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Workman v. Berryhill

United States District Court, D. Oregon

October 23, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Christina Workman (“Workman”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of her applications for Child's Insurance Benefits (“CIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-34, 1381-83f. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, the Court affirms the Commissioner's decision because it is free of harmful legal error and supported by substantial evidence.


         Workman was born in September 1992. She lives with her husband and two young children, and has a high school diploma, a history of attending college classes, and no past work experience. Workman alleges disability as of her date of birth due primarily to Asperger's Syndrome, absence seizures, depression, and anxiety.

         In April and May 2008, Workman's high school reviewed her eligibility for special education services. (Tr. 445-53.) As part of this process, the high school measured Workman's general intellectual functioning level using the Wechsler Intelligence Scale for Children, Fourth Edition (“WISC-IV”). On the WISC-IV, Workman's overall ability for learning was in the “average range at the 55th percentile, ” her verbal comprehension was in the “average range at the 55th percentile, ” her perceptual reasoning was in the “average range at the 39th percentile, ” her working memory was in the “high average range at the 81st percentile, ” and her processing speed was in the “average [range] at the 27th percentile.” (Tr. 449.) Workman also obtained a full-scale intelligent quotient (“IQ”) score of 102 on the WISC-IV, [1] and scored in the “96th percentile” on the Bender-Gestalt II.[2] (Tr. 299, 453.) On the Woodcock-Johnson Tests of Achievement, Third Edition (“WJ-III”), however, Workman's reading comprehension level was “significantly below her cognitive ability” and she exhibited “some significant articulation problems” due to a speech impediment. (Tr. 450-51.) Accordingly, school officials, who initially considered discharging Workman from special education services, concluded that Workman continued to be eligible for special education services based on an Autism Spectrum Disorder. (Tr. 446-48.)

         On March 14, 2011, Workman received the following results on the WJ-III: “[O]ral language skills are average when compared to the range of scores obtained by others at her age level; oral expression skills are low average; . . . listening comprehension skills are average; . . . ability to apply academic skills is average; . . . high average in written expression and average in basic reading skills, reading comprehension, math calculation skills and math reasoning.” (Tr. 300.)

         In a letter dated July 27, 2011, Workman's treating physician, Dr. Aric Groshong (“Dr. Groshong”), stated that Workman had been diagnosed in the past with attention deficit disorder (“ADD”) and Asperger's Syndrome, had “not been on medication since at least 2006, ” received “speech therapy at school, ” and reported “functioning well in the school [and] home settings, ” although “she continued to exhibit some mild symptoms of ADD.” (Tr. 376.) Dr. Groshong added that a seizure disorder “was also [a] past consideration, ” but testing results suggested that Workman was not “likely [suffering from] seizures.” (Tr. 376.) Dr. Groshong also stated that he was not aware of “any further difficulties” related to seizures or any “physical limitations, ” and that during Workman's last check-up in 2007, she reported that her school work was improving. (Tr. 376.)

         On May 7, 2011, Dr. Bill Hennings (“Dr. Hennings”), a non-examining state agency psychologist, completed a mental residual functional capacity assessment based on his review of Workman's medical records. (Tr. 92-94.) Dr. Hennings concluded that Workman was not significantly limited in thirteen categories of mental activity relating to an individual's “understanding and memory limitations, ” “sustained concentration and persistence limitations, ” and “social interaction limitations.” (Tr. 92-93.) Dr. Hennings also found that Workman was moderately limited in her ability to understand and remember detailed instructions, to carry out detailed instructions, and to interact appropriately with the general public. Dr. Hennings added that Workman is capable of understanding and remembering one- to two-step instructions, carrying out and maintaining the concentration and persistence necessary to perform one- to two-step tasks, engaging in appropriate interactions with co-workers and supervisors, and occasionally interacting with the general public.

         Also on May 7, 2011, Dr. Hennings completed a psychiatric review technique assessment. (Tr. 90-91.) Dr. Hennings concluded that the limitations imposed by Workman's mental impairments failed to satisfy listings 12.06 (anxiety-related disorders) and 12.10 (autistic disorders).

