Logan-Wilson v. Colvin
Filing
21
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Soest's Complaint is DISMISSED with prejudice. A separate Judgment will accompany thisOrder. Signed by District Judge John A. Ross on 9/28/2017. (CLO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ASHLEY R. LOGAN-WILSON,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
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Case No. 4:16-cv-01327-JAR
MEMORANDUM AND ORDER
This action is before this Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Ashley R. Logan-Wilson was not
disabled, and, thus, not entitled to child insurance benefits under Title II of the Social Security
Act ("the Act"), 42 U.S.C. §§ 401-434, or supplemental security income ("SSI") under XVI of
the Act, 42 U.S.C. §§ 401-434, 1381-1385. For the reasons set forth below, the decision of the
Commissioner will be affirmed.
I.
Background
Plaintiff filed her disability application on April 27, 2011, alleging disability beginning
on September 1, 2002. She claimed disability based on her learning disability and depression.
Plaintiffs application was initially denied on July 29, 2011, and Plaintiff requested a hearing.
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for
Acting Commissioner Carolyn W. Colvin 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).
Such a hearing was held on December 8, 2011, at which Plaintiff, who was represented by
counsel, testified. Delores Gonzales, an impartial vocational expert, also testified. By decision
dated March 6, 2012, the administrative law judge ("ALJ") determined that Plaintiff was not
disabled under the Social Security Act. Plaintiffs request for review by the Appeals Council of
the Social Security Administration was denied, and Plaintiff appealed to this Court.
On September 14, 2014, this Court reversed the decision of the ALJ and remanded the
matter, directing the ALJ to reevaluate the residual functional capacity with respect to Plaintiffs
pace limitation and perform an analysis oflisting 12.05(c). On March 30, 2015, Plaintiff
appeared and testified at a hearing. Ms. Gonzales testified in person, and Richard Hutchison,
Ph.D., an impartial medical expert, testified by telephone. The ALJ again determined that
Plaintiff was not disabled under the Social Security Act on May 28, 2015. On June 22, 2016, the
Appeals Council denied Plaintiffs request for review of the ALJ's decision. Plaintiff has thus
exhausted all administrative remedies and the ALJ' s decision stands as the final agency action
now under review.
Here, Plaintiff argues that the ALJ erred when (1) she relied upon assumptions and
incorrect findings in determining that Plaintiff performed substantial gainful activity as a home
health aide; and (2) in her alternative findings, the ALJ relied upon assumptions and incorrect
findings with regard to Plaintiffs impairments meeting or equaling listing 12.05, deficits in
activities of daily living, residual functional capacity, and credibility.
II.
Facts
The Court notes that Plaintiff alleged a substantial number of statements of undisputed
material facts (Doc. 14-2) that were disputed by the Commissioner (Doc. 19-1). The Court has
reviewed the statements, the responses, and the record, and, where appropriate, will accept facts
2
as supported by the record.
III.
Standards
The court's role on judicial review is to determine whether the ALJ's findings are
supported by substantial evidence in the record as a whole. Johnson v. Astrue, 628 F.3d 991, 992
(8th Cir. 2009). "Substantial evidence is that which a reasonable mind might accept as adequate
to support a conclusion." Id. (citations omitted). The court may not reverse merely because
substantial evidence exists in the record that would support a contrary outcome or because the
court would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d 1019, 1022
(8th Cir. 2002).
To determine whether the ALJ's final decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole and to consider:
( 1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant's treating physicians;
(4) The subjective complaints of pain and description of the claimant's physical
activity and impairment;
(5) The corroboration by third parties of the claimant's physical impairment;
(6) The testimony of vocational experts based upon prior hypothetical questions
which fairly set forth the claimant's physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec '.Y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
The Social Security Act defines as disabled a person who is "unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). The
impairment must be "of such severity that [the claimant] is not only unable to do his previous
3
work but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy, regardless of whether such
work exists in the immediate area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired ifhe applied for work." 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has established a five-step process for determining whether a person
is disabled. 20 C.F.R. §§ 416.920(a), 404.1520(a). "If a claimant fails to meet the criteria at any
step in the evaluation of disability, the process ends and the claimant is determined to be not
disabled."
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). First, the claimant must not be engaged in
"substantial gainful activity." 20 C.F.R. §§ 416.920(a), 404.1520(a). Second, the claimant must
have a "severe impairment," defined as "any impairment or combination of impairments which
significantly limits [claimant's] physical or mental ability to do basic work activities." 20 C.F.R.
