Mayweather v. Social Security Administration

Filing 19

MEMORANDUM RULING: A judgment will be entered affirming the Commissioners decision. Signed by Magistrate Judge Mark L Hornsby on 2/9/09. (crt,Alexander, E)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA S H R E V E P O R T DIVISION

A L B E R T WASHINGTON MAYWEATHER V ER SU S U .S . COMMISSIONER SOCIAL S E C U R IT Y ADMINISTRATION

C IV IL ACTION NO. 08-cv-0391 R E F E R R E D TO: MAGISTRATE JUDGE HORNSBY

M E M O R A N D U M RULING A lb e rt Mayweather ("Plaintiff") was born in 1956, has a marginal education, and has p a st work experience as a commercial groundskeeper and as a sander/packer of paneling. A L J Charles Lindsay analyzed Plaintiff's claim for disability benefits under the sequential fiv e-step analysis. He found at step two that Plaintiff suffers from the following severe im p a irm e n ts : status post-multiple hernia repairs; hypertension; status post-cervical spine f u sio n ; cervical and lumbar degenerative joint disease; Hepatitis C; and borderline in te lle c tu a l functioning. He next determined at step three that the mental impairment did not m e e t or equal the requirements of Listings 12.04 or 12.05. He then proceeded to assess P lain tiff 's residual functional capacity, determine at step four that Plaintiff could not perform h is past relevant work, and find at step five that Plaintiff was capable of performing several jo b s identified by a vocational expert. Thus, Plaintiff was found not disabled. T h e Appeals Council denied a request for review. Plaintiff filed this civil action s e e k in g judicial review pursuant to 42 U.S.C. § 405(g). Both parties filed written consent to have a magistrate judge decide the case and, pursuant to 28 U.S.C. § 636(c) and the

s t a n d i n g order of the district court governing social security cases, the action was referred to the undersigned for decision and entry of judgment. For the reasons that follow, the C o m m is s io n e r' s decision to deny benefits will be affirmed. Plaintiff argues on appeal that the ALJ's step-three finding that he does not meet L is ti n g 12.05(C) is not supported by substantial evidence and is based upon a mistaken in te rp r e t a t io n of the Listing's requirement. This court's standard of review is (1) whether s u b s ta n tia l evidence of record supports the ALJ's determination, and (2) whether the decision co m p o rts with relevant legal standards. Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1 9 9 0 ). "Substantial evidence is more than a scintilla and less than a preponderance. It is su c h relevant evidence as a reasonable mind might accept as adequate to support a c o n c lu s io n ." Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). A finding of no s u b s ta n tia l evidence is justified only if there are no credible evidentiary choices or medical f in d in g s which support the ALJ's determination. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). P la in t if f ' s argument focuses on Listing 12.05(C), which provides: M e n ta l retardation refers to significantly subaverage general in te lle c tu a l functioning with deficits in adaptive functioning in itia lly manifested during the developmental period; i.e., the e v id e n c e demonstrates or supports onset of the impairment b e f o re age 22. T h e required level of severity for this disorder is met when the re q u ire m e n ts in A, B, C, or D are satisfied. *** Page 2 of 6

C. A valid verbal, performance, or full scale IQ of 60 th ro u g h 70 and a physical or other mental impairment imposing a d d itio n a l and significant work-related limitation of function. T h e ALJ found that Plaintiff "does have a valid verbal, performance, or full-scale IQ o f 60 through 70 and a physical or other mental impairment imposing an additional and s ig n if ic a n t work-related limitation of function ... ." Tr. 20. Thus, Plaintiff was found to have satisfied the demands of paragraph (C), but the ALJ interpreted the Listing to also require s a tis f a ctio n of the introductory paragraph of the Listing, and he found that "the evidence does n o t support a finding of deficits in adaptive functioning, with an onset prior to age 22." Tr. 20. Plaintiff argues that the ALJ's interpretation of the Listing is incorrect and that his sa tisf a c tio n of paragraph (C) is, alone, enough to satisfy the Listing so that he is a u to m a tic a lly deemed disabled without regard to his age, education, or work skills. The Fifth Circuit, in an unpublished decision, recently treated the introductory p a ra g ra p h requirement as a separate element of the Listing. In Arce v. Barnhart, 185 Fed. A p p x . 437 (5th Cir. 2006), the claimant argued that she met Listing 12.05(C). The Court stated that to meet the Listing, the claimant's impairment "must satisfy the introductory p a ra g ra p h of listing 12.05, which states that `mental retardation refers to significantly suba v e ra g e general intellectual functioning with deficits in adaptive functioning initially m a n if e ste d ... before age 22.' " A medical consultant who examined the Arce claimant re p o rte d that the claimant did not have deficits in adaptive functions, and that report was Page 3 of 6

