Anderson v. Social Security Administration

Filing 13

ORDER AFFIRMING THE COMMISSIONER. Substantial evidence supports the ALJ's decision. No legal error occurred. The Court denies Anderson's request for relief, 2 , and affirms the Commissioner's decision. Signed by Magistrate Judge Jerome T. Kearney on 5/21/2015. (jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
Calvin Anderson

Plaintiff

v.

CASE NO. 3:14CV00170 JTK

Carolyn W. Colvin, Acting Commissioner,
Social Security Administration

Defendant

ORDER AFFIRMING THE COMMISSIONER
Calvin Anderson seeks judicial review of the denial of his application for supplemental
security income (SSI). Anderson applied for SSI on November 14, 2011, with an alleged onset
date of February 28, 2007.1 SSI benefits, however, cannot be received prior to the application
date.2 Therefore, the alleged onset date is November 14, 2011. Anderson last worked as a stocker
in a grocery store in 2010.3 He bases disability on learning disability and attention deficit
hyperactivity disorder (ADHD).4
The Commissioner’s decision. The Commissioner’s ALJ determined that Anderson has
not engaged in substantial gainful activity since the application date.5 Anderson has a severe
impairment - borderline intellectual functioning.6 Anderson’s severe impairment does not meet
the Listings.7 Anderson can perform work at all exertional levels, but is limited to work where

1

SSA record at pp. 116 & 157.

2

Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir. 1989); 20 C.F.R. § 416.335.

3

SSA record at p. 162.

4

Id. at p. 161.

5

Id. at p. 39.

6

Id.

7

Id. at p. 40.

interpersonal contact is only incidental to work performed; the complexity of tasks is learned and
performed by rote, contains few variables and requires little independent judgment; and any
supervision required is simple, direct and concrete.8 The ALJ held that Anderson has no past
relevant work, but can perform the positions of commercial or industrial clean-up worker,
warehouse worker, and small product assembler, positions identified by the vocational expert
(VE) as available in the state, regional and national economies.9 Anderson’s application was
denied.10
After the Commissioner’s Appeals Council denied a request for review, the ALJ’s
decision became a final decision for judicial review.11 Anderson 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.12
Anderson’s allegations. Anderson maintains that the ALJ’s denial of disability benefits
should be reversed because the ALJ erred (1) in determining that Anderson’s impairment does

8

Id. at p. 41.

9

Id. at pp. 47-48.

10

Id. at p. 48.

11

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).
12

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.”).
2

not meet the Listings; and (2) in the hypothetical presented to the VE. These arguments are not
persuasive. No error occurred, and the ALJ’s decision to deny benefits is supported by
substantial evidence.
Substantial evidence is “less than a preponderance but . . . enough that a reasonable mind
would find it adequate to support the conclusion.”13 For substantial evidence to exist in this case,
a reasonable mind must accept the evidence as adequate to support the determination that
Anderson is not disabled.14
The Listings. Anderson maintains that he meets listing 12.05C, and it was error for the
ALJ to find otherwise. Further, he asserts that the ALJ failed to fully develop the record with
respect to listing 12.05C. Listing 12.05C applies to mental retardation.15, 16 To meet this listing,
Anderson must present evidence establishing: (1) mental retardation, referred to as significant
subaverage general intellectual functioning with deficits in adaptive functioning, initially
manifested before age 22; (2) a valid verbal, performance or full scale IQ of 60 through 70; and
(3) a physical or other mental impairment imposing an additional and significant work-related
limitation of function.17 It is Anderson’s burden to prove that his conditions meet or equal all of

13

Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010) (internal quotations and citations
omitted).
14

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

15

20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C.

