Martin v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on October 2, 2015. (jn)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

JENNY L. MARTIN

PLAINTIFF

VS.

Civil No. 3:14-cv-03070-MEF

CAROLYN W. COLVIN,
Commissioner of Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Jenny L. Martin, brings this action under 42 U.S.C. § 405(g), seeking judicial review
of a decision of the Commissioner of the Social Security Administration (“Commissioner”)
denying her claim for disability insurance benefits (“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social Security Act (hereinafter “the 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).
I.

Procedural Background:

Plaintiff filed her applications for DIB and SSI on January 20, 2012, alleging an onset date of
January 25, 1985, due to a congenital hearing impairment and issues regarding reading
comprehension. (T. 205) Plaintiff’s applications were denied initially and on reconsideration. (T.
56-58, 59-62, 65-66, 67-68) Plaintiff then requested an administration hearing, which was held via
teleconference where the Plaintiff was located in Harrison, Arkansas and the Administrative Law
Judge (“ALJ”), Hon. Clifford Shilling, was located in Fort Smith, Arkansas on April 30, 2013.
Plaintiff was present and represented by counsel.
At the time of the hearing, Plaintiff was 28 years of age with a 12th grade special education.
(T. 207, Doc. 11 p. 1) Plaintiff requested, and the ALJ approved, an amended onset date of
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February 15, 2012. (T. 26-27) Plaintiff’s past relevant work experience included working as a retail
cashier from October 2007 to February 15, 2012, and a stocker from January 2005 to November
2007. (T. 192-193)
On July 11, 2013, the ALJ found Plaintiff’s hearing disorder (diminished hearing), mental
disorder (cognitive disorder), and mental disorder (mood disorder-depression) severe. (T. 12)
Considering the Plaintiff’s age, education, work experience, and the residual functional capacity
(“RFC”) based upon all of her impairments, the ALJ concluded Plaintiff was not disabled from
January 25, 1985, through the date of his Decision issued July 11, 2013. The ALJ determined
Plaintiff had the RFC to perform a full range of work at all exertional levels, but with the following
non-exertional limitations: Plaintiff must avoid jobs that required excellent hearing ability or
verbal or telephone communication. Plaintiff was able to perform work that required only
occasional hearing, where there was incidental contact with others, and the tasks were simple and
learned by rote. (T. 15)
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on May 23, 2014. (T. 1-3) Plaintiff then filed this action on July 10, 2014. (Doc. 1) This case is
before the undersigned pursuant to consent of the parties. (Doc. 8) Both parties have filed briefs,
and the case is ready for decision. (Doc. 11 and 12)
II.

Applicable Law:

This court’s role is to determine whether substantial evidence supports the Commissioner’s
findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). The Court must
affirm the ALJ’s decision if the record contains substantial evidence to support it. Blackburn v.

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Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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 Court must affirm the
ALJ’s decision. Id.
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), 1382c(a)(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 her to apply a five-step sequential evaluation process
to each claim for disability benefits: (1) whether the claimant has engaged in substantial gainful
activity since filing his or her claim; (2) whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given his or her age, education, and experience. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Only if he reaches the final stage does the fact finder consider the Plaintiff’s age, education, and

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work experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683
F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
III.

Discussion:

The Court must determine whether substantial evidence, taking the record as a whole, supports
the Commissioner’s decision that Plaintiff had not been disabled from the amended onset date of
February 15, 2012, through the date of the ALJ’s Decision issued July 11, 2013. Plaintiff raises
four issues on appeal, which can be summarized as: (A) the ALJ erred in step-three of his analysis;
(B) the ALJ failed to consider the combined effects of Plaintiff’s impairments; (C) the ALJ erred
in his RFC determination; and, (D) the ALJ’s Decision was not supported by substantial evidence.
(Doc. 11, pp. 7-13)
The Court has reviewed the entire transcript. The complete set of facts and arguments are
presented in the parties’ briefs and the ALJ’s opinion, and they are repeated here only to the extent
necessary.
Step-three Analysis:
Plaintiff argues the ALJ erred in step-three of his analysis. (Doc. 11, pp. 7-10) The Court
agrees.
A. Listing Requirements:
While the ALJ considered whether Plaintiff met the listing of § 12.02 and § 12.04 (T. 13-15),
Plaintiff argues he failed to consider whether Plaintiff met the requirements under listing §
12.05(C), entitled Intellectual disability. (Doc. 11, pp. 10-12)
Intellectual disability refers to a “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.” 20 C.F.R. Part 404,

