Albright v. Commissioner of Social Security Administration
Filing
17
Memorandum Opinion and Order. The Commissioner's final decision is affirmed. Magistrate Judge Nancy A. Vecchiarelli on 10/12/2011. (G,W)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
TERRA A. ALBRIGHT,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
CASE NO. 5:10-cv-2274
MAGISTRATE JUDGE
VECCHIARELLI
MEMORANDUM OPINION AND
ORDER
Plaintiff, Terra A. Albright (“Plaintiff”), challenges the final decision of Defendant,
Michael J. Astrue, Commissioner of Social Security (“the Commissioner”), denying
Plaintiff’s applications for Supplemental Security Income (“SSI”) under Title XVI of the
Social Security Act, 42 U.S.C. § 1381 et seq. (“the Act”). This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States
Magistrate Judge pursuant to the consent of the parties entered under the authority of
28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner’s final
decision is AFFIRMED.
I.
PROCEDURAL HISTORY
On January 26, 2006, Plaintiff filed an application for SSI that alleged a disability
onset date of January 1, 1993. (Tr. 10.) The application was denied initially and upon
reconsideration, so Plaintiff requested a hearing before an administrative law judge
(“ALJ”). (Tr. 10.) On March 20, 2009, an ALJ held Plaintiff’s hearing. (Tr. 10.) Plaintiff
appeared at her hearing, was represented by an attorney, and testified. (Tr. 10.) A
vocational expert (“VE”) also appeared and testified. (Tr. 10.)
On April 29, 2009, the ALJ found Plaintiff not disabled.1 (Tr. 21.) On August 9,
2010, the Appeals Council declined to review the ALJ’s decision, so the ALJ’s decision
became the Commissioner’s final decision. (Tr. 1.) On October 7, 2010, Plaintiff timely
filed her complaint to challenge the Commissioner’s final decision. (Doc. No. 1.) On
February 4, 2011, Plaintiff filed her Brief on the Merits (Doc. No. 12), and on April 6,
2011, the Commissioner filed his Brief on the Merits (Doc. No. 14). Plaintiff did not file
a Reply Brief.
Plaintiff asserts six assignments of error, but they raise two main issues: (1)
whether the ALJ properly determined that Plaintiff’s impairments did not meet or
medically equaled listing 12.05 from 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the
Listings”); and (2) whether the ALJ’s hypothetical to the VE accurately portrayed
Plaintiff’s limitations.
1
Plaintiff had filed a prior application for SSI on July 30, 2003, that alleged a
disability onset date of January 15, 2003. (Tr. 10.) The prior application was
denied initially on December 8, 2003, and upon reconsideration on May 24,
2004. (Tr. 10.) Plaintiff never appealed; therefore, the decision became the
Commissioner’s final decision through May 24, 2004. (Tr. 10.) The ALJ found
that good cause did not exist to reopen the prior case. (Tr. 10.)
2
II.
A.
EVIDENCE
Personal and Vocational Evidence
Plaintiff was 15 years old on her alleged disability onset date and 28 years old on
the date she filed her application for SSI. (See Tr. 10, 20.) She has a limited education
and is able to communicate in English. (Tr. 20.) She does not have past relevant work
experience. (Tr. 20.)
B.
Medical Evidence
Plaintiff underwent two intelligence tests as a child while in school. (Tr. 134-37,
141-42.) On April 16, 1985, when Plaintiff was seven years old, Plaintiff received a
Verbal Intelligence score of 85, a Performance Intelligence score of 75, and a Full
Scale Intelligence score of 79. (Tr. 141.) According to the administering school
psychologist, the results indicated that Plaintiff was “functioning in the Borderline range
of capabilities.” (Tr. 142.) On July 27, 1993, when Plaintiff was sixteen years old,
Plaintiff received a Verbal Intelligence score of 73, a Performance Intelligence score of
55, and a Full Scale Intelligence score of 62. (Tr. 135.) The administering school
psychologist indicated that Plaintiff’s scores showed that Plaintiff functioned in the
“Mentally Deficient range.” (Tr. 135.) The school psychologist noted that Plaintiff was
“failing nearly all subjects,” but received little academic support at home, did not appear
to have any clear goals, and had a history of serious attendance problems. (Tr. 134,
136.) However, on August 25, 1993, Plaintiff passed the writing, reading, and
citizenship portions of the ninth grade proficiency test administered by the state of Ohio
(Tr. 132); and a review of Plaintiff’s high school transcript reveals that Plaintiff had
3
never been placed in special education classes (Tr. 131).
