Burns v. Social Security Administration, Commissioner et al

Filing 32

MEMORANDUM. An Order shall enter signed by District Judge Curtis L Collier on 3/21/12. (JGK, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
ANTONIO L. BURNS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 1:10-CV-42
Chief Judge Curtis L. Collier

MEMORANDUM
Plaintiff Antonio L. Burns (“Plaintiff”) brought this action on February 26, 2010, seeking
judicial review of the final decision of the Commissioner of Social Security (“Commissioner”)
denying Plaintiff disability and social security income (“SSI”) benefits. The Court referred the
matter to United States Magistrate Judge Susan K. Lee, pursuant to 28 U.S.C. § 636(b) and in
accordance with Rule 72(b) of the Federal Rules of Civil Procedure for a report and recommendation
(“R&R”) regarding the disposition of Plaintiff’s motion for summary judgment (Court File No. 22)
and Defendant’s motion for summary judgment (Court File No. 24).1 The magistrate judge filed an
R&R (Court File No. 26) recommending Plaintiff’s motion for summary judgment be denied, the
Commissioner’s motion for summary judgment be granted (Court File No. 24), and the
Commissioner’s decision to deny Plaintiff disability and SSI benefits be affirmed. Plaintiff timely
objected to the R&R (Court File No. 27), and the Commissioner responded (Court File No. 30). For
the reasons discussed below, the Court will ACCEPT and ADOPT the magistrate judge’s R&R,
DENY Plaintiff’s summary judgment motion denied (Court File No. 22), GRANT the

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motions.

Neither Plaintiff nor the Commissioner filed response briefs to these summary judgment

Commissioner’s motion for summary judgment (Court File No. 24), AFFIRM the Commissioner’s
decision to deny Plaintiff disability and SSI benefits, and DISMISS the case.

I.

STANDARD OF REVIEW
This Court must conduct a de novo review of those portions of the R&R to which objection

is made and may accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. 28 U.S.C. § 636(b)(1). The Court’s standard of review is essentially the same
as the magistrate judge’s–review is limited to determining if the Commissioner’s findings are
supported by substantial evidence and if proper legal standards were used. 42 U.S.C. § 405(g);
Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (per curiam).
“Substantial evidence” means evidence a reasonable mind might accept to support the conclusion
at issue. Richardson v. Perales, 402 U.S. 389, 401 (1971). “Substantial evidence is defined as
‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284,
286 (6th Cir. 1994)).

If supported by substantial evidence, the Court must affirm the

Commissioner’s findings, even if substantial evidence also supports the opposite conclusion. Jones
v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003). The substantial evidence standard
presupposes there is a zone of choice within which the decision makers can go either way, without
interference by the courts. Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994). The Commissioner need
not discuss every aspect of the record or explain every finding at length but must “articulate with
specificity reasons for the findings and conclusions that he or she makes” to facilitate meaningful

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judicial review. Bailey v. Comm’r of Soc. Sec., No. 98-3061,1999 WL 96920, at *4 (6th Cir. Feb.
2, 1999).

II.

DISCUSSION
Plaintiff makes three objections–which Plaintiff refers to as “averments of error”–to the

magistrate judge’s R&R. First, Plaintiff argues the magistrate judge erred by concluding the
Administrative Law Judge (“ALJ”) did not have to expressly consider whether Plaintiff met the
standard for mental retardation under the Social Security Act and its implementing regulations.
Second, Plaintiff contends the ALJ’s failure to expressly consider whether Plaintiff satisfied the
standard for mental retardation ipso facto renders the ALJ’s finding unsupported by substantial
evidence. Finally, Plaintiff argues the ALJ’s unstated reasons for finding Plaintiff did not meet the
mental retardation standard are not based on substantial evidence. In response, the Commissioner
argues 1) the magistrate judge correctly concluded the ALJ had considered whether Plaintiff met the
mental retardation standard even though the ALJ did not specifically refer to the relevant listing; 2)
the magistrate correctly concluded Plaintiff’s daily activities did not warrant a finding Plaintiff was
disabled; and 3) Plaintiff’s arguments in support of his third objection rely on unsupported attacks
on the competence of psychologists who examined Plaintiff. The Court will examine in turn
Plaintiff’s three objections.2
A.

