Stricklan v. Social Security Administration
MEMORANDUM: Substantial evidence in the record as a whole supports the decision of the ALJ finding plaintiff not disabled because the evidence of record does not support the presence of a disabling impairment. Accordingly, Judgment will be entered separately in favor of defendant in accordance with this Memorandum. Signed by Magistrate Judge Lewis M. Blanton on 9/11/2013. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security, )
Case No. 4:12CV1179 LMB
This is an action under 42 U.S.C. § 405(g) for judicial review of defendant’s final decision
denying the application of Angela Stricklan for Supplemental Security Income under Title XVI of
the Social Security Act. This case has been assigned to the undersigned United States Magistrate
Judge pursuant to the Civil Justice Reform Act and is being heard by consent of the parties. See
28 U.S.C. § 636(c). Plaintiff filed a Brief in support of the Complaint. (Doc. No. 14). Defendant
filed a Brief in Support of the Answer. (Doc. No. 19).
On September 30, 2008, plaintiff filed an application for Supplemental Security Income,
claiming that she became unable to work due to her disabling condition on May 25, 2007. (Tr.
235-37). This claim was denied initially and, following an administrative hearing, plaintiff’s claim
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 is
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).
was denied in a written opinion by an Administrative Law Judge (ALJ), dated March 8, 2011.
(Tr. 148-52, 5-42). Plaintiff then filed a request for review of the ALJ’s decision with the
Appeals Council of the Social Security Administration (SSA), which was denied on May 16,
2012. (Tr. 4, 1-3). Thus, the decision of the ALJ stands as the final decision of the
Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.
Evidence Before the ALJ
First ALJ Hearing
Plaintiff’s first administrative hearing was held on April 8, 2010. (Tr. 53). Plaintiff was
present and was represented by counsel. (Id.). Also present was vocational expert Vincent
The ALJ examined plaintiff, who testified that she was thirty-three years of age. (Tr. 56).
Plaintiff stated that she was five-feet, six-inches tall and weighed 210 pounds. (Id.). Plaintiff
testified that she was single, and had two children who were aged eleven and nine. (Id.). Plaintiff
stated that her children live with her in the upstairs unit of a two-family flat. (Id.).
Plaintiff testified that her stepfather drove her to the hearing. (Tr. 57). Plaintiff stated that she
has a valid Missouri driver’s license and that she drives. (Id.). Plaintiff testified that she owns a
car and she drives about ten miles a week. (Id.).
Plaintiff stated that her daughter receives SSI benefits in the amount of $674.00 a month
for a mental disability. (Id.). Plaintiff testified that her daughter has bipolar disorder and a
“mental deficiency.” (Id.). Plaintiff stated that she receives food stamps, Section 8 housing, and
Medicaid. (Tr. 58).
Plaintiff testified that she completed twelfth grade and that she took all special education
classes. (Id.). Plaintiff stated that she did not attend college or receive any vocational training.
(Tr. 59). Plaintiff testified that she is able to read and write. (Id.).
Plaintiff stated that she last worked on May 25, 2007. (Id.). Plaintiff testified that she
worked for Globe Variety, and that the store closed on May 25, 2007. (Id.). Plaintiff stated that,
if the store had not closed, she would “probably” still be working there at the time of the hearing.
(Tr. 60). Plaintiff testified that she has applied for positions at factories since her job ended.
Plaintiff stated that she worked at a book binding factory for one to two months. (Id.).
Plaintiff testified that she sat at a table and placed cardboard and plastic on a table, and a machine
bound the books. (Id.).
Plaintiff testified that she worked as a laundry aide for two-and-a-half months. (Tr. 61).
Plaintiff stated that she was fired from this position because she was unable to get to work due to
transportation problems. (Id.).
Plaintiff testified that she worked as a floater and cashier at Globe Variety for fourteen
months. (Tr. 61-62).
Plaintiff stated that she became disabled on May 25, 2007, because she took special
education classes in school, repeated the third grade, had difficulty with reading and math, and
does not like to be around a lot of people. (Tr. 62-63).
Plaintiff testified that she had an argument with her boss at Globe Variety on one
occasion, when she was not able to catch a person who stole merchandise. (Tr. 63). Plaintiff
stated that she left after the argument with her boss. (Id.). Plaintiff testified that she never had
any problem getting along with her co-workers. (Id.).
Plaintiff stated that she typically wakes up around 7:30 a.m., gets her kids ready for
school, gives her kids their medication, walks the kids to the bus stop, and then cleans her house.
(Id.). Plaintiff testified that the bus stop is one block from her home. (Tr. 64). Plaintiff stated
that she helps her daughter dress because her daughter has a mental deficiency. (Id.). Plaintiff
testified that her children prepare their own breakfast. (Id.). Plaintiff stated that she cooks, does
laundry, washes dishes, makes beds, mops, and sweeps. (Id.). Plaintiff testified that she shops for
groceries, and that she does not talk to anybody in the store. (Tr. 65). Plaintiff stated that she
watches television in the afternoon before her kids get home from school. (Id.). Plaintiff testified
that she reads when she has time, and that she enjoys reading Stephen King novels. (Tr. 66).
Plaintiff stated that it usually takes her about one week to read a novel. (Id.).
Plaintiff testified that she does not have any friends, but she has a boyfriend. (Id.).
Plaintiff testified that she gets along with her mother and her stepfather. (Id.). Plaintiff stated that
she gets along well with her downstairs neighbor. (Tr. 67). Plaintiff testified that she is not active
in any organizations or Church. (Id.). Plaintiff stated that she does not go out in the evening, and
that she is more of a “home person.” (Id.). Plaintiff testified that she takes her son to the park to
play soccer. (Id.).
Plaintiff stated that she smokes about half of a package of cigarettes a day. (Tr. 68).
