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Hobbs v. Colvin

United States District Court, Northern District of Illinois, Eastern Division

December 5, 2014

MICHAEL HOBBS, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

JeffreyCole, Magistrate Judge.

Michael Hobbs seeks review of the final decision of the Commissioner (“Commissioner”) of the Social Security Administration (“Agency”) denying him Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“Act”), 42 U.S.C. Act, 42 U.S.C. § 1382c(a)(3)(A). Mr. Hobbs asks the court to reverse and remand the Commissioner’s decision, while the Commissioner seeks an order affirming the decision.

I. PROCEDURAL HISTORY

Mr. Hobbs received SSI as a child. But once a recipient reaches age 18, his case is reassessed under the standards applicable to adults. It was determined that Mr. Hobbs did not meet those standards as of June 1, 2009. (R. 20). That determination was upheld on reconsideration and Mr. Hobbs requested a hearing. An administrative law judge (“ALJ”) convened a hearing on November 7, 2012, at which Mr. Hobbs, represented by counsel, appeared and testified, along with his mother. In addition, Dr. Larry Kravitz testified as a medical expert, and Susan Entenberg testified as a vocational expert. (R. 490-535). On April 12, 2010, the ALJ issued a decision finding that Mr. Hobbs was not disabled because he retained the capacity to perform work that was limited to simple, one- to three-step tasks in a routine, predictable environment, with limited supervision, and did not involve joint tasks, and only incidental contact with the general public. (R. 20-31). As such, he would be able to perform jobs like dishwasher or janitor. (R. 31). This became the final decision of the Commissioner when the Appeals Council denied Mr. Hobbs’s request for review of the decision on June 24, 2013. (R. 5-7). See 20 C.F.R. §§ 404.955; 404.981. Mr. Hobbs has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

II.

THE EVIDENCE OF RECORD

A.

The Vocational Evidence

Mr. Hobbs was twenty-two years old at the time of his hearing. (R. 496). He quit school in the middle of tenth grade. (R. 496). He was hoping to get his GED, but had no transportation. (R. 497). He has never worked. He’d like to work at a fast food restaurant, but claims there are none close enough to his house. (R. 522-23). He lived with his mother and older brother, both of whom were drawing SSI. (R. 497-98, 505). According to his mother, he spent his days smoking marijuana, perusing internet pornography, watching TV, and partying with his friends. (R. 428).

B.

The Medical Evidence

There is very little medical evidence in the record. In his brief, Mr. Hobbs focuses on old grammar school records. In general, they showed he did not perform at his expected grade level, needed extra support and attention from teachers, was easily distracted, required more time than normal to complete tasks, but also did not apply himself and wanted to quit school. (R. 232, 235, 255-56, 281, 288, 291, 308, 337-38, 352, 360, 363, 401). He was held back in third grade and then put in special education classes. (R. 319-20, 514).

The disability agency arranged a consultative examination for Mr. Hobbs with psychologist Jeffrey Karr, on June 10, 2009. He went to the exam with his mother. She said that he generally slept until 1 pm and needed regular reminders about hygiene. His principal daily activity was smoking marijuana, for which she gave him money. He got mad if she didn’t. He started his marijuana use at age 12. He visited with friends and his girlfriend, who would bring their baby along. He watched TV and went to bed between 2 and 4 a.m. (R. 428). He was able to use a microwave to prepare food and could use public transportation. He could use a computer, mostly to look at pornography. He refused to do chores. (R. 428). His mother claimed that she was on drugs when pregnant and Mr. Hobbs had drugs in his system when he was born. (R. 428). She said he had multiple arrests and was on probation for burglary. (R. 429).

Mr. Hobbs met separately with Dr. Karr. He told the doctor he quit school in 10th grade as a special education student. He said he had a job for 5 months at a nearby store doing stock work. He said he was able to cook, shop, do laundry, travel, and use a computer. He went to parties with friends and enjoyed TV. He said he had been arrested three times, but couldn’t recall what for. (R. 429).

Dr. Karr noted Mr. Hobbs appeared neat and clean, alert, responsive, and a quick study. He did not exhibit overt oppositional behavior. Mood and affect were congruent. He made limited eye contact and sometimes responded slowly. For the most part, he was able to persist. (R. 429). Testing revealed an ability to use trial and error methodology, alertness, ability to attend to task, but difficulty with response time. (R. 430). Full scale IQ was 76; verbal was 76; perceptual reasoning was 86; working memory was 86; processing speed was 74. (R. 427). Diagnosis was learning disorder, cannabis abuse, and borderline intellectual functioning. (R. 430).

State disability agency psychologist Thomas Low reviewed the file on June 23, 2009. He noted diagnoses of learning disorder and cannabis abuse. (R. 461). He noted that reports indicated that Mr. Hobbs did poorly in school but had not applied himself and wanted to quit. He was not psychotic and his cognitive functions were intact. He could perform simple work, but would need a job with limited contact with co-workers and supervisors. (R. 434). Dr. Low felt that Mr. Hobbs was moderately limited in his ability to remember, understand, and carry out detailed instructions. He was not significantly limited with regard to simple instructions. He was moderately limited in his ability to respond appropriately to supervisors and get along with co-workers. His was moderately limited in the ability to set realistic goals. (R. 433).

