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Malott v. Colvin

United States District Court, N.D. Illinois, Eastern Division

September 12, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


MARY M. ROWLAND, Magistrate Judge.

Plaintiff Travis Malott filed this action seeking reversal of the final decision of the Commissioner of Social Security denying his application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act (Act). 42 U.S.C. §§ 405(g), 1381 et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and Plaintiff has filed a request to reverse the ALJ's decision and remand for additional proceedings. For the reasons stated below, the Commissioner's decision is remanded for further proceedings consistent with this opinion.


To recover SSI, a claimant must establish that he or she is disabled within the meaning of the Act. York v. Massanari, 155 F.Supp.2d 973, 977 (N.D. Ill. 2001).[2] A person is disabled if he or she is unable to perform "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." 20 C.F.R. § 416.905(a). In determining whether a claimant suffers from a disability, the Commissioner conducts a standard five-step inquiry:

1. Is the claimant presently unemployed?
2. Does the claimant have a severe medically determinable physical or mental impairment that interferes with basic work-related activities and is expected to last at least 12 months?
3. Does the impairment meet or equal one of a list of specific impairments enumerated in the regulations?
4. Is the claimant unable to perform his or her former occupation?
5. Is the claimant unable to perform any other work?

20 C.F.R. §§ 416.909, 416.920; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). "An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled." Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985). "The burden of proof is on the claimant through step four; only at step five does the burden shift to the Commissioner." Clifford, 227 F.3d at 868.


Plaintiff applied for SSI on June 24, 2010, alleging that he became disabled on May 1, 2008, due to behavioral and emotional problems, attention deficit hyperactivity disorder (ADHD), bipolar disorder, anxiety, depression, paranoia, schizophrenia and a learning disability. (R. at 11, 73, 129). The application was denied initially and on reconsideration, after which Plaintiff filed a timely request for a hearing. ( Id. at 11, 66-79, 81). On February 8, 2012, Plaintiff, represented by counsel, testified at a hearing before an Administrative Law Judge (ALJ). ( Id. at 11, 25-65). The ALJ also heard testimony from James J. Radke, a vocational expert (VE). ( Id. at 25, 55-65, 118).

The ALJ denied Plaintiff's request for benefits on April 16, 2012. (R. at 11-19). Applying the five-step sequential evaluation, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity since June 24, 2010, the application date. ( Id. at 13). At step two, the ALJ found that Plaintiff's learning disorder, anti-social personality disorder, ADHD, bipolar disorder, and substance abuse, in remission, are severe impairments. ( Id. ). At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of any of the listings enumerated in the regulations. ( Id. at 13-15).

The ALJ then assessed Plaintiff's residual functional capacity (RFC)[3] and determined that he has the RFC to perform a full range of work at all exertional levels, subject to the following nonexertional limitations: the work must be "the simplest work in the United States economy, no higher than GED 1-2. The work must be routine, stay the same day-to-day and involve no frequent interaction, no team coordination and no public contact. [Plaintiff] must work alone." (R. at 15). At step four, the ALJ determined that Plaintiff has no past relevant work. ( Id. at 18). At step five, based on Plaintiff's RFC, age, education, work experience, and the VE's testimony, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including vehicle cleaner, vegetable harvester and bagger. ( Id. at 18-19). Accordingly, the ALJ concluded that Plaintiff was not suffering from a disability as defined by the SSA. ( Id. at 19).

The Appeals Council denied Plaintiff's request for review on June 13, 2013. (R. at 1-6). Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).


Judicial review of the Commissioner's final decision is authorized by § 405(g) of the SSA. In reviewing this decision, the Court may not engage in its own analysis of whether the plaintiff is severely impaired as defined by the Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it "reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute [its] own judgment for that of the Commissioner." Id. The Court's task is "limited to determining whether the ALJ's factual findings are supported by substantial evidence." Id. (citing § 405(g)). Evidence is considered substantial "if a reasonable person would accept it as adequate to support a conclusion." Indoranto v. Barnhart, 374 F.3d 470, 473 (7th Cir. 2004). "Substantial evidence must be more than a scintilla but may be less than a preponderance." Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). "In addition to relying on substantial evidence, the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit meaningful appellate review." Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).

