Faint v. Colvin
Filing
29
MEMORANDUM AND ORDER re: ORDERED that the final decision of the Commissioner is affirmed, and plaintiff's Complaint is dismissed with prejudice. A separate Judgment in accordance with this Memorandum and Order is entered this same date.. Signed by Magistrate Judge Nannette A. Baker on 6/18/14. (CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALLEN C. FAINT,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
No. 4:13-CV-591 NAB
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision finding Allen C. Faint, who had previously been
found disabled, to have sustained medical improvement such that he was no longer
disabled. All matters are pending before the undersigned United States Magistrate
Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). For the reasons
set forth below, the Commissioner’s decision is affirmed.
I. Procedural History
On October 15, 1999, the Social Security Administration (SSA) awarded
plaintiff Allen C. Faint child disability benefits, finding plaintiff to be disabled as
of October 26, 1998, when he was six years of age. On March 6, 2003, the SSA
determined that plaintiff’s disability continued on account of his medically
determinable severe impairments of anxiety disorder and learning disorder. When
plaintiff attained eighteen years of age, the SSA informed him that his disability
status would be reviewed to determine if he continued to be disabled. Plaintiff was
advised that such review would be under rules used to determine adult disability on
new claims. (Tr. 66-67.) In a letter dated October 7, 2010, the SSA notified
plaintiff that it had determined that, as of that date, he was no longer qualified for
SSI benefits under the definition of disability for adults. (Tr. 68-71.) Upon
plaintiff’s request for reconsideration, the matter was presented to a Disability
Hearing Officer who conducted a hearing on January 14, 2011, at which plaintiff
was present. (Tr. 75-86.) The hearing officer issued a written decision on
February 16, 2011, finding plaintiff no longer eligible for payments. (Tr. 63-65,
87-93.) At plaintiff’s request, a hearing was held before an Administrative Law
Judge (ALJ) on December 9, 2011, at which plaintiff and a vocational expert
testified. (Tr. 25-53.) On January 13, 2012, the ALJ issued a decision in which he
determined plaintiff’s disability to have ended on October 7, 2010, and that
plaintiff had not become disabled since that time. (Tr. 7-19.) On January 28,
2013, the Appeals Council denied plaintiff’s request for review of the ALJ’s
decision. (Tr. 1-5.) The ALJ’s determination thus stands as the final decision of
the Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, plaintiff claims that the ALJ’s
-2-
decision is not supported by substantial evidence on the record as a whole, arguing
that the ALJ erred in failing to find that his cognitive impairments met Listing
12.05(C)’s criteria for mental retardation. Plaintiff also claims that the ALJ erred
in his determination of plaintiff’s residual functional capacity (RFC) by failing to
include limitations relating to concentration, persistence, and pace and by failing to
include limitations as observed by third parties. Finally, plaintiff contends that the
ALJ failed to properly consider his hearing impairment. Plaintiff requests that the
matter be reversed and remanded to the Commissioner for a reinstatement of
benefits or for further proceedings.
II. Testimonial Evidence Before the ALJ
A.
Plaintiff’s Testimony
At the hearing on December 9, 2011, plaintiff testified in response to
questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was nineteen years of age. Plaintiff
attained eighteen years of age on May 8, 2010. Plaintiff graduated from high
school and was currently attending community college. Plaintiff currently lived
with his father and sister. Plaintiff’s mother was deceased. (Tr. 28-29, 37.)
Plaintiff testified that he was not currently working and had never had a job outside
his home. (Tr. 31.)
Plaintiff testified that he attended special education classes in high school
-3-
because of his hearing loss. (Tr. 29.) Plaintiff testified that he did not participate
in any extracurricular activities. Plaintiff testified that he was not involved in any
fights while in school but had problems getting along with some students because
of his inability to understand them. Plaintiff testified that he currently had no
problems with other students at the community college. (Tr. 35.)
Plaintiff testified that he was currently enrolled in reading, math, and
English classes and attended school four days a week. Plaintiff testified that he
had not yet received final grades in his classes but obtained low scores on his
midterm exams. (Tr. 29, 36.) Plaintiff testified that his hearing loss created
difficulty at school, requiring him to repeatedly ask questions of all of his teachers.
Plaintiff testified that he is allowed to sit closer to the teachers because of the
problem but receives no other help. (Tr. 32-33.)
Plaintiff testified that he also suffers from anxiety, which causes him to feel
nervous and have difficulty speaking in front of a crowd or being in a crowd of
unfamiliar people. (Tr. 31, 33.) Plaintiff testified that he has had such difficulties
since the second or third grade but was currently not seeing any doctor for the
condition. Plaintiff testified that he does not take prescribed medication for the
condition because of side effects, such as headaches. (Tr. 33-34, 38.)
Plaintiff testified that he has also been diagnosed with attention deficit
hyperactivity disorder (ADHD) for which he previously took medication. Plaintiff
-4-
testified that he stopped taking the medication because it caused headaches.
Plaintiff testified that he continues to have problems with focus, concentration, and
memory and has difficulty comprehending what others tell him. Plaintiff testified
that he needs people to repeat things so that he can understand. Plaintiff testified
that he can focus on one task for about ten minutes before needing to take a break.
(Tr. 39-40.)
Plaintiff testified to being unaware as to whether he had ever been diagnosed
with mild mental retardation. Plaintiff testified that he took an IQ test with a
consultative examiner and had difficulty following the instructions. (Tr. 41.)