On January 27, 2007, consultative psychologist Dr. Frederick G. Leidal, Psy.D.,
performed an Adult Clinical Interview and Mental Status Examination of Plaintiff upon
the request of the Bureau of Disability Determination. (Tr. 214–20). Dr. Leidal reported
the following. Plaintiff reported that she had a ninth grade education and had a history
of placement in special education classes, but had never been diagnosed with
a specific learning disorder. (Tr. 214.) Plaintiff expressed a belief that she was entitled
to disability benefits because of her learning disabilities and problems with her back.
(Tr. 215, 219.) Plaintiff further reported that she had not attempted to work since she
was 16 years old and did not feel that she should have to work for 6 or 7 dollars an
hour. (Tr. 215, 219.)
Plaintiff reported that she could perform activities of daily living, although she
performed cooking and cleaning slowly and required breaks because she became tired
and her arms would begin to hurt. (Tr. 215.) Plaintiff’s ability to manage money, such
as counting change and paying bills, appeared poor. (Tr. 215.) Dr. Leidal concluded
that “[t]he level of assistance [Plaintiff] needed in planning or completing normal
activities of daily living appears minimal at this time as the claimant seems to have
functional adaptive skills.” (Tr. 215.)
Upon intelligence testing, Plaintiff had a Verbal Intelligence score of 74,
Performance Intelligence score of 68, and Full Scale Intelligence score of 69. (Tr. 218.)
Dr. Leidal reported that Plaintiff’s test results “appear[ed] to represent a low estimate of
[Plaintiff’s] cognitive ability due to low effort and motivation.” (Tr. 217.) Dr. Leidal
continued that Plaintiff “tended to dawdle and procrastinate . . . and made very
4
deliberate and slow attempts . . . resulting in lower than expected scores.” (Tr. 217.)
Therefore, although the test results showed intellectual functioning in the “Mild Mentally
Retarded Range of Intelligence,” Dr. Leidal concluded that Plaintiff’s intelligence
“appear[ed] to be in the borderline range of intellectual functioning.” (Tr. 217, 219.)
Dr. Leidal indicated that Plaintiff suffered bipolar disorder and obsessivecompulsive disorder, as well as a personality disorder with borderline and dependant
traits; had borderline intellectual functioning, and assigned Plaintiff a Global
Assessment of Functioning (“GAF”) score of 54.2
Dr. Leidal opined as to Plaintiff’s functional capacity as follows. Plaintiff was
markedly impaired in her ability to manage money or benefits. (Tr. 220.) Plaintiff was
moderately impaired in abilities to do the following: relate to others in an appropriate
manner; accept instructions or criticism and respond to instruction in a work setting;
respond and adapt to changes with reasonable flexibility; work near others without
becoming overly distracted; sustain an ordinary routine without supervision or
prompting; maintain pace in completing tasks; understand, comprehend, and carry out
more complex levels of instruction and direction; perform activities within a schedule
and maintain attendance; and maintain employment, adapt to the work environment,
and tolerate stressors of the work environment. (Tr. 219-20.) Plaintiff was slightly
impaired in her abilities to recall and remember simple tasks or learn from instructions;
2
A GAF score between 51 and 60 indicates moderate symptoms or moderate
difficulty in social, occupational, or school functioning. A person who scores in
this range may have a flat affect, occasional panic attacks, few friends, or
conflicts with peers and co-workers. See Diagnostic and Statistical Manual of
Mental Disorders 34 (American Psychiatric Association, 4th ed. rev., 2000).
5
persist in completing routine daily tasks or work-related tasks; and understand and
carry out more detailed instructions. (Tr. 220.) Plaintiff was otherwise not impaired,
including, “from a psychological perspective . . . [the] ability to obtain some kind of
productive employment, without assistance.” (Tr. 220.)
On January 29, 2007, state agency reviewing psychologist Dr. Marianne Collins,
Ph.D., authored a Psychiatric Review Technique form and assessed Plaintiff’s mental
residual functional capacity (“RFC”). (Tr. 2224-41.) In her Psychiatric Review, Dr.
