Johnson v. Colvin

Filing 34

MEMORANDUM OPINION AND ORDER entered. Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out in order. Signed by Magistrate Judge Bert W. Milling, Jr on 2/3/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ALEXANDER JOHNSON,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 13-0289-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, 15).

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.
33).

Oral argument was waived in this action (Doc. 32).

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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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
thirty-six years old and had completed a high school curriculum,
including a second year in the twelfth grade, but had failed the
graduation exam five times (Tr. 387; see Doc. 15, p. 2); Johnson
had previous work experience as a packing clerk, cashier, lumber
puller, and janitor (Tr. 24).

In claiming benefits, Plaintiff

alleges disability due to migraines, gout, hypertension,
degenerative disc disease, obesity, mental retardation,
depression, and cervical pain and disc bulging (Doc. 14 Fact
Sheet).
The Plaintiff filed a protective application for SSI on
March 29, 2010 (see Tr. 15, 33).

Benefits were denied following

a hearing by an Administrative Law Judge (ALJ) who determined
that although he could not return to his past relevant work,
Johnson was capable of performing specified sedentary jobs (Tr.
15-26).

Plaintiff requested review of the hearing decision (Tr.

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10) by the Appeals Council, but it was denied (Tr. 1-7).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Johnson

(1) The ALJ did not properly consider the opinion

of the examining psychologist; (2) the ALJ erred in finding that
he did not meet the requirements of Listing 12.05C; (3) the ALJ
failed to consider certain submitted evidence; and (4) the
Appeals Council improperly rejected evidence submitted for its
consideration (Doc. 15).

Defendant has responded to—and denies—

these claims (Doc. 28).
Johnson’s first two claims are that the ALJ did not
properly consider the opinion of examining psychologist Blanton
and erred in finding that he did not satisfy Listing 12.05C
requirements.

Because the evidence for both claims is the same,

the Court will discuss them together.
Psychologist Donald W. Blanton examined Johnson, once, on
June 15, 2011 (Tr. 454-58).

Plaintiff reported having had

depression most of his life, accompanied by headaches; he had
been prescribed Elavil daily.

Blanton found Johnson’s mental

retardation “obvious,” though thoughts and conversation were
logical, associations were intact, and affect was appropriately
flat.

He was not confused and was oriented in four spheres;

insight was limited and judgment only fair.

Plaintiff underwent

the Wechsler Adult Intelligence Scale-IV and scored a Verbal

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Comprehension IQ of 61, a Perceptual Reasoning IQ of 71, a
Working Memory IQ of 69, a Processing Speed of 71, and a Full
Scale IQ of 62, placing him in the mild range of mental
retardation.

Johnson also took the Wide-Range Achievement Test

(Revised III) and scored 60, 62, and 67 in reading, spelling,
and arithmetic, respectively, corresponding to, at best, a
fourth grade equivalence.

“The Minnesota Multiphasic

Personality Inventory was omitted due to a combination of this
man’s low intellect and poor reading ability” (Tr. 457).

With

reading assistance from the examiner, Beck’s Depression
Inventory II indicated moderate depression.

In summary, the

Psychologist found Johnson to have
scored in the mild range of mental
retardation on this administration of the
WAIS-IV. This was felt to be a valid
assessment of his current level of
intellectual functioning as there were no
distracting factors during the testing
session and he appeared to put good effort
into this work. Academic achievement
testing reveals that his academic skills
would be of no use to him at all in a
vocational setting making retraining
difficult. Emotionally, he appears to have
had a lifelong problem with depression
worsened by chronic pain.
He was
encouraged to seek out treatment at his
local mental health center.
(Tr. 457).

Blanton’s diagnostic impression was that Plaintiff

suffered from pain disorder with depression, mild mental

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retardation, orthopaedic problems, and headaches.

The

Psychologist further indicated that Johnson had marked
limitations in his ability to understand, remember, and carry
out detailed or complex instructions, use judgment in complex
work decisions, and maintain attention, concentration, and pace
for two consecutive hours.

Blanton thought Plaintiff to have

been depressed for at least a year while his mental retardation
was lifelong.
The Court notes 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);1 see also 20 C.F.R. § 404.1527 (2013).
The requirements for Listing 12.05C are not in dispute.
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

1The 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 October 1,
1981.

