Gladden v. Astrue
MEMORANDUM AND ORDER - The decision of the Commissioner is affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Final judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (AOA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Plaintiff brings this suit to challenge the Social Security Commissioner’s final
administrative decision denying her application for supplemental security income
(SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f.1 For the
reasons discussed below, the Commissioner’s decision will be affirmed.
I. Procedural Background
Plaintiff protectively filed for SSI benefits on October 22, 2008 (Tr. 192-194).
Her application was denied initially on January 8, 2009, with the Commissioner
providing the following explanation:
Section 1631(c)(3) of the Act provides that “[t]he final determination of the
Commissioner of Social Security . . . shall be subject to judicial review as provided
in section 405(g) of this title to the same extent as the Commissioner’s final
determinations under section 405 of this title.” 42 U.S.C. § 1383(c)(3). Under the
fourth sentence of section 405(g), “[t]he court shall have power to enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g).
You said that you were unable to work because of a learning
disability. The evidence shows that you have learning problems and are
prevented from doing work that is overly complex. However, you are not
prevented from doing work that is simple in nature. Though you have a
limited work history, you are not prevented from doing work that is basic
in nature. We have considered your age of 31 years and 7 years of
education in making this decision.
(Tr. 95) Plaintiff filed a request for reconsideration (Tr. 104-106), which was denied
on March 10, 2009 (Tr. 107-124). The denial letter stated:
You said that you were unable to work due to learning disability.
Medical evidence shows that you have a history of some depression and
some cognitive deficits. The evidence does not however show that you
would be severely disabled by these issues. While it is recommended that
you avoid highly complex types of work tasks, and jobs requiring highly
frequent interaction with others, you should not be prevented from
working. We have determined that your condition should not preclude
you from simple, less stressful kinds of work and therefore must find that
you do not qualify for disability benefits.
(Tr. 107) On March 23, 2009, Plaintiff requested an administrative hearing (Tr. 125).
A hearing was held before an administrative law judge (ALJ) on August 26,
2010 (Tr. 65-81). After listening to Plaintiff’ testimony, the ALJ decided to order a
consultative psychological examination, as Plaintiff’s representative had requested
(Tr. 76-80, 438). A second hearing was then held on January 13, 2011(Tr. 50-64).
Plaintiff again testified, as did a vocational expert.
The ALJ, Ronald D. Lahners, issued a unfavorable decision on January 28,
2011, concluding that Plaintiff is not disabled because she is capable of performing
jobs that exist in significant numbers in the national economy.2 Evaluating Plaintiff’s
Disability is defined as the inability “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which
claim using the 5-step sequential analysis prescribed by Social Security regulations,3
Judge Lahners made the following findings:
1. The claimant has not engaged in substantial gainful activity
since October 22, 2008, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: borderline
intellectual functioning and learning disorder, resulting in slow pace (20
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d),
416.925 and 416.926).
4. Based on the record as a whole, the undersigned finds that,
although the claimant has no physical impairments, clearly she would
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 12 months.” 42 U.S.C. § 1382c(a)(3)(A).
The Eighth Circuit has described the procedure as follows:
At the first step, the claimant must establish that he has not
engaged in substantial gainful activity. The second step requires that the
claimant prove he has a severe impairment that significantly limits his
physical or mental ability to perform basic work activities. If, at the third
step, the claimant shows that his impairment meets or equals a
presumptively disabling impairment listed in the regulations, the analysis
stops and the claimant is automatically found disabled and is entitled to
benefits. If the claimant cannot carry this burden, however, step four
requires that the claimant prove he lacks the [residual functional capacity
(‘RFC’)] to perform his past relevant work. Finally, if the claimant
establishes that he cannot perform his past relevant work, the burden
shifts to the Commissioner at the fifth step to prove that there are other
jobs in the national economy that the claimant can perform.
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006) (footnote omitted).
have the residual functional capacity for at least light work, which is
defined in 20 CFR 416.967 as work which involves lifting no more than
20 pounds occasionally with frequent lifting or carrying of objects
weighing up to 10 pounds; sitting 6 hours in an 8-hour workday; and
standing 6 hours in an 8-hour workday. She has unlimited use of the
extremities. However, the claimant has a limited education and, as a
result, would be limited to unskilled work that does not require her to
carry out detailed instructions. She has difficulty getting along with
people and, as a result, would have moderate limitation in getting along
with peers and supervisors, and would be precluded from dealing with
the general public.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was . . . 31 years old, which is defined as a
younger individual age 18-49, on the date the application was filed (20
7. The claimant has a limited education (7th grade) and is able to
communicate in English (20 CFR 416.964).4
8. Transferability of job skills is not an issue because the claimant
does not have past relevant work (20 CFR 416.968).
9. Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the
Social Security Act, since October 22, 2008, the date the application was
filed (20 CFR 416.920(g)).
School records indicate Plaintiff actually completed ninth grade (Tr. 288).
On February 14, 2011, Plaintiff requested review of the ALJ’s decision by the
Appeals Council of the Social Security Administration (Tr. 31-32). On November 15,
2011, her representative submitted additional evidence consisting of medical records
from Friendship Program, Inc., for the period from May 3, 2011 through September
12, 2011 (Tr. 6-27). The Appeals Council denied Plaintiff’s request for review on
December 14, 2011 (Tr. 1-6).5 Among other things, it noted that the additional
medical records could not affect the ALJ’s January 28, 2011 decision because they
pertained to a later time period (Tr. 2).