As to his daily activities, plaintiff testified that he drives himself back and
forth to school and that his father sometimes drives him. (Tr. 35-36.) Plaintiff
testified that when school concludes for the day, he comes home and does
household chores or his homework. Plaintiff testified that his chores include
taking out the trash, doing the dishes, sweeping, and mowing the lawn. Plaintiff
testified that he spends at least four hours every day doing homework. Plaintiff
testified that he spends time with friends on the weekends. Plaintiff testified that
he also watches television, listens to the radio, and talks on the telephone to friends
and family. (Tr. 36-38.)
B.
Testimony of Vocational Expert
Jim Israel, a vocational expert, testified at the hearing in response to
-5-
questions posed by the ALJ and counsel.
The ALJ asked Mr. Israel to consider an individual who had been diagnosed
with mild mental retardation and who had the following IQ scores: verbal 72,
performance 67, low scale 67, working memory 71, and processing speed 67. Mr.
Israel testified that such a person may be competitively employed as a food service
worker, dishwasher, cleaner, sorter, assembler, packer, or wrapper. (Tr. 45-46.)
The ALJ then asked Mr. Israel to consider the same person but that he has
hearing loss in one ear, good hearing in the other ear, would probably have
problems hearing things if people were behind him speaking or if there were noises
behind him, but could hear things adequately if he was in front of a person. Mr.
Israel testified that such consideration must be made on a case-by-case basis but
that sixty-five to seventy percent of the sorter jobs, assembler jobs, and packer jobs
would continue to be available as well as many dishwasher jobs and some cleaning
jobs. (Tr. 46-48.) Mr. Israel testified that for such a person, who had no exertional
restrictions, there were 8,500 packer and wrapper jobs in the State of Missouri;
7,100 assembler jobs; 3,500 sorter jobs; 2,100 product inspector jobs; 5,500
dishwasher jobs; and 17,500 cleaning jobs. (Tr. 47-49.)
The ALJ then asked Mr. Israel to define the level of social interaction
required by such jobs, to which Mr. Israel responded that about eighty percent of
the sorter, assembler, packer, and wrapper jobs involved a minimal amount of
-6-
social interaction; that dishwasher jobs are primarily independent and are not
social-oriented jobs; and that many cleaning jobs are likewise independent. (Tr.
49-51.)
Finally, the ALJ asked Mr. Israel to consider the person to have significant
problems with anxiety affecting his productivity, such that he had problems
sometimes following instructions, would not be able to maintain a level of
continuous productivity, and had problems focusing. Mr. Israel testified that such
a person could not perform any work in a competitive setting. (Tr. 51.)
Plaintiff’s counsel then asked Mr. Israel to assume an individual who needed
to have instructions repeated on a continuous basis, needed to revisit a task, or
needed some sort of oversight. Mr. Israel responded that the need to repeat basic
instructions could create a problem with simple, routine, and repetitive work. With
respect to being off task, Mr. Israel testified that such a person may not be able to
retain their job if their production is significantly lower than what is expected of
other workers. (Tr. 51-53.)
III. Record Evidence Before the ALJ
A.
School Records
A Screening/Evaluation Plan from the Special School District dated October
1998, showed plaintiff – who was in the first grade – to have suspected problems
in the areas of academics, social/emotional/behavioral, and language. Plaintiff was
-7-
noted to have severe hearing loss in the left ear and mild cerebral palsy. No
problems were suspected in the areas of health, motor skills, intellectual/cognitive,
or adaptive behavior. (Tr. 191-92.)
In December 1998, the Special School District summarized plaintiff’s
performance and teacher observations and diagnosed plaintiff with language
impairment and learning disabled in reading and math calculation. It was noted
that plaintiff was also participating in occupational therapy. It was noted that
plaintiff underwent Stanford-Binet cognitive testing in April 1997, the results of
which showed average intellectual functioning as demonstrated by scores of VR
93, STM 81, A/VR 87, QR 108, and composite 91. Performance on the Wechsler
Individual Achievement Test showed plaintiff to perform at the kindergarten level
in math and spelling. Behavioral observations showed plaintiff to be off task
twenty-nine percent of the time, significantly impacting his classroom
performance. It was noted that deficits in plaintiff’s basic psychological
processing and educational performance resulted in markedly atypical academic
behaviors. (Tr. 175-90.)
An Individual Education Plan (IEP) dated December 2002 noted that
plaintiff would be provided services for his learning disabilities in the areas of
basic reading, reading comprehension, math calculations, and language
impairment. It was noted that plaintiff had either met or made progress toward the
-8-
goals set in the December 2001 IEP. It was determined that plaintiff would spend
less than twenty-one percent of his time outside the regular classroom
environment. (Tr. 346-62.)
In January 2003, plaintiff’s fourth grade teachers completed a Teacher
Questionnaire for disability determinations in which they reported plaintiff to have
very serious problems in the domain of Acquiring and Using Information; serious
to very serious problems in the domain of Attending and Completing Tasks;
obvious to serious problems in the domain of Interacting and Relating with Others,
necessitating the implementation of behavior modification strategies; very serious
problems in the domain of Moving About and Manipulating Objects; and obvious
to serious problems in the domain of Caring for Himself. It was noted that plaintiff
took no medications. (Tr. 303-10.)
In April 2007, while plaintiff was in the eighth grade, he scored Below Basic
on the Missouri Assessment Program testing in math and communication arts. (Tr.
228.)