16

In 2013, the Commissioner complied with Rosa’s law by replacing the terms “mentally
retarded” or “mental retardation” with “individual with an intellectual disability” and
“intellectual disability.” This order uses the earlier terms because the challenged decision was
issued prior to that change.
17

20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C.
3

the specified medical criteria in a listing.18 He has not met that burden. His argument is not
persuasive.
Although Anderson has received an IQ score within the 60 to 70 range,19 he cannot
establish that he meets the first or third criteria of the listing. The first criterion requires
Anderson to prove mental retardation that manifested itself prior to age twenty-two. It is true that
Anderson attended special education classes throughout high school and often had problems
concentrating.20 The record is void, however, of any mental retardation diagnosis or any
language suggesting significant subaverage general intellectual functioning. In 2007, Anderson
was evaluated by his school district, and, although he had some extremely low scores in reading
and math on the Wechsler Individual Achievement Test-II, he received a full scale IQ of 84.21 In
a 2008 report from the school district, Anderson’s 2007 reading and math scores were described
as “borderline.”22 In a December 2011 Mental Diagnostic Evaluation and Intellectual
Assessment, Anderson received a full scale IQ score of 72.23, 24 The state physician diagnosed

18

See McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011).

19

SSA record at p. 268.

20

Id. at pp. 227, 233, 235, 239 & 244.

21

Id. at pp. 240-241.

22

Id. at p. 227.

23

Id. at p. 268.

24

In the assessment, the state physician indicated that the IQ scores were not valid. The
physician subsequently stated that she inadvertently marked the wrong box, and that the scores
were in fact valid. SSA record at p. 293.
4

him with borderline intellectual functioning.25 A second state physician subsequently diagnosed
the same and determined that Anderson is capable of unskilled work.26
Anderson has also not established that he has a physical or other mental impairment
imposing an additional and significant work-related limitation of function. Although Anderson
maintains that he suffers from ADHD, the record, and Anderson’s own words, fail to provide
support. Anderson directs the Court’s attention to educational records from 2007.27 The records
indicate that Anderson was diagnosed with ADHD in the summer before fifth grade, and that the
diagnosis was sustained in seventh and tenth grade evaluations.28 Although that may be true,
there is nothing during the relevant time period to support an ADHD diagnosis. Anderson
himself stated during the hearing that he was never diagnosed with ADHD.29 Indeed, although
Anderson discussed concerns about ADHD with his physicians, such a diagnosis was never
made. In 2012, Anderson sought evaluation for ADHD and was referred to another clinic.30 He
never followed up. The records also establish that Anderson was never treated for ADHD or
symptoms related to ADHD. During the assessments conducted by state physicians, Anderson’s
ADHD allegations were addressed.31 Although one state physician assessed a learning disorder

25

SSA record at p. 269.

26

Id. at pp. 277 & 292.

27

Id. at p. 239.

28

Id.

29

Id. at p. 21.

30

Id. at p. 296.

31

Id. at p. 266.
5

NOS rule-out diagnosis,32 no one diagnosed Anderson with ADHD. Anderson did not meet his
burden with respect to Listing 12.05C
The record in the instant case is indeed limited, and it is the responsibility of the ALJ to
“fully and fairly develop the evidentiary record.”33 “Failing to develop the record is reversible
error when it does not contain enough evidence to determine the impact of a claimant’s
impairment on his ability to work.”34 “While an ALJ does have a duty to develop the record, this
duty is not never-ending. . . . The ALJ is required to order medical examinations and tests only if
the medical records presented to him do not give sufficient medical evidence to determine
whether the claimant is disabled.”35 The records discussed above provided sufficient evidence for
the ALJ to determine if Anderson meets listing 12.05C. Perhaps most telling is the lack of
medical treatment. Although Anderson maintains that his impairments are disabling, he rarely
sought treatment. Indeed, from 2007 to 2013, the timespan of the record, there are only two
medical records in which Anderson sought treatment for his mental impairments.36 Logic dictates
that if an individual suffers from disabling impairments, more frequent medical care would be
sought. No error occurred with respect to developing the record.

32

Id. at p. 269.

33

Byes v. Astrue, 687 F.3d 913, 915-916 (8th Cir. 2012).

34

Id. at 916.

35

McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011) (internal citations omitted).