This action was filed on January 27, 2012 (filing 1). Plaintiff argues that (1)
her depression is a severe impairment; (2) she is disabled because she meets the
requirements of listing 12.05C for mental retardation; and (3) she cannot work at a
competitive pace and would require additional supervision and repeated instructions.
The ALJ’s decision contains a fairly detailed discussion of the evidence. First
reviewing Plaintiff’s testimony, the ALJ stated:
The claimant was 31 years of age at the alleged onset date and is
currently 33 years of age with a 7th grade education and no past relevant
work. At the initial hearing, Ms. Gladden asserted she is unable to work
due to her learning disability. She advised she completed the seventh
grade and she can read and write, but her most severe problem is related
to her inability to work at a fast pace. Ms. Gladden testified she reads
and spells at the fifth grade level, and this was determined last year when
she was attempting GED testing. She noted she had no problems in
school and she was not in special education so she does not know why
she had to repeat grades. She indicated she has difficulty sustaining
The ALJ’s decision thereupon became the final decision of the Commissioner.
See Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008).
concentration, she is depressed and has daily mood changes, she has
crying spells that can last as long as a full day, and she has problems
parenting. She reported she did not remember the last time she saw a
doctor and she was not taking medications.
At the supplemental hearing, Ms. Gladden reported that, in the
four months since the previous hearing she had registered with
Vocational Rehabilitation and would soon start classes. She advised she
had stopped attending counseling at one of her previous places because
there were only male doctors. She noted difficulty getting along with
others and, as a result, she has no friends. Ms. Gladden testified she has
been charged with check fraud, but she was not guilty. She noted she has
never learned to drive, and indicated her children are doing better. Ms.
Gladden reported she is not currently on any medications and opined she
does not believe she can work because of a learning disability and her
problem getting along with coworkers. She testified she has never held
a job and she has survived through the years on child support and living
with her mother. She reported she receives $168.00 per month in ADC,
half to the state and half to her; and she receives food stamps and
(Tr. at 42-43) The ALJ next summarized medical records which predate Plaintiff’s
application for SSI benefits:
An assessment by the school psychologist on January 29, 1986 shows
the claimant had achieved a verbal IQ of 81, performance IQ of 70, and
full-scale IQ of 73 on the Wechsler Intelligence Scale for Children in
1983. On repeat testing in 1986, she obtained a verbal IQ score of 80,
performance IQ score of 69, and full-scale IQ score of 72. She had
reportedly worked at grade level in the first grade and was in a
development room until she attended regular classes in the third grade.
The psychologist reported the claimant had been functioning in the
borderline intelligence range since 1983. (Exhibit 18E)
On June 13, 2008, Mr. Gladden was evaluated by Holly Filcheck,
PhD, in an exam requested by a caseworker in connection with some
issues with Child Protective Services. She reported she had left school
in the eighth grade due to pregnancy and she had three children. On the
Wechsler Adult Intelligence Scale-III, she achieved a full-scale IQ of 68,
verbal IQ of 69, and performance IQ of 73, placing her in the borderline
range. The diagnoses were bipolar I disorder; parent-child relational
problems; borderline personality disorder; borderline intellectual
functioning; and a global assessment of functioning score of 45.6
The record shows she attended a couple of appointments and was
subsequently seen by Rebecca Schmidt, MD, on August 11, 2008 who
noted the need for ongoing outpatient medication management and
continued participation in therapy. Dr. Schmidt diagnosed major
depressive disorder; rule out borderline intellectual functioning; and a
global assessment of functioning score of 45. (Exhibit 2F)
(Tr. 43) The ALJ then summarized Plaintiff’s post-application medical records:
On November 25, 2008, Ms. Gladden was seen by another
therapist, John Erickson, CMSW, who cited tentative diagnoses of
depressive disorder, rule out borderline personality, and a global
assessment of functioning score of 60.7 (Exhibit 4F/6-12) On February
3, 2009, Ms. Gladden sought a second opinion and was seen by Phil
McLeod, PhD, who basically agreed with the earlier diagnoses from
John Erickson, CMSW. Dr. McLeod noted as well that the claimant’s
insurance carrier required an exam by a psychiatrist or psychologist. He
opined her fund of knowledge appeared to show functioning in the lower
average range rather than borderline functioning, her attention and
concentration were variable, her mood was indicative of undercurrent
The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition,
Text Revision (DSM-IV-TR) states that the GAF scale is used to report the clinician’s
opinion as to an individual’s level of functioning with regard to psychological, social,
and occupational functioning. See DSM-IV-TR 32 (4th ed. 2000). A GAF score of 41
to 50 indicates serious symptoms or serious impairment in social, occupational, or
school functioning. See id. at 34.
A GAF score of 51 through 60 is characterized by moderate symptoms or
moderate difficulty in social, occupational, or school functioning. See DSM-IV-TR
anger and some depression, but she was well-oriented to time, place, and
person and appeared to have intact recent and remote memory. (Exhibit
11F/7-9) The record shows the claimant was consistently seen by
therapists from March 23, 2009 until April 13, 2009, but then cancelled
late three times, ultimately being dismissed for lack of follow-through.
