Wells v. Commissioner of Social Security

Filing 21

OPINION AND ORDER DECLINING Mr. Wells's request to reverse the ALJ's decision or remand this action for further findings and AFFIRMS the ALJ's denial of benefits for the time period prior to April 7, 2011. ***Civil Case Terminated. Signed by Judge Robert L Miller, Jr on 3/25/15. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LAFAYETTE DIVISION
CARLAN WAYNE WELLS,
PLAINTIFF,
VS.

CAROLYN W. COLVIN,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
DEFENDANT.

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CAUSE NO. 4:14-CV-16-RLM-JEM

OPINION and ORDER
Plaintiff Carlan Wayne Wells seeks judicial review of the Commissioner of
Social Security’s final decision denying his application for Disability Insurance
Benefits under Title II of the Social Security Act, 42 U.S.C. § 423, et seq., for
the time period of January 1, 2007 through April 7, 2011. The court has
jurisdiction over this action under 42 U.S.C. § 405(g). For the reasons that
follow, the court affirms the ALJ’s denial of benefits.

I. BACKGROUND
Mr. Wells filed his initial application for benefits on April 18, 2011,
alleging an onset date of January 1, 2007 for borderline intellectual functioning
and an onset date of April 7, 2011 for borderline intellectual functioning and
diabetes. His application was denied initially and upon reconsideration. An
administrative hearing was held in November 2012, at which Mr. Wells was
represented by counsel. At the hearing, the administrative law judge heard

testimony from Mr. Wells and vocational expert Leonard Fisher. In the written
opinion that followed, the ALJ found that Mr. Wells’s impairments were severe
but didn’t meet or medically equal the severity of one of the impairments,
specifically Listing 12.05, listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ concluded, however, that Mr. Wells became disabled on April 7, 2011
when he was diagnosed with diabetes. The ALJ determined that before that
date, Mr. Wells could perform a full range of work at all exertional levels but
was limited to simple, routine, repetitive tasks. This included his past work as
a tree trimmer helper. The ALJ found that after April 7, Mr. Wells could only
perform the exertional demands of less than medium work, again with the
restrictions that the work be limited to simple, routine, repetitive tasks. The
reduction in exertional demand capability prevented Mr. Wells from performing
his past work. Finally, the ALJ concluded Mr. Wells’s work skills weren’t
transferable to other occupations and no jobs existed in significant numbers in
the national economy that Mr. Wells could perform. See 20 C.F.R. § 416.920(f)
(evaluation of disability of adults, in general). So, the ALJ determined Mr. Wells
was disabled as of April 7, 2011, but not before then. The Appeals Council
denied review of the ALJ’s decision, making the decision the Commissioner’s
final decision. 20 C.F.R. § 416.1481.

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II. STANDARD OF REVIEW
The court must affirm the Commissioner’s determination if it is
supported by substantial evidence, 42 U.S.C. § 405(g); Scott v. Astrue, 647
F.3d 734, 739 (7th Cir. 2011), which means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Jones v. Astrue, 623
F.3d 1155, 1160 (7th Cir. 2010). The court can’t re-weigh the evidence, make
independent findings of fact, or substitute its own judgment for that of the
Commissioner, Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009), but in
reviewing the ALJ’s conclusions, “[t]he court will conduct a critical review of the
evidence, considering both the evidence that supports, as well as the evidence
that detracts from, the Commissioner’s decision, and the decision cannot stand
if it lacks evidentiary support or an adequate discussion of the issues.” Briscoe
v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). The ALJ isn’t required “to
address every piece of evidence or testimony presented, but must provide a
‘logical bridge’ between the evidence and the conclusions so that [the court] can
assess the validity of the agency’s ultimate findings and afford the claimant
meaningful judicial review.” Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir.
2010).

