Calderwood v. Commissioner of Social Security
Filing
19
MEMORANDUM OPINION AND ORDER re 1 Complaint filed by John D Calderwood. The Court concludes that the Appeals Council did not err in upholding the ALJ's decision that Plaintiff is not per se disabled under the Listing Categories set forth in 20 C.F.R. § Pt. 404, Subpt. P, App. 1, including Medical Listing 12.05C. Pursuant to the foregoing, the decision of the Commissioner is AFFIRMED. Signed by Magistrate Judge Christine A. Nowak on 3/18/2016. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JOHN D. CALDERWOOD,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
§
§
§
§
§
§ CIVIL ACTION NO. 4:14-CV-00495-CAN
§
§
§
§
MEMORANDUM OPINION AND ORDER
Plaintiff brings this appeal under 42 U.S.C. § 405(g) for judicial review of the final
decision of the Commissioner of Social Security (“Commissioner”) denying his claim for
disability insurance benefits. After reviewing the Briefs submitted by the Parties, as well as the
evidence contained in the administrative record, the Court finds that the Commissioner’s
decision should be AFFIRMED.
BACKGROUND
I.
PROCEDURAL HISTORY OF THE CASE
On July 28, 2011, John D. Calderwood (“Plaintiff”) filed his application for supplemental
security income (“SSI”) benefits under Title XVI of the Social Security Act (“Act”), alleging an
onset of disability date of December 31, 2008 [TR at 104]. Plaintiff’s application was initially
denied by notice on December 20, 2011, and again upon reconsideration on April 6, 2012, after
which Plaintiff requested a hearing before an administrative law judge (“ALJ”). Id. at 106-13,
117-20, 121-23.
The case was transferred, per Plaintiff’s request, to Dallas for hearing.
Id. at 132. The ALJ conducted a hearing on January 30, 2013, and heard testimony from
ORDER – Page 1
Plaintiff, his mother Virginia Mynatt (“Ms. Mynatt”), and the Vocational Expert,
Michael F. Gartman (“Mr. Gartman”). Id. at 63-103. Plaintiff was represented by counsel at the
hearing. Id. On March 20, 2013, the ALJ issued his decision denying benefits and found
Plaintiff not disabled at step five of the prescribed sequential evaluation process (discussed
infra). Id. at 33, 55-56. On May 3, 2013, Plaintiff requested that the Appeals Council review
the ALJ’s decision, and on June 4, 2014, the Appeals Council denied Plaintiff’s request for
review, making the decision of the ALJ the final decision of the Commissioner. Id. at 1-5,
27-28.
On August 1, 2014, Plaintiff filed his Complaint with this Court [Dkt. 1]. Plaintiff filed
his Brief on March 17, 2015 [Dkt. 11], and the Commissioner filed her Brief in Support of the
Commissioner’s Decision on May 1, 2015 [Dkt. 12]. On May 6, 2015, the administrative record
was received from the Social Security Administration [Dkt. 13]. On May 12, 2015, Plaintiff
filed his Reply [Dkt. 14]. On November 4, 2015, this case was assigned to the undersigned by
consent of all Parties for further proceedings and entry of judgment [Dkt. 18].
II.
STATEMENT OF RELEVANT FACTS
1.
Age, Education, and Work Experience
Plaintiff was born on September 22, 1967, making him forty-three years of age at the
time of filing his application and forty-six years of age on the date of the Commissioner’s final
decision [TR at 104]. Plaintiff completed the ninth grade and received his General Education
Development (“GED”) from El Paso Community College in 1991. Id. at 66-67. Plaintiff’s past
relevant work experience includes a lawn/landscape worker and an Injection-Molding-Machine
Tender. Id. at 213, 237-38, 442. On January 30, 2013, at the time of the ALJ hearing, Plaintiff
reported working part-time for the City of Whitewright to “clean their national parks.” Id. at 67.
ORDER – Page 2
Plaintiff asserts that his onset date of disability is December 31, 2008. Id. at 104. Plaintiff has a
past history of drug and alcohol abuse, with a sobriety date of June 6, 2009. Id. at 67.
2.
Medical Record Evidence
Plaintiff’s medical records contain several differing reports regarding Plaintiff’s “mental
retardation,” “dementia secondary to prior head trauma,” and “intellectual disabilities”
[TR at 320-24, 450-57, 493-98, 500-13]. 1 Indeed, the Court notes at least four separate medical
expert reports were presented to the ALJ with conflicting viewpoints regarding Plaintiff’s
diagnoses relating to his intellectual disability and/or dementia secondary to prior head trauma,
and the causes of such deficits, if any, which are summarized herein. Id.
a.
Dr. LoPiccolo’s Evaluations in 1990–1994
Dr. Philip F. LoPiccolo, M.D. (“Dr. LoPiccolo”) completed a Developmental Evaluation
Summary dated June 11, 1991 and also provided a follow up file letter dated December 19, 1994.
[TR at 320-24].
The Developmental Evaluation Summary and letter were based on three
evaluations of Plaintiff on December 4, 1990, December 18, 1990, and January 10, 1991. Id.
The Developmental Evaluation Summary explains that Plaintiff experiences visual memory
deficits, neurologic immaturity, low academic skills, compulsivity, and distractibility.