In an exam arranged by the State Agency with Joseph Rizzo, PhD,
on December 30, 2008, the claimant was again administered the
Wechsler Adult Intelligence Scale-III, which she advised she had just
been given a few weeks earlier at Capstone. She obtained a full-scale IQ
of 72, verbal IQ of 76, and performance IQ of 72, placing her in the
borderline intellectual range. On the Wide Range Achievement Test-III,
she was able to read at the fifth grade level, spell at the eighth grade
level, and handle arithmetic problems at the fourth grade level. The
results were considered valid and Ms. Gladden advised the examiner that
she had recently lost her ADC and the ADC people felt she should be
capable of finding a job. Dr. Rizzo opined the claimant seemed to be able
to understand and remember short and simple instructions and could
carry them out under structured supervision. . . .
On September 16, 2010, Ms. Gladden was evaluated by Ashley
Wheeler, MD. She described her parenting shortcomings and her
relationship issues. Fund of knowledge was below average, but she was
able to converse without difficulty. She endorsed six of nine symptoms
of depression including problems staying asleep, loss of interest,
irritability, decreased energy, fluctuating appetite, and increased
psychomotor activity. She was placed on medication. (Exhibit 18F)
(Tr. 44) The ALJ also provided a summary of medical opinions:
As for the opinion evidence, the State Agency psychological
consultant concluded that Ms. Gladden had multiple moderate
work-related limitations, but she would not be precluded from work
activity. (Exhibits 7F, 8F, 9F, 10F, 12F) Consultative examiner, Dr.
Rizzo, opined the claimant seemed to be able to understand and
remember short and simple instructions and could carry them out under
structured supervision. There was a question whether she could relate
appropriately to coworkers and supervisors, and she did not appear to be
an individual who could adapt to changes in her environment easily.
(Exhibit 5F) Treating source, Philip McLeod, PhD, opined her fund of
knowledge appeared to show functioning in the lower average range
rather than borderline functioning, her attention and concentration were
variable, and her mood was indicative of undercurrent anger and some
depression, but she was well-oriented to time, place, and person and
appeared to have intact recent and remote memory. (Exhibit 11F/7-9)
Treating source, Dr. Schmidt, advised Vocational Rehabilitation that
complex, multiple tasks were likely to be overwhelming, so the claimant
should be given single, simple tasks. (Exhibit 1F/1) . . .8
The claimant was referred by her representative for another
psychological evaluation and was seen on August 13, 2010 by Beverly
Doyle, PhD. On the Vineland Adaptive Behavior Scale in Socialization,
Communication, and Daily Living, the claimant received a standard
score of 99 in the average range. She reported being able to take care of
herself, her children, and her home and she was able to communicate
effectively, advising she had no friends and socialized only with family.
Processing speed was measured at 71, two standard deviations below
average, but commensurate with her ability level. Dr. Doyle opined she
would have difficulty completing tasks in a timely fashion if they require
visual motor processing. In a questionnaire, Dr. Doyle indicated the
claimant had no limitation in many areas of functioning including her
ability to deal with work stress (although as noted later, she based this on
information from the claimant that was not accurate); her ability to
complete a normal workday and work week without psychological
interruptions; her ability to accept instructions and respond appropriately
to criticism from supervisors or coworkers; her ability to perform
activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances; her ability to get along with coworkers or
peers without distracting them or exhibiting behavioral extremes; and her
ability to interact appropriately with the general public. She noted the
claimant did not have marked difficulties in maintaining concentration,
persistence, or pace, although she would likely have uncontrolled crying
The ALJ stated he was “giv[ing] the foregoing opinions great weight as they
are consistent with each other and with the record as a whole.” (Tr. 46)
spells when performing unskilled work during a normal workday.
(Exhibit 14F) In an addendum, Dr. Doyle reported the claimant was not
entirely honest about her past employment during the exam and that
records indicate the claimant had held a number of jobs, but most of
them had lasted for only short periods of time. She noted that past
records indicate the claimant had been unable to live independently and
she had numerous problems with upkeep of her home and care of her
children. (Exhibit 15F)9 . . . Dr. Doyle saw the claimant on only one
occasion, however, her opinion is consistent with other opinions in the
record and, although it shows the claimant performed at a slower speed
and she might have difficulty completing tasks in a timely fashion if
requiring visual motor processing, she opined Ms. Gladden did not have
marked difficulties in maintaining concentration, persistence, or pace.
At the request of the undersigned, the State Agency arranged
another psychological exam and the claimant was seen on September 23,
2010 by Julian Fabry, PhD. She was administered the Minnesota
Multiphasic Personality Inventory, but her results were considered
invalid because she over reported psychological difficulties. In
particular, she over reported somatic symptoms that are rarely described
by individuals with genuine medical problems. Her invalid profile
indicated she endorsed behaviors that suggested cognitive deficiencies
resulting in thought dysfunction and ideas of persecution and her
responses suggested that her thinking was confused and diffuse. She had
no problems with attention, but had some difficulties with concentration
and short-term memory processing. It was at this time she confabulated
and provided a profile that was unusual given her deficiencies. She was
able to accomplish three out of six simple arithmetic problems that were
verbally presented, and she had problems with subtraction,
multiplication, and making change greater than a dollar. No difficulties
were noted for addition, division, and making change for less than a
The ALJ also found “this opinion is consistent with the record as a whole and
is entitled to great weight.” (Tr. 46)
dollar. She had some slight difficulties with concept formation and her
performance in this area was marginal. (Exhibit 17F)10
The applicable standard of review is whether the Commissioner’s decision is
supported by substantial evidence on the record as a whole. See Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008). “ Substantial evidence is less than a preponderance
but is enough that a reasonable mind would find it adequate to support the
conclusion.” Id. (internal quotations and citations omitted).
