Stumon v. Colvin

Filing 15

ORDER. The Commissioner's decision is affirmed. Signed on 12/11/14 by District Judge Nanette K. Laughrey. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
QUINTON L. STUMON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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No. 4:14-cv-00306-NKL

ORDER
Plaintiff Quinton L. Stumon appeals the Commissioner of Social Security’s final
decision denying his applications for disability and disability insurance benefits under
42 U.S.C. §§ 216(ii) and 223(d); disabled widower’s benefits under 42 U.S.C. §§ 202(f)
and 223(d); and supplemental security income 42 U.S.C. § 1614(a)(3)(A). The
Commissioner’s decision is affirmed.
I.

Background
Stumon was born in 1961 and was 49 years old on the alleged disability onset date

of February 15, 2011. He claimed disability based on ulcers, drug addiction, depression,
anxiety, sleep problems, an eating disorder, and problems with attention, concentration,
and memory.

His present appeal focuses on issues relating to his mental limitations and

past employment activity.
Stumon has a ninth grade education, and claims he was in special education

classes from sixth through ninth grade. He began using alcohol at 14 and crack cocaine
at 26. He claimed drug addiction prevented him from working, but that he stopped using
alcohol and drugs in July 2011. He has been incarcerated three times, the last time in
2007, and has been in and out of county jails most of his life. He had been married for
almost 20 years when his wife passed away in 2011.
Stumon has reported earnings and work activity over more than 30 years,
including after the alleged disability onset date. His jobs included production assembler
in 2005, 2006, and 2007, where he was paid $9 per hour, and worked up to 40 hours a
week on and off.

He has obtained work through a temporary employment agency. Most

recently, in 2012, he worked as a cook’s helper at a bar, and did lawn care work at homes
near his own.
Stumon lives alone and does all his own cooking, cleaning, laundry, and yard
work. He does not need any special reminders to take care of his personal needs, take
medicine, or attend doctor appointments. He rides the bus almost every day. His hobbies
are playing pool, swimming, playing basketball and watching television. He takes care of
his ailing mother on a daily basis, cleans, does her laundry, and picks up her
prescriptions. Stumon testified that he struggles with mathematics, reading and writing.
He can read, though with difficulty, and relied on friends and family to help him
understand written communication.

The ALJ observed that Stumon did not have any

difficulty concentrating or paying attention during the hearing, appeared to process the
questions without difficulty, and responded to the questions appropriately and without
delay.
2

On

October

27, 2011, John

Keough, M.A., performed a consultative

psychological examination at the request of the state agency. Mr. Keough opined that
Stumon appeared to be functioning in the borderline range of intellectual functioning.
Stumon’s memory function appeared to be adequate. His ability to understand and
remember instructions, on a sustained basis and as necessary to make routine workrelated decisions without supervision, was somewhere between the simple to moderate
level of complexity, as long as he was not using alcohol or other street drugs. His
ability to sustain concentration, be persistent in tasks and maintain an adequate pace
in productive activity, necessary to be gainfully employed working 40 hours a week,
in a mainstream work -related environment, for a duration of at least 12 months, would
be adequate in a low stress and low-demand work setting. His ability to adapt to the
wo r k environment, respond appropriately to supervision in a work setting, adjust to
changes in routine, and interact socially in an appropriate manner, appeared to be
moderately impaired by a mood disorder, anxiety, impulse-control issues, personality
deficits, and a long history of substance abuse and dependence. Mr. Keough assessed a
global assessment of functioning (GAF) score of 55 to 70, indicating mild to
moderate

symptoms

or difficulty functioning. The ALJ gave the consultative

examiner’s opinion significant weight.
On November 8, 2011, Phillip Rosenshield, Ph.D., a non-examining consultant,
completed a Mental Residual Function Capacity Assessment. Dr. Rosenshield opined
that in the absence of drugs and alcohol, Stumon is capable of concentrating
sufficiently well to perform simple, repetitive work tasks in a timely manner without
3

special supervision, and to adapt to changes in the work setting. He is capable of
engaging in superficially appropriate interactions with coworkers, supervisors and the
general public, although he would perform most effectively in work situations that
only require limited social contact. Dr. Rosenshield did not find that Stumon met any
of the requirements of Listing 12.05, mental retardation, one of the categories covered
by the Mental Residual Function Capacity Assessment form. [Tr. 366]. The ALJ gave
the consultant’s opinion significant weight.
The

