Holder v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on June 16, 2011. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

CHRISTY HOLDER

PLAINTIFF

v.

Civil No. 10-5070

MICHAEL J. ASTRUE, Commissioner of
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
I.

Procedural Background
Plaintiff, Christy Holder, appeals from the decision of the Commissioner of the Social

Security Administration denying her applications for disability insurance benefits (“DIB”),
supplemental security income benefits (“SSI”), and disabled adult child’s insurance benefits
(“DAC”),1 pursuant to §42 U.S.C. 405(g).
Plaintiff protectively filed her DIB, SSI, and DAC applications on April 25, 2007, alleging
a disability onset date of February 12, 1993, due to mental retardation, mood disorder, illiteracy, and
depression. Tr. 76-82, 86, 141-150, 194, 199, 517. At the time of her application, Plaintiff was
twenty two years old with an eleventh grade special education. Tr. 54, 204, 219. She has past
relevant work as a poultry hanger and cook helper. Tr. 93, 181-192, 200.
Plaintiff’s applications were denied at the initial and reconsideration levels. Tr. 95-104, 107110. At Plaintiff’s request, an administrative hearing was held on July 22, 2009. Tr. 47-75. Plaintiff

1

To obtain disabled adult child benefits based on the earnings of a parent, a claimant must demonstrate,
among other things, that she was under 18 years of age, or that she was 18 years or older and suffered from a
disability that began before she attained the age of 22. See 42 U.S.C. § 402(d); 20 C.F.R. §§ 404.350, 404.1505.
Disability is determined using the adult disability standard. 20 C.F.R. § 404.1505.

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was present at this hearing and represented by counsel. Tr. 47-75. The ALJ rendered an unfavorable
decision on August 21, 2009, finding that Plaintiff was not disabled within the meaning of the Social
Security Act. Tr. 83-94. Subsequently, the Appeals Council denied Plaintiff’s Request for Review
on March 11, 2010, thus making the ALJ’s decision the final decision of the Commissioner. Tr. 1-4.
Plaintiff now seeks judicial review of that decision.
II.

Factual Background
A. School Records
Plaintiff was enrolled in special education throughout her school career. Tr. 242-514. She

spent two years in kindergarten and had difficulty retaining letter names, consonant sounds,
numerals, and number sets. Tr. 508, 626. Plaintiff’s instructor noted that she was unable to retain
concepts and recall previously learned information. Tr. 242, 625-627.
In 1992, Plaintiff underwent an educational evaluation with her school’s licensed
psychological examiner, Ann Trevino. Tr. 490, 625-634. Plaintiff was fairly cooperative, although
she gave up easily. Tr. 626. On the Vineland Adaptive Behavior Scales, Plaintiff received scores
within the low adaptive level. Tr. 243, 626. On the Wechsler Intelligence Scale for Children, Third
Edition (“WISC III”), Plaintiff received a full-scale IQ score between 70-79, which was within the
borderline range of functioning. Tr. 490. She scored within the borderline range in verbal reasoning
skills and within the mentally deficient range in visual-motor reasoning skills. Tr. 627. On the
Slosson Intelligence Test-Revised, Plaintiff’s scores suggested low average ability. Tr. 625. Results
of the Diagnostic Achievement Battery revealed possible weaknesses in reading. Tr. 625. On the
Burks’ Behavior Rating Scales, Plaintiff scored within the average range on 14 of 19 scales. Tr. 626.
However, she scored within the significant range on scales measuring poor intellectuality, poor
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academics, poor impulse control, excessive resistance, and poor social conformity. Tr. 626. Overall
testing revealed intellectual and academic functioning scores between one and two standard
deviations below the mean for her age and adaptive behavioral functioning scores two standard
deviations below the mean for her age. Tr. 627. Plaintiff had particular difficulties in the areas of
basic reading skills, reading comprehension, written expression, math calculation, math reasoning,
adaptive behavior, and listening comprehension. Tr. 490, 627.
Additionally, Plaintiff underwent a language/communicative abilities assessment. Tr. 630634. Speech testing revealed a mild articulation disorder, receptive vocabulary skills one and a half
standard deviations below the mean, and spoken language and auditory perceptual/processing
abilities more than two standard deviations below the mean. Tr. 632. Ruth Linam, a licensed speech
pathologist, noted that Plaintiff lacked several of the basic time, space, quality, and quantity concepts
considered necessary for achievement in the first years of school. Tr. 632. According to the
Arkansas Guidelines and Severity Ratings for Speech/Language Impairment, Plaintiff received a
rating of mild for articulation, severe for language, and normal for voice and fluency. Tr. 632. As
a result of her intellectual and speech assessment testing, Plaintiff was deemed educably mentally
retarded2 and placed in resource services for 540 minutes per week and speech therapy for 60
minutes per week. Tr. 491-502, 628. In November 1992, her resource room time was increased to

