Bray v. SSA
MEMORANDUM OPINION & ORDER: 1) the Commissioner's motion for summary judgment (R. 18 ) is GRANTED; 2) Bray's motion for summary judgment (R. 12 ) is DENIED. A separate judgment will issue. Signed by Judge Jennifer B Coffman on 1/26/12.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 10-320-JBC
DAVID O. BRAY,
MEMORANDUM OPINION AND ORDER
MICHAEL J. ASTRUE, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,
This matter is before the court on cross-motions for summary judgment on
plaintiff David Bray=s appeal of the Commissioner=s denial of his application for
supplemental security income and disability insurance benefits (R. 12, 18). Bray
brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of an
administrative decision of the Commissioner of Social Security. The court, having
reviewed the record and being otherwise sufficiently advised, will grant the
Commissioner=s motion and deny Bray=s motion.
I. FACTUAL BACKGROUND
The plaintiff, David O. Bray, filed an application 1 for supplemental security
income and disability insurance benefits on December 30, 2008.
disability beginning on February 1, 2006, for mental limitations, back pain, vision
problems, learning disorder, anxiety, anger and anti-social behavior. His claim was
1 In his opinion, the ALJ noted that Bray filed a prior application in 2001 that was initially denied, not
pursued further and is now administratively final. A.R. 284.
denied initially on May 26, 2009, and upon reconsideration on August 19, 2009.
Thereafter, Bray filed a written request for a hearing on September 4, 2009. Bray
appeared before the Administrative Law Judge (“ALJ”) and testified along with an
impartial vocational expert, Cathy Sanders. See A.R. 13-29. Bray appeared at the
hearing, which lasted approximately twenty minutes, with a non-attorney
representative, Brenda Bailey, and testified that he lives at home with his wife and
three children. In addition, he stated that he had an eighth-grade education. He
informed the ALJ that he obtained a driver’s license by passing a written examination.
Bray is currently unemployed but discussed his past relevant jobs, including press
operator, cook, assembly factory worker, and lawn worker. He alleged disability,
claiming, “I just can’t put up with people” and indicated that he had problems reading
and writing. A.R. 20, 24. He stated that he spends most of his time at home helping
his wife with household chores and spending time with his three children, including
taking his son fishing and occasionally watching his son play football.
vocational expert Sanders also testified at the hearing that Bray would be able to
perform jobs such as cleaner, lawn worker, and laborer. A.R. 27.
II. THE ALJ=S DETERMINATION
Applying the traditional five-step analysis, see 20 C.F.R. §§ 404.1520, 416.920;
Jones v. Comm’r of Soc. Sec., 336 F.3d 469 (6th Cir. 2003), the ALJ found that
Bray had not engaged in substantial gainful activity since the application date; that
Bray had a severe impairment of borderline intellectual functioning; and that Bray did
not have an impairment or combination of impairments that meets or equals an
impairment listed in 20 C.F.R. Part 404, Appendix 1. Thus, the ALJ could not find
Bray was disabled on that basis. The ALJ then proceeded to Step 4, at which the
ALJ determined that Bray had no past relevant work. At Step 5, the ALJ concluded
that significant jobs in the national economy exist that Bray could perform, such as
cleaner, dishwasher, vehicle washer, and laborer, considering his age, education,
work experience and residual functional capacity.
The ALJ issued a decision on April 1, 2010, finding that Bray was not disabled
and thus not entitled to supplemental security income or disability insurance benefits.
On October 1, 2010, the Appeals Council denied Bray’s request for review and the
ALJ’s decision became the final decision of the Commissioner of Social Security.
