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Kalnbach v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

July 8, 2019





         Plaintiff Kenneth Kalnbach (“Plaintiff”) brings this action under 42 U.S.C. §405(g), challenging a final decision of Defendant Commissioner (“Defendant”) denying his claim for Childhood Disability Benefits (“CDB”) and Supplemental Security Income (“SSI”) under the Social Security Act. Both parties have filed summary judgment motions which have been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I recommend that Defendant's Motion for Summary Judgment [Docket #17] be GRANTED, and that Plaintiff's Motion for Summary Judgment [Docket #13] be DENIED.


         Plaintiff applied for SSI on April 27, 2015 alleging disability as of March 7, 2014 (Tr. 191). After the initial denial of benefits, he requested an administrative hearing, held on July 11, 2017 in Mount Pleasant, Michigan (Tr. 43). Administrative Law Judge (“ALJ”) Laura Chess presided. Plaintiff, represented by attorney Jessica Gentile, testified (Tr. 51-60) as did Vocational Expert (“VE”) Susan Lyon (Tr. 61-67). On August 29, 2017, ALJ Chess found Claimant was not entitled to either CDB before the age of 18 or SSI as of his 18thbirthday (Tr. 11-38). On April 26, 2018, the Appeals Council denied review (Tr. 1-3). Plaintiff filed for judicial review of the final decision on June 21, 2018.


         Claimant, born March 7, 1997, was 17 at the time of the alleged onset of disability and 20 when ALJ Chess issued her decision (Tr. 38, 191). Plaintiff alleges disability resulting from Fragile X, [1] a learning disability, anxiety, Attention Deficit Disorder (“ADD”), and speech problems (Tr. 215).

         A. Plaintiff's Hearing Testimony

         Plaintiff offered the following testimony.

         He had never worked (Tr. 51). He finished 12th grade and received a certificate of completion (Tr. 51). At the time of the hearing he was attending a program with the goal of transitioning from school to work (Tr. 51). He did not know his height or weight (Tr. 52). He was right-handed (Tr. 52). He did not have a driver's license but held a learner's permit (Tr. 52). He experienced the side effect of sleepiness from prescribed medication (Tr. 52). Consistent with a post-high school teacher's assessment, Plaintiff believed that he had normal or close to normal intelligence (Tr. 52-53). He took “a bit longer” than usual to express himself verbally (Tr. 53). Plaintiff had friends while he was in school (Tr. 53). He took Paxil for anxiety but did not receive counseling (Tr. 54). He was currently working toward getting a job and living on his own (Tr. 54). He was interested in automobile electronics (Tr. 55). Plaintiff could walk for two miles but experienced environmental allergies (Tr. 55). He was able to use a microwave and toaster (Tr. 55).

         In response to questioning by his attorney, Plaintiff testified that speaking in front of a large group of people triggered anxiety (Tr. 56). He also experienced difficulty being in public (Tr. 56). He did not believe that he could work at the same pace as other individuals (Tr. 56). He required help understanding correspondence from the SSA (Tr. 56). His father helped him fill out the application for disability benefits (Tr. 57). He would be unable to complete job tasks following “a list of directions” but could learn new tasks by demonstration (Tr. 57). He sometimes needed something demonstrated more than once or needed reminders following demonstration (Tr. 57). He experienced difficulty performing more than one activity at a time (Tr. 57). He was able to pay for items with cash and calculate the amount of change owed for transactions of 20 dollars or less (Tr. 58). He was unable to do division but could do multiplication with the help of a calculator (Tr. 58). He required extra time to complete projects, assignments, or examinations (Tr. 58). He was unable to perform laundry chores or follow a recipe (Tr. 59). He sometimes required reminders to bathe or groom himself (Tr. 59). He experienced concentrational difficulties but could not think of any concrete examples of such limitations (Tr. 59). Due to the side effect of sleepiness from Paxil, he took a nap every day, adding that while in school, he was able to complete his classes without a nap (Tr. 60). At the time of the hearing, he did not believe that he was ready to live on his own (Tr. 60).

         B. Medical and Academic Evidence

         1. Treating and Educational Sources

         September, 2014 physical health treating records were unremarkable (Tr. 310-314). School records from the same month state that Plaintiff was currently eligible for an “Individualized Education Program” (“IEP”) for continued instruction in written expression and Mathematics Calculation (Tr. 324). School records describe Plaintiff as a “quiet but friendly student” and “very polite and focused” with a slow response time (Tr. 327, 329). Plaintiff reported that he was “unsure of what training he would like to receive after high school, ” but as a high school senior he was encouraged to start resume writing and “career exploration” (Tr. 330). He was placed in general education for all subjects except Science (Tr. 330). Plaintiff professed interest in electronics repair (Tr. 331). Intelligence testing showed scores in the low average range with a “deficit” score in visual matching (Tr. 341). Reading comprehension skills were average (Tr. 342).

         In May, 2015, teacher Debra Schafer completed a questionnaire on Plaintiff's behalf, noting that at various times in the past three years she had provided instruction in English, Reading, and Science (Tr. 246). She assessed Plaintiff's reading skills at the seventh grade level and math and written language “below average” (Tr. 246). In the domain of “Acquiring and Using Information” she found mostly “slight” problems with “obvious” problems in participating in class discussions and oral expression (Tr. 247). In “Attending and Completing Tasks, ” she found at most slight problems with the exception of an “obvious” problems in working at a reasonable pace (Tr. 248). She found no limitation in “Interacting and Relating With Others” or “Moving About and Manipulating Objects” (Tr. 249-250). In the domain of “Caring for Himself, ” she found no problems except for “taking care of personal hygiene” (Tr. 251). In “Health and Physical Well-Being, ” Schafer found only that Plaintiff experienced allergies (Tr. 252).