§§ 416.920(c), 404.1520(c). The severity of mental disorders is determined by rating the
claimant's degree of limitations in four areas of functioning: activities of daily living; social
functioning; concentration, persistence, or pace; and episodes of decompensation (the "paragraph
B criteria"). Id. § 404.1520a(c)(3). "The sequential evaluation process may be terminated at
step two only when the claimant's impairment or combination of impairments would have no
more than a minimal impact on [his or] her ability to work." Page v. Astrue, 484 F.3d 1040,
1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001).
Third, the claimant must establish that his or her impairment meets or equals an
impairment listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). If the claimant has
one of, or the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant's age, education, or work history. Id.
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Before considering step four, the ALJ must determine the claimant's residual functional
capacity ("RFC").
20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as "the most a
claimant can do despite [his] limitations." Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009)
(citing 20 C.F.R. § 404.1545{a)(l)). At step four, the ALJ determines whether the claimant can
return to his past relevant work, by comparing the claimant's RFC with the physical and mental
demands of the claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520{f),
416.920(a){4)(iv), 416.920(f); McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011).
If the
claimant can still perform past relevant work, he will not be found to be disabled; if the claimant
cannot, the analysis proceeds to the next step. Id.
At step five, the ALJ considers the claimant's RFC, age, education, and work experience
to see if the claimant can make an adjustment to other work in the national economy. 20 C.F.R.
§§ 416.920(a)(4)(v). If the claimant cannot make an adjustment to other work, then he will be
found to be disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v).
IV.
Decision of the ALJ (Tr. 389-405)
The ALJ determined that Plaintiff engaged in substantial gainful activity ("SGA") from
July 2014 through the date of the decision, May 28, 2015, as a health home aid for her mother.
She concluded that Plaintiff was paid by the State of Missouri $10 per hour, working 28 hours
per week, which resulted in approximately $1, 120 per month in earnings.
Plaintiff argued that she is allowed special work conditions, which in turn could not
constitute SGA. However, the ALJ found that the earnings did not qualify as a subsidy by her
employer because (1) there was no evidence that the State of Missouri received notice of any
special request or conditions; (2) the work activity report completed by Plaintiffs mother
showed that the claimant completed all usual work duties required of her position without
5
reported accommodations; (3) the record showed that Plaintiff was occasionally tardy by 15
minutes, but otherwise had no attendance issues; (4) Plaintiff reported that she received help
from her sister, which was contradicted by Plaintiffs testimony that her sister moved out of the
house; and (5) Plaintiff was not receiving more per hour than another person would receive to
perform. The ALJ concluded that "[ s]ince there is no accommodation of pay or reduced work
responsibilities; [Plaintiffs] work is not an accommodated or subsidized position." Tr. 392.
The ALJ also found that Plaintiffs work was not an unsuccessful work attempt pursuant
to 20 C.F.R. § 404.1574 because she was performing SGA before notice of the decision, which
in turn precluded her from being considered for a trial work period.
Therefore, Plaintiffs
earnings were not an exception to SGA and that she worked at the level of SGA since July 2014.
The ALJ noted that the record did not show that Plaintiff worked from April 27, 2011,
through June 2014. Therefore, "[i]n an abundance of caution," the ALJ continued through the
sequential evaluation as if Plaintiff had not worked at the SGA level beginning in July 2014 and
continuing through the date of the ALJ' s decision.
The ALJ first determined that Plaintiff had the severe impairments of borderline
intellectual functioning/mild mental retardation, major depressive disorder, and obesity, but that
she did not have an impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
Specifically, the ALJ found that Plaintiff had a moderate restriction in activities of daily living;
moderate difficulties with concentration, persistence, and pace; and experienced no episodes of
decompensation.
The ALJ also determined that the evidence failed to establish the presence of a medically
documented history of a chronic affective disorder of at least two years' duration that had caused
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more than a minimal limitation of ability to do basic work activities. Similarly, with regard to
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listing 12.05, the ALJ concluded that the record fails to support deficits of adaptive functioning,
which is a requirement for listing 12.05.3
2
Listing 12.05 (intellectual disability) provides:
12.05 Intellectual disability: intellectual disability 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.
The required level of severity for this disorder is met when the requirements in A,
B, C, or D are satisfied.
