Jackson v. Astrue

Filing 21

MEMORANDUM AND OPINION that the Secretary's decision be AFFIRMED and this action be DISMISSED. Signed by Magistrate Judge Bert W. Milling, Jr on 8/24/2011. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
SHIRLEY JACKSON,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 11-0121-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 13-14).

The parties filed written consent and

this action has been referred to the undersigned Magistrate
Judge to conduct all proceedings and order the entry of judgment
in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see
Doc. 19).

Oral argument was waived in this action (Doc. 20).

Upon consideration of the administrative record and the
memoranda of the parties, it is ORDERED that the decision of the
Commissioner be AFFIRMED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
1

Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
twenty-nine years old, had completed a special high school
education (though she did not graduate or pass the G.E.D. test)
(Tr. 47, 52), and had previous work experience as a hair stylist
and child care worker (see Tr. 63).

In claiming benefits,

Plaintiff alleges disability due to depression, back pain, and
mild mental retardation (Doc. 14).
The Plaintiff protectively filed an application for SSI1 on
February 21, 2008 (see Tr. 15; Tr. 114-16).

Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)
who determined that although she was unable to do her past

1

The transcript also records a disability benefits application
(Tr. 117-20), but that application has, apparently, not been pursued
(see Tr. 15; see also Docs. 13-14).

2

relevant work, Jackson was capable of performing specified
unskilled, light work (Tr. 15-33).

Plaintiff requested review

of the hearing decision (Tr. 6-11) by the Appeals Council, but
it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Jackson

(1) The ALJ erred in rejecting the opinion of

Psychologist Donald W. Blanton; (2) the ALJ erred in finding
that she did not meet the requirements of Listing 12.05B or
12.05C; (3) the ALJ erred in finding that she had the severe
impairment of borderline intellectual functioning; and (4) the
ALJ erred in relying on contradictory testimony from the
vocational expert (hereinafter VE) (Doc. 13).
responded to—and denies—these claims (Doc. 15).

Defendant has
The relevant2

medical evidence of record follows.
On April 21, 2008, Psychologist Richard S. Reynolds
examined Jackson who was oriented in four spheres (Tr. 196; see
generally Tr. 195-98).

Plaintiff reported having experienced

hearing music after eating certain foods, but Reynolds said that
she was not very convincing.

Jackson was cooperative and her

2

As Plaintiff’s claims all relate to her mental impairments, the
Court will not discuss the evidence which pertains to only the
physical impairments.

3

thought associations were tight; thought content was logical.
Plaintiff’s affect was appropriate; recent and remote memory
were fair.

Judgment, insight, and decision-making abilities

were intact for Jackson’s level of intellectual functioning.
Plaintiff took the WAIS-III on which she had a Verbal IQ score
of 58, a Performance IQ score of 51, and a Full Scale IQ of 50.
The Psychologist indicated that he considered the results to be
invalid as “Jackson did not appear to put forth appropriate
effort and motivation and actually appeared to intentionally
miss certain test items” (Tr. 197).
Plaintiff was first seen at the Cahaba Center for Mental
Health on May 20, 2008 by Wayne Williams, M.A. and LPC, whose
initial impression was mild mental retardation and dysthymic
disorder with psychomotor features (Tr. 228).

Jackson was seen

by Dr. Timothy S. Baltz, Psychiatrist, on August 11, who had the
impression that she suffered from early onset Dysthymic
Disorder, probable borderline IQ, and a possible slight postconcussion syndrome; he prescribed Lexapro3 and a sleeping
medication (Tr. 226-27).

On September 17, Baltz continued the

medications and affirmed the previous diagnosis (Tr. 217-18).

3

Lexapro is indicated for the treatment of major depressive
disorder. Error! Main Document Only.Physician's Desk Reference 117576 (62nd ed. 2008).

4

On February 18, 2009, the Psychiatrist indicated that Jackson
had been non-compliant with her medications; he re-prescribed
the Lexapro and a sleeping medication (Tr. 216).

