Martin v. Astrue

Filing 21

MEMORANDUM OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 8/22/13. (jnls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

August 22, 2013

LETTER TO COUNSEL:
RE:

Stephen Martin v. Commissioner, Social Security Administration;
Civil No. SAG-12-1130

Dear Counsel:
On April 13, 2012, the Plaintiff, Stephen Martin, petitioned this Court to review the
Social Security Administration’s final decision to deny his claim for Supplemental Security
Income (“SSI”). [ECF No. 1]. I have considered the parties’ cross-motions for summary
judgment, and Mr. Martin’s reply. [ECF Nos. 16, 19, 20]. I find that no hearing is necessary.
Local Rule 105.6 (D. Md. 2011). This Court must uphold the decision of the agency if it is
supported by substantial evidence and if the agency employed proper legal standards. 42 U.S.C.
§§ 405(g), 1383(c)(3); see Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (superseded by
statute on other grounds). Under that standard, I will grant the Commissioner’s motion and deny
the Plaintiff’s motion. This letter explains my rationale.
Mr. Martin filed his claim for benefits on September 28, 2009, alleging disability
beginning on September 14, 2009. (Tr. 120-25). His claim was denied initially on April 15,
2010, and on reconsideration on September 2, 2010. (Tr. 79-82, 86-87). A hearing was held
before an Administrative Law Judge (“ALJ”) on August 4, 2011. (Tr. 28-74). After the hearing,
on August 9, 2011, the ALJ determined that Mr. Martin was not disabled during the relevant
time frame. (Tr. 9-25). The Appeals Council denied Mr. Martin’s request for review (Tr.1-6),
making the ALJ’s decision the final, reviewable decision of the agency.
The ALJ found that Mr. Martin suffered from the severe impairments of substance
dependence, bipolar disorder, anxiety disorder, chronic obstructive pulmonary disorder (COPD),
attention deficit hyperactivity disorder (ADHD), depressive disorder, hepatitis C, history of
abscess to the left poplietal fossa, status post incision and drainage. (Tr. 14). Despite these
impairments, the ALJ determined that Mr. Martin retained the RFC to:
[P]erform light work as defined in 20 CFR 416.967(b) except the claimant has
the following additional limitations: (1) he can frequently operate food [sic]
controls with the left lower extremity; (2) he can frequently climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl; (3) he can never climb ladders,
ropes or scaffolds; (4) he must avoid concentrated exposure to[] extreme cold and
extreme heat; humidity; excessive vibrations; pulmonary irritants, such as fumes,
odors, dust, and gases; poorly ventilated areas; hazardous moving machinery; and

Stephen Martin v. Commissioner, Social Security Administration
Civil No. SAG-12-1130
August 22, 2013
Page 2

