Brown v. Social Security Administration
Filing
19
OPINION AND ORDER by Mag. Judge Kimberly E. West (sjw, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
STACEY L.D. BROWN,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-10-488-KEW
OPINION AND ORDER
Plaintiff Stacey L.D. Brown (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.
Claimant
appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined
that
discussed
below,
Claimant
it
is
was
the
not
disabled.
finding
of
this
For
the
Court
reasons
that
the
Commissioner’s decision should be and is REVERSED and the case
REMANDED for further proceedings.
Social Security Law and Standard of Review
This case is somewhat unusual because Claimant’s mother filed
for supplemental security income for him before he attained the age
of 18.
For that period before he was 18, disability for persons
under the age of 18 is defined by the Social Security Act as the “a
medically determinable physical or mental impairment or combination
of impairments that causes marked and severe functional limitations,
and that can be expected to cause death or that has lasted or can
be expected to last for a continuous period of not less than 12
months.”
20
C.F.R.
§
416.906.
Social
Security
regulations
implement a three-step sequential process to evaluate a claim for
Child’s Supplemental Security Income Benefits under Title XVI of the
Social Security Act.
See, 20 C.F.R. § 416.924.1
For the period
after Claimant attained the age of 18, disability under the Social
Security
Act
is
defined
as
the
“inability
to
engage
in
any
substantial gainful activity by reason of any medically determinable
physical or mental impairment. . .” 42 U.S.C. § 423(d)(1)(A).
A
claimant is disabled under the Social Security Act “only if his
physical or mental impairment or impairments are of such severity
that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
economy. . .” 42 U.S.C. §423(d)(2)(A). Social Security regulations
1
At step one, a child will not be deemed disabled if he is working
and such work constitutes substantial gainful activity. requires the
claimant to establish that he is not engaged in substantial gainful
activity. At step two, a child will not be found disabled if he does not
suffer from a medically determinable impairment that is severe. At step
three, a child’s impairment must meet a listing and must meet the duration
requirement of 12 months. 20 C.F.R. § 416.924(b), (c) and (d).
2
implement a five-step sequential process to evaluate a disability
claim.
See, 20 C.F.R. §§ 404.1520, 416.920.2
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
two inquiries:
substantial
This Court’s review is limited to
first, whether the decision was supported by
evidence;
and,
standards were applied.
second,
whether
the
correct
legal
Hawkins v. Chater, 113 F.3d 1162, 1164
(10th Cir. 1997)(citation omitted). The term “substantial evidence”
has been interpreted by the United States Supreme Court to require
“more than a mere scintilla.
It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Richardson
v.
Perales,
402
U.S.
2
389,
401
(1971)
(quoting
Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C.F.R. §§
404.1510, 416.910. Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), disability benefits are denied. At step three, the
claimant’s impairment is compared with certain impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work.
If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).
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Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
The
court may not re-weigh the evidence nor substitute its discretion
for that of the agency.
Casias v. Secretary of Health & Human
Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the court
must review the record as a whole, and the “substantiality of the
evidence must take into account whatever in the record fairly
detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951); see also, Casias, 933 F.2d at 800-01.
Claimant’s Background
Claimant was born on April 17, 1989 and was 19 years old at the
time of the ALJ’s decision.
Claimant completed his high school
education and took some college.
work.
Claimant has no past relevant
Claimant alleges an inability to work due to limitations
resulting from asthma, being “learning disabled,” and attention
deficit hyperactivity disorder (“ADHD”).
Procedural History
On October 6, 2006, Claimant’s mother protectively filed for
supplemental security income benefits on Claimant’s behalf as a
minor.
Claimant’s
application
was
denied
initially
and
upon
reconsideration. On October 27, 2008, an administrative hearing was
held before ALJ Lantz McClain in Tulsa, Oklahoma.
2008,
the
ALJ
issued
an
unfavorable
4
decision
On December 18,
on
Claimant’s
application. On October 29, 2010, the Appeals Council denied review
of the ALJ’s decision.