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III. LISTING 12.05 – INTELLECTUAL DISABILITY
Mr. Wells argues that substantial evidence doesn’t support the ALJ’s
conclusion that his borderline intellectual functioning didn’t meet or equal
Listing 12.05. He challenges the ALJ’s determination for the time period before
April 7, 2011, when his borderline intellectual functioning was his only
impairment; he doesn’t challenge the ALJ’s determination that he was disabled
after his diabetes diagnosis.
A claimant meets or equals the requirements of Intellectual Disability as
defined in Listing 12.05 if the claimant’s impairment satisfies the diagnostic
description of intellectual disability in the introductory paragraph to Listing
12.05 and one of the four sets of severity criteria found in A, B, C, and D.
12.00 Mental Disorders, 20 C.F.R. Pt. 404, Subpt. P, App. 1 (“If your
impairment satisfies the diagnostic description in the introductory paragraph
and any one of the four sets of criteria, we will find that your impairment meets
the listing [12.05].”); see also Foster v. Halter, 279 F.3d 348, 354 (6th Cir.
2001). Listing 12.05’s introductory paragraph diagnostic description reads as
follows:
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.
12.05 Intellectual disability, 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ
concluded that Mr. Wells’s borderline intellectual functioning didn’t meet or
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equal Listing 12.05 under any of the four sets of criteria. Mr. Wells says he met
the criteria of B: “A valid verbal, performance, or full scale IQ of 59 or less.”
12.05B, 20 C.F.R. Pt. 404, Subpt. P, App. 1. The claimant has the burden of
proving that his condition meets or equals a listed impairment. Maggard v.
Apfel, 167 F.3d 376, 380 (7th Cir. 1999).
Mr. Wells says he can’t read or write and he only attended school
through the seventh grade. He emphasizes that the consultative psychologist,
Dr. John Heroldt, determined he had a full scale IQ score of 58 and couldn’t
handle money. He argues that an IQ score of 58 meets Listing 12.05B. He says
he hasn’t had full time work since 2008. Mr. Wells concludes that he wasn’t
able to engage in substantial gainful activity before April 7, 2011 because he
had an impairment that met a listing – an IQ score of 58 – so he was disabled.
The Commissioner says the lack of evidence that Mr. Wells’s subaverage
general intellectual functioning (i.e., his full scale IQ score of 58) manifested
before the age of twenty-two supports the ALJ’s conclusion that Mr. Wells’s
condition didn’t meet the requirements of Listing 12.05’s introductory
paragraph. The court agrees. The ALJ noted that no evidence supports Mr.
Wells’s testimony that he received special education services in school. The
record reflects, and the ALJ discussed, that Mr. Wells attended school through
the seventh grade. Mr. Wells left school to go to work and not for any apparent
academic related reason. The one educational record for Mr. Wells that Rita
Moore, the Special Program Director at Coloma Community Schools, was able
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to find was a report card for the second semester of the 1975-1976 school year.
It showed satisfactory grades (mostly Cs, one B, maybe one D1) in all classes
except physical education, in which Mr. Wells received a failing grade.2 A
December 1, 2008 handwritten note from Ms. Moore says, “This is the only info
on file[.] He was in the District from 75-77 for elementary + middle school. No
indication SE services were in place.” In late 2008, Mr. Wells was examined by
Dr. Heroldt, who determined that Mr. Wells had a verbal IQ score of 62, a
performance IQ score of 59, and a full scale IQ score of 58. As Mr. Wells points
out, according to Dr. Heroldt, a full scale IQ score of 58 falls in the 0.3
percentile for adults Mr. Wells’s age. Dr. Heroldt concluded that Mr. Wells’s
intellectual functioning was significantly subaverage. The ALJ found that Mr.
Wells’s grades weren’t the “best,” but they suggested that he functioned above
the lowest 0.3 percentile of the population. The ALJ concluded that Mr. Wells’s
report card suggested that he had greater intellectual functioning as a child
than he did when, at the age of forty-four, he was examined by Dr. Heroldt. The
ALJ acknowledged that Mr. Wells had a full scale IQ score of 58 in 2008 and
that the score was subaverage. He concluded, however, that Mr. Wells’s
subaverage general intellectual functioning, as evidenced by the IQ score,

1

The font used in the document makes it difficult to read.