A. Mental incapacity evidenced by dependence upon others for personal needs
(e.g., toileting, eating, dressing, or bathing) and inability to follow directions, such
that the use of standardized measures of intellectual functioning is precluded;
OR
B. A valid verbal, performance, or full scale IQ of 59 or less;
OR
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;
OR
D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at
least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace;
or
4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. Pt. 404, Subpt. P, App. 1 (Listings) § 12.05.
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The ALJ determined that after careful consideration of the entire record, Plaintiff had the
residual functional capacity ("RFC") to perform a full range of work at all exertional levels, but
with the non-exertional limitation of routine, repetitive tasks involving occasional decisionmaking and occasional changes in the work setting. The ALJ limited production quotas to be
based on end of workday measurements only and opined that the Plaintiff was capable of
occasional interaction with the public, co-workers, and supervisors, provided the work did not
require tandem tasks with co-workers. (Tr. 399).
The ALJ determined that Plaintiffs described daily activities were not as limited as
stated by Plaintiff. The ALJ focused on Plaintiffs August 12, 2013 psychological consultative
examination, in which Plaintiff stated she was engaged in few activities and was generally taken
care of by others. However, the ALJ cited her work as a paid home health aide, which required
Plaintiff to provide those exact services to her mother. The ALJ opined:
Since these claims are contradictory, one is clearly false. Either [Plaintiff] is
exaggerating her limitations and symptoms for the purpose of obtaining disability
benefits, or her family is actively engaged in obtaining funds from the State of
Missouri by fraudulent means. Given the widely divergent IQ scores and
opposing claims of activities and abilities, [Plaintiffs] subjective complaints are
found to be generally not credible. The record shows [Plaintiff] completes all
usual work duties required of her position as a home health aide, a job in which
she is working at the SGA level in terms of wages.
(Tr. 402). The ALJ also noted that Plaintiff made inconsistent statements in each of her three
psychological consultative examinations and, in light of the objective medical evidence and
subjective findings, Plaintiff showed limitations in mental function, but the limitations were no
greater than shown in her RFC.
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The ALJ specifically noted that the requirements in paragraph A were not met because
Plaintiff could function in her daily activities; the requirements in paragraph B were not met
because Plaintiff did not have a valid verbal, performance, or full scale IQ of 59 or less; and the
requirements of paragraph C were only partially met.
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The ALJ then explained the weight she afforded opinion evidence in the record. First,
she afforded great weight to the opinion of Dr. Hutchison, the impartial medical expert who
testified by telephone, that Plaintiff had moderate limitations in activities of daily living, social
functioning, and concentration, persistence, and pace, along with no episodes of decompensation.
The ALJ noted that Dr. Hutchison was a specialist whose opinion was timely and had a chance to
review the entire record.
The ALJ assigned great weight to Dr. Hampton's opinion, which was provided as part of
Plaintiffs January 11, 2012 psychological examination. (Tr. 403). Specifically, Dr. Hampton
suggested that Plaintiff was able to understand and recall simple instructions, but would be
moderately impaired in her ability to understand and follow through with complex directions.
Dr. Hampton opined that plaintiffs concentration was moderately impaired; her pace was mildly
slow compared to other young adults; her ability to adapt to social situations and work-like
settings was limited; and that was not considered to be capable of managing funds independently
in her own best interest. The weight afforded by the ALJ was based on Dr. Hampton's expertise
and the fact that she had the opportunity to examine Plaintiff in person.
Furthermore, Dr.
Hampton's opinion was consistent with the record in that Plaintiff had no more than moderate
limitations in any area of mental functioning.
The ALJ afforded great weight to the op1mon of Dr. Armour, who performed a
psychological consultative examination on July 9, 2011, based on his expertise and the fact that
he had the opportunity to examine Plaintiff in person. Dr. Armour opined that Plaintiff had
moderate impairment in sustaining concentration and persistence on tasks, and a moderate
impairment in her ability to interact socially and adapt to her environment.
Those moderate
limitations were found to be consistent with the subsequent consultative examination report,
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treatment records, and the daily activities she performed with her work as a home health aide.
Tr. 403.
The ALJ afforded some weight to the state agency opinions, but found that Plaintiff was
more limited in her activities of daily living than suggested in those opinions. (Tr. 403). The
ALJ questioned the accuracy of Plaintiffs mother's third party function report on the basis that
Plaintiffs mother was not medically trained to make exacting observations, nor was she a
disinterested third party whose statements would not tend to be colored by affection for Plaintiff
and a natural tendency to agree with the symptoms and limitations Plaintiff alleged. Similarly,
the report was not consistent with the preponderance of the opinions and observations by medical
doctors.