As a result, the decision of the ALJ
represents the Commissioner’s final decision for purposes of further
appeal.
20 C.F.R. §§ 404.981, 416.1481.
Decision of the Administrative Law Judge
For the period prior to Claimant attaining the age of 18, the
ALJ made his decision at step two of the sequential evaluation.
He
determined that Claimant’s alleged conditions did not meet a listing
and he had not been under a disability at any time since the alleged
onset date.
For the period after Claimant reached the age of 18,
the ALJ determined Claimant had not developed any new impairments
and made his decision at step five of the sequential evaluation.
He determined that while Claimant suffered from severe impairments,
he did not meet a listing and retained the residual functional
capacity (“RFC”) to perform at all exertional levels with some
limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
conclude Claimant met a listing; (2) failing to consider all of the
medical source information in the record; (3) failing to perform a
proper step five determination; and (4) failing to perform a proper
credibility analysis.
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Evaluation of the Evidence for a Listing
In his decision, the ALJ determined Claimant suffered from the
severe impairments of asthma, borderline intellectual functioning,
and ADHD. (Tr. 16). Since Claimant attained the age of 18, the ALJ
found he retained the RFC to perform a full range of work at all
exertional levels but with the additional limitations that he should
avoid even moderate exposure to dust or fumes (AC/heated environment
with good ventilation where there would be no exposure to such
things as dust or cleaning fluids) and simple, repetitive tasks with
incidental contact with the public.
(Tr. 23).
With the assistance
of a vocational expert, the ALJ identified the jobs of bench
assembler and bus person as encompassing Claimant’s RFC.
(Tr. 24-
25).
Claimant first contends his impairments meet the criteria for
Listing §§ 12.05C, 12.05D, and 112.11.
To meet or equal Listing
12.05C, a claimant must demonstrate the following:
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.
*
C.
*
*
A valid verbal, performance, or full scale IQ of 60
6
through 70 and a physical or other mental impairment
imposing an additional and significant work-related
limitation of function.
*
*
*
20 C.F.C. Pt. 404, Subpt. P, App. 1, Listing 12.05C.
Claimant must satisfy all of these required elements for a
Listing to be met.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
On November 20, 2006, Claimant underwent a psychological evaluation
by Dr. B. Todd Graybill.
Dr. Graybill administered the WAIS-III
test and determined Claimant had a Verbal IQ of 72, Performance IQ
of 73, and a Full Scale IQ score of 70 placing him in the borderline
mentally retarded range of intellectual functioning.
Dr. Graybill
considered the testing generally valid, though Claimant’s effort was
poor.
He
also
concluded
that
the
“results
underestimate [Claimant’s] true intellectual level.”
may
somewhat
(Tr. 257).
On May 30, 2007, Dr. Dorothy Millican completed a Psychiatric
Review Technique form on Claimant.
from
ADHD
and
significantly
She concluded Claimant suffered
subaverage
general
intellectual
functioning with deficits in adaptive function based upon a valid
verbal, performance, or full scale IQ of 60 through 70.
(Tr. 282-
86). Dr. Millican determined Claimant was moderately limited in the
area of difficulties in maintaining concentration, persistence, or
pace and mildly limited in two other areas.
(Tr. 292).
Dr. Millican also completed a Mental Residual Functional
Capacity Assessment form on Claimant.
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She determined he was
markedly limited in the areas of the ability to understand and
remember detailed instructions, the ability to carry out detailed
instructions, the ability to maintain attention and concentration
for extended periods, and the ability to interact appropriately with
the general public.
(Tr. 296-97).
Dr. Millican concluded Claimant
could
and
simple
understand
perform
tasks,
can
interact
appropriately with others at a superficial level, but not with the
general public.
She found he could adapt to a work situation, but
most likely needs to have inside work due to his asthma. (Tr. 298).
Although on the high end of the range, Claimant meets the
intelligence
testing
criteria
required
for
Listing
12.05C.