Collins reviewed Plaintiff’s records under Listings 12.04, 12.05, 12.06, and 12.08 and
found that Plaintiff was moderately limited in her abilities to maintain social functioning
and maintain concentration, persistence, or pace; mildly limited in performing activities
of daily living; and had no episodes of decompensation. (Tr. 234.)
Dr. Collins assessed Plaintiff’s mental RFC as follows. Plaintiff was markedly
limited in her abilities to understand, remember, and carry out detailed instructions. (Tr.
239.) Plaintiff was moderately limited in her abilities to do the following: maintain
attention and concentration for extended periods; perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances; sustain an
ordinary routine without special supervision; work in coordination with or proximity to
others without being distracted by them; complete a normal workday and workweek
without interruptions from psychologically based symptoms and perform at a consistent
pace without an unreasonable number and length of rest periods; interact appropriately
with the general public; accept instructions and respond appropriately to criticism from
supervisors; get along with coworkers or peers without distracting them or exhibiting
behavioral extremes; respond appropriately to changes in the work setting; and travel in
6
unfamiliar places or use public transportation. (Tr. 239-40.) Plaintiff was otherwise not
significantly limited. (Tr. 239-40.)
Dr. Collins noted that Plaintiff had not been in special education classes. (Tr.
241.) Dr. Collins gave Dr. Leidal’s opinions greater weight than Plaintiff’s subjective
statements because Plaintiff’s subjective statements were not supported by the record
evidence. (Tr. 241.) Dr. Collins concluded that Plaintiff “is capable of performing
simple routine tasks that she is motivated to perform, in settings [with] few changes,
occasional interaction with others, and would do better with tasks that do not require
strict time lines or productivity standards.” (Tr. 241.)
On August 28, 2007, Plaintiff was evaluated by psychologist Lynn Luna Jones,
Ph.D., to determine Plaintiff’s ability to care for her children after her children were
removed from her care because of her inability to adequately control them. (Tr. 25573.) Dr. Jones indicated that Plaintiff had cancelled four prior appointments and had
declined to reschedule appointments on three occasions. (Tr. 255.) Dr. Jones
indicated that Plaintiff reported the following.
Plaintiff dropped out of school in the tenth grade because she did not like school.
(Tr. 258.) She did not have a history of any learning disabilities. (Tr. 258.) She had
tubes placed in her ears when she was 4 years old; underwent surgery on her back for
scoliosis when she was 17 years old; suffered chronic ear infections for the past four
years; and underwent a hernia operation on August 27, 2007. (Tr. 260.) She had no
other medical problems. (Tr. 260.) Although she had been to the emergency room on
October 30, 2000, and December 22, 2004, those visits were related to hand and arm
injuries caused by her children. (Tr. 260.) She had been receiving outpatient treatment
7
at Portage Path Behavioral Health in 2001. (Tr. 260.)
Dr. Jones noted that records showed Plaintiff attended several parenting classes
at Akron Pregnancy Care, but after blurting out in one class, “this is fucking boring,” she
began leaving classes frequently. (Tr. 260.) Dr. Jones assessed Plaintiff with a GAF
score of 45.3
Dr. Jones summarized that Plaintiff “is a dependent individual who urgently
seeks another relationship as a source of support when one close relationship ends.”
(Tr. 271.) Dr. Jones recommended that Plaintiff’s children not be returned to Plaintiff
because Plaintiff “is self-absorbed, immature, and . . . displays a permissive parenting
style which has led to her children’s failure to attend school, frequent physical
altercations, and dangerous behaviors.” (Tr. 272.)
On February 25, 2009, staff from Portage Path Behavioral Health4 authored a
letter to Plaintiff’s counsel and summarized Plaintiff’s treatment records from May 23,
2007, to the present as follows. (Tr. 304.) Plaintiff suffered a mood disorder, learning
disorder, obsessive-compulsive disorder, and borderline intellectual functioning. (Tr.
304.) Plaintiff denied depressive symptoms, and her obsessive-compulsive disorder
3
A GAF score between 41 and 50 indicates serious symptoms or a serious
impairment in social, occupational, or school functioning. A person who scores
in this range may have suicidal ideation, severe obsessional rituals, no friends,
and may be unable to keep a job. See Diagnostic and Statistical Manual of
Mental Disorders, supra note 1.
