).

         Step Two: Determine whether the applicant has an impairment or a combination of impairments that are severe. 20 C.F.R. ...


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