2

“Educable” mental retardation is roughly equivalent to what is now referred to as mild mental retardation.
This group constitutes the largest segment, roughly 85%, of those considered mentally retarded. Individuals with
mild mental retardation typically develop social and communication skills during preschool years, have minimal
impairment in sensorimotor areas, and often are not distinguishable from children without mental retardation until a
later age. By their late teens, these individuals can acquire academic skills up to the sixth-grade level. During adult
years, they “usually achieve social and vocational skills adequate for minimum self-support, but may need
supervision, guidance, and assistance, especially when under unusual social or economic stress.” W ith support,
individuals with mild mental retardation “can usually live successfully in the community, either independently or in
supervised settings.” A M . P SY CH IA TRIC ASS ’N . D IA GN O STIC AN D S TATISTIC AL M AN UAL OF M EN TAL D ISO RD ERS , 43
(4th ed., 2000) (“DSM-IV”).

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810 minutes per week. Tr. 505-506.
In February 1993, Plaintiff’s first grade special education teacher, Miss Stamps, noted that
Plaintiff was not making progress with her current individual education plan (“IEP”) placement. Tr.
480. In May 1993, Plaintiff was placed in self-contained special education classes for 1590 minutes
per week with an additional 60 minutes per week of speech therapy. Tr. 449-475. She was assessed
with a mild articulation disorder when compared to her chronological age, and a moderate to severe
language delay which was commensurate with her overall ability. Tr. 454. She was placed in the
extended year service program to receive additional instruction over the summer. Tr. 486-487.
In April 1994, Plaintiff was functioning between one and two standard deviations below the
mean for her age group. Tr. 423. Her adaptive skills were also two standard deviations below the
mean for her age. Tr. 423. At the time, Plaintiff was working at the beginning first grade level in
reading, math, and spelling. Tr. 423. She was making passing grades in all academic areas, with
math calculation being a particular strength. Tr. 441.
In December 1994, Plaintiff was receiving 1500 minutes of self-contained special education
instruction per week. Tr. 413-414. Plaintiff was also receiving speech therapy and had made a
“great deal of progress.” Tr. 417. As a result, she was discharged from speech therapy services. Tr.
417-419.
On May 22, 1996, an annual progress review was conducted. Tr. 398-412. Plaintiff’s
teachers concluded that she was making progress in all academic areas, although she was still having
difficulty in reading. Tr. 398. According to the Brigance Test of Basic Skills, Plaintiff functioned
at a 4.5 grade level in math, a 1.6 grade level in reading, and a 2.0-3.0 grade level in language and
written expression. Tr. 398, 401. It was recommended that Plaintiff receive 1610 minutes per week
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of self-contained classroom instruction to address deficits in listening comprehension, basic reading
skills, reading comprehension, math calculation, math reasoning, written expression, and adaptive
behavior. Tr. 398. According to recent testing, Plaintiff was within the mentally retarded range of
intelligence. Tr. 401.
In May 1997, Plaintiff’s teacher noted that she continued to make progress in all academic
areas, “with progress in reading and spelling being slower and more difficult than that in math.” Tr.
367. Plaintiff was functioning on a second grade level in reading and a fourth to fifth grade level in
mathematics. Tr. 367, 369. She had achieved 3/3 goals in basic reading, adaptive behavior, and
listening comprehension, 2/3 goals in reading comprehension and math calculation, 3/4 goals in math
reasoning, and 4/4 goals in written expression. Tr. 367. Plaintiff’s self-contained classroom minutes
were increased from 1310 to 1485 minutes per week. Tr. 368. Tr. 363-380.
In December 1997, while Plaintiff was enrolled in sixth grade, it was recommended that she
receive 1700 minutes of special services per week to address reading, math, language arts, and
adaptive behavior. Tr. 341-362. Plaintiff previously received 1450 minutes of special services per
week, which the Special Services Committee did not deem adequate to meet her needs. Tr. 341-347.
An instructor noted that Plaintiff exhibited strength in the area of oral communication skills and a
relative strength in mathematics. Tr. 349. However, she noted that Plaintiff read on a primer to first
grade level and had difficulty in capitalization, punctuation, and spelling. Tr. 349-352.
In May 1998, Plaintiff was enrolled in special education services in reading, language, math,
and science. Tr. 277. Her teachers noted she was “a hard worker and she interacts well with both
teachers and peers. She has good social skills, a sense of responsibility, and is very helpful in the
classroom.” Tr. 278. Her teacher noted that Plaintiff learned best using visual and auditory modes.
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Tr. 278. At this time, Plaintiff was on a first grade reading level. Tr. 278. After undergoing
extensive testing, Plaintiff was assessed with mental retardation. Tr. 294.
In December 1998, an annual review of Plaintiff’s seventh grade progress was conducted.
Tr. 253. Plaintiff’s special education teacher noted that she was a “kind, hardworking student” who
tried her best to please her teachers and had several friends. Tr. 253. She noted that Plaintiff
struggled with “feeling stupid” due to her difficulty reading, which severely affected her ability to
function in class. Tr. 253. At this time, Plaintiff received 945 minutes per week of specialized
instruction in the areas of reading comprehension, basic reading, math calculation, math reasoning,
and written expression. Tr. 253.
B. Medical Records
On July 24, 2007, Plaintiff underwent a consultative mental evaluation and intellectual
assessment with Scott McCarty, M.D. Tr. 595-598. Plaintiff reported a history of learning
difficulties including poor reading and arithmetic skills and difficulty comprehending books. Tr.
595. She stated she was a “hands-on learner,” but had difficulty staying on pace. Tr. 595. She
reportedly could add and subtract, but could not multiply or divide. Tr. 595. She dropped out in
twelfth grade and repeated either the fourth of fifth grade. Tr. 595. Plaintiff completed a training
workshop at the Richardson Center and had last worked two years earlier as a poultry hanger at
George’s. Tr. 596. She was reportedly terminated for not keeping count of the number of chickens
she had processed and for not keeping pace. Tr. 596. She was also terminated from McDonald’s
and Goodwill for being unable to operate the cash register. Tr. 596.
Emotionally, Plaintiff reported irritability, crying spells, and feeling sad “maybe two to three
days a week.” Tr. 595. She denied emotional problems other than depressive symptoms related to