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Subpart P, Appendix I, Section 12.05. Plaintiff argues she met the listing requirement of subpart
C, which “required her to have 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.” Id. at (C).
In reviewing the records there was evidence that Plaintiff’s mental impairment developed prior
to her being 22 years of age. Plaintiff alleged in her application she had trouble with reading
comprehension. (T. 205) She attended special education classes and had speech therapy throughout
school. (T. 28, 35) Plaintiff had difficulty pronouncing words, even with the use of hearing aids,
because she pronounced them the same way she heard them. (T. 34-35)
Dr. Nancy A. Bunting, state agency medical consultant, performed an intellectual assessment
and adaptive functioning examination on February 29, 2012. (T. 305) Dr. Bunting observed
Plaintiff’s “speech often had poor articulation, especially at the end of words, but was coherent.”
(T. 306) Plaintiff’s prosody was flattened due to her hearing impairment. (T. 306) Plaintiff’s eye
contact was poor and she stared at the examiner as though she were reading Dr. Bunting’s lips. (T.
307) Dr. Bunting indicated she had to speak loudly for the entire testing, even though Plaintiff
wore a hearing aid. (T. 307) Plaintiff had a difficult time understand Dr. Bunting at times. She
understood ‘acres’ instead of ‘anchor’ and she could not understand Dr. Bunting when she said
‘carrots.’ Plaintiff appeared to put forth a consistent and good level of effort on the tests, and her
persistence was good. (T. 307) Dr. Bunting observed Plaintiff’s pace was “slow, especially on the
verbal subtests where she was very hesitant and had long pauses.” (T. 307) Dr. Bunting
administered a Wechsler Adult Intelligence Scale IV and determined Plaintiff’s full scale IQ was
67, which fell in the mild range of mental retardation. (T. 305, 307) Dr. Bunting diagnosed Plaintiff

