Medina v. Astrue

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 17 Report and Recommendations - the decision of the Commissioner is AFFIRMED. Plaintiff's petition to reverse or remand the Commissioner's decision is DENIED. Signed by Judge Xavier Rodriguez. (rg)

I N THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS S A N ANTONIO DIVISION R U D Y C. MEDINA, § § § § § § § §

v. M IC H A E L J. ASTRUE, C O M M IS S IO N E R OF THE SSA.

Civil Action No. SA-08-CV-0644-XR

ORDER O n this date, the Court considered the Report and Recommendation filed by the M a g is tra te Judge, and Plaintiff's objections thereto, concerning Plaintiff's appeal of the C o m m is s io n e r's decision to deny him Social Security disability benefits. After careful c o n sid e ra tio n , the Court accepts the Magistrate Judge's recommendation to affirm the C o m m is s io n e r 's denial of benefits. I . Introduction P lain tiff Rudy Medina seeks review and reversal of the administrative denial of his a p p lic a tio n for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). M e d in a asks the Court to reverse the decision and to render judgment in his favor. In the a lte rn a tiv e , Medina asks the Court to reverse the decision and remand the case for additional a d m in i str a tiv e proceedings.

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I I . Jurisdiction T h is Court has jurisdiction to review the Commissioner's final decision as provided b y 42 U.S.C. § 405(g). I I I . Procedural Background M e d in a fully exhausted his administrative remedies prior to filing this action in f e d era l court. Initially, Medina filed for disability on August 10, 1995 and was denied on J u ly 17, 1997. (Tr. 60). He then attempted to file for SSI on August 11, 1997 and was denied o n February 3, 2000 (Tr. 374 & 384). He attempted to request a review from a partially u n f a v o ra b le ruling, but requested it past the 60 days required for a review. (Tr. 92). Medina th e n prospectively filed an application for DIB and SSI benefits on September 16, 1999, a lleg in g disability beginning August 20, 2000. (Tr. 148). The Social Security

A d m in is tra tio n denied the application initially and again on reconsideration on March 28, 2 0 0 0 . (Tr. 85). Medina then asked for a hearing on May 23, 2000. (Tr. 89). A hearing was h e ld before Administrative Law Judge Forrest Stewart on March 6, 2001. (Tr. 29). The ALJ in itia lly issued a decision on March 8, 2001, concluding that Medina was disabled within th e meaning of the Social Security Act (the Act). (Tr. 70). The Social Security

A d m in is tra tio n Appeals Council vacated and remanded the ALJ's decision on June 15, 2001. (T r. 113). A second hearing was held on November 14, 2001, and the ALJ denied Medina's c la im on February 22, 2002. (Tr. 15). When the Appeals Council denied the plaintiff's

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r e q u e s t for review, Medina appealed to federal court.1 On the Commissioner's motion the c a se was remanded. It was reinstated on the Court's Docket on April 1, 2003, until a s u b s e q u e n t motion for remand by the Commissioner was granted on July 1, 2003. There was a third administrative hearing on August 7, 2006 (Tr. 408) and, following the Appeals C o u n c il's remand (Tr. 423), a fourth administrative hearing on October 22, 2007 before ALJ W a d e Morrison (Tr. 467). All decisions except for the first one determined that Medina was n o t disabled. The ALJ's February 29, 2008 decision became the final decision of the C o m m i s s io n e r for the purpose of the Court's review pursuant to 42 U.S.C. § 405(g) when th e Appeals Council denied the plaintiff's request for review. (Tr. 394A). Plaintiff filed a motion to proceed in forma pauperis in this matter on August 4, 2008, a n d filed a complaint on August 13, 2008. The case was referred to Magistrate Judge John W . Primomo for a report and recommendation. Both parties filed briefs. On June 2, 2009, M a g is tra te Judge Primomo issued a report and recommendation to this Court recommending th e decision of the ALJ be affirmed. re c o m m e n d a tio n on June 12, 2009. IV. Magistrate Judge's Memorandum and Recommendation Magistrate Judge Primomo determined that the ALJ's ruling that Medina was not d isa b led was supported by substantial evidence. The Magistrate Judge determined that, a lth o u g h Medina had the requisite IQ scores required under Listing 12.05(C), he did not meet Plaintiff filed objections to the report and

