Kelly v. Commissioner of Social Security Administration

Filing 23

ORDER RULING ON REPORT AND RECOMMENDATIONS The Court finds the Report is proper and is incorporated herein by reference. The Commissioner's decision is affirmed. Signed by Honorable Joseph F Anderson, Jr on 9/19/2011. (jbry, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Louise Dinah Kelly,

)
)
Plaintiff,
)
v.
)
)
Michael J. Astrue, Commissioner of
)
Social Security,
)
)
Defendant.
)
______________________________________ )

C/A No. 2:10-901-JFA

ORDER

The plaintiff, Louise Dinah Kelly, brings this action pursuant to 42 U.S.C. § 405(g)
to obtain judicial review of the final decision of the Commissioner of Social Security
(Commissioner) denying her claim for supplemental security income (SSI) and disability
insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401–433.
The Magistrate Judge assigned to this action 1 has prepared a Report and
Recommendation wherein she suggests that the Commissioner’s decision to deny benefits
should be affirmed. The Report sets forth in detail the relevant facts and standards of law on
this matter, and the court incorporates such without a recitation.
The parties were advised of their right to submit objections to the Report and
Recommendation. The plaintiff has filed timely objections to the Report which the court will
address herein.

1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02. The
Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261 (1976). The court
is charged with making a de novo determination of those portions of the Report to which specific objection is made and
the court may accept, reject, or modify, in whole or in part, the recommendation of the M agistrate Judge, or recommit
the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

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S TANDARD OF R EVIEW
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is narrowly tailored to determining whether the findings are supported by
substantial evidence and whether the correct law was applied. Walls v. Barnhart, 296 F.3d
287, 290 (4th Cir. 2002). Section 205(g) of the Act provides, “[t]he findings of the
Commissioner of Social Security, as to any fact, if supported by substantial evidence, shall
be conclusive. . .” 42 U.S.C. § 405(g). The phrase “substantial evidence” is defined as:
evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but
may be somewhat less than a preponderance. If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there is ‘substantial
evidence.’
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.1984) (quoting Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966)). In assessing whether there is substantial evidence, the reviewing
court should not undertake to re-weigh conflicting evidence, make credibility determinations,
or substitute its judgment for that of the agency. Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001).
The Commissioner is charged with determining the existence of a disability. The
Social Security Act, 42 U.S.C. §§ 301–1399, defines “disability” as the inability to engage
in any 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. 42 U.S.C. § 423(d)(1)(A)
(2004).

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This determination of a claimant’s disability status involves the following five-step
inquiry: whether (1) the claimant is engaged in substantial activity; (2) the claimant has a
medical impairment, or combination of impairments, that are severe; (3) the claimant’s
medical impairment meets or exceeds the severity of one of the impairments listed in
Appendix I of 20 C.F.R. Part 404, subpart P; (4) the claimant can perform his or her past
relevant work; and (5) the claimant can perform other specified types of work. Johnson v.
Barnhart, 434 F.3d 650, 654 n.1 (4th Cir. 2005) (citing 20 C.F.R. § 404.1520(a)(4)(i)–(v)
(2005)).
If the claimant fails to establish any of the first four steps, review does not proceed
to the next step. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993). The burden of
production and proof remains with the claimant through the fourth step. However, if the
claimant successfully reaches step five, then the burden shifts to the Commissioner to
provide evidence of a significant number of jobs in the national economy that a claimant
could perform. This determination requires a consideration of whether the claimant is able
to perform other work considering both his remaining physical and mental capacities
(defined as residual functional capacity) and his vocational capabilities (age, education, and
past work experience) to adjust to a new job. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir.
1981). If the claimant is found to have the ability to adjust to other work, the Commissioner
will not find him disabled. 20 C.F.R. § 404.1520(g)(2).

P ROCEDURAL H ISTORY
The facts are fully set forth in the decision of the ALJ and the administrative record,
summarized as follows.

