Densmore v. Astrue

Filing 15

MEMORANDUM OPINION. Signed by Honorable Wallace Capel, Jr on 9/16/10. (djy, )

D e n s m o r e v. Astrue (CONSENT)

D o c . 15

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION S A N D R A RUTH DENSMORE, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 3:09cv915-WC

M E M O R A N D U M OPINION
I. INTRODUCTION P lain tiff Sandra Ruth Densmore applied for supplemental security income under Title X V I of the Social Security Act ("the Act"), 42 U.S.C. §§ 1381-1383c. Her application was d e n ie d at the initial administrative level. Plaintiff then requested and received a hearing b e f o re an Administrative Law Judge (ALJ). Following the hearing, the ALJ also denied the c la im . The Appeals Council rejected a subsequent request for review. The ALJ's decision c o n se q u e n tly became the final decision of the Commissioner of Social Security (C o m m issio n er).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is n o w before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), b o th parties have consented to the conduct of all proceedings and entry of a final judgment

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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b y the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #14); D e f .'s Consent to Jurisdiction (Doc. #13). Based on the Court's review of the record and the b rief s of the parties, the Court AFFIRMS the decision of the Commissioner. 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 rs o n is unable to engage 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 period o f 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 i r m e n t s 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 sti o 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 "not d is a b le d ."

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. 2

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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, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f jobs in the national economy the claimant can perform. Id. To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines 4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or lig h t work, inability to speak English, educational deficiencies, and lack of job experience. E a c h factor can independently limit the number of jobs realistically available to an
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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. 3

in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre 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 must f in d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U .S .C . § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971); see also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m is s io n e r 's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

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III.

ADMINISTRATIVE PROCEEDINGS P la in tif f was forty-nine years old at the time of the hearing before the ALJ, and had

a high school education (Tr. 17). Plaintiff's past relevant work experience was as a child m o n ito r. Id. At Step 1, the ALJ found Plaintiff had not engaged in substantial gainful a c tiv ity since the alleged onset date. Id. At Step 2, the ALJ found that Plaintiff suffers from th e following severe impairments: mild to moderate receptive and expressive language delay, m ild articulation disorder, borderline intellectual functioning, and personality disorder. (Tr. 1 9 ). However, the ALJ determined that neither Plaintiff's impairments, nor a combination o f her impairments meets or medically equals one of the listed impairments. Id. Next, the A L J found that Plaintiff retained the RFC to perform work activity within the restrictions e x p re ss e d at page 3 of the Mental RFC Assessment form(Tr. 112), along with the following a d d itio n a l limitations: "simple, unskilled, repetitive, and routine tasks; low stress; nonre sp o n sib le or regular general public contact must be brief and superficial; work primarily a lo n e ; require little independent judgment; and routine changes, no multiple or rapid c h a n g es ." (Tr. 20). At Step 4, the ALJ found that Plaintiff is unable to perform past relevant w o rk . Id. Next, the ALJ found that, given Plaintiff's age, education, work experience, and R F C , and after consulting with a vocational expert, "there are a significant number of jobs in the national economy that she can perform," including: "housekeeper, laundry worker, and sm all products assembler." (Step 5) Id. Accordingly, the ALJ determined that Plaintiff had n o t been under a disability during the relevant time period. (Tr. 21).

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IV .

P L A I N T I F F 'S CLAIMS P la in tif f presents three claims for this Court's review: (1) whether "[t]he ALJ failed

to apply the proper legal standards and to state adequate reasons for his conclusions re g a rd in g medical source evidence;" (2) whether "[t]he ALJ failed to apply proper legal s ta n d a rd s by ignoring the testimony of the lay witness, the plaintiff's sister;" and (3) whether " [ t]h e ALJ failed to follow proper legal standards in finding the plaintiff did not meet listing 1 2 .0 5 C." Pl.'s Brief (Doc. #10) at 8 & 11. The Court will address each of these claims b e lo w . A. The medical source evidence

