Brown v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is AFFIRMED. Signed by Honorable Wallace Capel, Jr on 12/2/2008. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION B E A T R IC E BROWN, P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:07cv854-WC

M E M O R A N D U M OPINION I. INTRODUCTION B e a trice Brown (Brown) applied for disability insurance benefits pursuant to Title X V I of the Social Security Act, 42 U.S.C. § 1381 et seq. (the Act). Brown's application w a s denied at the initial administrative level. Brown then requested and received a h e a r in g before an Administrative Law Judge (ALJ). Following the hearing, the ALJ also d e n ie d the claim. The Appeals Council rejected a subsequent request for review. The A L J 's decision consequently became the final decision of the Commissioner of Social S ec u rity (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). T h e case is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U .S .C . § 636(c), both parties have consented to the conduct of all proceedings and entry o f a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.
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Ju risd iction (Doc. #10); Def.'s Consent to Jurisdiction (Doc. #11). Based on the Court's re v ie w of the record and the briefs of the parties, the Court AFFIRMS the Commissioner's decision. II. STANDARD OF REVIEW U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous p e r io d of not less than 12 months. 4 2 U.S.C. § 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920 (2006). (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? (3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of " n o t disabled."

A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

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M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 3 5 7 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of q u a lif yin g disability once they have carried the burden of proof from Step 1 through Step 4 . At Step 5, the burden shifts to the Commissioner, who must then show there are a s ig n if ic a n t number of jobs in the national economy the claimant can perform. Id. To perform the fourth and fifth steps, the ALJ must determine the claimant's R e s id u a l Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still a b le to do despite his impairments and is based on all relevant medical and other e v id e n c e . Id. It also can contain both exertional and nonexertional limitations. Id. at 1 2 4 2 -4 3 . At the fifth step, the ALJ considers the claimant's RFC, age, education, and w o rk experience to determine if there are jobs available in the national economy the c la im a n t can perform. Id. at 1239. To do this, the ALJ can either use the Medical V o c a tio n a l Guidelines 4 (grids) or call a vocational expert. Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary o r light work, inability to speak English, educational deficiencies, and lack of job e x p e rie n c e . Each factor can independently limit the number of jobs realistically available

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).
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See 20 C.F.R. pt. 404 subpt. P, app. 2.

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to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a s ta tu to rily-re q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court m u s t find the Commissioner's decision conclusive if it is supported by substantial e v id e n c e . 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such re lev a n t evidence as a reasonable person would accept as adequate to support a c o n c lu s io n ." Richardson v. Perales, 402 U.S. 389, 401 (1971). A reviewing court may n o t look only to those parts of the record which support the decision of the ALJ, but in ste a d must view the record in its entirety and take account of evidence which detracts f ro m the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1 9 8 6 ). [The court must] . . . scrutinize the record in its entirety to determine the re a s o n a b le n e s s of the [Commissioner's] . . . factual findings. . . . No s im ila r presumption of validity attaches to the [Commissioner's] . . . legal c o n c lu s io n s , including determination of the proper standards to be applied in evaluating claims. W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

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III.

ISSUES A. Introduction

Brown was forty-three years old and had completed the ninth grade at the time of th e hearing before the ALJ. (Tr. 22 & 435). Employing the five-step process, the ALJ f o u n d Brown had not engaged in substantial gainful activity at any time relevant to the d ec isio n (Step 1). (Tr. 25). At Step 2, the ALJ found Brown suffered from the severe im p a irm e n ts of: mild congestive heart failure, stable; obstructive sleep apnea; obesity; g a stro e so p h a g e al reflux disease; asthma/COPD, stable; borderline intellectual f u n c tio n in g ; and major depression. Id. Nonetheless, the ALJ found Brown did not p o s s e ss an impairment or combination of impairments that met or equaled the criteria of a n y listed impairment set forth in the Listing of Impairments (Step 3). Id. At Step 4, the A L J determined Brown did not possess the RFC to perform any past relevant work. Id. A t Step Five, the ALJ evaluated Brown's RFC, age, education, and work e x p e rie n c e , as well as testimony from a vocational expert (VE) regarding the availability, in significant numbers, of other work Brown could perform in the national economy. Upon consideration of this evidence, the ALJ determined Brown possessed the RFC to p e rf o rm jobs that exist in significant numbers in the national economy. Id. Consequently, the ALJ found Brown was not disabled within the meaning of the Act. (Tr. 26).

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B.

B ro w n 's Claims

B r o w n ' s only claim is that the Appeals Counsel erred when it denied her request fo r review. (Doc. #13 at 11). IV. D IS C U S S IO N A f te r receiving an unfavorable decision from the ALJ, Brown requested review by th e Appeals Counsel. In her request for review to the Appeals Counsel, Brown presented n e w evidence 5 supporting her claim that her Mild Mental Retardation met Listing 12.05C. (T r. 408-430). Brown argued the new evidence showed deficits in adaptive functioning. (Tr. 404-407). The Appeals Counsel considered the new evidence and denied review. (Tr. 5-8). "The Appeals Council must consider new, material, and chronologically relevant e v id e n c e and must review the case if `the [ALJ]'s action, findings, or conclusion is co n trary to the weight of the evidence currently of record.'" Ingram, 496 F.3d at 1261 (q u o tin g 20 C.F.R. § 404.970(b)). In order to meet Listing 12.05C, a claimant must show " sig n if ic a n tly subaverage general intellectual functioning with deficits in adaptive f u n c tio n in g initially manifested during the developmental period." 20 C.F.R. Part 404, S u b p art P, Appendix 1, § 12.05C (2007).