Bray then filed this action for judicial review in this court pursuant to 42 U.S.C. §
III. LEGAL ANALYSIS
Bray raises seven arguments on appeal: (1) the ALJ failed to properly develop
the record for a plaintiff not represented by an attorney; (2) the ALJ erred at step two
in failing to find that the claimant’s mental condition, visual deficits, and low back
pain were severe impairments; (3) the ALJ failed to find that the claimant’s mental
condition satisfied the second prong of the Listing in 12.05C; (4) the ALJ failed to
adopt the exertional and non-exertional restrictions in determining claimant’s residual
functional capacity; (5) the ALJ erred in finding that the claimant had an eighth-grade
education; (6) the ALJ erred in excluding restrictions from the examining psychologist
in forming his hypothetical; and (7) the ALJ failed to resolve conflicts between the
vocational testimony and the Dictionary of Occupational Titles. For the following
reasons, the ALJ’s decision was supported by substantial evidence and must be
1. The ALJ’s duty to develop the record
Bray, relying on Lashley v. Sec. of Health and Human Servs., contends that the
ALJ failed in his duty to properly develop the record because he was not represented
by counsel and the ALJ did not address missing school records, medical records, and
x-rays. 708 F.2d 1048 (6th Cir. 1983). The ALJ has a special, heightened duty to
develop the record when the claimant is unrepresented by counsel, not capable of
presenting an effective case, and is unfamiliar with the hearing procedures. See
Wilson v. Comm’r of Soc. Sec., 280 Fed. App’x 459 (6th Cir. 2008)(citing Lashley,
708 F.2d at 1051-52)). The fact that Bray appeared at the hearing without counsel
is not alone cause for error. See Duncan v. Sec’y of Health & Human Servs., 801
F.2d 847, 856 (6th Cir. 1986). Rather, each case should be examined on its own
merits to determine whether the ALJ failed to fully develop the record and therefore
denied the claimant a full and fair hearing. Id. at 856.
Although this case appears similar to Lashley in that the hearing was rather
brief and that both claimants had limited education and mental abilities, the ALJ in this
case did fulfill his duty to fully develop the record. Here, Bray was represented at the
hearing by a non-attorney representative, Brenda Bailey, as permitted by the
regulations at the administrative level.
See 42 U.S.C. § 406(a); 20 C.F.R. §
At the February 9, 2010, hearing the ALJ specifically asked
representative Bailey, “are there any other records we may expect to receive after
today?” to which she replied, “No.” A.R. 15-16. The ALJ probed further, asking the
representative to clarify the existing medical records submitted in the file concerning
an outstanding medical record from a visit to Dr. Kishore and a mention of a visit to Dr.
Schremely at Compcare. Id. at 16. Concluding with his inquiry into the medical
records, the ALJ directed to the representative, “It doesn’t sound like anything else is
out there, but if there is we can hold the record open.” Id. Clearly, the ALJ inquired
into the existence of Bray’s medical records and gave him ample opportunity to
supplement the record.
As to school records, a letter directed to the Clay County Board of Education
was sent on January 8, 2009, requesting information on Bray, but apparently there
was no response. A.R. 220-221. Bray argues that the ALJ erred in failing to admit
school records from a prior file but fails to point out that the ALJ had access to any
In the ALJ’s opinion, he specifically states that Bray’s most recent
application was filed in September 2001, was denied at the initial level, not pursued
further, and is now final.
See A.R. at 284.
There is no mention of any other
applications or further reference to school records in the ALJ’s opinion. Therefore,
on this record, there is no evidence to support Bray’s contention that the ALJ should
have admitted any prior school records.
Bray’s assertion that the ALJ failed to request outstanding x-rays is not enough
to support a claim that the ALJ did not fully develop the record. Bray reported to Dr.
Hoskins at the consultative exam that he had x-rays taken three months prior to that
examination, but that he did not know the findings. A.R. 237. However, he also
reported that he had no treatment for physical or mental conditions and that he was
not currently taking any medications. Id. at 236-37. At the hearing, Bray was given
ample opportunity to supplement the record. Bray offers no additional insight in his
brief regarding what these x-rays refer to or how they would have shown a disability
or impairment. See R. 18 at 5. Thus, Bray’s contention that the ALJ failed to fully
develop the record is without merit.
2. The ALJ’s findings in step two that Bray’s visual deficits, back pain and
anxiety were not severe impairments
The ALJ’s determination that Bray’s visual deficits, back pain, and anxiety
were not severe impairments is supported by substantial evidence.
impairment must significantly limit the claimant’s ability to do basic work activities.
