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Robertson v. Commissioner of Social Security Administration

United States District Court, M.D. Louisiana

March 28, 2019

JEREMY ROBERTSON
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION

          RULING

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Jeremy Robertson (“Plaintiff”), brought this action under 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying his application for supplemental security income (“SSI”).[1] Plaintiff has filed Memorandum in Support of his appeal, [2] and the Commissioner has filed an Opposition Memorandum.[3]

         Based on the applicable standard of review under § 405(g) and the analysis which follows, the court AFFIRMS[4] the Commissioner's decision and DISMISSES Plaintiff's appeal.

         I. Procedural History

         Plaintiff filed an application for SSI[5] alleging disability beginning June 24, 2003[6] due to psychological disorders, specifically, conduct disorder, borderline intelligence, ADHD, and depression.[7] Plaintiff's claim was initially denied on September 24, 2014.[8] Thereafter Plaintiff requested a hearing before an ALJ.[9] A hearing was held on August 25, 2015 at which Plaintiff, represented by counsel, testified.[10]

         On October 29, 2015, the ALJ issued a notice of unfavorable decision.[11] Thereafter, Plaintiff requested review by the Appeals Council.[12] On November 23, 2016, the Appeals Council denied Plaintiff's request for review.[13] On December 19, 2016, Plaintiff filed this appeal.[14]Accordingly, Plaintiff exhausted his administrative remedies before timely filing this action for judicial review and the ALJ's decision is the Commissioner's final decision for purposes of judicial review.[15]

         II. Standard of Review

         Under 42 U.S.C. § 405(g), judicial review of a final decision of the Commissioner denying disability benefits is limited to two inquiries: (1) whether substantial evidence exists in the record as a whole to support the Commissioner's findings, and (2) whether the Commissioner's final decision applies the proper legal standards.[16] If the Commissioner fails to apply the correct legal standards, or provide a reviewing court with a sufficient basis to determine that the correct legal principles were followed, it is grounds for reversal.[17]

         III. The ALJ's Decision

         A claimant has the burden of proving that he or she suffers from a disability, which is defined as a medically determinable physical or mental impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful activity.[18] The regulations require the ALJ to apply a five-step sequential evaluation to each claim for benefits.[19] In the five-step sequence used to evaluate claims the Commissioner must determine whether: (1) the claimant is currently engaged in substantial gainful activity; (2) the claimant has a severe medically determinable impairment(s); (3) the impairment(s) meets or equals the severity of a listed impairment in Appendix 1 of the regulations; (4) the impairment(s) prevents the claimant from performing past relevant work; and, (5) the impairment(s) prevents the claimant from doing any other work.[20]

         The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability.[21] If the claimant is successful at all four of the preceding steps then the burden shifts to the Commissioner to prove, considering the claimant's residual functional capacity (“RFC”), age, education and past work experience, that he or she is capable of performing other work.[22] If the Commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove that he or she cannot, in fact, perform that work.[23]

         Here, the ALJ determined that Plaintiff had the severe impairments of conduct disorder and learning disorder, [24] that Plaintiff did not meet Listing 12.05C (outlining the requirements for presumptive disability at step three of the evaluation process based on mental retardation), [25] and that Plaintiff had the residual functional capacity (“RFC”) to “perform a full range of work at all exertional levels” but with nonexertional limitations as follows: “[c]an understand, remember and carry out simple one and two step instructions with less than occasional direct contact with the general public and incidental contact with co-workers and supervisors.”[26] Based on this RFC and the testimony of a vocational expert (“VE”), the ALJ determined that there were jobs existing in significant numbers in the national economy that Plaintiff could perform such that he was not disabled.[27]

         IV. Plaintiff's Allegations of Error [28]

         First, Plaintiff argues that the ALJ erred in failing to find that Plaintiff was disabled at step three of the sequential evaluation process pursuant to 20 CFR chap. III, pt. 404, subpt. P, app. 1, Listing 12.05C (“Listing 12.05C”) based on Plaintiff's severe learning disorder.[29] Second, Plaintiff contends that the ALJ erred in relying on the first, rather than second, hypothetical posed to the VE during the August 25, 2015 hearing in making the step five determination that there were other jobs in the national economy that Plaintiff was able to perform.[30] Third, Plaintiff contends that the ALJ erred in her findings regarding Plaintiff's capacity to interact appropriately with co-workers and supervisors.[31]

         V. Law and Analysis

         A. Substantial Evidence Supports the ALJ's Determination that Plaintiff Does Not Meet Listing 12.05C

         Both Plaintiff and the Commissioner rely on Listing 12.05C in their briefing. Although Listing 12.05 was amended effective January 2, 2017 and Paragraph C has been removed, “[t]he amended Listing generally applies to claims filed on or after January 1, 2017 and is not applicable to this case.”[32] The regulations in effect at the time the ALJ issued her decision included Listing 12.05C, which provided as follows:

