Jennings v. Social Security Administration, No. 1:2017cv00006 - Document 14 (E.D. Ark. 2017)
Court Description: MEMORANDUM OPINION AND ORDER: The Court finds that there is substantial evidence on the record as a whole to support the ALJ's findings. Jennings' complaint is dismissed, all requested relief is denied, and judgment will be entered for the Commisioner. Signed by Magistrate Judge Patricia S. Harris on 10/2/2017. (ljb)
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Jennings v. Social Security Administration Doc. 14 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION SAMUEL C. JENNINGS PLAINTIFF v. NO. 1:17-cv-00006 PSH NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT MEMORANDUM OPINION AND ORDER Plaint iff Samuel C. Jennings (“ Jennings” ) began t his case by filing a complaint pursuant t o 42 U.S.C. 405(g). In t he complaint , he challenged t he final decision of t he Act ing Commissioner of t he Social Securit y Administ rat ion (“ Commissioner” ), a decision based upon t he findings of an Administ rat ive Law Judge (“ ALJ” ). Jennings maint ains t hat t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole and offers t wo reasons why. 1 Jennings first maint ains t hat his ment al impairment meet s or equals a list ed impairment , and t he ALJ failed t o so find at st ep t hree of t he sequent ial evaluat ion process. Jennings also maint ains t hat his residual funct ional capacit y was erroneously assessed. He so maint ains because his failure t o t ake his medicat ion as prescribed was excusable given his ment al impairment and because t he opinions of his t reat ing sources were never obt ained. The quest ion for t he Court is whet her t he ALJ’ s findings are support ed by subst ant ial evidence on t he record as a whole. “ Subst ant ial evidence means less t han a preponderance but enough t hat a reasonable person would find it adequat e t o support t he decision.” See Boet t cher v. Ast rue, 652 F.3d 860, 863 (8t h Cir. 2011). 1 Dockets.Justia.com The record reflect s t hat Jennings was born on December 12, 1995, and was sevent een years old when he allegedly became disabled beginning on Oct ober 23, 2013. He filed an applicat ion for child’ s disabilit y benefit s on March 15, 2014, and alleged t hat he became disabled as a result of sympt oms associat ed wit h paranoid schizophrenia. See Docket Ent ry 169. 2 A summary of t he medical evidence reflect s t hat Jennings has sought medical at t ent ion for t he sympt oms associat ed wit h his ment al impairment on mult iple occasions. On Oct ober 24, 2013, he was admit t ed t o t he Pinnacle Point e Hospit al (“ Pinnacle Point e” ) aft er he was expelled from school for at t acking and inj uring anot her st udent and for t hreat ening t o kill several ot her st udent s. See Transcript at 300-310. A ment al st at us examinat ion was performed af t er his arrival at Pinnacle Point e, and t he following observat ions were recorded: The pat ient is an average build, neat ly dressed and groomed Caucasian boy who is alert and cooperat ive, relat es in a quiet , subdued manner. Speech is logical, relevant , and fluent wit hout art iculat ion or processing difficult ies. He admit s t o explosive, out of cont rol t emper, and violent , aggressive behaviors, and having made t hreat s t o peers at school, but denied any current homicidal ideat ion. He cont inues t o feel paranoid t hat t he school is t rying t o poison him and t hat people are out t o get him. Cognit ively, he present s as int act and orient ed. He is able t o recall address, birt hday, phone number, spell “ house” forward and backwards, and do serial-3 subt ract ions quickly and easily. Int ellect ually, he present s as average by vocabulary and fund [sic] of knowledge. Judgment and insight are impaired as evidenced by t he violent , aggressive behaviors, homicidal t hreat s, and paranoia. A child may obtain disability benefits on the basis of the employment record of a deceased individual upon whom the child was dependent at the time of the individual’s death. See 42 U.S.C. 402(d). The child’s disability must have begun before he attained the age of twenty two. See 42 U.S.C. 402(d)(1)(B). The Commissioner represents, and the Court accepts, that “[child’s disability benefits] claims are evaluated using the same criteria for adult disability benefits set forth in 42 U.S.C. 423(d).” See Docket Entry 13 at CM/ECF 1. Here, Jennings seeks benefits on the basis of the employment record of his mother, Aylene Gallegos, also known as Aylene Dickerson. See Transcript at 46, 153. She died on December 19, 1997. See Transcript at 46, 153. 