At the time of

the next examination, June 17, 2009, Plaintiff was more
talkative and seemed to have gained a little weight;
prescriptions were continued (Tr. 215).
Jackson was seen on September 2, 2009 by Psychologist
Donald W. Blanton who stated that Plaintiff’s “mental
retardation was obvious;” the Psychologist noted that her
“thoughts and conversation were simple but logical” (Tr. 223;
see generally Tr. 222-25).

There was no confusion and although

Jackson denied anxiety, she was particularly restless; her mood
was depressed.

Blanton noted psychomotor retardation; she was

alert and oriented in four spheres.
judgment was fair.

Insight was limited and

Plaintiff took the Wechsler Adult

Intelligence Scale-IV on which she received a Full Scale IQ
score of 57, placing her in the mild range of mental
retardation.

On the Wide-Range Achievement Test (Revised-III),

Jackson scored at the one percentile level.

Blanton indicated

that he thought the testing scores were valid.

The

Psychologist’s diagnostic impression was that she suffered from

5

dysthymic disorder and mild mental retardation and that she had
a GAF of 50.4

Blanton went on to find that Plaintiff’s mental

retardation was a lifelong condition and that she had been
depressed for at least a year.

He expressed the opinion that

she would be markedly limited in her ability to do the
following:

understand and remember simple instructions; carry

out simple instructions; remember detailed or complex
instructions; respond to customary work pressure; use judgment
in detail or complex work-related decisions; and maintain
concentration and pace for at least two hours.
At the evidentiary hearing before the ALJ, Jackson
testified that she was twenty-nine years old and that although
she had a driver’s license, she did not drive because she was
drowsy all of the time (see generally Tr. 40-59, 60-62).
had worked as a babysitter and an Avon salesperson.

She

Plaintiff

had lower back pain for which she took over-the-counter
medications as she had no health insurance.

Her pain is a seven

on a ten-point scale, causing her to lie down four-to-five hours
a day; this makes her tired.

She also gets headaches every

4

Error! Main Document Only.“A GAF score between 51-60 indicates
“moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) or moderate difficulty in social,
occupational or school functioning (e.g., few friends, conflicts with
peers or co-work).” American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders, 32 (4th ed. 1994).

6

other day, making her lie down.

Jackson stated that she got a

certificate for completing high school, in special education;
she never passed the G.E.D.

She eats a lot because she is

depressed; her medications make her sleepy and drowsy.

During

the day, all she does is sleep and watch TV; she does no chores
around the house because she has no energy.
sleeping at night.

Jackson has trouble

Plaintiff sees Dr. Baltz at the mental

health center because her mother thought she needed some help.
Dr. Robert Beatles, testifying as a VE, stated that
Jackson’s past work would be classified as a hair stylist and
child care worker, both light work jobs (Tr. 58-60, 62-67).

The

ALJ then posed a hypothetical question of the VE about specific
jobs Plaintiff would be able to perform.5
The ALJ, in his decision, determined that Plaintiff had the
severe impairment of Borderline Intellectual Functioning which
failed to meet the requirements of any Listing (Tr. 15-33).

The

ALJ determined that Jackson had

the residual functional capacity to perform
a range of light6 work as defined in 20
5

The Court will set this information out in greater detail in
discussing Plaintiff’s fourth claim.
6
Error! Main Document Only.Light work involves lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects
weighing 10 pounds. Even though the weight lifted may be very little,
a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some

7

C.F.R. 416.967(b). In particular, the
claimant can occasionally lift twenty
pounds, frequently lift ten pounds, and
stand and/or walk for six hours. The
claimant can frequently climb, bend,
balance, stoop, kneel, crouch, and crawl.
The claimant can frequently climb ramps or
stairs; however, she should never climb
ladders, ropes, or scaffolds. The claimant
should avoid all exposure to hazardous
conditions, such as unprotected heights or
dangerous machinery. Additionally, the
claimant is limited to simple routine tasks
involving no more than simple, short
instructions, and simple work-related
decisions with few work place changes. The
claimant can have occasional interaction
with the public; frequent interaction with
co-workers; and frequent interaction with
supervisors. The claimant should have no
requirement to read instructions or write
reports.

(Tr. 19) (footnote in original).

The ALJ summarized Jackson’s

testimony but found that objective findings failed to support
her symptoms and limitations (Tr. 21, 28).

