United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
H.L. Perez Montes United States Magistrate Judge
McCary Williams (“Williams”) filed applications
for disability insurance benefits (“DIB”) and
social security income (“SSI”) benefits on July
20, 2009 (Doc. 9-1, pp. 469, 473/728), alleging a disability
onset date of August 15, 2008 (Doc. 9-1, pp. 195, 469/728).
Williams contends he is unable to work due to “left
hand, lung problems, hbp, can't read or write”
(Doc. 9-1, p. 497/728). Those applications were denied by the
Social Security Administration (“SSA”) (Doc. 9-1,
novo hearing was held before an Administrative Law Judge
(“ALJ”) in 2010 (Doc. 9-1, p. 32-61/728). The
ALJ's decision was unfavorable to Williams (Doc. 9-1, p.
159-68/728). The Appeals Council vacated that decision, in
part because the ALJ denied Williams' request to subpoena
the consulting doctor on whom the ALJ relied, Dr. Whiteman,
and remanded the case for further proceedings (Doc. 9-1, p.
second administrative hearing was held in 2011 (Doc. 9-1, p.
118-51/728). The ALJ's decision was again unfavorable to
Williams (Doc. 9-1, p. 180-87/728). The Appeals Council again
vacated that decision because Dr. Whiteman failed to respond
to his subpoena and the ALJ failed to enforce it (Doc. 9-1,
p. 193-94/728). The Appeals Council remanded the case for
further proceedings (Doc. 9-1, p. 193-94/728).
administrative hearing was held in March 2015. Dr. Whiteman
again failed to respond to his subpoena, so the hearing was
continued (Doc. 9-1, p. 113-16/728).
fourth administrative hearing was held in July 2015, at which
Dr. Whiteman appeared (Doc. 9-1, p. 62-112/728). The ALJ
found that, although Williams suffers from severe impairments
of borderline intellectual functioning, intellectual
disability, diabetes mellitus, and left hand dysfunction
(Doc. 9-1, p. 19/728), he has the residual functional
capacity to perform very heavy work except for his inability
to understand, remember, or carry out more than simple and
routine one-, two-, or three-step instructions; his inability
to perform work requiring more than simple reading, writing,
or arithmetic; and his limitation to making only simple,
work-related decisions or judgments (Doc. 9-1, p. 20/728).
The ALJ further found that, since June 2, 2014,
Williams's impairments met the criteria of §
12.05(C) of 20 C.F.R. Part 404, Subpart P, Appendix 1 (Doc.
9-1, p. 23/728). The ALJ concluded that Williams was not
disabled prior to June 2, 2014, but became disabled on June
2, 2014 and remained disabled through the date of his
decision on August 26, 2015 (Doc. 9-1, p. 25/728).
requested a review of the ALJ's decision, but the Appeals
Council declined to review it (8/5/16) (Doc. 9-1, p. 6/728).
The ALJ's decision became the final decision of the
Commissioner of Social Security (“the
next filed this appeal for judicial review of the final
decision of the Commissioner. Williams raises the following
issues on appeal (Doc. 14):
1. The ALJ failed to employ a medical expert trained in
psychology/psychiatry, 20 C.F.R. § 404.1527, 416.927,
HALLEX 1-2-530, to determine whether Williams suffered from
“severe borderline intellectual functioning” or
“severe intellectual disability” from August 15,
2008 to June 4, 2015, SSR 83-20.
2. The ALJ failed to apply the correct severity standard,
Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), to
the claimant's combined impairments; failed to elicit the
informed judgment of a medical advisor; and failed to obtain
an expert opinion in internal medicine to determine whether
the claimant suffered from severe essential hypertension
during from August 15, 2008 through September 30, 2010 (the
date last insured for DIB).
Commissioner responded to Williams's appeal (Doc. 16),
and Williams filed a reply (Doc. 17). Williams's appeal
is now before the Court for disposition.
Medical and Other Records
January 2008, Williams went to the emergency room complaining
of upper left chest pain that was constant and worsened when
he bent over (Doc. 9-1, p. 707/728). Williams's speech
was slurred, and he admitted he was an alcoholic and had not
been taking his medications for hypertension (Doc. 9-1, p.
707/728). Williams's blood pressure was 196/119, he was
5'9” tall, and he weighed 189 pounds (Doc. 9-1, p.
707/728). Williams was diagnosed with hypertension and
costochondritis (Doc. 9-1, p. 707/728).
October 2008, Williams's blood pressure was 138/90 (Doc.
9-1, p. 703/728). Williams's speech was clear and he
reported smoking one pack of cigarettes per day (Doc. 9-1, p.