See 20 C.F.R. § 404.1520(c); 404.920(c). In making his determination that Bray’s
back pain and visual deficits were not severe impairments, the ALJ relied on the
consultative exam of Dr. Hoskins.
Hoskins found that Bray was able to “walk
normally” and had a “full range of motion in his back.” In addition, Dr. Hoskins
determined that Bray had vision of “20/50 uncorrected.” A.R. 287. According to
Bray, he “is supposed to wear glasses but can’t afford them.” A.R. 155. The ALJ
indicated in his report that he relied on a state agency report that examined the
medical records and determined that Bray’s alleged impairments posed no significant
limitations on work activities and were considered not severe.
A.R. 287, 241.
Neither Bray nor his non-attorney representative mentioned either his back pain or
visual deficits at the hearing before the ALJ. Bray offers no evidence to contradict
the findings of Dr. Hoskins or show why the ALJ should not have relied on the medical
opinions in the record.
Regarding his anxiety, the ALJ relied on Dr. Baggs’s opinion that Bray “did not
appear to be presenting with any significant psychological problems, with the
exception of limited IQ and academic functioning.” A.R. 287, 231. Moreover, the
record reflects that Bray has not sought treatment for his alleged impairments of back
pain, visual deficits or anxiety. The ALJ noted one medical record from an unknown
source in 2009 indicating that Bray was assessed with depression and anxiety, but no
treatment plan was recommended. A.R. at 287; A.R. at 280 (Exhibit C11F). Bray
does not elaborate or explain this medical record at the February 2010 hearing before
the ALJ or in his briefing to the court. Bray described that he felt “weird around
people” and that he gets “real aggravated,” however, when asked by the ALJ if he
ever took any medication or attended counseling, Bray replied that he “shied away
from it.” A.R. 21. Although not dispositive, treatment that a claimant has received
is a relevant factor in evaluating the alleged intensity and persistence of symptoms.
See Carelli v. Comm’r of Soc. Sec., 390 Fed. App’x 429, 436 (6th Cir. 2010) (citing
20 C.F.R. 404.1529(c)(3)(v)(concluding that lack of treatment for mental anxiety
was a factor in deciding that anxiety was not a severe impairment)). Therefore,
substantial evidence supports the ALJ’s conclusion that Bray’s back pain, visual
deficits and anxiety were not severe impairments.
3. 12.05C finding
The ALJ did not err in finding that Bray did not meet the listing in section
12.05C of the regulations for mental retardation.
Listing 12.05C provides in
Mental retardation refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested
during the developmental period; ie., 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 significant
work-related limitation of function.
20 C.F.R. Part 404, subpart P, appendix 1.
To meet the listing for mental retardation, an impairment must satisfy both the
diagnostic description in the introductory paragraph and one of the sets of criteria,
such as (C) referenced above.
Here, the ALJ determined that Bray had the
impairment of borderline intellectual functioning, not mental retardation. A.R. 286.
He reviewed the psychological testing report from Dr. Baggs, the psychologist who
administered the Wechsler Adult Intelligence Test (“WAIS-III”) in 2009 at the
agency’s request. The WAIS-III showed that Bray had a verbal IQ score of 67, which
is in the extremely low to borderline range, a performance score of 74, and full scale
IQ score of 67. A.R. at 227.
His diagnostic impression was “mild mental
retardation,” although he noted without further elaboration that “prognosis regarding
the claimant’s mental condition was judged to be fairly good.” A.R. at 231.
It is not disputed that Bray has “a verbal IQ score of 67, a performance IQ score
of 74 and a full scale IQ score of 67.” See A.R. 287. Because the performance and
IQ scores are within the listing range, this requirement is met. However, IQ scores
alone are insufficient to meet 12.05(C) requirements. Blanton v. Soc. Sec. Admin.,
118 Fed. App’x 3, 7 (6th Cir. 2004).
In addition to the requisite IQ score, Bray must also demonstrate significantly
sub-average general intellectual functioning with deficits in adaptive functioning
which manifested prior to age 22 as specified in the diagnostic description of listing
Here, the parties dispute the ALJ’s finding that “Bray’s adaptive
functioning is greater than that of a mentally retarded individual.” A.R. 288.
