Baker v. Social Security Administration, No. 6:2011cv00421 - Document 21 (E.D. Okla. 2013)
Court Description: OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA BRYAN J. BAKER ) ) ) ) ) 1 Plaintiff, v. Case No. CIV-11-421-KEW ) ) MICHAEL J. ASTRUE, Commissioner of Social Security Administration, ) ) ) Defendant. ) OPINION AND ORDER Plaintiff Bryan J. Baker (the "Claimant") requests judicial review of the decision of the Commissioner of the Social Security Administration (the "Commissioner") denying Claimant's application for disability benefits under the Social Security Act. Claimant appeals the decision of the Administrative Law Judge ("ALJ 11 ) and asserts that the Commissioner erred because the ALJ incorrectly determined that discussed below Claimant 1 it is was the not disabled. finding of this For the Court reasons that the Commissioner's decision should be and is REVERSED and REMANDED for further proceedings. Socia1 Security Law and Standard of Review Disability under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . " 42 U.S.C. § 423(d) (1) {A). Security Act "only if A claimant is disabled under the Social his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot 1 considering his age 1 education, and work experience, engage in any other kind of substantial gainful work which exists §423(d) (2) (A). in the national economy. II 42 u.s.c. Social Security regulations implement a five-step sequential process to evaluate a disability claim. See, 20 C.F.R. §§ 404.1520, 416.920. 1 Judicial review of the in scope by 42 U.S.C. § Commissioner~ 405(g). s determination is limited This Court's review is limited to 1 Step one requires the claimant to establish that he is not engaged in substantial gainful activity 1 as defined by 2 0 C. F. R. § § 404.1510/ 416.910. Step two requires that the claimant establish that he has a medically severe impairment or combination of impairments that significantly limit his ability to do basic work activities. 20 C.F.R. §§ 404.1521 416.921. If the claimant is engaged in substantial gainful activity (step one) or if the claimant's impairment is not medically severe (step two), disability benefits are denied. At step three, the claimant's impairment is compared with certain impairments listed in 20 C.F.R. Pt. 404 Subpt. P, App. 1. A claimant suffering from a listed impairment or impairments "medically equivalent" to a listed impairment is determined to be disabled without further inquiry. If not, the evaluation proceeds to step four 1 where claimant must establish that he does not retain the residual functional capacity ("RFC"} to perform his past relevant work. If the claimant's step four burden is met, the burden shifts to the Commissioner to establish at step five that work exists in significant numbers in the national economy which the claimant - taking into account his age, education, work experience, and RFC - can perform. Disability benefits are denied if the Commissioner shows that the impairment which precluded the performance of past relevant work does not preclude alternative work. See generally, Williams v. Bowen, 844 F.2d 748/ 750-51 (lOth Cir. 1988}. 1 1 2 two inquiries: substantial first whether 1 evidence; and, standards were applied. (lOth Cir. the second, Hawkins v. 1997) {citation decision was whether Chater 1 the correct legal 113 F.3d 1162, The omitted). supported by term 1164 "substantial evidencen has been interpreted by the United States Supreme Court to require "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389 Edison Co. v. NLRB, Consolidated (1938)). The court may not re-weigh the evidence nor substitute Health & Human Servs., 933 F.2d 799, U.S. {1971) (quoting its discretion for that of the agency. 305 401 1 197, 229 Casias v. Secretary of 800 (lOth Cir. 1991). Nevertheless, the court must review the record as a whole, and the "substantiality of the evidence must take into account whatever in the record fairly detracts from its weight." Corp. v. NLRB 1 340 U.S. 474 1 488 (1951} i Universal Camera see also 1 Casias, 933 F.2d at 800-01. Claimant's Background Claimant was born on March 20 the time of the ALJ's decision. through the eighth grade 1 1 1981 and was 30 years old at Claimant completed his education taking Claimant has no past relevant work. 3 special education classes. Claimant alleges an inability to work beginning December 19 1 2009 due to limitations resulting from learning disabilities 1 ADHD anxiety, hallucinations 1 hypertension, headaches 1 PTSD, depression, mood swings, suicidal thoughts, anger problems, concentration and memory problems, sleep 1 problems, back problems/ and ankle problems. Procedural History On December 22 1 2009 1 Claimant protectively filed a fifth application for supplemental security income pursuant to Title XVI (42 u.s.c. § 1381, et seq.) of the Social Security Act. Claimant 1 S application was denied initially and upon reconsideration. 10 1 2011, On June an administrative hearing was held before ALJ Osly F. Deramus in McAlester/ Oklahoma. an unfavorable decision. On June 23, 2011 1 the ALJ issued On October 28, 2011, the Appeals Council denied review of the ALJ s decision. 1 As a result, the decision of the ALJ represents the Commissioner 1 s final decision for purposes of further appeal. 20 C.F.R. 404.981 1 416.1481. §§ Decision of the Administrative Law Judge The ALJ made his decision at step five evaluation. of the sequential He determined that while Claimant suffered from severe impairments, he did not meet a listing and retained the residual functional capacity ( \\RFC 1 ') to perform a full range of light work with limitations. 4 Errors Alleged for Review Claimant asserts the ALJ committed error in finding Claimant did not meet a listing at step three. contends the ALJ failed to Alternatively, properly evaluate the Claimant opinion of Claimant's therapist. Step Three Analysis In his decision, the ALJ found Claimant suffered from the severe impairments of disorders of the back and affective mood disorders. (Tr. 13). He determined Claimant retained the RFC to perform a full range of light work, finding he could lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand/walk or sit for hours 6 in an 8 hour workday, occasionally stoop, crouch, crawl, kneel, and balance, occasionally climb stairs but not climb ladders. Due to psychologically based factors, the ALJ determined Claimant had some limitations but could understand, remember, and carry out simple instructions under routine supervision and could relate to supervisors and co-workers in an incidental manner for work-related purposes but could not relate to the general public. (Tr. 16) . After consultation with a vocational expert, the ALJ determined Claimant retained the RFC to perform the representative jobs of food inspector. concluded Claimant was not disabled. 