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Medina v. Barnhart, SA-02-CA-657-PMA (W.D. Tex.). -3-

th e requirement of the introductory paragraph of Listing 12.05 2 because he failed to show th a t he had significantly subaverage general intellectual functioning with deficits in adaptive f u n c tio n in g prior to age twenty-two. Thus, the Magistrate Judge recommended that the C o m m is s io n e r's decision to deny benefits be affirmed. V. Plaintiff's Objections M e d in a objected to the Magistrate Judge's Memorandum and Recommendation, c la im in g that the ALJ failed to properly consider the issue of whether he satisfied the intro d u ctor y criteria. Medina challenges that there was no objective support for the ALJ's d eterm inatio n and argues that if a claimant raises a suspicion of impairment and the record is insufficient, a consultative examination should be ordered, citing Pearson v. Bowen.3 V I . Applicable Legal Standards A . Standard of Review S in c e there was a timely objection to the Magistrate Judge's Memorandum and R e c o m m e n d a tio n , the Court reviews the Magistrate Judge's recommended disposition de n o v o .4 However, in reviewing the Commissioner's decision denying disability benefits, the re v ie w in g court is limited to determining whether substantial evidence supports the decision

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20 C.F.R. ch. III, pt.404, subpt. P, app. 1 (the "C.F.R. Listing"). Pearson v. Bowen, 866 F.2d 809, 812 (5th Cir. 1989). 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; L.R. CV-72 (W.D. Tex.). -4-

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a n d whether the Commissioner applied the proper legal standards in evaluating the evidence.5 " S u b s ta n tia l evidence is more than a scintilla, less than a preponderance, and is such relevant e v id e n c e as a reasonable mind might accept as adequate to support a conclusion." 6 If the Commissioner's findings are supported by substantial evidence, then they are c o n c lu s iv e and must be affirmed. 7 In reviewing the Commissioner's findings, a court must c a re f u lly examine the entire record, but refrain from re-weighing the evidence or substituting it s judgment for that of the Commissioner.8 Conflicts in the evidence and credibility a ss e ss m e n ts are for the Commissioner and not for the courts to resolve.9 Four elements of p ro o f are weighed by the courts in determining if substantial evidence supports the C o m m i s s i o n e r's determination: (1) objective medical facts, (2) diagnoses and opinions of tre a tin g and examining physicians, (3) the claimant's subjective evidence of pain and d is a b ility, and (4) the claimant's age, education and work experience.1 0

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Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3).

Villa v. Sullivan, 895 F.2d 1019, 1021-22 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
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Martinez, 64 F.3d at 173. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); see also Villa, 895 F.2d at 1021 (the

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court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner).
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Martinez, 64 F.3d at 174. Id. -5-

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B . Entitlement to Benefits E v e ry individual who is insured for disability benefits, has not reached retirement age, m e e ts certain income and resource requirements, has filed an application for benefits, and is under a disability, is eligible to receive disability insurance benefits.1 1 Every individual w h o meets certain income and resource requirements, has filed an application for benefits, a n d is under a disability, is eligible to receive supplemental security income benefits.1 2 The te rm "disabled" or "disability" means the inability to "engage in any substantial gainful a c tiv ity by reason of any medically determinable physical or mental impairment which can b e expected to result in death or which has lasted or can be expected to last for a continuous p e rio d of not less than twelve months." 1 3 A claimant shall be determined to be disabled only i f his physical or mental impairment or impairments are so severe that he is unable to not o n ly do his previous work, but cannot, considering his age, education, and work experience, p a rticip a te in any other kind of substantial gainful work that exists in significant numbers in th e national economy, regardless of whether such work exists in the area in which the c la im a n t lives, whether a specific job vacancy exists, or whether the claimant would be hired if he applied for work.1 4