An IEP dated September 2009 showed plaintiff to received special education
services in math, reading, and language. Plaintiff was in the eleventh grade. It was
noted that plaintiff had been diagnosed with attention deficit disorder. Plaintiff
reported an interest in participating in post-secondary training in the field of auto
technology. It was noted that plaintiff’s disabilities may affect his ability to reach
-9-
this goal with challenges getting to class on time, maintaining an appropriate grade
point average, and asking for accommodations. It was also noted that plaintiff’s
disability may affect his goal of living independently with challenges in banking,
paying bills, and budgeting. Plaintiff’s strengths were noted to include positive
peer and adult interactions. (Tr. 170-73.) An IEP dated September 2010 noted no
change in plaintiff’s diagnoses or accommodations. Plaintiff’s strengths in this
IEP were noted to include strong task focus, strong work ethic, positive attitude,
and positive peer and adult interactions. (Tr. 237-40.)
Disciplinary reports from Hazelwood Central High School dated November
2008 through May 2010 showed disciplinary action to have been imposed upon
plaintiff on twenty-five occasions for infractions such as tardiness (eleven
infractions), violation of cell phone policy (six infractions), truancy (three
infractions), and insubordination (four infractions).
B.
Medical and Other Records
On February 21, 2003, plaintiff underwent a psychological evaluation for
disability determinations. Plaintiff was ten years of age and in the fourth grade.
Dr. Robert N. Harris noted plaintiff to have been previously diagnosed with
ADHD and to have taken Ritalin with some improvement, but that he stopped the
medication because of persistent headaches and lightheadedness. Dr. Harris noted
plaintiff to be restless and impulsive during the examination and to exhibit
- 10 -
symptoms of anxiety. Plaintiff reported occasionally being bullied at school and
that he had been punished for retaliating. It was noted that plaintiff received
occasional detentions for disturbing the class but did not have any significant
behavior problems. As to social functioning, it was noted that plaintiff reportedly
had several friends with whom he played nearly every day, played sports and
computer games, watched television, and had close relationships with relatives. As
to adaptive limitations, a mild impairment was noted with plaintiff’s reported
ability to perform chores and maintain adequate personal hygiene with some
reminders. It was noted that plaintiff could not make change or read a non-digital
clock. It was noted that plaintiff had difficulty hearing the examiner, turning his
right ear toward the examiner so that he could better hear. Plaintiff’s fine motor
skills were noted to be impaired with his handwriting being difficult to read.
Mental status examination showed plaintiff’s eye contact to be good and his mood
ranged from anxious to positive. Pronounced anxiety was noted at the beginning
of the evaluation. Plaintiff’s mood, affect, and facial expressions were appropriate,
and he was noted to be friendly and cooperative. Plaintiff displayed good hygiene,
grooming, and health. Mild to moderate difficulties were noted in sustained
attention, with concentration waning after two minutes on a task. Plaintiff’s
memory and judgment appeared unimpaired. Plaintiff’s fund of knowledge was
adequate. It was noted that plaintiff’s receptive language skills were unimpaired
- 11 -
but that his expressive language skills were mildly to moderately impaired. Dr.
Harris diagnosed plaintiff with generalized anxiety disorder and expressive
language disorder and assigned a Global Assessment of Functioning (GAF) score
of 69.1 (Tr. 320-25.)
Plaintiff visited a physician on July 13, 2005, who noted that plaintiff’s
reported headaches had improved and that he was not taking medication for
ADHD. Complete loss of hearing was noted in the left ear. Physical examination
was within normal limits. Plaintiff reported that he played basketball at a friend’s
house. The physician noted plaintiff to be cooperative and to have good language.
Plaintiff was diagnosed with hearing loss in the left ear, ADHD-anxious, and static
encephalopathy. (Tr. 381.)
On April 14, 2008, plaintiff visited Dr. Keiko Hirose, a pediatric
otolaryngologist, upon referral from Dr. Anita Stiffelman. Plaintiff reported
having “noise in the head” for about two weeks. It was noted that plaintiff had
recently been seen in the emergency room for increased tinnitus. Dr. Hirose
removed impacted wax from the right ear, about which plaintiff was noted to be
anxious and nervous. An audiogram was within normal limits for the right ear and
1
A GAF score considers “psychological, social, and occupational functioning on a hypothetical
continuum of mental health/illness.” Diagnostic and Statistical Manual of Mental Disorders,
Text Revision 34 (4th ed. 2000). A GAF score of 61 to 70 indicates some 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.
- 12 -
showed mild sloping to profound sensorineural hearing loss in the left ear.
Plaintiff was instructed to return in one year and to avoid even minor head trauma.
(Tr. 375-79.)
Plaintiff visited Dr. April Tyus on September 18, 2008, who noted plaintiff
to have chronic hearing loss in the left ear and mild cerebral palsy. It was noted
that plaintiff was in the tenth grade, had a lot of friends, and played basketball and
football. Physical examination was within normal limits. Audiogram testing
showed complete hearing loss in the left ear. Plaintiff was instructed to follow up
in one year or as needed. (Tr. 382-83.)
During physical examinations on January 27, February 17, and April 29,
2010, Dr. Akin Fatoki noted plaintiff’s right ear to be impacted with wax. (Tr.
401, 403, 404.)
On July 5, 2010, Dr. Anita Stiffelman completed a questionnaire for
disability determinations regarding plaintiff’s hearing loss. Dr. Stiffelman reported
that plaintiff could hear and understand normal conversational speech if it occurred
on the right side and not in an excessively distracting environment. Dr. Stiffelman
also noted plaintiff to have been diagnosed with ADHD and mild cerebral palsy.
Dr. Stiffelman noted plaintiff not to be prescribed any medications. With respect
to plaintiff’s ability to perform work-related activities, Dr. Stiffelman opined that
plaintiff would need an occupational assessment given some issues with hearing
- 13 -
and anxiety. Noting plaintiff’s cerebral palsy to be mild, Dr. Stiffelman reported
that his gross motor functions were within normal limits. (Tr. 370-71.)
