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Dyslin v. Commissioner of Social Security

United States District Court, N.D. Iowa, Cedar Rapids Division

February 22, 2019

LARRY D. DYSLIN, II, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          KELLY K.E. MAHONEY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Larry D. Dyslin, II, seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his application for supplemental security income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Dyslin argues that the ALJ erred in failing to resolve an inconsistency between the VE's testimony and the Occupational Information Network (O*NET), that the testimony of the vocational expert (VE) does not support the ALJ's step-five determination that Dyslin could perform other work, and that “overwhelming evidence shows [Dyslin] is unable to function outside of a highly structured, supportive, environment.” Doc. 11. Dyslin also raises (for the first time) an Appointments Clause challenge in reliance on Lucia v. SEC, 138 S.Ct. 2044 (2018). I recommend reversing the Commissioner's decision and remanding for further proceedings.

         I. BACKGROUND [1]

         Dyslin has been institutionalized or imprisoned for much of his life. He lived in treatment centers or homes for troubled youth from ages 12 to 19, with only a brief period back home at age 16 (which ended after he threatened a police officer with a knife). AR 246, 259, 638, 671, 700, 705, 782.[2] As a result, he attended school only through the fifth or sixth grade and completed his education through the eleventh grade at treatment centers. Id. In 1995, at age 18, he was transferred to the Minnesota Security Hospital after assaulting (or attempting to assault) another patient. AR 698, 782. He remained civilly committed there until March 2005, when providers opined that antipsychotic medications had little effect on his behavior and that his “impulsive behavior was actually contrived and controlled.” See AR 777-73. They concluded that he did not suffer from an Axis I diagnosis (like schizophrenia or bipolar disorder) and instead, suffered from antisocial personality disorder. See, e.g., AR 730.

         About a week after his release from the Minnesota Security Hospital in 2005, Dyslin was arrested for breaking into another person's room at the motel where he was living. AR 695, 772. He remained jailed for a few months, and in July 2005, he was once again committed to the Minnesota Security Hospital. AR 695. Providers at the Minnesota Security Hospital did not support his commitment, as they did not believe he met the definition of mentally ill. See AR 695, 736. As such, he was not prescribed antipsychotic medication during his second stint at the Minnesota Security Hospital, although he occasionally attended group therapy sessions. AR 701, 744, 774. He remained civilly committed at the Minnesota Security Hospital for six years, until July 9, 2011. AR 678, 773-78. Treatment notes from this time period reflect “periods of appropriate behavior, ” where he would participate in therapy, play video and card games, and generally interact appropriately with staff and other patients; as well as times where he engaged in threatening, assaultive, or destructive behavior that resulted in his segregation or being charged with crimes. AR 695-97, 701-02, 717-19, 728-29, 732, 761, 766-67.

         After his release in July 2011, Dyslin lived with his sister for about a year, until his arrest on burglary charges. AR 246, 264. As a result of the burglary, he was incarcerated for three years. AR 246. During his imprisonment, providers diagnosed him with bipolar disorder and impulse control disorder, as well as antisocial personality disorder. AR 302, 439. They prescribed various antipsychotic medications to treat Dyslin's mental health. See AR 317-19. They believed that medication improved Dyslin's mental health and that off medication, he was more irritable and threatening. AR 417, 423.

         Dyslin filed the current application for SSI benefits on September 22, 2014, in anticipation of his release from prison. AR 12, 500. Upon his release in December 2014, he lived in homeless shelters in the Des Moines and Cedar Rapids areas. AR 247. It appears he stopped taking his medications, [3] and he reported spending the majority of his time going to the library and playing computer games, although he did attend a few appointments. AR 247, 638-40, 651-53, 655-58, 662-66.

         In July 2015, he was kicked out of the homeless shelter where he had been residing after threatening a guard with a knife. AR 245. His father took him to the emergency room, and he remained hospitalized for eleven days, until his commitment (per court order) to the Independence Mental Health Institute for three months. AR 182, 245, 669, 673-75. At both the hospital and the Independence Mental Health Institute, providers diagnosed Dyslin upon discharge with borderline intellectual functioning, a personality disorder, and an “Axis I” diagnosis-the hospital providers' Axis I diagnosis was paranoid schizophrenia, while the Mental Health Institute providers' Axis I diagnosis was “mood disorder” not otherwise specified (mood disorders include bipolar disorder, but not schizophrenia). AR 255, 258, 674.

