SULLIVAN v. COLVIN

Filing 24

ORDER. Plaintiff Tommy A. Sullivan appeals the Commissioner's denial of his Social Security application for a period of disability, disability insurance benefits, and supplemental security income. Sullivan asserts: (1) the ALJ erroneously det ermined that Sullivan did not meet or equal listings 12.05B or 12.05C; (2) the ALJ's failure to summon a medical advisor was in error; (3) the ALJ's credibility determination was patently wrong; and (4) the ALJ erred in concluding that S ullivan was capable of performing work in the national economy. For the reasons set forth in this Order, Plaintiff's brief in support of appeal [Filing No. 14] is denied and the Commissioner's decision is affirmed. SEE ORDER. Signed by Magistrate Judge Tim A. Baker on 4/27/2015. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TOMMY A. SULLIVAN,
Plaintiff,
vs.
CAROLYN W. COLVIN Commissioner of the
Social Security Administration,
Defendant.

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No. 1:14-cv-00470-TAB-RLY

ORDER ON PLAINTIFF’S BRIEF IN SUPPORT OF APPEAL
I. Introduction
Plaintiff Tommy A. Sullivan appeals the Commissioner’s denial of his Social Security
application for a period of disability, disability insurance benefits, and supplemental security
income. Sullivan asserts: (1) the ALJ erroneously determined that Sullivan did not meet or equal
listings 12.05B or 12.05C; (2) the ALJ’s failure to summon a medical advisor was in error; (3)
the ALJ’s credibility determination was patently wrong; and (4) the ALJ erred in concluding that
Sullivan was capable of performing work in the national economy. For the reasons set forth
below, Plaintiff’s brief in support of appeal [Filing No. 14] is denied and the Commissioner’s
decision is affirmed.
II. Discussion
A.

Standard of Review

Under 42 U.S.C. § 405(g), the Commissioner’s factual findings must be upheld if
substantial evidence supports his findings. The Seventh Circuit defines substantial evidence as
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Blakes v. Barnhart, 331 F.3d 565, 568 (7th Cir. 2003). The ALJ is obligated to consider all

relevant medical evidence and cannot simply cherry-pick facts that support a finding of
nondisability while ignoring evidence that points to a disability finding. Denton v. Astrue, 596
F.3d 419, 425 (7th Cir. 2010). If evidence contradicts the ALJ’s conclusions, the ALJ must
confront that evidence and explain why it was rejected. Moore v. Colvin, 743 F.3d 1118, 1123
(7th Cir. 2014). The ALJ, however, need not mention every piece of evidence, so long as he
builds a logical bridge from the evidence to his conclusion. Pepper v. Colvin, 712 F.3d 351, 362
(7th Cir. 2013).
B.

Combination of impairments

Sullivan asserts that substantial evidence does not support the ALJ’s conclusion that
Sullivan did not meet or equal listings 12.05B and 12.05C. Sullivan contends that the
combination of his verbal I.Q. score, full scale I.Q. score, special education, and chronic backleg pain meet or equal these listings and warrant a finding of disability. Listing 12.05 covers
intellectual disability and “refers to significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested during the developmental period.” 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.05. Under listing 12.05B, a claimant meets a listing if he has a
valid verbal, performance, or full scale I.Q. of 59 or less. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
12.05B. A claimant meets listing 12.05C when he has “a valid verbal, performance, or full scale
I.Q. of 60 through 70 and a physical or other mental impairment imposing an additional and
significant work-related limitation of function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C.
Sullivan scored a verbal I.Q. of 58 and a full scale I.Q. score of 67, which meets the
requirements of listing 12.05. The ALJ acknowledged that fact. [Filing No. 12-2, at ECF p. 17.]
However, the ALJ found these scores were invalid. Relying on Dr. Greg Lynch’s consultative
assessment, the ALJ found that Sullivan’s I.Q. tests did not satisfy the listing because Dr. Lynch

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reported that these scores were an underestimate of Sullivan’s actual abilities, which he
estimated in the borderline range. Dr. Lynch also concluded that Sullivan’s adaptive behavioral
functioning was not deficient. [Filing No. 12-7, at ECF p. 18.] Sullivan rightly asserts that Dr.
Lynch did not specifically state that the I.Q. tests were invalid. However, the Court disagrees
with Sullivan’s conclusion that remand is necessary.
Substantial evidence supports the ALJ’s finding that the I.Q. tests were invalid. Maggard
v. Astrue, 167 F.3d 376, 379-81 (7th Cir. 1999). The ALJ accounted for Dr. Lynch’s conclusion
that the tests underestimated Sullivan’s ability. Likewise, the ALJ acknowledged Dr. Lynch’s
report that Sullivan gave poor effort on his I.Q. tests. He was unwilling to guess on the verbal
items and seemed to give up easily without giving adequate consideration. [Filing No. 12-7, at
ECF p. 17.] Sullivan’s employer’s report also supported the ALJ’s decision. Sullivan’s
employer noted that Sullivan worked many years as a skilled, reliable employee and was
considered a quick learner that worked well with others. Sullivan’s employer also believed
Sullivan conducted himself in a professional manner, all of which the ALJ determined showed
that Sullivan had good adaptive functioning skills. [Filing No. 12-6, at ECF p. 13-15.] Indeed,
Sullivan’s employer noted that Sullivan’s poor attendance resulted in his termination, not his
intellectual functioning. [Filing No. 12-6, at ECF p. 13-14.]
The ALJ further considered the fact that Sullivan did not attend any special education
classes as evidence to support a finding that Sullivan’s I.Q. tests were invalid. This reasoning
was erroneous as the evidence includes two months of special education. [Filing No. 12-6, at
ECF p. 52.] Even so, this error does not negate the fact that overwhelming evidence in the
record supports the ALJ’s conclusion that Sullivan’s scores were invalid and thus, Sullivan did