Plaintiff testified that she does not drink or do drugs. (Id.).
Plaintiff testified that she takes Depakote2 for her mood swings. (Tr. 69). Plaintiff stated
Depakote is indicated for the treatment of bipolar disorder. See Physician’s Desk
Reference (“PDR”), 2088 (63rd Ed. 2009).
that the medication controls her mood swings. (Id.). Plaintiff testified that she takes Zoloft,3
which helps. (Id.). Plaintiff stated that she takes Xanax4 for anxiety, and that it is effective. (Tr.
70). Plaintiff testified that she takes Trazodone5 to help her sleep. (Id.).
Plaintiff testified that she has carpal tunnel syndrome.6 (Tr. 71). Plaintiff stated that she is
able to use her hands to a certain extent but she is unable to hold anything heavy due to pain and
numbness in her fingers. (Id.). Plaintiff testified that she is able to button, zip, feed herself with
utensils, put on her shoes and socks, and comb her hair. (Tr. 71-72).
Plaintiff stated that she has sleep apnea7 and restless leg syndrome,8 but she receives no
treatment for these impairments. (Tr. 72-73).
Plaintiff testified that she experiences no side effects from her current medications. (Tr.
Zoloft is an antidepressant drug indicated for the treatment of depression and other mood
disorders. See WebMD, http://www.webmd.com/drugs (last visited September 11, 2013).
Xanax is indicated for the treatment of anxiety and panic disorders. See WebMD,
http://www.webmd.com/drugs (last visited September 11, 2013).
Trazodone is an antidepressant drug indicated for the treatment of depression and other
mood disorders. See WebMD, http://www.webmd.com/drugs (last visited September 11, 2013).
The most common nerve entrapment syndrome, characterized by paresthesias, typically
nocturnal, and sometimes sensory loss and wasting in the median nerve distribution in the hand.
Stedman’s Medical Dictionary, 1892 (28th Ed. 2006).
A disorder characterized by recurrent interruptions of breathing during sleep due to
temporary obstruction of the airway. See Stedman’s at 119.
A sense of indescribable uneasiness, twitching, or restlessness that occurs in the legs after
going to bed, frequently leading to insomnia, which may be relieved temporarily by walking about.
Stedman’s at 1911.
Plaintiff stated that she experiences depression, and that she cries often. (Tr. 73-74).
Plaintiff testified that she last experienced a crying spell about one week prior to the hearing. (Tr.
Plaintiff stated that she has not had an anxiety attack within the last month. (Id.). Plaintiff
testified that she experienced a panic attack on one occasion. (Id.).
Plaintiff stated that she has never been in a mental hospital. (Id.). Plaintiff testified that
she is under the care of psychiatrist Dr. Manikant Desai. (Id.). Plaintiff stated that she sees Dr.
Desai once a month. (Id.). Plaintiff testified that she only felt suicidal on one occasion, in 1998.
Plaintiff stated that she attempted suicide by taking 300 pills in 1998. (Id.). Plaintiff
testified that she was hospitalized for a day-and-a-half after her suicide attempt, and she started
receiving psychiatric care after she was discharged. (Tr. 75). Plaintiff stated that she saw
psychiatrist Dr. Luzviminda Santos until she retired in 2007. (Id.).
Plaintiff testified that she likes factory work, but some of the work is hard for her. (Id.).
Plaintiff stated that she does not talk to many people and has some difficulty getting along with
people. (Tr. 76). Plaintiff testified that she did not have a supervisor standing over her when she
worked at the factory. (Id.). Plaintiff stated that she becomes distracted easily. (Tr. 77).
Plaintiff testified that she needed one rest period in the morning and one in the afternoon. (Id.).
Plaintiff stated that she is able to ask simple questions and request help. (Id.). Plaintiff testified
that she is unable to interact with co-workers without distracting them. (Id.). Plaintiff stated that
she is unable to deal with stress. (Tr. 78). Plaintiff testified that she is able to stay away from
hazards in the workplace. (Id.). Plaintiff stated that she has difficulty interacting with people and
that she had an explosive fight with her boss. (Id.). Plaintiff testified that she has no difficulty
with neatness and cleanliness, and that she cleans her house almost daily. (Tr. 79). Plaintiff stated
that she is not good with directions when traveling. (Id.). Plaintiff testified that she is able to use
public transportation. (Id.).
Plaintiff stated that she has difficulty with concentration. (Id.). Plaintiff testified that she
forgets where she left off when she reads, and has to re-read portions of books. (Id.).
Plaintiff stated that she is moody all the time. (Tr. 80). Plaintiff testified that she is happy
“most of the time,” but experiences mood swings. (Id.). Plaintiff stated that she experiences
manic episodes. (Id.).
Plaintiff testified that she has no difficulty sitting down. (Id.). Plaintiff stated that she is
able to stand for long periods, and is able to walk about four blocks. (Id.). Plaintiff testified that
she is able to lift about twenty pounds. (Tr. 81). Plaintiff stated that she has difficulty kneeling
due to back pain. (Id.). Plaintiff testified that she injured her back in a car accident when she was
seventeen. (Id.). Plaintiff stated that she no longer experiences much back pain. (Id.). Plaintiff
testified that she is able to climb stairs. (Tr. 82).
Plaintiff’s attorney next examined plaintiff, who testified that she has gained about forty
pounds since she applied for benefits due to her medication. (Id.).
Plaintiff stated that she does not receive child support because her children’s father is
unemployed and was recently released from prison for failing to pay child support. (Tr. 83).
Plaintiff testified that she repeated the third grade. (Id.).
Plaintiff stated that her mother helped her complete the paperwork for her application for
benefits. (Id.). Plaintiff testified that she did not understand some of the questions on the
Plaintiff stated that she did not have difficulty performing her factory job. (Id.).
