Biller v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 2, 2013. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
ELIZABETH M. BILLER
CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration
Plaintiff, Elizabeth M. Biller, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying her claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and XVI
of the Social Security Act (Act). In this judicial review, the Court must determine whether there
is substantial evidence in the administrative record to support the Commissioner’s decision. See
42 U.S.C. § 405(g).
Plaintiff filed her applications for DIB and SSI on December 30, 2009, alleging disability
since April 15, 2007, due to “1. Paroxysmal kenesiogenic chorea 2. Seizures 3. Slow Learner.”
(Tr. 144-146, 152-156, 170, 174).2 An administrative hearing was held on November 10, 2010,
at which Plaintiff appeared with counsel, and she and her mother testified. (Tr. 40-83).
By written decision dated March 21, 2011, the ALJ found that since April 15, 2007, the
Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
Chorea - The occurrence of a variety of continual, rapid, highly complex, jerky, dyskinetic movements that look
well-coordinated but are actually involuntary. Dorland’s Illustrated Medical Dictionary 354 (32nd ed. 2012).
onset date of disability, Plaintiff had an impairment or combination of impairments that were
severe - seizure disorder; borderline intellectual functioning (BIF); and cognitive disorder. (Tr.
18). However, after reviewing all of the evidence presented, the ALJ determined that Plaintiff’s
impairments did not meet or equal the level of severity of any impairment listed in the Listing
of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 19). The ALJ found that
Plaintiff had the residual functional capacity (RFC) to:
perform a full range of work at all exertional levels but with the following
nonexertional limitations: she must avoid all hazards, to include driving
as part of the work, and is limited to simple, routine, and repetitive tasks.
(Tr. 21). With the help of a vocational expert (VE), the ALJ determined that Plaintiff was
capable of performing her past relevant work as a housekeeper, and alternatively, that there were
other jobs Plaintiff would be able to perform, such as child care attendant; cafeteria attendant;
and counter attendant. (Tr. 23-24). Plaintiff then requested a review of the hearing decision by
the Appeals Council, which denied the request on September 30, 2011. (Tr. 7-10). Subsequently,
Plaintiff filed this action. (Doc. 1). This case is before the undersigned pursuant to the consent
of the parties. (Doc. 5). Both parties have filed appeal briefs, and the case is now ready for
decision. (Docs. 8, 9).
The Court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ briefs, and are repeated here only to the extent necessary.
This Court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F. 3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner’s decision. The ALJ’s decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.
3d 964, 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports
the Commissioner’s decision, the Court may not reverse it simply because substantial evidence
exists in the record that would have supported a contrary outcome, or because the Court would
have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In
other words, if after reviewing the record, it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the findings of the ALJ, the decision of the
ALJ must be affirmed. Young v. Apfel, 221 F. 3d 1065, 1068 (8th Cir. 2000).
It is well established that a claimant for Social Security disability benefits has the burden
of proving her disability by establishing a physical or mental disability that has lasted at least one
year and that prevents her from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F. 3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §§423(d)(1)(A),
1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§423(d)(3),
1382(3)(D). A Plaintiff must show that her disability, not simply her impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in substantial
gainful activity since filing her claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was able to perform other work in the national
economy given her age, education, and experience. See 20 C.F.R. §416.920. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
in light of her residual functional capacity (RFC). See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Plaintiff raises the following issues on appeal: 1) The ALJ erred in failing to find
Plaintiff’s impairments met or equaled a listing; 2) The ALJ erred in his treatment of the
opinions of Dr. Shannon Brownfield and Dr. Vann Smith; and 3) The ALJ’s findings are not
supported by substantial evidence. (Doc. 8).
Whether Plaintiff’s Impairments Meet or Equal a Listing:
Plaintiff argues that her impairments meet or equal the 12.05(C) and 12.05(D) listings.
“When trying to establish that the Listing 12.05C requirements have been met, the claimant must
also meet the requirements in the introductory paragraph of Listing 12.05.” Lewell v. Astrue,
2013 WL 950601 *3 (No. 12-5023 W.D.Ark., March 11, 2013), citing Maresh v. Barnhart, 438
F.3d 897, 899 (8th Cir. 2006). Those requirements clearly include demonstrating that the
claimant suffered “deficits in adaptive functioning” and that those deficits “initially manifest
during the developmental period [before age 22].” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05;
Cheatum v. Astrue, 388 Fed. Appx. 574, 576 (8th Cir. 2010)(citations omitted). Plaintiff was
born in 1987, and therefore, the evidence must support a finding that Plaintiff was “mentally
retarded” prior to 2009.
Plaintiff was diagnosed with paroxysmal kinesogenic chorea on May 14, 2001, at the
pediatric neurology clinic at Wake Forest University Baptist Medical Center. (Tr. 406). On June
17, 2002, the Wake Forest clinic noted that Plaintiff had been treated with carbamazopine for
approximately two years and had a favorable response. (Tr. 404). Nevertheless, complete
resolution of her seizures has not occurred. Dr. Cesar C. Santos, the attending physician at the
pediatric neurology clinic, noted that there had been far fewer seizures since she had been on the
carbamazepine and that the dosage had been increased at the last visit. (Tr. 404). He reported
on June 17, 2002, that Plaintiff had not had a seizure “except for one three weeks ago due to the
fact that she missed her medication on the day of the seizure. If she takes her medication
regularly, there is no problem.” (Tr. 404).