Id. at 320-23. The Evaluation further states that such symptoms are consistent with minimal
brain dysfunction, suspected subclinical partial-complex seizures, and residual type attention
deficit disorder. Id. Dr. LoPiccolo prescribed Tegretol following completion of the Evaluation.
Id. Dr. LoPiccolo’s follow up letter indicates that he continued to see Plaintiff regularly for
1
As noted infra, at the time of the ALJ hearing the proper terminology in use for Medical Listing 12.05, including
subsection C, was “mental retardation” rather than “intellectual disability.” Change in Terminology: “Mental
Retardation” to “Intellectual Disability”, 78 Fed. Reg. 46499-01 (to be codified at 20 C.F.R § Pt. 404 and 416);
discussed infra at p. 18-20. The analysis of an impairment under the Listing is the same both before and after the
terminology change. Id. For sake of simplicity and clarity, this Court will refer to Medical Listing 12.05 by its
current title “Intellectual Disability.”
ORDER – Page 3
medical monitoring, physical checks, and medical advisement until April 7, 1992, but has not
seen Plaintiff since then. Id.
b.
Dr. Pennissi Taylor’s Evaluations in February 2010
Dr. Pennissi Taylor, Ph.D., P.C., Licensed Psychologist (“Dr. Taylor”) completed a
Neuropsychological Evaluation and a Mental Status Examination (collectively “Dr. Taylor’s
Evaluations”) both dated February 11-12, 2010 [TR at 450-57, 493-98]. Dr. Taylor stated in the
Mental Status Examination that Plaintiff has a history of traumatic brain injury including a fall
from a bridge in 1999, but no history of closed head injuries (e.g. blow to head with no
penetration of skull or brain) or seizures. Id. at 493-498. Dr. Taylor further advised that
Plaintiff’s speech was within normal limits; his though processes, mood and affect, memory, and
attention and concentration were good or pretty average; and his insight and judgment were fair.
Id. at 496-97.
Dr. Taylor diagnosed Plaintiff with dementia secondary to head trauma,
polysubstance dependence in remission by patient report, and a head injury based on the
Diagnostic and Statistical Manual of Mental Disorders IV (“DSM IV”). Id. at 497.
The Neuropsychological Evaluation based upon Dr. Taylor’s administration of the
WAIS-III, a test of cognitive and intellectual functioning, found Plaintiff’s IQ scores to be
66 (Verbal), 69 (Performance) and 65 (Full Scale). Id. 350-57. Dr. Taylor opined that “it seems
that this [IQ score] categorization is a bit of an underestimate of his problem solving ability,”
“[h]is academic scores were superior to the vast majority of his IQ scores, and again those IQ
scores do seem to be an underestimate of his ability to learn and recall information,” and “there
is no evidence of formal learning disability but there is evidence of cognitive dysfunction.” Id.
Dr. Taylor went on to state that Plaintiff’s academic skills fall around grade five and that his true
cognitive skills would likely be above the mentally retarded range. Id. Dr. Taylor again
ORDER – Page 4
diagnosed Plaintiff with dementia secondary to head trauma and polysubstance dependence in
remission by patient report. Id. Plaintiff was reported in Dr. Taylor’s Evaluations to have a
Global Assessment of Functioning (GAF) score of 48. Id.
c.
Richard Isbell’s Evaluation in July 2011
Richard Isbell (“Mr. Isbell”), a physician’s assistant provided an Office Visit Report
dated July 11, 2011 (“Report”), and a follow up examination report dated July 28, 2011
[TR at 468-74]. The Report states that Plaintiff has a history of “[m]ild MR following head
injury in 1999.” Id. at 468-71. The Report goes on to describe Plaintiff’s headaches as moderate
to severe and describes that Plaintiff has the following conditions: unspecified psychoderma,
mild mental retardation, and abnormal weight gain. Id. The follow up examination report
includes the same general notations. Id. at 472-74.
d.
Dr. Susan Posey’s Evaluation in November 2011
Susan Posey, PsyD. (“Dr. Posey”) completed a Psychiatric Review Technique report
dated November 28, 2011 [TR at 500-31]. Dr. Posey evaluated Plaintiff using a standardized
check the box form which included the Standard Social Security Administration Medical
Listings. Id. Her diagnosis reflects organic mental disorders (Listing 12.02) with notations of
dementia secondary to head injury and substance addiction disorders (Listing 12.09) with
notations of polysubstance abuse in remission. Id. Dr. Posey did not diagnose or annotate
Medical Listing 12.05, or any other Medical Listings, and indicated that the “C” Criteria in the
Listings were not present. Id. Dr. Posey explains in her consultant’s notes that “[t]he [claimant]
is somewhat limited by dementia.
But the impact of these [symptoms] does not wholly
compromise the ability to function independently, appropriately, and effectively on a sustained
basis.” Id.
ORDER – Page 5
3.
Hearing Testimony
a.
Plaintiff’s Testimony
At the hearing before the ALJ on January 30, 2013, Plaintiff testified that he received a
GED from El Paso Community College in 1991, and completed the ninth grade [TR at 66].
Plaintiff reported having a felony criminal and alcohol/drug abuse history that effects his ability
to find and maintain a job, but reported that he had been sober since June 6, 2009. Id. at 66-77.