Finally, the ALJ specifically noted that if the claimant was as limited as her mother
suggested, then Plaintiffs mother was actively engaged in defrauding the State of Missouri by
allowing the state to pay full wages to Plaintiff without the requisite work being performed by
her.
The ALJ concluded that Plaintiff could perform a full range of work at all exertional
levels. The ALJ found that Plaintiff had nonexertional limitations and, as a result, consulted with
vocational expert Delores Gonzalez to determine the extent to which those limitations eroded the
occupational base of unskilled work at all exertional levels. Ms. Gonzalez opined that Plaintiff
would be able to perform the requirements of representative occupations such as advanced
material distributor, silver wrapper, and bagger. (Tr. 405). Based on the testimony of the
vocational expert, the ALJ concluded that, considering her age, education, work experience, and
RFC, Plaintiff was capable of making a successful adjustment to other work that existed in
significant numbers in the national economy. As a result, Plaintiff was deemed not disabled.
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III.
Administrative Record
The following is a summary of relevant evidence before the ALJ.
A. Hearing Testimony
1. Plaintiff's testimony
On March 30, 3015, Plaintiff testified as follows. Plaintiff worked for her mom as a
home health aide making her bed, helping with laundry, and helping her with her medicine. (Tr.
455). Her hours were 9:00 a.m. until 1:00 p.m. Plaintiff was able to go grocery shopping (Tr.
463), and her brother completed other chores, like cleaning the kitchen and bathroom and
vacuuming. (Tr. 465). Plaintiff sometimes cooked, but only TV dinners, despite previously
being interested in becoming a chef. (Id.). Plaintiff was occasionally late in starting her job as a
home health aide because she woke up sad and emotional. (Tr. 501).
Plaintiff lived with her parents and brother, and her sister had moved out. (Tr. 462). She
did not have a driver's license, nor had she tried to get one, despite having an interest in doing
so. (Tr. 463-64). She did not take the bus, did not know how to take the bus, and had not tried to
take the bus. (Tr. 464). She took the dog for walks, fed it, and took care of it. (Id.)
Plaintiff
had been attending college for general studies for two or three years. (Tr. 458). She had a
laptop, and she used it to write papers for classes. (Tr. 461).
2. Dr. Hutchison
Dr. Hutchison had the opportunity to review Plaintiffs file.
(Tr. 469). He initially
opined that based on Plaintiffs function report, IQ, and major depressive disorder with psychotic
features, she met listing 12.05(C). (Tr. 475). However, upon learning that Plaintiff was being
paid to be a home health aide for her mother, Dr. Hutchison stated that such employment would
totally contradict what was contained in the function report. (Id.). This contradiction would
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exist regardless of whether Plaintiff was working on a full-time basis or was being
accommodated. (Id.). Dr. Hutchison opined that Plaintiffs working as a home health aide
indicated that she would be able to do different types of things that she previously indicated she
could not. Tr. 476.
With respect to functional limitations, Dr. Hutchison indicated that Plaintiffs ability to
attend college and pass her courses, even with significant accommodations, indicated that her
limitation was only in learning and acquiring information. (Tr. 481-82). Socially, she was
getting along with others, and her concentration was fine.
(Tr. 482).
Dr. Hutchison
acknowledged that learning was an issue and that it was very difficult with her intellectual level
to learn new things, particularly when she was depressed, which would then affect her level of
motivation and energy. (Id). He pointed out that although Plaintiff indicated that she did not go
out with friends, she did have friends in high school, which would make it seem that Plaintiff
was capable of working with others. (Id).
Dr. Hutchison opined that in future employment, Plaintiff would need a stable routine
with end of workday measurements and the ability to go at her own pace. (Tr. 483-85).
He
placed Plaintiffs activities of daily living at moderate difficulty; social functioning at moderate
difficulty; concentration, persistence, and pace at moderate difficulty; 4 and decompensation as
none. (Tr. 492-93). Dr. Hutchison opined that Plaintiff did not meet or equal any of the listing
12.05 criteria. (Tr. 493).
4
Specifically, Dr. Hutchison determined that Plaintiffs pace was the issue. (Tr. 494-95).