On January 13, 2004, Byron Dickinson, PsyD., prepared a Psychological Report, wherein
he found Plaintiff’s Verbal Scale to be 65; her Performance Scale to be 79; and her Full Scale
IQ to be 70, and in his conclusion, he reported that Plaintiff’s scores “suggest overall intellectual
ability to be in the borderline range.” (Tr. 277).
On February 12, 2010, Nancy A. Bunting, Ph.D., evaluated Plaintiff and prepared an
Intellectual Assessment and Adaptive Functioning report. (Tr. 280-282). In the report, Dr.
Bunting found Plaintiff’s Verbal IQ score to be 70; her performance IQ was 83; and her full scale
IQ was 74. (Tr. 280). Although she found that there were no indications of exaggeration, she
reported that the intellectual assessment results did not appear to be an accurate and valid
representation of her present level of functioning because of seizure activity that Plaintiff
reported only later on. (Tr. 280). She reported that on the WAIS-III, the full scale IQ of 74 fell
in the borderline range of intellectual functioning, and that there was a significant difference
between the Verbal IQ score of 70 and the Performance IQ score of 83. (Tr. 281). Dr. Bunting
concluded that Plaintiff’s adaptive functioning was not consistent with a diagnosis of Mental
Retardation. (Tr. 282). Although she said that her score of 70 would generally qualify, she found
it significant that Plaintiff had a seizure that morning, and felt that this had to have depressed her
scores. “Without the unregulated seizure activity her scores would have been better. If she is
generally on medication (when she is not pregnant), she seems to be able to hold a fulltime job
as indicated by her history.” (Tr. 282).
On February 22, 2010, Dr. Winston Brown completed a Psychiatric Review Technique
form. (Tr. 285-297). Dr. Brown concluded that Plaintiff did not suffer from a medically
determinable impairment. (Tr. 285, 297).
On February 24, 2010, Dr. Shannon Brownfield conducted a General Physical
Examination. (Tr. 299-303). Dr. Brownfield diagnosed Plaintiff with pregnancy, and a seizure
disorder by history (focal - noncomplex) on no meds. (Tr. 303). He reported that assuming the
seizure disorder was real, Plaintiff had globally moderate to severe limits, especially with
pregnancy. (Tr. 303).
On June 1, 2010, Plaintiff presented to Baxter Regional Medical Center, 39-plus weeks
pregnant. At that time, the medical report indicates that she did have a history of seizure disorder,
but “has not had a seizure and has not taken any medicine since 2006.” (Tr. 393). The report
noted that Plaintiff smoked occasionally, approximately 4 cigarettes per day. (Tr. 393). The
report also indicated that Plaintiff denied any history of mental retardation. (Tr. 393).
On September 1, 2010, Dr. Vann Smith conducted a Neuropsychological Evaluation, and
reported that Plaintiff’s WAIS-R Verbal IQ was 85; her performance IQ was 82; and her Full
Scale IQ was 83. (Tr. 376). Dr. Smith diagnosed Plaintiff with cognitive disorder and borderline
intellectual function. (Tr. 378).
In the present case, there was no evidence that Plaintiff experienced deficits in adaptive
functioning prior to 2009. Dr. Dickinson stated that Plaintiff’s adaptive behavior skills were
rated in the low average range. (Tr. 277). By 2005, Plaintiff was 39 -2/7 weeks pregnant. (Tr.
398). In 2007, Plaintiff was pregnant again, and in May, delivered another child. (Tr. 395). At
that time, plaintiff was smoking approximately ½ pack of cigarettes per day. (Tr. 343). In
November of 2009, Plaintiff was once again pregnant and requesting prenatal care and smoked
less than one pack per day. (Tr. 315).
Only one evaluator, Dr. Bryan Dickinson, tested Plaintiff’s IQ prior to 2009, and found
Plaintiff’s verbal scale to be 65, and her full scale IQ to be 70. Even then, he referred to
Plaintiff’s mental functioning as in the borderline range.
In his decision, the ALJ stated that he considered Plaintiff’s mental impairment under the
requirements of listing 12.05. He further stated:
Mental retardation 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
The ALJ then discussed whether Plaintiff met the additional requirements in paragraphs
A, B, C, or D. He concluded that: paragraph A was not met because Plaintiff was independent
with all aspects of self-care and she could follow directions; paragraph B was not met because
Plaintiff did not have a valid verbal, performance, or full scale IQ of 59 or less; paragraph C was
not met because although Plaintiff had a verbal IQ score of 70 during testing by Dr. Bunting, the
score was noted as invalid and “depressed” because Plaintiff reportedly had a seizure the day of
testing; and paragraph D was not met because even if Plaintiff had a valid verbal, performance,
or full scale IQ of 60 through 70, there must also be a marked restriction of at least two of the
following: activities of daily living; maintaining social functioning; maintaining concentration,
persistence, or pace; or repeated episodes of decompensation, each of extended duration. The
ALJ found that Plaintiff did not suffer from any marked restrictions in the aforementioned
The Court finds that there is sufficient evidence to support the ALJ’s findings that
Plaintiff’s mental impairments did not meet or medically equal Listing 12.05.