2 2 See Transcript at 305. Jennings was diagnosed wit h, int er alia, mood and psychot ic disorders and prescribed Abilify. When he was discharged on November 4, 2013, he was observed t o be medically st able and no longer exhibit ing aggressive sympt oms. He was referred t o Families, Inc., (“ Families” ) for individual and family t herapy. Jennings and/ or members of his family t hereaft er saw t he ment al healt h professionals at Families in excess of fort y-five t imes bet ween November of 2013 and January of 2015. 3 The init ial progress not es reflect t hat he report ed difficult ies cont rolling his anger and get t ing along wit h ot hers. Following an April 3, 2014, examinat ion, Dr. Richard Lucas, M.D., diagnosed Jennings’ primary impairment as paranoid t ype schizophrenia. See Transcript at 456. Jennings report ed difficult ies wit h his medicat ion on several occasions, and it was repeat edly adj ust ed. He was prescribed, at t imes, Risperdal, Invega, Trazodone, Remeron, Topamax, and Zyprexa. See Transcript at 447. Generally, as his medicat ion was adj ust ed, and he t ook it as prescribed, his condit ion improved. For inst ance, in a May 6, 2014, progress not e, Jennings was not ed t o be compliant wit h his medicat ion and report ed feeling bet t er. He was observed t o be “ more open and responsive” and “ more relaxed.” See Transcript at 440. In a June 3, 2014, progress not e, t he following observat ions were made: See Transcript at 363 377, 386 389 (11/15/2013); 461 463 (12/12/2013); 382 385 (02/13/2014); 421 422 (02/14/2014); 419 420 (02/17/2014); 417 418, 445 446 (02/25/2014); 415 416, 458 460 (03/13/2014); 413 414 (03/18/2014); 443 444 (03/25/2014); 410 412 (04/02/2014); 455 457 (04/03/2014); 408 409 (04/08/2014); 441 442 (04/10/2014); 405 407 (04/15/2014); 402 404 (04/19/2014); 439 440 (05/06/2014); 437 438 (05/07/2014); 452 454 (05/08/2014); 400 401 (05/13/2014); 378 381 (05/15/2014); 435 436 (05/21/2014); 431 432, 433 434 (06/02/2014); 396 397, 398 399 (06/03/2014); 449 451 (06/05/2014); 429 430 (06/07/2014); 394 395 (06/13/2014); 392 393 (06/17/2014); 427 428 (06/18/2014); 425 426 (07/01/2014); 390 391, 503 504 (07/08/2014); 423 424, 509 510 (07/11/2014); 507 508 (07/15/2014); 521 523 (07/17/2014); 501 502 (07/22/2014); 505 506 (07/30/2014); 498 500 (08/01/2014); 496 497 (08/05/2014); 476 479, 494 495 (08/12/2014); 492 493 (08/26/2014); 490 491 (09/02/2014); 488 489 (09/09/2014); 486 487 (09/23/2014); 484 485 (10/07/2014); 518 520 (10/09/2014); 482 483 (10/21/2014); 472 475, 480 481 (11/04/2014); 515 517 (11/26/2014); 663 664, 665 666 (01/05/2015); 667 668, 669 670 (01/13/2015); 671 673, 673 674 (01/20/2015). 3 3 [Jennings] explained he is get t ing along wit h family members. He expressed he has decreased his hand gest ures and loud t alking out in public while wit h family members. ... He showed no signs of paranoid behaviors during t he sessions. He explained he has helped his fat her wit h some t asks at work so t hat he was able t o get out of t he house. He report ed he may cont inue t o help [his] fat her wit h work. See Transcript at 399. The ment al healt h professionals at Families made similar observat ions during t he approximat ely six mont h period t hat followed, again, as long as Jennings t ook his medicat ion as prescribed. In an Oct ober 7, 2014, progress not e, t he following observat ions were made: [Jennings] explained he went on a t rip wit h his [u]ncle over t he weekend. [Jennings] expressed t hey went t o a powwow wit h different t ribes. He explained during t he t rip he did not have any paranoid t hought s or behaviors. He expressed t hat he had a “ good t ime.” [The ment al healt h professional] and [Jennings] discussed ways t o remain product ive in his life. [Jennings] explained he feels as if he is in “ a rut .” He and [t he ment al healt h professional] explored ways t o break t he t ime up during t he day. [They] discussed “ j obs, volunt eering, working around t he home, playing drums.” See Transcript at 485. In a November 4, 2014, progress not e, t he following observat ions were made: “ ... [Jennings] expressed he enj oys t he drums and music. He explained he got a part t ime j ob [raking leaves] and helping out an elderly lady around her home. He expressed several t imes he would like more out of life and become somet hing of himself.” See Transcript at 481. Jennings’ condit ion became less st able, t hough, when he did not t ake his medicat ion as prescribed. For inst ance, Jennings’ grandmot her visit ed wit h a ment al healt h professional from Families on January 5, 2015, and provided t he following report concerning Jennings’ ment al healt h: 4 Nancy [i.e., Jennings’ grandmot her] report s “ [Jennings] has not been t aking his medicine. He act s like a Wildman. He comes t o my house and want s money. He t old me last night t hat if I did not give him what he want