ALJ found Stumon had severe impairments that included cervical

degenerative disc disease; right shoulder paresthesia; mood disorder not otherwise
specified; anxiety disorder not otherwise specified; impulse control disorder not otherwise
specified; alcohol dependence; polysubstance abuse dependence; personality disorder not
otherwise specified with emphasis on cluster B traits; and borderline intellectual
functioning.

The ALJ found Stumon did not have any impairment or combination of

impairments listed in or medically equal to a listing in 20 C.F.R. part 404, subpart P,
appendix 1.

To give Stumon “the benefit of every doubt,” the ALJ included limitations

in the RFC involving written communications and mathematics. [Tr. 22].
The ALJ determined that Stumon retained the RFC to perform light work as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) 1 and Social Security Ruling 83-10;

1

As defined by the regulations, “[l]ight work involves lifting no more than
20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this category when it requires
a good deal of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing a full
or wide range of light work, you must have the ability to do substantially all of these
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he could lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; and
sit, stand, and walk for up to six hours during an eight-hour workday. Stumon could not
perform overhead reaching with the right upper extremity; was limited to frequent
fingering and handling with the right upper extremity; was limited to work that did not
require written communication or more than simple math; and was limited to simple,
routine, and repetitive tasks. He was to avoid interaction with the public, and could
tolerate only occasional supervision. Finally, he could work around co-workers
throughout the day, but must have only occasional interaction with co-workers.
The vocational expert classified Stumon’s past work as a production assembler as
light, unskilled work with a specific vocational preparation (SVP) of 2 as generally
performed pursuant to the Dictionary of Occupational Titles (DOT) 2 and as actually
performed by Stumon.
The ALJ concluded Stumon was not disabled, on two bases. The ALJ found that,
based on the evidence of record, Stumon’s work as a production assembler was past
relevant work because Stumon performed it within 15 years of the date of the decision,
activities. If someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine dexterity
or inability to sit for long periods of time.” 20 C.F.R. §§ 404.1527(b) and 416.927(b).
2
SVP” or “specific vocational preparation” is the “amount of lapsed time
required by a typical worker to learn the techniques, acquire the information, and develop
the facility needed for average performance in a specific job-worker situation. This
training may be acquired in a school, work, military, institutional, or vocational
environment. It does not include the orientation time required of a fully-qualified worker
to become accustomed to the special conditions of any new job. Specific vocational
training includes: vocational education, apprenticeship training, in-plant training, on-thejob training, and essential experience in other jobs.” Dictionary of Occupational Titles
(DOT), App. C (Dep’t of Labor Jan. 1991). SVP 2 is anything beyond short
demonstration, up to and including 1 month. Id.
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for a sufficient length of time to learn and provide average performance, and at the level
of substantial gainful activity. The ALJ found that Stumon could perform his past work
as production assembler.
The ALJ proceeded to address, alternatively, whether Stumon’s impairments
would preclude him from performing other work, and concluded they would not. The
ALJ found Stumon could perform the representative occupations of cleaner and
housekeeper, routing clerk, and collator operator, jobs existing in significant numbers in
the national economy.
After the ALJ’s decision was issued, at his attorney’s request, Stumon had IQ
testing performed by John T. Bopp, Ph.D., a psychologist. Dr. Bopp determined Stumon
had a full-scale IQ score of 62, within the range of mild mental retardation.

The

information was submitted to the Appeals Council.
On March 8, 2014, the Appeals Council denied Stumon’s request for review.
II.

