Ruffin v. Social Security Administration

Filing 21

OPINION, MEMORANDUM AND ORDER-- IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is affirmed. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry E. Autrey on 09/12/2013. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LYDIA RUFFIN,

)
)
)
Plaintiff,
)
)
vs.
)
)
1
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 4:10CV1736 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s request for judicial review
under 28 U.S.C. § 405(g) of the final decision of Defendant denying Plaintiff’s
applications for Disability Insurance Benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. §§ 401, et seq, and her application for supplemental
security income (SSI) under Title XVI of the Act, 42 U.S.C. § 1381, et seq. For
the reasons set forth below, the Court will affirm the Commissioner's denial of
Plaintiff's applications.
Facts and Background
Plaintiff was 50 years old at the time of the hearing. She completed 10th or

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue as the Defendant in this suit. No further action needs to be taken to continue this
suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

11th grade in high school and does not have a GED. The ALJ found Plaintiff had
the severe impairments of: congestive heart failure, cardiomyopathy, hypertension,
hypothyroidism, and hyperlipidemia controlled by medication with status-post
defibrillator insertion, and probable borderline intellectual functioning. At the
May 12, 2009 hearing, Plaintiff testified that she lives with her husband in an
apartment. Plaintiff testified that she attended special ed for all classes and that
the last time she worked, was in 2007 in housekeeping. Plaintiff also testified she
had a defibrillator installed on 11/16/06. She was also admitted to the hospital in
2007. She quit working her housekeeping job because she became ill. Plaintiff
testified she did not have a physician at the time of the hearing. Her primary
doctor had been treating her for high blood pressure. Plaintiff testified that she
can no longer keep up the pace of her former housekeeping job. On a typical day,
Plaintiff testified that she relaxes and watches television. She does not cook
much, does not do laundry and cannot “run” like she used to when she wants to
play with her grandchildren. She can write a little and read some, but testified that
she is “not good on reading.” She is on Medicaid, but is unable to afford the
spend-down to receive benefits. She has never been treated by a psychiatrist or
psychologist. Plaintiff testified she can be on her feet 18-20 minutes and that her
legs bother her if she walks too much.
The vocational expert classified Plaintiff’s past work as light and unskilled
-2-

work.
Plaintiff’s application for social security and supplemental security income
benefits under Titles II, 42 U.S.C. §§ 401, et seq. And XVI of the Act, 42 U.S.C. §
1381, et seq were denied, and Plaintiff sought a hearing by an Administrative Law
Judge. On December 1, 2009, the ALJ issued an unfavorable decision. On July
17, 2010, the Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision. Thus, the decision of the ALJ stands as the final decision of the
Commissioner.
Standard For Determining Disability
The Social Security Act defines as disabled a person who is “unable to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir.2010). The impairment must be “of such severity that [the claimant] is not
only unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him,
-3-

or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
A five-step regulatory framework is used to determine whether an
individual claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520(a),
416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.2011)
(discussing the five-step process). At Step One, the ALJ determines whether the
claimant is currently engaging in “substantial gainful activity”; if so, then he is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I); McCoy, 648 F.3d at
611. At Step Two, the ALJ determines whether the claimant has a severe
impairment, which is “any impairment or combination of impairments which
significantly limits [the claimant's] physical or mental ability to do basic work
activities”; if the claimant does not have a severe impairment, he is not disabled.
20 C.F.R. §§ 404.1520(a) (4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c);
McCoy, 648 F.3d at 611. At Step Three, the ALJ evaluates whether the claimant's
impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the claimant has such an impairment, the Commissioner will
find the claimant disabled; if not, the ALJ proceeds with the rest of the five-step
process. 20 C.F.R. §§ 404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the ALJ must assess the claimant's “residual functional
-4-

capacity” (“RFC”), which is “the most a claimant can do despite [his] limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.2009) (citing 20 C.F.R. § 404.1545
(a) (1)); see also 20 C.F.R. §§ 404.1520(e), 416.920(e). At Step Four, the ALJ
determines whether the claimant can return to his past relevant work, by
comparing the claimant's RFC with the physical and mental demands of the
claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),
416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can
perform his past relevant work, he is not disabled; if the claimant cannot, the
analysis proceeds to the next step. Id.. At Step Five, the ALJ considers the
claimant's RFC, age, education, and work experience to determine whether the
claimant can make an adjustment to other work in the national economy; if the
claimant cannot make an adjustment to other work, the claimant will be found
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648 F.3d at
611.
Through Step Four, the burden remains with the claimant to prove that he is
disabled. Moore, 572 F.3d at 523. At Step Five, the burden shifts to the
Commissioner to establish that the claimant maintains the RFC to perform a
significant number of jobs within the national economy. Id.; Brock v. Astrue, 674
F.3d 1062, 1064 (8th Cir.2012).
-5-