Evidence that both
supports and detracts from the Commissioner’s decision should be considered, but a
final administrative decision is not subject to reversal by a reviewing court merely
because some evidence in the record may support a different conclusion. See id.
Questions of law, however, are reviewed de novo. See Olson v. Apfel, 170 F.3d 822
(8th Cir. 1999); Boock v. Shalala, 48 F.3d 348, 351 n2 (8th Cir. 1995).
A. Step-Two Determination
Plaintiff contends the ALJ first committed reversible error at step two of the
sequential evaluation process, when he found that her only severe impairments are
“borderline intellectual functioning and learning disorder, resulting in slow pace.”
(Tr. 39) Plaintiff claims she is also severely impaired by depression.
The ALJ noted that Plaintiff has been diagnosed with depression, but he
concluded there was not enough evidence to support a finding that her impairment
met the duration requirement of 20 C.F.R. § 416.909 (“Unless your impairment is
The ALJ found “this opinion is entitled to great weight with regard to the
conclusion that Ms. Gladden demonstrated some exaggeration during the testing.” (Tr.
expected to result in death, it must have lasted or must be expected to last for a
continuous period of at least 12 months.”).11 He stated:
The claimant has not alleged depression as a disabling impairment.
The record shows she has been diagnosed with depression, but she was
not prescribed any medication until September 2010. (Exhibit 18F) The
first discussion of bipolar/depression occurred on June 13, 2008 when
the global assessment of functioning score was 45 (Exhibit 3F). The
global assessment of functioning score remained at 45 on August 11,
2008 (Exhibit 1F/1); however, [the GAF score] had drastically improved
by November 25, 2008 to 60. (Exhibit 4F/6-12) She was seen by
therapists for about one month from March 23, 2009 until April 13,
2009, but then cancelled late on three occasions, [and was] ultimately
discharged as a result of her poor attendance and lack of follow-through.
(Exhibit 16F) The claimant did not seek further attention until September
2010 when she was prescribed medication (Exhibit 18F); however, she
testified at the hearing that she is not currently taking any medications.
Thus, depression has not been established as a severe impairment as
there is no 12-month period during which the record establishes
Under the Social Security Act and agency regulations, an impairment can be
“severe” even though a claimant has not received 12 months of medical treatment.
The issue to be determined at step two of the sequential evaluation process is simply
“whether the claimant has a severe medical impairment that has lasted, or is expected
to last, at least 12 months.”12 Kluesner v. Astrue, 607 F.3d 533, 537 (8th Cir. 2010).
If a claimant “do[es] not have a severe medically determinable physical or
mental impairment that meets the duration requirement in § 416.909, or a combination
of impairments that is severe and meets the duration requirement, [the Commissioner]
will find that [the claimant is] not disabled.” 20 C.F.R. § 416.920(a)(4)(ii).
The evidence shows Plaintiff was diagnosed with depression several times
between June 2008 and September 2010. On June 10, 2008, Dr. Filcheck evaluated
An impairment is “severe” if it “significantly limits [claimant’s] physical or mental
Plaintiff at Capstone Behavioral Health and diagnosed her with “bipolar I disorder,
most recent episode, depressed, moderate,” and “borderline personality disorder” (Tr.
309). On August 11, 2008, Dr. Schmidt at OMNI Behavioral Health likewise
diagnosed Plaintiff with “major depressive disorder, single episode, moderate
severity,” and “rule out borderline intellectual functioning” (Tr. 316). The state
agency’s consultative psychologist, Linda Schmechel, Ph.D., noted that Plaintiff’s
records “consistently reflect problems with depression, temper and BIF [borderline
intellectual functioning]” (Tr.380). On November 25, 2008, Mr. Erickson at Alegent
Health diagnosed Plaintiff with “depressive disorder, not otherwise specified,” and
“rule out borderline personality” (Tr. 346). Plaintiff was again diagnosed with
“depressive D/O NOS” when she saw another therapist at Alegent Health on
December 24, 2008, and February 5, 2009. (Tr. 339, 391). On December 31, 2008,
Dr. Rizzo diagnosed “rule out depressive disorder, NOS,” and “borderline mental
retardation” (Tr. 353). On February 3, 2009, Dr. McLeod saw Plaintiff at Alegent
Health and diagnosed her with “depressive disorder, not otherwise specified,” and
“dependent personality” (Tr. 396). In a disability report prepared on February 18,
2009, Plaintiff indicated she was taking Lexapro for treatment of depression and
anxiety, but that it was causing her to sleep a lot; the prescription was written by
James Sullivan, M.D., at Alegent Health (Tr. 249). In another disability report
prepared on March 25, 2009, Plaintiff indicated that Dr. Sullivan had changed her
prescription to Cymbalta, but that this antidepressant was causing weight gain (Tr.