Express Consideration of Impairment Listing

In determining whether a claimant qualifies as disabled under the Social Security Act, the

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Because none of Plaintiff’s objections challenges the factual findings made by the
magistrate judge, the Court accepts and adopts the facts as found in the magistrate judge’s R&R
(Court File No. 26, pp. 2-5).
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Social Security Administration has established a five-step sequential process. 20 C.F.R.§§
404.1520(a) and 416.920(a). Step Three, which is at issue in this case, requires the ALJ to
determine whether a claimant’s impairment or combination of impairments meets or medically
equals the criteria of an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App’x. 1. Plaintiff first
argues the ALJ’s failure to expressly consider whether Plaintiff satisfied Listing 12.05 (mental
retardation) violates the ALJ’s requirement to expressly state all findings on the record. Although
Plaintiff concedes the ALJ did discuss the issue of Plaintiff’s mental retardation to some extent,
Plaintiff’s first objection rests on the ALJ’s failure to make an express finding on Listing 12.05.
Citing no cases in support of his argument, Plaintiff instead relies on the general statutory
command that
[t]he Commissioner of Social Security is directed to make findings of fact, and
decisions as to the rights of any individual applying for a payment under this
subchapter. Any such decision by the Commissioner of Social Security which
involves a determination of disability and which is in whole or in part unfavorable
to such individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it is based.
42 U.S.C. 405(b)(1). Plaintiff derives from this language, as well as the directive in 20 C.F.R. §
404.1520a (a)(3) that an ALJ evaluating a mental impairment claim “organize and present . . .
findings in a clear, concise, and consistent manner,” a per se rule whereby the failure to expressly
mention a listing warrants remand if the ultimate decision is unfavorable. It follows, Plaintiff
argues, when the ALJ here found Plaintiff “did not medically meet or equal the criteria of Listings
12.02, 12.04, and 12.06” (Administrative Record, p. 13) (hereinafter “AR”), the ALJ’s failure to
explicitly find Plaintiff did not meet the criteria in 12.05 requires remand for the ALJ to consider
Plaintiff’s claim under that listing.

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The Court can find no support for such a rule, and will not overturn the Commissioner’s
decision on this basis alone. Instead, the statutory and regulatory language, as well as relevant case
law, indicates an ALJ errs when he fails to provide a sufficient explanation for a decision
unfavorable to a claimant. See, e.g., Felisky, 35 F.3d at1036 (“If an ALJ rejects a claimant's
testimony as incredible, he must clearly state his reasons for doing so.”); Wines v. Comm’r of Soc.
Sec., 268 F.Supp.2d 954, 958 (N.D. Ohio 2003) (same). Thus, as long as an ALJ provides a
reasoned discussion which is explained in clear language and supported by substantial evidence, and
applies the correct legal standard, that decision must be upheld by a reviewing court. Although the
ALJ in this case regrettably failed to expressly indicate he had considered whether Plaintiff met or
equaled the mental retardation listing, his discussion shows he did in fact do so. See AR 14-15.
Accordingly, the Court rejects Plaintiff’s invitation to craft a per se rule requiring remand
where an ALJ has expressed his findings in a clear, concise, and organized manner but failed to state
expressly a listing under which he has considered a claimant’s claim. The Court DENIES Plaintiff’s
first objection.
B.

Absence of Express Consideration of Impairment Listing as Lack of
Substantial Evidence

Plaintiff’s next objection is a repackaged version of his first one. Buttressed with only two
short paragraphs, Plaintiff contends “[w]hen the ALJ does not discuss the relevant listing, it is
impossible to make a substantial evidence argument that what he (might have) relied upon in finding
the relevant listing was unmet is not in fact met or equaled, it requires presumptions that a claimant
should not have to make” (Court File No. 27, p. 5). This argument, however, depends on the
assumption the ALJ did not in fact discuss the relevant listing. Here, that assumption is unfounded.
Although the ALJ did not explicitly cite 12.05, the mental retardation listing, in his decision, he did
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consider mental retardation as part of Plaintiff’s claim. Thus, the Court can determine whether the
ALJ’s decision used the proper legal standards and rested on substantial evidence without
reweighing evidence, resolving conflicting evidence, or making credibility determinations. See
Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). The mere fact the ALJ did not cite the mental
retardation listing neither ipso facto renders the ALJ’s decision unsupported by substantial evidence
nor prevents this Court from reviewing that decision under the substantial evidence standard.
Whether the ALJ’s decision was in fact supported by substantial evidence is a distinct question, and
is what the Court examines next. The Court thus DENIES Plaintiff’s second objection.
C.