ALJ’s Decision
Applying the foregoing five-step analysis, the ALJ in this case determined
at Step One that Plaintiff had not engaged in substantial gainful activity since
March 17, 2007, the alleged onset date. The ALJ noted, however that Plaintiff did
work steadily at her usual kind of job from October 2, 2007 to March 2, 2008. At
Step Two, the ALJ found that Plaintiff had the following severe impairments:
congestive heart failure, cardiomyopathy, hypertension, hypothyroidism, and
hyperlipidemia controlled by medication with status-post defibrillator insertion,
and probable borderline intellectual functioning. At Step Three, the ALJ found
that Plaintiff does not have an impairment or combination of impairments that
meets or medically equals one of the impairments in the listings.
Prior to Step Four, the ALJ found that Plaintiff had the residual functional
capacity to perform the full range of work except probably for lifting or carrying
more than 20-25 pounds and doing more than simple, repetitive tasks, as defined
in 20 CFR 404.1545 and 416.945. At Step Four, the ALJ determined that Plaintiff
was capable of performing her past relevant work as a commercial housekeeper.
The ALJ, therefore was not required to proceed to Step Five. The ALJ concluded
that Plaintiff had not been under a disability as defined in the Act.
Standard For Judicial Review
-6-

The Court’s role in reviewing the Commissioner’s decision is to determine
whether the decision “‘complies with the relevant legal requirements and is
supported by substantial evidence in the record as a whole.’” Pate–Fires v. Astrue,
564 F.3d 935, 942 (8th Cir.2009) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th
Cir.2008)). “Substantial evidence is ‘less than preponderance, but enough that a
reasonable mind might accept it as adequate to support a conclusion.’” Renstrom
v. Astrue, 680 F.3d 1057, 1063 (8th Cir.2012) (quoting Moore v. Astrue, 572 F.3d
520, 522 (8th Cir.2009)). In determining whether substantial evidence supports
the Commissioner’s decision, the Court considers both evidence that supports that
decision and evidence that detracts from that decision. Id. However, the court
“‘do[es] not reweigh the evidence presented to the ALJ, and [it] defer[s] to the
ALJ’s determinations regarding the credibility of testimony, as long as those
determinations are supported by good reasons and substantial evidence.’” Id.
(quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.2006)). “If, after
reviewing the record, the court finds it of courseis possible to draw two
inconsistent positions from the evidence and one of those positions represents the
AL’s findings, the court must affirm the AL’'s decision.’” Partee v. Astrue, 638
F.3d 860, 863 (8th Cir.2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th
Cir.2005)). The Court should disturb the administrative decision only if it falls
-7-

outside the available “zone of choice” of conclusions that a reasonable fact finder
could have reached. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.2006).
Discussion
In her appeal of the Commissioner's decision, Plaintiff makes the following
arguments: (1) The ALJ failed to fully evaluate the possibility that Plaintiff met or
equaled Listing 12.05; (2) The ALJ erred by failing to clarify Dr. Sale’s opinions.
Listing 12.05
Plaintiff argues that the ALJ failed fully evaluate the possibility that
Plaintiff met or equaled Listing 12.05. “The claimant has the burden of proving
that his impairment meets or equals a listing.” Carlson v. Astrue, 604 F.3d 589,
593 (8th Cir.2010). “To meet a listing, an impairment must meet all of the listing's
specified criteria.” Id. (citing Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th
Cir.2004)). In her decision, the ALJ incorrectly stated that a formal diagnosis of
mental retardation was required. The Eighth Circuit has stated that although a
formal diagnosis of mental retardation is not required under Listing 12.05, the
requirements of the introductory paragraph are mandatory. Maresh v. Barnhart,
438 F.3d 897, 899 (8th Cir.2006). The ALJ’s error was harmless, however
because her finding that Plaintiff failed to meet all of the listing’s specified criteria
is supported by the record.
-8-

Listing 12.05's introductory paragraph defines mental retardation as
“significantly, subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period, i.e., the evidence
demonstrates or supports onset of impairment before age 22. 20 C.F.R. Pt. 404,
Subpt. P, App'x 1, 12.05. If an impairment satisfies the diagnostic description in
the introductory paragraph and the criteria in paragraphs A, B, C, or D, then the
Commissioner will find that the claimant's impairment meets the listing criteria. 20
C.F.R. Pt. 404, Subpt. P, App'x 1, 12.00. “Thus, in order to qualify under Listing
12.05(C), [Plaintiff] was required to show (1) significantly subaverage general
intellectual functioning with deficits in adaptive functioning, (2) an onset of that
impairment prior to age twenty-two, (3) a valid IQ score between 60 and 70, and
(4) an additional impairment imposing a significant work-related limitation of
function.”2 Best v. Astrue, No. 2:12–CV–7 LMB, 2013 WL 1163464 at *12
(E.D.Mo. March 20, 2013).
As Defendant correctly argues, the only verbal, performance, or full scale
IQ testing was conducted when Plaintiff was 13, over 30 years ago. Listing §
112.00 discusses validity of IQ scores for children:
IQ test results must also be sufficiently current for accurate
2