ed t hat he was going t o break my legs. I t old him t o get out . He did. My son was here and my boyfriend last night when [Jennings] said t hat so I was not afraid of him. He left .” ... See Transcript at 664. The ment al healt h professional opined t hat Jennings was “ regressing due t o not t aking his medicat ion.” See Transcript at 664. On April 19, 2014, or during t he period Jennings was seeing t he ment al healt h professionals at Families, he was arrest ed on charges of criminal t respass and public int oxicat ion. He was referred by t he Izard Count y Sheriff’ s Depart ment t o t he BridgeWay (“ BridgeWay” ), a psychiat ric hospit al, where he was hospit alized for nine days. See Transcript at 343-361. At t he t ime of his admission, t he following observat ions were recorded: “ ... [Jennings] has had disorganized t hought s wit h an inappropriat e affect and was uncooperat ive wit h t he init ial evaluat ion. He is noncompliant wit h medicat ion. He report s being easily agit at ed wit h significant paranoia. No suicidal or homicidal ideat ions at t his t ime.” See Transcript at 345. He was prescribed Zyprexa, and it appears t o have been of some benefit . Dr. Vict or McNerney, M.D., not ed t he following in a discharge summary: ... [Jennings] had no episodes of agit at ed or combat ive behavior. He was easily redirect ed by nursing st aff. He was calm. He int eract ed appropriat ely wit h peers. His encount ers wit h me were relat ively brief. He had not able negat ive sympt oms of schizophrenia including hypoverbal speech, poor inner social relat edness, and in general a lack of int erest in socializat ion. However, he did not exhibit any significant posit ive sympt oms of schizophrenia. His schizophrenia appeared consist ent wit h undifferent iat ed t ype of possibly disorganized t ype. ... See Transcript at 343. 5 On August 6, 2014, Jennings was seen by Dr. Nancy Bunt ing, Ph.D., (“ Bunt ing” ) for a ment al st at us examinat ion and an evaluat ion of adapt ive funct ioning. See Transcript at 465-470. Her observat ions included t he following: [Jennings] was alert , at t ent ive, and superficially cooperat ive. Once t his pat ient st at ed early in t he int erview t hat he had had NO psychiat ric hospit alizat ions, t he examiner became very careful and validat ed informat ion lat er wit h t he fat her in a separat e session. In no way nor at any t ime did t his pat ient appear t o be psychot ic, out of t ouch wit h realit y, or delusional. On t he cont rary he appeared t o be quit e compet ent , and once he denied any hospit alizat ions t he examiner had t o seriously consider t he possibilit y t hat he is a liar. See Transcript at 467. Bunt ing observed t hat Jennings’ t hought processes were logical, relevant , and goal-direct ed. She diagnosed, int er alia, an ant isocial personalit y disorder. Wit h respect t o his sympt oms, she opined, in part , t he following: While [Jennings] had one st ilt ed sent ence, t his seemed t o be a funct ion of his disdain for t he evaluat ion and NOT any indicat ion of psychosis. ... This pat ient is not a reliable informant . ... [Jennings’ ] fat her’ s remark about “ milking” t he syst em for sympat hy since grade school would be consist ent wit h an ant isocial personalit y disorder. His fat her was quit e dist raught as he cannot afford t o support t his young man and he knows t hat he has access t o t he $10,000. The pat ient ’ s almost immediat e quest ion about what t he examiner was writ ing suggest he was very aware of t he nat ure of t he int erview and he was careful about what he revealed. His answers somet imes seemed “ cagey.” This would also be consist ent wit h t he pat ient ’ s personalit y disorder. See Transcript at 468. Wit h respect t o t he effect s of Jennings’ impairment s on his adapt ive funct ioning, Bunt ing opined t he following: [Jennings] can do all of his self-care. He smokes a half of a pack of cigaret t es daily, but does not chew t obacco. He drinks a lit er of cola daily. 6 The fat her drove t he pat ient t o t he appoint ment t oday. The pat ient does not have a driver’ s permit . He does shop by himself and he has no problems doing t hat . He has never used a check book. He has no difficult ies count ing change. He has never paid any bills. He can do household chores like washing dishes, doing laundry, sweeping, cleaning, vacuuming and cooking, alt hough his only “ chore” is t o t ake out t he t rash. He spends his t ime wat ching t elevision, list ening t o t he radio and ot her music, playing t he Xbox for one hour at a t ime, and using t he int ernet for facebook and YouTube. He reads magazines. He enj oys skat eboarding. The pat ient does not have a girlfriend. He is in cont act wit h his one brot her. He