Jones v. Social Security Administration

Filing 13

ORDER AFFIRMING THE COMMISSIONER. Signed by Magistrate Judge J. Thomas Ray on 8/20/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
Amanda Jones

Plaintiff

v.

CASE NO. 3:13CV00155 JTR

Carolyn W. Colvin, Acting Commissioner,
Social Security Administration

Defendant

ORDER AFFIRMING THE COMMISSIONER
Amanda Jones seeks judicial review of the denial of her application for
disability insurance benefits (DIB) and supplemental security income (SSI) benefits.
Jones last worked in 2005 as a farm helper.1 Jones applied for DIB and SSI on
October 26, 2009, with an alleged onset date of May 1, 2000.2 3 Jones’s date last
insured (DLI) is June 30, 2007.4 Jones bases disability on learning disability and

1

SSA record at p. 243.

2

Id. at p. 75.

The Commissioner points out in her brief that throughout the decision the ALJ
misstates the alleged onset date as April 1, 2005. Jones does not make any arguments
regarding this error. “[T]he burden of showing that an error is harmful normally falls
upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S.
396, 409-10 (2009). Jones has presented nothing to the Court to establish harm, and
the Court cannot identify any harm from this error. No evidence was presented from
the time period between May 1, 2000, and April 1, 2005. The final determination
would be the same even if the ALJ identified the correct alleged onset date.
3

4

SSA record at p. 131.

depression, and alleges no physical impairments.5
The Commissioner’s decision. The Commissioner’s ALJ determined that
Jones engaged in substantial gainful activity during the period from the alleged onset
date to the date last insured, specifically in the years 2004 and 2005 when Jones
worked as a farm helper.6 Jones had no medically determinable impairment prior to
June 30, 2007.7
After June 30, 2007, evidence established that Jones has severe impairments depression and borderline intellectual functioning.8 The ALJ found that none of
Jones’s severe impairments meet the listings,9 and she can perform the full range of
work at all exertional levels but with the following non-exertional limitations:
interpersonal contact is incidental to work performed; complexity of tasks is learned
and performed by rote, with few variables and little judgment; and supervision

5

Id. at p. 121.

6

Id. at p. 12.

Id. at p. 13. Because the ALJ determined that there was no medically
determinable impairment prior to the DLI, the analysis ended for DIB and continued
only for SSI.
7

8

SSA record at p. 13.

9

Id. at pp. 13-15.
2

required is simple, direct and concrete.10 The ALJ held that Jones can perform past
relevant work as a farm helper.11 In the alternative, the ALJ held that Jones can
perform the positions of house cleaner and motel maid, positions identified by the
vocational expert (VE) as available in the local, regional and national economies.12
Jones’s application was denied.13
After the Commissioner’s Appeals Council denied a request for review, the
ALJ’s decision became a final decision for judicial review.14 Jones filed this case to
challenge the decision. In reviewing the decision, the Court must determine whether
substantial evidence supports the decision and whether the ALJ made a legal error.15

10

Id. at pp. 15-20.

11

Id. at p. 20.

12

Id. at p. 21.

13

Id.

14

See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating, “the
Social Security Act precludes general federal subject matter jurisdiction until
administrative remedies have been exhausted” and explaining that the appeal
procedure permits claimants to appeal only final decisions).
15

See 42 U.S.C. § 405(g) (requiring the district court to determine whether the
Commissioner’s findings are supported by substantial evidence and whether the
Commissioner conformed with applicable regulations); Long v. Chater, 108 F.3d 185,
187 (8th Cir. 1997) (“We will uphold the Commissioner’s decision to deny any
applicant disability benefits if the decision is not based on legal error and if there is
substantial evidence in the record as a whole to support the conclusion that the
claimant was not disabled.”).
3

Jones’s allegations. Jones maintains that the decision of the ALJ is not
supported by substantial evidence because (1) the record does not support the ALJ’s
determination that Jones’s borderline intellectual functioning was not an impairment
prior to the DLI; (2) the record does not support the ALJ’s RFC determination; and
(3) the ALJ did not include borderline intellectual functioning in the hypothetical
posed to the VE. These arguments are not persuasive. The ALJ’s decision is
supported by substantial evidence and no legal error occurred.
Substantial evidence is “less than a preponderance but . . . enough that a
reasonable mind would find it adequate to support the conclusion.”16 For substantial
evidence to exist in this case, a reasonable mind must accept the evidence as adequate
to support the ALJ’s denial of benefits17
Impairment prior to date last insured. Jones maintains that the ALJ erred
in the determination that there was no medically determinable impairment,
specifically borderline intellectual functioning, prior to the date last insured, June 30,
2007. According to Jones, borderline intellectual functioning is a lifelong impairment.
Therefore, even absent medical records supporting a borderline intellectual

Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010) (internal quotations and
citations omitted).
16