Plaintiff indicated that he worked part-time approximately three mornings a week for the City of
Whitewright “cleaning their national parks.” Id. Plaintiff further testified that he gets tired
easily, has problems with his memory, cannot focus for long periods of time, has headaches that
come and go, and has knee pain. Id. at 78-82. Finally, Plaintiff reported that he was mugged in
2003 and, following the mugging, woke up in Parkland Hospital with no memory of how he got
there. Id. at 73.
b.
Plaintiff’s Mother’s Testimony
Plaintiff’s mother Ms. Mynatt also testified at the hearing before the ALJ. Id. at 83-93.
Ms. Mynatt reported that Plaintiff is impulsive, does things without thinking, and does not
handle money well. Id.. Ms. Mynatt also testified that Plaintiff’s mental symptoms have
“always been with him, but I think it is worse since the fall off the bridge” in 1999. Id. at 88.
c.
Vocational Expert Testimony
Mr. Gartman testified as a vocational expert at the hearing. Id. at 96. The ALJ asked Mr.
Gartman to describe Plaintiff’s work history, which he classified into two positions: (1) lawn
service worker (which is heavy work with a Special Vocational Preparation (“SVP”)) 2 of 4; and
2
SVP is defined in the Dictionary of Occupational Titles (“DOT”) as “the amount of lapsed time required by a
typical worker to learn the techniques, acquire the information, and develop the facility needed for average
performance in a specific job-worker situation.” DOT, Appendix C, page 1009 (4th ed. 1991). Using the skill level
definitions in 20 C.F.R. § 404.1568 and § 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled work
ORDER – Page 6
(2) Injection-Molding-Machine Tender (which is light work with a SVP of 2). Id. at 96-103.
The ALJ then asked Mr. Gartman a hypothetical question incorporating Plaintiff’s age, work
history, and education, and asked Mr. Gartman to assume the hypothetical individual was
capable of lifting 50 pounds occasionally and 25 pounds frequently; could stand and walk about
six hours in an eight hour workday; and had occasional postural limitations. Id. The ALJ asked
Mr. Gartman if the hypothetical individual could perform Plaintiff’s past relevant work, and
Mr. Gartman answered affirmatively that Plaintiff could perform work as an “injection molding
machine operator [sic].” Id. Mr. Gartman also answered affirmatively that Plaintiff could
perform his past work as an Injection-Molding-Machine Tender when the ALJ added the
limitations that: (i) Plaintiff is only able to understand, remember, and carry out simple
instructions; (ii) make simple decisions; (iii) attend and concentrate for extended periods; (iv)
interact adequately with coworkers and supervisors; and (v) respond appropriately to changes in
a routine work setting. Id. Finally, the ALJ asked a series of hypothetical questions assuming a
full range of sedentary work and adding the limitations that (1) Plaintiff would need to take an
unplanned thirty minute break each day, and (2) Plaintiff has problems focusing and would be
off task at least one hour per day. Id. Mr. Gartman indicated that Plaintiff would not be able to
perform a range of sedentary work, or Plaintiff’s past work, with each of those limitations. Id.
III.
FINDINGS OF THE ALJ
1.
Sequential Evaluation Process
Pursuant to the statutory provisions governing disability determinations, the
Commissioner has promulgated regulations that establish a five-step process to determine
whether a claimant suffers from a disability. 20 C.F.R. § 404.1520. First, a claimant who is
corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT. Social Security Ruling
00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000).
ORDER – Page 7
engaged in substantial gainful employment at the time of his disability claim is not disabled.
20 C.F.R. § 404.1520(b). Second, the claimant is not disabled if his alleged impairment is not
severe, without consideration of his residual functional capacity, age, education, or work
experience. 20 C.F.R. § 404.1520(c). Third, if the alleged impairment is severe, the claimant is
considered disabled if his impairment corresponds to a listed impairment in 20 C.F.R., Part 404,
Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d). Fourth, a claimant with a severe impairment
that does not correspond to a listed impairment is not considered to be disabled if he is capable of
performing his past work. 20 C.F.R. § 404.1520(e). Finally, a claimant who cannot return to his
past work is not disabled if he has the residual functional capacity to engage in work available in
the national economy. 20 C.F.R. § 404.1520(f). Under the first four steps of the analysis, the
burden lies with the claimant to prove disability and at the last step the burden shifts to the
Commissioner.
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
If at any step the
Commissioner finds that the claimant is or is not disabled, the inquiry terminates. Id.
2.
ALJ’s Disability Determination
After hearing testimony and conducting a review of the facts of Plaintiff’s case, the ALJ
made the following sequential evaluation. At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since December 31, 2008, the alleged onset of disability
date, and any work had been done after that date was not performed at the substantial gainful
activity level [TR at 35].
At step two, the ALJ determined that Plaintiff had the severe
impairments of mild paraspinal lumbar muscle spasm with low back pain; mild obesity; diabetes
mellitus; headaches; dementia secondary to prior head trauma; and polysubstance dependence in
remission, and such impairments were medically determinable. Id. at 36-43. The ALJ also
found, at step two, that Plaintiff does not have the severe impairment of mental retardation. Id.