         Between September 2011 and January 2012, Workman was treated for depression at the Douglas County Mental Health Division. (Tr. 396-411.) In a discharge summary report, social worker Stacy Nielsen (“Nielsen”) concluded that Workman's Global Assessment of Functioning (“GAF”) was sixty-one, [3] and noted that Workman had been diagnosed with mild depression and had a history of ADD and Asperger's Syndrome. Neilsen reported that ongoing therapy was unwarranted because Workman reported that her “symptoms of depression are being managed through exercise, maintaining with her church and developing a ministry mission and attending [Umpqua Community College].” (Tr. 396-97.) In a mental status examination report, William Conley (“Conley”), a licensed therapist, also noted that Workman's behavior, thought content, memory, perception, insight, judgment, and intellectual functioning were all within normal limits. (Tr. 402-04.)

         Not long after she began receiving treatment at the Douglas County Mental Health Division, Workman was referred to Dr. Allan Kirkendall (“Dr. Kirkendall”) for a psychological evaluation. (Tr. 389-92.) In a psychological evaluation report dated October 4, 2011, Dr. Kirkendall observed that Workman (1) complained primarily of difficulties sustaining attention without the ADD medication she stopped taking in 2006, chronic headaches, her fiancé's “significant emotional and legal troubles, ” and a speech impediment, which “make[s] it difficult for her to be around people” because she was teased so often in the past, (2) “did not appear to exaggerate difficulties” and was “not seen as malingering, ” (3) exhibited “some symptoms” of posttraumatic stress disorder, (4) has a “marked speech impediment” and a past diagnosis of Asperger's Syndrome, which was consistent with “some of the odd behaviors” Workman exhibited during the evaluation, (5) appears to have “survived a very chaotic and at times abusive childhood, ” appears to be able to “understand and remember instructions given to her most of the time, ” appears to have “some ability to maintain concentration and attention, ” and appears to be suffering from “some social anxiety, ” and (6) can “take care of her own activities of daily living with minimal assistance but she's not able to manage her own day-to-day affairs or effectively plan for the future[.]” (Tr. 390-92.)

         Based on the foregoing, Dr. Kirkendall's diagnoses were: Axis I-Asperger's Syndrome, generalized social anxiety, and “[r]ule out” posttraumatic stress disorder, [4] Axis II-no diagnoses, Axis III-chronic headaches, Axis IV-the lack of “any primary support group beyond her elderly grandmother, ” the fact that Workman “may well be involved with an older predatory male, ” “marked economic problems, ” “problems accessing healthcare service, ” and the fact that Workman “is currently living in a shelter for homeless teenagers, ” and Axis V-a GAF score of fifty.[5]

         On March 26, 2012, Dr. Kordell Kennemer (“Dr. Kennemer”), a non-examining state agency psychologist, completed a mental residual functional capacity assessment. (Tr. 117-18.) Dr. Kennemer agreed with Dr. Hennings' findings that Workman is (1) not significantly limited in thirteen categories of mental activity relating to an individual's “understanding and memory limitations, ” “sustained concentration and persistence limitations, ” and “social interaction limitations, ” (2) moderately limited in her ability to understand and remember detailed instructions, carry out detailed instructions, and interact appropriately with the public, and (3) capable of understanding and remembering one- to two-step instructions, carrying out and maintaining the concentration and persistence necessary to perform one- to two-step tasks, engaging in appropriate interactions with co-workers and supervisors, and occasional interaction with the public. (Tr. 117-18.)

         Also on March 26, 2012, Dr. Kennemer completed a psychiatric review technique assessment, agreeing with Dr. Hennings' finding that Workman does not satisfy listings 12.06 and 12.10. (Tr. 115-16.)

         In a letter dated July 8, 2013, Jason Wilkey (“Wilkey”), an employment support specialist at Portland Habilitation Center, Inc., indicated that his company's “mission is to train and employ persons with severe disabilities, ” that an initial review of Workman's “disability status” had been completed, and that Workman was “being placed on the primary disability wait list for training” because an initial review of her records suggested that she was “unable to engage in normal, competitive employment over an extended period of time.” (Tr. 486.) Between July 15, 2013 and August 20, 2013, Workman participated in a janitorial training program through Portland Habilitation Center, Inc., and was paid “by Oregon state minimum wage standards.” (Tr. 478-85.) Workman was terminated from the training program for excessive absenteeism. (Tr. 478.)