has friends, but he is not involved in church or any ot her group. He has cont act wit h his neighbors. The pat ient communicat ed and int eract ed in a socially adequat e, but flippant , manner. The pat ient could communicat e in an int elligible and effect ive manner when he want ed t o. The pat ient ’ s performance on serial 3s was fair, and he count ed backward from 20 adequat ely. His immediat e recall was adequat e, and digit span was in t he borderline range. He has t he capacit y t o cope wit h t he t ypical cognit ive demands of t he basic work like t asks. He has had t he abilit y t o deal wit h peers and t eacher unt il t his last year suggest ing a change, possibly involving subst ances. He can deal wit h t he public appropriat ely when he want s t o. He can handle work st ress or changes. He can follow inst ruct ions when he want s t o. The pat ent was able t o at t end and sust ain his concent rat ion in t he int erview which focused on himself. ... He has t he abilit y t o sust ain his concent rat ion on basic t asks. The pat ient did persist in t he int erview. He is capable of doing t his for at least short periods of t ime. His frust rat ion t olerance appeared t o be limit ed by his personalit y disorder and possible subst ance abuse. He has t he capacit y t o complet e t asks wit hin an accept able period of t ime. His pace on t he ment al st at us it ems was adequat e. See Transcript at 469. Bunt ing observed t hat Jennings appeared t o be guarded and dishonest t hroughout t he evaluat ion, giving a “ minimal level of effort and cooperat ion.” See Transcript at 470. 7 On February 19, 2015, Jennings ret urned t o BridgeWay aft er t hreat ening his fat her wit h a knife. See Transcript at 583-590. He cont inued t o be t reat ed wit h Zyprexa and was observed for six days. He was deemed t o have “ received maximum benefit from inpat ient hospit alizat ion as of February 25, 2015,” see Transcript at 589, and was discharged t he next day. The discharge summary reflect s t hat he denied audit ory or visual hallucinat ions, was not acut ely paranoid, but was cooperat ive and appreciat ive of t he care he received. Beginning on March 23, 2015, and cont inuing t hrough at least January 28, 2016, Jennings was seen at Daysprings Behavioral Healt h/ Healt h Resources of Arkansas (“ Daysprings” ) for t herapy and medicat ion checks on what appears t o have been in excess of t went y-five occasions. 4 Dr. Thomas Zurkowski, M.D., diagnosed Jennings wit h paranoid t ype schizophrenia and a mood disorder and prescribed medicat ion t hat included Zyprexa and Trazadone. The observat ions of Jennings t hroughout t he approximat ely t en mont h period were largely consist ent . He was observed t o have poor j udgment and manifest ed, at t imes, bizarre behaviors and beliefs. Jennings was observed t o be socially inept , have difficult y wit h int erpersonal int eract ions, and have few social support s. In an Oct ober 22, 2015, progress not e, a social worker observed t hat Jennings was in need of “ daily supervision and monit oring by his fat her, uncle, and grandmot her due t o [Jennings’ ] lack of daily living skills and recognit ion of social norms.” See Transcript at 690. See Transcript at 609 615 (03/23/2015); 616 618 (03/30/2015); 619 622 (04/01/2015); 623 624 (04/03/2015); 625 626 (04/09/2015); 627 628 (04/23/2015); 629 630 (05/07/2015); 631 632, 633 637 (06/11/2015); 638 639, (07/23/2015); 640 641 (07/31/2015); 642 643 (08/13/2015); 644 645 (08/20/2015); 646 647 (08/27/2015); 648 649, 650 654 (09/03/2015); 655 656 (09/10/2105); 657 658 (09/24/2015); 692 693 (10/08/2015); 723 725 (10/14/2015); 690 691 (10/22/2015); 688 689 (11/05/2015); 686 687 (11/19/2015); 710 715 (12/01/2015); 684 685 (12/03/2015); 682 683 (12/16/2015); 721 725 (12/30/2015); 680 681 (01/28/2016). 4 8 On Oct ober 19, 2015, Dana Hicks (“ Hicks” ), a Regist ered Nurse at t he Communit y Medical Cent er of Izard Count y, signed a “ To Whom It May Concern” let t er on behalf of Jennings. See Transcript at 677. In t he let t er, Hicks at t est ed t o problems caused by Jennings’ ment al impairment and t he difficult ies t hose problems had caused his grandmot her. Jennings, his fat her, and his grandmot her complet ed a series of document s in connect ion wit h Jennings’ applicat ion for child’ s disabilit y benefit s. See Transcript at 177-184, 185-186, 187-194, 195-204, 214-222, 223-224. They represent ed t hat Jennings does lit t le during t he day; he t ypically j ust wat ches t elevision, plays video games, and list ens t o music. He can at t end t o some of his personal needs, can prepare simple meals, but does very lit t le house or yard work. He cannot pay at t ent ion for any lengt h of t ime, cannot finish what