The Commissioner says the ALJ’s opinion mistakenly identifies special education to be
the class in which Mr. Wells received an F. According to the record, that grade was received in
physical education (“BOYS PE”). The error was likely typographical and is immaterial; no
matter the class, the ALJ mentioned the failing grade to show that it was the only one on the
report card.
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didn’t manifest before Mr. Wells was twenty-two years old, as the introductory
paragraph of Listing 12.05 requires. Mr. Wells doesn’t point to any evidence to
contradict this conclusion, and the ALJ based his decision on the hard copy of
a report card for Mr. Wells that has remarkably survived for about forty years
and the school’s lack of any record that Mr. Wells received special education
services. Substantial evidence supports the ALJ’s conclusion.
The Commissioner also says Mr. Wells’s long work history supports the
ALJ’s conclusion that Mr. Wells’s adaptive functioning deficits didn’t meet the
requirements of Listing 12.05’s introductory paragraph. That is a reasonable
finding based on this record. Consultative examiner Dr. Heroldt found that Mr.
Wells’s adaptive functioning was deficient in a number of areas, including
academics, finances, literacy, and socialization. The ALJ noted that Dr. Heroldt
mentioned these deficits, but determined that Mr. Wells had learned to
compensate for his impairment. Specifically, the ALJ referenced Mr. Wells’s
ability to manage his personal needs without difficulty and his long, unskilled
work history (he left school after the seventh grade in order to work). The ALJ
noted that Mr. Wells was illiterate and couldn’t manage a checkbook, but his
wife took care of things for him. The ALJ remarked that although Mr. Wells
needed the driver’s test read to him, he passed the test, received his driver’s
license, and drives. The only evidence Mr. Wells cited to support his deficient
adaptive functioning was his inability to perform substantial gainful activity
beginning sometime in 2008. He doesn’t explain how his impairment caused
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this change in his employment status. The evidence discussed by the ALJ, on
the other hand, shows that Mr. Wells had a history of adapting quite well to his
functioning deficits. The ALJ’s conclusion is supported by substantial evidence.
Mr. Wells relies exclusively on his full scale IQ score of 58, found in Dr.
Heroldt’s 2008 report, to argue that he met Listing 12.05. Neither the ALJ nor
the Commissioner disputed that Mr. Wells’s full scale IQ score of 58 met the
severity criteria of B in Listing 12.05. But to meet Listing 12.05, the claimant’s
impairment must satisfy one of the four sets of criteria and the diagnostic
description of intellectual disability found in the introductory paragraph of the
listing. The ALJ concluded Mr. Wells’s impairment wasn’t consistent with the
diagnostic description because his subaverage intellectual functioning didn’t
manifest before the age of twenty-two and he didn’t have deficient adaptive
functioning as contemplated by the listing. Further, the ALJ’s conclusions,
regarding Mr. Wells’s intellectual functioning as a child and his compensation
for his impairment, are supported by substantial evidence in the record, as
discussed in the ALJ’s decision.3

3 The Commissioner also emphasizes that the two state agency psychologists who
reviewed the record and the consultative examiner’s report concluded that Mr. Wells didn’t
have a listing level impairment and was capable of simple, unskilled work. Although true, the
ALJ discussed the psychological consultants’ opinions at a later step in the disability review
process and didn’t rely on this evidence when he evaluated whether Mr. Wells’s impairment
met or equaled a listed impairment. C.f. Parker v. Astrue, 597 F.3d 920, 925 (7th Cir. 2010), as
amended on reh’g in part (May 12, 2010) (Commissioner may not rely on evidence not
mentioned by the ALJ). The court needn’t consider whether the Commissioner’s reliance on
this evidence violates the Chenery doctrine because the other evidence cited by the ALJ in the
specific step at issue was sufficient.

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IV. CONCLUSION
The court finds the ALJ’s conclusion that Mr. Wells wasn’t disabled
based on his borderline intellectual functioning alone is supported by
substantial evidence. Accordingly, the court DECLINES Mr. Wells’s request to
reverse the ALJ’s decision or remand this action for further findings and
AFFIRMS the ALJ’s denial of benefits for the time period prior to April 7, 2011.
SO ORDERED.
ENTERED: March 25, 2015

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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