ORDER – Page 8
However, at step three, the ALJ found that these impairments, or combination of impairments,
did not meet or medically equal the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1, including, but not limited to, Listing 1.04 (disorders
of the spine), Listing 11.02 (major motor seizures); Listing 11.03 (minor motor seizures),
Listing
11.04
(cerebrovascular
accident),
Listing
11.14
(peripheral
neuropathies),
Listing 12.02 (organic mental disorders including dementia), and Listing 12.09 (substance
addiction disorders). Id. at 43-47. At step four, the ALJ found that Plaintiff has the residual
functional capacity to perform some medium work. Id. at 47-56. 3 The ALJ limited Plaintiff to
no more than occasionally: climbing ramps or stairs, ladders, ropes, or scaffolds; balancing;
stooping; kneeling, crouching; and crawling. Id. The ALJ also included the limitation that
Plaintiff is unable to understand, remember, and carry out detailed and complex job tasks. Id.
At all times from December 30, 2008 to the date of the ALJ’s decision, the ALJ found that
Plaintiff retained the residual functional capacity to frequently lift and/or carry 25 pounds and
occasionally lift and/or carry up to 50 pounds, sit six hours in an eight-hour work day, stand
and/or walk six hours in an eight-hour workday, and push and/or pull commensurate with lifting
3
Each of the job classifications in the national economy is broken down into an exertion level: Sedentary, Light,
Medium, Heavy, and Very Heavy. 20 C.F.R. § 404.1567. Sedentary, Light, and Medium work are defined as
follows:
(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.
(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little,
a job is in this category when it requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we determine that he or she can
also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we
determine that he or she can also do sedentary and light work. Id.
ORDER – Page 9
limitations. Id. Additionally, the ALJ found that Plaintiff retained the ability to understand,
remember, and carry out simple tasks and instructions; make simple decisions; attend and
concentrate for extended periods; interact adequately with coworkers and supervisors; and
respond appropriately to changes in a routine unskilled work setting. Id. Continuing the step
four analysis, the ALJ then determined that Plaintiff is able to perform his past relevant work as
an Injection-Molding-Machine Tender. Id. at 55-56. Based on this determination, the ALJ
concluded Plaintiff was not disabled from December 31, 2008 through January 30, 2013. Id.
STANDARD OF REVIEW
In an appeal under § 405(g), this Court must review the Commissioner’s decision to
determine whether there is substantial evidence in the record to support the Commissioner’s
factual findings and whether the Commissioner applied the proper legal standards in evaluating
the evidence. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); 42 U.S.C. § 405(g).
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985); Jones v. Heckler,
702 F.2d 616, 620 (5th Cir. 1983). This Court cannot reweigh the evidence or substitute its
judgment for that of the Commissioner. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995).
Additionally, any conflicts in the evidence, including the medical evidence, are resolved by the
ALJ, not the reviewing court. Carry v. Heckler, 750 F.2d 479, 484 (5th Cir. 1985).
The legal standard for determining disability under Titles II and XVI of the Act is
whether the claimant is unable to perform substantial gainful activity for at least twelve months
because of a medically determinable impairment. 42 U.S.C. §§ 423(d), 1382c(a)(3)(A); see also
Cook, 750 F.2d at 393. “Substantial gainful activity” is determined by a five-step sequential
evaluation process, as described above. 20 C.F.R. § 404.1520(a)(4).
ORDER – Page 10
ANALYSIS
On appeal, Plaintiff presents a single issue for consideration: whether the ALJ erred when
he did not consider whether Plaintiff’s intellectual deficits met or equaled the requirements set
forth in Medical Listing 12.05C [Dkt. 11 at 1]? Specifically, Plaintiff argues that he meets the
Medical Listing 12.05C criteria; but, that the ALJ did not consider this Listing under his step
three analysis, and incorrectly equated a requirement of “mental retardation diagnosis” with
Medical Listing 12.05C. Id. at 4-11. The Commissioner argues, to the contrary, that the ALJ
fully performed the Listing analysis at step three and fully considered all applicable listings,
including Listing 12.05C, Mental Retardation [Dkt. 12 at 4-11].
The Court agrees,
notwithstanding Plaintiff’s arguments, that in this instance the ALJ properly conducted the step
three analysis with due consideration to the applicable Medical Listings raised by Plaintiff, and
found that Plaintiff did not meet any of the Listings (despite failing to specifically mention
Medical Listing 12.05C). The Court first addresses Plaintiff’s argument that he is per se disabled
under Medical Listing 12.05C.
I.
WHETHER PLAINTIFF
LISTING 12.05C
IS
PER
SE
DISABLED
UNDER
MEDICAL
The third step in the sequential evaluation analysis requires the ALJ to determine if the
claimant has met his burden to prove he has an impairment that meets or equals one of the
Medical Listings in Appendix 1 of Subpart P. 20 C.F.R. § 404.1520(a)(4)(iii). The Listings in
Appendix 1 operate as a presumption of disability. Id. On appeal, Plaintiff argues the ALJ erred
at step three, and that his medical evidence demonstrates he is per se disabled under Medical
Listing 12.05C [Dkt. 11 at 1-15]. 4
4
Plaintiff has not challenged the ALJ’s determinations with respect to the half dozen Listings expressly included in
the ALJ’s Determination. Accordingly, the Court does not address those herein [Dkt. 11 at 1-16].
