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Williams v. Berryhill

United States District Court, W.D. Louisiana, Lake Charles Division

January 17, 2018

JOHN MCCARY WILLIAMS
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF Social Security[1]

          TRIMBLE, JUDGE

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez Montes United States Magistrate Judge

         I. Background

         A. Procedural Background

         John 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, p. 195/728).

         A de 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. 173-75/728).

         A 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).

         A third 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).

         A 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).

         Williams 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 Commissioner”).

         Williams 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).

         The 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.

         B. Medical and Other Records

         In 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).

         In 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).

         In 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).

         Williams 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).

         In June 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”[2] 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. 577/728).

         On July 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).

         On July 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).

         Williams 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).

         In 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 performed inconsistently.

         In 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).

         Dr. 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).

         In 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).

         Dr. 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. 634/728).

         Dr. 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 ...


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