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not meet a listing.1 See Brazitis v. Astrue, No. 11-c-7993, 2013 WL 140893, at *11 (N.D. Ill.
Jan. 11, 2013) (“In some cases, the Seventh Circuit has affirmed the ALJ’s decision despite the
presence of flaws in reasoning when the ALJ’s other reasons are valid.”).
Sullivan also contends that the ALJ failed to specifically list listings 12.05B and 12.05C
in his decision, which is reversible error. Sullivan cites to Ribaudo v. Barnhart, 458 F.3d 580,
583 (7th Cir. 2006) to support this assertion. However, Ribaudo is distinguishable. In Ribaudo,
the ALJ failed to mention the relevant listing and did not evaluate any of the evidence to the
listing’s criteria. Id. Here, the ALJ discussed relevant evidence and evaluated the required
criteria under listing 12.05. Thus, the ALJ’s failure to specifically list listings 12.05B and
12.05C does not justify remand.
C.

Failure to summon a medical advisor

Sullivan contends that the ALJ’s failure to summon a psychologist to determine whether
Sullivan’s combination of impairments equaled a listing was in error. According to Sullivan, the
ALJ cited no evidence to support his medical equivalence determination, and therefore, the
decision must be remanded. The decision on whether to summon a medical advisor is one of
discretion. An ALJ should summon a medical advisor if he lacks sufficient information to
adequately develop the record. Clifford v. Apfel, 227 F.3d 863, 873 (7th Cir. 2000).
Here, the ALJ adequately developed the record. Sullivan argues that the ALJ used his
own layperson opinion in determining that Sullivan did not meet or equal a listing. However,
reading the ALJ’s step-three finding as a whole, the Court finds that the ALJ relied on medical

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Because substantial evidence supports the ALJ’s finding that Sullivan did not satisfy listing
12.05B or the first prong of listing 12.05C, the Court need not address whether Sullivan
possessed a physical or other mental impairment imposing additional and significant workrelated limitation of function so as to satisfy the second prong of listing 12.05C. See Maggard v.
Apfel, 167 F.3d 376, 379-81 (7th Cir. 1999).
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evidence to support his finding. In arriving at this decision, the ALJ reviewed Sullivan’s
psychological examination noting Sullivan’s moderate difficulties in concentration, persistence,
and pace, his mild restrictions in daily living and social functioning, and no episodes of
decompensation. [Filing No. 12-7, at ECF p. 15-19.] The ALJ acknowledged Sullivan’s
borderline intellectual functioning and relied on the consultative examination in determining that
Sullivan’s I.Q. tests were invalid. [Filing No. 12-7, at ECF p. 18.] The ALJ considered
Sullivan’s physical limitations, finding that the medical evidence did not establish nerve root
compromise. Moreover, the ALJ considered the state agency consultant’s report that found no
limitations in Sullivan’s ability to ambulate. [Filing No. 12-7, at ECF p. 7-9.] The ALJ provided
adequate information to support his conclusion that Sullivan did not meet or equal a medical
listing without summoning a medical advisor, and the Court will not disturb that decision.
Remand on this issue is not appropriate.
D.

Credibility determination

Sullivan also takes issue with the ALJ’s credibility determination. In particular, Sullivan
asserts that the ALJ’s credibility determination is contrary to the evidence because the ALJ failed
to acknowledge Sullivan’s special education history. Instead, the ALJ indicated, “During the
psychological consultative examination, the claimant reported that he completed ten years of
school while enrolled in specialized classes. However, the claimant’s school records do not
indicate he attended any special education classes or received educational accommodations.”
[Filing No. 12-2, at ECF p. 8.] To the contrary, Sullivan’s education records reveal that from
September 7, 1976, to November 9, 1976, Sullivan attended special education classes. [Filing
No. 12-6, at ECF p. 52; Filing No. 12-7 at ECF p. 15.] Because the ALJ failed to consider