On July 29, 2010, plaintiff reported to Dr. Fatoki that he was doing well.
Plaintiff’s ears were noted to be clogged again. Physical examination was
otherwise normal. (Tr. 392-93.)
Plaintiff underwent a psychological evaluation on August 21, 2010, for
disability determinations. Plaintiff’s chief complaints were noted to be ADHD and
hearing loss in the left ear. Plaintiff also reported having anxiety related to his
ability to verbally perform in front of his peers. Dr. Laura R. Tishey noted that
plaintiff appeared able to hear and understand throughout the evaluation. Mental
status examination showed plaintiff to have good hygiene and grooming. Plaintiff
was cooperative and pleasant. Dr. Tishey noted plaintiff’s facial expressions to be
dull, but he had good eye contact. Plaintiff was coherent, relevant, and logical but
generated no spontaneous interaction. No problems were noted with stream of
speech and mental activity. Plaintiff was fully oriented. Plaintiff was administered
the WAIS-IV, from which Dr. Tishey determined plaintiff’s working memory,
concentration, and attention to be poor. Remote memory appeared intact. On the
WAIS-IV, plaintiff obtained the following scores, determined by Dr. Tishey to be
valid: verbal 72, perceptual reasoning 67, working memory 71, processing speed
79, and full scale IQ 67. Dr. Tishey reported that such scores placed plaintiff in the
- 14 -
extremely low range of intellectual functioning, often seen in persons diagnosed
with mild mental retardation. Dr. Tishey opined that plaintiff’s adaptive
functioning was currently poor to fair and warranted such a diagnosis. Dr. Tishey
diagnosed plaintiff with anxiety disorder and mild mental retardation and assigned
a GAF score of 60.2 (Tr. 407-12.)
On October 5, 2010, Dr. Kenneth Burstin, a psychological consultant with
disability determinations, completed a Psychiatric Review Technique Form
(PRTF) in which he opined that plaintiff’s ADHD, learning disability versus
borderline intellectual functioning, and anxiety disorder caused moderate
limitations in activities of daily living; maintaining social functioning; and in
concentration, persistence, or pace; and resulted in no repeated episodes of
decompensation. (Tr. 413-24.) In a Mental RFC Assessment completed that same
date, Dr. Burstin opined that plaintiff was moderately limited in his ability to
understand, remember, and carry out detailed instructions, but was otherwise not
significantly limited in the domains of Understanding and Memory and Sustained
Concentration and Persistence. In the domain of Social Interaction, Dr. Burstin
opined that plaintiff was moderately limited in his ability to interact appropriately
with the general public, but was otherwise not significantly limited. Dr. Burstin
2
A GAF score of 51 to 60 indicates moderate 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).
- 15 -
further opined that plaintiff was not significantly limited in the domain of
Adaptation. Dr. Burstin concluded that plaintiff retained the capacity to acquire
and retain at least simple instructions and to sustain concentration and persistence
with at least simple, repetitive tasks; and further, could relate adequately to others
in settings which did not require frequent public contact or unusually close
interaction with others in the workplace. Finally, Dr. Burstin opined that plaintiff
could adapt to changes in non-complex work environments. ( Tr. 425-27.)
Plaintiff returned to Dr. Fatoki on October 19, 2010, and complained of
having wax in his ears for three months. Examination showed plaintiff to be in no
acute distress. Plaintiff’s affect was noted to be normal and appropriate. Wax was
removed from the ears, and plaintiff was instructed to follow up in three months.
(Tr. 429.)
On November 17, 2010, Dr. Aine Kresheck, a psychological consultant with
disability determinations, completed a PRTF in which she opined that plaintiff’s
ADHD, learning disability, mental retardation, and anxiety disorder caused mild
limitations in activities of daily living and in maintaining social functioning;
moderate limitations in concentration, persistence, or pace; and resulted in no
repeated episodes of decompensation. Dr. Kresheck opined that plaintiff’s
adaptive functioning was consistent with learning disability rather than the IQ
scores that placed him in the mental retardation range. (Tr. 447-57.) In a Mental
- 16 -
RFC Assessment completed that same date, Dr. Kresheck opined that plaintiff was
moderately limited in his ability to understand, remember, and carry out detailed
instructions, and in his ability to maintain attention and concentration for extended
periods, but was otherwise not significantly limited in the domains of
Understanding and Memory and Sustained Concentration and Persistence. In the
domain of Social Interaction, Dr. Kresheck opined that plaintiff experienced no
significant limitations. Dr. Kresheck further opined that plaintiff was moderately
limited in his ability to respond appropriately to changes in the work setting, but
otherwise was not significantly limited in the domain of Adaptation. Dr. Kresheck
concluded that plaintiff retained the capacity to perform at least one-to-two-step
instructions. (Tr. 458-60.)
In a case analysis dated November 30, 2010, Dr. Isabel Moore, a medical
consultant with disability determinations, opined that plaintiff’s hearing
impairment was not severe inasmuch as plaintiff had normal hearing in the nonaffected ear. (Tr. 461.)
Plaintiff visited Dr. Fatoki on January 13, 2011, with complaints of having
clogged ears for three weeks. Dr. Fatoki removed ear wax and prescribed Atarax
for anxiety. Plaintiff was instructed to return in six months. (Tr. 471.)
Between March and September 2011, plaintiff visited Dr. Fatoki on three
occasions in relation to general health matters, including complaints of having
- 17 -
clogged ears. During each of these visits, plaintiff’s affect was noted to be normal
and appropriate. (Tr. 467-69.)