ORDER – Page 11
Medical Listing 12.05C states:
12.05 Intellectual disability: Intellectual disability 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;
20 C.F.R. § Pt. 404, Subpt. P, App. 1. Whether or not Plaintiff meets Medical Listing 12.05C is
determined by analyzing (1) whether Plaintiff has an intellectual disability, meaning significantly
subaverage general intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period; (2) whether such intellectual disability was
manifested prior to age 22; (3) whether Plaintiff has a valid verbal, performance, or full scale IQ
of 60 through 70; and (4) whether Plaintiff has a physical or other mental impairment imposing
an additional and significant work-related limitation of function.
Id.; Randall v. Astrue,
570 F.3d 651, 656-63 (2009) (outlining the Medical Listing 12.05 analysis which requires both a
showing of an impairment (intellectual disability) and proof that the impairment is severe based
on the criteria in (A) through (D) of the Listing).
As previously noted, this Court may not reweigh the evidence or retry issues de novo.
Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1995); Carry v. Heckler, 750 F.2d 479, 484
(5th Cir. 1985); Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). To that end, the
Commissioner is entrusted to make determinations regarding disability, including weighing
inconsistent evidence. 20 C.F.R. § 404.1527(c)(2). The Fifth Circuit has expressly held that the
ALJ – as fact finder – not this Court has the sole responsibility for weighing the evidence and
may choose whichever physician’s diagnosis is most supported by the record. Muse v. Sullivan,
ORDER – Page 12
925 F.2d 785, 790 (5th Cir. 1991) (citing Bradley v. Bowen, 809 F.2d 1054, 1057
(5th Cir. 1987)). Additionally, when opinions offered by treating and examining physicians are
inconsistent with other substantial evidence in the record, those opinions are not entitled to any
specific weight in the ALJ’s decision. Smith v. Commissioner, No. 4:12-CV-625, 2014 WL
4467880, at *3 (E.D. Tex. Sept. 9, 2014) (citing DeLeon v. Barnhart, 174 F. App’x 201, 202
(5th Cir. 2006)). The ALJ may consider evidence establishing an impairment from acceptable
medical sources, including licensed physicians, licensed or certified psychologists, licensed
optometrists,
licensed
podiatrists,
20 C.F.R. § 404-1513 (a).
and
qualified
speech-language
pathologists.
Unlicensed or non-physician professionals are generally not
considered acceptable medical sources. See Hoelck v. Astrue, 261 F. Appx. 683, 686 (5th Cir.
2008) (finding a non-physician is not an acceptable medical source for GAF scores); Flaherty v.
Halter, 182 F. Supp. 2d 824, 828 (D. Minn. 2001) (finding a therapist or counsel not a
recognized acceptable medical source); Latham v. Astrue, 7-07-CV-086-BD, 2008 WL 4635396,
at *2-4 (N.D. Tex. Oct. 15, 2008) (finding that “a physician’s assistant is not an ‘acceptable
medical source’ whose opinion is entitled to controlling weight”).
1.
Intellectual Disability
Both Plaintiff and the Commissioner seemingly agree that the ALJ made detailed
findings with respect to Plaintiff’s intellectual impairments, including a finding of dementia
secondary to prior head trauma, but not a finding of mental retardation (now known as an
intellectual disability [Dkt. 14 at 1; Dkt. 12 at 11; TR at 36-43]. 5 The ALJ also made detailed
findings regarding intellectual impairments, including findings of moderate difficulties in
concentration, persistence, and pace; cognitive dysfunction; deficits, abet mild, in adaptive
5
The Court finds that neither Plaintiff nor Commissioner have raised this issue in their briefs, and, accordingly, the
Court does not address the issue on appeal [Dkt. 14 at 1, Dkt. 12 at 11].
ORDER – Page 13
functioning such as social functioning; and daily living, and “functional limitations” at steps two
and three of the sequential evaluation [TR at 36-47]. As neither party disputes the issue on
appeal, the Court finds that Plaintiff satisfies the first prong of the Medical Listing 12.05C
analysis [Dkt. 14 at 1; Dkt. 12 at 11].
2.
Impairment Onset Before Age Twenty-Two
As the Commissioner notes, there is little evidence in the record with respect to the onset
of an intellectual disability, if any, before age twenty-two [Dkt 12]. Plaintiff completed the ninth
grade, and received a GED from El Paso Community College in 1991 when he was twenty-three
years old [TR at 66]. The oldest medical records supplied date from 1990 when Plaintiff was
twenty-three years old. Id. at 320-531. The one and only IQ test present in Plaintiff’s medical
records took place on February 12, 2010, when Plaintiff was forty-two years old.
Id. at 532-36. 6 This test, as noted by the Commissioner, was performed after Plaintiff’s two head
traumas in 1999 and 2003 and thus may be reflective of those traumas rather than an impairment
prior to age twenty-two [Dkt. 12 at 7-9; TR at 37, 329, 334, 387, 391, 450. 394]. Indeed, the
ALJ made various findings consistent with this opinion stating, “[a]lthough the claimant does not
have medically determinable mild mental retardation, an attention deficit hyperactivity disorder,
or a right lower extremity impairment, the record reflects that he sustained a closed head injury
with some evidence of cognitive dysfunction” [TR at 41]. The ALJ expressly references Dr.
LoPiccolo’s neurodevelopmental examinations on December 4, 1990, December 18, 1990, and
January 10, 1991, and Dr. LoPiccolo’s diagnosis of minimal brain dysfunction, sub-clinical
partial-complex brain seizures, and residual type attention deficit disorder, but no mental
retardation. Id. at 36, 320-24.