         Upon Dyslin's discharge from the Mental Health Institute on October 19, 2015, he remained under an outpatient mental-health committal, and he was released for supervised living with Cedar Valley Community Support. AR 673-75, 792. Through this arrangement, Dyslin lived in an apartment by himself, but staff stored his medications at the office and visited Dyslin three to four days a week for one to two hours. AR 46, 54, 787. Staff helped manage his medications (and ensured he remained compliant), gave him reminders about his personal hygiene, took or traveled with him by bus to appointments and grocery shopping, helped him communicate with providers, and assisted in scheduling appointments and obtaining a monthly bus pass. AR 48-51, 797-801. Dyslin remained under an outpatient committal and continued to receive support from Cedar Valley Community Support through the date of the disability hearing in January 2017. AR 46.

         Dyslin's SSI application was denied initially in January 2015 and upon reconsideration in February 2015 (prior to his commitment to the Mental Health Institute). AR 70-89. Dyslin requested review by an ALJ, who held a hearing on January 25, 2017. AR 29. Dyslin; Sarabeth Tschantz, Dyslin's caseworker for Cedar Valley Community Support; and a VE testified at the hearing. AR 29, 791. On March 13, 2017, the ALJ issued a written opinion following the familiar five-step process outlined in the regulations[4] to find Dyslin was not disabled during the relevant time period of September 22, 2014, to the date of the opinion. AR 12-23. The ALJ found that Dyslin suffered from the following severe impairments: schizophrenia, bipolar disorder, borderline personality disorder, antisocial personality disorder, and impulse control disorder. AR 14. To evaluate whether Dyslin's impairments prevented him from performing his past work or other work (at steps four and five), the ALJ determined Dyslin's residual functional capacity (RFC)[5] and found he could perform work at all exertional levels, but with the following mental limitations:

[H]e could have no more than occasional interaction with supervisors, coworker[s], and the general public. He could no more than occasionally deal with requests, suggestions, criticism, or correction. He should not be required to maintain sustained focus, attention, and concentration for more than two hours at a time. He should not be required to set his own goals or make his own work plans independently. He could not be required to always maintain appropriate personal hygiene and work attire.

         AR 16. Relying on the VE's testimony, the ALJ found that a person with Dyslin's RFC, age, education, and work experience could work as a hand packager, hospital cleaner, or industrial cleaner. AR 22. Thus, the ALJ determined that “there are jobs that exist in significant numbers in the national economy that [Dyslin] can perform.” AR 22.

         The Appeals Council denied Dyslin's request for review on November 28, 2017 (AR 1-3), making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. § 416.1481. Dyslin filed a timely complaint in this court, seeking judicial review of the Commissioner's decision (Doc. 1). See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 11, 15, 17), and the Honorable Leonard T. Strand, Chief United States District Judge for the Northern District of Iowa, referred this case to me for a Report and Recommendation.

         II. DISCUSSION

         A court must affirm the ALJ's decision if it “is supported by substantial evidence in the record as a whole.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); see also 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision.” Kirby, 500 F.3d at 707. The court “do[es] not reweigh the evidence or review the factual record de novo.” Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994). If, after reviewing the evidence, “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 decision.” Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).

         Dyslin argues that the ALJ erred at step five in relying on the VE testimony to determine that significant amounts of work exist that Dyslin could perform. Doc. 11 at 3-6. Dyslin also argues that “overwhelming evidence shows [Dyslin] is unable to function outside of a highly structured, supportive, environment.” Id. at 6-8. Finally, Dyslin argues that the ALJ's appointment to that position violates the Appointments Clause of the United States Constitution. Id. at 9-13.