Discussion
Stumon argues that the decision should be reversed for four reasons: he meets

Listing 12.05(c) (mental retardation); Stumon’s past work was not substantial gainful
activity to which he could return; the ALJ applied the wrong test in determining Stumon
could do light work, because Stumon is illiterate; and the RFC is unsupported by
substantial evidence on the record as a whole because the ALJ did not mention borderline
intellectual functioning.
The Commissioner’s findings are reversed “only if they are not supported by
substantial evidence or result from an error of law.” Byers v. Astrue, 687 F.3d 913, 915
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(8th Cir. 2012). Substantial evidence is less than a preponderance of the evidence, but
enough that a reasonable mind might accept it as adequate to support the Commissioner’s
conclusions. See Juszczyk v. Astrue, 542 F.3d 626, 631 (8 th Cir. 2008). “If substantial
evidence supports the Commissioner’s conclusions, [the Court] does not reverse even if it
would reach a different conclusion, or merely because substantial evidence also supports
the contrary outcome.” Byers, 687 at 915.
A. Listing 12.05, mental retardation
At Step 3, the ALJ concluded Stumon did not have an impairment or combination
of impairments that met or medically equaled the severity of any of the listed impairments
to which Stumon pointed. At the time, the Listings on which Stumon relied did not
include Listing 12.05, mental retardation. Stumon argues that remand is required for the
ALJ to specifically consider Listing 12.05, based on the after-acquired IQ testing he
submitted to the Appeals Council.
The Appeals Council considered this new evidence and found that the ALJ’s
decision was supported by the record as a whole.