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42 U.S.C. § 423(a)(1). 42 U.S.C. § 1382(a)(1) & (2). 42 U.S.C. § 1382c(a)(3)(A). 42 U.S.C. § 1382c(a)(3)(B). -6-

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C . Evaluation Process and Burden of Proof R e g u la tio n s set forth by the Commissioner require disability claims to be evaluated b y the prescribed five-step process.1 5 A finding that a claimant is disabled or not disabled a t any point in the process is conclusive and terminates the Commissioner's analysis.1 6 T h e first step involves determining whether the claimant is currently engaged in su b sta n tial gainful activity.1 7 If so, the claimant will be found not disabled regardless of his m e d ic a l condition, age, education, or work experience. The second step involves

d eterm ining whether the claimant's impairment is severe. If a claimant has no severe im p a irm e n ts , the claimant is deemed not disabled. In the third step, the ALJ compares the se v e re impairment with those on a list of specific impairments. The ALJ will find that a c la im a n t has a listed impairment if the diagnostic description in the introductory paragraph an d the criteria of the listed impairment are satisfied. In determining whether a claimant's m e n ta l impairment meets a listing, the ALJ must record "the presence or absence of the c riter ia [of the appropriate listing] and the rating of the degree of functional limitation" in th e ALJ's decision. If a claimant's impairment meets or equals a listed impairment, the claim an t is deemed disabled without considering his or her age, education, or work e x p e rie n c e . If the impairment is not on the list, the ALJ, in the fourth step, reviews the

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20 C.F.R. §§ 404.1520 and 416.920. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). 20 C.F.R. §§ 404.1520 and 416.920. -7-

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c laim a n t's residual functional capacity and the demands of his past work. If the claimant is still able to do his past work, the claimant is not disabled. If the claimant cannot perform his p a st work, the ALJ moves to the fifth and final step of evaluating the claimant's ability, given h is residual capacities, age, education, and work experience, to do other work. If the c la im a n t cannot do other work that exists in significant numbers in the national economy, he w ill be found disabled. The claimant bears the burden of proof at the first four steps of the sequential a n a lys is .1 8 Only once the claimant has shown that he is unable to perform his previous work, th e burden shifts to the Commissioner to show that there is other substantial gainful e m p lo ym e n t available that the claimant is not only physically able to perform, but also, t ak in g into account his exertional and nonexertional limitations, able to maintain for a s ig n if ic a n t period of time.1 9 If the Commissioner adequately points to potential alternative e m p lo ym e n t, the burden shifts back to the claimant to prove that he is unable to perform the a lte rn a tiv e work. V II . Analysis T h is appeal centers on whether the ALJ correctly determined that Plaintiff does not s a tis f y Listing 12.05(c). The structure of the listing for mental retardation (12.05) is different f ro m that of the other mental disorders listings. C.F.R. Listing 12.00(A). Listing 12.05

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Turner v. Califano, 563 F.2d 669, 670 (5th Cir. 1977). Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002). -8-

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e m p lo ys four enumerated paragraphs instead of the typical three to describe the severity c r i te ria , and only one paragraph must be met instead of a combination of two. However, th e se differences do not "relieve claimants of the initial burden of demonstrating that their im pairm e n t satisfies the introductory paragraph's diagnostic description." Randall v. Astrue, 5 7 0 F.3d 651, 659 (5th Cir. 2009). The introductory paragraph of Listing 12.05 requires " sig n if ic a n tly subaverage general intellectual functioning with deficits in adaptive f u n c tio n in g initially manifested during the developmental period; i.e., the evidence d e m o n s tra te s or supports onset of the impairment before age 22." A . Findings and Conclusions of the ALJ A L J Morrison held a hearing on October 22, 2008, at which Plaintiff appeared and te stif ie d , as did Arthur H. Briggs, M.D., an impartial medical expert, and Donald R. Marth, P h . D., an impartial vocational expert. (Tr. 620). The ALJ issued his report on February 29, 2 0 0 8 , finding that Plaintiff was not disabled. (Tr. 468). He first found that Medina had not en g ag ed in substantial gainful activity since August 20, 2000, the alleged onset date. (Tr. 4 6 9 ). At step two, the ALJ found that Medina had the following severe impairments: status p o s t gunshot wound to the chest, back pain secondary to lumbar spine degenerative disc d isease , a pain disorder, and possible depressive and post-traumatic stress disorders. (Tr. 4 7 0 ). After a psychological evaluation by Dr. Scott on April 20, 2007, Medina was found to be "provisionally" diagnosed as mildly mentally retarded; a conclusive diagnosis could not