Additionally, he has a physical impairment in his asthma which
significantly impairs his ability to additional restrictions upon
his ability to work as evidenced by the ALJ’s RFC. Although the ALJ
did not find any limitations in “adaptive functioning,” the record
gives some indication of limitations in social functioning and
communication as reflected in the various assessments.
On remand,
the ALJ shall re-evaluate whether Claimant’s adaptive functioning
is impaired such that Claimant meets the requirements of Listing
12.05C.
To satisfy Listing 12.05D, Claimant was required to demonstrate
his low IQ and also show that his functionality is sufficiently
impaired by it by demonstrating that he is markedly impaired in two
of the four criteria of the listing: (1) activities of daily living,
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(2) maintaining social functioning, (3) maintaining concentration,
persistence, or pace, or (4) episodes of decompensation.
See 20
C.F.R., Pt. 404, Subpt. P, App. 1 § 12.00A. Claimant points to no
evidence which would indicate satisfaction of his burden in showing
impairment in two of the areas indicated by the listing.
Indeed,
a review of the assessments by the mental health professionals does
not indicate marked limitation in any of the criteria listed in
Listing 12.05D. As a result, this Court finds no error in the ALJ’s
declination to apply this listing, albeit in a conclusory fashion.
Claimant also contends the ALJ should have applied Listing
112.11 concerning childhood ADHD but provides no explanation for
this argument in the briefing.
Consequently, the point of error is
rejected.
Medical Source Evidence
Claimant contends the reports of Dr. Millican are in conflict
and the ALJ did not resolve the inconsistency.
Specifically, Dr.
Millican found Claimant was moderately limited in the area of
difficulties maintaining concentration, persistence, or pace but
markedly
limited
in
the
area
of
concentration for extended periods.
maintaining
attention
(Tr. 292, 296).
and
While this
Court does not completely agree with Claimant’s argument that these
areas are the same, some degree of conflict is apparent and should
be resolved on remand.
Step Five Evaluation
9
Claimant also contends the ALJ should have included additional
limitations in his hypothetical questioning of the vocational
expert.
This Court does not agree with Claimant that the ALJ is
required to include limitations in his questioning of the vocational
expert which do not exist.
No evidence indicates Claimant has
restrictions in his ability to sit, stand, walk, or lift as
suggested by Claimant.
This Court perceives no error in the
questioning in this regard.
Credibility Determination
Claimant
Although
challenges
Claimant
the
contends
ALJ’s
the
ALJ
credibility
failed
to
determination.
reference
which
statements he accepted as true and which he did not, the ALJ
“closely and affirmatively linked to substantial evidence and not
just a conclusion in the guise of findings.”
F.3d 387, 391 (10th Cir. 1995).
Kepler v. Chater, 68
“Credibility determinations are
peculiarly in the province of the finder of fact” and, as such, will
not be disturbed when supported by substantial evidence.
Id.
Factors to be considered in assessing a claimant’s credibility
include (1) the individual’s daily activities; (2) the location,
duration, frequency, and intensity of the individual’s pain or other
symptoms; (3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or
other symptoms; (5) treatment, other than medication, the individual
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receives or has received for relief of pain or other symptoms; (6)
any measures other than treatment the individual uses or has used
to relieve pain or other symptoms (e.g., lying flat on his or her
back, standing for 15 to 20 minutes every hour, or sleeping on a
board); and (7) any other factors concerning the individual's
functional
symptoms.
limitations
and
restrictions
due
to
pain
or
other
Soc. Sec. R. 96-7p; 1996 WL 374186, 3.
In his decision, the ALJ sufficiently linked the medical
evidence to the findings on credibility. “[A] formalistic factor-byfactor recitation of the evidence” is not required to support the
necessary analysis. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir.
2000).
The ALJ’s discussion and the references to the objective
record contained in it, considered in toto, is sufficient to support
the credibility findings of the ALJ.
Conclusion
The
decision
of
the
Commissioner
is
not
supported
by
substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds the ruling of the Commissioner
of Social Security Administration should be and is REVERSED and the
case is REMANDED to Defendant for further proceedings consistent
with this Opinion and Order.
DATED this 29th day of March, 2012.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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