255). On August 13, 2010, Dr. Doyle diagnosed Plaintiff with “bipolar disorder—
most recent episode—depressed” and “borderline mental retardation” (Tr. 409). Dr.
Doyle indicated that Plaintiff’s depression was characterized by appetite disturbance
with change in weight, sleep disturbance, decreased energy, and feelings of guilt or
worthlessness (Tr. 415). She opined that Plaintiff had “no limitations” in nearly all
areas of work functioning, except that she was likely to have uncontrolled crying
spells (Tr. 410-412). On September 16, 2010, Plaintiff was evaluated by Ashley
Wheeler, M.D., in the psychiatry department of the Nebraska Medical Center, and was
diagnosed with “mood disorder, not otherwise specified,” “rule out major depressive
disorder,” “rule out bipolar disorder,” “possible mild mental retardation,” and “rule
out any learning disabilities” (Tr. 444). Plaintiff was prescribed Celexa for treatment
of her depression (Tr. 444). Finally, Dr. Fabry noted during a mental status exam on
September 23, 2010, that Plaintiff had difficulties with concentration and he
diagnosed her with “depression (NOS),” “somatization disorder,” and “dependent
personality disorder” (Tr. 436).
ability to do basic work activities.” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010)
(quoting 20 C.F.R. § 416.920(c)).
Thus, the ALJ’s conclusion that “depression has not been established as a
severe impairment as there is no 12-month period during which the record establishes
treatment” is wrong as a matter of law. See Collins v. Astrue, 648 F.3d 869, 871 (8th
Cir. 2011) (“An ALJ commits legal error if the ALJ fails to correctly follow the
sequential evaluation process.”). The error was harmless, however, because the ALJ
made a finding that Plaintiff has other mental impairments which are severe (i.e.,
“borderline intellectual functioning and learning disorder”) and continued with the
sequential analysis, giving due consideration to all of Plaintiff’s impairments.
“The failure of an ALJ to find an impairment to be severe at Step 2 . . . 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.” Matlock ex rel. D.S. v. Astrue, No. 4:11CV1322
FRB, 2012 WL 4109292, *11 (E.D.Mo. Sept. 19, 2012) (citing Jackson ex rel. K.J.
v. Astrue, 734 F.Supp.2d 1343, 1361 (N.D.Ga. 2010)). See also Spainhour v. Astrue,
No. 11-1056-SSA-CV-W-MJW, 2012 WL 5362232, *3 (W.D.Mo. Oct. 30, 2012)
(“[A]ny error, with regard to which of [plaintiff’s] impairments are severe and not
severe, is harmless because the ALJ considered all of plaintiff’s severe and not severe
impairments in determining his work limitations. The resulting RFC determination by
the ALJ would not be different even if the ALJ found plaintiff’s shoulder pain and
depression to be severe.”); Johnson v. Commissioner of Social Sec., Civil No. 11-1268
(JRT/SER), 2012 WL 4328413, *21 (D.Minn. July 11, 2012) (“[T]he failure to find
additional impairments at Step Two does not constitute reversible error when an ALJ
considers all of a claimant’s impairments in the remaining steps of a disability
determination.”) (citing numerous cases), report and recommendation adopted, 2012
WL 4238389 (D.Minn. Sept. 20, 2012).
Even if the ALJ had designated Plaintiff’s depression as a severe impairment
at step two, there is no evidence to support a finding at step three that the depression,
in combination with Plaintiff’s other impairments, meets the requirements of listing
12.04.13 Nor did the “non-severe” designation affect the outcome of steps four and
five in the disability analysis. In making an RFC assessment, the ALJ was required
to “consider all of [Plaintiff’s] medically determinable impairments . . ., including
[her] medically determinable impairments that are not ‘severe[.]’” 20 C.F.R.
§ 416.945(a)(2). The ALJ’s decision represents there was compliance with this
requirement (Tr. 38), and in an extended discussion regarding the ALJ’s assessment
of Plaintiff’s residual functional capacity the ALJ mentioned depression several times
(Tr. 42-47). In particular, the ALJ referenced Plaintiff’s testimony and report to Dr.
Doyle about mood changes and crying spells (Tr. 42, 46) and made allowance for this
in the hypothetical question he presented to the vocational expert, stating that the
claimant should work “in the type of an area where . . . if she wanted to cry, . . . she
Paragraph B of the listing requires “[r]epeated episodes of decompensation,
each of extended duration,” or else that the disorder result in at least two of the
following: (1) “[m]arked restriction of activities of daily living”; (2) “[m]arked
difficulties in maintaining social functioning”; or (3) “[m]arked difficulties in
maintaining concentration, persistence, or pace.” 20 C.F.R. pt. 404, subpt. P, app. 1
§ 12.04(B). There are no episodes of decompensation in Plaintiff’s medical history,
nor are there any medical opinions indicating she has any “marked” limitations.
In completing a psychiatric review technique form (PRTF) on January 7, 2009,
Dr. Schmechel indicated that Plaintiff’s mental impairments included “BIF [borderline
intellectual functioning], which is classified as an organic mental disorder (listing
12.02); two affective disorders (listing 12.04), “BAD [bipolar affective disorder]” and
“MDD [major depressive disorder],” “r/o post traumatic stress reaction,” an anxietyrelated disorder (listing 12.06); and “borderline personality disorder” (listing 12.08).
