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Rosenberg v. Colvin

United States District Court, D. Nebraska

September 8, 2014

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


JOHN M. GERRARD, District Judge.

This matter is before the Court on the denial, initially and upon reconsideration, of plaintiff David Lee Rosenberg's application for supplemental security income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. The Court has considered the parties' filings and the administrative record. For the reasons discussed below, the Commissioner's decision will be affirmed.


Rosenberg applied for SSI benefits in February 2011, with a protective filing date of January 25, 2011. T15, 124-129.[1] His claim was denied initially and on reconsideration. T58-70. Following a hearing on May 2, 2012, the administrative law judge (ALJ) found that Rosenberg was not disabled as defined under 42 U.S.C. § 1382c(a)(3)(A), and therefore not entitled to benefits under the Social Security Act. T12-27.

To determine whether a claimant is entitled to disability benefits, the ALJ performs a five-step sequential analysis. 20 C.F.R. § 416.920(a)(4). At step one, the claimant has the burden to establish that he has not engaged in substantial gainful activity since his alleged disability onset date. Id .; Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006). If the claimant has engaged in substantial gainful activity, he will be found not to be disabled; otherwise, at step two, he has the burden to prove he has a medically determinable physical or mental impairment or combination of impairments that significantly limits his physical or mental ability to perform basic work activities. Gonzales, 465 F.3d at 894.

At step three, if the claimant shows that his impairment meets or equals a presumptively disabling impairment listed in the regulations, he is automatically found disabled and is entitled to benefits. Id. Otherwise, the analysis proceeds to step four, but first, the ALJ must determine the claimant's residual functional capacity (RFC), which is used at steps four and five. 20 C.F.R. § 416.920(a)(4). A claimant's RFC is what he can do despite the limitations caused by any mental or physical impairments. Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007). At step four, the claimant has the burden to prove he lacks the RFC to perform his past relevant work. Gonzales, 465 F.3d at 894. If the claimant can still do his past relevant work, he will be found not to be disabled; otherwise, at step five, the burden shifts to the Commissioner to prove, considering the claimant's RFC, age, education, and work experience, that there are other jobs in the national economy the claimant can perform. Id.

Rosenberg alleged disability primarily as a result of mental impairments, including, among other things, attention deficit hyperactivity disorder (ADHD), problems with anger management, disruptive behavior disorder, and a global learning disorder.[2] T162. Rosenberg was born in 1992, and alleges that his conditions became disabling in June 1996. T15, 124. The reason for this date is not clear. In any event, SSI benefits are not awarded retroactively for months prior to the application for benefits. See 20 C.F.R. §§ 416.330 and 416.335. So, the question that was before the ALJ, and which is now before this Court, is whether Rosenberg proved disability from the date of his application, January 25, 2011, through the date of the ALJ's decision, May 2, 2012. See 20 C.F.R. § 416.330.

At step one, the ALJ found that Rosenberg had not engaged in substantial gainful activity since January 25, 2011. T17. At step two, the ALJ found that Rosenberg had the following severe impairments: ADHD, intermittent explosive disorder by history, disruptive behavior disorder/conduct disorder by history, a mood disorder, and a learning disability. T17-18. At step three, the ALJ found that Rosenberg did not have an impairment or combination of impairments that met or equaled a presumptively disabling impairment. T18-19.

The ALJ determined that Rosenberg had the RFC to perform a full range of work at all exertional levels but with several non-exertional limitations. The ALJ found that Rosenberg could perform simple tasks, but was limited to jobs that do not demand attention to details or complicated job tasks or instructions; that he could work in proximity to others, but was limited to jobs that do not require close cooperation and interaction with coworkers, in that he would work best in relative isolation; and that Rosenberg was limited to no interaction or cooperation with the general public. Finally, the ALJ found that Rosenberg retained the ability to maintain attention and concentration for a minimum of 2-hour periods at a time, adapt to changes in the workplace on a basic level, and accept supervision on a basic level. T19-20.

The ALJ found, at step four, that Rosenberg had no past relevant work, and so proceeded to step five. T26 Relying upon the testimony of a vocational expert, the ALJ found that Rosenberg could perform the jobs of kitchen helper, industrial cleaner, and order filler. T26-27, 55. So, the ALJ concluded that Rosenberg was not disabled. T27.

On April 18, 2013, the Appeals Council of the Social Security Administration denied Rosenberg's request for review. T1-4. Rosenberg's complaint (filing 1) seeks review of the ALJ's decision as the final decision of the Commissioner under sentence four of 42 U.S.C. § 405(g), pursuant to 42 U.S.C. § 1383(c)(3). In his appeal to this Court, Rosenberg argues generally that the RFC failed to properly account for all of the limitations caused by his mental impairments.


The Court reviews a denial of benefits by the Commissioner to determine whether the denial is supported by substantial evidence on the record as a whole. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing 42 U.S.C. § 405(g)). Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the conclusion. Id. The Court must consider evidence that both supports and detracts from the ALJ's decision, and will not reverse an administrative decision simply because some evidence may support the opposite conclusion. Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). If, after reviewing the record, the Court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings, the Court must affirm the ALJ's decision. Id.