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her self-directed frustration and aggravation about her inability to learn. Tr. 595. She was currently
taking Prozac for depression. Tr. 595. Plaintiff was pregnant at the time of the interview. Tr. 595.
She also had one young infant. Tr. 596.
Upon examination, Plaintiff was calm, cooperative, and friendly. Tr. 596. She reported her
predominant mood as “happy” and was relaxed and jovial at times, but also tearful when discussing
her learning frustrations. Tr. 596. Thought processes were somewhat slow, although speech was
logical, relevant, organized, and goal-directed. Tr. 596. Plaintiff did not show any symptoms of a
formal thought disorder or evidence of formal delusional material.

Tr. 596.

She denied

hallucinations and suicidal and homicidal ideation. Tr. 596. Dr. McCarty noted that Plaintiff
exhibited good cooperation and persistence, and an adequate ability to follow directions. Tr. 597.
On the Wechsler Adult Intelligence Scale-III, Plaintiff received a verbal IQ score of 74, a
performance IQ score of 74, and a full-scale IQ score of 72, which placed her within the borderline
range of intelligence. Tr. 597. Dr. McCarty assessed Plaintiff with adjustment disorder with
depressed mood, learning disorder not otherwise specified, rule out reading disorder, and borderline
intellectual functioning. Tr. 597. He estimated Plaintiff’s Global Assessment of Functioning
(“GAF”) score at 45-55. Tr. 597.
Plaintiff denied difficulty with activities of daily living. Tr. 597. However, Dr. McCarty
found that her reading and arithmetic difficulties resulted in moderate to severe limitations in the
areas of cooking, shopping, and money management. Tr. 597. He also found that although Plaintiff
could socially interact in an adequate manner, her depressive irritability might result in mild to
moderate limitations in socializing at times. Tr. 598. Dr. McCarty noted that Plaintiff tracked
adequately, but may have moderate limitations in coping with the typical mental demands of basic