12.05 Mental retardation: Mental retardation 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.
A. Mental incapacity evidenced by dependence upon others for personal needs (e.g., toileting, eating, dressing, or bathing) and inability to follow directions, such that the use of standardized measures of intellectual functioning is precluded;
OR
B. A valid verbal, performance, or full scale IQ of 59 or less;
OR
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;
OR
D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.[33]

         Plaintiff has the burden of establishing that he meets a Listing.[34] The criteria for the Listings are “demanding and stringent.”[35] “Plaintiff's subjective complaints, without objective medical evidence, are insufficient to establish disability.”[36] “For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify.”[37] Here, to establish Plaintiff is disabled pursuant to Listing 12.05C, Plaintiff must “separately satisfy both the diagnostic description, requiring evidence of sub-average intellectual functioning during the developmental period, and the criteria set forth in paragraph C….”[38]

         i. Substantial Evidence Supports ALJ's Evaluation of Plaintiff's IQ Testing Scores

          Listing 12.05C requires, “[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.”[39] Plaintiff contends that the ALJ should have relied on IQ scores reported by Dr. Ivory Toldson, and that higher IQ scores reported by Dr. Jessica Brown are not valid or reliable.

         In a September 15, 2010 Psychological Evaluation, Dr. Toldson reported a Full Scale IQ (“FSIQ”) of 65 based on the Wechsler Adult Intelligence Scale-Fourth Edition test.[40] In a December 13, 2008 Psychological Evaluation, Dr. Brown reported a FSIQ of 75 based on the Wechsler Abbreviated Scale of Intelligence test.[41] In her October 29, 2015 Ruling, the ALJ rejected Plaintiff's argument that the FSIQ score of 75 “should be discounted as invalid because the evaluator, Dr. Jessica Brown, related that the claimant was not fully cooperative with the evaluation.”[42] In rejecting Plaintiff's argument, the ALJ noted consistent reports (including from Dr. Toldson) regarding Plaintiff's less-than-full effort with respect to the testing:

the claimant's performance was less than consistent in each of the documented evaluations; he was described as blasé by Dr. Brown, suboptimal by Dr. Thompson [sic], and spurious by Dr. James Van Hook. It is further noted that even with the noted difficulties, including in establishing rapport, Dr. Brown did not conclude his test result was invalid.[43]

         “An ALJ may make factual determinations on the validity of I.Q. tests.”[44] Plaintiff recognizes that “[i]n general, ALJs are to choose those IQ scores most supported by the record”[45]and argues that the ALJ should have relied on the scores reported by Dr. Ivory Toldson.[46] This court has explained that “[t]he ALJ is not required to accept the reported scores. He may decide not to fully credit them if there is evidence that shows they are unreliable, invalid, or inconsistent with other evidence contained in the record.”[47] Other courts in this Circuit have considered evidence of a claimant's suboptimal effort or participation when determining whether substantial evidence supports the ALJ's determination of the validity of an IQ score.[48] Here, both Dr. Toldson and Dr. Brown noted in their psychological evaluations that Plaintiff appeared to give less-than-full effort during testing, and the ALJ could appropriately consider Plaintiff's effort when determining the credit to be given to the scores.[49]

         Although the ALJ did not make an explicit finding accepting or rejecting either IQ score, it appears that the ALJ declined to give controlling weight to Dr. Toldson's lower score based on consistent evidence in the record that Plaintiff was not exerting his full effort.[50] Moreover, the ALJ went on to consider Plaintiff's daily activities and behavior and ultimately found “that the balance of the evidence fails to support a diagnosis of mild mental retardation.”[51] “As with any medical evidence, the ALJ is not ‘required to accept a claimant's IQ score. Rather, the ALJ should examine the record to determine whether the proffered IQ score is reliable-that is, consistent with the claimant's daily activities and behavior. An ALJ may reject IQ scores if they are inconsistent with the record.'”[52] As discussed below, substantial evidence supports the ALJ's determinations regarding Plaintiff's abilities. Accordingly, the ALJ's failure to find Dr. Toldson's FSIQ score of 65 controlling was not reversible error.[53]

         ii. Substantial Evidence Supports the ALJ's Determination that Plaintiff Exhibited a Significant Degree of Adaptive Functioning

         In addition to establishing that Plaintiff meets the requirements of Listing 12.05C, Plaintiff must also separately satisfy the diagnostic description of Listing 12.05 which requires a showing of “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.”[54] Although Listing 12.05 does not define “adaptive functioning, ” “the Fifth Circuit has indicated that the definition of ‘adaptive activities' found in § 12.00(C)(1) should be used. Thus, adaptive functioning encompasses adaptive activities ‘such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and directories, and using a post office.'”[55]

         In her ruling, the ALJ explained that:

the balance of evidence fails to support a diagnosis of mild mental retardation, as evidenced by claimant's ability to score within the average to borderline average range on other subtest sections and his significant degree of adaptive functioning. As to the latter, the claimant admitted throughout the record that he drove a vehicle, cared for his two young children while his girlfriend worked, and performed a variety of household chores. It is also noted that Dr. Thompson [sic] qualified the mild mental retardation diagnosis as provisional and concluded that the claimant retained the ability to perform a large range of mental functional activities.[56]

         Substantial evidence supports the ALJ's conclusion regarding Plaintiff's level of adaptive functioning.