C.
Third Party Observations
On July 8, 2010, plaintiff’s sister, Allycia M. Faint, completed a Third Party
Function Report for disability determinations in which she reported that she lived
with plaintiff and attended church with him. Ms. Faint reported that plaintiff
participates in school and church, performs chores, socializes, dates, watches
television, and plays television games. Ms. Faint reported that plaintiff also cares
for his dog, which includes walking, feeding, and cleaning the dog. Ms. Faint
reported plaintiff to have no problems getting along with others, including
authority figures. Ms. Faint reported that plaintiff’s sleep is sometimes affected
because of his nervousness or breathing problems. Ms. Faint reported that plaintiff
has no problems with personal care and needs no reminding to take care of
personal needs or grooming, but needs reminders to take medication. Ms. Faint
reported that plaintiff prepares his own meals daily, which sometimes consists of
fast food and frozen dinners. Ms. Faint reported that plaintiff does laundry, cleans
his room, and mows the lawn and sometimes needs help or encouragement to do
so. Ms. Faint reported that plaintiff goes out daily and either walks, drives, or rides
in a car when he does so. Ms. Faint reported that plaintiff drives and can go out
alone. Ms. Faint reported that plaintiff goes to stores to shop but is unable to pay
- 18 -
bills, handle a savings account, or use a checkbook or money orders. Ms. Faint
reported that plaintiff can count change. Ms. Faint reported that plaintiff has a
short attention span and has problems following written and spoken instructions.
Ms. Faint reported that plaintiff poorly handles stress or changes in routine because
of nervousness. Ms. Faint reported that plaintiff’s impairments affect his ability to
understand, talk, hear, see, complete tasks, get along with others, remember, and
concentrate. (Tr. 214-21.)
IV. The ALJ's Decision
The ALJ found that plaintiff was most recently determined disabled on
March 6, 2003, because of his medically determinable severe impairments of
anxiety disorder and learning disorder that functionally equaled a listed
impairment. The ALJ also found that plaintiff did not develop any additional
impairments between March 6, 2003, and October 7, 2010, and thus that plaintiff’s
current impairments were the same as those determined on March 6, 2003. The
ALJ found that since October 7, 2010, plaintiff’s impairments, either singly or in
combination, did not meet or medically equal an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. The ALJ thus determined that medical
improvement had occurred as of October 7, 2010, and that such improvement
related to the ability to work inasmuch as plaintiff’s impairments no longer equaled
the same listed impairment. The ALJ determined plaintiff’s anxiety disorder and
- 19 -
learning impairment to continue to be severe. (Tr. 11-14.) The ALJ found that,
beginning on October 7, 2010, plaintiff had the RFC to perform work at all
exertional levels, except that he was “limited to simple, unskilled work and would
be able to relate adequately with others in settings which do not require frequent
public contact or unusually close interaction with others in the workplace.” (Tr.
14.) The ALJ determined plaintiff not to have any past relevant work.
Considering plaintiff’s age, education, work experience, and RFC, the ALJ found
that vocational expert testimony supported a finding that plaintiff could perform
work as a packer/wrapper, assembler, sorter, inspector, dishwasher, and cleaner
and that such jobs existed at the numbers as testified by the vocational expert,
which constituted significant numbers in the national economy. The ALJ thus
found that plaintiff’s disability ended on October 7, 2010, and that plaintiff had not
become disabled since that date. (Tr. 14-19.)
V. Discussion
For claimants previously determined to be under a disability and thus
awarded disability benefits, the SSA conducts continuing disability reviews to
determine whether or not the claimant continues to meet the disability
requirements of the law. 20 C.F.R. § 416.990(a). Such continuing disability
reviews are conducted for persons who are found to be disabled as adults, 20
C.F.R. § 416.994, and for persons who are found to be disabled as children, 20
- 20 -
C.F.R. § 416.994a. The critical question in such a review is whether the claimant’s
condition has improved since the prior award of disability benefits and, if so,
whether such medical improvement is related to the claimant’s ability to work. 20
C.F.R. § 416.994(b)(2)-(5); see also Nelson v. Sullivan, 946 F.2d 1314, 1315 (8th
Cir. 1991) (per curiam).
In cases where, as here, a claimant who was awarded disability benefits as a
child attains eighteen years of age, the SSA does not undergo a continuing
disability review under § 416.994 but instead redetermines the claimant’s
eligibility for benefits. 20 C.F.R. § 416.987. The rules used for these “age-18
redeterminations” are those applicable to adult claimants who file new applications
for benefits, that is, the rules set out in 20 C.F.R. § 416.920(c)-(g). See 20 C.F.R. §
416.987(b). “[W]e will not use the rules in § 416.994 for determining whether
disability continues.” Id. Accordingly, the framework used by the Commissioner
in age-18 redetermination cases is that familiar five-step sequential analysis for
reviewing new adult applications for disability, except that whether the claimant is
engaged in substantial gainful activity is not considered. Id.
In such cases, therefore, the Commissioner first determines whether the
claimant has a “severe” impairment or combination of impairments, meaning that
which significantly limits his ability to do basic work activities. If the claimant's
impairment(s) is not severe, then he is not disabled. The Commissioner then
- 21 -
determines whether claimant's impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, he is conclusively
disabled. At the next step, the Commissioner establishes whether the claimant can
perform his past relevant work. If so, the claimant is not disabled. Finally, the
Commissioner evaluates various factors to determine whether the claimant is
capable of performing any other work in the economy. If not, the claimant is
declared disabled and becomes entitled to disability benefits. 20 C.F.R. §
416.920(c)-(g). Throughout all steps of the process, the claimant retains the
burden of demonstrating that he is disabled. Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2001); Baker v. Secretary of Health & Human Servs., 955
F.2d 552, 555 (8th Cir. 1992). With age-18 redeterminations, the Commissioner
may find a claimant to not be disabled even though there was a previous finding of
disability as a child. 20 C.F.R. § 416.987(a)(2).