That was about the time Mr. Hobbs’s child’s disability benefits were terminated and his status was to be reassessed. The next time Mr. Hobbs saw Dr. Karr, less than two years later on May 2, 2011, he and his mother were trying to get him back on the SSI roles. Their presentation changed. Incredibly, when asked about her son’s marijuana use this time, Ms. Walker – who funded her son’s cannabis habit – said, “he has never used any to my knowledge.” (R. 457). Mr. Hobbs also denied any marijuana use past or present. (R. 457). His mother had with her some unfilled prescriptions for him for Abilify and Xanax. He had run out of Abilify after a month. (R. 457). He had previously had prescription for Prozac and Zyprexa. (R. 57). She said he was argumentative and rude, and had not showered for 10 days. (R. 456). Dr. Karr, however, noted there was no apparent hygiene problem at the exam. (R. 456). He was able to use a computer, travel by public transportation, and use a microwave. (R. 456). He slept most of the day and stayed out most of the night. (R. 456). She claimed he had trouble keeping friends. (R. 456).

Once again, Dr. Karr interviewed Mr. Hobbs separately from his mother. He said he got up at 4 pm, went to bed at 6 am, and had multiple interests and friendships. He went on Facebook, was able to use a microwave, and use public transportation. (R. 457). Contrary to what his mother had reported, he denied ever having taking any prescription medication. (R. 457). He admitted he had a temper and would get angry when his mother told him to do something more than once. (R. 457).

Dr. Karr saw no signs of substance abuse, muscle tremor, restlessness, or physical discomfort. Mr. Hobbs seemed uncomfortable with the interview, and reluctant to participate. His answers were succinct, coherent, blunt, and accompanied by limited eye contact. His mood was grossly intact, but he gave minimal effort and had a low frustration level. (R. 458). Dr. Karr noted more than once that both Mr. Hobbs and his mother were poor or questionable historians. (R. 458-59). Diagnoses were cannabis abuse history and learning disorder per history. (R. 459). Dr. Karr noted that a mood disorder should be ruled out. (R. 459).

State disability agency psychologist Richard Havens reviewed the file on May 25, 2011. He noted diagnoses of borderline intelligence and learning disability. (R. 461). Mr. Hobbs did not have a condition severe enough to meet any of the listed mental impairments. (R. 462-469). He had only mild restrictions of daily activities and social functioning, and moderate limitations in concentration, persistence, and pace. He had no episodes of decompensation. (R. 470). Dr. Havens discussed the medical record and noted the inconsistent statements from Mr. Hobbs and his mother and stated that their allegations about Mr. Hobbs’s limitations were only minimally credible. (R. 472). Dr. Havens felt that Mr. Hobbs was moderately limited in his ability to remember, understand, and carry out detailed instructions. He was not significantly limited with regard to simple instructions. He was moderately limited in his ability to maintain attention and concentration for extended periods. (R. 452). He could perform repetitive, routine work, and had adequate ability to interact with co-workers and supervisors. He could adjust to minor routine changes in a work setting. (R. 454).

Mr. Hobbs first went to see Dr. Chou on January 31, 2011 “for depression and SSI.” (R. 478). The clinical note from Dr. Chou is all but illegible. Mr. Hobbs complained of mood swings. The doctor’s diagnosis was “bipolar and schizo disorder.” She prescribed ten mg of Abilify. (R. 478). On March 11, 2011, Dr. Chou jotted a note to the disability agency on Mr. Hobbs’s behalf. She said he had been under her care since January 2011, and was “totally disabled” due to “schizo affective disorder.” This was despite her having him “on the maximum dosage of antipsychotics.” (R. 474). Notably, the Abilify website advises that the maximum diagnosis of the drug for a schizophrenic of Mr. Hobbs’s age is 30 mg – three times the dosage Dr. Chou prescribed. https://www.abilify.com/pdf/dosing-guide.pdf.

Dr. Chou next saw Mr. Hobbs and his mother on March 23, 2011. Again, her note is a challenge to decipher. His mother said he had not bathed in a week. Mr. Hobbs had no complaints, but exhibited a blunted affect. He admitted he was a smoker. Dr. Chou increased the Abilify dosage to 20 mg. (R. 479). On May 27, 2011, Dr. Chou wrote another note for Mr. Hobbs and his mother to the disability agency stating that she had seen Mr. Hobbs on a few occasions and he was in denial and could not “comply with any treatment.” She added that he would need intensive treatment. (R. 475).