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b e reached. Id. No such diagnosis was made at the previous psychological evaluation by Dr. C ro f t on April 16, 2007. Id. Rather, Plaintiff's mental status was characterized as normal, a n d Dr. Croft's report stated Plaintiff performed basic daily functions such as bathing and p ic k in g his own clothes. (Tr. 558). This report concluded that Plaintiff's intelligence seemed to be that of someone with an educational deprivation, not retardation. (Tr. 557). Given the p la in tif f 's intellectual functioning at school and work, the ALJ determined that Medina was n o t mentally retarded. (Tr. 170). A t step three, the ALJ found that Medina did not have an impairment or combination o f impairments that meets or medically equals one of the listed impairments in C.F.R. Listing 1 2 .0 5 . The ALJ found that Medina was not mentally retarded as defined under the in tro d u c to ry paragraph of Listing 12.05 because he failed to demonstrate subaverage general in te lle c tu a l functioning with deficits in adaptive functioning initially manifested prior to the a g e of twenty-two. (Tr. 470). The ALJ determined that the plaintiff had attended school th ro u g h the tenth grade. (Tr. 270). Medina never flunked a grade and only dropped out when h e got married and had a child. (Tr. 625). Additionally, ALJ Morrison noted that in the p re v io u s four hearings, the issue of mental retardation had never been raised despite it being c la im e d as a "severe" condition. Id. In determining Medina's residual functional capacity, the ALJ found that Medina is lim ited to work at the "sedentary" exertional level. (Tr. 472). This is contrary to Medina's o w n testimony; however, the ALJ points to Medina's reported "inconsistent and poor" effort

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d u rin g physical testing. (Tr. 473). The ALJ discredits Medina's favorable medical evidence a s not controlling because it was not consistent with the medical opinion of other doctors and the impartial medical expert, Dr. Briggs. (Tr. 474). R e g a rd in g Medina's physical impairments, the ALJ concluded that Medina has the re sid u a l functional capacity to lift and/or carry at least 10 pounds and stand or walk for only tw o hours of a workday but cannot perform work involving repetitive bending, climbing, s to o p in g , or crawling. Id. The ALJ also states that the plaintiff is limited to simple repetitive task s and possesses a sixth grade reading level and fifth grade mathematics ability. (Tr. 475). T h e ALJ found that despite Medina's inability to return to his previous work, there a re a significant number of jobs existing in the national economy that Medina can perform, co n side rin g his age, education, work experience, and RFC, and thus he is not disabled. (Tr. 4 7 6 ). B . Whether the ALJ's Determination was Based Upon Substantial Evidence. T h e burden of proof for a severe disability and that it meets or medically equals one o f the listed impairments of C.F.R. Listing 12.05 rests solely on the Plaintiff. In this case, P lain tiff must demonstrate significant subaverage general intellectual functioning with d e f ic its in adaptive functioning before the age of twenty-two. Medina points to three pieces o f evidence to support his claim of mental retardation. First, Medina claimed that he attended "sp ec ial classes" when he attended school. Second, he claimed that he was unable to perform b a sic functions such as picking out his own clothes and driving himself. Third, he points to

