United States District Court, D. Arizona
ORDER
Bridget S. Bade United States Magistrate Judge.
Plaintiff
Andrew Terrey seeks judicial review of the decision of the
Commissioner of Social Security (the Commissioner) denying
his application for benefits under the Social Security Act
(the Act). The parties have consented to proceed before a
United States Magistrate Judge pursuant to 28 U.S.C. §
636(b), and have filed briefs in accordance with Rule 16.1 of
the Local Rules of Civil Procedure. The Court reverses the
Commissioner's decision and remands for further
proceedings.
I.
Procedural Background
On
August 16, 2011, Administrative Law Judge (ALJ) Diana Weaver
found that Petitioner was not disabled from August 14, 2009
to August 16, 2011. (Tr. 63-90.)[1] The Social Security Appeals
Council denied review and on July 9, 2013 Plaintiff sought
judicial review in the district court. (Tr. 81-86, 87-95.) On
August 23, 2013, while review in the district court was
pending, Plaintiff filed another application for social
security benefits with an amended disability onset date of
August 23, 2013. (Tr. 44, 197- 206.) After the Social
Security Administration (SSA) denied Plaintiff's second
application and his request for reconsideration, he requested
a hearing before an ALJ. After conducting a hearing, on
October 30, 2015, ALJ Joan G. Knight found that Plaintiff was
not disabled under the Act from August 23, 2013 to October
30, 2015. (Tr. 14-31.) The Social Security Administration
Appeals Council denied review on April 7, 2017. (Tr. 1-3.)
Plaintiff now seeks judicial review of ALJ Knight's 2015
decision pursuant to 42 U.S.C. § 405(g).
II.
Administrative Hearing and Record
Plaintiff
was twenty-five years old as of the amended disability onset
date. (Tr. 41, 44.) He had graduated high school, where he
received special education services, and obtained an
associate's degree. (Tr. 41-48, 370.) Plaintiff worked at
Blockbuster part-time for a year. (Tr. 49-51, 220, 233, 249.)
Plaintiff alleges disability based on mental conditions. (Tr.
219.) The record before the Court includes medical treatment
records and opinions related to Plaintiff's alleged
mental impairments. The Court discusses the relevant evidence
below.
A.
Elementary School through High School
During
elementary school and high school, psychologists, including
Dr. Knotts, Dr. McGowan, and Dr. Lazowski, documented
borderline intellectual functioning with full scale IQ scores
of 71-81 and Plaintiff was placed in special education
programs. (Tr. 305-11, 312-18, 319-27.) In twelfth grade, Dr.
Lazowski conducted a working memory test, which showed that
Plaintiff performed better than only 1% of his peers. (Tr.
315.) A processing speed test showed low average range
scores. (Id.) Academic functioning tests showed math
in the extremely low range. (Tr. 316.) In addition to a
specific learning disability in math, Dr. Lazowski suggested
that Plaintiff could be eligible for special education
services for autism. (Tr. 317.) Dr. Lazowski recommended
accommodations and that Plaintiff work with the Disabilities
Resource Office at post-secondary school. (Tr. 317-18, 37.)
B.
Post High School Education and Work
After
graduating high school in 2006, Plaintiff enrolled at
Paradise Valley Community College where he took a reduced
course load of six credit hours and was given additional time
to take examinations. (Tr. 328, 370.) Plaintiff had
difficulty with math and failed or withdrew from various
classes. (Tr. 334-34, 357, 360, 404.) Plaintiff later worked
part-time at Blockbuster as a customer service clerk. (Tr.
370, 335, 220.)
C.
Treatment at the Melmed Center
In
2009, Plaintiff saw Raun Melmed, M.D., a developmental
pediatrician at the Melmed Center, for a developmental
consultation. (Tr. 299-301.) Dr. Melmed noted Plaintiff's
prior IQ scores and diagnosis of possible Asperger's
disorder. (Tr. 300.) He observed that Plaintiff had
difficulty processing complex information and found that
Plaintiff had a “somewhat uneven” communication
style and “tangential and circumstantial” thought
process. (Id.) Dr. Melmed recommended psychological,
neurological, and vocational rehabilitation evaluations, and
that Plaintiff contact the Social Security Income (SSI)
program. (Id.)