Whether Substantial Evidence Supported the ALJ’s Conclusion

Plaintiff’s final objection presents the heart of his argument: substantial evidence did not
support the ALJ’s decision denying Plaintiff a period of disability and SSI benefits. The magistrate
judge’s analysis in the R&R provides a comprehensive explanation of why the ALJ’s decision was
supported by substantial evidence, and the Court will not simply repeat that analysis here. Instead,
the Court will focus on the specific arguments Plaintiff has made in this final objection to the R&R.
The Court has identified three such arguments: 1) one examiner concluded Plaintiff was in fact
retarded; 2) the two examiners who concluded Plaintiff was not retarded did not examine him in
person and incorrectly assumed Plaintiff’s job as a fast food cook required greater mental
competence than it did; and 3) there are significant questions of fact regarding whether Plaintiff
experienced deficits in adaptive functioning. After a brief observation regarding the ALJ’s decision,
the Court addresses each of these arguments in turn.
To be found mentally retarded under Listing 12.05, a claimant must, in addition to meeting
criteria in sections A, B, C, or D of 20 C.F.R. Pt. 404, Subpt. P. App’x. 1, §12.05, show “(1) the

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claimant suffers from ‘significantly subaverage general intellectual functioning,’ (2) the claimant
suffers from ‘deficits in adaptive functioning,’ (3) such deficits initially manifested during the
developmental period (i.e., before age 22).” Daniels v. Comm. of Soc. Sec., 70 F. App’x. 868, 872
(6th Cir. 2003) (quoting regulatory language). In his decision, the ALJ considered each of these
factors.

The ALJ discussed Plaintiff’s intellectual functioning, his adaptive functioning as

manifested through his education history, work history, and daily activities, the results of IQ testing
on Plaintiff, and work limitations Plaintiff faced. AR 14-15. Having considered these various
factors, the ALJ concluded as follows:
In regards to [Plaintiff’s] mental health impairments, while the consultative examiner
found two slight limitations and two moderate limitations, there was no basis to find
a mental limitation that would preclude the claimant from working. Despite the fact
that the consultative examination found that he was functioning in the mild range of
mental retardation, his adaptive functioning, his work history, and his current work
as a cook suggest that he was functioning more in the borderline range. Furthermore,
his activities of daily living were adequate. Also, the fact that he worked as a cook
from January 2001 to February 2004 and as a construction laborer from April 2004
to June 2006 showed that his mental problems did not preclude him from working.
Id. at 15. Thus, although the ALJ did not explicitly mention Listing 12.05, the ALJ did consider the
elements involved in determining whether Plaintiff met or equaled the 12.05 listing for mental
retardation.
Plaintiff first argues the ALJ’s decision lacked substantial evidence because one examiner
concluded Plaintiff “was retarded and that his education, and behavior were fully consistent with
being retarded” (Court File No. 27, p. 6) (citing AR 166-67). This argument falls short for two
reasons. First, it mischaracterizes the examiner’s actual findings. In fact, the examiner, David
Thompson, assessed Plaintiff with “intellectual functioning in the mild range of mental retardation
with commensurate levels of academic achievement.” AR 166. Thompson’s conclusion Plaintiff

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functioned “in the mild range of mental retardation” is distinct from an outright determination
Plaintiff was retarded. Second, Plaintiff’s first argument only suggests some evidence supported a
different conclusion than the one the ALJ reached. But as long as substantial evidence supports the
ALJ’s decision, the Court must affirm it, even if substantial evidence also supports the opposite
conclusion. Jones, 336 F.3d at 475. Because substantial evidence did support the ALJ conclusion’s
that Plaintiff was not mentally retarded to the extent that it precluded him from working, the
existence of evidence supporting a different conclusion does not persuade the Court to reverse the
ALJ’s decision.
Plaintiff’s second argument–that the two examiners who concluded Plaintiff was not
mentally retarded made faulty assumptions–fails because Plaintiff has waived it. In making its
decision, the ALJ relied in part on the conclusions of two state agency psychologists. Dr. Fawz E.
Schoup found Plaintiff had borderline intellectual functioning, AR 199, a finding echoed by Dr. P.
Jeffrey Wright, AR 259. Plaintiff did not challenge these doctors’ findings in his own summary
judgment motion, and did not challenge these findings in response to the Commissioner’s summary
judgment motion.3 Thus, because Plaintiff has waited until objecting to the R&R to make this
argument, Plaintiff has waived this claim. Swain v. Comm’r of Soc. Sec., 379 F.App’x. 512, 517-18
(6th Cir. 2010) (“A claim raised for the first time in objections to a magistrate judge’s report is
deemed waived.”) (internal bracket removed; citations omitted); see also Roberts v. Apfel, 222 F.3d
466, 470 (8th Cir. 2000) (“A claimant must present all his claims squarely to the magistrate judge,
that is, the first adversarial forum, to preserve them for review . . . . To hold otherwise would allow