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3. Vocational Expert Delores Gonzales
Ms. Gonzales testified as follows. A home health aide is classified as medium, semiskilled work with a specific vocational preparation ("SVP") of three. 5 (Tr. 500). Ms. Gonzales
was puzzled that Plaintiffs mother indicated in the work activity questionnaire that Plaintiff
completed all the usual duties required for the position and was able to complete all of the job
duties without special assistance. (Tr. 503). However, several questions later, Plaintiffs mother
indicated that special assistance was provided to Plaintiff, which included fewer or lesser duties,
more breaks/rest period, lower production standards, extra help/supervision, and lower quality
standards. (Tr. 502, 722).
Ms. Gonzales testified that if Plaintiff were limited to work that involved occasional
interaction with the public, co-workers, and supervisors, with no tandem task and accounting for
pace issues, Plaintiff could find work as an advertising material distributor, silver wrapper, or dry
cleaning bagger. (Tr. 508-09, 511, 513). However, if Plaintiff tended to be off task 10% of the
time, it would be a problem. (Tr. 509). It would also be a problem if Plaintiffs productivity was
less than 100% at the end of the workday. (Id). Additionally, the maximum amount a time a
person could be absent was one day per month before the person would be subject to
termination. (Id.).
B. Medical Records
The Court previously reviewed all of Plaintiffs medical records, and it does so again
here. Plaintiffs relevant medical records are summarized as follows.
5
"In the [Dictionary of Occupational Titles], each job is assigned a number that reflects
the job's specific vocational preparation time (SVP), i.e., how long it generally takes to learn the
job ... An SVP level of "three" indicates that a job requires more than one month and up to three
months of training." O'Neill v. Astrue, 762 F. Supp. 2d 1158, 1170 (D. Minn. 2011) (internal
citations omitted).
13
On July 9, 2011, Plaintiff was seen by Michael T. Armour, Ph.D., for a psychological
evaluation. (Tr. 325-31 ). Dr. Armour observed that Plaintiff was passively uncooperative with
the evaluation, and that the current evaluation was an underestimation of her current level of
functioning. (Tr. 327). On the Wechsler Adult Intelligence Scale IV, Plaintiff obtained a verbal
comprehension score of 61, a perceptual reasoning score of 65, a working memory score of 66, a
processing speed index score of 71, and a full scale IQ score of 59. (Id.). Dr. Armour diagnosed
Plaintiff with a reading disorder, major depressive disorder, query psychotic disorder, and mild
mental retardation. (Tr. 329). Dr. Armour assigned Plaintiff a GAF score of 40-45. (Id.). Dr.
Armour determined that Plaintiff suffered severe impairment in activities of daily living based on
her assertion that she did not cook, cleaned very little, and did not do laundry. (Tr. 330).
Dr.
Armour determined that Plaintiff had moderate impairment in her ability to understand and
remember instructions; at least moderate impairment in her ability to sustain concentration and
persistence in tasks; and moderate to severe impairment in her ability to interact socially and
adapt to her environment. (Tr. 330-31 ).
On or around January 11, 2012, Plaintiff appeared for a psychiatric evaluation with Karen
Hampton, Ph.D. (Tr. 368-74). Dr. Hampton gave Plaintiff the Wechsler Adult Intelligence
Scale IV test and found Plaintiff to have a verbal comprehension score of 74, perceptual
reasoning score of 75, working memory score of 69, processing speed of 84, and full scale IQ of
71. (Tr. 373). Dr. Hampton determined that Plaintiff was able to understand and recall simple
instructions, but would be moderately impaired in ability to understand and follow through with
complex directions; Plaintiffs concentration was moderately impaired, and pace was mildly
slow compared to other young adults; her ability to adapt to social situations and work-life
settings was very limited, and impacted by both her psychiatric symptoms not being adequately
14
treated, and by her lack of experience with work-like settings; and Plaintiff was not capable of
managing funds independently in her own best interest. Overall, Dr. Hampton concluded that
Plaintiff performed better in her testing compared to testing completed Dr. Armour in July 2011,
and Plaintiff functioned in the borderline range of intellectual functioning impacted by
depressive and psychotic symptoms. (Tr. 374).
