Chinn v. Social Security Administration Commissioner

Filing 18

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 30, 2015. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
WILLARD LEE CHINN
V.

PLAINTIFF
NO. 13-5288

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Willard Lee Chinn, 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 his claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) 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).
I.

Procedural Background:
Plaintiff filed his current applications for DIB and SSI on August 25, 2011, alleging an

inability to work since January 1, 2010, due to neuropathy. (Tr. 123-126, 166, 170). An
administrative hearing was held on July 30, 2012, at which Plaintiff appeared with counsel and
testified. (Tr. 33-59).
By written decision dated October 11, 2012, the ALJ found that Plaintiff had an
impairment or combination of impairments that were severe - status post remote distal fibular

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fracture, lower extremity neuropathy, borderline intellectual functioning, and obesity. (Tr. 17).
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. 18). The ALJ found
Plaintiff retained the residual functional capacity (RFC) to:
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except the claimant can push and pull foot controls
occasionally with his right lower extremity; the claimant can occasionally
climb ramps and stairs but can never climb ladders, ropes, and scaffolds;
the claimant can occasionally balance and can frequently stoop, kneel,
crouch, and crawl; the claimant must avoid even moderate exposure to
hazards (i.e. dangerous moving machinery and unprotected heights); the
claimant is able to perform work where interpersonal contact is incidental
to the work performed; and the claimant is able to perform work where
the complexity of tasks is learned and performed by rote with few
variables and little judgment, and where the supervision provided is
simple, direct, and concrete.
(Tr. 20). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would not be able to perform his past relevant work, but that there
were other jobs Plaintiff would be able to perform, such as assembler (fishing reel assembler);
production worker (light bulb stem mounter); and inspector/checker and sorter (nut sorter). (Tr.
26-27).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on October 22, 2013. (Tr. 1-5). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 7). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 13-15).
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.
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II.

Applicable Law:
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 his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him 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 his disability, not simply his impairment, has lasted for
at least twelve consecutive months.

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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 his 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 his 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 his RFC. See McCoy v. Schneider, 683 F.2d 1138, 1141-42 (8th Cir.
1982); 20 C.F.R. §416.920.
III.

Discussion:
Plaintiff raises the following issues in this matter: 1) The ALJ erred in finding that

Plaintiff did not meet Listing 12.05C; and 2) The ALJ erred in rejecting the opinion of mental
consultative examiner, Dr. Scott McCarty. (Doc. 13).
A.

Listing 12.05C:

Plaintiff argues that he meets Listing 12.05C. Said listing provides as follows:
12.05 Intellectual disability: Intellectual disability 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 age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
...
C. 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;
...
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“The claimant has the burden of proving that his impairment meets or equals a listing.” Johnson
v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “To meet a listing, an impairment must meet
all of the listing’s specified criteria.” Id. “To establish equivalency, a claimant ‘must present
medical findings equal in severity to all the criteria for the one most similar listed impairment.’”
Carlson v. Astrue, 604 F.3d 589, 594 (8th Cir. 2010), quoting from Sullivan v. Zebley, 493 U.S.
521, 531 (1990). “[W]hen determining medical equivalency, an impairment can be considered
alone or in combination with other impairments.” Carlson, 604 F.3d at 595.
In this case, the ALJ considered Plaintiff’s mental impairment under the requirements
of listing 12.05, and addressed paragraphs A, B, and C, finding that Plaintiff did not meet the
requirements of the listing. (Tr. 18-19). More specifically, with respect to 12.05C, the ALJ
noted that Plaintiff’s VIQ and PIQ scores were both above 60 to 70 range, as found by Dr. Scott
McCarty, who administered an IQ test during his Mental Diagnostic Evaluation, dated October
6, 2011. (Tr. 19). The ALJ addressed Plaintiff’s FSIQ as follows:
However, as also discussed, there is some question as to the claimant’s
full scale score as Dr. McCarty reported it as both 69 and as 70. The
undersigned finds that the claimant’s level of adaptive functioning (i.e.
he has demonstrated the ability to obtain and maintain employment, he
reports that he is able to attend to and care for his own personal hygiene,
care for his ailing wife, care for his pets, prepare meals, drive a vehicle,
shop for necessary household items, perform household chores, pay bills,
and count change); supports using the higher full scale score of 70 and
thus a finding that the claimant does not meet the requirements in
paragraph C. Alternatively the undersigned finds that there is not clear
evidence of record of an IQ score in the required 60 through 70 range.
(Tr. 19).
The Court questions how the ALJ concluded that Plaintiff’s FSIQ does not fall within
the range provided in 12.05C, as it does refer to a FSIQ of 60 through 70 (emphasis added).
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However, as noted in the introductory paragraph, “intellectual disability” refers to significantly
subaverage general intellectual functioning with deficits in adaptive functioning. (emphasis
added). The Eighth Circuit Court of Appeals has emphasized in the past that “IQ scores must
be valid, that the Commissioner need not rely exclusively on IQ scores, and that the
Commissioner may disregard test scores that are inconsistent with an applicant’s demonstrated
activities and abilities as reflected in the record as a whole.” Clay v. Barnhart, 417 F.3d 922, 928
(8th Cir. 2005). In this case, the record as a whole indicates that Plaintiff does not suffer from
deficits in adaptive functioning sufficient to satisfy this listing. As indicated by the ALJ, Plaintiff
is able to care for his personal needs, has been able to obtain and maintain employment in the
past, is able to care for his wife and pet, drive, shop for necessary household items, perform
household chores, and pay bills. Accordingly, the Court believes there is substantial evidence
to support the ALJ’s conclusion that Plaintiff’s mental impairment does not meet a listing.
B.