unprotected heights; (5) he is limited to simple, routine, repetitive tasks in a low
stress work environment (defined as no strict production quotas); and (6) he can
only occasionally and superficially interact with the public, [coworkers], and
supervisors.
(Tr. 16). After considering the testimony of a vocational examiner (“VE”), the ALJ determined
that Mr. Martin could perform work existing in significant numbers in the national economy, and
that he was therefore not disabled during the relevant time frame. (Tr. 19-20).
Mr. Martin presents two arguments on appeal, that the ALJ: (1) erroneously considered
Listing 12.05 (mental retardation); and (2) improperly applied the special technique used in
evaluating mental impairments. Each argument lacks merit.
First, Mr. Martin contends that the ALJ lacked sufficient information about his IQ to
assess whether he met Listing 12.05. That Listing requires a “valid verbal, performance, or full
scale IQ of 60 to 70.” Mr. Martin’s testing, performed by Dr. Robert Kraft, showed a full scale
IQ of 73, a “verbal comprehension index score” of 76, and a “perceptional reasoning index
score” of 92. (Tr. 376-77). Because the various tests have been modified since the Listings were
created, the “verbal comprehension index score” is the equivalent of “verbal IQ”, and the
“perceptional reasoning index score” is the equivalent of “performance IQ.” Green ex rel.
K.C.G. v. Astrue, No. 09-1028, 2011 WL 1440363, at *4 (M.D. La. Feb. 15, 2011), report &
recommendation adopted, 2011 WL 1456218 (M.D. La. Apr. 14, 2011) (quoting David
Weschler, WISC-IV Administration & Scoring Manual 4 (2003)) (“The terms Verbal IQ (VIQ)
and Performance IQ (PIQ) have been replaced with the terms Verbal Comprehension Index
(VCI) and Perceptual Reasoning Index (PRI) respectively.”); see also Pierson v. Colvin, No.
1:12-cv-20 RP-TJS, 2013 WL 1785494, at *3 n. 5 (S.D. Iowa April 26, 2013) (same); Isaac ex
rel. JDM v. Astrue, No. CA 1:12-00097C, 2012 WL 5373435, at * 3-4 (S.D. Ala. Oct. 30, 2012)
(rejecting argument that a “working memory” score below 70 suffices to meet the listing
criteria). Each of Mr. Martin’s relevant scores, then, is above the cutoff of 70 required to meet
the listing.
In support of his argument that the ALJ should have sought further information regarding
the Listing, Mr. Martin cites the notation in Dr. Kraft’s report suggesting that his full scale IQ
score of 73 “was not a valid summary of his overall general intelligence.” (Tr. 376-77). It is
clear, however, that Dr. Kraft believed to suggest that the discrepancies in scores in various
areas, which he believed resulted from a learning disability as opposed to low intelligence,
results in an average full scale IQ that is too low, rather than too high. (Tr. 377) (Dr. Kraft report
stating that the weak performance in verbal reasoning “is likely suggestive of a premorbid
language-based learning disability rather than a decline in functioning.”); (Tr. 378) (“His
cognitive profile is suggestive of a language-based learning disability and possibly attention
deficits due to his weak auditory encoding skills and weak processing speed.”). No further
information from Dr. Kraft was required to clarify his detailed report.

Stephen Martin v. Commissioner, Social Security Administration
Civil No. SAG-12-1130
August 22, 2013
Page 3

Mr. Martin further contends, in his reply, that his impairment “equals” the criteria of
Listing 12.05. Pl. Reply 2-3. “For a claimant to qualify for benefits by showing that his unlisted
impairment, or combination of impairments, is ‘equivalent’ to a listed impairment, he must
present medical findings equal in severity to all the criteria for the one most similar listed
impairment.” Sullivan v. Zebley, 493 U. S. 521, 531 (1990) (emphasis in original); see also 20
C.F.R. § 404.1526. Medical equivalency can be established in three ways. If the claimant has
an impairment that is described in the Listing, but (1) does not meet each criteria specified in the
listing, or (2) exhibits all of the required findings, but lacks the required severity level for each
finding, the claimant can show equivalency by proving other findings related to the impairment
that are at least of equal medical significance to the listed criteria. Id. § 404.1526(b)(1). Next, if
the claimant suffers from an impairment that is not described in a Listing, the claimant can prove
equivalency by showing that the claimant's impairment is at least of equal medical significance
to the criteria of a closely analogous listing. Id. § 404.1526(b)(2). Third, if the claimant has a
combination of impairments which do not individually meet any listing, the claimant can
establish equivalency by establishing findings of at least equal medical significance to the
criteria contained in the most analogous listing. Id. § 404.1526(b)(3). Importantly, “[a] claimant
cannot qualify for benefits under the ‘equivalency’ step by showing that the overall functional
impact of his unlisted impairment or combination of impairments is as severe as that of a listed
impairment.” Sullivan, 493 U.S. at 531. Equivalent evidence for each of the criteria must be
established.
In this case, Mr. Martin makes no specific argument about how he can establish evidence
equivalent in severity to the required IQ below 70, and cites no facts in support of that
argument.1 Instead, he merely makes a procedural argument suggesting that the ALJ did not
engage in the required analysis. I disagree. The ALJ specifically made the finding that, “[T]he
severity of the claimant’s mental impairments, considered singly and in combination, do not
meet or medically equal the criteria of listings 12.02, 12.04, 12.05, 12.06, and 12.09.” (Tr. 15).
Next, the ALJ undertook the “special technique” for mental impairments as discussed below. Id.
The burden to establish a disabling impairment at Step Three, by demonstrating that a Listing has
been met or equaled, rests with the claimant. Bowen v. Yuckert, 482 U.S. 137, 146 (1987).
Because Mr. Martin has not met that burden, the ALJ’s opinion must be affirmed.
Mr. Martin’s second argument is similarly deficient. The ALJ applied the required
“special technique” used to evaluate the severity of mental impairments and to determine
whether an impairment meets or medically equals a listing. That technique is set forth in 20
C.F.R. § 404.1520a; Rabbers v. Comm'r of the Soc. Sec. Admin., 582 F.3d 647, 652-54 (6th Cir.
2009); Kohler v. Astrue, 546 F.3d 260, 265-66 (2d Cir. 2008) (citing Schmidt v. Astrue, 496 F.3d
833, 844 n.4 (7th Cir. 2007)). The ALJ “must first evaluate [the claimant's] pertinent symptoms,
signs, and laboratory findings to determine whether [he or she] ha[s] a medically determinable
mental impairment(s).” 20 C.F.R. § 404.1520a(b)(1). The ALJ must “then rate the degree of
1