he begins, and can follow neit her writ t en nor spoken inst ruct ions because he cannot concent rat e. Jennings t est ified during t he administ rat ive hearing. See Transcript at 38-46. He at t ended school t hrough his senior year of high school but did not graduat e because he was expelled for fight ing. He has considered t aking classes in an at t empt t o obt ain his GED. He admit t ed t hat he somet imes does not t ake his medicat ion and must be reminded by his grandmot her t o do so. He denied hearing voices in his head or seeing t hings t hat ot her people cannot see. Jennings’ grandmot her also t est ified during t he administ rat ive hearing. See Transcript at 46-65. They live t oget her in t he same house. She t est ified t hat Jennings cannot be believed and “ lies t o [her] all t he t ime.” See Transcript at 47. When asked whet her Jennings has a t endency t o not t ake his medicat ion, she t est ified as follows: 9 Not anymore. Last t ime he went t o t he— o BridgeWay last February t [19, 2015], I t hink t hey put t he scare in him and he’ s been very good about t aking it since t hen. He t ells me somet imes it ’ s t ime for my medicine and goes and t akes it himself. See Transcript at 48. Jennings laughs and smiles at inappropriat e t imes, will somet imes bare his t eet h, and will somet imes appear t o st are at obj ect s t hat no one else can see. Jennings’ fat her also t est ified during t he administ rat ive hearing. See Transcript at 65-75. Unt il recent ly, Jennings’ medicat ions of Zyprexa and Thorazine helped make him “ manageable.” See Transcript at 69. At st ep t wo of t he sequent ial evaluat ion process, t he ALJ found t hat Jennings has a severe impairment in t he form of paranoid schizophrenia. The ALJ found at st ep t hree t hat t he impairment does not meet or equal List ings 12.03. The ALJ assessed Jennings’ residual funct ional capacit y and found t hat he can perform unskilled work. In so finding, t he ALJ gave great weight t o Bunt ing’ s opinions. Wit h respect t o Jennings’ failure t o t ake his medicat ion as prescribed, t he ALJ found t he following: ... The t reat ment records show a pat t ern of noncompliance wit h medicat ions. ... The claimant has been on many medicat ion t rials and recent records indicat e t hat he is current ly prescribed Risperdal, Trazadone, and Zyprexa. ... However, t hroughout t he medical records it was indicat ed t hat t he claimant was non-compliant wit h t reat ment and at t he hearing, t he claimant ’ s grandmot her’ s t est imony support ed t his finding. This demonst rat es a possible unwillingness of t he claimant t o do what is necessary t o improve his condit ion. It may also be an indicat ion t hat his sympt oms are not as severe as his purport s. ... See Transcript at 27. The ALJ found at st ep four t hat Jennings has no past relevant work but found at st ep five t hat t here is ot her work he can perform. The ALJ concluded t hat Jennings is not under a disabilit y as defined by t he Social Securit y Act . 10 Jennings first maint ains t hat his ment al impairment meet s or equals paragraph C of List ing 12.03, and t he ALJ failed t o so find at st ep t hree. 5 It is Jennings’ posit ion t hat t he record document s a “ consist ent and cont inuous pat t ern of irrat ional, delusional, paranoid, aggressive, and socially inept behavior.” See Docket Ent ry 11 at CM/ ECF 15. At st ep t hree, t he ALJ is required t o det ermine whet her a claimant ’ s impairment s meet or equal a list ed impairment . See Raney v. Barnhart , 396 F.3d 1007 (8t h Cir. 2005). The det erminat ion is solely a medical det erminat ion, see Cockerham v. Sullivan, 895 F.2d 492 (8t h Cir. 1990), and t he claimant bears t he burden of showing t hat his impairment meet s or equals a list ed impairment , see Pyland v. Apfel, 149 F.3d 873 (8t h Cir. 1998). Subst ant ial evidence on t he record as a whole support s t he ALJ’ s finding at st ep t hree because Jennings cannot show t hat his impairment meet s or equals paragraph C of List ing 12.03. Alt hough he can show a psychot ic disorder of at least t wo years’ durat ion t hat has caused more t han a minimal limit at ion of t he abilit y t o do basic work act ivit ies, he cannot show t he requirement s of sect ions (1), (2), or (3) of paragraph C. A new version of Listing 12.03 went into effect on January 17, 2017. The new version encompasses “schizophrenia spectrum and other psychotic disorders.” The Court will review Jennings’ assertion of error, though, in accordance with the version of the listing in effect at the time the Commissioner’s decision became final, i.e., December 2, 2016. See Garrett, o/b/o Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”) The version of Listing 12.03 that the Court