Soutiea v. Social Security Administration

Filing 25

MEMORANDUM AND ORDER. (see order for details) The Court sustains, adopts, and incorporates herein the Magistrate Judge's Report and Recommendation [ECF No. 22 ], as supplemented by this Court's independent analysis. IT IS HEREBY ORDERED that under sentence four of 42 U.S.C. § 405(g), the final decision of the Commissioner of Social Security denying Plaintiff's claims for disability benefits and supplemental security income is AFFIRMED. IT IS FURTHER ORDERED that Plaintiff's Complaint [ECF 1 ] is dismissed with prejudice. Signed by District Judge E. Richard Webber on 03/29/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TERRILL C. SOUTIEA,
Plaintiff,
vs.
CAROLYN W. COLVIN,1
Commissioner of Social Security
Defendant.

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Case No. 4:11CV01876ERW-SPM

MEMORANDUM AND ORDER

This matter comes before the Court on the Report and Recommendation of United States
Magistrate Judge Shirley Padmore Mensah [ECF No. 22], pursuant to 29 U.S.C. § 636(b).
I.

PROCEDURAL BACKGROUND
Plaintiff Terrill C. Soutiea (“Plaintiff”) brought this action pursuant to 42 U.S.C. §

405(g), requesting judicial review of the decision of Defendant, the Commissioner of Social
Security’s (“the Commissioner”), finding that she is not disabled and denying her application for
supplemental security income. This matter was referred to a United States magistrate judge
pursuant to 29 U.S.C. § 636(b), and in her Report and Recommendation [ECF No. 22],
Magistrate Judge Mensah concluded that there was substantial evidence on the record as a whole
supporting the Commissioner’s finding that Plaintiff was not disabled, and therefore,
recommended that the final decision of the Commissioner be affirmed. See, e.g., Krogmeier v.
Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (role of the reviewing court with respect to

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Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013, and is hereby substituted for Michael J. Astrue as Defendant.

administrative adjudications by the Commissioner of Social Security is to determine whether the
Commissioner’s decision was supported by “substantial evidence”).
Plaintiff filed timely Objections to the Report and Recommendation [ECF No. 23].
“[W]hen a party objects to the report and recommendation of a magistrate judge concerning a
dispositive matter, ‘[a] judge of the court shall make a de novo review determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made.’” United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting § 636(b)(1)).
The Court therefore conducts a de novo review of the matters raised in Plaintiff’s Objections.
II.

DISCUSSION
In her Objections to the Report and Recommendation, Plaintiff essentially renews some

of the arguments she put forth in favor of reversing the Administrative Law Judge’s (“ALJ”)
decision on her benefits claims. Plaintiff contends that (1) the ALJ did not consider the
possibility that Plaintiff “medically equaled” Listings 11.02 and 11.03 for convulsive and nonconvulsive epilepsy [ECF No. 23 at ¶¶ 1-3]; and (2) the ALJ erred by failing to call a medical
expert for an updated opinion about whether Plaintiff medically equaled a listing. Id. at ¶4.
The Court’s review of the Commissioner’s decision is limited to determining whether the
decision was supported by “substantial evidence in the record as a whole.” Krogmeier, 294 F.3d
at 1022. In assessing the record as a whole, courts “consider evidence that detracts from the
decision, as well as evidence that supports it.” Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir.
2010). “Substantial evidence means less than a preponderance but enough that a reasonable
person would find it adequate to support the [Commissioner’s] decision.” Id. Thus, so long as
there is substantial evidence supporting the decision, the reviewing court may not reverse even if
there is also some evidence that would support a contrary outcome. Id.; see also Bland v. Bowen,

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861 F.2d 533, 535 (8th Cir. 1988) (“The concept of substantial evidence is something less than
the weight of the evidence and it allows for the possibility of drawing two inconsistent
conclusions, thus it embodies a zone of choice within which the [Commissioner] may decide to
grant or deny benefits without being subject to reversal on appeal.”).
In determining whether an applicant is “disabled” for purposes of the Social Security Act,
the Commissioner applies a five-step sequential analysis: (1) the ALJ determines if the claimant
is engaged in substantial gainful activity, and if so, the claimant is not disabled; (2) the ALJ
determines whether the claimant has a severe medical impairment that has lasted, or can be
expected to last, at least 12 months; (3) if so, the ALJ then assesses the severity of the
impairment, specifically whether it meets or equals, in terms of severity, certain impairments
listed in the regulations; (4) if the claimant has met the preceding severity requirement, the ALJ
assesses the claimant’s residual functional capacity (“RFC”) and decides whether she has the
RFC to perform past relevant work; and (5) if the claimant cannot perform past relevant work, in
this last step the ALJ considers whether the claimant has the RFC to perform other jobs in the
economy – if not, she is disabled. See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits);
§ 404.920(a)(4) (supplemental security income); see also, e.g., Kluesner v. Astrue, 607 F.3d 533,
536-37 (8th Cir. 2010) (describing the five-step process). Plaintiff’s Objections concern the third
step of this analysis.
A.