Plaintiff testified that her position at Globe Drug was not a full-time job. (Id.). Plaintiff
stated that she had no difficulty performing the cashier job. (Tr. 84). Plaintiff testified that the
other part of the position involved walking around all day, which was difficult because she was
unable to take breaks. (Id.).
Plaintiff stated that she was tired at the time of the hearing from taking Xanax. (Id.).
Plaintiff testified that she takes Xanax daily and drowsiness is a side effect of the medication.
(Id.). Plaintiff stated that she takes a one-to-two-hour-long nap after taking her medication.
(Id.). Plaintiff testified that the day prior to the hearing, she napped from 12:50 to 3:50. (Tr. 85).
Plaintiff stated that she experiences crying spells approximately once every three months.
(Id.). Plaintiff testified that her doctor recently added Lamictal9 to help control her mood swings.
Plaintiff stated that she has been getting along with her mother better the past year. (Id.).
Plaintiff testified that she used to argue with her mother because her mother gave her unsolicited
The ALJ next examined vocational expert Vincent Scott, who testified that plaintiff’s past
work is classified as follows: cashier (light, but performed by plaintiff as medium and light);
laundry (medium, performed by plaintiff as light); and machine operator (medium, performed by
plaintiff as light).
The ALJ asked Mr. Scott to assume a hypothetical individual with plaintiff’s background
Lamictal is indicated for the treatment of bipolar disorder. See PDR at 1490-91.
and the following limitations: capable of performing light work; can occasionally kneel or crawl;
limited to simple, repetitive tasks and instructions; and occasional interaction with supervisors,
co-workers and the public. (Tr. 89). Mr. Scott testified that plaintiff’s past positions of laundry
aide and machine operator would be available as plaintiff performed them, but not as they are
ordinarily performed in the national economy. (Id.). Mr. Scott stated that the individual could
perform other light, unskilled jobs, such as housekeeping (400,000 positions nationally; 10,000 in
Missouri); and masker semiconductor (120,000 positions nationally; 3,000 in Missouri). (Id.).
Plaintiff’s attorney asked Mr. Scott to assume the limitations found by Dr. Desai. (Tr.
90). Mr. Scott testified that an individual with these limitations would not be employable. (Id.).
The ALJ indicated that he would order a psychological consultative examination due to
conflicts between plaintiff’s testimony and the opinion of plaintiff’s doctor. (Tr. 91).
Second ALJ Hearing
Plaintiff’s second administrative hearing was held on January 25, 2011. (Tr. 95). Plaintiff
was present and was represented by counsel. (Id.). Also present was vocational expert Dr.
Magrowski and medical expert Charles Arvenshine. (Id.).
The ALJ indicated that plaintiff had undergone a consultative psychiatric examination, and
that he had scheduled a hearing with a medical expert due to questions raised in that consultation.
The ALJ examined Dr. Arvenshine, who testified that he had not examined plaintiff but he
had reviewed her records and he had sufficient evidence to form an opinion regarding plaintiff’s
medical status. (Tr. 98-99). Dr. Arvenshine expressed the opinion that plaintiff does not meet or
equal the criteria of a listed impairment. (Tr. 104). With regard to the “B criteria,” Dr.
Arvenshine testified that plaintiff has minor limitations in activities of daily living; plaintiff gets
along with people and makes a good impression; she has moderate limitations in concentration
and persistence; and has had no episodes of decompensation. (Tr. 105).
Plaintiff’s attorney examined Dr. Arvenshine, who testified that his answer with regard to
the B criteria would not change if he evaluated plaintiff’s impairments in combination. (Tr. 106).
Dr. Arvenshine testified that he has seen no evidence that plaintiff has difficulty getting along with
supervisors, co-workers, or customers. (Id.).
Dr. Arvenshine stated that he did not believe Dr. Desai’s opinion that plaintiff was unable
to cope and would miss more than four days of work per month was supported by the evidence.
Dr. Arvenshine testified that, although he indicated he considered the opinions of Daniel
Frye and Keith Dunn, he realized these individuals were not medical experts. (Id.). Dr.
Arvenshine stated that his opinion was based on the preponderance of evidence, and that he gave
more weight to the opinions of treating physicians, psychiatrists, and psychologists than to nonexamining sources. (Tr. 107-09). Dr. Arvenshine testified that he discounted the opinion of Dr.
Desai because there was too much overriding evidence in the record. (Tr. 109).
Dr. Arvenshine stated that he had no reason to believe the IQ scores assessed by Dr.
Mades were inaccurate, but noted that they were old. (Id.). Dr. Arvenshine testified that an
individual should ideally be tested every two to three years. (Tr. 110). Dr. Arvenshine stated that
plaintiff’s IQ has been fairly stable over the years. (Id.).
Dr. Arvenshine testified that plaintiff may need some assistance managing her benefits.
(Tr. 111-12). Dr. Arvenshine stated that, while plaintiff would have occasional difficulty getting
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along with people, he would not rule out the possibility of her holding a job. (Tr. 112).
Dr. Arvenshine testified that plaintiff’s dosage of Xanax could interfere with her
functioning, but he would not assume that it does. (Tr. 113).
Dr. Arvenshine stated that he was familiar with Listing 12.05. (Id.). Dr. Arvenshine
testified that an IQ score of 68 would be within the listing, but he did not believe this score tells
“the whole story.” (Tr. 114). Dr. Arvenshine stated that plaintiff has another significant
impairment in addition to her low IQ–an affective disorder and anxiety disorder. (Tr. 115).
Plaintiff’s attorney examined plaintiff, who testified that her medications help, but she still
experiences mood swings and she blows up at people. (Tr. 116). Plaintiff stated that she
experiences drowsiness from the Xanax, and that she sleeps after taking it. (Id.).