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work-like tasks and would have severe limitations if reading and performing math were required.
Tr. 598. Dr. McCarty found mild to moderate limitations in the ability to attend and sustain
concentration on basic tasks, but noted excellent persistence. Tr. 598. He also found moderate
limitations in Plaintiff’s ability to complete work tasks within an acceptable time frame. Tr. 598.
In a Psychiatric Review Technique dated August 7, 2007, Brad F. Williams, Ph.D., an agency
specialist, found that Plaintiff did not meet Listings 12.04 (affective disorders) or 12.05 (mental
retardation). Tr. 601-614. He found mild restriction of activities of daily living, moderate
difficulties in maintaining social functioning, moderate difficulties in maintaining concentration,
persistence, or pace, and no episodes of decompensation, each of extended duration. Tr. 611. In a
Mental Residual Functional Capacity (“RFC”) Assessment, Dr. Williams found that Plaintiff was
moderately limited in her ability to understand, remember, and carry-out detailed instructions,
maintain attention and concentration for extended periods, make simple work-related decisions,
complete a normal workday and workweek without interruptions from psychologically based
symptoms, perform at a consistent pace without an unreasonable number and length of rest periods,
accept instructions and respond appropriately to criticism from supervisors, and set realistic goals
or make plans independently of others. Tr. 615-618. He found no significant limitations in all other
work-related areas. Tr. 615-616. Based on his findings, Dr. Williams determined Plaintiff could
perform work where interpersonal contact is incidental to the work performed, complexity of tasks
is learned and performed by rote, with few variables and little judgment, and the supervision required
is simple, direct, and concrete. Tr. 617.

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III.

Applicable Law
The Court’s role on review is to determine whether the Commissioner’s findings are

supported by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583
(8th Cir. 2003). “Substantial evidence is less than a preponderance, but enough so that a reasonable
mind might accept it as adequate to support a conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th
Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). In determining whether
evidence is substantial, the Court considers both evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d 433, 435-36 (8th Cir. 2000)
(citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). If, after conducting this review, “it
is possible to draw two inconsistent positions from the evidence and one of those positions
represents the [Secretary’s] findings,” then the decision must be affirmed. Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007) (quoting Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
To be eligible for disability insurance benefits, a claimant has the burden of establishing that
she is unable to engage in any substantial gainful activity due to a medically determinable physical
or mental impairment that has lasted, or can be expected to last, for no less than twelve months.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. § 423(d)(1)(A). The
Commissioner applies a five-step sequential evaluation process to all disability claims: (1) whether
the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment that significantly limits her physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or equals a disabling impairment listed in the
regulations; (4) whether the claimant has the RFC to perform her past relevant work; and (5) if the
claimant cannot perform her past work, the burden of production then shifts to the Commissioner

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to prove that there are other jobs in the national economy that the claimant can perform given her
age, education, and work experience. Pearsall, 274 F.3d at 1217; 20 C.F.R. § 404.1520(a),
416.920(a). If a claimant fails to meet the criteria at any step in the evaluation, the process ends and
the claimant is deemed not disabled. Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir.
2004).
IV.

Discussion
At step one, the ALJ determined Plaintiff had engaged in substantial gainful activity since

February 12, 1993, the alleged onset date. Tr. 88-89. However, since Plaintiff was not engaged in
substantial gainful activity at the time of the hearing, the ALJ continued his analysis beyond step one.
Tr. 88-89. At step two, the ALJ found that Plaintiff suffered from borderline intellectual functioning
and depression, both of which were considered severe impairments under the Act. Tr. 89. At step
three, he determined Plaintiff did not have an impairment or combination of impairments that met
or medically equaled a listed impairment. Tr. 89-90. At step four, the ALJ found that Plaintiff had
the RFC to perform a full range of work at all exertional levels, but could understand, remember, and
carry out simple, routine, and repetitive tasks, respond appropriately to supervisors, co-workers, and
usual work situations, have occasional contact with the general public, and perform low-stress work,
meaning work involving occasional decision-making and occasional changes in work place settings.
Tr. 91-93. With the aid of a vocational expert, the ALJ determined Plaintiff could perform her past
relevant work as a poultry hanger or cook helper. Tr. 93. Thus, at step four, the ALJ determined
Plaintiff was not under a disability at any time between February 12, 1993, and August 21, 2009.
Tr. 93-94.