4
The Portage Path Behavioral Health staff who authored the February 25, 2009,
letter are Ms. Jill Lowery, a licensed professional clinical counselor, and Ms.
Donna Laughlin, a clinical nurse specialist. (Tr. 304.) Plaintiff appears to have
been initially attended to by Dr. Manzoor E. Elahi, M.D., and subsequently
attended to by Ms. Laughlin and another clinical nurse specialist. (See Tr. 30625.)
8
was controlled with medication. (Tr. 304.)
C.
Hearing Testimony
1.
Plaintiff’s Testimony
Plaintiff testified at her hearing as follows. She quit school after the ninth grade
because she struggled in school. (Tr. 29.) She was never in special education classes.
(Tr. 29.) She stopped working her part-time jobs as a teenager because she underwent
back surgery to correct her scoliosis. (Tr. 32.) She does not have a primary care
doctor. (Tr. 33.) She sometimes takes Vicodin or Ultram to relieve her back, which
she obtains from the emergency room where she presents for her back pain once or
twice a month. (Tr. 33.)
Plaintiff can stand for a couple of minutes at a time before she needs to sit down
(Tr. 34), and can sit in one place for “a while” (Tr. 35). She usually walks only as far as
the bus stop, which is a block away from her home. (Tr. 34.) She is tired and lies down
often during the day because she is depressed. (Tr. 36-37.) She takes three
medications prescribed by her psychiatrist but they do not help her, as she continues to
suffer anxiety, depression, and obsessive-compulsive behavior. (Tr. 36, 39-40.) She
constantly washes her hands and checks the washer, dryer, coffee pot, stove, and
locks on her doors. (Tr. 36, 39-40.) If she touches such things as chicken or cleaning
products, she is compelled to take a shower immediately afterward. (Tr. 36, 39-40.)
Plaintiff leaves her home three times a week. (Tr. 37.) She does not like to go
outside or leave her home, and when she does leave home her husband or mother
accompanies her. (Tr. 38, 40-41.) She is able to speak and get along with her
9
husband, mother, and siblings but she has no friends. (Tr. 38.) She has “a hard time”
with money; for example, if she and her husband go to the store, her mother has to
figure out how much items will cost and then give that amount of money to them. (Tr.
42.)
2.
The VE’s Testimony
The ALJ posed the following hypothetical person to the VE:
I’d like you to assume a younger individual under the age of 50 with a ninth
grade education. This person would be limited to light work, which requires
lifting and carrying 20 pounds occasionally, 10 pounds frequently. Standing
and walking a total of about six hours in eight. Or sitting about six hours in
eight. This person would need to change position for a couple minutes every
hour . . . . This person should be limited to simple, routine tasks. They
should involve as little reading and math as possible but reading would be
limited to the grade equivalent of the fifth grade. Math would be limited to
the fourth grade. And there should be superficial interaction with coworkers, supervisors and the general public. By that I mean no negotiation,
arbitration, confrontation, negotiation over the division of duties, that sort of
thing. And then there should be no strict production quotas or vigorous
production pace.
(Tr. 45.) The VE began to testify that such a person could perform work as a
housekeeping cleaner, but the ALJ interrupted and indicated that he wanted to include
in his hypothetical an additional limitation that hypothetical person should avoid tasks
involving housecleaning and dealing with raw meat. (Tr. 46.) The VE testified that such
a hypothetical person could perform work as a retail trade marker (for which there were
approximately 900 jobs locally, 6,500 jobs in Ohio, and 180,000 jobs nationally), food
service worker (for which there were approximately 900 jobs locally, 4,500 jobs in Ohio,
and 125,000 jobs nationally), and mail clerk (for which there were 900 jobs locally,
4,500 jobs in Ohio, and 100,000 jobs nationally). (Tr. 46.) The VE further testified
upon the ALJ’s questioning that the hypothetical person would not be able to perform
10
any work if she needed to lie down outside of customary work breaks. (Tr. 47-48.)
Plaintiff’s attorney posed the following hypothetical person to the VE:
[L]et’s start with the Judge’s hypothetical, I’ll make some changes . . . . The
younger person, ninth grade education, however. . . the person is functionally
illiterate, no jobs involving reading anything beyond the fifth grade level. No
math beyond the third grade level. Light work, need to change positions.
