Labor v. Social Security Administration

Filing 13

MEMORANDUM OPINION AND ORDER: There is substantial evidence on the record as a whole to support the ALJ's findings. Labor's complaint is therefore dismissed, all requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge Patricia S. Harris on 1/11/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION

BRENDON G. LABOR

v.

PLAINTIFF

NO. 1:16-cv-00039 PSH

CAROLYN W. COLVIN, Acting Commissioner
of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER

Plaintiff Brendon G. Labor (“Labor”) began the case at bar by filing a complaint
pursuant to 42 U.S.C. 405(g). In the complaint, he challenged the final decision of the
Acting Commissioner of the Social Security Administration (“Commissioner”), a decision
based upon findings made by an Administrative Law Judge (“ALJ”).
Labor maintains that the ALJ’s findings are not supported by substantial evidence
on the record as a whole and offers two reasons why.1 Labor first maintains that his
impairments include borderline intellectual functioning, and the ALJ erred at step two
of the sequential evaluation process when he failed to find that the impairment is severe.
At step two, the ALJ is required to identify the claimant’s impairments and
1

The question for the Court is whether the ALJ’s findings are supported by substantial evidence on
the record as a whole. “Substantial evidence means less than a preponderance but enough that a
reasonable person would find it adequate to support the decision.” See Boettcher v. Astrue, 652 F.3d 860,
863 (8th Cir. 2011).

determine whether they are severe. An impairment is severe if it has “more than a
minimal effect on the claimant’s ability to work.” See Henderson v. Sullivan, 930 F.2d
19, 21 (8th Cir. 1992) [internal quotations omitted]. Once a claimant’s impairments are
identified, and it is determined that they do not meet or equal a listed impairment, the
ALJ is required to consider all of the claimant’s impairments, both severe and nonsevere, in assessing his residual functional capacity.
The evidence relevant to Labor’s intellectual functioning is not voluminous. The
evidence reflects that in September of 1988, or approximately twenty-five years before
the alleged onset date, Labor was seen by a school psychologist for an evaluation and a
determination of whether Labor should continue in special education classes. See
Transcript at 309-311.2 The psychologist administered Wechsler Adult Intelligence Scale
(“WAIS”) testing, and it indicated that Labor had a verbal IQ of seventy-six, a
performance IQ of seventy-one, and a full scale IQ of seventy-three.
In March of 1993, Labor was seen for an assessment of his intellectual functioning.
See Transcript at 367-372. A psychological examiner administered WAIS testing, and
Labor’s scores included a performance IQ of sixty-six. The psychological examiner’s
conclusions and recommendations were as follows:
Findings indicate generally below average intellectual and academic ability.

2

Labor seeks supplemental security income payments pursuant to Title XVI of the Social Security Act.
Although he alleges on onset date of May 7, 1993, the relevant period for his claim began on the day he
filed his application for such payments, i.e., March 22, 2013. The Court will nevertheless briefly consider
evidence prior to March 22, 2013, for the purpose of placing his application in context.

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Mr. Labor appears to be within the [b]orderline range of intellectual
functioning with significant deficits in his ability to make appropriate social
judgments and respond in a socially adequate manner. This deficit will
make it difficult for Mr. Labor to function adequately in a vocational setting
for any sustained period of time. Semi-skilled training, such as that which
might be available at a local vocational-technical training facility, is
feasible. Extensive vocational and personal guidance and assistance are
needed. Provided these services, Mr. Labor may reasonably be expected to
sustain independent functioning by means of low-demand employment. Mr.
Labor’s test performance is commensurate with expectations deprived from
the demonstrated level of formal education and reported academic history.

See Transcript at 372.
In July of 1995, Labor was seen by a psychologist for intelligence testing. See
Transcript at 362-363. The psychologist administered WAIS testing, and Labor’s scores
included a performance IQ of sixty-nine. The psychologist diagnosed a chronic adjustment
disorder, mild mental retardation, and a dependent personality disorder.
The record is silent as to any other testing of Labor’s intellectual functioning until
April of 2013 when he was seen by Dr. Nancy Bunting, Ph.D., (“Bunting”). See Transcript
at 328-333. She administered WAIS testing, and his scores included a full scale IQ of sixtyeight. Although she discounted the accuracy of the score, she nevertheless diagnosed,
inter alia, a “mathematics disorder.” See Transcript at 331.3 With respect to the effects
of the disorder on his adaptive functioning, she opined the following:
The patient’s mother drove him to the appointment today. He had [a

3

A “mathematics disorder” is a type of learning disability in which a person’s mathematical ability
is substantially below average. The disorder can affect, inter alia, the person’s ability to understand
mathematical concepts, perform mathematical calculations, and understand word problems.