Plaintiff testified that she worked for Globe Variety prior to applying for benefits. (Tr.
117). Plaintiff stated that she worked as a backup cashier and a floater at this position. (Id.).
Plaintiff explained that a floater watches the customers to prevent them from stealing. (Id.).
Plaintiff testified that she got into an argument with her supervisor because he did not
believe her when she told him that a customer had stolen merchandise. (Id.). Plaintiff stated that
she got along with some customers and did not get along with other customers. (Id.). Plaintiff
testified that she encountered many alcoholic customers that caused problems. (Tr. 118).
Plaintiff stated that she worked at this position part-time. (Id.). Plaintiff testified that she
could not have worked full-time at the position because many of the customers irritated her.
(Id.). Plaintiff stated that many customers were unable to pay for merchandise, which required
plaintiff to void the purchases. (Id.). Plaintiff testified that she told the customer to leave if they
caused her to void multiple transactions. (Id.). Plaintiff stated that she got in trouble when she
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had multiple voids at her register. (Id.). Plaintiff testified that she worked as a back-up cashier,
relieving cashiers when they took breaks. (Tr. 119). Plaintiff stated that she stopped working at
this position because the business closed two years prior to the hearing. (Id.). Plaintiff testified
that she would not have worked at this position full-time if the business had not closed. (Id.).
In a closing statement, plaintiff’s attorney argued that plaintiff meets or equals the listing
for mental retardation because she has a valid IQ score of 68, and an additional significant
impairment according to the testimony of the medical expert. (Tr. 120).
Relevant Medical Records
Plaintiff presented to psychologist Gitry Heydebrand, Ph.D., on January 31, 2003, for a
psychological evaluation. (Tr. 854-58). Plaintiff complained of depression, difficulty
concentrating on the job, and learning problems. (Tr. 854). Dr. Heydebrand administered
intellectual testing, which revealed a Verbal IQ of 75, Performance IQ of 72, and Full Scale IQ of
71. (Tr. 856). Dr. Heydebrand stated that plaintiff’s scores appeared to be valid and placed her
in the borderline range of intellectual ability. (Id.). Dr. Heydebrand diagnosed plaintiff with
major depression, mild; borderline IQ; and a GAF score of 80.10 (Tr. 857). Dr. Heydebrand
stated that, based on the test results, educational and work history, and quality of plaintiff’s
responses, she is thought to meet criteria for borderline IQ. (Id.). Dr. Heydebrand found that
plaintiff displayed a basic capacity to understand and carry out simple instructions; was able to
concentrate and focus on tasks to complete them as required during the clinical interview; her
A GAF score of 71 to 80 denotes “[i]f symptoms are present, they are transient and
expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family
argument); no more than slight impairment in social, occupational, or school functioning (e.g.,
temporarily falling behind in schoolwork).” Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV), 32 (4th Ed. 1994).
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level of social responsiveness was fair and her ability to adapt to environmental changes appeared
to be limited; she was able to complete basic activities of daily living and perform household
chores; and she was judged not competent to manage her own funds based on her cognitive
status. (Tr. 857-58).
Plaintiff presented to psychologist L. Lynn Mades, Ph.D., for a psychological evaluation
on September 20, 2007. (Tr. 420-25). Plaintiff complained of not being able to find a job. (Tr.
420). Plaintiff reported a history of learning disability. (Tr. 421). Plaintiff complained of mood
problems for the past four to five years, depression occurring four to five days a week, and
difficulty sleeping. (Id.). Upon mental status examination, plaintiff was cooperative and pleasant;
coherent and logical; speech was normal; mood was euthymic; affect was full and generally
appropriate; no thought disturbances, delusions, or hallucinations were noted; memory was within
normal limits; and insight and judgment appeared to be slightly limited. (Tr. 422-23). Dr. Mades
administered intellectual testing, which revealed a Verbal IQ of 68, Performance IQ of 83, and
Full Scale IQ of 73. (Tr. 423). Plaintiff’s IQ scores placed her in the borderline range of
cognitive functioning overall. (Id.). Dr. Mades diagnosed plaintiff with depressive disorder NOS;
borderline intellectual functioning; and a GAF score of 70-75.11 (Tr. 424). Dr. Mades noted that
there was a significant difference between plaintiff’s verbal and performance scores, which
indicated that her actual cognitive potential may be closer to the low average range,
commensurate with her performance score. (Id.). Dr. Mades stated that no evidence of a thought
A GAF score of 61 to 70 denotes “[s]ome mild symptoms (e.g., depressed mood and
mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally functioning pretty well, has some meaningful
interpersonal relationships.” DSM-IV at 32.
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disturbance was noted during the examination, and there was evidence of mild mood and
cognitive impairment by history and presentation. (Id.). Dr. Mades found that plaintiff appeared
competent to manage her own funds. (Id.).
Plaintiff presented to Luzviminda R. Santos, M.D. on September 24, 2007, at which time
plaintiff reported she was overwhelmed by day-to-day stressors. (Tr. 718). Dr. Santos diagnosed
plaintiff with bipolar affective disorder,12 borderline intellectual functioning, and a GAF score of
55.13 (Id.). On December 10, 2007, plaintiff reported that she had been under stress lately and
that she was trying to obtain SSI benefits. (Tr. 500). Dr. Santos increased plaintiff’s dosage of
Xanax. (Id.). On January 9, 2008, Dr. Santos diagnosed plaintiff with bipolar affective disorder,
borderline intellectual functioning, and a GAF score of 60. (Tr. 713). On March 19, 2008,
plaintiff reported that she was stressed out. (Tr. 716). Dr. Santos’ diagnoses remained
unchanged. (Id.). On April 15, 2008, plaintiff complained of being stressed out because she lived
with her father and her two children and has no personal space. (Tr. 714). Dr. Santos assessed a
GAF score of 55. (Id.). On May 14, 2008, plaintiff reported that she had an interview at a
factory. (Tr. 715). Dr. Santos assessed a GAF score of 60. (Id.).