And I want to also throw in the other restriction he stated about simple,
routine tasks, superficial contact with others. But I want to change the one
about, the last one, no jobs requiring housecleaning and no handling of raw
meat. I’d change that to no jobs handling food at all.
(Tr. 48.) The VE testified that such a hypothetical person could not work as a food
service worker. (Tr. 48.) The VE then confirmed upon Plaintiff’s attorney’s questioning
that the hypothetical person would not be able to perform any work if she needed to lie
down outside of customary work breaks. (Tr. 48.) Plaintiff’s attorney then posed a
follow-up hypothetical as follows:
Let’s take the lying down out of that hypothetical, but I want to add another
one, another restriction. This person needs to have someone close to her,
close family, mother, husband accompany her whenever she leaves the
home wherever she goes, in other words, the employer would have to
accommodate having her mother or husband standing next to her at work all
day.
(Tr. 48-49.) The VE testified that such an accommodation would not be “something that
a typical competitive level employer would permit.” (Tr. 48.)
The VE testified that his definitions and descriptions of his proffered jobs were
consistent with the Dictionary of Occupational Titles; that his numbers of jobs were
based on information from Occupational Employment Quarterly; and that the jobs he
proffered were only samples and that there were other jobs that such a hypothetical
person could perform. (Tr. 47.)
11
III.
STANDARD FOR DISABILITY
A claimant is entitled to receive benefits under the Social Security Act when she
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when she cannot perform “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 12 months.” 20 C.F.R. § 416.905(a). To receive SSI benefits, a recipient
must also meet certain income and resource limitations. 20 C.F.R. §§ 416.1100 and
416.1201.
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Abbott
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate
that she is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant
must show that she suffers from a “severe impairment” in order to warrant a finding of
disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A “severe impairment” is one that
“significantly limits . . . physical or mental ability to do basic work activities.” Abbot, 905
F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, the claimant is presumed to be disabled
regardless of age, education or work experience. 20 C.F.R. §§ 404.1520(d) and
12
416.920(d). Fourth, if the claimant’s impairment does not prevent her from doing her
past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and
416.920(e)-(f). For the fifth and final step, even if the claimant’s impairment does
prevent her from doing her past relevant work, if other work exists in the national
economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g), 404.1560(c), and 416.920(g).
IV.
SUMMARY OF COMMISSIONER’S DECISION
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant has not engaged in substantial gainful activity since
January 1, 1993.
2.
The claimant has the following severe impairments: scoliosis with
instrumented fusion from T2-L1; bipolar disorder[;] obsessive
compulsive disorder; personality disorder; and borderline intellectual
functioning.
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.
4.
After careful consideration of the entire record, I find the claimant has
the residual functional capacity to perform light work . . . meaning she
can lift and carry 20 pounds occasionally and 10 pounds frequently.
She can stand, sit, and walk for six hours in an eight-hour workday
except she needs to be able to change positions for a couple minutes
every hour; she can perform simple routine tasks not involving
reading above the fifth grade level or math above the fourth grade
level; she cannot perform tasks involving cleaning or handling raw
meat; she can have superficial interaction with co-workers,
supervisors, and the general public; she cannot work in a place that
requires strict production quotas or rigorous production standards.
.....
8.
Transferability of job skills is not an issue because the claimant does
not have past relevant work.
13
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.
10.
The claimant has not been under a disability, as defined in the Social
Security Act, since January 26, 2006, the date the application was
filed.
(Tr. 10-21.)
V.
A.
LAW & ANALYSIS
Standard of Review
Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
(6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm'r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). Courts may look into any evidence in the
record to determine if the ALJ’s decision is supported by substantial evidence,
regardless of whether that evidence has actually been cited by the ALJ. Id. However,
courts do not review the evidence de novo, make credibility determinations, or weigh
the evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.
1989).
The Commissioner's conclusions must be affirmed absent a determination that
the ALJ failed to apply the correct legal standards or made findings of fact unsupported
by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009). Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
14
adequate to support a conclusion. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports
the opposite conclusion. Ealy, 594 F.3d at 512.
B.
The ALJ’s Assessment of Whether Plaintiff’s Impairments Met or
Medically Equaled Listing 12.05
Plaintiff contends that the ALJ improperly determined that Plaintiff’s impairments
did not meet or medically equal Listing 12.05. For the following reasons, the Court
disagrees.
