Smith v. SSA
Filing
20
MEMORANDUM OPINION & ORDER: 1) Smith's motion for summary judgment 18 is DENIED; 2) The Commissioner's motion for summary judgment 19 is GRANTED; 3) The Court will enter a separate judgment. Signed by Judge Jennifer B Coffman on 12/10/2012.(ECO)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
COVINGTON
CIVIL ACTION NO. 12-17-JBC
PENNY SMITH,
V.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
*************
This matter is before the court upon cross-motions for summary judgment on
Penny Smith's appeal of the Commissioner's denial of her application for Disability
Insurance Benefits (“DIB”). The court will grant the Commissioner's motion, R.19,
and deny Smith's motion, R.18, because substantial evidence supports the
administrative decision.
At the date of her disability filing, Smith was a 46-year-old woman with an
eighth-grade education, in special education classes. AR 78, 368. She had past
relevant work as a health aide. AR 397. On April 9, 2008, Smith applied for DIB,
with a disability onset date later amended to July 31, 2005, due to pain, poor
breathing, and a nonfunctioning kidney which required dialysis. AR 84-85, 133.
After initial and reconsideration denials, Administrative Law Judge (“ALJ”) Paul E.
Yerian issued a decision on February 7, 2011 determining that Smith was not
disabled within the meaning of the Social Security Act. AR 18-28. Under the
traditional five-step analysis, 20 C.F.R. § 404.1520; see also Preslar v. Sec'y of
1
Health and Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994), the ALJ
determined that Smith had not engaged in substantial gainful activity since July 31,
2005, her alleged onset date, at any time through her Date Last Insured (“DLI”) of
March 31, 2007, AR 20; that she had “severe” impairments of degenerative
changes in the cervical and lumbar spines, chronic renal insufficiency,
hypertension, obesity, and borderline intellectual functioning, AR 21; that her
impairments, whether considered singly or in combination, did not meet or equal
any of the Commissioner's Listings of Impairments (“LOI”), considering especially
LOI 12.05C, AR 21-23; that Smith retained the residual functional capacity (“RFC”)
to perform light work as defined in 20 C.F.R. § 404.1567(b) with additional
limitations of never climbing ladders, ropes, or scaffolds, occasionally stooping,
kneeling, and crawling, a need to avoid exposure to hazardous machinery and
unprotected heights, and limitation to simple, repetitive tasks, not involving fast
pace or strict time and production standards, with the ability to maintain attention
and concentration for two hour segments, AR 23; and that, based on her RFC, and
the testimony of a vocational expert, jobs existed in significant numbers in the
national economy which she could perform. AR 23. The ALJ therefore denied
Smith’s claim for DIB on February 7, 2011. AR 28. The Appeals Council denied
her request for review on November 23, 2011, AR 8-10, and she commenced this
action.
Smith challenges the ALJ's ruling on the ground that it was error to find that
she did not meet the requirements of LOI 12.05C.
2
In order to meet the standards set out in LOI 12.05C for mental retardation,
a claimant must first prove that she has a valid IQ score of 70 or below and
“significantly subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e., the evidence
demonstrates or supports onset before age 22.” 20 C.F.R. Pt. 404, Subpt. P,
App.1, LOI 12.05. In addition to this requirement, a claimant must establish the
required level of severity by showing “a physical or other mental impairment
causing an additional and significant work-related limitation of function.” See id at
12.05C. Smith argues that her school records establish significantly subaverage
general intellectual functioning with onset before age 22, that her physical
impairments prove that she had another work-related limitation of function, and
that the ALJ abused his discretion by refusing to order adult IQ testing in order to
provide evidence of IQ scores as an adult.
Smith points specifically to school records showing that she obtained an IQ
of 65 at the age of eight years, two months, and an IQ of 64 at the age of 11
years, nine months. AR 181-83. She concedes that “intelligence test results
obtained between the ages of seven and sixteen are considered to be current for
four years if the score is less than forty, and for two years if the score is forty or
above.” Elam ex rel. Golay v. Comm'r of Soc. Sec., 348 F.3d 124, 125 (6th Cir.
2003), citing 20 C.F.R. § 404, Subpt. P, App. 1, § 112.00D.
The ALJ reasoned that there were no valid IQ scores in the record which
were obtained after the age of 16, and that under the regulations the earlier scores
3
“could not be considered as indicative of her functioning as an adult.” AR 22. The
ALJ went on to note that LOI 12.05C cannot be met based on IQ scores alone.