Plaintiff saw Jordan Balter, D.O., on September 25, 2008, at which time it was noted that
plaintiff was taking her medication and was currently stable. (Tr. 532). Dr. Balter diagnosed
An affective disorder characterized by the occurrence of alternating manic, hypomanic,
or mixed episodes and with major depressive episodes. Stedman’s at 568.
A GAF score of 51-60 denotes “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers).” DSM-IV at 32.
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plaintiff with bipolar disorder-stable; and a GAF score of 50.14 (Id.).
Plaintiff presented to St. Alexius Hospital on November 4, 2009. (Tr. 598). Manikant
Desai, M.D., diagnosed plaintiff with bipolar disorder I,15 currently depressed, moderate. (Id.).
Plaintiff presented to Dr. Desai on March 10, 2010, at which time she complained of
depression and anger spells. (Tr. 747). Dr. Desai diagnosed plaintiff with bipolar affective
disorder and generalized anxiety disorder.16 (Id.). Dr. Desai added Lamictal. (Id.). On March
31, 2010, plaintiff continued to report depression and anger. (Tr. 746).
Dr. Desai completed a Mental Residual Functional Capacity Questionnaire on March 31,
2010, in which he listed the following findings observed on previous examinations: mood swings,
poor concentration, anxiety attacks, and pain in the hands from carpal tunnel syndrome. (Tr.
739). Dr. Desai indicated that plaintiff suffered from the following symptoms: mood disturbance,
difficulty thinking or concentrating, bipolar syndrome, easy distractability, and sleep disturbance.
(Tr. 740). Dr. Desai expressed the opinion that plaintiff had no useful ability to function, or
extreme limitations in the following abilities: perform at a consistent pace without an unreasonable
number of length of rest periods; and accept instructions and respond appropriately to criticisms
from supervisors. (Tr. 741). Plaintiff was unable to meet competitive standards in the following
areas: remember work-like procedures, sustain an ordinary routine without special supervision,
A GAF score of 41 to 50 indicates “serious symptoms” or “any serious impairment in
social, occupational, or school functioning (e.g., no friends, unable to keep a job).” DSM-IV at
An affective disorder characterized by the occurrence of alternating (e.g., mixed, manic,
and major depressive episodes. Stedman’s at 568.
A psychological disorder in which anxiety or morbid fear and dread accompanied by
autonomic changes are prominent features. Stedman’s at 569.
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make simple work-related decisions, complete a normal workday and workweek without
interruptions from psychologically based symptoms, ask simple questions or request assistance,
get along with co-workers or peers without unduly distracting them or exhibiting behavioral
extremes, respond appropriately to changes in a routine work setting, deal with normal work
stress and be aware of normal hazards and take appropriate precautions. (Id.). Dr. Desai found
that plaintiff was seriously limited but not precluded in the following areas: carry out very short
and simple instructions, maintain attention for two-hour segments, maintain regular attendance
and be punctual within customer tolerances, sustain an ordinary routine without special
supervision, and work in coordination with or proximity to others without being unduly
distracted. (Id.). Dr. Desai found that plaintiff was limited but satisfactory in her ability to
understand and remember very short and simple instructions and perform at a consistent pace
without an unreasonable number and length of rest periods. (Id.). Dr. Desai indicated that
plaintiff did not have a low IQ or reduced intellectual functioning. (Tr. 742). Dr. Desai found
that plaintiff would be absent from work more than four days a month due to her impairments.
(Tr. 743). Finally, Dr. Desai indicated that plaintiff was unable to manage benefits in her own best
Plaintiff saw Dr. Desai on April 28, 2010, at which time Dr. Desai increased her dosage of
Lamictal. (Tr. 903).
Plaintiff presented to psychologist Arthur C. Littleton, Ph.D., on June 9, 2010, for a
psychological evaluation at the request of the state agency. (Tr. 750-52). Upon mental status
examination, plaintiff appeared neat and was pleasant and compliant; plaintiff was devoid of any
anxiety; no evidence of anger or hostility was observed; she reported that she enjoyed playing
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with her children but had limited association with other people; there was no indication she is
socially isolated or withdrawn; plaintiff reported blowing up easily and having difficulty
controlling her temper; plaintiff did not report or evidence feelings of worthlessness, sadness, low
self-esteem or poor concentration; she expressed her thoughts and ideas well; and there was no
evidence she was confused by routine daily events. (Tr. 751). Dr. Littleton diagnosed plaintiff
with bipolar II disorder,17 and a GAF score of 55. (Tr. 752). Dr. Littleton stated that plaintiff
describes adjustment problems associated with a fairly chronic pattern of unpredictable mood
episodes that contribute to problems with interpersonal and employment functions. (Id.). Dr.
Littleton indicated that plaintiff’s symptoms are not consistent with clinical depression or
psychosis. (Id.). Dr. Littleton stated that plaintiff “seems marginally competent enough to
manage her own financial affairs.” (Id.).
Dr. Littleton completed a Medical Source Statement of Ability to do Work-Related
Activities (Mental), in which he expressed the opinion that plaintiff’s ability to understand,
remember, and carry out instructions was not affected by her impairment. (Tr. 753). Dr.
Littleton found that plaintiff had a moderate limitation in her ability to respond appropriately to
usual work situations and changes in a routine work setting; and mild limitations in her ability to
interact appropriately with the public, interact appropriately with supervisors, and interact
appropriately with co-workers. (Tr. 754). Dr. Littleton stated that plaintiff has symptoms of bipolar disorder and responds poorly to stress. (Id.).
