Kress v. Social Security Administration, Commissioner of

Filing 20

MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Signed by U.S. District Senior Judge Sam A. Crow on 1/27/15. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MATTHEW KRESS,
Plaintiff,
vs.

Case No. 13-1334-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff
supplemental security income payments.

The matter has been

fully briefed by the parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

scintilla, but less than a preponderance, and is satisfied by

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such evidence that a reasonable mind might accept to support the
conclusion.

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record as a whole,

including whatever in the record fairly detracts from the weight
of the Commissioner's decision and, on that basis, determine if
the substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).

The claimant's physical or

mental impairment or impairments must be of such severity that
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they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
the claimant survives step four, the fifth and final step
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If

requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On March 27, 2013, administrative law judge (ALJ) Timothy

G. Stueve issued his decision (R. at 10-22).

Plaintiff has not

engaged in substantial gainful activity since July 13, 2011, the
application date (R. at 12).

At step two, the ALJ found that

plaintiff had the following severe impairments:
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bipolar,

depression, anxiety, borderline intellectual functioning, and
hearing impairment (R. at 12).

At step three, the ALJ

determined that plaintiff’s impairments do not meet or equal a
listed impairment (R. at 14).

After determining plaintiff’s RFC

(R. at 16), the ALJ determined at step four that plaintiff was
unable to perform past relevant work (R. at 21).

At step five,

the ALJ found that plaintiff can perform jobs that exist in
significant numbers in the national economy (R. at 21-22).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 22).
III.

Did the ALJ err by not ordering a consultative examination

to determine whether plaintiff meets listed impairment 12.05C,
and to clarify the extent of plaintiff’s cognitive deficits?
The ALJ found that plaintiff’s impairments do not meet or
equal listed impairment 12.05C (R. at 15).

Listed impairment

12.05C is as follows:
12.05 Mental retardation: Mental retardation
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....
*********************

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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.
20 C.F.R., Pt. 404, Subpt. P., App. 1 at 479 (2013 at 512).

In

order to satisfy listed impairment 12.05C, plaintiff must show:
(1) significantly subaverage general intellectual functioning
with deficits in adaptive functioning initially manifested
during the developmental period; i.e., the evidence must
demonstrate or support onset of the impairment before age 22
(a.k.a. the “capsule” definition), (2) a valid verbal,
performance or full scale IQ of 60-70, and (3) a physical or
other mental impairment imposing an additional and significant
work-related limitation of function.

Wall v. Astrue, 561 F.3d

1048, 1062 (10th Cir. 2009).
Plaintiff has the burden to present evidence establishing
that his impairments meet or equal a listed impairment.
Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005).
In order for the plaintiff to show that his impairments match a
listing, plaintiff must meet “all” of the criteria of the listed
impairment.

An impairment that manifests only some of those

criteria, no matter how severely, does not qualify.

Sullivan v.

Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 891 (1990)(emphasis
in original).

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The ALJ found that plaintiff has a IQ score of 60-70 (R. at
15).

IQ scores from the previous ALJ decision, which is

included in the record in this case, shows IQ scores within that
range (R. at 114-115).

The ALJ also found that plaintiff had a

physical or other mental impairment imposing an additional and
significant work-related limitation of functioning (R. at 15).
Therefore, these factors were found to be present by the ALJ,
which is to plaintiff’s favor, and are therefore not issues
before the court.

However, the ALJ concluded that the evidence

did not establish significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially
manifested during the developmental period.

The ALJ noted that

the record contained very little evidence regarding plaintiff’s
adaptive functioning prior to age 22.

The ALJ found the

statement of plaintiff’s mother that he had difficulty in school
to be vague and conclusory, and cannot establish deficits in
adaptive functioning on its own.

The ALJ also noted that

plaintiff had lived on his own, can perform household chores,
can read, change the oil in his car, drive alone, sell items on
the internet, shop and cook.

For these reasons, the ALJ

concluded that plaintiff’s impairments did not meet listing
12.05C (R. at 15).
As noted above, plaintiff has the burden to present
evidence establishing that his impairments meet or equal a
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listed impairment.

Plaintiff testified that he attended special

education classes in school, mainly in math (R. at 38).
However, plaintiff also testified that he attended and completed
barber college and was a CNA (certified nurse’s aide) (R. at 3940).

Two mental status examinations reported that plaintiff

attended public school, graduating in 1991.

He attended regular

classes and plaintiff reported that his grades were Bs.
Plaintiff indicated that he reads well.

Both reports also note

that plaintiff completed barber college and earned his license
(R. 451, 459).

Plaintiff reported that, in 2011-2012, he worked

one day a week as a maintenance janitor.

He further reported

that he last worked full-time as a butcher in 2007, working at
this job for 9 months and leaving due to an on-the-job injury
(R. at 451, 459).

Plaintiff was employed from 1997-2000 and in

2002 with earnings which would ordinarily be considered to be
substantial gainful activity (R. at 236,
http://www.socialsecurity.gov/oact/cola/sga.html).
In the case of Bland v. Astrue, 432 Fed. Appx. 719, 723
(10th Cir. Apr. 27, 2011), the ALJ had not addressed listed
impairment 12.05C.