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12.05 (2007).

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 (2013).
The ALJ found that Johnson’s migraines, gout, hypertension,
degenerative disc disease, and obesity were severe impairments
(Tr. 17).

The Court notes that the Eleventh Circuit Court of

Appeals has held that, for purposes of Listing 12.05C, the
second prong requirement is met once there is a finding that the
claimant has an additional severe impairment because the
requirement of “significant work-related limitation of function”
“involves something more than ‘minimal’ but less than ‘severe.’”
Edwards by Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir.
1985).

So, in this action, the second prong of Listing 12.05C,

requiring a physical or other mental impairment imposing an
additional and significant work-related limitation of function,
is not in dispute.
However, the first prong is.

The ALJ never specifically

states that Johnson fails to meet the requirements of Listing
12.05C, but clearly finds that he is not mentally retarded.
Specifically, he finds the following:
[T]he claimant initially did not allege
mental limitations. In his initial

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application, he stated that he had problems
standing, walking, sitting, and stair
climbing (Exhibit 45). Moreover, the
claimant has not sought any regular
outpatient mental health treatment during
the period relevant to his adjudication.
Moreover, Dr. Blanton’s diagnoses of pain
disorder with depression and mild mental
retardation are clearly inconsistent with
the other medical evidence of record
(Exhibit 11F). The medical evidence does
not document any emotional problems or
psychiatric diagnoses. Additionally, it is
noted that the claimant did not initially
allege mental imitations because of
disability. Moreover, the claimant has
relevant work as a Packing Clerk, Cashier,
Lumber Puller, and Janitor.
(Tr. 23).

Later, in the determination, in assessing the weight

of the evidence, the ALJ found as follow:
Dr. Blanton diagnosed pain disorder with
depression and mild mental retardation
(Exhibit 11F). These diagnoses are clearly
inconsistent with the other medical evidence
of record, which does not document any
emotional problems or psychiatric diagnoses.
It is also noted that the claimant did not
initially allege mental limitations because
of disability. However, later in his
disability appeals report, he alleged
disability because of feeling depressed,
mood changes, and having trouble sleeping.
Dr. Blanton’s conclusions are inconsistent
with the claimant’s allegations and the
information he provided in his function
report (Exhibit 5E), which do not suggest
any significant mental limitations. The
claimant has high adaptive skills. The
vocational expert testified that the
claimant has past relevant work as a Packing
Clerk, Cashier, Lumber Puller, and Janitor.
Additionally, while the claimant’s school

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grades are difficult to read, it appears
[he] made some D’s and F’s, but he also made
some C’s (Exhibit 6F). The record as a
whole provides no support for the diagnoses
and limitations identified by Dr. Blanton.
Accordingly, I find no basis for concluding
that the claimant has any medically
determinable mental impairment.
(Tr. 24).

With this finding, the ALJ finds, in thought if not

words, that Johnson is not mentally retarded under Listing
12.05C.
The ALJ reported Plaintiff’s IQ score test results (Tr.
22), but did not consider them sufficient to establish
disability.

He emphasized Johnson’s failure to assert mental

retardation initially; though worth considering, the Court would
not deny a Listing finding on that criterion alone.
But the ALJ also noted that Plaintiff had never received
any treatment for mental retardation or depression and had no
documented emotional problems or psychiatric diagnoses (Tr. 2324).

Johnson points out that elementary school records include

a mental retardation diagnosis (Tr. 384) and argues that no
treatment exists for mental retardation; he further notes
medical records with prescriptions for Paxil,2 Sertraline, and
Amitriptyline3 to combat depression (Tr. 185, 336) (Doc. 15, p.

2

Error! Main Document Only.Paxil is used to treat depression.

Physician's Desk Reference 2851-56 (52nd ed. 1998).
3
Error! Main Document Only.Amitriptyline, marketed as Elavil, is
used to treat the symptoms of depression. Physician's Desk Reference
3163 (52nd ed. 1998).

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5).
So while an early education label was attached to Johnson
as mentally retarded, he apparently received no special
education to accommodate his impairment.