[Tr. 1-3]. Contrary to Stumon’s

argument, the Appeals Council was not required to provide an analysis of the listing in
denying review of the ALJ’s decision. See 20 C.F.R. §§ 404.970(b), 416.1470(b), and
416.1479.
In any event, when the Appeals Council denies review, it is a non-final,
administrative decision, which this Court may not review. This Court may only review
the ALJ’s final decision. See 42 U.S.C. §§ 405(g) and 1382(c) (3) (the court is
statutorily confined to review of the “final decision” of the Commissioner). Material new
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evidence reviewed by the Appeals Council is simply reviewed by this Court as part of the
record as a whole. See Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007); Stephens v.
Shalala, 50 F.3d 538, 541 (8 th Cir. 1995).
But on the record as whole and including the new evidence, Stumon cannot
demonstrate that the ALJ would have reached the decision that he met Listing 12.05.
C.f., Ellis v. Barnhart, 392 F.3d 988, 994 (8 th Cir. 2005) (reversing for failure to develop
record is warranted only when such failure is prejudicial or unfair). Stumon has the
burden to show, through medical evidence, that his impairment met all of the specified
medical criteria contained in Listing 12.05. See Carlson v. Astrue, 504 F.3d 589, 593
(8th Cir. 2010) (quoting Johnson v. Barnhart, 390 F.3d 1067, 1070 (8 th Cir. 2004)). The
listing provides, in relevant part:
Mental retardation refers to significantly sub-average 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….
***
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[.]
***
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05.
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Regulation provides that IQ scores are presumed to be stable after age 16. See
20 C.F.R. pt. 404, subpt. P, app. 1, § 112.00(D) (10). Moreover, an ALJ is not required
to accept IQ scores; they may be rejected when inconsistent with the record, including
contrary evidence of daily activities and behavior. Miles v. Barnhart, 374 F.3d 694, 699
(8th Cir. 2004) (citing Clarke v. Apfel, 141 F.3d 1253, 1255 (8 th Cir. 1998)). For example,
an ALJ may conclude a claimant is not disabled by mental retardation when the claimant
has been able to work notwithstanding the cognitive ability he claims to possess. Id.
(citing Roberts v. Apfel, 222 F.3d 466, 469 (8 th Cir. 2000)). The ALJ may also rely on
observations of the claimant made during the hearing. Miles, 374 F.3d at 699 (citing
Clarke, 141 F.3d at 1255).
Thus, in Miles, the Eighth Circuit affirmed where the ALJ concluded the claimant
did not meet Listing 12.05 because the claimant had attended regular classes in high
school; received grades of B; completed a vocational training program; passed a driver
license examination; had driven a car; had lived independently; had never been
terminated from a job for lack of mental ability, but had been terminated because of lack
of transportation or lack of work; and was working full time at the time of the hearing.
374 F.3d at 699. The ALJ also relied in part on his observations of the claimant during
the hearing. Id. In Clark v. Apfel, 141 F.3d 1253, 1255–56 (8th Cir.1998), the court held
that the ALJ properly rejected IQ scores when they were the product of one meeting with
a non-treating psychologist; the scores were inconsistent with the claimant's unrestricted
daily activities of reading, writing, counting money, driving, cooking, cleaning, shopping,
and taking care of a young child; and no medical records reflected a diagnosis of mental
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retardation prior to the time the claimant reached age 22.
But in Bailey v. Apfel, 230 F.3d 1063, 1065 (8th Cir. 2000), the court reversed
where the ALJ discounted a claimant's IQ score of 63, because the claimant's education,
daily activities, and work history “did not call into question the validity of the IQ results.”
The claimant had attended special education classes; had never lived independently; had
been fired from jobs for being “slow”; and a significant portion of his work history
involved working for his father. Id.
Here, Stumon’s medical records, work history, and daily activities are inconsistent
with his claimed level of cognitive ability. Notwithstanding his claim to have attended
special education classes from sixth through ninth grade, no medical records reflect a
diagnosis of mental retardation during the period prior to the time Stumon reached age
22. He has reported earnings and work activity over a period of 30 years, including
working as a production assembler, cook’s helper in a bar, and in lawn care. There is no
evidence that he failed to maintain employment because of limitations relating to his
intelligence, such as being “slow.” He was married for almost 20 years. He cares for his
mother on a daily basis. He lives independently, taking care of all of his personal needs
without reminders, and doing all of his household chores. He rides the bus every day.
His hobbies include playing pool, swimming, and playing basketball. The ALJ observed
that Stumon did not have any difficulty concentrating or paying attention during the
hearing, appeared to process the questions without difficulty, and responded to the
questions appropriately and without delay. The psychological examiner and consultant
opined that Stumon’s memory functioning appeared to be adequate. The consultant who
10

prepared the Mental Residual Function Capacity Assessment form did not find that
Stumon met any of the requirements of Listing 12.05, although the form explicitly
identifies the listing and the specific requirements. The test results on which Stumon
relies were the product of one meeting with a non-treating psychologist. In short, this
case is more like Miles and Clark in which such testing was held appropriately
discredited, than to Bailey in which it was not.
The after-acquired evidence of Stumon’s intelligence testing does not mandate
remand for further consideration.
B. Whether Stumon’s past work as a production assembler qualified as
relevant work and substantial gainful activity
Past relevant work is work done within the last 15 years, and lasting long enough
for the person to learn to do it. 20 C.F.R. §§ 404.1565(a) and 416.965(a). Stumon
worked as a production assembler within the past 15 years—in 2005, 2006, and 2007.
But he argues that it was not relevant because he only worked “off and on” for “brief
periods” during those years. [Doc. 11, p. 35].

The vocational expert explained that

Stumon’s work as a production assembler was SVP 2— meaning a job learned through
anything beyond short demonstration in a period of time up to one month—as generally
performed pursuant to the Dictionary of Occupational Titles, and as actually performed
by Stumon. His production assembler wages for 2005 to 2007 totaled $15,639.22; at $9
per hour or $360 per week, he worked for about 43 weeks or 10 months. There was
substantial evidence on the whole record on which the ALJ could conclude that Stumon
performed his work as a production assembler long enough to learn to do it. Stumon
11

performed qualifying past relevant work.
The work must also have constituted substantial gainful activity. 20 C.F.R.
§§ 404.1565(a) and 416.965(a). Stumon argues that his work as a production assembler
was not a substantial gainful activity. Whether a person has done work that qualifies as
substantial and gainful is determined by regulation. See SSR 82-62, 1982 WL 31386 *2.
Substantial gainful activity 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. Work 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 and 416.972.