The court stated that the most obvious

reason for the ALJ not to address the listed impairment was the
evidence contrary to the capsule definition.

The court noted

that plaintiff completed the 11th grade and was never in special
education classes.

Furthermore, plaintiff had a successful work
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history.

The court cited to Cox v. Astrue, 495 F.3d 614, 619

(8th Cir. 2007), which upheld the ALJ’s determination that
claimant’s impairments did not meet the listing for mental
retardation based in part on her previous successful work at a
semiskilled job for more than two years.

The court stated that

an IQ score of 67 would not support a presumption of retardation
before age 22, and that claimant’s school and work history would
overcome a presumption in any event.
In the case before the court, it is not clear whether
plaintiff was or was not in special education classes.
graduate from high school.

He did

The mental status examinations

reported that was in regular classes, and plaintiff stated that
he made Bs in school.

Plaintiff reported that he reads well,

completed barber college and obtained his license, and also took
classes to become a certified nurse’s aide (CNA).

After age 22,1

plaintiff was also earning sufficient income which is ordinarily
considered to be substantial gainful activity for five years, in
1997-2000 and 2002.
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.

Hackett v. Barnhart, 395

F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).

Although the court will

not reweigh the evidence, the conclusions reached by the ALJ
1

Plaintiff was born on September 10, 1974; thus he was 22 years of age in 1996.
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must be reasonable and consistent with the evidence.

See Glenn

v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must
affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as
adequate to support a conclusion).
the sufficiency of the evidence.

The court can only review

Although the evidence may

support a contrary finding, the court cannot displace the
agency’s choice between two fairly conflicting views, even
though the court may have justifiably made a different choice
had the matter been before it de novo.

Oldham v. Astrue, 509

F.3d 1254, 1257-1258 (10th Cir. 2007).
Plaintiff has failed to meet his burden of proving
significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested during the
developmental period; i.e., the evidence must demonstrate or
support onset of the impairment before age 22.

Plaintiff’s

educational and employment history, as set forth above, provides
substantial evidence to support the ALJ’s finding that plaintiff
did not have significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially
manifested during the developmental period.
The final issue before the court is whether plaintiff erred
by not ordering a further consultative examination.
Consultative medical examinations may be ordered by the ALJ when
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the information needed is not readily available from medical
treatment sources.

20 C.F.R. §§ 404.1512(e), 404.1519a.

The

Commissioner has broad latitude in ordering consultative
examinations.

Nevertheless, it is clear that, where there is a

direct conflict in the medical evidence requiring resolution, or
where the medical evidence in the record is inconclusive, a
consultative examination is often required for proper resolution
of a disability claim.

Similarly, where additional tests are

required to explain a diagnosis already contained in the record,
resort to a consultative examination may be necessary.

There

must be present some objective evidence in the record suggesting
the existence of a condition which could have a material impact
on the disability decision requiring further investigation.

The

claimant has the burden to make sure there is, in the record,
evidence sufficient to suggest a reasonable possibility that a
severe impairment exists.

When the claimant has satisfied this

burden in that regard, it then becomes the responsibility of the
ALJ to order a consultative examination if such an examination
is necessary or helpful to resolve the issue of impairment.

In

a counseled case, the ALJ may ordinarily require counsel to
identify the issue or issues requiring further development.

In

the absence of such a request by counsel, the court will not
impose a duty on the ALJ to order a consultative examination
unless the need for one is clearly established in the record.
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The ALJ should order a consultative exam when evidence in the
record establishes the reasonable possibility of the existence
of a disability and the result of the consultative exam could
reasonably be expected to be of material assistance in resolving
the issue of disability.

Hawkins v. Chater, 113 F.3d 1162,

1166-1168, 1169 (10th Cir. 1997; see Madrid v. Barnhart, 447
F.3d 788, 791-792 (10th Cir. 2006)(where additional tests are
required to explain a diagnosis already in the record, resort to
a consultative examination may be necessary).
Although plaintiff argues that the ALJ should have ordered
a consultative examination in order to obtain IQ testing, the
ALJ relied on earlier IQ testing to find that plaintiff had a IQ
test between 60-70 (R. at 15, 114-115).
plaintiff’s benefit.
testing.

This finding was to

Thus, there was no reason to order further

The only other purpose for ordering a consultative

examination was to determine if plaintiff had significantly
subaverage general intellectual functioning with deficits in
adaptive functioning initially manifested during the
developmental period; i.e., the evidence must demonstrate or
support onset of the impairment before age 22.

However, the

record already contains two mental status examinations, from
October 13, 2011 and March 29, 2012, performed by Dr. Barnett, a
clinical psychologist (R. at 451-453, 459-461).

Dr. Barnett

examined plaintiff’s background, and stated in his report that
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plaintiff graduated from high school, was in regular classes,
and plaintiff stated his grades were Bs.

Dr. Barnett also noted

that plaintiff completed barber college and obtained a license.
He performed a mental status examination on plaintiff on both
occasions (R. at 451-452, 459-460).

Plaintiff has failed to

demonstrate that a third mental status examination is warranted
on the facts of this case.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed pursuant to sentence four of 42 U.S.C.
§ 405(g).
Dated this 27th day of January, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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