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Indeed, Plaintiff did not file any response to the Commissioner’s summary judgment

motion.
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a claimant to raise new claims to the district court and thus effectively have two opportunities for
judicial review.”). Because Plaintiff has waived this argument, it cannot be a basis for overturning
the ALJ’s decision.
Even if waiver did not apply, Plaintiff’s second argument also commits the very wrong it
accuses the state psychologists of making: erroneous assumptions. Plaintiff argues both doctors “are
out of their expertise when it comes to [Plaintiff’s] vocational demands,” and based their “erroneous
assumption[s]” on the fact Plaintiff’s work “is far more skilled than it is” (Court File No. 27, p. 9).4
Plaintiff provides, however, no support for his bare assertion the two doctors assumed the fast food
cook position Plaintiff held was a skilled position. A more plausible assumption is that both doctors,
who had access to Plaintiff’s submissions to the Social Security Administration, would have known
Plaintiff worked as a part-time5 fast food cook, and that such a position did not require high
intelligence or a specialized skill set. Plaintiff offers nothing in the record to unsettle this latter
assumption.
Finally, Plaintiff contends “a huge issue of fact” regarding whether Plaintiff suffered from
deficits in adaptive functioning warrants remand (id.). In support of this argument, Plaintiff notes
he does not live alone, has no responsibility for pets or other persons, needs reminders to maintain
his hygiene, does not possess a driver’s license, and does not oversee his own finances (id.). The
record indicates, however, the ALJ considered Plaintiff had “moderate limitations in activities of

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Plaintiff devotes an entire page of his brief to providing the Court with definitions from The
Dictionary of Occupational Title of “fry cook” and “fast food worker” (Court File No. 27, p. 8). The
upshot of these definitions is that the positions do not require someone of high intelligence to
perform. Nothing in either Dr. Schoup’s or Dr. Wright’s evaluation of Plaintiff suggested otherwise.
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Both doctors note Plaintiff only worked part-time as a cook. See AR 199, 259.
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daily living” and “moderate limitation in social functioning.” AR 15. Moreover, the ALJ
specifically concluded Plaintiff had adequate adaptive functioning, id., a conclusion supported by
the opinions of Drs. Schoup and Wright. Cf. Elam v. Comm’r of Soc. Sec., 348 F.3d 124, 126 (6th
Cir. 2003) (finding claimant did not meet Listing 12.05 because two psychologists concluded
claimant “was actually operating within the borderline range of intellectual functioning, although
her intelligence test scores, standing alone, would indicate mental retardation”). As with Plaintiff’s
first argument, the existence of evidence supporting Plaintiff’s claim he suffered from deficits in
adaptive functioning cannot overcome the ALJ’s decision as long as substantial evidence supports
the ALJ’s decision. Jones, 336 F.3d at 475. The Court conclude substantial evidence supports the
ALJ’s finding Plaintiff had adequate adaptive functioning such that he did not meet or equal the
mental retardation standard articulated in Listing 12.05
Because substantial evidence supported the ALJ’s decision to deny Plaintiff a period of
disability and SSI benefits, the Court DENIES Plaintiff’s third objection.

III.

CONCLUSION
The Court has considered Plaintiff’s objections after its complete review of the record, and

has found them without merit. Accordingly, the Court will ACCEPT and ADOPT the magistrate
judge’s R&R (Court File No. 26). The Court will GRANT Defendant’s motion for summary
judgment (Court File No. 24), and DENY Plaintiff’s summary judgment motion (Court File No. 22).
Finally, the Court will AFFIRM the Commissioner’s decision and will DISMISS the case.
An Order shall enter.

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/s/
CURTIS L. COLLIER
CHIEF UNITED STATES DISTRICT JUDGE

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