will use encompassed schizophrenic, paranoid, and other psychotic disorders. The required level of severity was shown when the claimant could satisfy the requirements of paragraphs A and B of Listing 12.03 or when the claimant could satisfy the requirements of paragraph C of Listing 12.03. Paragraph C required a showing of a psychotic disorder of at least two years’ duration that caused more than a minimal limitation of the ability to do basic work activities and one of the following: (1) repeated episodes of decompensation, each of extended duration; (2) a residual disease process that resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or (3) a current history of one or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. 5 11 Sect ion (1) requires a showing of repeat ed episodes of decompensat ion, each of ext ended durat ion. 6 At most , Jennings can show t hree such episodes, i.e., a 2013 hospit alizat ion at Pinnacle Point e and hospit alizat ions at BridgeWay in 2014 and again in 2015. The hospit alizat ions were over t he course of t hree years and only one of t hem last ed for more t han t en days. Alt hough he had periods when his condit ion became less st able, t he periods were largely caused by his refusal t o t ake his medicat ion as prescribed. Sect ion (2) requires a showing of a residual disease process t hat result ed in such marginal adj ust ment t hat even a minimal increase in ment al demands or change in t he environment would be predict ed t o cause t he individual t o decompensat e. 7 The ALJ could and did find t hat Jennings is capable of at t ending t o his self-care, preparing simple meals, performing basic chores, assist ing ot her people, and some t ravel. Alt hough Jennings spends much of his t ime alone, t he ALJ could and did find t hat Jennings wat ches t elevision, plays video games, list ens t o music, shops around ot her cust omers, and maint ains some relat ionships. The ALJ could and did also credit Bunt ing’ s observat ions t hat Jennings is capable of sust aining concent rat ion and persist ence. These findings support t he conclusion t hat a minimal increase in ment al demands or change in t he environment would not cause Jennings t o decompensat e. “Episodes of decompensation are defined as ‘exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace.’” See Richardson v. Berryhill, 2017 WL 1532268, 6 (N.D. Iowa 2017) (internal citations and quotations omitted), report and recommendation adopted, 2017 WL 2219983 (N.D. Iowa 2017). Repeated episodes, each of extended duration, means “three episodes within [one] year, or an average of once every [four] months, each lasting for at least [two] weeks.’” See Id. 7 Section (2) focuses on factors such as the claimant’s activities of daily living, social functioning, and ability to maintain concentration, persistence, or pace. See Bellew v. Acting Commissioner of Social Security, 605 Fed.Appx. 917, 927 (11th Cir. 2015). 6 12 Sect ion (3) requires a showing of a current hist ory of one or more years’ inabilit y t o funct ion out side a highly support ive living arrangement , wit h an indicat ion of cont inued need for such an arrangement . 8 Alt hough Jennings lives wit h his grandmot her and she has admirably at t empt ed t o provide some support and care for him, t he ALJ could and did find t hat Jennings has only mild limit at ions in such areas as his act ivit ies of daily living. In short , t here is no evidence t hat Jennings requires a highly support ive living sit uat ion. Jennings offers a second reason why t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole. Jennings maint ains t hat his residual funct ional capacit y was erroneously assessed. He so maint ains because his failure t o t ake his medicat ion as prescribed was excusable given his ment al impairment and because t he opinions of his t reat ing sources were never obt ained. The ALJ is also required t o assess t he claimant ’ s residual funct ional capacit y, which is a det erminat ion of “ t he most a person can do despit e t hat person’ s limit at ions.” See Brown v. Barnhart , 390 F.3d 535, 538-39 (8t h Cir. 2004). The assessment is made using all of t he relevant evidence in t he record, see Wildman v. Ast rue, 596 F.3d 959 (8t h Cir. 2010), including t he claimant ’ s subj ect ive st at ement s about his capabilit ies, see Part ee v. Ast rue, 638 F.3d 860 (8t h Cir. 2011). The assessment must nevert heless be support ed by “ some medical evidence of t he claimant ’ s abilit y t o funct ion in t he workplace.” See Cox v. Ast rue, 495 F.3d 614, 619 (8t h Cir. 2007). “Highly supportive” settings include “hospitals, halfway houses, care facilities, and personal home settings that greatly reduce the mental demands placed on [the claimant].” See Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013) (internal citation and quotation omitted). 