         On July 16, 2014, Workman appeared and testified at a hearing before an Administrative Law Judge (“ALJ”).[6] (Tr. 37-75.) Workman testified that she rides the bus as her primary mode of transportation and does “[n]ot usually” have any problems, but has “gotten lost a couple of times even with the directions, ” she took college level computer classes in 2012, but lost her financial aid because she “failed too many classes, ” she participates in church activities, she got married in May 2012 and has two young children (at the time, one was nineteen months old and the other was three months old), her husband quit his job in May 2014 because she “was struggling too much” with childcare, and because he discovered that his employer was involved in “marijuana activities, ” and the State of Oregon conducted a parental fitness evaluation and found that her children “were safe in [her] care with [her] husband working [twelve] hours a day[.]” (Tr. 41-47, 55.) Workman also agreed that caring for her two children while her husband worked was equivalent to a “full-time job, ” but she testified that she does not believe she can sustain full-time employment because she will “be in the middle of doing something” and she “won't know what [she is] doing . . . and [will] basically have to stop until [she] basically can recover, ” and because she worries about her “seizures, ” which had recently resulted in a rib injury. (Tr. 49.) Workman further testified that she “had a speech therapist” in high school and participated in an Individualized Educational Program “for kids that needed extra help, ” she received “a regular high school diploma, ” she posts on Facebook “once in a while, ” and she enjoys drawing, going on walks with her husband, playing on the computer, and writing down prayers. (Tr. 51-56.)

         The ALJ posed hypothetical questions to a Vocational Expert (“VE”) who testified at Workman's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Workman's age, education, and work experience could perform work “at all exertional levels” that involve understanding, remembering, and carrying out “unskilled, routine, and repetitive work, ” “no more than occasional contact with supervisors, ” and working “in proximity to co-workers, ” but does not involve “a requirement for talking, ” providing “direct service to the general public, ” or working in “a team or cooperative effort” with co-workers. (Tr. 68-69.) The VE stated that the hypothetical worker could be employed as a laundry laborer, fish cleaner, and garment folder.

         Responding to the ALJ's second hypothetical, the VE confirmed that the hypothetical worker could be employed in the jobs above, even if she could not be exposed to unprotected heights or hazards. Responding to the ALJ's follow-up questions, the VE testified that employers usually “tolerate somewhere between six and ten absences per year” (i.e., “less than one per month”), and an employee would be fired for being off task more than fifteen percent of the day. (Tr. 70.)

         Workman's attorney also posed questions to the VE who testified at Workman's hearing. In response to those questions, the VE confirmed that he would be cautious about placing an individual who suffers from seizures in the fish cleaner position because it involves working with sharp tools. The VE also testified that the hypothetical worker (1) would still need to communicate verbally with her supervisors at times, even if the job in question did not include a talking requirement, (2) would be terminated if she needed additional breaks outside of the three provided, was ten minutes late to work “week after week, ” performed at a pace that was ten percent slower than expected and failed to remedy the problem, or “was only able to sustain activities at a pace that was [fifteen percent] off task, ” and (3) “might” be terminated if she “could not manage social interactions” or “lacked the ability to respond appropriately to supervision” fifteen percent of the time, although it “would depend on the behavior and other factors.” (Tr. 70-73.)

         On August 6, 2014, Workman's attorney referred her to Dr. Scott Alvord (“Dr. Alvord”) for a psychological evaluation. (Tr. 516-23.) As part of his evaluation, Dr. Alvord interviewed Workman and her husband, reviewed “limited historical records, ” and administered, inter alia, the Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”). (Tr. 522.) On WAIS-IV, Workman obtained a full-scale IQ score of seventy-seven, a verbal comprehension score of seventy-nine, a perceptual reasoning score of seventy-eight, a working memory score of seventy-seven, and a processing speed score of seventy-seven. Workman's scores on the WAIS-IV, when compared with Workman's “significantly higher” scores on the WISC-IV administered in 2008, led Dr. Alvord to (1) “suspect” there had been a “dramatic” decline in Workman's “overall intelligence, as well as memory, ” thus “highlighting the probability of [a] cognitive disorder presumably associated with a history of seizures, ” and (2) conclude that “it is likely [Workman] also has historically met the diagnostic criteria for a learning disorder [not otherwise specified].” (Tr. 517, 523.)