Dr. Schmechel opined that because of these mental disorders Plaintiff would have
“moderate” difficulties in maintaining social functioning and in maintaining
concentration, persistence, or pace (Tr. 371, 378). The PRTF was affirmed as written
by another state agency consultative psychologist, Philip Rosenshield, Ph.D., on
January 7, 2009 (Tr. 383-387).
could cry for a while.”14 (Tr. 61) Under these circumstances, no purpose would be
served by remanding the case to the ALJ for another step-two determination regarding
the severity of Plaintiff’s depression.
B. Step-Three Determination
Plaintiff argues the ALJ next erred at the third step of the sequential evaluation
process, by determining that she did not meet the requirements of listing § 12.05C
for mental retardation. “Mental retardation refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning 15 initially manifested
during the developmental period; i.e., the evidence demonstrates or supports onset of
the impairments before age 22,” and is considered disabling if the requirements of
paragraphs A, B, C, or D are satisfied. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05.
Paragraph C requires “[a] valid Verbal, Performance, or full scale I.Q. of 60 through
70 and a physical or other mental impairment imposing an additional and significant
work-related limitation of function[.]” Id. “In sum, to meet Listing 12.05C, a claimant
must show: (1) a valid verbal, performance, or full scale IQ of 60 through 70; (2) an
onset of the impairment before age 22; and (3) a physical or other mental impairment
imposing an additional and significant work-related limitation of function.” Maresh
v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006).
Although the ALJ’s written decision does not include this particular
limitation in the RFC assessment, “an arguable deficiency in opinion-writing
technique does not require [the court] to set aside an administrative finding when that
deficiency had no bearing on the outcome.” Buckner v. Astrue, 646 F.3d 549, 559
(8th Cir. 2011) (quoting Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992)).
“Adaptive functioning refers to how effectively individuals cope with
common life demands and how well they meet the standards of personal independence
expected of one in their particular age group, sociocultural background, and
community setting.” DSM-IV-TR at 42.
The record shows Plaintiff has scored 70 or below on several intelligence tests:
She achieved a verbal IQ of 81, performance IQ of 70, and full-scale IQ of 73 on the
Weschler Intelligence Scale for Children administered by the Omaha Public School
District in 1983(Tr. 283); a verbal IQ score of 80, performance IQ score of 69, and
full-scale IQ score of 72 in a repeat test administered by the school district in 1986
(Tr. 285); a WAISC-III full-scale IQ score of 68, verbal IQ score of 69, and
performance IQ score of 73 in a test administered by Dr. Fillcheck in June 2008 (Tr.
327); and a WAISC-III full-scale IQ score of 72, verbal IQ score of 76, and
performance IQ score of 72 in a repeat test administered by Dr. Rizzo in December
2008 (Tr. 351).16
The first two intelligence tests were administered when Plaintiff was between
5 and 8 years old, but the mere fact that her performance IQ was measured at 69 or 70
at a young age is not determinative (even assuming the existence of another mental
or physical impairment imposing an additional and significant functional limitation).
For example, in Cheatum v. Astrue, 388 Fed. Appx. 574, 2010 WL 2982819 (8th Cir.
2010) (unpublished opinion), the claimant had a verbal IQ score of 69 at age fifteen
and suffered from the additional impairment of lupus. “The ALJ denied benefits,
however, reasoning that [the claimant] failed to establish deficits in adaptive
functioning initially manifested before age 22 as is required by the introductory
paragraph of Listing 12.05.” Id. at 576. While conceding that the claimant met the
3-part test outlined in Maresh, the Eighth Circuit pointed out that it had expressly
stated in Maresh that “the requirements in the introductory paragraph of listing 12.05
are mandatory,” and that “[t]hose requirements clearly include demonstrating that the
claimant suffered ‘deficits in adaptive functioning’ and that those deficits ‘initially
manifest during the developmental period [before age 22].’” Id.
Dr. Schmechel observed that the most recent test scores might not be valid
because of a “practice effect.” (Tr. 380)
In the present case, the ALJ found no evidence that Plaintiff had exhibited
deficits in adaptive functioning before age 22. He stated:
The undersigned has considered the findings of the Court noted in
Maresh v. Barnhart, 438 F.3d 897 (8th Cir. 2006), that the claimant’s
mental retardation had manifested itself prior to age 22 . . . due to “his
exhibition of deficits in adaptive functioning at a young age”, there is no
indication in the instant case that Ms. Gladden exhibited deficits in
adaptive functioning at a young age. The record shows intelligence (IQ)
scores between 60 and 70, but the diagnosis has always been borderline
intellectual functioning and the school records show she was in special
education only in the second grade, moving to regular classes in the third
grade. The school psychologist reported she had been mainstreamed 98
percent of the school day and was making average to low average
progress in academic areas. She reported she quit school after the
seventh grade, but this was due to a pregnancy, and she testified at the
hearing that she can read and write. (Exhibit 18E/6) School records show
Ms. Gladden attended school until at least the ninth grade where she
earned as passing grade of 3 in the fourth quarter in general math, a 3 in
ROTC, a 2 in home economics, a 2 in chorus, a 3 in general English, and
a 2 in basic reading. (Exhibit 18E/8)
During an assessment at Friendship Program, Inc., in September 2011, Plaintiff
reported that “school was difficult for her and she left due to having some struggles
with her peers” (Tr. 27), but she previously reported that she left school due to
pregnancy (Tr. 304). Plaintiff also references a notation in the January 1986 school
assessment about “snide remarks” being made by her classmates, but the full notation
states: “School personnel indicated Francine maintains a good attitude and often
appears happy in spite of snide remarks by some classmates.” (Tr. 285) The report
also stated that Plaintiff “was reported to be working on grade level last year as a first
grader,” that as a second grader she was “mainstreamed 98% of the school day . . .