         During a December 12, 2008 psychological evaluation by Dr. Brown, Plaintiff reported that he had a good relationship with his girlfriend, [57] and his mother reported Plaintiff's strengths to include fixing things and working with tools.[58] Dr. Brown noted that while many of the subtest results “fell into the extremely low or deficit range of functioning, [Plaintiff] also performed at an average or borderline level of functioning on several of the subtests.”[59] Despite her diagnoses of conduct disorder, borderline intellectual functioning, and antisocial personality disorder traits, Dr. Brown concluded that Plaintiff “has adequate functioning in several life areas. He has been able to maintain a relationship with a 25-year-old woman and produce a daughter from this relationship. He also appears to have been able to persuade and sometimes pressure his mother. A review of his record would also indicate that he has had sufficient savvy to avoid consequences for a variety of negative behaviors in which he has been implicated.”[60]

         Similarly, per Dr. Toldson's September 2010 report, Plaintiff reported that “he has had anger problems since childhood” but that he “learned to deal with it better in adulthood” by walking away, avoiding difficult situations, or reading the Bible.[61] Dr. Toldson reported that Plaintiff was “living with the mother of his 2 daughters; ages 2 and 8 months” and that Plaintiff would “like to return to school to earn his GED, but…he cannot go to school because of a lack of childcare. The claimant keeps the children while his companion works.”[62] Plaintiff reported that in the morning, he “gets his daughters ready, takes a shower, and then goes to his grandmother's house”[63] and that “[i]t lifts his spirits when he wakes up and gets to see his ‘little girls.'”[64] Plaintiff reportedly had a few friends, with whom he enjoyed talking or playing basketball, [65] and Dr. Toldson reported that Plaintiff exhibited “a socially mature level of thinking.”[66]

         During a September 5, 2014 psychological consultative examination with Dr. Van Hook, Plaintiff reported that he was living with his girlfriend, [67] was able to dress and bathe himself, [68]and that he was able to mop, sweep, cut grass, and “wash dishes some of the time.”[69] Plaintiff also reported that he was able to use public transportation in the form of calling a cab or riding a bus and was able to drive.[70] Dr. Van Hook found that Plaintiff exhibited “[r]easonable safety and hazard awareness.”[71]

         Plaintiff argues that medical reports submitted by both Dr. Brown and Dr. Toldson support a finding that Plaintiff exhibited subaverage general intellectual functioning with deficits in adaptive functioning.[72] However, both Dr. Toldson and Dr. Brown noted that Plaintiff presented in a normal manner, [73] and both (as described above) reported Plaintiff's abilities with respect to daily functioning. Similar levels of daily functioning were also reported by Dr. Van Hook. Accordingly, substantial evidence supports the ALJ's determination regarding Plaintiff's “significant degree of adaptive functioning.”[74]

         B. Substantial Evidence Supports the ALJ's Determination of Plaintiff's Residual Functional Capacity

         The ALJ “is responsible for assessing the medical evidence and determining the claimant's residual functional capacity.”[75] The ALJ's RFC determination can be supported by substantial evidence even if the ALJ does not specifically discuss all the evidence that supports his or her decision or all the evidence that he or she rejected.[76] A reviewing court must defer to the ALJ's decision when substantial evidence supports it, even if the court would reach a different conclusion based on the evidence in the record.[77] The court “may only scrutinize the record” and take into account whatever fairly detracts from the substantiality of the evidence supporting the ALJ's decision.[78] Accordingly, a “no substantial evidence” finding is appropriate only if there is a conspicuous absence of credible evidentiary choices or no contrary medical findings to support the ALJ's decision.[79]

         Plaintiff argues that the ALJ erred in her determination that Plaintiff retained the capacity for routine interactions with co-workers and supervisors. Plaintiff contends that the ALJ inappropriately relied on the conclusions of Dr. William Ferrell, a non-examining state psychologist, in finding that Plaintiff had moderate limitations in his ability to interact with co-workers and supervisors, and that such moderate limitations are inconsistent with Plaintiff's diagnoses of severe conduct disorder and antisocial behavior.[80] Based on various doctor's reports, Plaintiff contends that the ALJ “did not incorporate his conduct disorder and associated symptoms into either his RFC or into her ultimate conclusions”[81] In her opinion, the ALJ determined that Plaintiff had the RFC:

to perform a full range of work at all exertional levels but with the following nonexertional limitations: Can understand, remember and carry out simple one and two step instructions with less than occasional contact with the general public and ...

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