Generally, if an individual worked for substantial

earnings, the SSA will find that the individual is able to do substantial gainful activity.
20 C.F.R. §§ 404.1574(b) and 416.974(b). But the fact that an individual’s earnings were
not substantial will not necessarily show that the individual is not able to perform
substantial gainful activity. Id.
Stumon’s work as a production assembler was substantial and gainful. His rate of
pay was $9 per hour, and he indicated that he worked up to 40 hours a week. At that rate,
his weekly rate of pay was $360, or $18,720 per year. Stumon notes that the substantial
gainful activity limits for 2005, 2006, and 2007—$9,960 per year, $10,320 per year, and
$10,800 per year, respectively, exceeded his total earnings each of those same years—
12

$5,133.56, $3,130.65, and $7,375.01, respectively. [Doc. 11, p. 35]. But the regulations
do not require an individual to meet the annual earning limits in order to conclude that the
individual is capable of performing substantial gainful activity. The regulations explicitly
permit the work to be part time.
Substantial evidence on the whole record supports the ALJ’s decision that
Stumon’s work as a production assembler qualified as past relevant work and substantial
gainful activity.
C. Whether Stumon could do light work
Stumon maintains that he is illiterate. Therefore, he argues, the ALJ applied the
wrong test at Step 5 in determining Stumon could do light work, and should have found
he was disabled under Rule 202.09.
The ALJ could have stopped at Step 4, having determined that Stumon could
perform his past work as a production assembler. Therefore, how the ALJ applied a test
at Step 5 cannot have prejudiced Stumon and suffices as no basis for reversal.
Nevertheless, the ALJ proceeded to Step 5 and made an alternative determination
concerning other jobs Stumon could do.

Substantial evidence supports the ALJ’s

alternative decision.
At Step 5, an ALJ considers a claimant’s present job qualifications such as age,
experience, education and physical capacity, and the existence of jobs to match those
qualifications, to determine whether the claimant retains the capacity to perform a
different kind of job that exists in significant numbers in the national economy. See 42
U.S.C. §§ 423(d)(2)(A) and 1532c(a)(3)(B); 20 C.F.R. §§ 404.1520(f)(1) and
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416.920(f)(1); Heckler v. Campbell, 461 U.S. 458, 460 (1983). Only at Step 5 does the
Commissioner consider the application of the medical-vocational guidelines, or the
“grids.” See 20 C.F.R. §§ 404.1569 and 416.969; 20 C.F.R. pt. 404, subpt. P, app. 2.
Under the regulations, “illiteracy” means the inability to read or write, such as the
inability to read or write a simple message involving instructions or inventory lists. See
20 C.F.R. §§ 404.1564(a)(1) and 416.964(a)(1). Generally, an illiterate person has had
little or no formal schooling. Id. A person with “limited education” has completed the 7 th
grade up through the 11th grade of formal education. See 20 C.F.R. §§ 404.1564(a)(3)
and 416.964(a)(3).
The ALJ noted that Stumon was born on September 8, 1961 and was age 49 on the
alleged disability onset date of February 15, 2011, qualifying as a “younger individual.”
See 20 C.F.R. §§ 404.1563 and 416.963. Stumon left school in the 9 th grade. The ALJ
found that Stumon had a limited education and was able to communicate in English. See
20 C.F.R. §§ 404.1564 and 416.964. The ALJ noted that if Stumon had the RFC to
perform a full range of light work, Rule 202.18 (younger individual, limited or less
education, skills not transferable) would direct a finding of not disabled. Following
Stumon’s 50th birthday on September 8, 2011, and his entry into the category of closely
approaching advanced age, the application of Rule 202.11 would similarly direct a
finding of not disabled (closely approaching advanced age, limited or less education,
skills not transferable). See 20 C.F.R. pt. 404, subpt. P, app. 2, Rule 202.10. Substantial
evidence on the whole record supported the ALJ’s conclusion that the guidelines directed
a finding of not disabled, had Stumon not had non-exertional limitations.
14

In posing the hypothetical to the ALJ, including Stumon’s non-exertional
limitations, the ALJ included the limitation of jobs that did not require “complex written
communication.” [Tr. 71].