with success,” and that during the 1986-87 school year she would be place in regular
third grade “with continued mainstreaming and transition out of special education.”
(Tr. 285-286) Plaintiff testified that she thought she had to repeat grades (Tr. 76), but
the school records indicate she completed ninth grade on schedule in 1993 (Tr. 288).
Finally, Plaintiff states that she has never had any meaningful employment, but there
is no evidence from which it may be concluded that her low IQ prevented her from
getting or keeping a job. In short, the record fails to show that Plaintiff suffered
deficits in adaptive functioning before age 22.
The ALJ also found that “the ‘paragraph C’ criteria of listing 12.05 are not met
because the claimant does not have 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.” (Tr. 41) The ALJ qualified this
finding by stating that “[t]he claimant does have intelligence test scores within the
range of 60 to 70 (Exhibits 18E, 3F); however, the additional impairment, i.e., her
learning disorder has not imposed ‘significant’ work-related limitation of function as
required by the Listing.” (Tr. 41) Specifically, the ALJ determined there is no
“significant” limitation because “despite a learning disability, the claimant can
function in a work setting where she can perform unskilled tasks.” (Tr. 41)
“The second component of listing 12.05C does not require that the additional
impairment be disabling in itself.” Box v. Shalala, 52 F.3d 168, 170 (8th Cir. 1995)
(citing Warren v. Shalala, 29 F.3d 1287, 1291 (8th Cir. 1994)). The Eighth Circuit
stated in Box that the requirement “is satisfied when the effect of an additional
impairment on the claimant’s ability to perform work is ‘more than slight or
minimal,’” id. (quoting Cook v. Bowen, 797 F.2d 687, 690 (8th Cir. 1986)), but the
Commissioner has since modified the introductory paragraph of listing 12.05C to
clarify that the additional physical or mental impairment must be “severe.” See 65
Fed.Reg. 50,746 at 50,754 (Aug. 21, 2000) (“In final listing 12.05C . . . we used the
word ‘an’ before the word ‘additional’ to clarify that the additional impairment must
be ‘severe’ in order to establish ‘an additional and significant work-related limitation
of function.”); id. at 50772 (“We have always intended the phrase [significant
work-related limitation of function] to mean that the other impairment is a ‘severe’
impairment, as defined in §§ 404.1520(c) and 416.920(c). . .. Therefore, . . . we
revised the fourth paragraph of final 12.00A, which explains how we assess the
functional limitations of an additional impairment under listing 12.05C.”).
In the present case, the ALJ made a step-two finding that Plaintiff has two
severe impairments: borderline intellectual functioning and a learning disability.17
The second prong of listing 12.05C is therefore satisfied.
Although the ALJ erred as a matter of law in finding that Plaintiff does not have
an additional “significant” impairment, his other step-three finding that Plaintiff’s
mental retardation did not manifest itself before age 22 is not contrary to the evidence.
Thus, the ALJ’s conclusion that Plaintiff does not have an impairment or combination
of impairments that meets or medically equals one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1, must stand.
C. Step-Five Determination
Finally, Plaintiff argues the ALJ made an improper assessment of her residual
functional capacity (RFC), which was used at step five of the sequential evaluation
process to conclude that she is not disabled.18 With respect to Plaintiff’s mental
abilities, the ALJ found that she “would be limited to unskilled work that does not
require her to carry out detailed instructions[,] . . . would have moderate limitation in
getting along with peers and supervisors, and would be precluded from dealing with
the general public.” (Tr. 42) Plaintiff complains that “[o]ne nonexertional impairment
that the ALJ does not list is a limitation of pace.” (Filing 18 at 16) She also claims
a need for “additional supervision and repeated instructions.” (Filing 18 at 17)
As discussed above, it is also possible that Plaintiff’s depression is a severe
The ALJ determined at step four that Plaintiff has no past relevant work; thus,
the disability determination proceeded to step five.
The ALJ made an express finding at step three that “[w]ith regard to
concentration, persistence or pace, the claimant has moderate difficulties.” (Tr. 40)
In making this finding, the ALJ commented: “Throughout the record, the evidence
shows the claimant [h]as difficulties in this area, although, not of the severity that
would preclude simple work. (Exhibit 5F, 11F/7-9, 14F).” (Tr. 40) The state agency’s
consultative psychologist also found in a PRTF that Plaintiff would be moderately
limited in maintaining concentration, persistence, or pace (Tr. 363-364, 378).
