Sowers v. Social Security Administration

Filing 23

OPINION AND ORDER by Magistrate Judge Kimberly E. West affirming the decision of the ALJ.(sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
GORDON R. SOWERS,

)
)
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)
)
)
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)
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Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.

Case No. CIV-15-463-KEW

OPINION AND ORDER

Plaintiff Gordon R. Sowers (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 Claimant was not disabled.
discussed

below,

it

is

the

finding

of

this

For the reasons
Court

that

the

Commissioner’s decision should be and is AFFIRMED.
Social Security Law and Standard of Review
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).
Security

Act

“only

if

A claimant is disabled under the Social
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. . .”
§423(d)(2)(A).

42 U.S.C.

Social Security regulations implement a five-step

sequential process to evaluate a disability claim.

See, 20 C.F.R.

§§ 404.1520, 416.920.1
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;

standards were applied.

and,

second,

whether

the

correct

legal

Hawkins v. Chater, 113 F.3d 1162, 1164

1

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).

2

(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. 389, 401 (1971)

(quoting 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

800

&

Human

Servs.,

933

F.2d

799,

(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 July 31, 1961 and was 52 years old at the
time of the ALJ’s decision.

Claimant completed his education

halfway through the ninth grade.

Claimant has worked in the past

as a caulker at a waterproofing business and a construction worker.
Claimant alleges an inability to work beginning December 1, 2012
due to limitations resulting from hepatitis C, lower back problems,
high blood pressure, rectal bleeding, and migraine headaches.

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Procedural History
On

January

9,

2013,

Claimant

protectively

filed

for

supplemental security income pursuant to Title XVI (42 U.S.C. §
1381, et seq.) of the Social Security Act.

Claimant’s application

was denied initially and upon reconsideration.

On March 5, 2014,

an administrative hearing was held before Administrative Law Judge
(“ALJ”) James Stewart in Tulsa, Oklahoma. He issued an unfavorable
decision on April 25, 2014.

The Appeals Council denied review of

the ALJ’s decision on September 25, 2015.

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
The ALJ 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 light work with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in providing an
assessment of Claimant’s deficits in adaptive functioning which was
not supported by substantial evidence.
Consideration of a Listing
In his decision, the ALJ found Claimant suffered from the
severe

impairments

of

lower

back
4

pain,

high

blood

pressure,

migraine headaches, and borderline intellectual functioning.

(Tr.

27). The ALJ determined Claimant retained the RFC to perform light
work.

He found that, due to severe mental impairments, Claimant

was limited to unskilled work consisting of simple and routine
tasks with routine supervision that require only that he be able to
understand, remember, and carry out simple instructions with no
contact with the general public and only occasional contact with
co-workers.

Contact with co-workers must be superficial.

The ALJ

further determined that Claimant needs to be able to work at his
own workstation or location independently performing his own tasks
without having to cooperate with co-workers to perform those tasks.
(Tr. 30).
After consulting with a vocational expert, the ALJ concluded
that Claimant could perform the representative jobs of assembler of
small products, sorter, and weld inspector, all of which the ALJ
determined existed in sufficient numbers in both the regional and
national economies.

(Tr. 35).

As a result, the ALJ determined

Claimant was not under a disability since December 21, 2012, the
date the application was filed.

Id.

Claimant contends that the ALJ erred when determining whether
his impairments met a listing.

Specifically, Claimant asserts he

meets or equals Listing 12.05C on mental retardation.

The ALJ

denied Claimant’s assertion in this regard because he “does not

5

have the substantial deficits in adaptive functioning required to
meet Listing 12.05” contained in paragraph C of the regulation.
(Tr. 29).

The ALJ cited to earnings records which showed Claimant

worked steadily from 1978 to 1997 which demonstrated he “was
capable of doing at least simple work.”

The records also showed

Claimant worked as a caulker in 2010 and testified he actually
worked three or four years at the business because he was paid in
cash.

The ALJ also noted Claimant “did substantial work” in 2003

and 2004 and passed his driver’s test.

He also considered that

Claimant attended special education classes.

However, the ALJ

concluded Claimant did not have the requisite deficits in adaptive
functioning.

Id.

To meet or equal Listing § 12.05, 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
through 70 and a physical or other mental impairment
imposing an additional and significant work-related
limitation of function.
*

*

6

*

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).

Claimant cites to the case of Barnes v. Barnhart, 116 Fed.Appx. 934
(10th Cir. 2004)(unpublished) for the proposition that the ALJ is
required to choose and apply a measurement method by one of the
four

major

professional

organizations

in

dealing

with

mental

retardation.
“Adaptive functioning refers to how effectively individuals
cope with common life demands and how well they meet the standards
of personal independence expected of someone in their particular
age

group,

sociocultural

background,

and

community

setting.”

American Psychiatric Ass’n, Diagnostic & Statistical Manual, p. 42
(Fourth

Ed.

2000)(“DSM-IV”).

The

ALJ

rejected

Claimant’s

qualification under paragraph C based upon a lack of evidence of
deficits of adaptive functioning.
the

record

that

the

ALJ

(Tr. 29).

applied

the

It is apparent from

DSM-IV

definition

by

concentrating on work history and educational background. There is
no indication that Claimant stopped working because of mental
impairments.

A successful work history is inconsistent with a

finding of mental retardation.

See Bland v. Astrue, 432 Fed.App’x

719, 723 (10th Cir. 2011)(unpublished)(citing Cox v. Astrue, 495
F.3d 614, 619 (8th Cir. 2007)).
Moreover, while an assessment of Dr. Todd Graybill indicated

7

a verbal IQ of 68 which places him within the intellectual range of
Listing 12.05C, he also found Claimant was able to understand,
retain, and follow simple instructions with an attention span and
concentration abilities commiserate with his intellectual level.
(Tr. 318-19).

State agency psychologist Dr. Gary Lindsay also

supported a finding of Claimant’s ability to perform simple tasks
without public contact.

(Tr. 97).

Given the evidence of an

ability to engage in the activities of adaptive functioning in the
record, this Court cannot conclude the ALJ erred in his assessment
of Claimant’s lack of deficits of adaptive functioning.
Conclusion
The decision of the Commissioner is supported by substantial
evidence and the correct legal standards were applied.

Therefore,

this Court finds the ruling of the Commissioner of Social Security
Administration should be and is AFFIRMED.
IT IS SO ORDERED this 30th day of March, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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