McClellan v. Social Security Administration

Filing 18

OPINION AND ORDER by Magistrate Judge Frank H McCarthy Affirming the Commissioner's decision (tjc, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
EDWARD McCLELLAN,
PLAINTIFF,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,1
DEFENDANT.

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CASE NO. 12-CV-369-FHM

OPINION AND ORDER
Plaintiff, Edward McClellan, seeks judicial review of a decision of the Commissioner
of the Social Security Administration denying Social Security disability benefits.2

In

accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented to proceed before
a United States Magistrate Judge.
Standard of Review
The role of the court in reviewing the decision of the Commissioner under 42 U.S.C.
§ 405(g) is limited to a determination of whether the decision is supported by substantial
evidence and whether the decision contains a sufficient basis to determine that the

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Effective February 14, 2013, pursuant to Fed. R. Civ. P. 25(d)(1), Carolyn W. Colvin, Acting
Commissioner of Social Security, is substituted as the defendant in this action. No further action need
be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405(g).
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Plaintiff, Edward McClellan’s application was denied initially and upon reconsideration. A
hearing before an Administrative Law Judge (ALJ) Richard J. Kallsnick, was held December 6, 2010.
By decision dated December 28, 2010, the ALJ entered the findings which are the subject of this
appeal. The Appeals Council denied Plaintiff’s request for review on May 5, 2012. The decision of the
Appeals Council represents the Commissioner's final decision for purposes of further appeal. 20 C.F.R.
§§ 404.981, 416.1481.

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Commissioner has applied the correct legal standards. See Briggs ex rel. Briggs v.
Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001); Winfrey v. Chater, 92 F.3d 1017 (10th
Cir. 1996); Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th
Cir. 1994). Substantial evidence is more than a scintilla, less than a preponderance, and
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.2d
842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The
court may neither reweigh the evidence nor substitute its judgment for that of the
Commissioner. Casias v. Secretary of Health & Human Servs., 993 F.2d 799, 800 (10th
Cir. 1991). Even if the court would have reached a different conclusion, if supported by
substantial evidence, the Commissioner’s decision stands. Hamilton v. Secretary of Health
& Human Servs., 961 F.2d 1495 (10th Cir. 1992).
For the reasons discussed below, the Court AFFIRMS the decision of the
Commissioner.
Background
Plaintiff was 30 years old on the alleged date of onset of disability and 31 years old
on the date of the denial decision. He has a 5th grade education and a limited work history.
He was incarcerated for approximately 10 years. He formerly worked as fast food worker,
dishwasher, and meat slicer. Plaintiff claims to have been unable to work since September
2, 2009, as a result of mental retardation, bipolar disorder, back pain, and left foot pain.
[Dkt. 15, p. 1; R. 132, 160, 209, 219]. Plaintiff has a history of substance abuse and
marijuana dependence. [392-95].

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The ALJ’s Decision
The ALJ determined that the Plaintiff’s severe impairments include lumbar back pain,
status post surgical removal of cyst on left foot with subsequent bone spur formation,
depression, mental retardation, and substance addiction disorder. [R. 30]. The ALJ further
determined that Plaintiff has the residual functional capacity (RFC) to perform light work as
defined in 20 C.F.R. § 416.967(b) except he is able to perform simple, unskilled work.
Plaintiff is able to relate to coworkers and supervisors for work-related purposes only. He
should have minimal or no contact with the general public. Plaintiff takes medications for
relief of his symptomatology, but the appropriate use of the medication would not preclude
him from remaining reasonably alert to perform required functions presented in a work
setting. [R. 33].
The ALJ determined that Plaintiff was not disabled because at step four, he retained
the residual functional capacity to perform his past relevant work as a meat slicer both as
actually and generally performed at the light level of exertion. [R. 40]. At step five, the ALJ
found that there are a significant number of jobs in the national economy that Plaintiff could
perform with these limitations. [R. 31-32]. The case was thus decided at step four with an
alternative step five finding of the five-step evaluative sequence for determining whether
a claimant is disabled. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)
(discussing five steps in detail).
Plaintiff’s Allegations
Plaintiff asserts that the ALJ: 1) failed to fully develop the file; 2) failed to properly
consider the Plaintiff’s credibility; and 3) the RFC is not supported by substantial evidence.

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Analysis
Although Plaintiff listed three errors, only one was briefed. The court declines to
consider allegations raised, but not discussed. See generally, U.S. v. Rodriquez-Aguirre,
108 F.3d 1228, 1237 n.8 (10th Cir. 1997)(appellants have the burden of tying the relevant
facts to their legal contentions and must provide specific reference to the record to carry
the burden of proving error). The court will not “sift through” the record to find support for
the claimant’s arguments. SEC v. Thomas, 965 F.2d 825, 827 (10th Cir. 1992).
Plaintiff asserts that the ALJ failed to fully develop the record concerning the issue
of whether he was mentally retarded. Plaintiff contends that had the ALJ fully developed
the record, he could meet Listing 12.05(C). To meet the criteria of Listing 12.05(C), Plaintiff
must 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
functioning. The question presented is whether Plaintiff had a valid IQ score in this range.
In October 2009 Plaintiff underwent a consultative examination performed by Dr.
Paul J. Schwartz, Ph.D. Plaintiff was given the WAIS-III and received a full scale IQ of 65,
his verbal IQ was 66, and his performance IQ was 70.