The ALJ’s RFC assessment incorporated this limitation by restricting Plaintiff
to unskilled work that does not require her to carry out detailed instructions. See, e.g.,
Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001) (finding that “the ALJ’s
hypothetical concerning someone who is capable of doing simple, repetitive, routine
tasks adequately captures [the claimant’s] deficiencies in concentration, persistence
or pace” attributable to his borderline intellectual functioning); Brachtel v. Apfel, 132
F.3d 417, 421 (8th Cir.1997) (holding that hypothetical including the “ability to do
only simple routine repetitive work, which does not require close attention to detail”
sufficiently describes deficiencies of concentration, persistence or pace). Although
not a limitation that is included in the RFC assessment contained in the ALJ’s written
decision, the ALJ also asked the vocational expert (VE) in considering available
employment opportunities to assume that the hypothetical claimant “has a limited
[ability], probably at the moderate level, to focus and concentrate for extended
periods.” (Tr. 60) The hypothetical adequately accounted for all of Plaintiff’s mental
impairments as found by the ALJ. See Buckner v. Astrue, 646 F.3d 549, 560-61 (8th
Cir. 2011) (hypothetical to VE must capture concrete consequences of claimant’s
Plaintiff’s representative posited an alternative hypothetical in which the VE
was asked to “assume that the claimant’s work pace would be about 50 percent of a
competitive work pace.” (Tr. 60) Not surprisingly, the VE replied that such an
individual “wouldn’t be able to . . . do competitive work.” (Tr. 60). This hypothetical
apparently was premised on a report prepared by Colleen Wessel, an evaluator for
WESCO Industries, which indicated that Plaintiff’s highest production pace during
testing was 36.6 percent (Tr. 266-69). The ALJ discounted this report, and rejected
the alternative hypothetical, stating:
On August 18, 2010, upon referral by her representative, the
claimant was evaluated at WESCO Industries by Colleen Wessel to
determine her functioning in a work-type setting. She was given several
tasks that were simple and unskilled, but the greatest production rate was
36.6 percent. She often had to be redirected, leading the evaluator to
opine she would have difficulty maintaining an unskilled job due to her
low quantity of work, her numerous health issues, and the need for
additional supervision and repeated instructions. (Exhibit 13E) While the
undersigned has considered this opinion from a source who is “not an
acceptable medical source” and given it some weight pursuant to Social
Security Ruling 06-3p, it is noted that Ms. Wessel has expressed an
opinion on an issue reserved for the Commissioner. Indeed, the testing
shows Ms. Gladden produced a low quantity of work and her production
pace at the highest was 36.6 percent. Despite this, however, the
undersigned is not persuaded by the overall record that the claimant
would function at this rate of production on a consistent basis. Since the
representative arranged the exam, it is reasonable to conclude that the
claimant would be aware that a less than favorable outcome would
bolster her claim of disability. While the examiner was of the opinion the
claimant gave full effort on the testing, the undersigned is simply not
convinced based on the overall record that Ms. Gladden could not
produce work at a greater pace of production.
The representative posed a hypothetical question to the vocational
expert, asking if an individual whose work pace was at the 50 percent
range, would be affected in her ability to do anything, to which the
expert answered “yes.” The undersigned does not find a medical opinion
in the record that Ms. Gladden would be restricted to only a 50 percent
work pace. Dr. Doyle noted she had a processing speed of 71, two
standard deviations below average, but this does not appear to the
undersigned to equate to a 50 percent work pace. Even her treating
source, Dr. Schmidt, opined she could do single, simple tasks. (Exhibit
Essentially, the ALJ determined that Plaintiff’s test results, like her testimony,
were not credible and were inconsistent with medical evidence in the record. As set
forth previously, the ALJ discussed the fact that Dr. Fabry, who examined Plaintiff
in September 2010 at the ALJ’s direction, found that her Minnesota Multiphasic
Personality Inventory results were invalid because she over reported psychological
difficulties. In addition, Dr. Fabry noted “there was some inconsistency in her
responding truthfully.” (Tr. 436) The ALJ also pointed out that “Dr. Filcheck noted
on June 13, 2008 that several tests were invalid due to the claimant’s elevated
responses, but opined this was a ‘cry for help.’ (Exhibit 3F)” (Tr. 45) Considering this
and other evidence indicating Plaintiff’s lack of credibility, the ALJ’s decision to give
little weight to the WESCO work evaluation was appropriate. “Where adequately
explained and supported, credibility findings are for the ALJ to make.” Lowe v. Apfel,
226 F.3d 969, 972 (8th Cir. 2000).
The ALJ erred as a matter of law at step two by finding Plaintiff’s depression
“non-severe” because it was not treated for a period of 12 months, but such error was
harmless. The ALJ also erred as a matter of law at step three by finding Plaintiff does
not satisfy paragraph C of listing 12.05 for mental retardation, but he properly
determined there was no showing of deficits in adaptive functioning before age 22;
thus, his conclusion that Plaintiff does not meeting listing 12.05C is affirmed. The
ALJ’s RFC assessment and step-five finding of “no disability” are supported by
substantial evidence on the record as a whole and are not contrary to law.
IT IS ORDERED that the decision of the Commissioner is affirmed pursuant
to sentence four of 42 U.S.C. § 405(g). Final judgment will be entered by separate
January 14, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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