The only factual argument that could be construed to suggest equivalency would be the working memory index
score of 63. Pl. Reply 2. However, as addressed above, Dr. Kraft believed the low score to be related to a learning
disability and attention deficits rather than general intelligence considerations. (Tr. 378).

Stephen Martin v. Commissioner, Social Security Administration
Civil No. SAG-12-1130
August 22, 2013
Page 4

functional limitation resulting from the impairment(s)” in four broad functional areas. Id. §
404.1520a(b)(2), 404.1520a(c). The ALJ must document the application of the technique in the
hearing decision, incorporating pertinent findings and conclusions, and documenting the
significant history and functional limitations that were considered. Id. § 404.1520(e)(4).
Although the ALJ did not follow the best practice of summarizing the evidence in each of
the four functional areas immediately following the degree of functional limitation, the ALJ's
opinion contains sufficient analysis to allow me to review the basis for his findings. With
respect to each functional area, the ALJ provided a concise description of the basis for his
determination, without citing to specific medical exhibits. (Tr. 15). However, elsewhere in the
opinion, the ALJ addressed Mr. Martin’s activities of daily living, (Tr. 17), his social interaction
and functioning, (Tr. 17-19), and his concentration, persistence, and pace. Id. Specifically, the
ALJ addressed the treatment notes from various examinations and office visits (Tr. 17-18) and
the opinions of consultative examiners and treating physicians. (Tr. 18-19). Although the ALJ
cites to the GAF scores assigned by the various medical sources, he did not always agree with
the import of those scores and did not rely exclusively on the GAF scores to assess the validity of
any source’s opinion. See, e.g. (Tr. 18) (“Dr. Kraft’s opinion, including assessing the claimant a
GAF score of 60, which indicates mild to moderate symptoms, is consistent with the overall
record as a whole.”); Id. (“A score of 65 indicates mild symptoms. Both the record, as well as
Ms. Chase’s examination that day, indicate that the claimant’s symptoms are moderate in
nature.”). Because the ALJ cited to substantial evidence to support his decision, remand is
unwarranted.
For the reasons set forth herein, Plaintiff’s motion for summary judgment [ECF No. 16]
will be DENIED and the Commissioner’s motion for summary judgment [ECF No. 19] will be
GRANTED. The Clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion.
implementing Order follows.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge

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