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a medical report on April 20, 2007 that states he might be mentally retarded. This Court must determine whether the ALJ's decision that Plaintiff does not meet the lis tin g is supported by substantial evidence. "Substantial evidence is more than a scintilla, le ss than a preponderance, and is such relevant evidence as a reasonable mind might accept a s adequate to support a conclusion." 2 0 Substantial evidence "must do more than create a s u s p ic io n of the existence of the fact to be established, but `no substantial evidence' will be fo u n d only where there is a `conspicuous absence of credible choices' or `no contrary m ed ical evidence.'" 2 1 T h e ALJ rests his determination of no disability on medical evidence as well as the o p in io n of the impartial medical expert, Dr. Briggs. Despite Medina's claim that he was m e n ta lly retarded prior to the age of twenty-two, he successfully passed every grade level w i th o u t failing. Other than a passing reference, there is no evidence of Medina being e n ro lle d in "special" classes. Additionally, he was determined to have a sixth grade reading le v e l and a fifth grade mathematics ability. Furthermore, Medina only dropped out of school b e c au s e he got married and had a child. None of these facts indicate that Medina was, at any le v e l prior to the age of twenty-two, mentally retarded. M e d i n a 's claim that his inability to perform basic social functions evidences a d is a b ility prior to age twenty-two is contrary to a significant number of reports and his own

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Villa v. Sullivan, 895 F.2d at 1021-22. Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164). -12-

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te stim o n y. Medina himself states that he used to drive to work. (Tr. 692). A psychological e v a lu a tio n on April 16, 2007 stated that Medina was able to bathe himself and pick out his o w n clothes and even occasionally handle finances. (Tr. 558). Additionally, the Plaintiff w ro te and completed reports and used technical knowledge and skill in his previous e m p lo ym e n t (automotive painter). (Tr. 167). None of these capacities point to mental re ta rd a tio n prior to the age of twenty-two. L a st, although there is a medical report of April 20,2007 that stated inconclusively that th e plaintiff might be mentally retarded, it is contrary to the psychological evaluation done f o u r days prior as well as the ALJ's own perception during the hearing. (Tr. 570). The first p s yc h o lo g ic a l evaluation was done on April 16, 2007 in which Medina was determined not to have any mental retardation. (Tr. 557). A subsequent evaluation was done on April 20, 2 0 0 7 that did not determine conclusively whether Medina was mentally retarded; rather it w a s only a provisional diagnosis of mental retardation. (Tr. 570). This provisional diagnosis w a s made when the Plaintiff was 40 years old. This does not prove that the Plaintiff was m e n ta lly retarded at some stage prior to the age of twenty-two. Additionally, Medina worked w ith o u t any special accommodation until he was shot, and there is some indication in the re c o rd that intellectual functioning deteriorated after he was injured. P l ain tif f argues that he raised a "suspicion" of an impairment and that the record s h o u ld have been further developed. Medina relies upon the case of Pearson v. Bowen, 866 F .2 d 809 (5th Cir. 1989). However, in Pearson, the court states that a full inquiry does not

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re q u ire a consultative examination at government expense unless the record establishes that s u c h an examination is necessary to enable the administrative law judge to make a disability d e c is io n .2 2 Such an examination was not necessary, as there was substantial medical ev iden ce to support the ALJ's determination that there was no mental retardation before tw e n ty-tw o . As the courts have repeatedly stated, conflicts in evidence and credibility a ss e ss m e n ts are for the Commissioner and not for the courts to resolve.2 3 A lth o u g h an actual diagnosis is not required to determine mental retardation prior to a g e twenty-two, a diagnosis of mental retardation can not be inferred in this case from the lo n g itu d in a l history and evidence of current functioning. Therefore, the substantial evidence s u p p o rts the determination of the ALJ that the Plaintiff is not disabled. V I I I . Conclusion F o r the foregoing reasons, the recommendation of the Magistrate Judge is accepted a n d the decision of the Commissioner is AFFIRMED. Plaintiff's petition to reverse or re m a n d the Commissioner's decision is DENIED. The Clerk is instructed to close this case. SIGNED this 21st day of May, 2010.

_________________________________ XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

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Pearson v. Bowen, 866 at 812 (emphasis provided). Martinez, 64 F.3d at 174. -14-

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