As a child, Rosenberg was diagnosed with ADHD, intermittent explosive disorder, impulse control disorder, mood disorder not otherwise specified (NOS), and cognitive disorder (NOS).[3] T228-32. He was also diagnosed with learning disabilities, and received special education services throughout his childhood. T47, 339. As a young teenager, Rosenberg participated in intensive psychiatric treatment. After other treatments proved unsuccessful, Rosenberg was referred to an inpatient treatment center in September 2008. T21, 44, 228-236, 365. Upon admission, Rosenberg was diagnosed with (among other things) intermittent explosive disorder, ADHD (NOS), learning disorder (NOS), and conduct disorder, childhood onset, severe. T229. With treatment, Rosenberg's condition eventually showed some improvement, and in December 2009, he was discharged. T37-38, 45, 234-37, 302, 331, 339. Shortly thereafter, Rosenberg moved back in with his grandparents, who had raised him as a child. T43. Rosenberg also returned to school, although he stopped attending after completing the tenth grade. T37.

Following his discharge, Rosenberg began outpatient therapy with Stephanie Morse, LIMHP, and participated in weekly and monthly therapy and counselling sessions. See T157, 383, 406-18. Rosenberg saw his primary care physician, David G. Lindley, M.D., for medication management. See T379-380, 420. From at least 2010, and for the entire period under consideration, Rosenberg has generally taken the same combination of prescription medications (with some adjustments in dosage). This includes two drugs used as mood stabilizers, and another used to treat ADHD. See, e.g., T160, 165, 181, 192, 237, 300, 406, 417, 429.

In June 2010, Morse wrote a letter identifying her concerns regarding Rosenberg's ability to work in a public setting. T415. Morse wrote that Rosenberg was highly irritable and could become enraged when things did not go his way. She said he had trouble sustaining concentration and understanding what he was told, and that he had difficulty compromising and taking redirection from others. Morse wrote that he had a borderline IQ and severe problems with thought processing. However, Morse's treatment notes show that Rosenberg continued to work through therapy and counselling and that over the course of several months, he made some progress. See T406-18. This progress is also reflected in Morse's appraisal of Rosenberg's Global Assessment of Functioning (GAF).[4] In December 2009, Morse rated Rosenberg's GAF as 50, and by mid-2011 she upgraded it to 55 or 60.[5] T406, 418.

On July 16, 2010, Rosenberg met with Lloyd Lee Kimzey, Jr., Ph.D., for a consultative psychological examination. T338. Kimzey's diagnoses were ADHD, combined type, by history; intermittent explosive disorder; disruptive behavior disorder (NOS); Arithmetic Disorder; Reading Disorder; and Disorder of Written Language; as well as rule out personality disorder (NOS). Kimzey assessed Rosenberg with a GAF of 45. T342. Kimzey wrote that Rosenberg had no restrictions on his activities of daily living, but that in the past, Rosenberg had experienced difficulty in maintaining social functioning. T341. Kimzey also noted that it was likely that Rosenberg's behavior would deteriorate under stress. T341. Kimzey concluded:

Sustained attention and concentration are somewhat impaired. David does have the capacity to recall short simple instructions, yet the manipulation of memory data is very difficult. He does appear capable of carrying out instructions under ordinary levels of supervision. Relating to coworkers and supervisors can be reasonable yet caution with regard to boundaries will be necessary. Adapting to environmental change is likely to be difficult.

T342. Kimzey noted that Rosenberg was still receiving a high level of outpatient care, but he "hoped that over time progress will be sufficient to allow for independent functioning, " although it was "likely that such improvements will be slow developing." T342.

On August 6, 2010, agency consultant Patricia Newman, Ph.D., completed two forms: a Psychiatric Review Technique Form (PRTF) and a Mental RFC Assessment. T353, 368. In the PRTF, Newman reviewed Rosenberg's records and concluded that his mental conditions resulted in moderate restrictions in his activities of daily living, and moderate difficulties in maintaining social functioning and maintaining concentration, persistence, or pace.[6] T363. In the Mental RFC Assessment, Newman assessed Rosenberg's ability to perform various work-related tasks. Newman generally found that Rosenberg could understand, remember, and carry out short and simple instructions, but was moderately limited when it came to handling detailed instructions, maintaining concentration for an extended period, and getting along with coworkers and the public.[7] T368-70.

Newman explained that her findings were based upon mental status examinations and intellectual testing, which showed low average to average intellectual ability, attention, and concentration. She had also accounted for Rosenberg's mood fluctuations and personality conditions. T370. Newman acknowledged Rosenberg's history of institutionalization, but noted that with treatment he was able to interact appropriately at home and in his group therapy settings. Newman concluded that Rosenberg possessed the social skills to work in many positions, although he would perform best in jobs where he did not have to interact frequently with others. T370.

Over the following months, Rosenberg continued to meet with Morse and Lindley. The record contains several (brief) treatment notes from Lindley from this period. At a November 2010 appointment, Lindley wrote that Rosenberg was doing "really well and he is very stable with no significant problems." T379. In February 2011, Lindley wrote that Rosenberg was feeling well overall with "no significant problems today." T380. And in December 2010, and February and April 2011, Lindley wrote that Rosenberg's ADHD medication was "working well." T380, 420.

Rosenberg's grandmother, Mary Rosenberg, described her grandson's functioning in a report from February 2011. T153, 160. She wrote that he had a difficult time reasoning things out, and would become frustrated when working on something that he did not understand. This frustration could lead to verbal or physical aggression, or "shutting down and not performing the task." She wrote that he had difficulty utilizing coping skills when he was stressed, had trouble adapting to changes in his routine, needed "constant prompts" to stay on task, had a very short attention span, and could not understand long or difficult instructions. T153, 159. Mary stated that Rosenberg had difficulty understanding monetary transactions and could not shop by himself, and that his social skills were very limited, such that he ...

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