Listing 12.05 is as follows:
12.05 Mental retardation: Mental retardation refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements
in A, B, C, or D are satisfied.
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:
15
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.
Listing 12.05.
The ALJ provided a lengthy discussion of why Plaintiff did not meet any of the
requirements for Listing 12.05, summarized as follows. Plaintiff did not meet Paragraph
A of the Listing because there was no evidence that Plaintiff was dependent on others
to care for her personal needs and could not follow directions. (Tr. 14, 15.) Plaintiff did
not meet Paragraphs B and C because Plaintiff’s IQ scores of 70 and below were not
valid (Tr. 14-15, 19); and because “the longitudinal evidence as a whole does not
indicate the impaired level of functioning that would be expected of an individual with
mental retardation” (Tr. 15). Plaintiff did not meet Paragraph D because Plaintiff’s IQ
scores of 70 and below were not valid (Tr. 14-15, 19); and because Plaintiff had only
moderate difficulties in social functioning and moderate difficulties in concentration,
persistence, or pace, and had no episodes of decompensastion (Tr. 13).
Plaintiff contends that the ALJ improperly determined that Plaintiff’s impairments
did not meet or medically equal Listing 12.05 because: (1) the ALJ failed to explain
why he gave Plaintiff’s IQ scores from 1993 no weight; (2) the ALJ gave Plaintiff’s IQ
scores from 1985 more weight that her IQ scores from 1993 contrary to Listing
112.00(D)(10); (3) the ALJ refused to consider Plaintiff’s argument that Plaintiff suffered
deficits in adaptive functioning based on the fact that no treating source diagnosed
Plaintiff with mental retardation; and (4) the ALJ misconstrued the evidence he cited in
16
support of his determination. The Court finds that Plaintiff’s contentions lack merit and
that the ALJ’s determination is supported by substantial evidence.
The ALJ explained why he gave Plaintiff’s IQ scores from 1993 no weight:
There is no evidence claimant’s IQ scores have declined due to any head
injury or other organic brain damage. In the absence of any cause for a
decline in intellectual functioning, I properly give the greatest weight to the
highest IQ scores, since it is possible to underachieve on IQ testing due to
lack of effort, but it is not possible to feign higher levels of intelligence than
one actually possesses.
(Tr. 14.) Moreover, the ALJ noted that, in August 1993, Plaintiff remained in regular
classes and passed all sections of the ninth grade proficiency test except the
mathematics section. (Tr. 19.) The ALJ concluded that the evidence showed Plaintiff
did poorly in her regular classes because Plaintiff had poor attendance rather than
because of a learning disability. (Tr. 19.) Accordingly, Plaintiff’s contention that the
ALJ provided no explanation for giving Plaintiff’s IQ scores from 1993 no weight lacks
merit.
The Court is not persuaded that the ALJ violated Listing 112.00(D)(10) when he
gave Plaintiff’s IQ scores from 1985 greater weight than her IQ scores from 1993.
Listing 112.00 is located in Part B of the Listings and regards the evaluation of mental
disorders of children under age 18. Listing 112.00(D)(10) provides the following:
IQ test results must also be sufficiently current for accurate assessment
under 112.05. Generally, the results of IQ tests tend to stabilize by the age
of 16. Therefore, IQ test results obtained at age 16 or older should be viewed
as a valid indication of the child's current status, provided they are
compatible with the child's current behavior. IQ test results obtained
between ages 7 and 16 should be considered current for 4 years when the
tested IQ is less than 40, and for 2 years when the IQ is 40 or above. IQ test
results obtained before age 7 are current for 2 years if the tested IQ is less
than 40 and 1 year if at 40 or above.
17
Listing 112.00(D)(10) (emphasis added). The plain language of Listing 112.00(D)(10)
indicates that its terms apply to the assessment of a claimant under Listing 112.05, not
Listing 12.05 under which the ALJ assessed Plaintiff; and Plaintiff does not explain how
Listing 112.00(D)(10) applies to the ALJ’s assessment of Plaintiff under Listing 12.05.