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with cognitive disorder, not otherwise specified; hearing impaired, anemic; and, assessed a global
assessment of functioning “GAF” score of 48-58. (T. 307)
Dr. Bunting determined Plaintiff had the following effects of identified mental impairments on
adaptive functioning. Plaintiff could do all self-care, she drove a car, used a checkbook, counted
change, performed regular household chores, shopped for groceries, took care of animals, spent
time with her children, watched television, and read books. (T. 308) Plaintiff was not able to
communicate and interact in a socially adequate manner due to her hearing impairment. She could
only communicate in an intelligible and effective manner about concrete matters. Plaintiff had the
limited capacity to cope with the typical mental/cognitive demands of work-like tasks. She
functioned in the mild range of mental retardation and her scores were generally quite even.
Plaintiff had the very limited ability to attend and sustain concentration on basic tasks. She was
able to do so in a “structured testing situation and she c[ould] do so in the routine setting of her
present job as a cashier.” (T. 308) The Plaintiff was “able to sustain her persistence during the
testing session and interview, which focused on herself. Her frustration tolerance appeared to be
adequate.” (T. 308) The Plaintiff had some ability to complete work-like tasks within an acceptable
time frame. (T. 308)
The evidence from Plaintiff’s childhood of being in special education classes and speech
therapy, coupled with Dr. Bunting’s findings of mild mental retardation, showed Plaintiff’s mental
impairment probably developed prior to her turning 22. Mental retardation is usually first
diagnosed in childhood or adolescence; however, sometimes it is not diagnosed until adulthood.
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorder 39 (4th
ed., Text Revision, 2000) (“DSM IV-TR”). Mental retardation is not normally a condition that
improves with age, thus, in the absence of any evidence of a change in a claimant’s intellectual
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functioning, a person’s IQ is presumed to remain stable over time. See, e.g., Muncy v. Apfel, 247
F.3d 728, 734 (8th Cir. 2001); Branham v. Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985) (absent
contrary evidence, an IQ test taken after the insured period correctly reflects claimant’s IQ during
the insured period); Guzman v. Bowen, 801 F.2d 273, 275 (7th Cir. 1986) (claimant had low IQ
during onset of disability in 1979 rather than just when first IQ tested in 1982); Luckey v.
Department of Health & Human Servs., 890 F.2d 666, 668-69 (4th Cir. 1989) (ALJ may assume
claimant’s IQ remained relatively constant in absence of evidence showing a change in claimant’s
intelligence functioning). See also Sird v. Chater, 105 F.3d 401, 402 n. 4 (8th Cir. 1997).
Remand is necessary in order for the ALJ to assess whether the onset of Plaintiff’s mild mental
retardation began prior to her 22nd birthday. On remand, the ALJ is directed to contact Dr. Bunting
to determine the onset of Plaintiff’s mild mental retardation. Once the ALJ has determined whether
Plaintiff’s mild mental retardation inception was prior to age 22, he should then analyze whether
Plaintiff met the listing requirement of § 12.05(C), which “required her to have 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,” i.e. her hearing impairment.
B. Paragraph B Analysis:
There are three steps used in evaluating whether a Plaintiff’s mental impairment is severe. In
applying the special technique, the ALJ must first evaluate Plaintiff’s symptoms, signs, and
laboratory findings to determine whether Plaintiff had a medically determinable impairment. Once
the ALJ has established Plaintiff has a medically determinable impairment, the ALJ must rate the
functional limitation using four broad functional areas: activities of daily living; social functioning;
concentration, persistence, and pace; and, decompensation. The ALJ is to rate the degree of
functional limitation in the first three areas as none, mild, moderate, marked, and extreme. The
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ALJ will rate decompensation as none, one or two, three, four or more. After rating the Plaintiff’s
functional limitation resulting from Plaintiff’s impairment, the ALJ determines the severity of the
Plaintiff’s impairments. If the ALJ rates the degree of claimant’s limitation in the first three
functional areas as “none” or “mild” and “none” in the fourth area, we will generally conclude that
claimant’s impairment(s) is not severe, unless the evidence otherwise indicates that there is more
than a minimal limitation in the claimant’s ability to do basic work activities. 20 C.F.R. §§
404.1520a(b)-(d), 416.920a(b)-(d).
The ALJ determined Plaintiff’s medically determinable impairments were hearing disorder
(diminished hearing), mental disorder (cognitive disorder), and mental disorder (mood disorderdepression. (T. 13) The ALJ opined Plaintiff’s mental impairments, considered singly and in
combination, did not meet or medically equal the criteria of listing 12.02 and 12.04. (T. 13) In
making this finding the ALJ noted he considered the “paragraph B” criteria mentioned above. (T.
13) Upon review of the record, the Court finds substantial evidence did not support the ALJ’s
consideration of the “paragraph B” criteria.
In addition to Dr. Bunting’s consultative examination, Dan Donahue, Ph.D., a non-examining
state agency consultant, reviewed the record on March 6, 2012 and performed a mental RFC
assessment. Dr. Donahue determined Plaintiff was moderately limited in her ability to understand
and remember detailed instructions; maintain attention and concentration for extended periods;
complete a normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and length of rest
periods; and, interact appropriately with the general public. (T. 311) Dr. Donahue noted Plaintiff
had moderate limitations in maintaining social functioning and concentration, persistence, or pace.
(T. 325) Dr. Donahue opined Plaintiff was able to perform work where interpersonal contact was
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incidental to work performed; complexity of the tasks was learned and performed by rote, few
variables, little judgment; and, supervision required was simple, direct, and concrete (unskilled).
(T. 314)
In his analyzation of “paragraph B” criteria, the ALJ determined Plaintiff had mild restrictions
regarding her daily activities and social functioning, and moderate difficulty regarding her
concentration, persistence, or pace. (T. 14) Although the ALJ gave substantial weight to both Dr.
Bunting’s and Dr. Donahue’s findings (T. 16), he failed to explain why he differed from both
doctors’ findings that Plaintiff had moderate limitations regarding her concentration, persistence,
or pace in his “paragraph B” analysis. (T. 308, 325) Specifically, Dr. Bunting found Plaintiff was
not able to communicate and interact in a socially adequate manner due to her hearing impairment.
She could only communicate in an intelligible and effective manner about concrete matters.
Plaintiff had the limited capacity to cope with the typical mental/cognitive demands of work-like
tasks. She functioned in the mild range of mental retardation. (T. 307-308)
Plaintiff had a very limited ability to attend and sustain concentration on basic tasks. Yet, the
ALJ determined Plaintiff was only mildly limited in the area of social functioning because she
lived with her husband and two children; and, maintained contact with family members, had
friends, and, communicated with neighbors. (T. 14) The ALJ noted he considered the medical
evidence of record and the testimony of the Plaintiff as “favorably to the claimant as can reasonably
[be] done under the extant facts and circumstances” (T. 14); however, Plaintiff testified she could
not understand her coworkers or customers at her other job; she did not like to go into stores by
herself because she did not like being by herself without being able to hear everything; and, she
did not know what was behind her and feared someone sneaking up behind her. (T. 36-37)