"With a few exceptions, the claimant is allowed to present new evidence at each s ta g e of this administrative process." Ingram v. Comm'r of Social Sec., 496 F.3d 1253, 1 2 6 1 (11th Cir. 2007); see 20 C.F.R. § 404.900(b). 6

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T h e Commissioner essentially concedes that Brown can show "subaverage general intellec tual functioning" through the results of her IQ test, which revealed a full-scale IQ o f 66 (Tr. 19). However, the Commissioner rightly notes that "the ALJ was not required to find that Plaintiff was mentally retarded based on IQ scores alone." (Doc. #18 at 5); see, e.g., Tindal v. Astrue, 2008 WL 725552 (M.D. Fla. Mar 17, 2008). The plain la n g u a g e of the Listing requires both subaverage intellectual functioning as well as d e f ic its in adaptive functioning. While Brown's full scale IQ of 66 creates a presumption of mental impairment, " th e Commissioner may present evidence of [Brown's] daily life to rebut this p re su m p tio n of mental impairment." Hodges v. Barnhart, 276 F.3d 1265, 1269 (11th Cir. 2 0 0 1 ). Indeed, the evidence surrounding Brown's daily life and her ability to adapt was the basis for the ALJ's rejection of Brown's claim that she met Listing 12.05C. (Tr. 23). T h e new evidence submitted to the Appeals Counsel by Brown did not warrant re v iew of the ALJ's decision because it did not render the ALJ's conclusion contrary to th e weight of the evidence currently of record. "In support of her request for review, [ B ro w n ] submitted an intelligence test administered during the developmental period and sch o o l records from [the] Montgomery Public School System." Pl.'s Brief in Support (D o c . #13 at 12). While most of the intelligence test is illegible, it appears to be a W e c h sle r Intelligence Scale for Children - Revised. (Tr. 413-416). The test's score of 61 a s well as Brown's school records support her claim of subaverage intellectual 7

f u n c tio n in g . However, while much of the new evidence supported the finding that Brown su f f e rs from subaverage intellectual functioning, it failed to establish the deficits in a d a p tiv e functioning requirement of the Listing. Brown argues the evidence did show s h e suffered "substantial deficiencies in multiple adaptive areas, including functional ac ad em ic skills, social/interpersonal skills, self-care, and safety." (Doc. #13 at 15). In s u p p o rt, Brown relies on the 9th edition of the American Association of Mental R e ta rd a tio n 's (AAMR) manual, Mental Retardation: Definition, Classification, and S ys te m s of Supports, to argue that the new evidence showed she has deficits in several of th e AAMR's enumerated adaptive skill areas. (Doc. #13 at 14). While the psychological report that accompanied Brown's intelligence test may h a v e stated that she was "destructive and explosive," and "extremely defensive with her p e e rs ," and that she "wasted time, annoyed others, was easily distracted," "disliked re a d in g math," and had "poor communication[] skills," there is no indication as to the se v e rity of those behaviors. (Tr. 413-430). The AAMR manual requires that the deficits in functioning "fall substantially below the average level of functioning." AAMR manual a t 49. The bare statements contained in the report do not establish that Brown's adaptive f u n c tio n in g in these areas fell substantially below the average level of functioning. T h e Appeals Counsel did however have specific information regarding Brown's a d a p tiv e functioning within the record, which indicated normal adaptive functioning. The 8

A L J discussed Brown's adaptive functioning and set forth his rejection of her claim of m e n ta l retardation based on her ability to adapt. (Tr. 21). The ALJ's reasons for rejecting B r o w n ' s claim included her ability to drive a car, do household chores, pay her bills, e sc a p e from prison, and "conduct business within the larger society of things that need to b e done to take care of herself and her children." Id. The ALJ also relied on Doctor V o n c e il C. Smith's expert opinion that Brown's adaptive functioning placed her in the b o rd e rlin e range of intellectual functioning, despite her low IQ score.6 This reasoning w a s sound and was not contradicted by the new evidence. T h u s, the new evidence submitted to the Appeals Counsel did not render the ALJ's c o n c lu sio n contrary to the weight of the evidence currently of record and the Appeals C o u n s e l did not err in denying review. V. C O N C L U SIO N P u r s u a n t to the findings and conclusions detailed in this Memorandum Opinion, the Court concludes that the ALJ's non-disability determination is due to be affirmed. It is , therefore, ORDERED that the decision of the Commissioner is AFFIRMED. A s e p a ra te judgment is entered herewith.

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Dr. Smith administered the IQ test, which found Brown had a full-scale IQ of 66. (Tr. 9

240).

D O N E this 2nd day of December, 2008. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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