         December, 2016 medical records note a normal physical exam (Tr. 391). A January, 2017 IEP report notes that Plaintiff had good attendance, was well-groomed, and responded appropriately to authority (Tr. 362). Plaintiff was deemed capable of “directly entering employment after finishing school” with “no” areas of concern (Tr. 372). In March, 2017, “Transitions” instructor Daniel Palmer noted that Plaintiff could read at the eighth grade level, perform mathematical problems at the fourth grade level, and write at the seventh grade level (Tr. 279). In the domain of “Acquiring and Using Information” he found mostly a “serious” problem in participating in class discussions and a “very serious” problem in oral expression (Tr. 280). He otherwise found a lesser degree in other areas in the same domain (Tr. 280). In “Attending and Completing Tasks, ” he found no problems (Tr. 281). He found no limitation in “Interacting and Relating With Others” except for an obvious problem in making and keeping friends (Tr. 282). He found no limitation in “Moving About and Manipulating Objects, ” “Caring for Himself, ” or “Health and Physical Well-Being” (Tr. 283-285). A May, 2017 IEP progress report notes goals of developing communication skills in preparation for work (Tr. 355). Goals to be met by February, 2018 included performing well at job interviews, filling out job applications, and preparing a resume (Tr. 380).

         2. Non-Treating Sources

         In July, 2013, Leon Austin, Psy.D. performed a consultative examination of Plaintiff on behalf of the SSA, noting that Plaintiff had been in special education for the past two to three years (Tr. 296). Plaintiff's father reported that he need reminders to maintain hygiene but liked playing video games and had several close friends (Tr. 297).

         Dr. Austin noted cooperative mannerisms and a normal mood (Tr. 297). Plaintiff appeared fully oriented with normal concentration and the ability to count to 100 by “5s” (Tr. 297). He exhibited good immediate and recent memory with appropriate judgment (Tr. 297-298). Intelligence testing placed him in the “low average” range (Tr. 298). Dr. Austin diagnosed Plaintiff with a learning disorder and academic problems (Tr. 299).

         The same month, Julie Hartley, M.S. CCC-SLP assessed Plaintiff's speech and language abilities, finding no deficiencies in the ability to hear but that receptive language skills, total language skills, and speech and articulation were “below age expectations” (Tr. 302-304). Plaintiff appeared fluent (Tr. 306).

         In June, 2015, Donovan Royal, Psy.D. performed a consultative psychological examination on behalf of the SSA, noting that Plaintiff was currently taking Paxil for anxiety (Tr. 350). Plaintiff reported that he had some friends and had a good relationship with his father and twin sister (Tr. 351). Dr. Royal noted that Plaintiff was “unable to express himself well or recall information” (Tr. 351). He noted that Plaintiff was neatly groomed and cooperative “but not always cognizant of the procedures and the questions asked of him” (Tr. 351). He noted that Plaintiff presented responses in a delayed manner but exhibited a normal mood (Tr. 351-352). Dr. Royal diagnosed Plaintiff with ADD, and learning disorders in Reading, Math, and Written Expression (Tr. 353). He stated that “With proper technical training, ” Plaintiff “may be capable of one-step tasks that do not require prolonged attention or decision-making” (Tr. 353).

         Later the same month, Ron Marshall, Ph.D. performed a non-examining review of the educational, treating, and consultative records on behalf of the SSA, finding that prior to the age of 18, Plaintiff experienced “less than marked limitation” in the domains of “Aquiring and Using Information” and “Attending and Completing Tasks” (Tr. 77). In the domains of “Interacting and Relating to Others, ” and “Moving About and Manipulating Objects” Dr. Marshall found no limitation (Tr. 77). He found less than marked limitations in the domain of “Caring for Yourself” and no limitation in “Health and Physical Well-Being” (Tr. 78). In regard to Plaintiff's condition from the age of 18 forward, Dr. Marshall found mild limitation in activities of daily living, no difficulty in social functioning, and moderate limitation in maintaining concentration, persistence, or pace (Tr. 78-79). Dr. Marshall concluded that Plaintiff could “follow and retain simple instructions, ” work with others, and perform “simple, repetitive tasks in a slow pace work environment” (Tr. 81).

         C. The Vocational Testimony

         VE Susan Lyon observed that Plaintiff had no past relevant work (Tr. 61).

         ALJ Chess posed the following set of limitations to the VE, describing a hypothetical individual of Plaintiff's age, educational level, and lack of past relevant work who could perform work at all exertional levels[2] but had the following non-exertional limitations:

There can be only occasional exposure to dust, fumes, odors, gases, mold and pollen in the work setting. There should be no commercial driving. No. interaction with the public . . . but there could be occasional interaction with co-workers. This individual can perform routine tasks, repetitive tasks and simple tasks defined as those that can be learned within 30 days. There could be only occasional decision making or changes in the work setting. And there should be no production rate or pace work such as work on an assembly line. (Tr. 62).

         The VE testified that the individual could perform the exertionally medium, unskilled work of a laundry worker (40, 000 positions in the national economy) and light, unskilled work of an assembler (94, 000) and packager (61, 000) (Tr. 63). The VE testified that if the above-described individual were further limited to work with instructions given “primarily by demonstration” with “only occasional new learning, ” and only simple mathematical calculations, the job numbers would remain unchanged (Tr. 64). The VE testified that if the same individual also required “direct supervision 10 percent of the workday, ” and, were off task 10 percent of the workday, the numbers would remain unchanged (Tr. 64-65). She testified that if the individual were off task for 20 percent or more during the workday, all competitive employment would be eliminated (Tr. 65).

         In response to questioning by Plaintiff's counsel, the VE stated that the need to be off task for 20 percent or more of the workday, or the need for 60 days of training to learn a job customarily requiring ...

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