The ALJ went on to

summarize the medical evidence of record, specifically
discounting the opinion of Psychologist Blanton (Tr. 29).
Finding that she was unable to perform her past relevant work,
the ALJ listed specific jobs, as testified to by the VE, which

pushing and pulling of arm or leg controls. To be considered capable
of performing a full or wide range of light work, a person must have
the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of
fine dexterity or inability to sit for a long period of time.

8

Jackson would be able to do.

This concludes the record

evidence.
Plaintiff first claims that the ALJ erred in rejecting the
opinion of Psychologist Blanton (Doc. 13, pp. 5-6).

The Court

notes initially that "although the opinion of an examining
physician is generally entitled to more weight than the opinion
of a non-examining physician, the ALJ is free to reject the
opinion of any physician when the evidence supports a contrary
conclusion."

Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir.

1981);7 see also 20 C.F.R. § 404.1527 (2010).
The ALJ found that “Dr. Blanton’s opinion is not entitled
to great weight, because it contrasts sharply with the other
evidence of record from the claimant’s treating physician, which
renders it less persuasive” (Tr. 29).

The ALJ went on to note

that the examination was apparently rendered “with an effort to
generate evidence for the current appeal” (id.).

While the

Court finds the latter reason to be speculative, the Court,
nevertheless, finds it to be, at most, harmless error.
The Court notes that Blanton’s opinion is in stark contrast
to the opinion of Psychologist Reynolds who found Jackson to be

7

The Eleventh Circuit, in the en banc decision Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as
precedent decisions of the former Fifth Circuit rendered prior to

9

intentionally trying to skew the test results.

The behavior

Reynolds described is not inconsistent with statements made by
Plaintiff regarding self-employment income in 2008 (Tr. 126-27;
cf. Tr. 43, 63-64; see also Tr. 17) and the length of time she
worked as an Avon salesperson (Tr. 138; cf. Tr. 61-62).
In any event, Blanton’s opinion of marked limitation finds
no support anywhere else in the record.
psychiatrist found no such restrictions.

Plaintiff’s treating
The Court finds

substantial support for the ALJ’s rejection of Psychologist
Blanton’s opinion.
Jackson next claims that the ALJ erred in finding that she
did not meet the requirements of Listing 12.05B or 12.05C (Doc.
13, pp. 6-7).

The introductory notes to Section 12.05 state

that “[m]ental retardation refers to a significantly subaverage
general intellectual functioning with deficits in adaptive
behavior initially manifested during the development period;
i.e., the evidence demonstrates or supports onset of the
impairment before age 22.”

20 C.F.R. Part 404, Subpart P,

Appendix 1, Listing 12.05 (2010).

Listing 12.05B requires “[a]

valid verbal, performance, or full scale IQ of 59 or less.”

20

C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.05B (2010).

October 1, 1981.

10

Subsection C requires "[a] valid verbal, performance, or full
scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related
limitation of function."

20 C.F.R. Part 404, Subpart P,

Appendix 1, Listing 12.05C (2010).
The Court notes that although the regulations require that
Plaintiff demonstrate that she suffered “deficits in adaptive
behavior” before she turned twenty-two, 20 C.F.R. Part 404,
Subpart P, Appendix 1, Listing 12.05 (2004), the Eleventh
Circuit Court of Appeals, in Hodges v. Barnhart, 276 F.3d 1265,
1266 (11th Cir. 2001), has held “that there is a presumption that
mental retardation is a condition that remains constant
throughout life.”

The Hodges Court further held “that a

claimant need not present evidence that she manifested deficits
in adaptive functioning prior to the age of twenty-two, when she
presented evidence of low IQ test results after the age of
twenty-two.”

Hodges, 276 F.3d at 1266.

Plaintiff has argued that the ALJ failed to take the Hodges
presumption into consideration.

Specifically, she argues that

the Listing requirements have been met as demonstrated by her
poor academic achievement, home living skills, and self-care and
health skills (Doc. 13, p. 7).
11

In his decision, the ALJ admitted that, “[a]t first glance,
it might be argued that the claimant meets Medical Listing
12.05” (Tr. 18).