In
February 2014, Mark Ruggeiro, M.D., a developmental
pediatrician at the Melmed Center, noted that 2013
psychological tests showed that Plaintiff still had
“significant developmental and intellectual
challenges.” (Tr. 411-12.) Dr. Ruggeiro noted that
Plaintiff exhibited atypical social style and some cognitive
rigidity, which were consistent with his early diagnosis of
autism spectrum disorder. (Tr. 412.) Dr. Ruggeiro noted that
Plaintiff would continue to need “significant”
support in the future, including life coaching or counseling.
Id.
Treatment
notes from July 2014 show that Plaintiff had stopped
attending college. (Tr. 469-70.) During September 2014 and
March 2015, Dr. Ruggiero and Dr. Melmed continued to treat
Plaintiff. Plaintiff still lived with his mom and was not
pursuing a degree. (Tr. 457.) Dr. Ruggiero and Dr. Melmed
recommended that Plaintiff receive ongoing vocational
rehabilitation services (VRS) and counseling in life-skills
and independent-living skills. (Tr. 465-68, 461-64, 457-60.)
D.
Vocational Rehabilitation Services
In late
2012 and early 2013, Plaintiff sought VRS to pursue work as
an occupational therapy assistant (OTA) or in graphic design.
(Tr. 364, 359-61, 357.) Based on Plaintiff's college
performance, and because he failed the OTA program entrance
exam, the VRS counselor questioned whether Plaintiff had the
skills for the OTA program. (Tr. 359.) On referral from the
VRS counselor, in April 2013, psychologist William Hixon
performed a psychological/education/vocational evaluation of
Plaintiff. (Tr. 369-77, 348-51.)
Dr.
Hixon found “uneven” intellectual abilities with
intellectual functioning scores in the low average range
(full-scale IQ of 81), working memory in the extremely low
range, perceptual reasoning/verbal comprehension in the low
average range, processing speed in the average range, and
math in the extremely low average range (5th grade). (Tr.
349-50, 372-76.) Plaintiff's ability to sustain
attention, concentration, and exert mental control was in the
extremely low range. (Tr. 350, 376.) Plaintiff performed
tasks at a slower than normal rate (i.e., he took two hours
to complete a test that usually took forty-five minutes to an
hour to complete). (Tr. 372.) Dr. Hixon noted that
Plaintiff's working memory was “significantly
compromised, ” perhaps consistent with historical
diagnoses of attention deficit hyperactivity disorder (ADHD)
and pervasive developmental disorder. (Id.) Dr.
Hixon opined that Plaintiff's “extremely low”
working memory score was in a “critical” area of
cognitive processing, represented an ongoing vocational and
educational liability, and required psychiatric intervention.
(Id.)
Dr.
Hixon diagnosed pervasive developmental disorder not
otherwise specified (NOS), provisional ADHD (primarily
inattentive type), mathematics disorder, history of
communication disorder NOS, and rule out autistic disorder
(atypical). (Tr. 349, 375.) Dr. Hixon noted that
Plaintiff's presentation and history were
“highly” consistent with a pervasive
developmental disorder. (Tr. 375.) He noted persistent
ADHD-like symptoms. (Id.) Dr. Hixon encouraged
post-secondary education with multiple accommodations. (Tr.
350-51, 376-77.) For possible work, Dr. Hixon noted that an
occupational therapy “aide” was more appropriate
than an occupational therapy assistant. (Id.)
E.
Opinion Evidence
1.
Psychiatrist Dr. Sristi Nath
In
2009, psychiatrist Dr. Nath performed a consultative exam for
the SSA. (Tr. 333-38.) Dr. Nath performed a mental status
examination. (Id.) On examination, Plaintiff was
able to register three out of three items, but was unable to
recall any of the three items after five minutes. (Tr. 335.)
Plaintiff could follow one-step commands. (Id.) Dr.
Nath diagnosed anxiety disorder, NOS, and learning disorder,
NOS. (Id.) Dr. Nath opined that Plaintiff could
understand, remember, and carry out “very short simple
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