Dr. Schwartz’s results were

accompanied by his statement that Plaintiff “was minimally attentive, interested and
motivated to do his best and he tended to give up easily, and would respond impulsively
at times.” [R. 232]. Dr. Schwartz cautioned that the test results should be interpreted with
caution as they may not reflect his optimal potential. Id. Dr. Schwartz stated: “[t]est results
may not reflect his true potential, however, it is uncertain as to whether he would be able
to score much higher if retested at a later time.”

[R. 233]. Based on Dr. Schwartz’s

comments, the ALJ determined that the WAIS-III verbal, performance, and full scale IQs
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were not valid measures and therefore Plaintiff did not meet the criteria of Listing 12.05(C).
[R. 32-33].
Plaintiff argues that the ALJ erred because there is not unequivocal support for the
finding that the test results were invalid. Plaintiff cites no authority for his contention that
the ALJ’s finding must have unequivocal support. In fact, the ALJ’s conclusions do not
need unequivocal support in the record. The court reviews the Commissioner’s decision
to determine whether the factual findings are supported by substantial evidence in the
record, which is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. In the context of an appeal of a Social Security disability decision,
substantial evidence requires more than a scintilla but less than a preponderance. The
possibility of drawing two inconsistent conclusions from the evidences does not prevent the
Commissioner’s decision from being supported by substantial evidence. The court may not
displace the Commissioner’s choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the matter been before it de novo.
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)(further citation omitted).
Plaintiff argues that the ALJ’s determination that the IQ scores were not valid
triggered a duty to further develop the issue. He argues that the ALJ should have ordered
additional testing as requested by his representative or re-contacted Dr. Schwartz for
clarification. According to Plaintiff: “[t]he Plaintiff’s representative requested additional
testing. Tr. 436. The ALJ did not respond to that request.” [Dkt. 15, p. 5]. Contrary to
Plaintiff’s assertion, there was no request for additional testing before the ALJ. The record
contains a letter from Plaintiff’s attorney requesting a “full neuropsychological examination.”
[R. 436]. However, that letter was dated February 21, 2011 – almost two months after the
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ALJ issued his decision on December 28, 2010. Plaintiff has not cited to any authority that
suggests the ALJ retains the power to order such testing after the issuance of a decision.
The Commissioner has the duty to develop an adequate record relevant to the
issues raised. However, an ALJ is normally entitled to rely on the claimant’s counsel to
structure and present the case. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir.
19947). Plaintiff was represented at the hearing. There was no discussion of additional
testing at the hearing, and indeed no discussion of Plaintiff’s IQ scores or the testing.
Plaintiff’s attorney stated “the record is complete.” [R. 50]. The court finds no error in the
ALJ’s failure to order additional testing or further develop the record.
The court rejects Plaintiff’s assertion that the ALJ was not qualified to determine that
Plaintiff’s test results were not valid. The Commissioner’s regulations instruct that the
narrative report that accompanies intelligence testing scores “should comment on whether
the IQ scores are considered valid.” 20 C.F.R. Pt. 404, Subpt. P., App. 1 § 12.00(D)(6)(a).
Dr. Schwartz’s evaluation included his opinion that the test scores were suspect:
He remained minimally attentive, interested and motivated to
do his best. He tended to give up easily and would respond
impulsively at times. Test results should be interpreted with
caution as they may not reflect his optimal potential.
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Test results may not reflect his true potential, however, it is
uncertain as to whether he would be able to score much higher
if retested at a later time.
[R. 232, 233]. Based on these comments, the ALJ concluded that the IQ scores resulting
from Dr. Schwartz’s testing “are not valid measures.” [R. 33]. The court finds that the ALJ’s
conclusion was a reasonable one and is supported by substantial evidence. See Lax v.

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Astrue, 489 F.3d 1080, 1087 (10th Cir. 2007).
The court rejects Plaintiff’s assertion that Dr. Schwartz’s comments create an
ambiguity that should have been resolved. The ALJ’s conclusion that Plaintiff has the
capacity to perform work-related tasks is supported by substantial evidence. Consultative
examiner Minor Gordon, Ph.D. also evaluated Plaintiff. He found that Plaintiff’s socialadaptive behavior is in keeping with an individual functioning low intellectually. [R. 270].
Dr. Gordon found that Plaintiff appears to have some problems with mild depression which
alone should not preclude gainful employment. Dr. Gordon was of the opinion that Plaintiff
“should be able to perform some type of routine and repetitive task on a regular basis and
he would be able to relate adequately with coworkers and supervisors on a superficial level
for work purposes.” [R. 271].
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Conclusion
The Court finds that the ALJ evaluated the record in accordance with the legal

standards established by the Commissioner and the courts. The court further finds there
is substantial evidence in the record to support the ALJ’s decision. Accordingly, the
decision of the Commissioner finding Plaintiff not disabled is AFFIRMED.
SO ORDERED this 7th day of August, 2013.

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