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir.
2002). Substantial evidence is less than a preponderance but enough that a
reasonable person would find it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,”
- 22 -
however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)
(internal quotation marks and citation omitted). “Substantial evidence on the
record as a whole . . . requires a more scrutinizing analysis.” Id. (internal quotation
marks and citations omitted).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
1.
The credibility findings made by the ALJ.
2.
The plaintiff's vocational factors.
3.
The medical evidence from treating and consulting physicians.
4.
The plaintiff's subjective complaints relating to exertional and
non-exertional activities and impairments.
5.
Any corroboration by third parties of the plaintiff's
impairments.
6.
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant's impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). The Court must also consider any evidence
which fairly detracts from the Commissioner’s decision. Coleman, 498 F.3d at
770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). However, even
- 23 -
though two inconsistent conclusions may be drawn from the evidence, the
Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall, 274 F.3d at 1217 (citing Young v. Apfel, 221 F.3d
1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also
have supported an opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252
(8th Cir. 1992) (internal quotation marks and citation omitted); see also Jones ex
rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
As an initial matter, the undersigned notes that the ALJ expressly and
repeatedly invoked 20 C.F.R. § 416.994 in his decision and applied its seven-step
analysis applicable to cases of continuing disability review. Given that age-18
redeterminations are governed by 20 C.F.R. § 416.987, and that § 416.987
explicitly prohibits the use of § 416.994 in such redeterminations, the ALJ’s use of
the rules in § 416.994 to find plaintiff to no longer be disabled was error.
However, in his discussion, the ALJ also applied the substance of the rules set out
in § 416.920(c)-(g) that are used for adult claimants who file new applications.
Because such process complies with the dictates of 20 C.F.R. § 416.987 in age-18
redeterminations, the ALJ’s superfluous use of § 416.994 in finding plaintiff not to
be disabled was harmless.
The Court turns now to plaintiff’s specific challenges to the ALJ’s decision.
- 24 -
A.
Listing 12.05(C), Mental Retardation
Plaintiff claims that the ALJ erred when he failed to find that his cognitive
impairments met Listing 12.05(C) – Mental Retardation. Specifically, plaintiff
argues that the ALJ erred by finding that plaintiff suffered no deficits in adaptive
functioning, by discounting recent IQ scores, and by failing to consider his anxiety
disorder as another impairment imposing significant limitations. For the following
reasons, the ALJ did not err.
Listing 12.05 states, in relevant part:
Mental retardation: Mental retardation refers to 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 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 physical or other mental impairment imposing an
additional and significant work-related limitation of function[.]
20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.05. To meet Listing 12.05(C), a
claimant’s impairment must satisfy the diagnostic description in the introductory
paragraph of Listing 12.05 and the criteria in paragraph (C). 20 C.F.R., Pt. 404,
Subpt. P, App. 1, § 12.00; see also Maresh v. Barnhart, 438 F.3d 897, 899 (8th
- 25 -
Cir. 2006) (impairment must satisfy diagnostic description in the introductory
paragraph).
Assuming arguendo that plaintiff had valid IQ scores that met the first prong
of Listing 12.05(C) and another mental impairment that imposed additional and
significant work-related limitations of function, the ALJ nevertheless properly
found plaintiff not to suffer deficits in adaptive functioning to bring his impairment
within the diagnostic criteria of mental retardation as set out in the introductory
paragraph of 12.05. The ALJ therefore did not err in failing to find plaintiff’s
impairment to meet Listing 12.05(C).
The claimant bears the burden to establish that he meets all of the criteria of
a listed impairment. Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006). To
meet the criteria of mental retardation as described in Listing 12.05, plaintiff must
demonstrate that he suffers “deficits in adaptive functioning.” Maresh, 438 F.3d at
899 (requirements in introductory paragraph are mandatory); Cheatum v. Astrue,
388 Fed. Appx. 574, 576 (8th Cir. 2010) (per curiam) (requirements include
showing deficits in adaptive functioning). Notably, Listing 12.05 does not
expressly define “deficits in adaptive functioning.” While the SSA has cautioned
against restricting its definition to one used by professional organizations for
diagnostic purposes alone – such as the definition set out in the Diagnostic and
Statistical Manual of Mental Disorders (DSM) – it nevertheless allows the use of
- 26 -
professional organizations to assist the Commissioner in determining whether the
necessary elements of mental retardation have been established under the
Regulations.3 See 67 Fed. Reg. 20018-01, at *20022, 2002 WL 661740 (SSA Apr.
24, 2002); see also Maresh, 438 F.3d at 899 (noting the Commissioner to have
rejected a proposal that the DSM’s definition of mental retardation be used for
Listing 12.05).
The ALJ here found plaintiff not to have any deficits in adaptive
functioning. In making this finding, the ALJ reviewed all of the evidence of record
and specifically noted that plaintiff had obtained his driver’s license and continued
to drive independently. The ALJ also noted that plaintiff had graduated from high
school, was in special education classes for only fifteen percent of the school week,
obtained passing grades in somewhat advanced classes such as Geometry and
Algebra 2, and was currently enrolled in and independently attending community
college classes. The ALJ also noted that while plaintiff’s disciplinary record in
high school showed tardiness and use of his cell phone in class, there was no
record of violence or hostile behavior toward others. The ALJ noted the record to
3
At the time of the ALJ’s decision, the DSM-IV-TR was the current publication and defined
“adaptive functioning” as referring 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,” DSM-IV-TR at
p. 42; and is measured in the following skill areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction, functional academic skills,
work, leisure, health, and safety. Id. at p. 41. The DSM-V, upon which plaintiff relies, was
published in May 2013.