6
The Court notes that pages 320-24 and 532-36 of the record contain the same document [TR at 320-23, 532-36].
The Court will make reference to the document at pages 320 to 324 of the record.
ORDER – Page 14
Plaintiff asserts that in the face of scant evidence such as this [Dkt. 11 at 5], many circuit
courts have adopted a rebuttable presumption that “in the absence of any evidence of a change in
a claimant’s intelligence functioning, it must be assumed that the claimant’s IQ has remained
relatively constant.” Luckey v. U.S. Dept. of Health & Human Services, 890 F.2d 666, 668
(4th Cir. 1989); accord Hodges v. Barnhart, 276 F.3d 1265, 1268 (11th Cir. 2001). The Fifth
Circuit has not expressly adopted this presumption. See Copeland v. Colvin, 771 F.3d 920, 927
(5th Cir. 2014) (recognizing but not adopting the IQ consistency presumption);
Pritchett v. Comm'r of Soc. Sec. Admin., 3:11-CV-00309-BF, 2012 WL 1058123, at *8
(N.D. Tex. Mar. 29, 2012) (recognizing that the Northern District of Texas has adopted the rule
that mental retardation is a life-long impairment, absent evidence of brain injury).
As an initial matter, the Court notes that Plaintiff, in his original application for SSI
Benefits, made the representation that “[he] was not disabled prior to age 22” [TR at 197].
While this representation is not necessarily dispositive, it does support the other evidence in the
record and the the reasonable conclusion that Plaintiff’s intellectual deficits manifested
themselves after age twenty-two.
Here, the ALJ made express findings that Plaintiff’s
intellectual deficits stemmed from his head traumas in 1999 and 2003 when Plaintiff was in his
thirties, thereby rebutting a presumption that Plaintiff’s IQ before age twenty-two was consistent
with his IQ measured at age forty-two [TR at 41].
Moreover, to reiterate, the ALJ is entitled to make determinations regarding the weight of
evidence, and the ALJ’s decision will not be subject to reversal even in the presence of evidence
in the record both supporting and not supporting the ALJ’s determination.
20 C.F.R. §
404.1527(c)(2). Here, there is substantial evidence in the record supporting a conclusion that
Plaintiff’s cognitive dysfunctions resulted from dementia secondary to prior head trauma, rather
ORDER – Page 15
than another cause [TR 450-57, 493-98, 500-31]. Plaintiff’s medical records, when read in light
of the entire record, could reasonably be interpreted to show that Plaintiff did not have an
intellectual disability prior to age twenty-two. The ALJ’s findings, although not expressly
addressing onset prior to age twenty-two, are the substantial equivalent of such a finding and
conclusion. See Rudd v. Colvin, No. 4:14-CV-104, 2015 WL 5719615, at *2-4 (E.D. Tex. Sept.
28, 2015) (holding that, if an ALJ cites evidence he/she relied upon in making a determination
with respect to a Listing, but does not expressly identify the listing, the Listing determination is
still supported by substantial evidence and is more than a bare conclusion). The ALJ’s
determination, when read as a whole, provides sufficient findings and substantial evidence that a
reasonable mind might accept as adequate to support the conclusion that onset of Plaintiff’s
impairment, if any, did not occur prior to age twenty-two. Cook, 750 F.2d at 392; Jones,
702 F.2d at 620.
3.
Valid Verbal, Performance, or Full Scale IQ of 60 through 70
The third prong, the severity prong, of the Medical Listing 12.05C analysis is
confirmation of a verbal, performance, or full scale IQ of 60 through 70.
See 20 C.F.R.
§ Pt. 404, Subpt. P, App. 1. The limited evidence presented to the ALJ regarding Plaintiff’s IQ
scores during the applicable period was conflicting [TR 320-24, 450-57, 493-98]. Plaintiff’s
medical records include a single IQ test performed by Dr. Taylor on February 12, 2011 when
Plaintiff was forty-two years old, which reflected a verbal IQ of 66, a performance IQ of 69, and
a full scale IQ of 65. Id. at 450-57. However, Dr. Taylor expressly stated that Plaintiff’s
academic scores were superior to most of his IQ scores, indicating that the IQ scores are an
underestimate of Plaintiff’s ability to learn and recall information. Id. Dr. Posey, who evaluated
Plaintiff on November 28, 2011, diagnosed Plaintiff with dementia secondary to head trauma and
ORDER – Page 16
polysubstance dependence in remission. Id. at 500-08. Notably, Dr. Posey made specific
findings that Plaintiff does not have mental retardation. Id. at 504. Plaintiff did not provide any
additional neuropsychological testing evidence that would shed further light on his IQ,
particularly prior to age twenty two [see generally TR at 300-531]. 7 Indeed, the only medical
professional who has “diagnosed” Plaintiff with mental retardation is Mr. Isbell who noted in his
report that Plaintiff has “[m]ild MR following head injury in 1999” [TR at 468-74]. However,
Mr. Isbell is a physician’s assistant and his opinion does not constitute an “acceptable medical
source.” See 404 C.F.R. 1513; Hoelck v. Astrue, 261 Fed. Appx. 683, 686 (5th Cir. 2008)
(stating that a non-physician is not an acceptable medical source); Latham v. Astrue, 7-07-CV086-BD, 2008 WL 4635396, at *2-4 (N.D. Tex. Oct. 15, 2008) (“a physician’s assistant is not an
“acceptable medical source” whose opinion is entitled to controlling weight”). 8 His opinion
therefore need not be afforded any weight by the ALJ. Latham v. Astrue, 208 WL 4635396, at
*2-4 (stating that a non-physician’s opinion(s) including a physician’s assistant may be used as
evidence to assist in determining severity of impairment but is not controlling). Absent Mr.