5 (Tr. 2 3-2 4) . (Tr. 23) . He Claimant first asserts that ALJ's evaluation of the criteria for Listing § To meet or equal 12. 05C. Listing § 12. 05C, a claimant must demonstrate the following: 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. * 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. 1 * * * 20 C.F.C. Pt. 404 1 Subpt. P 1 App. 1, Listing 12.05C. Claimant must satisfy all of these required elements for a Listing to be met. On January 30 1 Sullivan v. Zebley 1 493 U.S. 521, 530 (1990). 2009 1 Claimant underwent health examination by Dr. Denise LaGrand. a consultative mental Dr. LaGrand administered the Wechsler Adult Intelligence Scale - 4th Edition. Claimant had a full scale IQ score of Claimant's brief at p. 4 of 6}. 70. She concluded (Attachment 3 to While Dr. LaGrand found Claimant exaggerated the severity of psychopathology in an attempt to derive secondary gain 1 or lack of cooperation or random responding/ it did appear to her that Claimant was "putting forth his best effort on the exam. He appeared to be exaggerating 6 his psychological symptoms for secondary gain. are thought to be valid.n 5 of 6) . § His cognitive and achievement scores (Attachment 3 to Claimant's brief at p. Claimant would appear to meet the criteria under Listing 12.05C of having an IQ of 70 and suffering from another severe mental or physical impairment 1 as the ALJ found Claimant suffered from the severe impairments of a back disorder and affective mood disorder. (Tr. 13) . In addition to these required findings, meet the "capsule def ini tion requirement 1 ' "significantly subaverage general deficits in adaptive functioning . Claimant lives independently/ Claimant must also intellectual 1 ' § 12.05. that he have functioning with The ALJ concluded cares for his own personal needs, prepares meals, shops, pay his bills, and use public transportation which he found to be inconsistent with the degree of intellectual limitation Claimant alleges and the marked limitations indicated by Ms. Dorothy Hurley, Claimant 1 s therapist. (Tr. 14) . Claimant cites to the case of Barnes v. 2681465 (lOth Cir. {Okla.)). Barnhart/ 2004 WL The Tenth Circuit rejected the ALJ's findings on deficits in adaptive functioning which were strikingly similar to the findings the ALJ made in this case. Instead, the Tenth Circuit recognized the Cornmissioner s directive that "ALJs 1 choose and apply one 'of the measurement methods recognized and endorsed by [one of] the [four major] professional organizations' dealing with mental retardation. 67 Fed.Reg. at 20,022. 0 7 Barnes, 2004 WL 2681465 1 5 (lOth Cir. The (Okla.)). Tenth Circuit explained the requirements in stating The Commissioner publicly announced in April 2002 that there are at least four possible definitions of udeficits in adaptive functioning" -from the four major professional organizations dealing with mental retardation. See 67 Fed.Reg. at 20 022. This is the first reference we found anywhere to a definition for the elements in the capsule definition in Listing 12.05 1 and it appeared long after the agency had issued its final decision in this case. Even so, the Commissioner expressly declined to adopt any particular one of these definitions because the four major organizations use somewhat different definitions and methods for assessing them. 67 Fed.Reg. at 20,022. The Commissioner considers the definition of mental retardation reflected in the listings to be consistent with these definitions, although not identical to any one of them, and "allow [s] use of any of the measurement methods recognized and endorsed by the professional organizations.u Id. The ALJ in this case, however, essentially improvised his own definition for "deficits in adaptive functioning, 1' which, as we have seen, was not suppo~ted by the evidence. On remand, the ALJ must choose a standard consistent with the Commissioner's directive. See id. For example/ the American Psychiatric Association (APA) provides one definition for "deficits in adaptive functioning" in the DSM-IV. Id. The APA states that "deficits in adaptive functioning" are shown by "significant limitations in at least two of the following skill areas: communication! self-care, home living, social/interpersonal skills, use of community resources, self-direction/ functional academic skills 1 work 1 leisure 1 health 1 and safety . Id. The APA also provides a measurement standard: " [T] he criterion of significance is a summary index score that is two or more standard deviations below the mean . . . . 1 11 11 Id. Barnes v. Barnhart 1 2 004 WL 2681465, 8 (lOth Cir. (Okla.)) . The ALJ in this definition under the case appears to have "capsule definition" occurred in the Barnes case. employed in a his own similar vein as On remand 1 the ALJ must establish the 8 measurement standard he employed as required by the Commissioner's own directives and cite to the objective record as to any facts he finds to bear upon that standard. This Court is also concerned that Listing that the onset of the mental § retardation 12.05C requires or intellectual function occur before the age of 22. limitation in Both Claimant and the ALJ shall strive to introduce evidence into the record either by implication or express finding the age of onset of Claimant's intellectual limitation. Since Claimant arguments concerning the ALJ s consideration of 1 Ms. Hurley's report address this Claimant s "in the alternative 11 matter further successful 1 this Court will not 1 in this Opinion and Order, reversal on the primary argument given in his brief. Concl.usion The decision substantial applied. fourth of the Commissioner evidence and the correct Therefore, sentence of this Court finds 42 U.S.C. § is legal 1 not supported by standards were not in accordance with the 405(g), the ruling of the Commissioner of Social Security Administration should be and is REVERSED and the matter REMANDED for further proceedings consistent with this Opinion and Order. 9 IT IS SO ORDERED this ~5~y of March, 2013. JUDGE 10
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