Ash v. Social Security Administration

Filing 17

MEMORANDUM AND ORDER affirming the final determination of the Commissioner; and dismissing 2 Plaintiff's Complaint with prejudice. Signed by Magistrate Judge Joe J. Volpe on 12/2/2014. (srw)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
KAREN ASH,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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No. 3:13CV00110-JJV

MEMORANDUM AND ORDER
Plaintiff has appealed the final decision of the Commissioner of the Social Security
Administration to deny her claim for disability insurance benefits (DIB) and supplemental security
income (SSI). The Administrative Law Judge (ALJ) concluded that Plaintiff had not been under a
disability within the meaning of the Social Security Act, because jobs existed in significant numbers
that Plaintiff could perform despite her impairments. (Tr. 8-21.) The Appeals Council denied
Plaintiff’s request for a review of the ALJ’s decision, making the ALJ’s decision the final decision
of the Commissioner. (Tr. 1-3.)
This review function is extremely limited. The Court's function on review is to determine
whether the Commissioner's decision is supported by substantial evidence on the record as a whole
and to analyze whether Plaintiff was denied benefits due to legal error. Long v. Chater, 108 F.3d
185, 187 (8th Cir. 1997); see also, 42 U.S.C. § 405(g). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996).
In assessing the substantiality of the evidence, the Court must consider evidence that detracts
from the Commissioner's decision as well as evidence that supports it; the Court may not, however,
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reverse the Commissioner's decision merely because substantial evidence would have supported an
opposite decision. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
The history of the administrative proceedings and the statement of facts relevant to this
decision are contained in the respective briefs and are not in serious dispute. Therefore, they will
not be repeated in this opinion except as necessary. After careful consideration of the record as a
whole, the Court finds that the decision of the Commissioner is supported by substantial evidence.
In support of her Complaint, Plaintiff argues that the ALJ erred by concluding her mental
impairment did not meet or equal a Listing. (Pl.’s Br. 13-18.) The Court has reviewed the medical
evidence and the Psychiatric Review Technique Form.1 (Tr. 176-181, 216-229, 230-233.) While
Plaintiff clearly suffers from some mental limitations, substantial evidence in the record as a whole
supports the ALJ’s conclusion that Plaintiff’s impairments did not meet or equal all the requirements
of a Listing.
Plaintiff argues she met Listing 12.04, 12.05, 12.06; however, the ALJ only considered
Listings 12.04 and 12.05. (Tr. 13-15.) A claimant is presumed disabled due to an affective disorder
if she establishes the following:
12.04 Affective Disorders: Characterized by a disturbance of mood,
accompanied by a full or partial manic or depressive syndrome. Mood refers to a
prolonged emotion that colors the whole psychic life; it generally involves either
depression or elation.
The required level of severity for these disorders is met when the requirements in
both A and B are satisfied, or when the requirements in C are satisfied.
A. Medically documented persistence, either continuous or intermittent, of one of
the following:

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In addition to the five-step sequential evaluation process, there is a sequential process for
evaluation of mental impairments set out in 20 C.F.R. § 404.1520a. The steps of this process are
documented by the completion of a standard form, the Psychiatric Review Technique Form. 20
C.F.R. § 404.1520a (d).
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1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability of painful
consequences which are not recognized; or
h. Hallucinations, delusions or paranoid thinking; or
3. Bipolar syndrome with a history of episodic periods manifested by the full
symptomatic picture of both manic and depressive syndromes (and currently
characterized by either or both syndromes);
AND

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B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
OR
C. Medically documented history of a chronic affective disorder of at least 2 years'
duration that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or psychosocial
support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the environment would
be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly
supportive living arrangement, with an indication of continued need for such an
arrangement.
20 C.F.R. Pt. 404, Subpart P, App. 1.
A claimant is disabled under Listing 12.05C if she establishes the following:
12.05 Intellectual disability: intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., the evidence demonstrates
or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements in A, B,
C, or D are satisfied.
A. Mental incapacity evidenced by dependence upon others for personal needs (e.g.,
toileting, eating, dressing, or bathing) and inability to follow directions, such that the
use of standardized measures of intellectual functioning is precluded;
OR
B. A valid verbal, performance, or full scale IQ of 59 or less;
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OR
C. 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;
OR
D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least
two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.

