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Terrey v. Commissioner of Social Security Administration

United States District Court, D. Arizona

August 7, 2018

Andrew Terrey, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          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 ‚Äúvery short simple ...


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