The plaintiff alleges disability as of April 15, 2006 due to

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depression, HIV, hyperlipidemia, migraines, vertigo, anxiety, anemia, borderline intellectual
functioning, and a pancreatic cyst. The plaintiff was 41 years old at the time she alleges she
became disabled. She testified that she believes she graduated from high school, but was not
in regular classes. She has past relevant work experience as a part time cashier.
The plaintiff’s four applications for DIB and SSI, filed between March 29, 2004 and
April 17, 2006, were denied initially and upon reconsideration. The ALJ issued a decision
in April 2009, finding that the plaintiff was not disabled. The Appeals Council denied
plaintiff’s request for a review, thereby making the ALJ’s decision final for purposes of
judicial review. Plaintiff filed this action on April 12, 2010, seeking judicial review of the
Commissioner’s final decision.
The ALJ’s Findings
At step one of the sequential evaluation process, the ALJ found that plaintiff had not
engaged in substantial gainful activity since her April 2006 alleged onset date. At step two,
the ALJ found that plaintiff had the following severe impairments: depression, human
immunodeficiency virus (HIV), hyperlipidemia, migraines, vertigo, anxiety, anemia,
borderline intellectual functioning, and a pancreatic cyst. At step three, the ALJ concluded
that plaintiff’s impairments did not meet or equal a presumptively disabling impairment
listed at 20 C.F.R. pt. 404, subpt. P, app. 1 (Listings). The ALJ found that plaintiff did not
meet Listing 12.05 because there were no significant deficits in adaptive functioning. Then,
after assessing plaintiff’s residual functional capacity, the ALJ concluded that plaintiff could
return to her past relevant work and was therefore not disabled within the meaning of the
Act.

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The Plaintiff’s Claims of Error
In this suit for judicial review, the plaintiff contends that the ALJ erred by:
(1)

failing to find that the plaintiff’s low cognitive function in
combination with other impairments, meets and/or equals the
criteria of Listing 12.05(C); and

(2)

improperly relying on the plaintiff’s past work attempts at
varying stages of the sequential analysis.

The Magistrate Judge’s Report and Recommendation
The Magistrate Judge rejects both of the plaintiff’s arguments finding that the
Commissioner’s decision is based upon substantial evidence and free of legal error and that
the decision should be affirmed.

For the reasons stated below, the court adopts the

Magistrate Judge’s recommendation and affirms the Commissioner’s decision.

D ISCUSSION
Although this court may make a de novo review of the Magistrate Judge’s
recommendation and specific objections thereto, this court’s judicial review of the
Commissioner’s final decision is limited to considering whether the Commissioner’s decision
is supported by substantial evidence and whether the conclusions in the decision are legally
correct under controlling law.
Low Cognitive Function
Plaintiff first contends that the ALJ failed to recognize that medical evidence
established the presence of a disabling mental impairment listed in 12.05 of Appendix 1 to
20 C.F.R. § 404, Subpart P. Section or Listing 12.05 states in relevant part:

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12.05 Mental Retardation and Autism:
Mental retardation refers to a significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during the
developmental period (before age 22) . . . The required level of severity for
this disorder is met when the requirements in A, B, C, or D are satisfied.
...
B.
A valid verbal, performance, or full scale IQ of 59 or less;
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 limitations of function;