Substantial evidence in the record supports the ALJ’s decision that Bray is not
so limited in adaptive functioning as to meet the Listing in 12.05C. Adaptive skills
are social, communicative, and daily-living skills. See Heller v. Doe, 509 U.S. 312,
329 (1993). The claimant’s activities will be evaluated for “their independence,
appropriateness, effectiveness, and sustainability,” to determine whether the
claimant is “capable of initiating and participating in activities independent of
supervision or direction.” 20 C.F.R. Part 404, Subpart P., App. 1, Listing 12.00(C).
The ALJ reviewed the reports of non-examining state agency mental health
experts Dr. Sillers (Exhibit C6F) and Dr. Jacobsen (Exhibit C7F).
found that “Bray’s mental allegations are only partially credible,” and objective
findings indicate that he can “carry out simple instructions . . .complete [a] normal
work-week . . .demonstrate adequate judgment . . and maintain appropriate hygiene
and dress.” A.R. at 244.
Although Bray indicated that he “does not like people,” he is also a father of
three who enjoys watching his son play football, fishing, “work[ing] outside mowing
and weed-eating”, and occasionally goes to the store “just to have some time away
from home.” A.R. 23, 153-54. The ALJ determined that Bray is “able to take care
of his personal needs, manage money, and can read and do simple math.” A.R. 288.
Based upon his own observations, the ALJ found that the claimant was able to
understand and follow the hearing proceedings and all lines of questioning. A.R.
289. In addition, Bray performed semi-skilled work in the past such as assembly
worker and cook. Id. “An ALJ’s findings based on the credibility of the applicant
are to be accorded great weight and deference, particularly since an ALJ is charged
with the duty of observing a witness’ demeanor and credibility.” Walters v. Comm’r
of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). Thus, while Bray did have IQ
scores in the requisite range of Listing 12.05C, substantial evidence supports the
ALJ’s finding that Bray failed to meet the adaptive skills prong.
At first glance this was a fairly close question given Dr. Baggs’s diagnostic
impression of “mild mental retardation;” however, the court cannot try the case de
novo or decide questions of credibility, even if substantial evidence would support the
opposite conclusion. See Johnson v. Comm’r of Soc. Sec., 652 F.3d 646, 648 (6th
Since the court finds that substantial evidence supports the ALJ’s
determination that Bray’s impairment did not satisfy the introductory paragraph of
listing 12.05C, the Court need not address whether he had another impairment that
imposed significant and additional work-related restrictions.
4. The ALJ’s residual functional capacity finding
An ALJ must determine a claimant’s residual functional capacity (RFC)
considering “numerous factors” including “medical evidence, non-medical evidence,
and the claimant’s credibility.” Coldiron v. Comm’r of Soc. Sec., 391 Fed. App’x
435, 443 (6th Cir. 2010). Here, the ALJ determined that Bray had the RFC to
“perform a full range of work at all exertional levels,” with limitations to “simple
tasks/instructions in non-public, object-oriented settings with no more than casual
and infrequent contact with others” and “[he is] precluded from work that requires
more than a 4th grade reading level.” A.R. 289. Bray argues that the ALJ erred in
relying on the opinions of Steve McFarland, who has “no medical credentials,” and Dr.