A f te r considering the opinion of the consultive examiner, Dr. Stutts, the ALJ d eterm ined that Dr. Stutts's opinion was "entitled to little probative weight." (Tr. 18). P lain tiff argues that the ALJ failed to apply proper legal standards in rejecting Dr. Stutts's o p in io n and adequately state his reasons for doing so. Specifically, Plaintiff states that s u b s ta n tia l evidence does not support the ALJ's rejection of Dr. Stutts's opinion and that the A L J substituted his own opinion for that of the trained expert. Pl.'s Brief (Doc. #10) at 9-10. W h ile an examining psychologist's opinion is usually treated with deference, an ALJ is free to disregard the opinion if he clearly articulates good cause. Phillips v. Barnhart, 357 F .3 d 1232, 1241 (11th Cir. 2004). "`[G]ood cause' exists when the: (1) treating physician's o p in io n was not bolstered by the evidence; (2) evidence supported a contrary finding; or (3) tre a ti n g physician's opinion was conclusory or inconsistent with the doctor's own medical 6

re c o rd s ." Id. at 1240-41. H ere , the ALJ determined that Dr. Stutts's opinion was inconsistent with record e v id e n c e. Specifically, the ALJ compared Dr. Stutts's diagnosis of social anxiety disorder o r dysthymic disorder with the evidence that Plaintiff lives alone, cooks and cleans, drives, p e r f o r m s yard work and errands, cares for her pet, cares for her own personal needs, reads, s h o p s , leaves the house 3-5 times per week, visits friends, is very active in attending church, g o es to art and craft fairs, gets along well with everyone, and talks on the telephone. (Tr. 18). T h e ALJ also compared Dr. Stutts's opinion that Plaintiff had moderate to marked limitations in the ability to maintain social functioning and respond appropriately to co-workers with e v i d e n c e that Plaintiff is very active attending church, shops, attends arts and craft fairs, v i s i t s with others, and talks to others on the phone. Id. Because the ALJ determined that th e se activities were inconsistent with Dr. Stutts's diagnosis, he accorded the opinion little p ro b a tiv e value. T h e ALJ's determination is supported by substantial evidence. In addition to the inco n sisten cies with the record evidence, Dr. Stutts's opinion appears to be at odds with Dr. S u m m e rlin 's findings that Plaintiff denied experiencing severe depression or anxiety, she had an average ability to maintain attention and concentration, and that her affect and mood were a p p ro p ria te . (Tr. 18). Further, Dr. Dennis, the non-examining state agency medical

e x a m in e r, determined that Plaintiff was only mildly restricted in her activities of daily living, h a d moderate difficulties in maintaining social functioning, moderate difficulties in 7

m aintaining concentration, persistence, or pace, and had no episodes of decompensation. (Tr. 1 2 4 ). Accordingly, the Court finds no error in the ALJ's decision to disregard Dr. Stutts's o p in io n . B. T e s tim o n y of the Lay Witness

A t the hearing before the ALJ, Plaintiff's sister, Ms. Henry, testified that Plaintiff's lim ita tio n s would limit her ability to sustain competitive work because she would not v o lu n te e r information, had problems in school, suffered a lifelong history of shyness, had tro u b le communicating, was slow, and did not manage time well. (Tr. 148-150). When the A L J asked the VE to consider a hypothetical person who suffered from the limitations d e sc rib e d by Plaintiff and Ms. Henry, and asked the VE if such a person was capable of any w o rk , the VE stated that such a person would not be capable. (Tr. 154). While the ALJ e x p re s s ly rejected Plaintiff's testimony as not credible, (Tr. 20), he did not discuss Ms. H e n ry's testimony. Plaintiff argues that the ALJ's failure to expressly reject Ms. Henry's testimony was, " in effect, an acceptance of the testimony as credible; therefore, his finding that the [ P ]la in tif f can perform competitive unskilled work is not supported by substantial evidence a n d [Plaintiff] is entitled to a finding of disability." Pl.'s Brief (Doc. #10) at 11. Defendant a rg u e s that the ALJ's failure to discuss Ms. Henry's testimony is not reversible error and d o e s not mean that the ALJ failed to consider it. Def.'s Brief (Doc. #11) at 9-10. 8