         A. VE Testimony

         If a claimant cannot perform his past work (or has none), the ALJ evaluates at step five whether the claimant can perform other work that “exist[s] in significant numbers in the national economy (either in the region where [the claimant] lives or in several regions in the country).” 20 C.F.R. § 416.960(c)(1). The Commissioner bears the burden of proving that jobs exist in significant numbers that someone with the claimant's age, education, work experience, and RFC can perform. See Gann v. Berryhill, 864 F.3d 947, 952 (8th Cir. 2017); 20 C.F.R. § 416.960(c)(2). The Commissioner may meet this burden through testimony by a VE, but “VE testimony that conflicts with the [Dictionary of Occupational Titles (DOT)] ‘does not constitute substantial evidence upon which the Commissioner may rely to meet the burden” if the inconsistency is unexplained by the VE. Moore v. Colvin, 769 F.3d 987, 990 (8th Cir. 2014).

Under Social Security Regulation (SSR) 00-4p, the ALJ must “ask about any possible conflict” between VE evidence and “information provided in the DOT.” . . . If there is an “apparent unresolved conflict” between VE testimony and the DOT, the ALJ must “elicit a reasonable explanation for the conflict” and “resolve the conflict by determining if the explanation given [by the expert] provides a basis for relying on the [VE] testimony rather than on the DOT information.”

Id. at 989-90 (alterations in original) (quoting SSR 00-4p, 65 Fed. Reg. 75759, 75760 (Dec. 4, 2000)).

         Here, Dyslin does not argue that the VE's testimony conflicts with the DOT. Instead, Dyslin argues that the VE's testimony conflicts with the O*NET. Both the DOT and O*NET are published by the Department of Labor and contain occupational information, but the O*NET contains more current information (the DOT was last updated in 1991). See Cunningham v. Astrue, 360 Fed.Appx. 606, 616 (6th Cir. 2010); Wennersten v. Colvin, No. 12-cv-783-bbc, 2013 WL 4821474, at *4 (W.D. Wis. Sept. 10, 2013).

         Dyslin relies on cases in which courts upheld a VE's reliance on the O*NET instead of the DOT. See Wennersten, 2013 WL 4821474, at *4-5; Jordan v. Astrue, No. 4:08CV3217, 2009 WL 3380979, at *6 (D. Neb. Oct. 21, 2009), aff'd, 390 Fed.Appx. 611 (8th Cir. 2010) (per curiam). These cases do not stand for the proposition that it is error for a VE to rely on the DOT instead of the O*NET or that the ALJ must resolve conflicts with the O*NET. Dyslin also points to a Sixth Circuit case in which the court rejected the VE's reliance on the DOT “[i]n light of the fact that more current job descriptions were available . . . and that the two [DOT positions] relied on by the VE are not found in O*NET.” Cunningham, 360 Fed.Appx. at 616. Dyslin also points to a decision from a district court in the Sixth Circuit holding, in reliance on Cunningham, that the VE erred in relying on the DOT descriptions from 1977 and 1980 for two positions when one of the positions was not listed in the O*NET and the other DOT position “indicate[d] a substantially [lower] level of specific vocational preparation than” its description in the O*NET (the O*NET indicated the position's “specific vocational preparation” was between 4 and 6, while the DOT indicated it was a 2). Johnson v. Berryhill, No. 4:16-CV-00106-HBB, 2017 WL 2454326, at *7-10 (W.D. Ky. June 6, 2017), reconsideration denied, 2017 WL 4542228 (Oct. 11, 2017).

         Here, the VE testified (and the ALJ found) that a person with Dyslin's RFC (minus the personal-hygiene limitations) could work as a hand packager (DOT 920.587-018), a hospital cleaner (DOT 323.687-010), or an industrial cleaner (DOT 381.687-018) and that 40, 000 of each of these positions exist nationally. AR 22, 65. Dyslin argues that according to the O*NET, 94% of the housekeeping positions require more than occasional contact with others (and are thus, outside the scope of his RFC). He relies on the O*NET entry for “Maids and Housekeeping Cleaners, 37-2012.00, ” which encompasses the DOT “hospital cleaner” position, as well as nine other DOT positions, including a butler position, “laundry worker, ” and “caretaker” (but not the DOT “industrial cleaner” position-that position is instead covered by the O*NET entry for “Janitors and Cleaners, Except Maids and Housekeeping Cleaners, 37-2011.00).”[6 ...


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