RFC Determination:

Plaintiff argues that the ALJ erred in rejecting the opinion of mental consultative
examiner, Dr. McCarty.
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
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
descriptions of his 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
United States Court of Appeals for the Eighth Circuit has held that a “claimant’s residual

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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). “[T]he ALJ is [also] required to set forth specifically a
claimant’s limitations and to determine how those limitations affect his RFC.” Id.
In this case, the ALJ concluded that Plaintiff would be able to perform unskilled
sedentary work with certain limitations. (Tr. 20). The ALJ then carefully addressed each
limitation and the basis for his conclusions. The ALJ discussed the neurological examination
performed by Dr. Ahmad Al-Khatib in January of 2012, wherein Dr. Al-Khatib opined that
Plaintiff would have moderate limitations in his ability to stand, walk, and carry objects. (Tr.
22). The ALJ also discussed the opinions of Plaintiff’s treating physicians, noting that one of
them, Dr. David Beck, opined in August of 2011 that Plaintiff could perform light level work.
(Tr. 22). The ALJ also considered and addressed Plaintiff’s activities as well as the Plaintiff’s
obesity in determining Plaintiff’s RFC. (Tr. 22-23).
The ALJ further recognized that in light of Plaintiff’s prior injuries and surgeries, and
in consideration of Plaintiff’s alleged continuing pain, he should be limited to work where he
is only occasionally required to push and pull foot controls with his right lower extremity. (Tr.
23). The ALJ recognized that Plaintiff used a cane for ambulation, which is why he found
Plaintiff should be limited to only occasional use of ramps and stairs and should exclude ladders,
ropes, and scaffolds. (Tr. 24). In addition, the ALJ considered the fact that Plaintiff was
unsteady on his feet due to pain and numbness and had previously fallen, and therefore, he
excluded work involving hazards in his RFC. (Tr. 24).

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The ALJ afforded substantial weight to Plaintiff’s treating physicians, finding they were
consistent with each other and the record as a whole. He afforded some, but not substantial
weight, to Dr. McCarty’s opinions. (Tr. 26). The ALJ explained the basis for this finding:
For example, Dr. McCarty opined that the claimant would have
tremendous limitations in his coping capacity for the typical
mental/cognitive demands of basic work-like tasks. However, the record
reflects that the claimant has demonstrated adaptive functioning above
this level through his work history and asserted ability to manage his
finances, care for his ailing wife, drive a vehicle, play video games, and
perform general household chores. (Exhibit 6F).
(Tr. 26).
On October 7, 2011, non-examining consultant, Kevin Santulli, Ph.D., concluded that
the objective findings were not consistent with marked impairments in adaptive functioning, and
that Plaintiff was capable of performing unskilled work. (Tr. 386-387). In a Psychiatric Review
Technique form, Dr. Santulli concluded that Plaintiff had a mild degree of limitation in activities
of daily living and moderate degree of limitation in maintaining social functioning and in
maintaining concentration, persistence or pace, and had no episodes of decompensation, each
of extended duration. (Tr. 398). The ALJ afforded the non-examining agency consultants
substantial weight. (Tr. 26).
As late as January 19, 2012, Plaintiff reported to Erica Galindo, L.C.S.W., that there had
been positive changes in his life since his brother came to town, and that he had started new
hobbies, started a new diet, started exercising, and stopped drinking. (Tr. 461). He also reported
that he did not always take his medications as prescribed. (Tr. 461).
Based upon the foregoing, as well as the record as a whole, and Defendant’s well-stated
brief, the Court finds there is substantial evidence to support the ALJ’s RFC determination and

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the weight he afforded to the opinion of Dr. McCarty.
C.