The ALJ did so for the purpose of giving Stumon the benefit

of every reasonable doubt. [Tr. 22]. Stumon had a limited education and testified that he
was in special education from sixth through ninth grade.

The consultative examiner

found that Stumon had borderline intellectual functioning. Stumon could read, though
with difficulty, and relied on friends and family to help him understand written
communication.

He had also managed to work for many years at a variety of jobs. The

limitation the ALJ applied is not equivalent to a finding of illiteracy.

Substantial

evidence on the whole record does not support a finding that Stumon is illiterate and
disabled under Rule 202.09.
Stumon points out that with respect to written communication, the RFC the ALJ
found included the limitation of “does not require written communication,” [Tr. 17],
rather than the limitation the ALJ posed to the vocational expert, “do[es] not require
complex written communication,” [Tr. 71]. The distinction does not make a difference.
Again, the ALJ was not required to proceed to examine other jobs existing in significant
numbers in the national economy, because Stumon can perform past relevant work. Even
so, two of the jobs the vocational expert identified, cleaner and housekeeper, and collator
operator, were language level one, requiring the ability to print simple sentences
containing subject, verb and object, and series of numbers, names and addresses. DOT,
App. C. Based on the above discussion of Stumon’s abilities, and because substantial
evidence does not support a finding that Stumon is illiterate, substantial evidence on the
15

whole record supports a finding that Stumon could perform language level one jobs such
as those identified by the vocational expert and relied on by the ALJ in making the
alternative finding under Step 5.
Remand is not necessary based on the ALJ’s finding that Stumon could do light
work, and failure to find Stumon was illiterate.
D.

Whether the ALJ should have explicitly included the diagnosis
“borderline intellectual functioning” when posing the RFC to the
vocational expert

As noted above, the ALJ was not required to proceed to Step 5. Therefore, remand
for the ALJ to reform the hypothetical question is not required because it would have no
bearing on the outcome.
In any event, a hypothetical posed to a vocational expert need not include a
specific diagnosis, if the hypothetical adequately accounts for the concrete consequences
of a claimant’s impairments. See Roe v. Chater, 92 F.3d 672, 676 (8 th Cir.1996) (“While
the hypothetical question must set forth all the claimant's impairments, it need not use
specific diagnostic or symptomatic terms where other descriptive terms can adequately
define the claimant's impairments.”) Thus, in Howard v. Massarani, 255 F.3d 577, 582
(8th Cir. 2001), the court held that the ALJ’s description of a claimant as “capable of
doing simple work adequately account[ed] for the finding of borderline intellectual
functioning.” See also Gragg v. Astrue, 615 F.3d 932, 940-41 (8th Cir. 2010) (although
the ALJ’s hypothetical question did not use the phrases “learning disorder” or “borderline
intellectual functioning,” the ALJ did specifically note that the claimant could not read or
write and was limited to simple tasks, sufficiently representing the limitations imposed by
16

the claimant’s impairments).
Here, in posing the hypothetical, the ALJ limited Stumon to simple, routine and
repetitive tasks, and work that did not require complex written communication or more
than simple math. [Tr. 66, 71]. The hypothetical sufficiently accounted for Stumon’s
borderline intellectual functioning.
Remand is not necessary based on the ALJ’s failure to explicitly mention
Stumon’s diagnosis in the hypothetical.
III.

Conclusion
The Commissioner’s decision affirmed.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge

Dated: December 11, 2014
Jefferson City, Missouri

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