On June 27th Dr, Chou saw Mr. Hobbs and his mother once again. She noted that “[h]is mother wants him to get SSI.” (R. 480). Mr. Hobbs denied being a smoker this time. He again displayed a blunted affect. (R. 480). Dr. Chou discontinued Abilify and prescribed 6 mg a day of something else that is illegible, perhaps Zypreza. (R. 480). Dr. Chou saw the two again on October 8, 2011, and they had no complaints. Mr. Hobbs’s affect was euthymic. Dr. Chou prescribed 20 mg of Zyprexa. (R. 481). Mr. Hobbs and his mother went in for a refill of Zyprexa on October 8, 2012. His affect was again euthymic. (R. 482).

C.

The Administrative Hearing Testimony

1.

The Plaintiff’s Testimony

Mr. Hobbs testified that he lives with his mother and twenty-five-year-old brother. (R. 497). The entire family was drawing Social Security disability benefits. (R. 498, 505). Mr. Hobbs had a three-year-old son that he saw once a month and played games with. (R. 498). Mr. Hobbs said he got free medical treatment from Dr. Chou at Jackson Park Hospital. (R. 499).

Mr. Hobbs said he could read and follow a shopping list, play video games, and play board games like Monopoly. (R. 498-99). He could focus on games for hours. (R. 499). He also liked to take electronic equipment apart and make things with the pieces. (R. 500-01). He knew how to cook simple meals. (R. 502). He said he tried to take showers regularly but he was too busy and only took them every couple of days. (R. 503). He was out with his friends, playing basketball, talking to girls. (R. 503). He wanted to get a job in electronics because he was very good with his hands. (R. 504). He said he could cook, and could get a fast food job but there were none in walking distance and he had no transportation. (R. 522-23). He smoked marijuana a couple of times a week with friends. (R. 517). Mr. Hobbs testified that he had never been in trouble with the police. (R. 501).

Mr. Hobbs’s mother, Ms. Walker, testified that her son had no insurance, but she took him to see Dr. Chou when she went to see her. She said she got free sample medications for him there. Ms. Walker said she didn’t know where to go to get her son free treatment. She said they wouldn’t take him at the county hospital, because “at the time they wanted him to see their doctors.” (R. 507). Basically, all Ms. Walker wanted to do there was get her son’s prescription filled, but the doctors at county hospital wouldn’t do that without seeing her son. (R. 507). She didn’t think her son could see the doctors, though, without a referral. (R. 508). Later, Ms. Walker changed her story. She explained that she had no time to take her son to the free clinic because she had to care for his older brother and take him for treatment:

. . . I rarely get around to Michael. Yes I do. I neglect him a lot and it’s only because I don’t have medical care. If I take him in. It’s not like I can walk him to the clinic like I do myself and my other son. I have to go out of the way. That means I’m going to miss doing something for Lester, which is my son that is very ill also. So it’s like three ill people. I don’t know what to do.

(R. 531). Ms. Walker claimed that sometimes Dr. Chou would see her son and sometimes she wouldn’t. (R. 531).

Ms. Walker said her son had episodes every few days, whenever he had no medicine. (R. 508). He would lock himself in his closet or hide under his bed. She never took him to the emergency room, though. (R. 508-09). She just tried to calm him down and give him one of her pills, which worked very quickly. (R. 509). She testified that he had been arrested for burglary, but then said it was trespassing. (R. 511). Ms. Walker said the case was thrown out when he “did supervision.” (R. 512). All he had to do was check in at the police station once a month for a year. (R. 512). She said she had to remind him to shower and change clothes. He would wear the same clothes for two weeks and shower only once a week. (R. 514-15). There were two fast food restaurants nearby that he could walk to if he had a job there. She didn’t think he could get one because he was rarely presentable. (R. 523). The ALJ noted that Mr. Hobbs looked fine, but Ms. Walker defended her assessment:

Yeah. He’s looking pretty clean today. Because I got up and I made sure I got him clean myself. I had to get up at 6:30 this morning. “Michael, wash your face. Okay, Michael, brush your teeth. If I’m not there to tell Michael to brush his teeth or wash his face or clean his clothes, I have to wash his clothes. If I don’t wash them, he is going to keep putting on that [sic] dirty clothes.

(R. 523).

2.

The Medical Experts’ Testimony

Dr. Kravitz then testified as a medical expert. Noting that there was very little evidence of treatment in the record, he interviewed Mr. Hobbs briefly. The doctor noted there was very little evidence of treatment, and the diagnosis on record of schizophrenia was problematic due to lack of support. (R. 524-25). There was no indication of schizophrenic symptoms like hallucinations, delusions, severe agitation, or inappropriate affect. (R. 526). Dr. Kravitz has to harken back to school records for some evidence to put his finger on, and noted that Mr. Hobbs had “always been a limited kid.” (R. 528). The question, for Dr. Kravitz, was one of credibility of Mr. Hobbs and his mother. (R. 526). The doctor was hesitant to give an opinion as to whether Mr. Hobbs could work and his testimony went back and forth. He thought Mr. Hobbs would be capable of understanding and carrying out short, simple instructions and dealing with superficial contact with co-workers and supervisors, and incidental contact with the public. He could do a job like cleaning tables at a fast-food restaurant. (R. 528). He thought ...


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