Plaintiff underwent limited mental health treatment. Plaintiff was seen by Florissant
Psychological services from June 2-June 20, 2011 (Tr. 350-58) and by Dr. Syed Mumtaz on
September 9, 2011 and October 4, 2011 (Tr. 356-58). Plaintiff was also seen periodically by her
pediatrician from September 7, 2005 through February 11, 2009. (Tr. 359-67).
Plaintiff underwent a psychological consultative examination with Shea Voelker, Psy.D.,
on August 12, 2013. (Tr. 474-751). Dr. Voelker observed that Plaintiff was coherent and
relevant; did not engage in spontaneous conversation; had poor eye contact; and was generally
pleasant but did not engage easily. (Tr. 749). Plaintiff was cooperative, her flow of thought
logical and sequential, and the rate, rhythm, and volume of her speech was normal. (Tr. 749).
Her mood was depressed with blunted affect. (Tr. 749). Plaintiff was able to repeat 3 digits
forward and two digits backward; she correctly named the President of the United States; her
express verbal judgment was intact; and she appeared to have fair insight into her psychological
problems. (Tr. 750). Dr. Voelker observed that Plaintiffs concentration appeared impaired,
persistence appeared adequate, and pace was slow. (Id). With regard to activities of daily living,
Dr. Voelker opined that Plaintiff had no history of paying bills or managing money; did not cook
or prepare meals; did not complete any household chores; did not go grocery shopping; stayed in
bed all day and completed no other tasks; relied on her family members to take her to all
15
necessary appointments; did not take care of daily hygiene needs; and needed multiple reminders
from her mother to complete tasks. (Id).
Dr. Voelker diagnosed Plaintiff with depression with psychotic features, which appeared
to be severely impacting her activities of daily living. (Id). Plaintiffs prognosis was poor to
guarded with her current symptom presentation, although Dr. Voelker opined that Plaintiffs
prognosis could improve with regular therapy, monitoring of suicidal ideation, and psychiatric
treatment with appropriate psychotropic interventions. (Id).
C. Third Party Functioning Report
On May 23, 2011, Plaintiffs mother filled out a third party Function Report. (Tr. 280287). In Section B-Information about Daily Activities, she reported that Plaintiff goes to school
and that Plaintiffs mother helps Plaintiff get ready and makes sure that her teeth are brushed and
that her face is washed. (Tr. 280). Plaintiff did not take care of anyone else in the household,
nor did she take care of pets. (Tr. 281). Plaintiffs mother represented that she assisted Plaintiff
in numerous ways, including helping her dress, helping her bathe, combing her hair, making sure
she did not overeat, reminding her to clean herself after using the bathroom, and giving her
medication "so she does not overdose." (Tr. 282). Plaintiff cannot read, so she cannot drive.
(Tr. 283). Plaintiff reportedly did not like being around people, and Plaintiffs mother indicated
that she did not know if Plaintiff "loves her family." (Tr. 284-85).
In Section C-Information about Abilities, Plaintiffs mother reported that Plaintiff was
very overweight and that she had a learning disability. (Tr. 285). Plaintiff was unable to finish a
task that she started, did not talk with her family, and, when stressed, would get mad and throw
things or mess up her room. (Tr. 286).
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V.
Discussion
a. Substantial Gainful Activity
Plaintiff first argues that the ALJ' s conclusion that Plaintiff performed substantial gainful
activity as a home health aide was unsupported by the record because her mother reported
making accommodations for Plaintiff, who had a rate of productivity of 60%.
The
Commissioner argues in response that Plaintiffs work as a home health aide from July 2014
through the ALJ's decision was substantial gainful activity and demonstrated the inconsistencies
in allegations about Plaintiffs abilities and activities of daily living.
SGA is defined as follows:
(a) Substantial work activity. Substantial work activity is work activity
that involves doing significant physical or mental activities. Your work may be
substantial even if it is done on a part-time basis or if you do less, get paid less, or
have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you
do for pay or profit. Wark activity is gainful if it is the kind of work usually done
for pay or profit, whether or not a profit is realized.
20 C.F.R. § 404.1572(a)-(b). Work done under special conditions may not be considered SGA.
20 C.F.R. § 404.1573(c). Examples of special conditions include, but are not limited to: 1)
requiring and receiving special assistance from other employees in performing the work; 2)
being allowed to work irregular hours or take frequent rest periods; 3) being provided with
special equipment or assigned work especially suited to the impairment; 4) only being able to
work because of specially arranged circumstances; 5) being permitted to work at a lower
standard of productivity or efficiency than other employees; or 6) being allowed to work because
of a family relationship, past association with her employer or her employer's concern for her
welfare. Id.
