United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER AFFIRMING THE DECISION
OF THE COMMISSIONER
E. SCHREIER, UNITED STATES DISTRICT JUDGE
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
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. §
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.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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
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.
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.
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. 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.
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)).
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)).
FIVE STEP PROCEDURE FOR DISABILITY DETERMINATIONS
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:
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).
Two: Determine whether the applicant has an
impairment or a combination of impairments that are severe.
20 C.F.R. ...