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While the ALJ gave lip service to both Dr. Bunting and Dr. Donahue by noting substantial
weight was given to their opinions, the evidence clearly shows the ALJ’s “paragraph B”
determination was not medically based, and remand is necessary. On remand the ALJ is directed
to reassess Plaintiff’s “paragraph B” determination based up Dr. Bunting’s and Dr. Donahue’s
opinions, taking into account Plaintiff’s testimony, Function Reports, and medical evidence.
RFC Determination:
Plaintiff argues the ALJ erred in his RFC determination by not taking into consideration the
Plaintiff’s total medical condition and eligibility to meet or equal the requirements of the Listing
of Impairments of 20 C.F.R. Part 404, Subpart P, Appendix I, Section 12.05(C) and Section
2.10(A). (Doc. 11, pp. 10-12) Plaintiff’s eligibility to meet or equal the requirements of listing §
12.05 was discussed above.
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1).
A disability claimant has the burden of establishing his or her RFC. See Masterson v. Barnhart,
363 F.3d 731, 737 (8th Cir. 2004). “The ALJ determines a claimant’s RFC based on all relevant
evidence in the record, including medical records, observations of treating physicians and others,
and the claimant’s own descriptions of his or her limitations.” Davidson v. Astrue, 578 F.3d 838,
844 (8th Cir. 2009); see also Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010) (ALJ is responsible
for determining RFC based on all relevant evidence, including medical records, observations of
treating physicians and others, and claimant’s own description of his limitations).
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, a claimant’s RFC
assessment “must be based on medical evidence that addresses the claimant’s ability to function
in the workplace.” “An administrative law judge may not draw upon his own inferences from
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medical reports.” Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). Instead, the ALJ should
seek opinions from a claimant’s treating physicians or from consultative examiners regarding the
claimant’s mental and physical RFC. Id.; Strongson v. Barnhart, 361 F. 3d 1066, 1070 (8th Cir.
2004.)
From a review of the record, it appears that the ALJ failed to taking into account her
impairments in combination with one another and the effects they have on her ability to perform
work-like tasks in his RFC determination. In a letter dated October 24, 2011, Plaintiff’s treating
physician, Dr. Monty Baker, a physician at Ear, Nose, & Throat Associates at Mountain Home,
indicated Plaintiff did not meet the criteria for listing § 2.10(A). (T. 363) However, Dr. Barker
indicated he had been treating Plaintiff since 1990 for her hearing, and her hearing loss had steadily
progressed to the severe and profound hearing loss range. (T. 363) Plaintiff had worn hearing aids
since early childhood and she continued to utilize them to date. She had difficulty hearing on the
phone and when background noises were present. He was unable to test her word recognition at a
higher level, due to her inability to tolerate it. Dr. Baker also determined that Plaintiff’s hearing
loss was progressive. Id.
Furthermore, at the beginning of the video hearing it was evident from the ALJ that the Plaintiff
had a hard time hearing him. The ALJ had to “crank up the volume” for his overview of the
hearing. (T. 29) Even with the volume cranked up, Plaintiff still had difficulty understanding the
ALJ and she began to cry. (T. 30-31)
In conducting her evaluation, Dr. Bunting had to speak loudly, even though Plaintiff wore
hearing aids and Plaintiff read her lips. (T. 307) Despite Dr. Bunting speaking loudly, Plaintiff
continued to have difficulty understanding words. Dr. Bunting also noted there was no evidence
of the Plaintiff malingering or exaggerating during her examination. (T. 306-308)
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The ALJ stated he considered Plaintiff’s hearing impairment and mental impairment, in
combination, however, the evidence shows otherwise. Not only did Plaintiff have difficulty
hearing the ALJ and Dr. Bunting, she also had difficulty understanding them. (T. 31, 307) Even
the disability interviewer at the field office on January 23, 2012, had to repeat herself three to four
times for the Plaintiff. (T. 201)
It is evident from the record the ALJ disregarded Plaintiff’s treating physician and both state
agency medical consultants in assessing Plaintiff’s RFC. While the ALJ noted Plaintiff graduated
from high school (T. 16), the record was unclear as to whether she received a diploma or a special
education certificate. The ALJ also accorded the Plaintiff with the ability to work (T. 16);
however, he forgot to mention Plaintiff’s testimony regarding the customers getting aggravated
because she could not understand them and she had difficulty working with her co-workers. (T.
32) When she asked to be placed elsewhere, the manager did not want her on the floor because she
could not hear the intercom and the manager was concerned with her interactions with the
customers. (T. 32)
A Plaintiff’s residual functional capacity is based on their “ability to perform the requisite
physical acts day in and day out, in the sometimes competitive and stressful conditions in which
real people work in the real world.” McCoy v. Schweiker, 683 F.2d at 1147 (abrogated on other
grounds). Plaintiff’s residual functional capacity is a medical question, Lauer, 245 F.3d at 704,
and it appears that when the ALJ made his RFC determination he disregarded the medical evidence
and substituted his own opinion for that of the doctors. See Ness v. Sullivan, 904 F.2d 432, 435
(8th Cir. 1990) (An “ALJ must not substitute his opinions for those of the physician.”) It is apparent
the ALJ did not consider Plaintiff’s profound hearing loss along with her mental impairments to
determine her RFC. Had he consider the combination of the impairments, the Court believes the