RFC Findings and Treatment Given to Opinions of Dr. Brownfield and Dr.
RFC is the most a person can do despite that person’s limitations.
§404.1545(a)(1). It is assessed using all relevant evidence in the record. Id. This includes
medical records, observations of treating physicians and others, and the claimant’s own
description of her limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005);
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from
symptoms such as pain are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3). The
Eighth Circuit has held that a “claimant’s residual functional capacity is a medical question.”
Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Therefore, an ALJ’s determination
concerning a claimant’s RFC must be supported by medical evidence that addresses the
claimant’s ability to function in the workplace.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir.
2003). “The ALJ is [also] required to set forth specifically a claimant’s limitations and to
determine how those limitations affect his RFC.” Id.
In his decision, the ALJ addressed Dr. Brownfield’s consultative physical examination
During consultative physical examination performed in February 2010,
the claimant complained of having daily seizures, but was not taking any
medications due to a pregnancy. Examination findings were within
normal limits and diagnosis was seizure disorder by history. (Exhibit 5F).
(Tr. 19). In his evaluation, Dr. Brownfield concluded that assuming Plaintiff’s seizure disorder
was real, she would have globally moderate to severe limitations, especially with pregnancy. (Tr.
With respect to Dr. Smith’s conclusions, the ALJ stated as follows:
The undersigned concurs with Dr. Vann Smith’s diagnosis of BIF and
cognitive disorder. However, the doctor’s opinion that the claimant is
disabled due to significant mental limitations is afforded no weight
because it is inconsistent with the record, including the claimant’s
testimony and the fact that she has worked in the past. In addition, the
doctor’s opinion was based on one examination, the record does not show
that he has a treating relationship with the claimant, and his opinion is
without substantial support from the other evidence of record, which
obviously renders it less persuasive.
The ALJ concurred with Dr. Smith’s diagnosis of BIF and cognitive disorder, but did not
concur with Dr. Smith’s conclusion that Plaintiff was disabled. The Court is of the opinion that
the ALJ thoroughly explained why he did not accord controlling weight to Dr. Smith’s opinion
about Plaintiff’s ability to work.
With respect to Dr. Brownfield’s opinion, the Court finds that the ALJ discussed at length
the limitations imposed by Plaintiff’s untreated seizure disorder, and, as Defendant stated in his
brief, placed the responsibility for the outcome of her noncompliance where it belongs, on
Plaintiff. The Court is of the opinion that the record as a whole, supports the treatment the ALJ
gave to Dr. Smith and Dr. Brownfield.
The Court also finds it noteworthy that Plaintiff indicated that she did not take her antiseizure medication because she was pregnant or breast-feeding, but there is no indication that she
ever asked a physician if there was some type of anti-seizure medication she would be able to
take while pregnant or breast-feeding. In addition, although Plaintiff would like the Court to
believe she was concerned about the baby’s health, she nevertheless continued to smoke while
she was pregnant.
Plaintiff indicates even while on medication, she continued to have seizures. However,
the medical records do not support this statement. Dr. Santos indicated that if Plaintiff took her
medication regularly, there was no problem. (Tr. 404). Plaintiff reported that she had not seen
a doctor for seizures since 2003. (Tr. 179). Plaintiff was reported by the Baxter Regional
Medical Center to not having had a seizure and not taking any medicine since 2006. (Tr. 393).
Finally, at the hearing, Plaintiff was equivocal about how many seizures she would have when
taking medication. “When I am taking the medicine, I have seizures maybe once in a while,” and
when asked for clarification, Plaintiff said - “[m]aybe once every week?” (Tr. 51).
Based upon the record as a whole, and for reasons given in Defendant’s well-stated brief,
the Court finds there is substantial evidence to support the ALJ’s RFC findings and the weight
he gave to the opinions of Dr. Brownfield and Dr. Smith.
Whether Substantial Evidence Support the ALJ’s Findings:
Plaintiff asserts that his previous arguments support the fact that there was not
substantial evidence to support the ALJ’s findings. However, based upon the Court’s foregoing
analysis, as well as the reasons given in Defendant’s well-stated brief, the Court finds there is
substantial evidence to support the ALJ’s findings.
Accordingly, having carefully reviewed the record, the Court finds substantial evidence
supporting the ALJ’s decision denying the Plaintiff benefits, and thus the decision is hereby
affirmed. The undersigned further finds that Plaintiff’s Complaint should be, and is hereby,
dismissed with prejudice.
IT IS SO ORDERED this 2nd day of July, 2013.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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