36

SSA record at pp. 260 & 296.
6

A reasonable mind would accept the evidence as adequate to support the ALJ’s
determination that Anderson’s impairments do not meet the Listings. The determination is
supported by substantial evidence and no error occurred.
Hypothetical. Anderson maintains that the ALJ’s denial of his disability benefits is not
supported by substantial evidence because the ALJ failed to include Anderson’s borderline
intellectual functioning in the hypothetical presented to the VE. During the hearing, the ALJ
presented the VE with a hypothetical of an individual who has
no exertional limitations but they have unskilled limitations as far as their nonexertional mental limitations and because of that, they should be able to do unskilled
work at all exertional levels. By unskilled work I mean work where interpersonal
contact is only incidental to the work performed. To be complex, any tasks would
need to be learned and performed by wrote [sic], contain few variables, require little
judgment, and any supervision required would need to be simple, direct and
concrete.37
At step five, the burden shifts to the Commissioner to identify jobs that the claimant can
perform considering his RFC, age, education and work experience. The testimony of a VE
identifying jobs available to a claimant will constitute substantial evidence at this step “when it
is based on a hypothetical that accounts for all of the claimant’s proven impairments.”38 The
hypothetical, however, “need not frame the claimant’s impairments in the specific diagnostic
terms used in medical reports, but instead should capture the concrete consequences of those
impairments.”39 The question, then, is whether substantial evidence supports the ALJ’s exclusion
of Anderson’s borderline intellectual functioning diagnosis from the hypothetical. A review of

37

Id. at pp. 29-30.

38

Hulsey v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010).

39

Id. (internal quotations and citations omitted).
7

the medical records and hearing testimony reveals that the ALJ’s decision to exclude this from
the hypothetical is supported by substantial evidence.
While the ALJ did not specifically include borderline intellectual functioning as a
limitation in the hypothetical, he did include limitations that are meant to address the needs of an
individual with below average intellectual abilities. The record establishes that nothing further
was required as the hypothetical adequately takes into account Anderson’s impairments.
Anderson is capable of conducting many activities of daily living. Anderson was twentytwo years old at the time of the hearing and testified that he completed high school.40 During the
December 2011, Mental Diagnostic Evaluation and Intellectual Assessment it was noted that
Anderson is able to drive, but has never had a license; is able to do some laundry and cleaning;
can cook breakfast and use a microwave; and shops unaccompanied for clothing.41 At the hearing
Anderson testified that he can count change, wash dishes, was capable of learning jobs in the
past at fast food restaurants and a grocery store, and volunteers eight hours a month at a food
pantry.42

Assessments conducted by state physicians establish that Anderson is capable of

handling many tasks. In 2011, a state physician determined that although Anderson has some
limitations in adaptive functioning, he can communicate and interact in an adequate manner;
attend and sustain concentration on basic tasks; and complete simple, work-like tasks within an
acceptable timeframe.43 In a subsequent Psychiatric Review Technique, a state physician

40

SSA record at p. 18.

41

Id. at p. 269.

42

Id. at pp. 23 & 26.

43

Id. at p. 270.
8

determined that Anderson is only mildly restricted in activities of daily living and maintaining
social functioning.44 He has moderate difficulties in maintaining concentration, persistence or
pace.45 The same physician held that Anderson
has some limitations which would interfere with his capacity to handle complex or
detailed tasks. His capacity to complete tasks which are routine and simple are [sic]
not significantly limited at this time. [He] would be able to adhere to a schedule and
complete a normal work week based on the current evidence.”46
She concluded that Anderson “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; supervision required is simple, direct and concrete (unskilled).”47
The number of medical records available and gaps in treatment provide further support
for the hypothetical. As discussed above, Anderson rarely sought treatment for his impairments.
Anderson also did not follow recommendations from his physicians. Following one of his
appointments, Anderson was referred to another clinic.48 He never followed up with the referral.
Sporadic treatment and the decision not to follow recommended treatment are not supportive of
limitations more severe than those contained in the hypothetical.
A reasonable mind would accept the evidence as adequate to support the ALJ’s exclusion
of the borderline intellectual functioning diagnosis from the hypothetical. The determination is
supported by substantial evidence.

44

Id. at p. 286.

45

Id.

46

Id. at p. 293.

47

Id. at p. 292.

48

Id. at p. 296.
9

Conclusion. Substantial evidence supports the ALJ’s decision. No legal error occurred.
For these reasons, the court DENIES Anderson’s request for relief (docket entry # 2) and
AFFIRMS the Commissioner’s decision.
It is so ordered this 21st day of May, 2015.

____________________________________
UNITED STATES MAGISTRATE JUDGE

10