Simpson v. Astrue

Filing 16

MEMORANDUM RULING re 1 Complaint filed by Franklin Dale Simpson: For the reasons stated in the Memorandum Ruling issued this date, the Commissioner's decision to deny benefits is affirmed, and a judgment will issue dismissing Plaintiffs complaint with prejudice. Signed by Magistrate Judge Mark Hornsby on 9/22/09. (crt,Cassanova, M)

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

F . D . S . (XXX-XX-6353) VERSUS M I C H A E L J. ASTRUE, U.S. C O M M I S S IO N E R SOCIAL SECURITY ADMINISTRATION

C I V I L ACTION NO. 08-cv-0507

M A G I S T R A T E JUDGE HORNSBY

M E M O R A N D U M RULING I n t r o d u c t io n P l a i n ti f f applied for disability benefits based on hepatitis C, back and knee problems, s h o u l d e r problems, and other physical ailments. Plaintiff had past work as a garbage and c e m e n t truck driver. He said that he stopped working in 2004 because he had pain in his n e c k , shoulder, and back stemming from a 1986 car accident. ALJ Charles Lindsay

c o n d u c t e d a hearing and issued a decision that denied benefits based on a finding that P la i n t i f f could perform jobs such as cook helper, dining room attendant, cleaner (ho use kee pin g), cashier II, or ticket seller. The Appeals Council denied a request for review. Plaintiff filed this civil action s e e k i n g judicial review pursuant to 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c) and t h e standing 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 Co mm issio ner 's decision to deny benefits will be affirmed.

I s s u e s on Appeal A t step three of the five-step sequential analysis, the ALJ found that Plaintiff did not m e e t the requirements of several potentially applicable listings. Plaintiff argues on appeal t h a t the ALJ failed to specifically rule that Plaintiff does not have impairments that equal in seve rity those found in the listings. He also argues that the ALJ erred when he did not obtain an updated expert medical opinion on the issue of listing equivalence. Standard of Review; Substantial Evidence This court's standard of review is (1) whether substantial evidence of record supports t h e ALJ's determination, and (2) whether the decision comports with relevant legal s t a n d a r d s . Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). "Substantial evidence is more than a scintilla and less than a preponderance. It is such relevant evidence as a reaso nable mind might accept as adequate to support a conclusion." Muse v. Sullivan, 925 F . 2 d 785, 789 (5th Cir. 1991). A finding of no substantial evidence is justified only if there are no credible evidentiary choices or medical findings which support the ALJ's dete rmin ation . Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). An alys is P l a i n ti f f served in the marines from 1972 through 1975, so he is eligible to receive m e d ic a l attention from the VA Medical Center. Plaintiff worked until 2004, when he p r e s e n te d to the VA and asked for a complete examination to tell him what is wrong with his ear, back, shoulder, knee, and neck. Plaintiff reported that he had filed for social security

Page 2 of 8

di sa bi lity. The examination revealed a normal knee, minimal degenerative joint disease of t h e lower thoracic and cervical spine, an essentially normal lumbar spine, a moderate pro blem with the right shoulder, and a few other minor problems. A consultative examiner, who examined Plaintiff at the request of the agency, c o n c l u d e d that Plaintiff had no significant limitations that would prevent him from working a full day. The ALJ noted that the opinion was consistent with the examination. Other me dica l records suggested rather limited physical problems. At the request of the agency, a consultative examination was conducted by licensed p s y c h o l o g i s t G. Perry Hill, Ph.D. Plaintiff reported that he had been diagnosed at the VA as s c h i z o p h re n i c , that his "mind wanders," and that he is forgetful. Plaintiff reported that he h a d lived independently while working in Texas and Georgia, but he now lives with his elderly father. Plaintiff said that he had worked for various employers for a total of 26 years a s a dump truck and cement truck driver. Plaintiff said he quit school in the 10th grade, but he was able to complete a GED when he was in the military. P l a i n ti f f reported to the examination with a cane, but Dr. Hill wrote that the cane a p p e a r e d much too short for Plaintiff to truly use while walking. Plaintiff did attempt to use t h e cane to walk, which resulted in a stooped posture. P l a i n ti f f completed an IQ test. His persistence was considered fair to good, but his p a c e of work on the test was consistently slow. He attained a verbal IQ of 72, performance IQ of 73, and a full-scale IQ of 70.

Page 3 of 8

Dr. Hill stated that, based on his examination, he disagreed with the diagnosis of schizo id personality disorder indicated in the VA medical records. He diagnosed Plaintiff a s having borderline intellectual functioning. Tr. 287-90. T h e ALJ reviewed this and the other evidence of record. He wrote in his summary f in d i n g at step three that Plaintiff "does not have an impairment or combination of impa irmen ts that meets or medically equals one of the listed impairments" in the regulations. T r. 22. He then briefly reviewed a number of listings and explained why each was not met. P l a i n ti f f argues that the ALJ erred when he did not discuss in more detail why Plaintiff does no t medically equal a listing. The only listing that Plaintiff identifies as potentially applicable is listing 12.05(C) for m e n t a l retardation. The listing states: M e n t a l retardation refers to significantly subaverage general intellectu a l functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the e v i d e n c e demonstrates or supports onset of the impairment b e f o r e age 22. T h e required level of severity for this disorder is met when the r e q u i re m e n t s in A, B, C, or D are satisfied. *** C. A valid verbal, performance, or full scale IQ of 60 t h r o u g h 70 and a physical or other mental impairment imposing a d d i t io n a l and significant work-related limitation of function. T h e ALJ stated briefly that Plaintiff did not "meet" the listing because he did not have e v i d e n c e of its elements, all of which he set forth. The ALJ did not state which element(s) Page 4 of 8