The ALJ’s Failure to Consider that Plaintiff Did Not Medically Equal Listings
11.02 or 11.03

Plaintiff argues that the ALJ did not consider whether she medically equaled Listings

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11.02 and 11.03 for convulsive and non-convulsive epilepsy. [ECF No. 23, at ¶1].2 Although
Plaintiff acknowledges that the ALJ concluded in a headnote that Plaintiff did not have an
impairment that meets or medically equals any listing, Plaintiff disputes that this means the ALJ
considered 11.02 or 11.03. The listings consist of impairments, organized by major body
systems, that are deemed sufficiently severe to prevent a person from doing not only substantial
gainful activity, but any gainful activity at all. 20 C.F.R. §§ 404.1525(a), 416.925(a). To “equal”
a listing, the medical findings must be “at least equal in severity and duration to the listed
findings.” 20 C.F.R. § 404.1526(a). A claimant's impairments must meet or equal all of the
specified medical criteria in a particular listing for the claimant to be found disabled at step three
of the sequential evaluation. See Sullivan v. Zebley, 493 U.S. 521, 530–32 (1990). The
evidentiary standards for presumptive disability under the listings are stricter than for cases that
proceed to other steps in the sequential evaluation process because medical findings carry the
entire burden of proving disability, and vocational factors such as age, education, or work
experience are not considered. See 20 C.F.R. § 404.1520(d); Zebley, 493 U.S. at 532. The
greater level of evidentiary proof is a reasonable rule given that the listings represent an
automatic screening rather than an individual judgment based on all relevant factors in a
claimant's claim. See Zebley, 493 U.S. at 532. The burden of proof is on the plaintiff to establish
that his impairment meets or equals a listing. Jones v. Astrue, No. 4:08CV01472FRB, 2010 WL
883658, at * 8 (E.D. Mo. Mar. 5, 2010) (citing Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th
Cir. 2004) (burden is on claimant to show she meets or equals listing's requirements).
Here, Plaintiff must establish medical findings that are equal in severity and duration to

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Plaintiff does not challenge the ALJ’s more detailed finding that she did not meet the
criteria of Listing 11.02 and 11.03. See Plaintiff’s Brief in Support of the Complaint, [ECF No.
16, at 16]; and Plaintiff’s Objections to Report and Recommendation, [ECF No. 23, at ¶¶ 1-2].
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the requirements of Listings 11.02 or 11.03. Listing 11.02 requires “convulsive epilepsy, (grand
mal or psychomotor), documented by detailed description of a typical seizure pattern, including
all associated phenomena; occurring more frequently than once a month in spite of at least 3
months of prescribed treatment,” plus “[d]aytime episodes (loss of consciousness and convulsive
seizures)” or “[n]octurnal episodes manifesting residuals which interfere significantly with
activity during the day.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 11.02. Listing 11.03
requires “nonconvulsive epilepsy (petit mal, psychomotor, or focal), documented by detailed
description of a typical seizure pattern, including all associated phenomena; occurring more
frequently than once weekly in spite of at least 3 months of prescribed treatment and include
alteration of awareness or loss of consciousness and transient postictal manifestations of
unconventional behavior or significant interference with activity during the day.” Id. at § 11.03.
The ALJ made the finding that Plaintiff “does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.” [ECF No. 11-3, at 18] (emphasis added). Then, the ALJ discussed the
above-listed requirements of Listings 11.02 and 11.03, and concluded that Plaintiff did not meet
either listing. Id. (emphasis added). As a basis for his conclusion, the ALJ found that Plaintiff
has “had episodes that have not clearly been diagnosed as convulsive or non-convulsive
epilepsy” and that “there is no evidence of convulsive seizures occurring during the day or at
night.” Id. The ALJ also noted that the evidence does “not document transient postical
manifestation of unconventional behavior or significant interference with activity during the day”
as required under Listing 11.03. Id. The ALJ further stated that Plaintiff’s doctors have not been
entirely convinced that the episodes are seizures rather than being related to a psychological