Moreover, the plain language of Listing 112.00(D)(10) provides that “IQ test results
obtained at age 16 or older should be viewed as a valid indication of the child's current
status, provided they are compatible with the child's current behavior.” Listing
112.00(D)(10) (emphasis added). Here, the ALJ noted that, in August 1993, Plaintiff
remained in regular classes and passed all sections of the ninth grade proficiency test
except the mathematics section, and concluded that Plaintiff did poorly in her regular
classes because Plaintiff had poor attendance. (Tr. 19.) In other words, the ALJ found
that Plaintiff’s IQ scores from 1993 were not compatible with Plaintiff’s behavior at that
time; therefore, the ALJ was not required to give those scores particular weight.
Accordingly, Plaintiff’s contention that the ALJ violated Listing 112.05(D)(10) lacks
merit.
Plaintiff’s contention that the ALJ improperly refused to consider her argument
that she suffered deficits in adaptive functioning lacks merit because the ALJ did not
refuse to consider Plaintiff’s argument. The ALJ stated that, because “there is no valid
diagnosis of mental retardation . . . the issue of deficits in adaptive functioning is moot”;
however, the ALJ decided to considered whether Plaintiff met any of Listing 12.05’s
paragraphs because “counsel stressed this listing so strenuously in his oral and written
argument.” (Tr. 14.) The ALJ found that “there are no deficits in adaptive functioning
during the developmental period before age 22” (Tr. 13), and concluded that “the
18
longitudinal evidence as a whole does not indicate the impaired level of functioning that
would be expected for an individual with mental retardation” (Tr. 15). In other words,
the ALJ considered whether Plaintiff suffered deficits in adaptive functioning based on
the record as a whole.
Finally, for the following reasons, Plaintiff’s contention that the ALJ misconstrued
the evidence lacks merit. Plaintiff explains that the ALJ improperly supported his
determination with the following inaccurate findings: Plaintiff lived independently;
Plaintiff was never placed in special education classes; Plaintiff lost custody of her
children because she had poor parenting skills, not because she lacked the cognitive
ability to raise her children; and Dr. Leidal found that Plaintiff’s IQ scores were invalid.
A review of the record evidence shows, however, that the ALJ’s findings are supported
by the record.
The ALJ found that Plaintiff “lived independently or with her husband.” (Tr. 14)
(emphasis added). This finding is supported by the record evidence, as it is undisputed
that Plaintiff lived with her husband and Dr. Leidal opined that Plaintiff could take care
of herself with only minimal support. Plaintiff admitted that she had not taken special
education classes, and the fact that Plaintiff had not been placed in special education
classes supports the reasonable inference that Plaintiff functioned at a higher level. Dr.
Jones recommended that Plaintiff’s children not be returned to Plaintiff because Plaintiff
“is self-absorbed, immature, and . . . displays a permissive parenting style which has
led to her children’s failure to attend school, frequent physical altercations, and
dangerous behaviors.” (Tr. 272.) Dr. Jones’s opinion supports the ALJ’s finding that
Plaintiff’s children were removed from Plaintiff’s home because of Plaintiff’s poor
19
parenting skills rather than any cognitive deficits. Finally, although the ALJ stated that
Dr. Leidal found Plaintiff’s IQ scores “invalid” (Tr. 14.) and Dr. Leidal did not make such
a statement, it is clear that Dr. Leidal found the IQ scores “unreliable,” which is
supported by the evidence as Dr. Leidal explained that Plaintiff’s scores were
underestimates caused by Plaintiff’s poor motivation and effort. Accordingly, there is no
basis to conclude that the ALJ misconstrued the evidence.
Substantial evidence supports the ALJ’s finding that Plaintiff’s IQ scores from
1993 and 2007 were “invalid.” The regulations do not limit the question of validity to
test results alone in isolation from other factors. Brown v. Sec’y of Health & Human
Servs., 948 F.2d 268, 269 (6th Cir. 1991). In assessing the validity of a claimant’s IQ,
information from both medical and non-medical sources may be used to obtain detailed
descriptions of the individual’s activities of daily living, social functioning, concentration,
persistence and pace; or ability to tolerate stress. Id. (quoting 20 C.F.R. Pt. 404, Subpt.
P, App. 1, § 12.00(D)). Here, the ALJ did not give Plaintiff’s IQ scores from 1993
weight because there was no evidence of a head injury or organic brain damage to
explain a decrease in Plaintiff’s IQ scores, and because they were inconsistent with
Plaintiff’s contemporaneous behavior. The ALJ did not give Plaintiff’s IQ scores from
2007 weight because Dr. Leidal stated that Plaintiff’s motivation and effort during
testing was poor and that, although the scores themselves indicated functioning in the
mentally retarded range, her performance was actually within the borderline range—a
higher level of functioning. These were sufficient reasons to give the IQ scores no
weight.