8 13 Jennings clearly has limit at ions caused by paranoid schizophrenia. The quest ion for t he ALJ was t he ext ent t o which t he limit at ions impact t he most Jennings can do. The ALJ incorporat ed limit at ions for t he impairment int o t he assessment of Jennings’ residual funct ional capacit y but found t hat he was not disabled for purposes of t he Social Securit y Act . The ALJ could find as he did because subst ant ial evidence on t he record as a whole support s his considerat ion of t he evidence and his assessment of Jennings’ s residual funct ional capacit y. The Court so finds for t he following reasons. The ALJ adequat ely considered t he medical evidence. Specifically, t he ALJ adequat ely considered t he findings and opinions of t he medical professionals at Pinnacle Point and BridgeWay. Alt hough t he ALJ made only passing ment ion of t he findings and opinions of t he medical professionals at Daysprings, t he ALJ adequat ely considered t he findings and opinions of t he medical professionals at Families and t hose made by Bunt ing. It is t he ALJ’ s responsibilit y t o assign appropriat e weight t o t he various medical opinions, see Bent ley v. Shalala, 52 F.3d 784 (8t h Cir. 1995), and, in t his inst ance, t he ALJ could and did give great weight t o Bunt ing’ s opinions because she personally observed and examined Jennings and because her opinions are consist ent wit h her observat ions. Thus, t here is support in t he record for t he proposit ions t hat Jennings is capable of self-care, is capable of performing most act ivit ies of daily living, is capable of communicat ing in an int elligible and effect ive manner “ when he want [s] t o,” is capable of dealing wit h t he public appropriat ely “ when he want s t o,” is capable of at t ending and sust aining concent rat ion and persist ence, is capable of handling some work st ress or changes, and can follows inst ruct ions “ when he want s t o.” See Transcript at 469. 14 Jennings fault s t he ALJ for failing t o obt ain opinions from his t reat ing sources, specifically, from Dr. Richard Lucas, M.D., a physician at Families, and from Dr. Thomas Zurkowski, M.D., a physician at Daysprings. The ALJ is obligat ed t o recont act medical sources and, in some inst ances, order a consult at ive evaluat ion only if t he “ available evidence does not provide an adequat e basis for det ermining t he merit s of t he disabilit y claim.” See Webb v. Colvin, 2014 WL 4668974, 29 (D. Minn. 2014) (int ernal quot at ions and cit at ion omit t ed). “ While t he ALJ has an independent dut y t o develop t he record on a social securit y disabilit y hearing, t he ALJ is not required t o seek addit ional clarifying st at ement s from a t reat ing physician unless a crucial issue is undeveloped.” See Id. (int ernal quot at ions and cit at ion omit t ed). Here, t he record provided an adequat e basis for det ermining t he merit s of Jennings’ disabilit y claim. The record cont ains t he findings and opinions of t he medical professionals at Pinnacle Point e, BridgeWay, and Families, and, t o a lesser ext ent , Daysprings. The record also cont ains t he findings and opinions of Bunt ing, a consult at ive examiner who act ually saw Jennings. Alt hough opinions from addit ional sources might have been beneficial, t hey were not necessary. The ALJ also considered t he non-medical evidence. Specifically, t he ALJ adequat ely considered t he represent at ions made by Jennings and his family members t o t he medical professionals, t he represent at ions cont ained in t he disabilit y document s, and Jennings’ t est imony during t he administ rat ive hearing. The ALJ could and did not e numerous inconsist encies, inconsist encies t hat included his st at ement s regarding his alcohol and drug abuse. The ALJ could and did find t hat t he inconsist encies diminished t he persuasiveness of his subj ect ive complaint s and alleged funct ional limit at ions. 15 Jennings fault s t he ALJ for failing t o consider whet her Jennings’ failure t o t ake his medicat ion as prescribed was excusable. Jennings’ assert ion lies at t he heart of t his case, i.e., t he ext ent t o which his failure t o do so is a result of his ment al impairment . A ment ally ill person's noncompliance wit h psychiat ric medicat ion can be, and usually is, a result of his ment al impairment and t herefore “ neit her willful nor wit hout a j ust ifiable excuse.” See Pat e-Fires v. Ast rue, 564 F.3d 935, 945 (8t h Cir.2009). In Pat e-Fires, t he claimant suffered from a severe bipolar disorder t hat caused manic behavior, homicidal t hreat s, paranoid delusions, significant ly impaired