Credibility Analysis:

In this case, the ALJ found that Plaintiff’s credibility was harmed because his report of
the circumstances surrounding his conditions appeared to be at odds with the medical evidence
of record. The ALJ was required to consider all the evidence relating to Plaintiff’s subjective
complaints including evidence presented by third parties that relates to: (1) Plaintiff’s daily
activities; (2) the duration, frequency, and intensity of his pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness, and side effects of his medication; and (5) functional
restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While an ALJ may
not discount a claimant’s subjective complaints solely because the medical evidence fails to
support them, an ALJ may discount those complaints where inconsistencies appear in the record
as a whole. Id. As the Eighth Circuit has observed, “Our touchstone is that [a claimant’s]
credibility is primarily a matter for the ALJ to decide.” Edwards v. Barnhart, 314 F.3d 964, 966
(8th Cir. 2003).
The ALJ discussed the fact that Plaintiff’s work history reflected work activity after the
alleged onset date (although it did not constitute disqualifying substantial gainful activity), and
that Plaintiff testified that he had been working on a part-time and as needed basis caring for
horses, which the ALJ believed indicated that his activities had at times been somewhat greater
than the Plaintiff generally reported. (Tr. 25). The ALJ also noted that there was a discrepancy
regarding the onset date of Plaintiff’s alleged pain, because the record reflects that in September
of 2010, he indicated he was seeking treatment for high blood pressure, but had no other chronic
health problems. (Tr. 22, 361). The Court also noted that during the relevant time period,

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Plaintiff reported to Mercy Hospital Northwest on March 16, 2012, that he did not use alcohol.
(Tr. 429). However, on December 15, 2011, Plaintiff reported increased drinking, and on
December 16, 2011, when Plaintiff presented to Northwest Medical Center in Springdale, the
medical record indicates that “Social history is negative for alcohol and tobacco use.” (Tr. 465,
475).
Based upon the foregoing, as well as the reasons given in Defendant’s well stated brief,
the Court finds there is substantial evidence to support the ALJ’s credibility findings.
D.

Hypothetical Question Presented to VE:

The ALJ presented the following hypothetical questions to the VE:
Q: Okay. Hypothetical number one, assume an individual with the same
age, education, and work experience as that of the claimant, who is able
to lift and/or carry ten pounds occasionally; lift and/or carry less than ten
pounds frequently; stand and/or walk two hours out of an eight-hour
workday with normal breaks; sit six hours out of an eight-hour workday
with normal breaks. Push and pull would be limited to occasional right
foot control; able to climb ramps and stairs occasionally; able to climb
ladders, ropes, and scaffolds, never; able to balance occasionally; able to
stoop, kneel, crouch, and crawl frequently; must avoid even moderate
exposure to hazards, including machinery and heights, and the like; able
to perform work where interpersonal contact is incidental to work
performed. Complexity of tasks is learned and performed by rote; few
variables and little judgment; and supervision required is simple, direct,
and concrete. Could an individual with these limitations perform
Claimant’s past work as it was actually performed, or as it is customarily
performed pursuant to the Dictionary of Occupational Titles?
A: No, Your Honor.
Q: Addendum to hypothetical number one: assume an individual with the
same age, education and work experience as that of the claimant, who has
the residual functional capacity that we’ve just described, would there be
any jobs that this individual could perform that exist in the national or
regional economies?
A: Yes, Your Honor. There are jobs that meet that hypothetical such as an
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assembler, in particular a fishing reel assembler. ...Also, Your Honor, there
would be production worker such as a light bulb stem mounter....
Also, Your Honor, there would be an inspector checker and sorter. That would
be, – in particular would be a nut sorter. ...
(Tr. 52-54).
The Court finds that the hypothetical the ALJ posed to the VE fully set forth the
impairments which the ALJ accepted as true and which were supported by the record as a whole.
Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005). Accordingly, the Court finds that the VE’s
response to the hypothetical questions posed by the ALJ constitutes substantial evidence
supporting the ALJ’s conclusion that Plaintiff’s impairments did not preclude him from
performing the jobs of assembler, production work or inspector checker and sorter. Pickney v.
Chater, 96 F.3d 294, 296 (8th Cir. 1996)(testimony from vocational expert based on properly
phrased hypothetical question constitutes substantial evidence).
IV.

Conclusion:
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 Plaintiff’s Complaint should be, and is hereby, dismissed with prejudice.
IT IS SO ORDERED this 30th day of March, 2015.

/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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