703/728). In November 2008, Williams's blood pressure was
165/107 and he wanted to resume taking blood pressure
medication (Doc. 9-1, p. 701/728). Williams's speech was
clear (Doc. 9-1, p. 701/728). Williams reported chronic pain
and problems with his left hand since he burned it as a
child, and scarring was noted (Doc. 9-1, p. 701/728).
Williams admitted smoking two, or maybe three, packs of
cigarettes per day (Doc. 9-1, p. 701/728).
January 2009, Williams was evaluated by Dr. Kelly Babineaux
for the state disability determinations services (Doc. 9-1,
p. 725/728). Williams reported left hand weakness, lung
problems, and high blood pressure (Doc. 9-1, p. 725/728).
Williams also stated he was in recovery from drug and alcohol
abuse, had hypertension, and had a throbbing headache about
twice a week for one hour (Doc. 9-1, p. 725/728). Williams
admitted he can dress and feed himself; stand for 30 minutes
at a time and a total of 6 hours in an 8 hour day; walk on
level ground for one mile; lift 150 pounds; drive for five
hours; climb stairs; and sweep, mop, vacuum, mow grass, and
do dishes (Doc. 9-1, p. 725/728). Williams was working part
time doing plaster work (Doc. 9-1, p. 577/728). Williams
reported decreased vision and hearing, and smoking one and a
half packs per day since age nine (Doc. 9-1, p. 726/728).
was 5'9” tall and weighed 180 pounds, his blood
pressure was 175/105, and his vision was 20/200 OD and 20/70
OS without glasses (Doc. 9-1, p. 726/728). Williams admitted
he had not been taking his blood pressure medication (Doc.
9-1, p. 727/728). Williams's grip strength was normal
bilaterally; he had difficulty apposing his left fifth digit
to his thumb; he could not touch the second through fifth
fingers of his left hand to his left palm due to the burn
wound; he had some webbing between the third and fourth, and
fourth and fifth fingers from the burn; he was able to do
most fine dexterous movements; and he could grip and make a
fist (Doc. 9-1, p. 727/728). Dr. Babineaux concluded that
Williams would probably take care of getting his blood
pressure medication, and he had a good range of motion (Doc.
9-1, p. 728/728).
2009, Williams went to the emergency room, complaining of
pain (8/10) in his low back, upper back, shoulders, and left
hand (Doc. 9-1, p. 577/728). Williams's pain was
atraumatic and he was noted to be non-compliant with his
medication regimen (Doc. 9-1, p. 577/728). Williams denied
smoking tobacco (Doc. 9-1, p. 577/728). Williams also
complained of shortness of breath and headache but did not
have dyspnea or chest pain (Doc. 9-1, p. 577/728). Williams,
then 48 years old, was diagnosed with “trigger
finger” and radiculopathy without neuropathy, and
prescribed amitriptyline and tramadol (Doc. 9-1, p. 577/728).
Williams's blood pressure was 210/117 (Doc. 9-1, p.
7, 2009, Williams had a follow-up visit (Doc. 9-1, p.
580/728). Williams was 71 inches tall (Doc. 9-1, p. 580/728).
Williams's blood pressure was 198/116 and he admitted to
smoking one pack per day (Doc. 9-1, p. 580/728). Williams was
prescribed Clonidine, Lisinopril, and Trazodone, and told to
quit smoking (Doc. 9-1, p. 580/728).
11, 2009, Williams went to the emergency room again,
complaining of back pain (Doc. 9-1, p. 581/728). His blood
pressure was 164/95 and he weighed 180 pounds (Doc. 9-1, p.
581/728). X-rays of Williams's lumbar spine were negative
(Doc. 9-1, p. 585/728). Chest x-rays showed no acute disease
(Doc. 9-1, p. 586/728). Williams was diagnosed with a urinary
tract infection and low back pain, and prescribed Cipro and
Ultram (Doc. 9-1, p. 581/728).
underwent a psychological evaluation by Jerry L. Whiteman,
Ph.D., in August 2009 (Doc. 9-1, p. 588/728). Williams, then
48 years old, complained of sleep difficulties and breathing
problems, attributing his health problems to a fall and a
stab wound (Doc. 9-1, p. 588/728). Williams also admitted a
history of polysubstance abuse beginning at age 14 and a
history of alcoholism, but said he stopped using drugs and
alcohol one year ago (Doc. 9-1, p. 588/728). Dr. Whiteman
noted that Williams's eyes were red at the time of the
assessment (Doc. 9-1, p. 588/728). Williams was last employed
about a year before as a laborer/plasterer (Doc. 9-1, p.