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Sullivan’s special education, Sullivan argues that the location, duration, frequency and intensity
of his symptoms were not properly considered.
The standard of review used for credibility determinations is extremely deferential to the
ALJ. The Court will only overturn an ALJ’s credibility determination if it lacks any explanation
or support and is thus patently wrong. Bates v. Colvin, 736 F.3d 1093, 1098 (7th Cir. 2013);
Brazitis v. Astrue, No. 11-c-7993, 2013 WL 140893 (N.D. Ill. Jan. 11, 2013). Sullivan is correct
that the ALJ erred in his characterization of Sullivan’s special education classes as the evidence
shows Sullivan attended special education classes for at least two months. Even so, this is not
reversible error. The ALJ did not limit his consideration of Sullivan’s borderline intellectual
functioning to whether Sullivan attended special education classes. The ALJ also considered
Sullivan’s testimony that he could not read or write, the psychological consultative examination
where Sullivan did not report having difficulty reading or writing, and the field-office
interviewer who also reported Sullivan experienced no difficulty in reading or writing. [Filing
No. 12-2, at ECF p. 19; Filing No. 12-6, at ECF p. 28, 53; Filing No. 12-7, at ECF p. 15-17.]
Likewise, the ALJ considered Sullivan’s test results from the psychological consultative
examination in which Sullivan was unwilling to guess on verbal items and gave up easily,
leading the examiner to conclude that Sullivan’s intellectual functioning abilities were
underestimated.
The ALJ’s credibility determination also considered Sullivan’s precipitating and
aggravating factors; type dosage, effectiveness, and side effects of medication; treatment and
other measures, other than medication, taken for relief of pain or other symptoms; and his
activities of daily living. Simply put, the ALJ provided specific reasons for his credibility

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finding that were supported by evidence in the record. Porchaska v. Barnhart, 454 F.3d 731,
738 (7th Cir. 2006). The Court will not disturb this finding.
E.

Jobs in the national economy

Sullivan’s final issue on appeal relates to the ALJ’s step-five determination. Sullivan
argues that the ALJ’s RFC limiting him to simple, repetitive work failed to account for his
borderline intellectual functioning and moderate limitation in concentration, persistence, and
pace. Indeed, O’Connor-Spinner v. Astrue, 627 F.3d 614 (7th Cir. 2010), found that an ALJ was
required to orient a vocational expert to the totality of a claimant’s limitations, including
deficiencies in concentration, persistence, and pace. Simply limiting a claimant to simple,
repetitive work accounted for unskilled work but not for deficiencies in concentration,
persistence or pace. Failure to incorporate relevant limitations to concentration, persistence, or
pace would result in remand, unless one of two exceptions existed: (1) the record showed that the
VE independently reviewed the medical record or heard testimony directly addressing the
relevant limitations; or (2) the ALJ employed alternative phrasing specifically excluding the
tasks that someone with the claimant’s limitations would be unable to perform—i.e., a
hypothetical restricting the claimant to low-stress work when the claimant has a stress-related
limitation. O’Connor-Spinner, 627 F.3d at 619.
The first O’Conner-Spinner exception does not apply here as the ALJ posed a series of
increasingly restrictive hypotheticals to the VE. Under such circumstances, the Court assumes
that the VE is focused on the hypotheticals and not on the record. Id.; Similia v. Astrue, 573 F.3d
503, 521 (7th Cir. 2009). According to the Commissioner, the second exception applies because
the ALJ limited Sullivan to “work involving simple, repetitive tasks, requiring no independent
judgment regarding basic work processes; and work goals from day to day should be static and

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predictable.” The ALJ based this language on the limitations set forth by Dr. Lynch. [Filing No.
12-2, at ECF p. 6.] Dr. Lynch’s consultative examination reported that Sullivan was only
slightly limited in his capacity to understand, remember, and carry out instructions of simple,
repetitive tasks. He also was only slightly limited in his ability to tolerate stress and pressure of
day-to-day employment and sustain attention and concentration towards performance of simple,
repetitive tasks. Sullivan was slightly to moderately impaired in his capacity to respond
appropriately to supervision, coworkers, and work pressures in a work setting. [Filing No. 12-7,
at ECF p. 18.]
The ALJ’s RFC did not limit Sullivan only to simple, repetitive tasks—an error that
would warrant reversal under O’Connor-Spinner. Nor did the ALJ merely state that Sullivan
exhibited borderline intellectual functioning without accounting for his particular limitations.
See, e.g, Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir. 2002) (reversing an RFC that stated
that because of borderline intelligence claimant was seriously limited but not precluded from
understanding, remembering, and carrying out detailed instructions). Instead, as the
Commissioner aptly explains, the ALJ set forth varied limitations on the kinds of tasks Sullivan
could perform, the type of judgment Sullivan could exercise, and the nature and predictability of
the work goals Sullivan could perform. The ALJ’s alternative phrasing excluded tasks Sullivan
would have been unable to perform. Thus, the Court finds no reversible error on this issue.
III. Conclusion
For these reasons, Plaintiff’s brief in support of appeal [Filing No. 14] is denied and the
Commissioner’s decision affirmed.
Date: 4/27/2015

___________________________
Tim A. Baker
U.S. Magistrate Judge
Southern District of Indiana
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Distribution:
Patrick Harold Mulvany
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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