20 C.F.R. Pt. 404, Subpt. P, App. 1.
A claimant is considered disabled due to an anxiety related disorder if she establishes:
12.06 Anxiety Related Disorders:
In these disorders anxiety is either the predominant disturbance or it is experienced
if the individual attempts to master symptoms; for example, confronting the dreaded
object or situation in a phobic disorder or resisting the obsessions or compulsions in
obsessive compulsive disorders.
The required level of severity for these disorders is met when the requirements in
both A and B are satisfied, or when the requirements in both A and C are satisfied.
A. Medically documented findings of at least one of the following:
1. Generalized persistent anxiety accompanied by three out of four of the following
signs or symptoms:
a. Motor tension; or
b. Autonomic hyperactivity; or
c. Apprehensive expectation; or
d. Vigilance and scanning; or
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2. A persistent irrational fear of a specific object, activity, or situation which results
in a compelling desire to avoid the dreaded object, activity, or situation; or
3. Recurrent severe panic attacks manifested by a sudden unpredictable onset of
intense apprehension, fear, terror and sense of impending doom occurring on the
average of at least once a week; or
4. Recurrent obsessions or compulsions which are a source of marked distress; or
5. Recurrent and intrusive recollections of a traumatic experience, which are a source
of marked distress;
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
OR
C. Resulting in complete inability to function independently outside the area of one's
home.
20 C.F.R. Pt. 404, Subpart P, App. 1.
A claimant has the burden of proving her condition meets or equals an impairment listed in
Appendix 1. 20 C.F.R. § 404.1525(d) (1997); Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995); see
Marciniak v. Shalala, 49 F.3d 1350 (8th Cir. 1995). The claimant must provide medical findings that
support each of the criteria for the equivalent impairment determination. Selders v. Sullivan, 914
F.2d 614, 619 (5th Cir. 1990). For a claimant to show that her impairment matches a listing, that
impairment must meet all of the specified medical criteria. Marciniak, 49 F.3d at 1353. An
impairment that manifests only some of those criteria, no matter how severely, does not qualify. Id.

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With regard to 12.04, the ALJ concluded Plaintiff did not meet the paragraph “C” criteria
because “there is no evidence of a medically documented history of chronic affective disorder of at
least 2 years duration that has caused more than a minimal limitation of the ability to do basic work
activities,” with one of the three limitations outlined in the listing. (Tr. 14.) The medical evidence
is rather limited in this case and clearly fails to show she meets the requirements of 12.04.
For 12.05, the ALJ considered the “A”, “B,” and “C” criteria of the listings. Id. He
concluded Plaintiff failed to meet any of the criteria. The ALJ largely considered her abilities,
despite her mental limitations. (Tr. 14-15.) The ALJ’s conclusions are supported by the evidence.
Although Plaintiff undoubtedly suffers from some physical and mental limitations, substantial
evidence supports the ALJ’s determination that she was still capable of performing work-related
activities. The ALJ properly focused on Plaintiff’s ability to function despite her impairment, rather
than focusing on her diagnosis. A mental disturbance is not disabling per se; there must be a
functional loss establishing an inability to engage in substantial gainful activity before disability
occurs. Trenary v. Bowen, 898 F.2d 1361, 1364 (8th Cir. 1990). Proof of a disabling impairment
must be supported by at least some objective medical evidence. Marolf v. Sullivan, 981 F.2d 976,
978 (8th Cir. 1992).
Plaintiff had the burden of showing her mental impairments resulted in a marked restriction
of activities of daily living; marked difficulties in maintaining social functioning; deficiencies of
concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner;
or repeated episodes of deterioration or decompensation in work or work-like settings which cause
the individual to withdraw from that situation or to experience exacerbation of signs and symptoms
(which may include deterioration of adaptive behavior). Plaintiff has not met this burden.
Dennis Vowell, II, Psy.D., completed a consultative Mental Diagnostic Evaluation and

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Intellectual Assessment. (Tr. 176-181.) Although he indicated Plaintiff does have some limitations,
these limitations were accounted for when the ALJ concluded Plaintiff could perform a reduced range
of light work. (Tr. 15.) And with the help of a vocational expert, (Tr. 41-47), the ALJ rightly
concluded Plaintiff could perform work despite her limitations.
Plaintiff has advanced other arguments which the Court finds are without merit. It is not the
task of this Court to review the evidence and make an independent decision. Neither is it to reverse
the decision of the ALJ because there is evidence in the record which contradicts her findings. The
test is whether there is substantial evidence on the record as a whole which supports the decision of
the ALJ. E.g., Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996); Pratt v. Sullivan, 956 F.2d 830,
833 (8th Cir. 1992).
The Court has reviewed the entire record, including the briefs, the ALJ’s decision, the
transcript of the hearing, and the medical and other evidence. There is ample evidence on the record
as a whole that "a reasonable mind might accept as adequate to support [the] conclusion" of the ALJ
in this case. Richardson v. Perales, 402 U.S. at 401; see also Reutter ex rel. Reutter v. Barnhart, 372
F.3d 946, 950 (8th Cir. 2004). The Commissioner's decision is not based on legal error.
IT IS, THEREFORE, ORDERED that the final determination of the Commissioner is
affirmed and Plaintiff's Complaint is dismissed with prejudice.
IT IS SO ORDERED this 2nd day of December, 2014.

____________________________________
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE

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