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driver’s] license in 2004 but said he only drove on familiar road locally by
himself because he was “not good with directions.” He now shops with his
mother in the month he has been out of prison, and he said that previously
in 2004 he shopped by himself with no problems, e.g., for his sports
autograph collection. He has never used a checkbook. He said he paid his
own bills on time in 2004 when he had his own apartment. He has always
had difficulties making change. He can do household chores like washing
dishes, doing laundry, sweeping or vacuuming, and cleaning. He claimed to
only use a microwave, but it was not clear if that was because that was all
that had been available. He spends his time fixing up the house where they
are living, e.g., painting, doing yard work, watching television, listening to
the radio and other music, using the Xbox to play NASCAR games, and
reading the newspaper and sports books for one hour at a time. He used to
have an autograph collection from various sports figures, but now he enjoys
just going to the Wal-Mart with his mother.
The patient reported he has friends but is not involved in church or any
other group. He has contact with his one neighbor.
The patient communicated and interacted in an immature, but adequate,
manner.
The patient communicated in an intelligible and effective manner when he
wanted to.
The patient has little capacity to cope with the typical mental/cognitive
demands of basic work like tasks if the results of the WAIS testing are valid.
He appeared to make no effort at all on either of the two trials for
Immediate Recall, and he missed with no concern or distress. His digit span
fell in the borderline range, and he counted backward from 20 adequately.
He made no effort on serial 3s though the examiner had expected difficulty
as he has a mathematics disorder. He has not had a job with co-workers and
bosses, but he reports that he was able to handle getting along with other
students and his teachers. He has some ability to deal with the public based
on his behavior in the interview. He can follow instructions and he can
handle work stress and changes.
The patient was reluctant to persist in the interview and testing situation.
He has the capacity to persist at least for short periods of time as he can
read or play a video game for one hour at a time by his report. ...
The patient attended and sustained his concentration in the structured
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testing and interview situation. His digit span fell in the borderline range
and he could count backward from 20 adequately.
The patient has some ability to complete work-like tasks within an
acceptable timeframe ... since there is no evidence that he did his best on
the tests requested.

See Transcript at 331-332. Bunting suspected that Labor was malingering and/or
exaggerating and observed that his “symptom allegations were not congruent with his
presentation.” See Transcript at 332.
Labor sought medical treatment for his other impairments during 2013 and 2014.
See Transcript at 345 (03/25/2013), 344 (06/14/2013), 343 (08/05/2013), 350-355
(04/04/2014), 356-360 (07/07/2014). The progress notes from those examinations offer
no insight into his intellectual functioning, save to note that he has a history of a learning
disorder.
Labor and his mother completed a series of documents in connection with Labor’s
application for supplemental security income payments. See Transcript at 183-192, 195202, 207-214, 244-251. The documents reflect that Labor has difficulty understanding and
following instructions and has trouble completing tasks. He can, though, attend to his
own personal care; prepare simple meals; perform routine household chores such as
cleaning, washing dishes, and vacuuming; perform some yard work; and read, watch
television, and play games during his free time. He has never had a full-time job and
never had any substantial gainful activity.
Labor testified during the administrative hearing. See Transcript at 29-45. He was
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born on February 2, 1971, and was therefore forty-three years old at the time of the
hearing. He graduated from high school, but all of his classes were special education
classes. He has difficulty reading and writing and can perform “a little bit” of basic
mathematics. See Transcript at 32. He has never worked a full-time job and attributed
his inability to hold a job to being “too slow,” specifically testifying that he does not
“work real fast and stuff like that and try to keep up with people ...” See Transcript at
32. Labor lives at a church shelter and helps out with odd jobs around the facility. He
spends his free time watching television, reading sports magazines, and collecting sports
memorabilia.4
The ALJ found at step two that Labor has severe impairments in the form of a
personality disorder, a mathematics disorder, anxiety, and depression. The ALJ assessed
Labor’s residual functional capacity and found that he is capable of performing a full
range of work at all exertional levels but with the following non-exertional limitations:

... the work must not require excellent reading/writing skills. The claimant
requires work that consists of simple, routine, and repetitive tasks.
Interpersonal contact must be incidental to the work performed. The
complexity of one or two step tasks is learned and performed by rote, with
few variables, and requiring little judgment. The supervision required
would be simple, direct, and concrete; the work must be limited to SVP one
or two jobs that can be learned within 30 days.

See Transcript at 13. In so finding, the ALJ gave some weight to the evaluation performed
4

Labor’s mother also testified during the administrative hearing. See Transcript at 45-58. Her
testimony was consistent with his testimony.