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cause. Id.3 As argued by the Plaintiff, however, the ALJ did not make a specific finding that
Plaintiff’s impairments did not medically equal the criteria of Listings 11.02 and 11.03.4
Here, the Court agrees that the medical records provide substantial evidence for the ALJ’s
implicit finding that Plaintiff did not medically equal the criteria for 11.02 or 11.03. See Jackson
v. Astrue, 314 Fed. Appx. 894, 895 (8th Cir. 2008). As noted earlier, it is the Plaintiff’s burden
to establish that her impairments medically equal Listings 11.02 and 11.03. No treating or
examining physician has mentioned findings equivalent in severity to the criteria of Listings
11.02 and 11.03.5 See Carlson v. Astrue, 604 F.3d 589, 594 (8th Cir. 2010). Furthermore, in
support of the ALJ’s determination, the Psychiatric Review Technique Form, completed by
James Spence, Ph.D, on September 17, 2009, stated that the “evidence does not support an
impairment that meets or equals a listing currently.” [ECF No. 11-9, at 37]. The other

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The ALJ made the finding that Plaintiff has “a history of seizure like activity most likely
from a conversion disorder or somatization disorder.” [ECF No 11-3, at 17]. Plaintiff made no
objection to this finding.
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The ALJ discussed why Plaintiff did not medically equal Listings 12.04, 12.06, and
12.07. [ECF No. 11-3, at 18]. The Commissioner contends that Plaintiff’s seizure-like activity
was properly evaluated under the most similar Listing - 12.07, as it likely stemmed from a
conversion or somatization disorder. [ECF No. 19, at 6-7]. The Magistrate found that the ALJ’s
decision to focus on this Listing was supported by substantial evidence. [ECF No. 22, at 20]. As
Plaintiff does not raise an objection, this finding will not be further discussed.
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Plaintiff objects to the Magistrate’s statement, “Plaintiff does not cite, and the
undersigned’s review of the record does not reveal, any evidence suggesting that Plaintiff had
impairments that were equal in severity to convulsive seizures or transient postictal
manifestations.” [ECF No. 23, at ¶ 3]. Plaintiff contends this is an inappropriate medical
conclusion by the Magistrate. Id. Plaintiff then asserts that evidence from a medical expert is the
appropriate basis for such conclusion, and that no physician in the record was asked whether
Plaintiff had impairments equal to convulsive seizures or transient postictal manifestations. Id.
However, the Magistrate’s statement is not a medical conclusion, but a reference to her
examination of the record to determine if Plaintiff met her burden to provide evidence from a
treating or examining medical provider which establishes that Plaintiff medically equaled the two
requirements not met under Listings 11.02 and 11.03. Therefore, the Court rejects Plaintiff’s
argument.
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consultative examinations and opinions contained in the record, from Dr. Nicole Werner, Ph.D.,
and Thomas J. Spencer, Psy.D., also did not provide evidence that Plaintiff medically equaled a
listing. [See ECF No. 11-9, at 136-139; ECF No. 11-10]. Plaintiff does not offer, point to, or
cite any supporting evidence that she medically equaled 11.02 or 11.03. Plaintiff fails to
specifically link the evidence in the record to a medical listing. See Bridges v. Astrue, No. 113247-SSA-CV-S-MJW, 2012 WL 3637712, at * 9 (W.D. Mo. Aug. 22, 2012) (concluding that
plaintiff fails to meet her burden of proof to establish that she meets or equals a listing as she
does not “ provide a close connection between the evidence and the medical listings”). As the
absence of evidence supporting medical equivalency can constitute substantial evidence, here,
there is substantial evidence supporting the ALJ’s finding that Plaintiff did not medically equal a
listing.
In her Objections to Report and Recommendation, Plaintiff objects to the manner in
which the ALJ made his findings under Step 3. Plaintiff argues that The ALJ’s conclusion that
Plaintiff “does not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments” was insufficiently made in a boilerplate headnote only,
with no specific discussion of Listings 11.02, or 11.03. [ECF No. 23, at ¶¶ 1-2] (emphasis
added). Plaintiff further contends that, although the ALJ did analyze whether Plaintiff met 11.02
and 11.03, this does not indicate that the ALJ meaningfully considered whether she equaled the
Listings. Id. (emphasis added). However, the Court finds that the ALJ’s overall conclusion,
without specific mention of equivalency in regard to Listings 11.02 and 11.03, is sufficient as the
overall record provides substantial evidence that Plaintiff does not medically equal either listing.
See Payne v. Astrue, No. 4:11CV1295 LMB, 2012 WL 4109023, at * 12 (E.D. Mo. Sept. 18,
2012) (“Although it is preferable that ALJs address a specific listing, failure to do so is not

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reversible error if the record supports the overall conclusion.”); Moore ex rel. Moore v. Barnhart,
413 F.3d 718, 721 n.3 (8th Cir. 2005) (noting that ALJ's failure to mention specific listing is not
reversible error if record supports overall conclusion). Furthermore, Plaintiff must meet her
evidentiary burden before the ALJ would be required to address a specific listing. See
Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (summarily rejecting conclusory
assertion that ALJ did not consider whether appellant met certain listings, where no analysis of
law or facts was provided).
B.