588/728). Williams said he was 5'8” tall and
weighed 165 pounds, was single, had one child, and lived
alone in his family home (Doc. 9-1, p. 589/728). Williams had
one friend he talked to, sometimes went to rodeos, frequently
attended AA and NA meetings, and struggled with insomnia
(Doc. 9-1, p. 589/728). Williams attended school through the
seventh grade, repeating all grades from the fourth through
the seventh before he quit school (Doc. 9-1, p. 589/728).
2009, Williams's full scale IQ was 71 (borderline
intelligence), his verbal comprehension index was 66, his
perceptual reasoning index was 81, his working memory index
was 69, and his processing speed index was 86 (Doc. 9-1, p.
589/728). Dr. Whiteman diagnosed Williams with polysubstance
abuse at Axis I, and borderline intelligence at Axis II (Doc.
9-1, p. 589/728). Williams said he did not drive because his
license was suspended due to his history of DWIs (Doc. 9-1,
p. 588/728). Dr. Whiteman found Williams was clean and sober
at that time, was attending AA and NA meetings to stay sober,
and there were no signs of malingering during the evaluation
(Doc. 9-1, p. 589/728). Dr. Whiteman stated Williams's
ability to manage personal finances is limited to simple
transactions (Doc. 9-1, p. 589/728). Dr. Whiteman further
found Williams has the ability to understand and follow
concrete instructions, but abstract directions would be
August 2009, Linda Upton, Ph.D., a non-examining, consulting
psychologist employed by the state disability determinations
services, found Williams was mentally able to do simple work
due to borderline intellectual functioning and a history of
polysubstance abuse in remission (Doc. 9-1, pp. 590-600/728).
Dr. Upton found Williams has mild restrictions of activities
of daily living, moderate difficulties in maintaining social
functioning, and moderate difficulties in maintaining
concentration, persistence, or pace (Doc. 9-1, p. 601/728).
Upton completed a mental residual functional capacity
assessment for Williams in 2009 (Doc. 9-1, p. 605/728). Dr.
Upton found, in understanding and memory, that Williams is
moderately limited in his ability to understand and remember
detailed instructions (Doc. 9-1, p. 605/728). Dr. Upton also
found, in sustained concentration and persistence, that
Williams is moderately limited in his ability to carry out
detailed instructions; moderately limited in his ability to
maintain attention and concentration for extended periods;
moderately limited in his ability to complete a normal
workday and workweek without interruptions from
psychologically based symptoms; and moderately limited in his
ability to perform at a consistent pace without an
unreasonable number and length of rest periods (Doc. 9-1, pp.
605-06/728). Dr. Upton did not find any limitations in social
interaction or adaptation (Doc. 9-1, p. 606/728).
2011, the Calcasieu Parish School System wrote that Williams
entered Riverside Elementary School as a first grader in 1967
(Doc. 9-1, p. 527/728). In 1976, Williams transferred to Oak
Park Junior High, but Oak Park does not have any school
records for Williams (Doc. 9-1, p. 527/728). Also, the
Louisiana State Department of Education did not have a record
of Williams receiving his GED (Doc. 9-1, p. 527/728).
Whiteman evaluated Williams's mental status in August
2013 (Doc. 9-1, p. 633/728). Williams, then 51 years old,
still did not drive or have a valid driver's license
(Doc. 9-1, pp. 633, 636/728). Williams complained he cannot
use his hands, is short-winded, and has high blood pressure
(Doc. 9-1, p. 633/728). Williams reported he had been married
one time, was divorced in April 2013, and lived alone in his
family home (Doc. 9-1, p. 633/728). Williams reported having
been stabbed in the chest 28 years ago, and shot in his
“manhood” seven years ago (Doc. 9-1, p. 634/728).
Williams was attending NA and AA meetings three times per
week, and had been arrested/incarcerated many times for drug
and alcohol related issues and failure to pay child support,
the last time in 2009 (Doc. 9-1, p. 634/728). Williams said
he was 5'10” tall and weighed 210 pounds (Doc. 9-1,
p. 634/728). Williams reported a troubled sleep cycle, but
denied having any pain (Doc. 9-1, p. 634/728). Williams went
through the seventh grade and quit school when he was 16
years old (Doc. 9-1, p. 634/728). Williams was last employed
six years ago, doing drywall (Doc. 9-1, p. 634/728). Williams
was fired from that job, but does not know why (Doc. 9-1, p.
Whiteman found Williams's general fund of information and
long term memory skills are below average but adequate; his
pace and persistence are modest; he often uses his fingers
for math calculations; he reads slowly and has difficulty
spelling; his short term memory and concentration skills are
adequate; and his intermediate memory is poor (Doc. 9-1, p.
635/728). Williams has limited ability for abstract
reasoning, his judgment and insight reflect knowledge of
basic emergency responses, and his primary goal in life is