f o u n d to be substantial evidence that the claimant did not meet the Listing. The Fifth Circuit a p p a re n tly reviewed the introductory paragraph as setting forth a third requirement to satisfy th e Listing. Arce is unpublished and issued after January 1, 1996, so it is not precedential. F if th Cir. R. 47.5.4. But it is certainly of persuasive value. And further support for its view is found in Maresh v. Barnhart, 438 F.3d 897 (8th Cir. 2006) and Humphries v. Barnhart, 183 F e d . Appx. 887 (11th Cir. 2006). This court has followed Arce in the past and will do so a g a in today. The next issue is whether Plaintiff satisfied his step-three burden of showing deficits in adaptive functioning initially manifested before the age of 22. Plaintiff points to his te s tim o n y that he quit school after the sixth grade and was in special education classes. S ch o o l records could not be found to confirm the testimony, but there was no contrary e v id e n c e. The ALJ noted that there was no evidence, however, to show that Plaintiff did not q u it school for reasons other than his mental impairment. Plaintiff himself testified that he w a s incarcerated or kept in a "reform school" from approximately age 13 until 18. The ALJ s u g g e ste d that school attendance may have ended due to criminal activities rather than mental im p a irm e n ts. That is a reasonable supposition based on the record, and it must be kept in m in d that Plaintiff bears the burden at step three. P la in tif f 's brief does not point to any other evidence that he believes establishes the r e q u ir e d onset before the age of 22. Plaintiff's abilities as an adult do not suggest such lim i ta t io n s in his youth. Plaintiff has lived on his own, and he worked for 15 years in the

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s a m e job as a groundskeeper. The ALJ noted that Plaintiff testified "clearly and articulately, re sp o n d in g appropriately to the questions posed." Plaintiff was able to read simple things a n d perform some basic math, at least enough to count change correctly. Before Plaintiff w o rk e d as a groundskeeper, he successfully worked in a paneling manufacturing plant, s a n d in g paneling and packaging it for distribution. See Tr. 19. P s yc h o lo g is t Perry Hill performed a consultative evaluation of Plaintiff in 2005. P la in t if f was then homeless, living at a shelter facility, after losing his home because he lost h is job (due to the company contracting out the work rather than because of his impairment). P la in tif f told Dr. Hill that he tended to all his personal and household needs when he was l iv i n g independently. He could prepare simple meals, wash clothes, and have appropriate s o c ia l interaction. Dr. Hill diagnosed Plaintiff as borderline intellectual functioning, but th e re was "no substantive data to indicate that these problems contribute to significant d e f ic ie n c ie s in adaptive functioning or inability to perform daily activities." Tr. 209-13. D r. Webb Sentell, a clinical neuropsychologist, performed an evaluation in 2007. P lain tiff tested as mild mentally retarded to borderline intellectual functioning and Plaintiff's a d a p tiv e skills suggested that he "may actually be functioning within the lower limits of the b o rd e rlin e range of intellectual functioning." Tr. 401-04. Dr. Sentell completed a form that ind icated Plaintiff had mild or moderate limitations in most areas, such as the ability to carry o u t instructions, interact appropriately with the public, and respond appropriately to work s itu a tio n s . Tr. 405-07.

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P la in tif f 's current conditions, obviously, are not the most direct evidence of whether h e had deficits in adaptive functioning before age 22, but it is certainly relevant evidence. T h e re is nothing about Plaintiff's current condition that would deprive the ALJ's decision o f substantial evidence, and the only evidence present regarding Plaintiff's youth was d is c o u n te d by the ALJ for the reasons discussed above. The ALJ applied the Listing in the c o rre c t way, and his decision that the introductory paragraph requirement was not met is s u p p o rte d by substantial evidence in the record. Accordingly, a judgment will be entered a f f irm in g the Commissioner's decision. T H U S DONE AND SIGNED in Shreveport, Louisiana, this 9th day of February, 2009.

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