20 C.F.R. pt. 404, Subpart P, App. 1, § 12.05.
The Magistrate Judge’s Report correctly summarizes the applicable law in this area.
Specifically, in order to be eligible under 12.05(C), the applicant must possess an IQ of
between 60 and 70 and must have a physical or other mental impairment imposing an
additional and significant work-related limitation or function. It appears to be undisputed
that the plaintiff meets the IQ component of this part of the Listing.
The Magistrate Judge correctly points out, however, that every circuit that has
considered the question has held that the plaintiff must also satisfy the diagnostic description
in the introductory paragraph of Listing 12.05 as well as the IQ requirement of subpart D.
The introductory section requires that the mental retardation must “refer to a significantly
subaverage general intellectual functioning with deficits in adaptive behavior.” Thus,
according to the Magistrate Judge, the plaintiff must satisfy both the diagnostic portion of
the introductory paragraph of Listing12.05, in addition to the severity indicator in subpart D.
Here, it is undisputed that the ALJ found the plaintiff to have made a qualifying IQ score, but
failed to find evidence of deficits in adaptive functioning as required by the introductory
paragraph.
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Before the Magistrate Judge, plaintiff argued that the ALJ made no attempt to evaluate
whether she had failures of adaptive functioning prior to age 22. The Magistrate Judge
points out that the critical point in this case is that the ALJ found no issues with adaptive
functioning at the present time, and it is the present day adaptive functioning rationale which
must be applied in a determination of disability.
Plaintiff’s Work Attempts
The Magistrate Judge then went on to discuss the second principal argument made
below. That is, the argument that the ALJ incorrectly relied upon plaintiff’s intermittent
attempts at work throughout her life, to defeat the listing at Section 12.05, which is step 3 of
the sequential analysis. The Magistrate Judge concedes that the ALJ greatly overstated
plaintiff’s attempts at work, including the amount of money she earned during these attempts,
but contends that the error, if any, is harmless. The Magistrate Judge concludes that the
listing analysis is supported by other substantial evidence and that the decision of the ALJ
should stand even if the ALJ’s reliance on prior work attempts was improvident.
The Magistrate Judge points out that the ALJ considered the plaintiff’s mild
restrictions and activities of daily living, including a physical examination and the plaintiff’s
ability to tend to her own needs and care for her nephews. Also cited was the plaintiff’s
credibility issues, including missed doctor appointments, the success of medications, and
potential manipulation of test results.
In the opinion of the Magistrate Judge, the plaintiff has not been able to explain how
the outcome might have been different if the ALJ had not relied upon her attempts at post
work during various stages of the consideration.

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The plaintiff’s objection memorandum is essentially a restatement of the argument
made before the Magistrate Judge.

Specifically, it is argued that the Report and

Recommendation is inconsistent with the holding in Luckey v. U.S. Dept. of Health & Human
Servs., 890 F.2d 666, 669 (4th Cir. 1989), which holds that the Commissioner may not rely
upon previous work history to prove non-disability where Section 12.05(C) is met. The
objections then point that the ALJ missed the mark in determining the significance of the
prior work history, mistakenly assuming that the plaintiff had earned slightly over $4,000 per
year. It is argued that the claimant meets the Listings at 12.05(C) which should produce a
step 3 award. The plaintiff argues that by emphasizing her work history, which is marginal,
as evidence of a lack of adaptive functioning, the Commissioner inverted the sequential
evaluation by putting the plaintiff’s ability to work before the issue of whether a listing is
met.
All of this was carefully considered by the Magistrate Judge and rejected. As noted
above, the Magistrate Judge determined that any reliance on prior work history was harmless
in light of the other factors relied upon by the Magistrate Judge to determine that plaintiff had
not shown sufficient evidence of deficits in adaptive functioning.
Having fully considered the entire record in this case, this could concludes that the
Magistrate Judge’s recommended disposition is correct and that the decision of the
Commissioner should be affirmed.

C ONCLUSION
It is the duty of the ALJ reviewing the case, and not the responsibility of the courts,
to make findings of fact and resolve conflicts in the evidence. This court’s scope of review

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is limited to the determination of whether the findings of the Commissioner are supported
by substantial evidence taking the record as a whole, Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996), and whether the correct law was applied,” Walls v. Barnhart, 296 F.3d 287, 290
(4th Cir. 2002).
After a careful review of the record, including the findings of the ALJ, the briefs from
the plaintiff and the Commissioner, the Magistrate Judge’s Report, and the plaintiff’s
objections thereto, this court finds the Report is proper and is incorporated herein by
reference. Accordingly, the Commissioner’s decision is affirmed.
IT IS SO ORDERED.

September 19, 2011
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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