h e believed Plaintiff did not satisfy. Tr. 23. The ALJ did note, in rejecting the applicability o f 12.05(A) (mental incapacity evidenced by dependence on others for personal needs) that P l a i n ti f f had obtained a GED, served in the military, cares for his elderly father, cares for his ow n needs, and does household chores. Plaintiff does not argue that he actually meets the elements of listing 12.05(C), and h e concedes that he does not have the requisite showing of onset before age 22. See Randall v . Astrue, 570 F.3d 651 (5th Cir. 2009) (finding that the onset before age 22 is an element of the listing). Failure to meet the listing does not preclude a finding of disability if the claimant has o t h e r findings related to the impairment that equal or exceed the required criteria for the l i st e d impairment. When determining whether an impairment medically equals a listing, the C o m m i s s i o n e r considers all relevant evidence in the record. McGee v. Astrue, 2009 WL 2 8 41 1 13 , *4 (W.D. La. 2009). An impairment is equivalent to a listed impairment "if it is a t least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. §§ 4 0 4 . 1 5 2 6 ( a ) and 416.926(a). See also Bloch on Social Security, §3:26 (Proof of Disability through M e d ical Equivalence of Listed Impairment). P l a i n ti f f faults the ALJ for not specifically discussing medical equivalence with r e s p e c t to listing 12.05(C) and for not requesting additional medical expert opinion. The court has sometimes reversed a decision that did not address a potentially applicable listing w h e n there was a strong suggestion in the record that it might be met or equaled. In this case,

Page 5 of 8

t h e ALJ did not specifically discuss equivalence, but he did set forth a fair discussion of r e a s o n s why the listing was not met. Some of the factors he cited were in his discussion of l i s t in g 12.05(A), but the important thing is that the opinion fairly addressed the relevant e v i d e n c e and listings. The court finds that the ALJ's summary finding that a listing was not e q u a l e d , together with his overall discussion of listing 12.05 and the facts relevant to the i s s u e of mental retardation are sufficient for the decision to withstand the appeal. Most ALJ d e c i s io n s do not contain more than a summary rejection of equivalence absent a reasonable a r g u m e n t on the point. There is no indication that equivalence was argued before the ALJ or t h a t the ALJ forgot to address the issue. All indications are that the ALJ simply did not see a reasonable basis to believe that Plaintiff was equivalent to a mentally retarded person, so h e made only a general denial of the issue. Under the circumstances, and considering the AL J's discussion of the relevant facts, that was sufficient. T h e next issue is whether the ALJ was required to seek an updated medical opinion. S o c i a l Security Ruling 96-6p states that the ALJ "is responsible for deciding the ultimate l e g a l question whether a listing is met or equaled." The ALJ is not bound by a finding of a state agency consultant or other program physician or psychologist as to whether a person's impa irmen ts are equivalent in severity to a listed impairment. However, longstanding policy r e q u i re s that the judgment of a physician or psychologist on the issue of equivalence be receiv ed in the record as expert opinion evidence and given appropriate weight.

Page 6 of 8

R u l i n g 96-6p describes the forms of adequate evidence on equivalence that should be r e c e iv e d at the initial and reconsideration levels of administrative review. Plaintiff does not r a i s e any issue on appeal regarding that stage of the process. The Ruling then continues that w h e n an ALJ finds that a claimant's impairment is not equivalent in severity to any listing, t h e ALJ "must obtain an updated medical opinion from a medical expert" in certain c i r c u m s t a n c e s . Those circumstances include when no additional medical evidence has been r e c e iv e d but the ALJ is of the opinion that the findings in the case suggest that a judgment o f equivalence may be reasonable. Another circumstance is when additional medical e v i d e n c e is received that the ALJ believes may change the finding of the state agency con sulta nts. There is obviously a significant amount of discretion within the Ruling's direction that a n expert should be sought if the ALJ is of the opinion that the record suggests that a j u d g m e n t of equivalence may be reasonable. The experienced ALJ had before him evidence o f past semi-skilled work, the earning of a GED, independent living, and other factors that s u g g e s t ed Plaintiff is not mentally retarded. Based on that record, and the absence of c o u n t e r v ai l in g factors other than an IQ test score of 70, the court finds that the ALJ did not com mit legal error by not requesting a medical expert opinion on medical equivalence. For t h e s e reasons, a judgment will be entered affirming the Commissioner's decision.

Page 7 of 8

T H U S DONE AND SIGNED in Shreveport, Louisiana, this 22nd day of September, 2009.

Page 8 of 8