The ALJ erred by failing to call a medical expert for an updated opinion about
whether Plaintiff medically equaled a listing.

As noted above, James Spence, Ph.D., reviewed medical evidence for the state agency in
2009, and completed a Psychiatric Review Technique Form, concluding that the evidence does
not support an impairment that met or equaled a listing. [ECF 11-9, at 37]. Plaintiff contends
that the medical record has been expanded since 2009 when Dr. Spence issued his opinion.
Plaintiff argues that an updated opinion from a medical expert is needed due to this expansion,
including the medical evidence subsequently received from the January 24, 2011consultative
exam performed by Dr. Spencer. Plaintiff maintains that Dr. Spencer’s findings could have
modified Dr. Spence’s conclusion. [ECF No. 20, at ¶ 3; ECF No. 23, at ¶ 4]. Plaintiff states that
Dr. Spencer’s evaluation provided “new and important medical information about Plaintiff’s
condition that was not available to Dr. Spence.” [ECF No. 20, at ¶ 3].
After the administrative hearing, the ALJ sent Plaintiff for the consultative psychological
evaluation with Dr. Spencer. In Dr. Spencer’s Psychological Evaluation, he noted that Plaintiff’s
results on the Minnesota Multiphasic Personality Inventory 2 (MMPI-2) were consistent with an
individual who experiences little anxiety and converts psychological conflict into physical

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complaints. [ECF No 11-10, at 10]. However, Dr. Spencer observed that Plaintiff’s results also
suggested that she could be experiencing depression and anxiety because she was unable to
effectively eliminate those conflicts. Id. He also stated that Plaintiff’s results were consistent
with an individual who typically engages in extensive complaining about her physical problems.
Id. Dr. Spencer noted that “such individuals often manipulate people through complaints
regarding their health problems.” Id. Dr. Spencer diagnosed major depressive disorder and rule
out conversion disorder vs. somatization disorder. Id. He assigned a GAF score of 55 to 60. Id.
at 11.
As noted, Plaintiff claims that the psychological evaluation conducted by Dr. Spencer is
“new and important” evidence, requiring the ALJ to seek an updated expert opinion from the
state agency regarding whether Plaintiff’s impairments were equivalent to Listings11.02 and
11.03. However, the Court finds that there is substantial thath an additional medical opinion is
not required. Plaintiff does not point to specific evidence contained in Dr. Spencer’s
psychological evaluation, nor can the Court discern evidence, from Dr. Spencer, or in the record,
that Plaintiff’s impairments were equivalent to listings 11.02 or 11.03. Under Social Security
Ruling 96-6p, an ALJ must obtain an updated medical opinion from a medical expert when
“additional medical evidence is received that in the opinion of the administrative law judge or the
Appeals Council may change the State agency medical or psychological consultant's finding that
the impairment(s) is not equivalent in severity to any impairment in the Listing of Impairments.”
As the overall record, including the expansion of it by Dr. Spencer, does not provide sufficient
evidence suggesting Dr. Spence’s conclusion should be modified, the Court rejects Plaintiff’s
contention that the ALJ erred by failing to call a medical expert for an updated opinion.
III.

CONCLUSION

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The Court has reviewed those portions of Magistrate Judge Mensah’s Report and
Recommendation to which Plaintiff filed objections, and concludes that Plaintiff’s objections are
without merit. The Court finds that there is substantial evidence supporting the ALJ’s
determination that Plaintiff does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments. The ALJ’s failure to specifically
mention whether Plaintiff equaled 11.02 or 11.03 does not require reversal, as the overall record
supports the determination, and Plaintiff failed to meet her burden to provide evidence
supporting medical equivalence. Additionally, the Court rejects Plaintiff’s argument that the
ALJ erred by failing to call a medical expert for an updated medical opinion.
Therefore, the Court sustains, adopts, and incorporates herein the Magistrate Judge’s
Report and Recommendation [ECF No. 22], as supplemented by this Court’s independent
analysis.
Accordingly,
IT IS HEREBY ORDERED that under sentence four of 42 U.S.C. § 405(g), the final
decision of the Commissioner of Social Security denying Plaintiff’s claims for disability benefits
and supplemental security income is AFFIRMED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint [ECF 1] is dismissed with
prejudice.
Dated this

29th

day of March, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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