An affective disorder characterized by the occurrence of alternating, hypomanic and
major depressive episodes. Stedman’s at 568.
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The ALJ’s Determination
The ALJ made the following findings:
The claimant has not engaged in substantial gainful activity since September 30,
2008, the application date (20 CFR 416.971 et seq.).
The claimant has the following severe impairments: borderline intellectual
unctioning, bipolar disorder, generalized anxiety disorder, intermittent explosive
personality disorder, osteoarthritis in her upper extremities, and obesity (20 CFR
The claimant does not have an impairment or combination of impairments that
meets or medically equals any of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, the undersigned finds that during
the period at issue in this decision the claimant has had the residual functional
capacity to perform light work as defined in 20 CFR 416.967(b) except that the
claimant is limited to only occasional kneeling or crawling; is limited to simple
repetitive tasks and instructions; and is limited to only occasional interaction with
supervisors, co-workers, and the public.
The claimant is unable to perform any past relevant work (20 CFR 416.965).
The claimant was born on May 15, 1976 and was 32 years old, which is defined
as a younger individual age 18-49, on the date the application was protectively
filed (20 CFR 416.963).
The claimant has at least a high school education and is able to communicate in
English (20 CFR 416.964).
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the claimant has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
The claimant has not been under a disability, as defined in the Social Security Act,
since September 30, 2008, the date the application was protectively filed (20 CFR
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The ALJ’s final decision reads as follows:
Based on the application for supplemental security income protectively filed on
September 30, 2008, the claimant is not disabled under section 1614(a)(3)(A) of
the Social Security Act.
Standard of Review
Judicial review of a decision to deny Social Security benefits is limited and deferential to
the agency. See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996). The decision of the SSA
will be affirmed if substantial evidence in the record as a whole supports it. See Roberts v. Apfel,
222 F.3d 466, 468 (8th Cir. 2000). Substantial evidence is less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a conclusion. See Kelley v.
Callahan, 133 F.3d 583, 587 (8th Cir. 1998). If, after review, it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the Commissioner’s
findings, the denial of benefits must be upheld. See Robinson v. Sullivan, 956 F.2d 836, 838 (8th
Cir. 1992). The reviewing court, however, must consider both evidence that supports and
evidence that detracts from the Commissioner’s decision. See Johnson v. Chater, 87 F.3d 1015,
1017 (8th Cir. 1996)(citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). “[T]he court
must also take into consideration the weight of the evidence in the record and apply a balancing
test to evidence which is contrary.” Burress v. Apfel, 141 F.3d 875, 878 (8th Cir. 1998). The
analysis required has been described as a “searching inquiry.” Id.
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Determination of Disability
The Social Security Act defines disability as the “inability 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 has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 416 (I)(1)(a); U.S.C. § 423 (d)(1)(a). The claimant has
the burden of proving that s/he has a disabling impairment. See Ingram v. Chater, 107 F.3d 598,
601 (8th Cir. 1997).
The SSA Commissioner has established a five-step process for determining whether a
person is disabled. See 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137,
141-42, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d. 119 (1987); Fines v. Apfel, 149 F.3d 893, 894-895
(8th Cir. 1998). First, it is determined whether the claimant is currently engaged in “substantial
gainful employment.” If the claimant is, disability benefits must be denied. See 20 C.F.R. §§
404.1520, 416.920 (b). Step two requires a determination of whether the claimant suffers from a
medically severe impairment or combination of impairments. See 20 C.F.R §§ 404.1520 (c),
416.920 (c). To qualify as severe, the impairment must significantly limit the claimant’s mental or
physical ability to do “basic work activities.” Id. Age, education and work experience of a
claimant are not considered in making the “severity” determination. See id.
If the impairment is severe, the next issue is whether the impairment is equivalent to one of
the listed impairments that the Commissioner accepts as sufficiently severe to preclude substantial
gainful employment. See 20 C.F.R. §§ 404.1520 (d), 416.920 (d). This listing is found in
Appendix One to 20 C.F.R. 404. 20 C.F.R. pt. 404, subpt. P, App. 1. If the impairment meets or
equals one of the listed impairments, the claimant is conclusively presumed to be impaired. See
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20 C.F.R. §§ 404.1520 (d), 416.920 (d). If it does not, however, the evaluation proceeds to the
next step which inquires into whether the impairment prevents the claimant from performing his
or her past work. See 20 C.F.R. § 404.1520 (e), 416.920 (e). If the claimant is able to perform
the previous work, in consideration of the claimant’s residual functional capacity (RFC) and the
physical and mental demands of the past work, the claimant is not disabled. See id. If the
claimant cannot perform his or her previous work, the final step involves a determination of
whether the claimant is able to perform other work in the national economy taking into
consideration the claimant’s residual functional capacity, age, education and work experience.
See 20 C.F.R. §§ 404.1520 (f), 416.920 (f). The claimant is entitled to disability benefits only if
s/he is not able to perform any other work. See id. Throughout this process, the burden remains
upon the claimant until s/he adequately demonstrates an inability to perform previous work, at
which time the burden shifts to the Commissioner to demonstrate the claimant’s ability to perform
other work. See Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
The evaluation process for mental impairments is set forth in 20 C.F.R. §§ 404.1520a,
416.920a. The first step requires the Commissioner to “record the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment” in the case record to assist in the
determination of whether a mental impairment exists. See 20 C.F.R. §§ 404.1520a (b) (1),
416.920a (b) (1). If it is determined that a mental impairment exists, the Commissioner must
indicate whether medical findings “especially relevant to the ability to work are present or absent.”