Beihn, who Bray alleges did not review the Hoskins report. Bray’s argument fails to
take into account the “numerous factors” the ALJ must consider in formulating his
The ALJ found persuasive that Bray had not obtained treatment for his alleged
impairments and the record did not contain any opinions from Bray’s own treating or
examining physicians. Thus, he concluded that Bray’s “history does not suggest a
disabling level of pain or other functional limitations.” This conclusion is indeed
supported by medical evidence in the record. See A.R. 242-244 (Mental Residual
Functional Capacity Assessment by Dr. Ilze Sillers); A.R. 260-262 (Mental Residual
Functional Capacity Assessment by Dr. Jan Jacobsen). Dr. Sillers, who examined
Bray on May 20, 2009, determined that Bray could “complete a normal work-week
without excessive interruptions from psychologically based symptoms” (A.R. 244);
Dr. Jacobsen, who examined Bray on August 17, 2009, also opined that Bray was not
significantly limited in his ability to complete a normal work-week (A.R. 261).
Therefore, substantial evidence exists in the record to support the ALJ’s RFC
5. The ALJ’s finding that claimant had an eighth-grade education
Bray’s argument that the ALJ erred in finding that he had an eighth-grade
education because he participated in “special education” and test results “place the
claimant at a third and fourth grade level respectively in spelling and reading” is not
fully developed or explained. See R.15 at 16. The ALJ discussed that Bray had an
eighth-grade education in his opinion (A.R. 290), yet went on to account for Bray’s
limitations, specifically stating in his RFC assessment that the “claimant is precluded
from work that requires more than a 4th grade reading level.” Moreover, the ALJ
asked the VE at the hearing to assume a “restriction to object-oriented work settings
that accommodate fourth grade literacy skills.” A.R. 27. Because the court will not
engage in guess-work regarding Bray’s argument that the ALJ erred in finding he had
an eighth-grade education, there is nothing further for the court to address.
6. The ALJ’s hypothetical question posed to the vocational expert
Bray argues that the ALJ did not “adopt the mental restrictions of Dr. Baggs”
and that the mental restrictions the ALJ asked the vocational expert (VE) to assume
were “less restrictive” than those assessed by non-examining sources. R. 13 at 16.
At the hearing the ALJ posed the following hypothetical to the VE:
“[A]ssuming no exertional limitations, but limitations to simple tasks or
instructions in non-public settings, with casual and infrequent contact
with others, and further assume a restriction to object-oriented work
settings that accommodate fourth grade literacy skills, is that
compatible with any of the occupations that Mr. Bray’s previously
The VE responded that Bray could engage in jobs such as cleaner, lawn worker,
and laborer. The ALJ then asked, “if we assumed the person unable to sustain
concentration, persistence or pace in a reliable manner on an eight-hour day,
five-day-a-week work schedule, could I infer they couldn’t do these or any other sorts
of jobs?” Id. at 28. The VE responded, “That’s correct.” Id. Bray appears to
argue that the ALJ should have assumed this latter question, describing an individual
unable to sustain a normal work-week, as the appropriate question and hypothetical
that he should have relied on in making his determination. See R. 13 at 8.
“In order for a vocational expert's testimony in response to a hypothetical
question to serve as substantial evidence in support of the conclusion that a claimant
can perform other work, the question must accurately portray a claimant's physical
and mental impairments.” Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 516 (6th Cir.
2010). Hypothetical questions, however, need only incorporate those limitations
which the ALJ has accepted as credible. Casey v. Sec'y of Health & Human Servs.,
987 F.2d 1230, 1235 (6th Cir.1993). For the following reasons, the ALJ’s directive
that the VE consider Bray’s “limitations to simple tasks or instructions in non-public
settings, with casual and infrequent contact with others,” and “a restriction to
object-oriented work settings that accommodate fourth grade literacy skills,” is
supported by substantial evidence in this instance.
Dr. Baggs interviewed Bray in early 2009. Bray himself reported to Dr. Baggs,
“I can read pretty good. I can do math; I can count it on my fingers.” A.R. 225.
Baggs determined that Bray “did not appear to be presenting with any significant
psychological problems, with the exception of limited IQ and academic functioning.”