insight , and a complet e denial of t he impairment . “ Alt hough t here was overwhelming evidence in t he record expressly indicat ing t hat t he claimant 's severe ment al disorder caused her noncompliance wit h psychiat ric medicat ion, t he ALJ held t hat such noncompliance was not j ust ified.” See Wildman v. Ast rue, 596 F.3d 959, 966 (8t h Cir. 2010). The Court of Appeals reversed, “ concluding t hat t he ALJ's decision failed t o recognize t hat t he claimant 's noncompliance was a manifest at ion of her schizoaffect ive disorder and t hat noncompliance wit h psychiat ric medicat ion is common among persons wit h such disorders.” See Id. “ Whet her severe ment al illness has result ed in j ust ifiable noncompliance is a fact -int ensive issue.” See Hensley v. Colvin, 829 F.3d 926, 935 (8t h Cir. 2016). Because it is, t he decision in Pat e-Fires has, on occasion, been dist inguished. For inst ance, it has been dist inguished on t he ground t hat a claimant ’ s ment al impairment s are not as ext reme as t he claimant ’ s ment al impairment s were in Pat e-Fires, see Gut hrie v. Colvin, 2014 WL 5023508 (W.D.Ark. 2014), and when t here is no evidence linking a claimant ’ s ment al limit at ions t o his noncompliance, see Wildman v. Ast rue, supra. 16 The case at bar is dist inguishable from Pat e-Fires in t wo respect s. First , t here is considerable quest ion whet her Jennings’ paranoid schizophrenia causes t he t ype of manic behavior, homicidal t hreat s, paranoid delusions, significant ly impaired insight , and a complet e denial of t he impairment as was present in Pat es-Fires. Alt hough he has had episodes when he manifest ed bizarre behaviors and beliefs and made homicidal t hreat s, t he episodes were sporadic. Second, t here is not “ overwhelming evidence in t he record expressly indicat ing t hat [Jennings’ ] severe ment al disorder causes [his] noncompliance wit h psychiat ric medicat ion.” See Wildman v. Ast rue, 596 F.3d at 966. Inst ead, t here is conflict ing evidence on t he quest ion of whet her his paranoid schizophrenia causes his noncompliance. On one hand, Bunt ing was quit e forceful in opining t hat Jennings “ [i]n no way nor at any t ime ... appear[ed] t o be psychot ic, out of t ouch wit h realit y, or delusional.” See Transcript at 467. Inst ead, she observed t hat he appeared t o be “ quit e compet ent ,” see Transcript at 467, and can follow inst ruct ions “ when he want s t o,” see Transcript at 469. Jennings’ grandmot her t est ified t hat alt hough Jennings “ lies t o [her] all t he t ime, see Transcript at 47, he was “ very good” about t aking his medicat ion once t he medical professionals at BridgeWay “ put t he scare in him ...,” see Transcript at 48. On t he ot her hand, a licensed clinical social worker at Daysprings observed t hat Jennings is in need of “ daily supervision and monit oring by his fat her, uncle, and grandmot her due t o [Jennings’ ] lack of daily living skills and recognit ion of social norms.” See Transcript at 690. Alt hough t he ALJ’ s finding on t he issue is not a model of t horoughness, see Transcript at 27, t he ALJ could conclude t hat Jennings’ failure t o t ake his medicat ion as prescribed is not a result of his ment al impairment . 17 The Court is obligat ed t o consider evidence t hat bot h support s and det ract s from t he ALJ's decision. See Goff v. Barnhart , 421 F.3d 785 (8t h Cir. 2005). “ If, aft er reviewing t he record, t he [C]ourt finds it is possible t o draw t wo inconsist ent posit ions from t he evidence and one of t hose posit ions represent s t he ALJ's findings, t he [C]ourt must affirm t he ALJ's decision.” See Id. at 789 [cit ing Pearsall v. Massanari, 274 F.3d 1211, 1217 (8t h Cir.2001)]. The case at bar is such an inst ance. It is possible t o const rue t he evidence in such a way as t o find t hat Jennings’ failure t o t ake his medicat ion as prescribed is a result of his ment al impairment . It is also possible t o const rue t he evidence in such a way as t o find t hat Jennings’ failure t o t ake his medicat ion as prescribed is not a result of his ment al impairment . Because it is possible t o draw t wo inconsist ent posit ions from t he evidence, and one of t hose posit ions represent s t he ALJ’ s findings, t he Court will not dist urb t he ALJ’ s decision. On t he basis of t he foregoing, t he Court finds t hat t here is subst ant ial evidence on t he record as a whole t o support t he ALJ’ s findings. Jennings’ complaint is dismissed, all request ed relief is denied, and j udgment will be ent ered for t he Commissioner. IT IS SO ORDERED t his 2nd day of Oct ober, 2017. ________________________________________ UNITED STATES MAGISTRATE JUDGE 18
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