17
Working generally demonstrates an ability to perform a substantial gainful activity. Goff
v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005); Johnson v. Apfel, 240 F.3d 1145, 1148-49 (8th
Cir.2001) ("Acts which are inconsistent with a claimant's assertion of disability reflect
negatively upon that claimant's credibility."). A plaintiffs ability to work despite her allegations
of disability calls into question the sincerity of her belief that her impairments precluded all
work. Hudson v. Astrue, No. 11-3356-CV-S-REL-SSA, 2013 WL 149669, at *17 (W.D. Mo.
Jan. 14, 2013). Work performed on a part-time basis or with considerable difficulty in spite of
limitations still demonstrates an ability to perform substantial gainful activity. Browning v.
Sullivan, 958 F.2d 817, 823 (8th Cir. 1992).
While her appeal was pending before this Court, Plaintiff began working as a home
health aide for her mother, and her wages were paid by the State of Missouri. 6
Plaintiff was
retained to work for $10.00 per hour for an average of 28 hours per week, which would result in
$1, 120 per month in earnings. 7 A home health aide position is a semi-skilled position and
includes helping her mother make the bed, with laundry, and with taking medicine.
6
The Court notes that Plaintiff had a duty to report this job and income under 20 C.F .R. §
416.708. Plaintiff failed to do so here.
7
There is a dispute as to whether Plaintiff actually worked 28 hours per week. Plaintiff
points to an earnings report from the State of Missouri, which indicates that Plaintiff was not
paid for all of the goal of 28 hours per week. (Tr. 670). Instead, the report demonstrates that
Plaintiff worked, on average, 25.8 hours per week for the third quarter (July - September 2014).
(Id). Therefore, Plaintiff should be working 28 hours per week, which would result in $1,120
per month in earnings. The SGA threshold as of July 2014 is $1,070 per month for 2014 and
$1,090 per month for 2015. (Tr. 392). The Court rejects Plaintiffs argument that this one
quarterly statement establishes that Plaintiff does not meet the SGA threshold. Plaintiff began
working as a home health aide in mid-July, so there are two weeks in the quarterly report in
which Plaintiff was not employed, which in tum skews the earnings figure. The ALJ' s decision
is dated May 28, 2015. If Plaintiff wanted to supplement the record with additional earnings
statements to support her position, she could have done so. However, she was hired to work 28
hours per week, which the Court will use to calculate her earnings.
18
Plaintiff claims that she was not engaged in substantial gainful activity because her work
was done under special conditions. Plaintiffs mother filled out a work activity questionnaire
with contradictory reporting on Plaintiffs capabilities.
For example, she checked a box
indicating that Plaintiff completed the usual work duties required of her home health aide
position, while later indicating that Plaintiff was given fewer or easier work duties, more breaks,
lower production and quality standards, and extra help and supervision. (Tr. 722). Plaintiffs
mother did not, however, report any accommodations to the State of Missouri, nor did she reduce
Plaintiffs pay per hour based on her productivity.
Even the testifying doctor and vocational expert were confused on this point, indicating
that they did not understand the discrepancies in Plaintiffs mother's reporting. Dr. Hutchison
opined that "if [Plaintiff is] being paid as a home health aide, that would indicate that she can do
some of those types of things, and is now doing them when previously she wasn't." (Tr. 47576). Ms. Gonzales asked "why are you allowed to have lower production standards, and lower
quality standards, and fewer and easier duties, if you're not working up to the way you're
supposed to, why doesn't your mother get somebody else?" (Tr. 502).
The ALJ determined that she "will not make . . . a finding of criminal intent to defraud."
(Tr. 404).
Instead, she relied on other evidence in the record that was consistent with the
performance of tasks expected from a home health aide.
For instance, the ALJ relied on
Plaintiffs testimony regarding her tasks as a home health aide, that she went grocery shopping
with her mother, that she walked and fed her dog, that she did laundry, made beds, and cooked
simple meals and some desserts.
Other evidence in the record supports the ALJ's determination that Plaintiff was able to
engage in the activities required of a home health aide. For instance, in the January 11, 2012
19
psychological consultative examination, Plaintiff reported that she sometimes accompanied her
mother on errands, dressed and bathed herself, and fixed simple meals, such as sandwiches, and
poured herself drinks. (Tr. 369). In a September 17, 2012 Missouri Critical Adaptive Behaviors
Inventory Ability Statement, Plaintiff reported independently feeding herself, going to the
bathroom, dressing herself, and washing herself.