         In his evaluation report, Dr. Alvord also noted that (1) Workman “was not judged to be an overly reliable historian, ” (2) Workman's memory impairment is “secondary to a cognitive disorder related to a premorbid developmental disorder exacerbated by history of a seizure disorder, ” (3) Workman had what Dr. Alvord perceived to be two absence seizures during their encounter, [7] (4) Workman “asked to use the bathroom to get a drink of water” three times during the evaluation and “[o]n all three occasions she was unable to find her way back to [Dr. Alvord's] office despite the fact that the bathroom was across the hall and one door down, ” and on one occasion Dr. Alvord was “forced to find her waiting in the waiting room, ” (5) “[i]t is unclear why [Workman] is not being treated with seizure medications, ” (6) Workman complained of anxiety, depression, abuse by her grandmother, and of being robbed of $2, 000, (7) Workman “presented as flushed and perspiring with a quavering voice and psychomotor hyperactivity/physically manifested anxiety, ” (8) Workman attends to her activities of daily living “independently, but her husband said that he often has to remind her to shower or change clothing, ” (9) “[v]alidity issues were not suspected” and Workman's test results “are judged to slightly underrepresent her neurocognitive functioning secondary to anxiety/minimal lack of continuity due to seizure symptoms and head pain, ” and (10) anxiety “likely impacted [Workman's] performance on testing” during the evaluation, which “could be extrapolated to suggest that her performance in any stressful situation will be significantly impacted.” (Tr. 517-23.)

         Based on the foregoing, Dr. Alvord's diagnoses were posttraumatic stress disorder, pervasive developmental disorder not otherwise specified, rule out a learning disorder not otherwise specified, cognitive disorder not otherwise specified (Axis I), borderline intellectual functioning (Axis II), seizure disorder “deferred to medical” (Axis III), psychosocial stressors (e.g., limited social interactions, financial strain, occupation limitations, history of assault, history of childhood abuse) (Axis IV), and a GAF score of forty to forty-five (Axis IV).[8] (Tr. 523.)

         Also on August 6, 2014, Dr. Alvord filled out a Mental Residual Functional Capacity Assessment at the request of Workman's counsel. (Tr. 525-28.) In the assessment, Dr. Alvord opined that Workman suffers from a “Category IV” level of impairment (i.e., precludes performance for fifteen percent or more of a seven-and-a-half hour workday) in her ability to remember locations and work-like procedures, understand and remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, sustain an ordinary routine without special supervision, work in coordination with or proximity to others without being distracted by them, complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods, interact appropriately with the general public, accept instructions and respond appropriately to criticism from supervisors, get along with co-workers or peers without distracting them or exhibiting behavioral extremes, be aware of normal hazards and take appropriate precautions, travel in unfamiliar places or use public transportation, and set realistic goals and make plans independently. Dr. Alvord also opined “to a reasonable degree of medical certainty” that Workman will be “unable to perform independently, appropriately, effectively and on a sustained basis” sixty-five percent of the time. (Tr. 528.)

         On October 21, 2014, Workman visited Dr. Andrew Rose-Innes (“Dr. Rose-Innes”), a neurologist, regarding her “seizure-like episodes.” (Tr. 546.) Workman described these episodes as “‘spacing out, ' where she will not recall what she was doing immediately before, ” and her husband recalled instances of Workman “leaving the stove on and walking off while preparing food; walking into traffic, shaking episodes.” (Tr. 546.) Dr. Rose-Innes noted that Workman's husband had “never seen a convulsion” over the course of three years, Workman's “history was only moderately reliable, ” Workman would intermittently “gaze off to one side or the other as if she was daydreaming, ” which “potentially might represent absence seizures, but [is] not characteristic, ” and the remainder of the “neurological examination was within normal limits.” (Tr. 546-48.)

         On October 30, 2014, Workman underwent a magnetic resonance imaging (“MRI”) of her brain after complaining of “seizure-like episodes.” (Tr. 540, 546.) Workman's brain MRI produced a “[n]ormal study” and “[n]o etiology for [a] seizure disorder [was] identified.” (Tr. 540.) Shortly before this time, Workman visited her then-primary care physician, Dr. Joseph Resendiz (“Dr. Resendiz”), and “want[ed] to discuss” treating her seizures with medical cannabis. (Tr. 546, 563.) Dr. Resendiz signed Workman's medical marijuana application the next week. (Tr. 562.)

         In a written decision issued on November 14, 2014, the ALJ applied the five-step process set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), and found that Workman was not disabled. See infra. The Social Security Administration Appeals Council denied Workman's petition for review, making the ALJ's decision the Commissioner's final decision. Workman timely appealed.


         I. ...

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