17

Britton v. Sullivan, 908 F.2d 328, 330 (8th Cir. 1990).
4

functioning diagnosis prior to June 30, 2007, the impairment existed.
For support Jones cites to cases from the Fourth and Seventh circuits holding
that mental retardation is a lifelong impairment,18 and that IQs determined subsequent
to the insured period can and should be assumed to be the same during the insured
period.19 Indeed, the Eighth Circuit has cited to these cases, stating “[A] person’s IQ
is presumed to remain stable over time in the absence of any evidence of a change in
claimant’s intellectual functioning.”20
Even if the ALJ should have assessed “borderline intellectual functioning” as
one of Jones’s Step 2 “severe” impairments for the time period prior to June 30, 2007,
the issue is ultimately moot. In his decision, the ALJ documented his application of
the psychiatric review technique and assessed Jones with mental limitations in her
RFC.21 The ALJ included those limitations, as well as “borderline intellectual
functioning,” in a hypothetical question to the VE.22 For the reasons explained below,

Luckey v. U.S. Dep’t of Health & Human Services, 890 F.2d 666, 668-69 (4th
Cir. 1989); Guzman v. Bowen, 801 F.2d 273, 274-75 (7th Cir. 1986); Branham v.
Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985).
18

19

Guzman, 801 F.2d at 274-75; Branham, 775 F.2d at 1274.

20

Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001).

21

SSA Record at pp. 13-20.

22

SSA Record at pp. 255-256
5

the ALJ’s mental RFC assessment is supported by substantial evidence and captured
the consequences of her mental limitations. Under these circumstances, the ALJ’s
failure to find that “borderline intellectual functioning” was a “severe” impairment
prior to June 30, 2007 does not warrant reversal.23
RFC determination. According to Jones, the ALJ’s RFC determination is not
supported by the record. Jones maintains that the additional limitations of “only
simple instructions and simple tasks” should have been included. The ALJ’s RFC
determination is supported by substantial evidence.
In making the RFC determination, the ALJ gave substantial weight to the
consultative psychological evaluation completed by Cara Kriehn De Roeck, LPE-I
on December 21, 2009.24 Jones’s full scale score on the Wechsler Adult Intelligence
Scale - IV was 72.25 This indicates that Jones’s overall intellectual functioning is
within the borderline deficient range.26 However, during the evaluation, De Roeck
noted that Jones was “attentive,” “stayed on task,” “able to understand instructions,”
See Hulsey v. Astrue, 622 F.3d 917, 925 (8th Cir. 2010) (ALJ’s hypothetical
asking the VE to assume “work of an unskilled nature involving only superficial
interpersonal contact” adequately captured the consequences of the claimant’s
mental impairments, including borderline intellectual functioning).
23

24

SSA record at p. 199.

25

Id. at p. 200.

26

Id.
6

and “did all that was asked of her.”27 Jones “remained focused and diligent to the task
at hand.”28 De Roeck found that “[t]here do not appear to be significant cognitive
limitations that would impede upon [Jones’s] overall ability to carry out activities of
daily living.”29 Further, “she has a number of functional skills that could be applied
to a work place setting.”30 During the evaluation Jones’s “attention and concentration
were good.”31 Additionally she was able to “communicate effectively with the
examiner” and “complete many tasks given extra time.”32 Although she was a
“moderately slow worker,” she was “persistent.”33 There was no evidence of mental
retardation.34
The ALJ gave some weight to the opinions of the state agency non-examining
physicians, Drs. Kay Cogbill and Susan Schaefer.35 In the January 6, 2010, Mental

27

Id. at p. 199.

28

Id. at p. 201.

29

Id.

30

Id.

31

Id.

32

Id.

33

Id.

34

Id. at p. 202.

35

Id. at p. 20.
7

Residual Functional Capacity Assessment, Dr. Cogbill found that the medical
evidence of record supports a diagnosis of depression nos and borderline intellectual
functioning.36 Dr. Cogbill concluded that Jones “is able to perform work where
interpersonal contact is incidental to work performed, e.g. assembly work; complexity
of tasks is learned and performed by rote, few variables, little judgment . . . .”37 38 In
her May 17, 2010, Case Analysis, Dr. Schaefer reviewed all the evidence and
confirmed Dr. Cogbill’s January 6, 2010, evaluation.39
Although Jones was also evaluated by Dr. Sam Hester,40 the ALJ did not give
controlling weight to Dr. Hester’s opinion because it was not supported by the weight
of substantial evidence and had internal inconsistencies. For example, although Dr.
Hester noted that he “would be surprised if [Jones] does not test out in the mild
retardation range,” he found that Jones did not appear to be functioning within or near
the mentally retarded range.41

36

Id. at p. 24.

37

Id.

It appears that some language is missing from this page in the record. Neither
party, however, has identified any issue stemming from the omission.
38

39

SSA record at p. 204.

40

Id. at p. 190.