Isbell, no medical professional “diagnosed” Plaintiff with mental retardation or intellectual
disability [TR 36-43].
As noted previously, the ALJ is entitled to make determinations regarding the weight of
evidence, and such decision will not be reversed unless there is no substantial evidence in the
record to support the ALJ’s determination. 20 C.F.R. § 404.1527(c)(2).
7
When substantial
The ALJ referenced Plaintiff’s treatment for attention deficit disorder in 1991-1994 [TR at 41]. However, such
information does not necessarily show mental deficits per se, and, during the relevant time period under
examination, medical examinations did not reflect either hyperactivity or attention deficit disorder
Id. at 41, 320-24, 333-31.
8
This court notes that Plaintiff submitted additional evidence to the Appeals Council, specifically medical records
from the Greater Texoma Health Clinic, Inaccuracies in Judicial Review Letter; Anecdotal Information re: John
Calderwood; and a Representative Brief [TR at 5, 313-19]. As the Appeals Council noted, these records pertain
primarily to the period after March 20, 2013, and therefore are not relevant to the ALJ’s findings. Id. at 1-5.
Plaintiff did not raise the Appeals Council’s consideration of these records on appeal, and this Court finds such issue
is not before it [Dkts. 11, 14].
ORDER – Page 17
evidence supports the ALJ’s decision, the decision is not subject to reversal even though there
may be substantial evidence in the record that would have supported the opposite conclusion.
Dashti v. Astrue, No. 4:11-cv-196, 2012 WL 1624150, at *6 (N.D. Tex. Apr. 9, 2012); see also
Dollins v. Astrue, No. 4:08-cv-503, 2009 WL 1542466, at *5 (N.D. Tex. June 2, 2009).
The Parties argue at length in their briefs regarding the relevance of Plaintiff’s previous
diagnoses of mental retardation [Dkt. 11 at 3-4; Dkt. 12 at 5-8]. However as noted by both
Plaintiff and the Commissioner, 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.05C specifically
defines “Mental Retardation” for purposes of Social Security Disability.
Id.
Although a
physician’s diagnosis of mental retardation and its related evaluation are relevant to the inquiry
under Medical Listing 12.05C, it is not dispositive or controlling. Christner v. Astrue, 498 F.3d
790 (8th Cir. 2007) (finding “a formal diagnosis of mental retardation is not required to fall
within the confines of section 12.05” but going on to state that “[i]t is true that ‘[a]n ALJ may
disregard a claimant’s IQ score when it is derived from a one-time examination by a non-treating
psychologist, particularly if the score is inconsistent with the claimant’s daily activities and
behavior.”) (citing Muncy v. Apfel, 247 F.3d 728, 733 (8th Cir. 2001)); Muse, 925 F.2d at 790
(finding “[a]n ALJ may make factual determinations on the validity of I.Q. tests”); Pierre v.
Sullivan, 884 F.2d 799, 803 (5th Cir.1989). The ALJ as fact finder has the sole responsibility for
weighing the evidence. Id. This Court finds that the ALJ considered the medical expert reports,
including diagnoses, or lackthereof, related to mental retardation, in light of their relevance to the
Listing criteria inquiry and not as dispositive of the issue of Medical Listing 12.05C or any other
subsection of Medical Listing 12.05, and that the ALJ, unlike in Christner, 498 F.3d at 793-94,
made a formal determination that Plaintiff was not mentally retarded as defined by the Listing
criteria [TR at 41].
ORDER – Page 18
Here, the ALJ accurately stated in his Determination that “[n]o treating or examining
mental health professional has diagnosed claimant as having mental retardation” and went on to
make express findings regarding the credibility and weight of the IQ scores in Plaintiff’s medical
records [TR at 36-43]. Indeed, the ALJ analyzed the various medical expert testimony with
respect to Plaintiff’s IQ and intellectual functioning in detail, making extensive, detailed findings
including that: (1) the record fails to establish the diagnosis [of mild mental retardation];” (2)
“Dr. Taylor, who performed the testing, stated his I.Q. scores were noted to be an underestimate
of his ability to learn and recall information;” and (3) “he clearly has a cognitive disorder
secondary to prior head trauma” but no evidence suggests Plaintiff does not have the “ability to
understand, remember, and carry out simple instructions…” and other laundry list cognitive
functions. Id. at 36-43. The ALJ does not reference the third prong of Medical Listing 12.05;
however he does cite to substantial evidence to support that Plaintiff’s IQ score exceeds 70.
Muse, 925 F.2d at 790 (stating that the ALJ may weigh the evidence and make factual
determinations with respect to the validity or invalidity of IQ tests and may “choose whichever
physician’s diagnosis is most supported by the record”); Rudd, 2015 WL 5719615, at *2-4. As
such, Plaintiff’s medical records, when read in light of the entire administrative record, could
reasonably be interpreted to show that Plaintiff does not have an IQ of 60-70.