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in September of 1988, when Labor was seventeen years old, but gave no weight to the
testing performed in March of 1993 and July of 1995.5 The ALJ additionally gave
“appropriate” weight to Bunting’s opinions, noting her doubts about the reliability of
Labor’s IQ scores. See Transcript at 15.
Substantial evidence on the record as a whole supports the ALJ’s characterization
and consideration of Labor’s intellectual disability at step two. The Court so finds for
three reasons.
First, there is no doubt that Labor has an intellectual disability, and the ALJ so
found. This case, then, does not involve an instance in which the ALJ overlooked or
otherwise ignored a claimant’s intellectual disability.
Second, the ALJ could and did properly rely upon Bunting’s characterization of
Labor’s intellectual disability as a “mathematics disorder” and not borderline intellectual
functioning. It is true that testing performed in March of 1993 and July of 1995, and
testing performed by Bunting in April of 2013, placed Labor’s intellectual functioning in
the borderline and/or mildly mentally retarded range, but the ALJ could and did question
the reliability of the testing. The testing from March of 1993 and July of 1995 occurred
a number of years before the alleged onset date, and Bunting suspected that Labor was
5

The ALJ observed that “other IQ testing in the record [i.e., the testing performed in March of 1993
and July of 1995] does not provide the necessary support for finding of a significant subaverage intellectual
functioning before the claimant’s [twenty-second] birthday. Medical literature explains that an individual’s
intellectual capacity is generally fully formed by the time they are a teenager and that if there are no
traumatic events or other intervening causes to demonstrate loss of cognitive abilities, one’s IQ scores
remain stable throughout their lives. Accordingly, the undersigned gives no weight to the IQ testing
performed after the claimant’s [twenty-second] birthday.” See Transcript at 12.

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malingering and/or exaggerating and discounted the accuracy of his IQ scores. Moreover,
Labor’s activities of daily living are inconsistent with his IQ scores. The record indicates
that he can attend to his own personal care; prepare simple meals; perform routine
household chores; perform some yard work; and read, watch television, and play games
during his free time.
Third, the ALJ could and did properly find that Labor’s “mathematics disorder” is
a severe impairment. The record as a whole, and Bunting’s opinions in particular,
establishes that the disorder has more than a minimal effect on Labor’s ability to work.
It is also worth observing that the assessment of Labor’s residual functional
capacity includes a limitation caused by an intellectual disability. Specifically, the ALJ
found that Labor is capable of performing a full range of work at all exertional levels but
has non-exertional limitations that prevent him from performing anything more than
unskilled work. This case, then, is not an instance in which the ALJ failed to incorporate
a severe intellectual impairment into the assessment of a claimant’s residual functional
capacity.
Labor maintains that the case at bar is identical to Nicola v. Astrue, 480 F.3d 885
(8th Cir. 2007), and a remand is warranted. In that case, there was some evidence to
support a diagnosis of borderline intellectual functioning. Nicola maintained on appeal
that the ALJ erred when he failed to identify the impairment as a severe impairment at
step two. The Commissioner conceded that the ALJ should have included the impairment
as a severe impairment at step two but maintained that the error was harmless. The
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Court of Appeals disagreed and remanded the case as the Court was “persuaded by
Nicola’s assertion and the Commissioner’s concession that the ALJ erred in failing to find
that [the] diagnosis of borderline intellectual functioning was a severe impairment.” See
Id. at 887.
The case at bar is distinguishable from Nicola v. Astrue in at least three respects.
First, there was some evidence to support a diagnosis of borderline intellectual
functioning in Nicola v. Astrue; there is no such evidence in the case at bar. Second, the
ALJ in Nicola v. Astrue failed to find that the claimant’s intellectual disability was a
severe impairment; in the case at bar, the ALJ found that Labor’s “mathematics
disorder” was a severe impairment. Third, the Commissioner in Nicola v. Astrue conceded
that the ALJ should have included borderline intellectual functioning as a severe
impairment; the ALJ in this instance makes no such concession.
Labor offers a second reason why the ALJ’s findings are not supported by
substantial evidence on the record. Labor maintains that the ALJ erred when he failed
to complete a psychiatric review technique. Although the failure to prepare a psychiatric
review technique can be reversible error, see Cuthrell v. Astrue, 702 F.3d 1114 (8th Cir.
2013), Nicola v. Astrue, supra, the record reflects that the two such analyses were
completed in this case. As the Commissioner correctly notes, “[t]he first was performed
by Cheryl Woodson-Johnson, Psy.D., on April 30, 2013, and the second was performed by
Abesie Kelley, Ph.D., on September 23, 2013.” See Document 12 at CM/ECF 6.
Given the foregoing, there is substantial evidence on the record as a whole to
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support the ALJ’s findings. Labor’s complaint is therefore dismissed, all requested relief
is denied, and judgment will be entered for the Commissioner.
IT IS SO ORDERED this 11th day of January, 2017.

UNITED STATES MAGISTRATE JUDGE

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