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Plaintiff contends that the ALJ erred by failing to consider all the relevant evidence when
determining her RFC. See Pl.’s Br. 4-7. This Court agrees. At the fourth step of the evaluation, a
disability claimant has the burden of establishing his RFC. Eichelberger, 390 F.3d at 591; Masterson
v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). A claimant’s RFC is the most he can do despite his
limitations. 20 C.F.R. § 404.1545(a)(1). The ALJ determines a claimant’s RFC based on “all
relevant evidence, including medical records, observations of treating physicians and others, and the
claimant’s own descriptions of his or her limitations.” Masterson, 363 F.3d at 737. The Eighth
Circuit has stated that “a claimant’s residual functional capacity is a medical question.” Lauer v.
Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Thus, although the ALJ bears the primary responsibility
for determining a claimant’s RFC, there must be “some medical evidence” to support the ALJ’s
determination. Eichelberger, 390 F.3d at 591; Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir 2000).
The ALJ found that Plaintiff suffers from borderline intellectual functioning. Tr. 91-92.
Specifically, he found that Dr. McCarty’s diagnosis of borderline intellectual functioning “is
consistent with the findings of school psychologist Ann Trevino who stated in 1992, when the
claimant was seven years-old, that the claimant was functioning in the borderline range of
intelligence.” Tr. 91-92. This is a mischaracterization of the records. First, Dr. McCarty’s findings
were based solely upon standard IQ testing and his observations of Plaintiff during the evaluation.
Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999) (the assessment of a doctor who evaluates a
claimant once or not at all does not usually constitute substantial evidence). Moreover, he did not
have the benefit of Plaintiff’s school records or prior intellectual evaluations to aid in forming his
opinion.

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The vast majority of Plaintiff’s school records reveal that although her IQ scores reflected
borderline intellectual functioning, her adaptive and academic deficits placed her within the mentally
retarded range.3 In 1992, Ms. Trevino noted Plaintiff’s IQ scores were within the borderline range
of functioning, but her intellectual and adaptive behavior skills measured at or near two standard
deviations below the mean for her age. Tr. 628. Ms. Trevino determined that these areas of
functioning “suggest a possible primary handicapping condition of mentally retarded.” Tr. 628.
Additionally, contrary to Defendant’s arguments, Plaintiff’s adaptive functioning and reading
skills did not improve as she progressed in school. In April 1994, Plaintiff’s adaptive skills remained
two standard deviations below the mean for her age. Tr. 423. In May 1996, Plaintiff was functioning
“in the mentally retarded range of intelligence according to the most recent complete evaluation.”
Tr. 401. On the Brigance Test of Basic Skills, Plaintiff was reading on a 1.6 grade level. Tr. 401.
In December 1997, when Plaintiff was in sixth grade, she was reading on a primer to first grade level.
Tr. 349. In May 1998, after undergoing extensive testing, Plaintiff was assessed with mental
retardation. Tr. 294. These records reflect a history of severe intellectual and adaptive difficulties.
In this instance, it appears that the ALJ only took into account Plaintiff’s IQ scores without
acknowledging limitations resulting from her severe reading and adaptive functioning deficits. For
these reasons, the Court believes remand is necessary for the ALJ to fully consider the evidence of
record and determine how Plaintiff’s cognitive impairments affect her ability to work. Upon remand,
the ALJ should send Plaintiff for a consultative examination that takes into account her overall level

3

General intellectual functioning is defined by the intelligence quotient (IQ or IQ-equivalent) obtained by
assessment with one or more of the standardized, individually administered intelligence tests. Significantly
subaverage intellectual functioning is defined as an IQ of about 70 or below. However, there is a measurement error
of approximately 5 points in assessing IQ, although this may vary from instrument to instrument. Thus, “it is
possible to diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit significant deficits in
adaptive behavior.” DSM IV, supra note 2, at 41-42.

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of functioning, including her adaptive functioning and possible learning disorders. The consultative
examiner should be provided with Plaintiff’s school records prior to the examination. Once a proper
evaluation is completed, the ALJ should review the evidence and assess Plaintiff’s RFC based on all
relevant evidence, including medical records, opinions of treating medical personnel, and Plaintiff’s
description of her own limitations. Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001). If the
ALJ chooses to discredit Plaintiff’s subjective statements, he should state specific reasons for doing
so.
V.

Conclusion
Accordingly, the ALJ’s decision denying benefits to Plaintiff is not supported by substantial

evidence and should be reversed and remanded to the Commissioner for further consideration
pursuant to sentence four of 42 U.S.C. § 405(g).
ENTERED this 16th day of June 2011.

/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE

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