The ALJ concluded that the earnings did not qualify as a subsidy; that the work activity
report indicated that Plaintiff completed all usual work duties required by the position without
reported accommodations; that Plaintiff, while sometimes tardy, had no attendance issues; that
claimant testified that her sister moved out of the house, which meant Plaintiff was not helped by
her sister in her duties; and that Plaintiff was not receiving more per hour than another person
would receive to perform the same job. As a result, she concluded that Plaintiff was engaged in
SGA. In light of all of the evidence in the record, including Plaintiffs mother's continuing use
of Plaintiffs services as a home health aide, the Court finds that there is substantial evidence in
the record to support the ALJ's finding that Plaintiff has been engaged in SGA since July 2014
and, as a result, is not disabled.
b. Listing 12.05
Even if Plaintiff was not engaged in SGA, she would not qualify under Listing 12.05.
Plaintiff broadly argues that the ALJ erred in her findings concerning Plaintiffs activities of
daily living, RFC, and credibility. The Court will briefly address each item below.
Plaintiff first takes issue with the ALJ' s finding regarding Plaintiffs activities of daily
living because she contends the ALJ relied on erroneous assumptions about Plaintiffs subsidized
work for her mother. The Court, upon review of the record, concludes that the ALJ properly
made this determination. Specifically, in the decision, the ALJ relies on a January 11, 2012
20
psychological consultative examination, in which Plaintiff reported that she sometimes
accompanied her mother on errands, dressed and bathed herself, and fixed simple meals, such as
sandwiches, and poured herself drinks. (Tr. 369). Plaintiff herself testified that she went grocery
shopping with her mother, walked and fed her dog, did laundry, made beds, and cooked simple
meals and some desserts. (Tr. 463-65). The ALJ also noted that during a Missouri Critical
Adaptive Behaviors Inventory Ability Statement dated September 17, 2012, Plaintiff reported
independently feeding herself, going to the bathroom, dressing herself, and washing herself. (Tr.
738). The ALJ concluded that these activities were more consistent with Plaintiffs work as a
home health aide and, as a result, Plaintiff had only moderate restrictions in activities of daily
living. This determination is supported by the record.
Plaintiff next contends that the ALJ erroneously relied on incorrect information regarding
work activity in her analysis of whether Plaintiffs impairments met or equaled listing 12.05.
She points to Dr. Hutchison's testimony and contends that the ALJ made improper
characterizations to Dr. Hutchison about Plaintiffs work activities. At the hearing, the ALJ
asked Dr. Hutchison whether Plaintiffs employment as a home health aide to her mother would
color Dr. Hutchison's opinion regarding Plaintiffs capabilities. (Tr. 475). The Court does not
agree with Plaintiff that informing Dr. Hutchison of Plaintiffs employment as a home health
aide was inaccurate or misleading; instead, the ALJ was supplementing the record for Dr.
Hutchison to ensure a more complete opinion of Plaintiffs condition.
Plaintiff also takes issue with the RFC because the ALJ relied on "incorrect assumptions
concerning Plaintiffs work for her mother." (Doc. 14 at 14). The Court disagrees for the
reasons discussed extensively in this opinion.
21
Finally, Plaintiff argues that the ALJ improperly found Plaintiff and Plaintiffs mother
not credible. The ALJ considered the record and was troubled by a glaring inconsistency. On
one hand, Plaintiff was earning substantial income from the State of Missouri as a home health
aide for her mother. On the other hand, Plaintiff is now seeking disability benefits from the
federal government on the basis that she is so disabled that she cannot engage in any substantial
gainful activity. The ALJ opined that "[s]ince these claims are contradictory, one is clearly false.
Either [Plaintiff] is exaggerating her limitations and symptoms for the purpose of obtaining
disability benefits, or her family is actively engaged in obtaining funds from the State of
Missouri by fraudulent means." The Court finds that there is substantial evidence in the record
to support the ALJ' s credibility determinations which were adequately explained and supported.
Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 2005).
VI.
Conclusion
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Soest's Complaint is DISMISSED with prejudice. A separate Judgment will accompany this
Order.
Dated this 28th day of September, 2017.
~-ROSS
ED STATES DISTRICT JUDGE
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