41

Id. at p. 195.
8

The ALJ also noted Jones’s daily activities that are supported by written
evidence and Jones’s testimony.42 Jones testified that she has five children living in
her home.43 Three are her biological children and two are her husband’s children from
a previous relationship.44 Jones takes care of the children, cooks, does laundry, drives
a car, shops for her family, and takes the children to school and ball practice.45 Jones
is the primary caregiver for the younger children.46 The November 6, 2009, Function
Report confirms these activities.47 The Report also states that Jones can tend to her
own personal care, visits with family three times a week, and has no problems getting
along with family, friends, neighbors and authority figures.48
Jones worked in 2004 and 2005 as a farm helper, earning $38,889 in 2004 and
$41,769 in 2005.49 Jones is not currently on any prescription medications to address
her impairments and she is not undergoing any treatment. Indeed, she never sought
42

Id. at pp. 16 & 18.

43

Id. at p. 245.

44

Id.

45

Id. at pp. 247 & 252.

46

Id. at p. 252.

47

Id. at p. 146.

48

Id. at pp. 146-152.

49

Id. at p. 77.
9

treatment or medical advice regarding her depression and borderline intellectual
functioning. The only medical records addressing these issues are those generated by
the state’s consultative and non-examining physicians.50 Apart from these records, the
only other medical evidence consists of treatment notes from appointments related to
Jones’s pregnancies.51 Although Jones maintains that she did not seek medical
treatment due to the cost, the record establishes that she sought medical treatment
when necessary for her pregnancies. The record further reflects that she has not taken
steps to get discounted or free treatment. Jones’s claims of financial hardship carry
very little weight.52
A reasonable mind would accept the evidence as adequate to support the
determination that Jones can perform the full range of work at all exertional levels but
with the following non-exertional limitations: interpersonal contact is incidental to
work performed; complexity of tasks is learned and performed by rote, with few
variables and little judgment; and supervision required is simple, direct and concrete.

50

Id. at pp. 22, 190, 199, 204 & 216.

51

Id. at pp. 158-189.

See Murphy v. Sullivan, 953 F.2d 383, 386–87 (8th Cir.1992) (finding that
ALJ properly rejected a claim of financial hardship where there was no evidence
that claimant attempted to obtain low cost medical treatment or that claimant had
been denied care because of lack of finances).
52

10

The ALJ’s RFC determination is supported by substantial evidence.
Following the RFC determination, the ALJ held that Jones can perform her past
relevant work, both as actually performed and as generally performed, as a farm
helper.53 Although the ALJ was not required to, the ALJ sought the opinion of the VE
as to whether Jones could perform her past relevant work.54 The ALJ testified that
Jones can perform her past relevant work as described by Jones.55 Presented with a
properly phrased hypothetical, as discussed below, the VE also testified that, in the
alternative, Jones can perform the jobs of house cleaner or motel maid.56 “Testimony
from a vocational expert based on a properly-phrased hypothetical constitutes
substantial evidence.”57 The ALJ’s determinations with respect to Jones’s ability to
perform past relevant work and other jobs in the economy are supported by
substantial evidence.
VE hypothetical. Jones asserts that the ALJ erred in failing to include in the
hypothetical presented to the VE Jones’s borderline intellectual functioning

53

SSA record at p. 20.

54

Id. at p. 255.

55

Id.

56

Id. at pp. 255-256.

57

Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001).
11

diagnosis. Jones is mistaken. The ALJ presented the following hypothetical to the VE
regarding past relevant work:
ALJ: All righty. Assuming there’s [an] individual [who] has the same
age, education, work experience as the claimant, and considering the
impairments; there are no exertional limitations, but based on the
diagnosis of mood disorder and borderline intellectual functioning
[INAUDIBLE] [the] individual has the ability to perform work where
interpersonal contact incidentally and the complexity of tasks learned
and performed by rote, any variables, including judgment, which seem
to require sing [sic] [INAUDIBLE]. This individual performing the
claimant’s past work as performed by the claimant or as performed in
the local, regional or national economy.
VE: Yes, sir. I think that a good past work would be possible as
described by claimant.
ALJ: The individual’s [sic] performing the other jobs that exist in the
local, regional or national economy?
VE: Yes, sir, there are some jobs, such as housecleaner or motel maid.
These are unskilled positions SVP of 2. They are in the Light Exertional
Category, but they satisfy the other variables that are expected in the
hypothetical. Nationally there is [sic] approximately 400,000 of these
positions. On a regional basis there’s approximately 75,000, and in the
state of Arkansas there’s approximately 5,000. It’s DOT number is
323.687-014.58
Accordingly, Jones’s argument fails.
Conclusion. Substantial evidence supports the ALJ’s decision. The ALJ made
no legal error. For these reasons, the court DENIES Jones’s request for relief (docket

58

SSA record at pp. 255-256 (emphasis added).
12

entry # 2) and AFFIRMS the Commissioner’s decision.
It is so ordered this 20th day of August, 2014.

___________________________________
UNITED STATES MAGISTRATE JUDGE

13