- 27 -
show that, indeed, plaintiff was reported to get along well with others and
displayed a positive attitude. The ALJ also noted plaintiff to show no deficits with
activities of daily living and social interaction, as demonstrated by his independent
ability to care for his personal needs, perform chores, care for and train his dog,
prepare simple meals, socialize with friends, go shopping at the mall, play games,
and date. The ALJ also noted that plaintiff’s demeanor at the hearing, as well as
observations made by SSA personnel and treating and examining physicians,
showed plaintiff to understand and respond appropriately to questions and to
display no behavioral limitations. These findings are supported by substantial
evidence on the record as a whole and demonstrate that plaintiff’s impairments did
not result in deficits of adaptive functioning so significant to meet the severity of
Listing 12.05. E.g., Phillips v. Colvin, 721 F.3d 623, 631-32 (8th Cir. 2013)
(evidence that claimant was able to perform personal care needs, household chores,
and yard work supported ALJ’s finding that impairment did not meet or medically
equal Listing 12.05(C)); Cox v. Astrue, 495 F.3d 614, 618 (8th Cir. 2007)
(evidence that claimant was able to effectively communicate, had successful social
relationships, exhibited self-sufficient behavior, and lack of physical problems
supported ALJ’s finding that impairment did not result in deficits of adaptive
functioning that met criteria of Listing 12.05); Miles v. Barnhart, 374 F.3d 694,
699 (8th Cir. 2004) (passing driver’s license test, driving a car, and attending
- 28 -
regular classes in high school inconsistent with Listing 12.05 criteria).
Even assuming that plaintiff’s recent IQ scores and anxiety disorder place
him within the criteria of paragraph (C) of Listing 12.05, the ALJ is nevertheless
required to examine the full record to determine whether plaintiff experiences the
types of deficits in adaptive functioning necessary to meet the criteria set out in
12.05’s introductory paragraph. Maresh, 438 F.3d at 899; cf. Miles, 374 F.3d at
700. This is precisely what the ALJ did here, and his finding that plaintiff’s
impairments did not meet this criteria was supported by substantial evidence on the
record as a whole. Accordingly, the ALJ did not err in finding that plaintiff’s
impairment did not meet or medically equal Listing 12.05(C).
B.
Hearing Impairment
Plaintiff claims that the ALJ erred by failing to consider his hearing
impairment to be a severe impairment and by failing to include any hearing
limitations in his RFC.
Where an ALJ errs by failing to find an impairment to be severe, such error
is harmless if the ALJ finds the claimant to suffer from another severe impairment,
continues in the evaluation process, and considers the effects of the impairment at
the other steps of the evaluation process. See Coleman v. Astrue, No. 4:11CV2131
CDP, 2013 WL 665084, at *10 (E.D. Mo. Feb. 23, 2013). Here, the ALJ found
plaintiff to have severe impairments, and specifically anxiety disorder and learning
- 29 -
impairment, but found plaintiff’s hearing impairment not to be severe. (Tr. 14.)
Continuing in the evaluation process, the ALJ nevertheless considered the effect of
plaintiff’s hearing loss and indeed included it in the hypothetical question posed to
the vocational expert, the answer to which the ALJ relied upon in his final
determination. Given the ALJ’s inclusion of plaintiff’s hearing impairment in his
overall analysis, the failure to find the condition to be a severe impairment was
harmless. See Maziarz v. Secretary of Health & Human Servs., 837 F.2d 240, 244
(6th Cir. 1987); Lorence v. Astrue, 691 F. Supp. 2d 1008, 1028 (D. Minn. 2010);
see also Chavez v. Astrue, 699 F. Supp. 2d 1125, 1133 (C.D. Cal. 2009).
To the extent plaintiff claims that the ALJ erred in failing to include the
effects of his hearing impairment in the RFC determination, the Court finds such
failure to likewise be harmless inasmuch as it did not affect the outcome of the
case. At the administrative hearing, the ALJ asked the vocational expert to
consider an individual who, inter alia, had hearing loss in one ear, good hearing in
the other ear, would probably have problems hearing things if people were behind
him speaking or if there were noises behind him, but could hear things adequately
if he was in front of a person. The vocational expert testified that the occupational
base would be reduced by such limitations, but that such a person could perform
work. The expert then provided a list of jobs that could be performed by persons
with these hearing limitations, as well as the number of such jobs in existence in
- 30 -
the region. In his final decision, the ALJ relied upon this particular testimony –
including the specific jobs and related numbers – to find plaintiff not disabled. As
such, while the ALJ did not include the effects of plaintiff’s hearing loss in the
written RFC determination, his limitations therefrom were nevertheless included in
the ALJ’s finding that plaintiff could perform work as it exists in significant
numbers in the national economy given that it was based upon the vocational
expert’s testimony that considered these limitations. Because there is no indication
that the ALJ would have decided differently had he included plaintiff’s hearing
limitations in the written RFC determination, any error by the ALJ in this regard
was harmless. See Van Vickle v. Astrue, 539 F.3d 825, 830-31 (8th Cir. 2008).