Although this Court accords great deference to the ALJ's determination, it "must do more than merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (citation omitted). The Court must critically review the ALJ's decision to ensure that the ALJ has built an "accurate and logical bridge from the evidence to his conclusion." Young, 362 F.3d at 1002. Where the Commissioner's decision "lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded." Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).


A. Educational Records

Plaintiff graduated from high school in 2008, after spending most of his schooling in special education due to emotional, behavioral and academic problems. (R. at 315, 30, 153-309). He was first found eligible for special education after kindergarten ( id. at 170), and continued to be eligible in middle school ( id. at 175). At that time, Plaintiff's verbal, performance and full-scale intelligence scores were in the borderline range. ( Id. at 173). He was taking prescription Adderall.[4] ( Id. at 173).

In 2005, Plaintiff, as a result of emotional disturbance, was one of twelve students in a highly structured special education class in an alternative high school. (R. at 211, 208). He had anger management issues, poor social interactions, problems with authority, a learning disability, speech and language issues, and a hearing impediment. ( Id. ). Plaintiff was diagnosed with ADHD, and had taken Adderall (inconsistently) and Strattera[5] at different times in the past, each causing some side effects. ( Id. at 210). He attended weekly therapy at school. ( Id. ).

Plaintiff's 9th grade teacher, Sarah Lingle, completed a questionnaire requested by the DDS. (R. at 155-63). She stated that Plaintiff had problems functioning in the following categories: acquiring and using information, attending and completing tasks, interacting and relating with others, and caring for himself. ( Id. at 157-61). His Individualized Education Program (IEP) reflected his continued need for a highly structured learning environment. ( Id. at 200).

General intelligence and social/emotional tests administered in 2005 revealed that Plaintiff had significant weakness in word knowledge and verbal concepts, immature interrelationship skills, and difficulties with feelings. (R. at 211). Moreover, he was performing below grade level in basic subject areas. ( Id. at 212-13). During a re-evaluation on March 24, 2005, Plaintiff's reading and written language levels were in the 1st percentile, and his math level was in the 3rd percentile. ( Id. at 153).

When Plaintiff was 17 years old in 11th grade, [6] he had continued significant verbal processing deficits resulting in a learning disability. (R. at 223, 226). He also appeared to be more handicapped by social and emotional issues. ( Id. ). Len Schmelkin, a Licensed Clinical Social Worker (LCSW), indicated Plaintiff had attendance issues, had been sent to the Critical Incidence Behavior Stabilization Room 29 times the prior year, and had also required seven physical managements in the prior year. ( Id. at 230).

B. Dr. Latham's Evaluation

On June 19, 2009, Anthony Latham, Psy.D., performed a psychological evaluation as part of a pre-sentencing investigation.[7] (R. at 460). Plaintiff's intellectual functioning appeared well-below average, and the inventories had to be read aloud due to reading limitations. ( Id. at 461). While Plaintiff's memory, attention, concentration and persistence were relatively unimpaired, he appeared to be highly impulsive. ( Id. ). Moreover, Plaintiff had poor judgment, had limited capacity for insight, and appeared to be a "self-serving" historian. ( Id. ). On the Shipley-2 test, which assesses intellectual functioning, Plaintiff scored in the 12th percentile for block patterns (classified as below average), the 1st percentile for composite (classified as extremely low), and below the 1st percentile for vocabulary (classified as extremely low). ( Id. ). On the State-Trait Anger Expression Inventory-2, Plaintiff reported frequent, intense anger. ( Id. at 461-62). On the Millon Clinical Multiaxial Inventory-III (MCMI-III), which assess personality and emotional functioning, Plaintiff responded to questions in an honest and open manner. ( Id. at 462). He reported symptoms associated with psychiatric distress, severe anxiety, and paranoia, and admitted experiencing schizoid personality features. ( Id. ).

Dr. Latham's report includes criminal history, in which Plaintiff reported his felony charge for selling his prescription Adderall, which he began doing at age 17. (R. at 462, 463). After being ordered to Gateway Residential for drug treatment as part of juvenile probation, Plaintiff was able to get out "by throwing a fit." ...

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