A.R. 231. Further, Baggs opined that Bray “has the ability to understand and
remember simple instructions” although he may have “mild to moderate difficulty
relating appropriately with people in either a work place environment or social
setting.” Id. Thus, the ALJ’s hypothetical does account for the limitations found by
Dr. Sillers determined that Bray’s mental limitations are “only partially
credible,” finding that he could “complete a normal work week without excessive
interruptions from psychologically based symptoms.” A.R. 244. Further, he noted
that he is capable of maintaining appropriate hygiene and dress and that he could
“respond appropriately to supervisors and co-workers” and “generally work with
things rather than people.” Id. The ALJ further noted that “as to concentration,
persistence, and pace,” there was no evidence that Bray’s limitations did not allow for
the completion of simple instructions, finding that “the claimant was able to
understand and follow the hearing proceedings and all lines of questioning.” A.R. at
The ALJ needed to include in the hypothetical only those limitations that he
found credible and that were supported by the evidence; he need not have included
any disputed limitations that were also negated by Bray’s own manner during his
in-person testimony at the hearing. See, e.g., Parks v. Soc. Sec. Admin., 413 Fed.
App’x 856, 866 (6th Cir. 2011)(finding ALJ’s decision to exclude disputed limitation
of an “adjustment disorder” appropriate where other opinion evidence in record and
claimant’s in-person testimony negated such a limitation). As a result, the ALJ’s
hypothetical question accurately portrayed Bray’s impairments and limitations.
7. Conflicts between the vocational testimony and the Dictionary of
Finally, Bray contends that the ALJ failed to resolve known conflicts between
the VE’s testimony and the Dictionary of Occupational Titles (DOT), relying on Social
Security Ruling 00-4p.
The Dictionary of Occupational Titles, produced by the
United States Department of Labor, lists thousands of jobs. 20 C.F.R. § 404.1566(d).
When conflicts occur between the VE’s testimony and descriptions of those
occupations in the DOT, the ALJ “must elicit a reasonable explanation for the conflict
before relying on the VE ... [for] evidence to support a determination or decision about
whether the claimant is disabled.” S.S.R. 00-4p, 2000 WL 1898704, at*2.
In this case the VE specifically opined, “[t]here are cleaners, 18,000 state of
Kentucky, 1.46 million United States; dishwashers, 2,800 state of Kentucky,
277,000 United States; vehicle washers, 2,600 state of Kentucky, 192,000 United
States.” A.R. 27. Thereafter, the ALJ asked the VE if the jobs she testified about
were consistent with the DOT, and the VE responded that they were. Id. at 28.
According to Bray, the DOT description of vehicle washer requires “general
learning ability above the lowest tenth percentile, and it entails the commonsense
understanding to carry out detailed but uninvolved written or oral instructions.” R.
13 at 18.
Bray contends that the ALJ “was well aware that the claimant’s
intellectual functioning (which falls in the bottom 2% of the national population) is
inconsistent with this general learning ability.” Id.
Bray’s argument is misplaced.
He is not arguing that there is actually a
conflict with the VE’s testimony and the DOT, but rather that Bray, given his alleged
limitations, cannot perform the jobs as described by the VE. As discussed, there is
substantial evidence in the record to support the ALJ’s decision. The ALJ stated that
he considered the record as a whole and that he found persuasive that Bray had never
been hospitalized nor did he ever seek treatment for any of his alleged mental
impairments, which diminished his credibility. A.R. at 290.
Moreover, the ALJ complied with SSR 00-4p when he asked the VE whether
there was any discrepancy between her opinion and the DOT.
See Lindsley v.
Comm’r of Soc. Sec., 560 F.3d 601, 606 (6th Cir. 2009)(holding that the ALJ fulfilled
his duties when he asked the VE whether there was any “discrepancy between your
opinions and the DOT standards,” even if the VE did not disclose a conflict). Bray’s
representative had the opportunity to cross-examine the VE and point out any
conflicts with the DOT, but failed to do so.
The ALJ’s determinations are supported by substantial evidence in the record.
Accordingly, IT IS ORDERED as follows:
(1) the Commissioner=s motion for summary judgment (R. 18) is GRANTED;
(2) Bray’s motion for summary judgment (R. 12) is DENIED.
A separate judgment will issue.
Signed on January 26, 2012
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