First, it is not fatal to the ALJ's decision that he failed to discuss every piece of e v id e n c e submitted for his consideration. See Wilkinson v. Comm'r of Soc. Sec., 289 F. A p p 'x . 384, at 386 (11th Cir. 2008) ("ALJ was not required to list in detail every bit of e v id e n c e he relied on to reach [his] decision."); Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th C ir. 2005) ("[T]here is no rigid requirement that the ALJ specifically refer to every piece of e v id e n c e in his decision."). The Court will not reverse "so long as the ALJ's decision, as was n o t the case here, is not a broad rejection which is not enough to enable [this Court] to c o n c lu d e that [the ALJ] considered her medical condition as a whole." Id. (quoting Foote, 6 7 F.3d at 1561). Instead, the Court will look to "whether the ALJ's conclusion as a whole w a s supported by substantial evidence in the record." Id. Second, that the ALJ considered and rejected Ms. Henry's testimony is obvious from th e record. See Hutchinson v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986) (recognizing th a t an ALJ may make implied findings). Ms. Henry's testimony was similar to Plaintiff's th a t Plaintiff's limitations precluded work. The ALJ expressly rejected Plaintiff's testimony a s inconsistent with the RFC and, thus, implicitly rejected Ms. Henry's testimony. See O s b o r n v. Barnhart, 194 F. App'x 654, 666 (11th Cir. 2006) ("Even if the ALJ fails to make a n explicit credibility determination as to a family member's testimony or statements, h o w e v e r, we will not find error if the credibility determination was implicit in the rejection o f the claimant's testimony."); see also Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1 9 8 3 ).

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F u rth e r, it is clear the ALJ considered Ms. Henry's testimony when he asked the VE the hypothetical question, taking into account Ms. Henry's testimony. In relying on the VE's te s tim o n y that there were jobs available that fit within the RFC determination, the ALJ r e je c te d Ms. Henry's testimony. Similar to Dr. Stutts's opinion, Ms. Henry's (and Plaintiff's) te stim o n y regarding Plaintiff's ability to work was inconsistent with record evidence re g a rd in g her daily life activities, and Dr. Dennis's opinion. Accordingly, the ALJ was free to reject Ms. Henry's testimony. C. Listing 12.05C

P lain tiff argues "the ALJ committed error by failing to find that [she] met the criteria u n d e r 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05(C) [(Listing 12.05C)]." Pl.'s Brief (Doc. # 1 0 ) at 12. Listing 12.05C, the mental retardation section of the Listing of Impairments (L is tin g s ), is met with "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related lim ita tio n of function." Listing 12.05C. Generally, a claimant meets the criteria for presumptive disability under s e c tio n 12.05(C) when the claimant presents a valid I.Q. score of 60 to 70 in c lu s iv e , and evidence of an additional mental or physical impairment that has m o re than "minimal effect" on the claimant's ability to perform basic work a c tiv itie s . See Edwards by Edwards v. Heckler, 755 F.2d 1513, 1517 (11th Cir. 1 9 8 5 ). This court, however, has recognized that a valid I.Q. score need not be c o n c lu s iv e of mental retardation where the I.Q. score is inconsistent with other e v id e n c e in the record on the claimant's daily activities and behavior. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992). 10

P la in tif f 's arguments in support of this claim appear to rely on a misunderstanding of the record. Plaintiff states that the ALJ ignored Plaintiff's IQ scores as reported by Dr. S u m m e rlin and Psychologist Dr. Thornton, and instead, relied on his own lay opinion to state that Plaintiff suffered borderline intellectual functioning rather than mental retardation. In f a ct, the ALJ relied on Dr. Summerlin's diagnosis that Plaintiff was in the borderline in te lle c tu a l functioning range. (Tr. 18). There was no medical opinion put forth in the record that Plaintiff was mentally re ta rd e d . Dr. Summerlin found Plaintiff to be in the borderline intellectual functioning range b ase d , in part, on a verbal IQ score of 70, a performance score of 83, and a full scale score o f 74. (Tr. 128). Dr. Thornton's IQ examination revealed a verbal score of 72, a performance s c o re of 87, and a full scale IQ score of 77.5 (Tr. 108). In addition, both doctors noted that P la in tif f , a high school graduate, was in regular classes at school, with the exception of some sp e c ial education classes in Math and English. Further, the evidence of Plaintiff's daily a c tiv itie s, including her prior marriages, her ability to drive, serving as the primary caretaker f o r her terminally ill first husband, her ability to live by herself, and to make art and crafts, s u p p o rt the ALJ's determination of the RFC and a rejection of Plaintiff's claim that she met th e listing of 12.05C. V I. C O N C L U S IO N T h e Court has carefully and independently reviewed the record and concludes the

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Even Dr. Stutts estimated that Plaintiff was in the borderline range. (TR. 132). 11

d e c is io n of the Commissioner is supported by substantial evidence and is, therefore, A F F I R M E D . A separate judgment will issue. D O N E this 16th day of September, 2010. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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