20 C.F.R. §§ 404.1520a (b) (2), 416.920a (b) (2). The Commissioner must then rate the degree
of functional loss resulting from the impairments in four areas deemed essential to work:
activities of daily living, social functioning, concentration, and persistence or pace. See
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20 C.F.R. §§ 404.1520a (b) (3), 416.920a (b) (3). Functional loss is rated on a scale that ranges
from no limitation to a level of severity which is incompatible with the ability to perform workrelated activities. See id. Next, the Commissioner must determine the severity of the impairment
based on those ratings. See 20 C.F.R. §§ 404.1520a (c), 416.920a (c). If the impairment is
severe, the Commissioner must determine if it meets or equals a listed mental disorder. See
20 C.F.R. §§ 404.1520a(c)(2), 416.920a(c)(2). This is completed by comparing the presence of
medical findings and the rating of functional loss against the paragraph A and B criteria of the
Listing of the appropriate mental disorders. See id. If there is a severe impairment but the
impairment does not meet or equal the listings, then the Commissioner must prepare a residual
functional capacity assessment. See 20 C.F.R. §§ 404.1520a (c)(3), 416.920a (c)(3).
Plaintiff first argues that the ALJ erred in failing to properly consider Listing 12.05C, the
listing for mental retardation. Specifically, plaintiff contends that the ALJ erroneously considered
Listing 12.02, the listing for organic mental disorders, when plaintiff met Listing 12.05C. Plaintiff
next argues that the ALJ failed to fully and fairly develop the record. The undersigned will
discuss plaintiff’s claims in turn.
“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); and, "'[t]o meet a listing, an impairment
must meet all of the listing's specified criteria,'" id. (quoting Johnson v. Barnhart, 390 F.3d 1067,
1070 (8th Cir. 2004)).
Listing 12.05 provides as follows:
12.05 Mental Retardation: Mental retardation refers to significantly subaverage
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general intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e., the evidence demonstrates or
supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements in A,
B, C, or D are satisfied.
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
or other mental impairment imposing an additional and significant workrelated limitation of function;
20 C.F.R. pt. 404, subpt. P, App. 1, § 12.05.
In addition, the overall introduction to the mental disorders section states:
Listing 12.05 contains an introductory paragraph with the diagnostic description for
mental retardation. It also contains four sets of criteria (paragraphs A through D). If your
impairment satisfies the diagnostic description in the introductory paragraph and any one
of the four sets of criteria, we will find that your impairment meets the listing.
Id. at § 12.00.
The Eighth Circuit has held that the requirements in the introductory paragraph of Listing
12.05-the diagnostic description of mental retardation-are mandatory. Maresh v. Barnhart, 438
F.3d 897, 899 (8th Cir. 2006). Thus, in order to qualify as mentally retarded under Listing
12.05C, 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. See Cheatum v. Astrue, 388 Fed. Appx. 574, 576
(8th Cir. 2010) (holding that a claimant must prove deficits in adaptive functioning in addition to
the elements of paragraph C); Maresh, 438 F.3d at 899.
As an initial matter, the undersigned notes that, despite plaintiff’s claim to the contrary,
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the ALJ did consider Listing 12.05. (Tr. 26-29). The ALJ also considered Listing 12.02 in his
exhaustive, seventeen-page analysis of the listings. (Tr. 12-29). The ALJ ultimately found that
plaintiff failed to meet the criteria for mental retardation because she did not have the requisite IQ
scores or deficits in adaptive functioning. (Tr. 26-29). The ALJ’s determination is supported by
The ALJ acknowledged that plaintiff received special education services from 1985
through 1996 based on a diagnosis of “mentally retarded,” and that plaintiff met the childequivalent 12.05C listing for mental retardation. (Tr. 12). On July 26, 1999, the Commissioner
evaluated plaintiff’s application under the criteria for disabled adults, and determined that
plaintiff’s disability had ceased as of November 15, 1998. (Tr. 13, 131-37). It was noted that
plaintiff had IQ scores ranging from 64 to 75, but the ALJ in the 1999 decision did not specifically
evaluate Listing 12.05C. (Tr. 131-37).
Plaintiff notes that defendant previously found plaintiff met the IQ requirement of the child
listing, and that the ALJ did not dispute plaintiff’s IQ scores in the 1999 decision. Plaintiff
contends that defendant should be required to follow its own law-of-the-case and should be
estopped from now disputing plaintiff’s IQ results.
“The law of the case doctrine prevents the relitigation of a settled issue in a case and
requires courts to adhere to decisions made in earlier proceedings...” Brachtel v. Apfel, 132 F.3d
417, 419 (8th Cir. 1997). However, the law of the case doctrine does not preclude a different
conclusion if the adjudicator is presented with substantially different evidence. Hulsey v. Astrue,
622 F.3d 917, 925 (8th Cir. 2010). In this case, the evidence considered by the ALJ was
substantially different from the evidence considered in plaintiff’s child disability application and
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the 1999 decision. Thus, the law of the case doctrine does not apply.
The ALJ in the instant case considered plaintiff’s IQ scores that were within the listing
range, and found that these scores were not supported by the evidence. The ALJ found that
plaintiff was instead functioning within the borderline range of intellectual functioning.
While an I.Q. test is helpful in determining whether an applicant has a mental impairment,
it is not dispositive, and other information illustrating the claimant’s ability to function can be used
to discredit the results of an I.Q. test. Johnson v. Barnhart, 390 F.3d 1067, 1071 (8th Cir. 2004)
(citing Holland v. Apfel, 153 F.3d 620, 622 (8th Cir. 1998)). The Eighth Circuit has emphasized
that I.Q. scores must be valid; that the Commissioner need not rely exclusively on I.Q. scores; and
that the Commissioner may disregard test scores that are inconsistent with a claimant’s
demonstrated activities and abilities as reflected in the record as a whole. Muncy v. Apfel, 247
F.3d 728, 733 (8th Cir. 2001); Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998). The
appropriate question is whether the decision to disregard the scores as unreliable is supported by
substantial evidence from the record as a whole. See id.