Furthermore, Plaintiff’s argument that the ALJ used the wrong terminology and/or
standard for Medical Listing 12.05C is without merit [Dkt. 11 at 3]. At the time of the ALJ’s
determination on March 20, 2013, the language of 20 C.F.R., Part 404, Subpart P, Appendix 1,
Section 12.05C used “Mental Retardation” rather than “Intellectual Disability.” Compare
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.05C (June 13 2012-April 4, 2013) with 20 C.F.R.
§ Pt. 404, Subpt P, App. 1, § 12.05C (August 12, 2015). Although the language of Medical
ORDER – Page 19
Listing 12.05C was altered to utilize “intellectual disability” rather than “mental retardation” the
underlying section prongs and requirements remain the same.” Change in Terminology: “Mental
Retardation” to “Intellectual Disability”, 78 Fed. Reg. 46499-01 (to be codified at
20 C.F.R § Pt. 404 and 416) (“the change does not affect how we evaluate a claim based on
“intellectual disability” under Medical Listing 12.05 or 112.05, nor any of our other current
Listings or rules pertaining to other mental disorders”). Thus, the ALJ’s analysis, including his
use of terminology, was correct. Furthermore, the ALJ’s underlying analysis would be the same
under the “intellectual disability” version of Medical Listing 12.05C and the “Mental
Retardation” version of Medical Listing 12.05C. 78 Fed. Reg. 46499-01.
4.
Physical or Other Mental Impairment Imposing an Additional and Significant
Work-Related Limitation of Function
Plaintiff and the Commissioner agree that the ALJ made detailed findings with respect to
the fourth prong of the Medical Listing 12.05C analysis, indicating that Plaintiff had severe
impairments including dementia secondary to prior head trauma and polysubstance dependence
in remission [Dkt. 14 at 1; Dkt. 12 at 11; TR at 36-43]. Both Parties agree that Plaintiff satisfies
this prong [Dkt. 14 at 1; Dkt. 12 at 11]. Because the conclusion that Plaintiff does not meet
prongs two and three of Medical Listing 12.05C is supported by substantial evidence including
significant factual findings and evidence cited by the ALJ, this Court will not upset that
conclusion. Accordingly, the Court finds that remand is inappropriate.
II.
FAILURE TO IDENTIFY THE LISTING
In connection with the five-step sequential evaluation Plaintiff argues that “remand is the
most appropriate disposition of this case due to the ALJ’s failure to even consider whether
Plaintiff met or equaled Medical Listing 12.05C” [Dkt. 11 at 13]. Plaintiff cites no authority to
ORDER – Page 20
support
mandatory
remand
based
on
the
ALJ’s
failure
to
identify
the
Listing
[see generally Dkt. 11].
Medical Listing criteria are demanding and stringent, and the burden of proof rests with
Plaintiff to provide and identify medical signs and laboratory findings that support all criteria for
a particular step three impairment Listing.
Falco v. Shalala, 27 F.3d 160, 162
(5th Cir. 1994); Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (explaining that a claimant must
“meet all of the specified medical criteria” to show an impairment).
As described above,
Plaintiff did not identify “Intellectual Disability,” “Mental Retardation,” or Medical Listing
12.05C as the basis for his disability claim [see TR at 27, 197-202, 120, 263-70, 313-19].
Additionally, the ALJ found the record to be unsupportive of a medically determinable diagnosis
of “mental retardation” in step two of his analysis [Id. at 41]. Step two’s “severe impairment”
analysis is a low burden for the Plaintiff.
Stone v. Heckler, 752 F.2d 1099, 1103-04
(5th Cir. 1985) (holding that an impairment is not severe “only if it is a slight abnormality having
such minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work”).
Thus, the fact that Plaintiff could not meet the “severity”
requirements of step two for intellectual disability suggests that Plaintiff would not have met the
much higher Medical Listing 12.05C burden, even if he had properly raised the issue. Id.
Furthermore, the Fifth Circuit has held that procedural perfection in administrative
proceedings is not required and any variation amounts to harmless error that is not grounds for
dismissal, unless the substantive rights of a party have been effected. Mays v. Bowen,
837 F.2d 1362, 1364 (5th Cir.1988); Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007). In
Willingham v. Commissioner, No. 4:12–cv–242, 2014 WL 1050286, at *5 (E.D.Tex. Mar. 14,
2014), and again in Rudd, 2015 WL 5719615, at *3 , this Court has held that an ALJ's failure to
ORDER – Page 21
recite a Medical Listing constituted harmless error where a plaintiff could not prove that he
actually met the Listing and the ALJ's reasons were not bare conclusions which prevent
meaningful
review.
See
also
Wilson
v.
Commissioner,
No.
9:13–cv–64,
2014 WL 5343200, at *5 (E.D.Tex. Sept. 29, 2014).
CONCLUSION
The Court concludes that the Appeals Council did not err in upholding the ALJ’s decision
that Plaintiff is not per se disabled under the Listing Categories set forth in 20 C.F.R. § Pt. 404,
Subpt. P, App. 1, including Medical Listing 12.05C. Pursuant to the foregoing, the decision of
the Commissioner is AFFIRMED.
IT IS SO ORDERED.
SIGNED this 18th day of March, 2016.
___________________________________
Christine A. Nowak
UNITED STATES MAGISTRATE JUDGE
ORDER – Page 22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?