And while Johnson took

medication so that he would not be depressed, depression does
not equal mental retardation for social security purposes.
The ALJ found that Plaintiff had high adaptive skills in
that he had the capacity to take care of his personal needs,
perform activities of daily living, and had successfully
performed four different jobs after leaving school.

In reaching

this finding, the ALJ has implicitly found that Johnson had not
demonstrated deficits in adaptive behavior, demonstrating mental
retardation, before the age of twenty-two.
Social Security regulations state that a claimant is
required to demonstrate that he suffered deficits in adaptive
behavior before he turned twenty-two.

20 C.F.R. Part 404,

Subpart P, Appendix 1, Listing 12.05 (2013).

Hodges v.

Barnhart, 276 F.3d 1265, 1266 (11th Cir. 2001) noted “a
presumption that mental retardation is a condition that remains
constant throughout life” and 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.

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The Court finds that the ALJ’s rebuttal of this presumption
is supported by substantial evidence.

He correctly noted

Johnson’s acknowledged independent ability to take care of his
personal needs, do laundry, count change, pay his own bills from
saving and checking accounts, and drive (Tr. 168-75; cf. Tr.
23).
The ALJ also repeatedly noted Johnson’s having performed
four different jobs, as identified by a Vocational Expert (see
Tr. 48-49; cf. Tr. 25).

Though Plaintiff questions its

relevance, the Court finds that his education, though diminished
and not test-based accomplished, nevertheless prepared Johnson
to work daily, successfully for a number of years.

All of these

abilities belie Plaintiff’s presumed “deficits in adaptive
behavior before he turned twenty-two” as he was working and
earning income three years before he reached that age (Tr. 35;
cf. Tr. 123).

Plaintiff has the IQ scores and the additional impairment
required for 12.05C disability, but has not shown that his
mental ability/impairment stands in the way of gainful
employment as it did not when he was twenty-two.

Though one

Psychologist found Johnson’s “lifelong” mental retardation
“obvious” and verifiable with recognized tests, his conclusions
regarding Plaintiff’s marked limitations are not supported
anywhere in the record.

While Plaintiff challenges the ALJ’s

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failure to identify evidence inconsistent with Blanton’s
conclusions, Johnson’s personal abilities and vocational
accomplishment are the proof.

Blanton’s once-done evaluation

does not deny all that came before it.

Plaintiff’s own

testimony—not reviewed herein—is of no benefit to him as the ALJ
found it non-credible (Tr. 23-24), a finding not challenged in
this action.
The Court finds substantial support for the ALJ’s rejection
of Psychologist Blanton’s conclusions.

The Court further finds

substantial support for the ALJ’s conclusion that Johnson did
not meet the requirements of Listing 12.05C.
Johnson next claims that the ALJ failed to consider certain
submitted evidence.

He asserts that although medical evidence

of three cervical epidural injections was made available to the
ALJ more than one month before his determination was entered,
the evidence was not entered into the record or considered (Doc.
15, pp. 8-9).
The Respondent notes Johnson’s failure to prove that the
records were submitted (see Doc. 28, pp. 13-14).

More important

though is that the evidence therein added no support for a
disability finding, as determined by the Appeals Council on
review (Tr. 2, 5, 494-506).

As Plaintiff has not demonstrated

any more than harmless error, the Court finds this claim
meritless.

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Johnson’s final claim is that the Appeals Council
improperly rejected evidence submitted for its consideration
(Doc. 15).

This Court has previously addressed this issue and

entered an Order on November 6, 2013 finding that Plaintiff had
“not made a credible showing that the excluded evidence relates
to the period on or before the ALJ’s decision date” (Doc. 23, p.
3).

As for the evidence appearing in the record (Tr. 193-203,

494-540) and noted considered by the Appeals Council (Tr. 2, 5),
Johnson’s only citation of it in his argument is a reference to
a Neurosurgeon’s statement that he would likely schedule surgery
for mild foraminal stenosis (Doc. 15, p. 10; Tr. 508).

This

provides no evidence sufficient to reverse the ALJ’s reasoned
determination.

Plaintiff’s claim otherwise is without merit.

Johnson has raised four different 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 3rd day of February, 2014.

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

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