The ALJ discussed plaintiff’s most recent IQ scores based on testing administered by Dr.
Mades in September 2007. Plaintiff obtained a Verbal IQ of 68, Performance IQ of 83, and Full
Scale IQ of 73. The ALJ noted that, while plaintiff’s Verbal IQ score is within listing range, Dr.
Mades stated that there was a significant difference between plaintiff’s verbal and performance
scores, which indicated that her actual cognitive potential may be closer to the low average range,
commensurate with her performance score of 83. (Tr. 424). Dr. Mades diagnosed plaintiff with
borderline intellectual functioning. (Id.). The ALJ also pointed out that earlier testing
administered by Dr. Heydebrand in January 2003, revealed a Verbal IQ of 75, Performance IQ of
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72, and Full Scale IQ of 71. (Tr. 856). As the ALJ noted, Dr. Heydebrand diagnosed plaintiff
with borderline IQ, based on plaintiff’s scores, educational and work history, and quality of her
responses. (Tr. 857). The ALJ stated that Drs. Mades and Heydebrand’s diagnosis of borderline
intellectual functioning is consistent with the longstanding diagnosis of borderline intellectual
functioning as opined by plaintiff’s treating psychiatrist Dr. Santos. (Tr. 27). Finally, the ALJ
noted that medical expert Dr. Arvenshine testified based on the record that plaintiff’s true level of
functioning was borderline intellectual functioning. The ALJ’s finding that plaintiff’s IQ scores
were not within the range of Listing 12.05C is supported by substantial evidence.
The ALJ also cited evidence demonstrating that plaintiff did not exhibit the requisite
deficits in adaptive functioning required by Listing 12.05C. For example, the ALJ noted that
plaintiff completed the twelfth grade; obtained a driver’s license and regularly drives; is able to
read and write; takes care of two children, including one disabled child; cleans and performs
household chores daily; cooks; shops for groceries; gets along with her parents and boyfriend; and
reads novels. (Tr. 24-25). Significantly, the ALJ pointed out that plaintiff successfully worked as
a cashier at a drug store for over one year, testified that she would probably still be working there
if the business had not closed, and continued to look for other jobs. (Tr. 24, 60). While plaintiff
testified that she only worked part-time and would be unable to work full-time at this position, the
ALJ noted that plaintiff’s earning record supports the finding that she worked full-time, as she
earned income at the substantial gainful activity level. (Tr. 18). Plaintiff’s ability to perform
gainful activity is relevant to whether she has demonstrated the deficits in adaptive functioning
necessary to meet Listing 12.05C. See Cheatum, 388 Fed. Appx. at 566-77. Thus, the ALJ’s
finding that plaintiff did not meet or equal Listing 12.05C is supported by substantial evidence.
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After properly finding that plaintiff did not meet or equal a listing, the ALJ made the
following determination regarding plaintiff’s RFC:
After careful consideration of the entire record, the undersigned finds that during
the period at issue in this decision the claimant has had the residual functional
capacity to perform light work as defined in 20 CFR 416.967(b) except that the
claimant is limited to only occasional kneeling or crawling; is limited to simple
repetitive tasks and instructions; and is limited to only occasional interaction with
supervisors, co-workers, and the public.
A claimant’s RFC is what he or she can do despite his or her limitations. 20 C.F.R. §
404.1545. While the formulation of RFC is a medical question, Nevland v. Apfel, 204 F.3d 853,
858 (8th Cir. 2000), it is based on all the relevant, credible evidence of record including the
medical records, observations of treating physicians and others, and an individual’s own
description of limitations. See McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). “It is the
claimant’s burden, and not the Social Security Commissioner’s burden, to prove the claimant’s
RFC.” Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003).
Plaintiff does not challenge the ALJ’s RFC determination directly, but argues that the ALJ
failed to fully and fairly develop the record regarding plaintiff’s mental impairments. “‘Wellsettled precedent confirms that the ALJ bears a responsibility to develop the record fairly and
fully, independent of the claimant's burden to press his case.’” Vossen v. Astrue, 612 F.3d 1011,
1016 (8th Cir. 2010) (quoting Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004)). In the
instant case, however, a crucial issue was not undeveloped; rather, it was resolved unfavorably to
plaintiff. See e.g. Samons v. Astrue, 497 F.3d 813, 819 (8th Cir. 2007) (finding ALJ need not
have contacted claimant’s treating physician after finding that physician’s opinion was inadequate
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to establish disability).
The ALJ conducted an extensive review of the medical record, which included multiple
consultative psychological examinations, and found that the evidence did not support plaintiff’s
allegations of disability. The ALJ properly rejected the opinion of psychiatrist Dr. Manikant that
plaintiff was disabled because it conflicted with his own findings and the remainder of the record.
The ALJ found that plaintiff was capable of a limited range of light, simple work, involving only
occasional interaction with supervisors, co-workers, and the public. This determination is
supported by substantial evidence on the record as a whole, including the opinion of consultative
psychologist Dr. Mades, treating psychiatrist Dr. Santos, medical expert Dr. Arvenshine, and
plaintiff’s own testimony regarding her daily activities and limitations.
Substantial evidence in the record as a whole supports the decision of the ALJ finding
plaintiff not disabled because the evidence of record does not support the presence of a disabling
impairment. Accordingly, Judgment will be entered separately in favor of defendant in
accordance with this Memorandum.
Dated this 11th
day of September, 2013.
LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE
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