Plaintiff cites Brown v. Secretary of Health and Human Services, 948 F.2d 268
20
(6th Cir. 1991), in support of the proposition that the ALJ erroneously considered the
facts that Plaintiff had been married three times, gave birth to five children, and was
able to take care of her personal needs to determine that Plaintiff was not mentally
retarded under the Listings. For the following reasons, Brown is inapposite. In Brown,
the plaintiff was assigned a valid Full Scale IQ score of 68, which evidenced mild
mental retardation. Brown v. Sec'y of Health & Human Servs., 948 F.2d 268, 270-71
(6th Cir. 1991). Nevertheless, the Secretary of Health and Human Services argued that
substantial evidence showed Plaintiff was not mentally retarded despite the IQ score
because Plaintiff could use public transit; had a driver's license; visited friends; could
make change at a grocery store; could do his own laundry and clean his room;
completed the sixth grade; had a limited level of reading comprehension; and worked
as a truck driver, which required him to record mileage, the hours he worked, and the
places he drove. Id. at 271. The court, however, recognized that mildly mentally
retarded individuals could acquire academic skills up to approximately sixth-grade level
and, during their adult years, could usually achieve social and vocational skills
adequate for minimum self-support. Id. Therefore, the court rejected the Secretary’s
argument that Plaintiff was not mildly mentally retarded despite the valid IQ score. Id.
Brown is inapposite here because Plaintiff had more than a sixth grade education and
substantial evidence supports the ALJ’s conclusion that Plaintiff’s IQ scores of 70 and
below were invalid.
Because Plaintiff’s assignments of error regarding the ALJ’s analysis of Listing
12.05 lack merit and substantial evidence supports the ALJ’s determination that
21
Plaintiff’s impairments do not meet or medically equal Listing 12.05, remand is not
warranted on these bases.
C.
The ALJ’s Hypothetical to the VE
Plaintiff contends that the ALJ’s hypothetical question to the VE should have
contained two additional impairments: the need to lie down during the day outside
normal work breaks, and the need to be accompanied by a close family member
outside the home. Plaintiff does not cite to any law in support of her contention that the
ALJ should have included such limitations in his hypothetical, and Plaintiff does not
explain how the ALJ’s refusal to include such limitations in his hypothetical harmed her.
Moreover, an ALJ is not required to include all of a claimant’s alleged limitations in his
hypothetical to a VE; rather, an ALJ is required to include only those limitations that he
finds credible. Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir.
1993).
Here, the ALJ recognized Plaintiff’s testimony that she did not like to leave her
home alone and needed to lie down periodically during the day (Tr. 16); but he
explained that he found such alleged limitations not credible for the following reasons:
No additional nonexertional limitations are supported by the record,
considering that claimant has sought mental heath treatment only
sporadically and sparsely, that the treatment notes do not document
significant signs of mental status abnormalities, that the claimant has never
been hospitalized on an inpatient psychiatric basis, and that the claimant has
often failed to take prescribed psychotropic medications.
(Tr. 17.) The ALJ rejected Plaintiff’s attorney’s hypothetical to the VE that contained the
additional limitation of requiring constant company and supervision for the following
reasons:
22
The preponderance of the evidence does not support counsel’s hypothetical
question . . . involving a person who would need to have her mother, or
someone else present and accompanying her to work, and supervising her
all day at work. No treating, examining, or consultative source has ever
stated the claimant is that functionally limited or requires that degree of
constant supervision, and the evidence as a whole does not support such an
extreme limitation.
(Tr. 21.)
Plaintiff does not explain how the ALJ’s credibility assessment was deficient.
Plaintiff only contends that the alleged additional limitations are consistent with a
diagnosis of depression and the rest of the evidence. But whether substantial evidence
supports the inclusion of such additional limitations is beside the point, as a decision
supported by substantial evidence will not be overturned even though substantial
evidence supports the opposite conclusion. Ealy, 594 F.3d at 512. Accordingly, this
assignment of error lacks merit.
VI.
CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: October 12, 2011
23
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?