Plaintiff cannot satisfy the requirements of Subparagraphs A, B, or D.
-9-

assessment under 112.05. Generally, the results of IQ tests tend to
stabilize by the age of 16 Therefore, IQ test results obtained at age 16
or older should be viewed as a valid indication of the child’s current
status, provided they are compatible with the child’s current behavior.
IQ test results obtained between ages 7 and 16 should be considered
current for 4 years when the tested IQ is less than 40, and for 2 years
when the IQ is 40 or above. . . .
20 C.F.R. Part 404, Subpart P, Appendix 1, § 112.00(D)(10). Because Plaintiff’s
IQ score was obtained between the ages of 7 and 16, and valid only two years,
there is no valid verbal, performance, or full scale IQ of 60 through 70. Indeed,
Dr. Brown, the consulting examiner, assessed Plaintiff’s IQ at 71.
Moreover, Plaintiff failed to produce any evidence of impaired adaptive
functioning. Adaptive functioning is not defined in Listing 12.05. The Court,
however, has used the definition of adaptive functioning contained in the
American Psychiatric Association's Diagnostic and Statistical Manual of Mental
Disorders (DSM–IV–TR). See Quarles v.. Colvin, No. 4:11–CV–1854 TCM, 2013
WL 1197115 at *18 (E.D.Mo. March 25, 2013); Weatherspoon v. Massanari, 228
F.Supp.2d 1041, 1047 (E.D.Mo.2002). According to the DSM–IV–TR,
Adaptive functioning refers to how effectively individuals cope with
common life demands and how well they meet the standards of
personal independence expected of someone in their particular age
group, sociocultural background, and community setting. Adaptive
functioning may be influenced by various factors, including
education, motivation, personality characteristics, social and
vocational opportunities, and the mental disorders and general
- 10 -

medical conditions that may coexist with Mental Retardation.
Problems in adaptation are more likely to improve with remedial
efforts than is the cognitive IQ, which tends to remain a more stable
attribute.
Diagnostic and Statistical Manual of Mental Disorders, 40 (4th ed. Text Rev.2000)
(“DSM–IVTR”). The ability to perform gainful activity is not relevant, if the
claimant otherwise meets the requirements of Listing 12.05. Cheatum v. Astrue,
388 Fed. App'x 574, 577 n. 3 (8th Cir.2010). “It is relevant, however, to whether
[she] has shown the deficits in adaptive functioning necessary to meet that listing.”
Id. The record establishes that Plaintiff was not only able to perform gainful
activity, but had a good work record consistently for a long period of time and
could read, write, handle money, care for her personal needs, clean her apartment,
leave her apartment alone, shop, socialize and attend church. Dr. Brown
contrasted Plaintiff’s inability to answer the simplest of questions with her ability
to explain in detail how she navigated the public transit system to get to the
examination.
Plaintiff never sought or received any type of treatment or vocational
assistance based on her alleged mental issues prior to applying for benefits. Clay
v. Barnhart, 417 F.3d 922, 929 (8th Cir. 2005).

- 11 -

Dr. Sale’s opinions
The ALJ discredited Dr. Sale’s opinion regarding Plaintiff's heart function
and was not required to seek clarification from Dr. Sale because his report was
inconsistent with his medical records during that time period. See Clevenger v.
Soc. Sec. Admin., 567 F.3d 971, 975 (8th Cir.2009) (discrediting a physician's
opinion where it was inconsistent with earlier records of treating physicians). Dr.
Sale’s narrative report indicates that Plaintiff’s physical examination was
unremarkable and she was asymptomatic. Although Plaintiff argues that on a
particular day being asymptomatic means neither good nor bad, Plaintiff exhibited
no signs at that time of a disabling condition, which is demonstrative of
inconsistencies in Dr. Sale’s opinion and his report. Overall, the ALJ properly
discredited Dr. Sale’s opinion because the medical evidence of record did not
support a total disability finding. After careful review, the Court finds the ALJ's
decision to discount Dr. Sale’s conclusions was appropriate, and her failure to
seek clarification was not error.
Conclusion
After careful examination of the record, the Court finds the Commissioner's
determination is supported by substantial evidence on the record as a whole, and
therefore, the decision will be affirmed.
- 12 -

Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of
Social Security is affirmed.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 12th day of September, 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

- 13 -