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ALJ would have reached a different outcome. Thus, the Court finds substantial evidence did not
support the ALJ’s RFC determination and remand is necessary for the ALJ to reassess his RFC
based upon the medical evidence and not his own opinion.
Vocational Expert:
While the vocational expert testified that given all of the factors the Plaintiff could perform the
requirements of representative occupations such as: hospital cleaner, hand packer, and power
screwdriver operator (T. 18, 44), the Court is concerned about the Plaintiff’s ability to perform
those occupations.
If Plaintiff was not directly facing a person, she could not fully understand them. (T. 32) She
could not hear on the phone or when background noises were present. (T. 32) If she had to face
someone in order to hear them, and she could not hear when backgrounds noises were present, the
Court questions whether she could safely operate a power screwdriver or safely perform the duties
of a hand packer. (T. 44)
Moreover, the second hypothetical the ALJ proposed to the vocational expert asked the VE to
assume an individual with the same age, education, and work experience as the Plaintiff; the RFC
to perform jobs with no exertional limitations, but avoiding jobs requiring excellent hearing
capabilities, avoiding jobs that required frequent verbal communication, and avoiding jobs that
required telephone communication; and, an ability to perform work where inner personal contact
was incidental to work perform. (T. 43) Due to hearing loss, however, the individual would have
problems with concentration, persistence, and pace such that the individual would be off task 12
percent of each workday on a consistent basis, and the period of being off task would be in addition
to regularly scheduled breaks. (T. 44) The VE, responding to the second hypothetical, testified that

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“the individual would not be able to sustain or maintain competitive employment at an unskilled,
at an unskilled work environment, therefore there would be no jobs.” (T. 45)
Hypothetical questions posed to vocational experts must “capture the concrete consequences
of [the] claimant’s deficiencies.” Taylor v. Chater, 118 F.3d 1274, 1278 (8th Cir. 1997). The
second hypothetical proposed to the VE contained the findings of Dr. Bunting: Plaintiff had limited
capacity to cope with the typical mental/cognitive demands of work-like tasks; very limited ability
to attend and sustain concentration on basic tasks; and, Plaintiff’s pace was very slow. (T. 307308) Despite this, the ALJ chose to disregard the VE’s testimony based upon Dr. Bunting’s
medical findings. (T. 17-18) On remand, the ALJ is directed to reconsider the VE’s testimony in
response to the second hypothetical and explain, if necessary, the basis for discounting or
disregarding such testimony.
IV.

Conclusion:

Based on the foregoing, I must reverse the decision of the ALJ and remand this case to the
Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g).
Dated this 2nd day of October, 2015.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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