The claimant must also show deficits in adaptive functioning manifested before the
age of 22. See Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). He found that
Smith's adaptive functioning was not consistent with a finding of mental
retardation, because she was employed in unskilled competitive work for a number
of years, performed a full range of daily activities, and had no reports of difficulty
socializing with others or having problems in any of the adaptive domains other
than academics, such as social skills, communication, and daily living skills. AR
22; see West v. Comm'r of Soc. Sec., 240 Fed.Appx. 692, 698 (6th Cir. 2007).
He concluded that Smith did not meet any of the criteria of 12.05C. Id.
Smith contends that the ALJ should have found that she had deficits in
adaptive functioning based on her school records as well as a closer examination of
her activities as an adult. She testified at the administrative hearing that her
competitive work was as an unskilled nurse's aide, performing only personal care
services, and she had not taken a test to become certified because the “head
nurse” said she was not able to. AR 352, 368. For much of her life, she lived with
her family members and relied on them for assistance with paying bills, reading
mail, and shopping. AR 352-53, 366-67, 379, 382, 385.
The issue is not whether the evidence could have supported a contrary
finding, but whether there is substantial evidence to support the finding the ALJ
made. See Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
4
Smith testified that she could follow directions and drive herself, could do
household chores and visit flea markets, limited primarily by pain, could read some
recipes, and would be able to write a note saying that she had gone to the store for
milk. AR 353, 378-82, 385-6. She had worked full-time as a nurse's assistant from
1992 to 1995. AR 134. She was able to fill out standard forms relating to her
disability, and, although she was a poor speller and may have misunderstood some
of the questions, she did spell “dialysis” correctly and provided pertinent answers
to most of the questions. AR 145-65. She also listed “reading” as one of her
recreations. AR 163. This is substantial evidence to support the ALJ’s
determination.
Even assuming, for the sake of argument, that Smith's adaptive functioning
was at the “mentally retarded” level, the ALJ did not have a duty to order a
consultative examination. Generally, it is the plaintiff's burden to show by clear and
convincing evidence that she is disabled. See Casey v. Sec'y of Health and Human
Servs., 987 F.2d 1230, 1232 (6th Cir. 1993); 20 C.F.R. § 404.1512(a). The
Commissioner's regulations provide that the agency “may” ask for additional
evaluations if the claimant's medical sources “cannot or will not give us sufficient
medical evidence about your impairment for us to determine whether you are
disabled....” 20 C.F.R. § 404.1517. The Sixth Circuit has interpreted this section
as giving the ALJ discretion to order an examination. See Foster, 279 F.3d at 355;
Landsaw v. Sec'y of Health and Human Servs., 803 F.2d 211, 214 (6th Cir.1986);
see also Thornton v. Bowen, 815 F.2d 80 (table), 1987 WL 36450 (6th Cir. 1987)
5
(“Section 404.1517 does not, as Thornton contends, mandate a consultative exam
in this or any disability determination. This section merely sets forth circumstances
in which the Secretary may ask a claimant to undergo a consultative examination
at the Secretary's expense.”)
Smith cites an unpublished district court case from Ohio, Johnston v.
Comm'r of Soc. Sec., 2012 WL 1030462 (S.D. Ohio, March 27, 2012) in which
the court found that the ALJ had failed in his duty to fully and fairly develop the
record by refusing to obtain a consultative psychological examination with IQ
testing. The ALJ does have a duty to fully and fairly develop the record, which
rises to a special duty when a claimant appears unrepresented by counsel. See
Lashley v. Sec’y of Health and Human Servs., 708 F.2d 1048, 1051 (6th Cir.
1983). Such was not the case here, and there is some authority that the
heightened duty to develop the record applies only to cases where the claimant is
unrepresented. See Ball v. Sec’y of Health and Human Servs., 931 F.2d 893, 1991
WL 66051 (6th Cir. 1991). “There is no bright line test for determining when the
[ALJ] has…failed to fully develop the record….” and that the matter should be
determined on a case by case basis. Lashley at 1051. As there is substantial
evidence to support the ALJ’s finding that Smith’s adaptive functioning was not in
the mentally retarded range, a referral for IQ testing would have been an idle
formality, since even scores of 70 or below would not have sufficed to meet the
requirements of LOI 12.05C. Therefore, the court finds no violation of the ALJ’s
duty to develop the record.
6
The ALJ having properly applied the relevant legal standards and his decision
being supported by substantial evidence,
IT IS ORDERED that Smith’s motion for summary judgment, R. 18, is
DENIED.
IT IS FURTHER ORDERED that the Commissioner’s motion for summary
judgment, R. 19, is GRANTED.
The court will enter a separate judgment.
Signed on December 10, 2012
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?