Finally, the undersigned notes that the hearing limitations included in the
hypothetical are consistent with Dr. Stiffelman’s July 2010 report that plaintiff
could hear and understand normal conversational speech if it occurred on the right
side and not in an excessively distracting environment. Given the ALJ’s inclusion
of these limitations in his hypothetical and his ultimate finding that plaintiff could
perform work with such limitations, “it is highly unlikely” that the ALJ failed to
consider Dr. Stiffelman’s report in determining plaintiff’s limitations. Black v.
Apfel, 143 F.3d 383, 386 (8th Cir. 1998). Plaintiff’s claim otherwise is without
merit. The mere failure to cite to specific evidence does not indicate that such
evidence was not considered. Id.
- 31 -
C.
RFC Determination
Plaintiff claims that the ALJ erred in his RFC determination by failing to
include limitations relating to plaintiff’s deficits in concentration, persistence, or
pace and by failing to include limitations as identified by plaintiff’s sister in the
Third Party Function Report. For the following reasons, plaintiff’s claims fail.
1.
Concentration, Persistence, or Pace
In their PRTFs, both State agency consultants opined that plaintiff
experienced moderate limitations in concentration, persistence, or pace, and the
ALJ agreed with these determinations. (Tr. 12-13.) In his RFC assessment, the
ALJ limited plaintiff to the performance of simple, unskilled work but included no
additional limitations with respect to concentration, persistence, or pace. Plaintiff
claims that the ALJ’s failure to include such additional limitations was error.
In Newton v. Chater, 92 F.3d 688 (8th Cir. 1996), the ALJ found the
claimant to often have limitations in concentration, persistence, or pace but found
him capable of maintaining concentration and attention for simple work. In his
hypothetical question to a vocational expert, the ALJ included a limitation to
simple work but included no additional limitations relating to concentration,
persistence, or pace. The Eighth Circuit reversed, finding the evidence to show
plaintiff’s deficiencies in concentration, persistence, and pace to include
- 32 -
moderate deficiencies in his ability to carry out detailed instructions,
maintain attention and concentration for extended periods, perform
activities within a schedule, maintain regular attendance, be punctual
within customary tolerances, complete a normal work week, and
perform at a consistent pace without an unreasonable number and
length of rest periods[; and] marked[] limit[ations] in his ability to
carry out detailed instructions[.]
Id. at 695. The Eighth Circuit determined that because the hypothetical question
omitted such evidence relating to claimant’s deficiencies in concentration,
persistence, or pace, it could not be said that the expert’s opinion was based on the
full extent of the claimant’s limitations. Id.
Here, unlike in Newton, the evidence does not show plaintiff’s deficiencies
in concentration, persistence, or pace to be so limiting. Indeed, both State agency
consultants detailed in their Mental RFC Assessments that, in the domain of
Sustained Concentration and Persistence, plaintiff experienced no significant
limitations in his ability to carry out very short and simple instructions; to perform
activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances; to sustain an ordinary work routine without special
supervision; to work in coordination with or proximity to others without being
distracted by them; and to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods. (Tr. 425-26, 458-
- 33 -
59.)4 To the extent plaintiff was considered to have moderate limitations in this
domain, both consultants opined that plaintiff was moderately limited in his ability
to carry out detailed instructions, and Dr. Kresheck further opined that plaintiff
was moderately limited in his ability to maintain attention and concentration for
extended periods.5 (Id.) No other moderate limitations in this domain are noted.
Accordingly, because substantial evidence shows plaintiff’s limitations in
concentration, persistence, or pace did not impose limitations beyond the
performance of simple, unskilled work, the ALJ did not err in his RFC
determination or in his hypothetical to the vocational expert that included only this
relevant limitation.
2.
Third Party Observations
Plaintiff claims that the ALJ erred by failing to include in his RFC
determination the limitations observed by plaintiff’s sister with respect to
plaintiff’s short attention span, poor ability to handle stress and changes in routine,
and his ability to complete tasks. Plaintiff claims that, because the ALJ relied on
other portions of Ms. Faint’s function report to support his adverse determination,
4
The ALJ accorded great weight to the opinions of these State agency consultants. (Tr. 17.)
Plaintiff does not challenge this determination.
5
Dr. Burstin, on the other hand, found plaintiff to have no significant limitations with attention
and concentration. (Tr. 425.)
- 34 -
he should have either adopted the report in its entirety or provided sufficient
reasons to discount the portions of the report he failed to address.
Where an ALJ identifies and considers evidence relating to a claimant’s
impairment and then does not include alleged limitations caused thereby in a
detailed RFC, it is reasonable to conclude that the ALJ implicitly found no
significant limitations. See McCoy v. Astrue, 648 F.3d 605, 615 (8th Cir. 2011).
See also Buckner v. Astrue, 646 F.3d 549, 561 (8th Cir. 2011); Hilkemeyer v.
Barnhart, 380 F.3d 441, 447 (8th Cir. 2004); Jackson v. Apfel, 162 F.3d 533, 538
(8th Cir. 1998). Although the ALJ did not explicitly “list and reject” the additional
limitations as observed by plaintiff’s sister in her function report, such a task is not
required. See McCoy, 648 F.3d at 615. The ALJ therefore did not err in his
consideration of Ms. Faint’s function report.
VI. Conclusion
For the reasons set out above on the claims raised by plaintiff on this appeal,
the ALJ’s determination that plaintiff was not disabled is supported by substantial
evidence on the record as a whole, and plaintiff’s claims of error are denied.
Therefore,
IT IS HEREBY ORDERED that the final decision of the Commissioner is
affirmed, and plaintiff’s Complaint is dismissed with prejudice.
- 35 -
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
Dated this 18th day of June, 2014.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
- 36 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?