He went on to find, though, that “the medical

evidence does not include any objective evidence establishing
that the claimant was diagnosed with mental retardation prior to
age 22” (id.).

The ALJ went on to note that Jackson’s

activities of daily living, her caring for her children, and her
provision of daycare services refuted any assertion that she had
demonstrated sufficient deficits in adaptive functioning (id.).
The Court finds substantial support for the ALJ’s
conclusion.

While Hodges does provide a presumption of lifelong

mental retardation, it is a rebuttable presumption.

The things

to which Jackson points as support for her argument are selfreported and found to be non-credible by the ALJ, a finding not
challenged by Plaintiff in this action.

Furthermore, the ALJ

has correctly pointed out that Jackson has participated in
activities that demonstrate that she did not suffer the adaptive
functioning deficits necessary to meet Listing requirements.
Jackson’s claim that she meets the Listing is without merit.
Plaintiff also claims that the ALJ erred in finding that
she had the severe impairment of borderline intellectual
functioning (Doc. 13, pp. 7-8).

Jackson argues that her IQ
12

scores belie the finding that she functions at such a high
level.
It is true, as Plaintiff argues, that Dr. Baltz did not
make a definitive diagnosis as he consistently indicated that
she had “probable borderline IQ” (Doc. 13, p. 7; cf. Tr. 215-17,
227).

What is more important to this discussion, though, is

that the Psychiatrist did not find that Jackson was mentally
retarded.

As pointed out by the ALJ, the record evidence

demonstrates that Plaintiff has functioned at a higher level
than a mentally retarded person would function.

Even if the

results from the IQ test given by Blanton are valid, Jackson has
greater abilities than would be expected by the test results.
Ultimately, these abilities are more important than the test
results.

Plaintiff’s claim otherwise is without merit.

Finally, Jackson claims that the ALJ erred in relying on
contradictory testimony from the VE (Doc. 13, p. 8).

Plaintiff

is referring to a hypothetical question posed by the ALJ which
queried as follows:

If you consider a person the claimant’s age,
education, past relevant work, and the
hypothetical individual is limited to light
exertional level with lifting and carrying
abilities of 20 pounds occasionally, ten
pounds frequently, standing/walking six
hours in an eight hour work day. Further,
13

that this hypothetical individual would be
limited to frequent climbing, bending,
balancing, stooping, kneeling, crouching,
and crawling; frequent ramps and stairs; no
ladders, ropes, or scaffolds; no exposure to
hazardous conditions such as unprotected
heights, dangerous machinery; would be
limited to simple routine tasks involving no
more than simple, short distractions, simple
work-related decisions with few work place
changes. Further, that this person would be
limited to occasional interaction with the
public, frequent interaction with coworkers
and supervisors. There would be no
requirements to read instructions or write
reports in any of those jobs. Would this
hypothetical individual be able to perform
any of the past relevant work of the
claimant?

(Tr. 64-65).

The VE noted that requiring simple work would

eliminate semi-skilled work and stated that Jackson would not be
able to do her past work (Tr. 65).

When queried by the ALJ if

there were other jobs which met the hypothetical, the VE listed
sewing machine operator, poultry worker, and shirt presser (Tr.
65-66).
Plaintiff’s claim focuses on the fact that the job of
sewing machine operator is a semi-skilled position, as
acknowledged by the VE, and that the ALJ adopted the VE’s
testimony as his own, finding that Jackson could perform these
three types of jobs (Doc. 13, p. 8; cf. Tr. 33).
The Court finds that this is harmless error.
14

As the VE

listed two other jobs, poultry worker and shirt presser, which
are not semi-skilled, the ALJ met his burden of showing that
there are jobs in the economy which Plaintiff can perform.

The

ALJ’s listing of the sewing machine operator position, though an
error, is of no moment in light of the other findings.
Jackson has raised four claims in bringing this action.
All are without merit.

Upon consideration of the entire

record, the Court finds "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Perales, 402 U.S. at 401.

Therefore, it is ORDERED that the

Secretary's decision be AFFIRMED, see Fortenberry v. Harris, 612
F.2d 947, 950 (5th Cir. 1980), and that this action be
DISMISSED.

Judgment will be entered by separate Order.

DONE this 24th day of August, 2011.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

15