Labor v. Social Security Administration, No. 1:2016cv00039 - Document 13 (E.D. Ark. 2017)

Court Description: MEMORANDUM OPINION AND ORDER: There is substantial evidence on the record as a whole to support the ALJ's findings. Labor's complaint is therefore dismissed, all requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge Patricia S. Harris on 1/11/2017. (ljb)
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Labor v. Social Security Administration Doc. 13 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION BRENDON G. LABOR v. PLAINTIFF NO. 1:16-cv-00039 PSH CAROLYN W. COLVIN, Act ing Commissioner of t he Social Securit y Administ rat ion DEFENDANT MEMORANDUM OPINION AND ORDER Plaint iff Brendon G. Labor (“ Labor” ) began t he case at bar by filing a complaint pursuant t o 42 U.S.C. 405(g). In t he complaint , he challenged t he final decision of t he Act ing Commissioner of t he Social Securit y Administ rat ion (“ Commissioner” ), a decision based upon findings made by an Administ rat ive Law Judge (“ ALJ” ). Labor maint ains t hat t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole and offers t wo reasons why. 1 Labor first maint ains t hat his impairment s include borderline int ellect ual funct ioning, and t he ALJ erred at st ep t wo of t he sequent ial evaluat ion process when he failed t o find t hat t he impairment is severe. At st ep t wo, t he ALJ is required t o ident ify t he claimant ’ s impairment s and 1 The quest ion for t he Court is whet her t he ALJ’ s findings are support ed by subst ant ial evidence on t he record as a whole. “ Subst ant ial evidence means less t han a preponderance but enough t hat a reasonable person would find it adequat e t o support t he decision.” See Boet t cher v. Ast rue, 652 F.3d 860, 863 (8t h Cir. 2011). Dockets.Justia.com det ermine whet her t hey are severe. An impairment is severe if it has “ more t han a minimal effect on t he claimant ’ s abilit y t o work.” See Henderson v. Sullivan, 930 F.2d 19, 21 (8t h Cir. 1992) [int ernal quot at ions omit t ed]. Once a claimant ’ s impairment s are ident ified, and it is det ermined t hat t hey do not meet or equal a list ed impairment , t he ALJ is required t o consider all of t he claimant ’ s impairment s, bot h severe and nonsevere, in assessing his residual funct ional capacit y. The evidence relevant t o Labor’ s int ellect ual funct ioning is not voluminous. The evidence reflect s t hat in Sept ember of 1988, or approximat ely t went y-five years before t he alleged onset dat e, Labor was seen by a school psychologist for an evaluat ion and a det erminat ion of whet her Labor should cont inue in special educat ion classes. See Transcript at 309-311. 2 The psychologist administ ered Wechsler Adult Int elligence Scale (“ WAIS” ) t est ing, and it indicat ed t hat Labor had a verbal IQ of sevent y-six, a performance IQ of sevent y-one, and a full scale IQ of sevent y-t hree. In March of 1993, Labor was seen for an assessment of his int ellect ual funct ioning. See Transcript at 367-372. A psychological examiner administ ered WAIS t est ing, and Labor’ s scores included a performance IQ of sixt y-six. The psychological examiner’ s conclusions and recommendat ions were as follows: Findings indicat e generally below average int ellect ual and academic abilit y. 2 Labor seeks supplement al securit y income payment s pursuant t o Tit le XVI of t he Social Securit y Act . Alt hough he alleges on onset dat e of May 7, 1993, t he relevant period for his claim began on t he day he filed his applicat ion for such payment s, i.e., March 22, 2013. The Court will nevert heless briefly consider evidence prior t o March 22, 2013, for t he purpose of placing his applicat ion in cont ext . -2- Mr. Labor appears t o be wit hin t he [b]orderline range of int ellect ual funct ioning wit h significant deficit s in his abilit y t o make appropriat e social j udgment s and respond in a socially adequat e manner. This deficit will make it difficult for Mr. Labor t o funct ion adequat ely in a vocat ional set t ing for any sust ained period of t ime. Semi-skilled t raining, such as t hat which might be available at a local vocat ional-t echnical t raining facilit y, is feasible. Ext ensive vocat ional and personal guidance and assist ance are needed. Provided t hese services, Mr. Labor may reasonably be expect ed t o sust ain independent funct ioning by means of low-demand employment . Mr. Labor’ s t est performance is commensurat e wit h expect at ions deprived from t he demonst rat ed level of formal educat ion and report ed academic hist ory. See Transcript at 372. In July of 1995, Labor was seen by a psychologist for int elligence t est ing. See Transcript at 362-363. The psychologist administ ered WAIS t est ing, and Labor’ s scores included a performance IQ of sixt y-nine. The psychologist diagnosed a chronic adj ust ment disorder, mild ment al ret ardat ion, and a dependent personalit y disorder. The record is silent as t o any ot her t est ing of Labor’ s int ellect ual funct ioning unt il April of 2013 when he was seen by Dr. Nancy Bunt ing, Ph.D., (“ Bunt ing” ). See Transcript at 328-333. She administ ered WAISt est ing, and his scores included a full scale IQ of sixt yeight . Alt hough she discount ed t he accuracy of t he score, she nevert heless diagnosed, int er alia, a “ mat hemat ics disorder.” See Transcript at 331. 3 Wit h respect t o t he effect s of t he disorder on his adapt ive funct ioning, she opined t he following: The pat ient ’ s mot her drove him t o t he appoint ment t oday. He had [a 3 A “ mat hemat ics disorder” is a t ype of learning disabilit y in which a person’ s mat hemat ical abilit y is subst ant ially below average. The disorder can affect , int er alia, t he person’ s abilit y t o underst and mat hemat ical concept s, perform mat hemat ical calculat ions, and underst and word problems. -3- driver’ s] license in 2004 but said he only drove on familiar road locally by himself because he was “ not good wit h direct ions.” He now shops wit h his mot her in t he mont h he has been out of prison, and he said t hat previously in 2004 he shopped by himself wit h no problems, e.g., for his sport s aut ograph collect ion. He has never used a checkbook. He said he paid his own bills on t ime in 2004 when he had his own apart ment . He has always had difficult ies making change. He can do household chores like washing dishes, doing laundry, sweeping or vacuuming, and cleaning. He claimed t o only use a microwave, but it was not clear if t hat was because t hat was all t hat had been available. He spends his t ime fixing up t he house where t hey are living, e.g., paint ing, doing yard work, wat ching t elevision, list ening t o t he radio and ot her music, using t he Xbox t o play NASCAR games, and reading t he newspaper and sport s books for one hour at a t ime. He used t o have an aut ograph collect ion from various sport s figures, but now he enj oys j ust going t o t he Wal-Mart wit h his mot her. The pat ient report ed he has friends but is not involved in church or any ot her group. He has cont act wit h his one neighbor. The pat ient communicat ed and int eract ed in an immat ure, but adequat e, manner. The pat ient communicat ed in an int elligible and effect ive manner when he want ed t o. The pat ient has lit t le capacit y t o cope wit h t he t ypical ment al/ cognit ive demands of basic work like t asks if t he result s of t he WAIS t est ing are valid. He appeared t o make no effort at all on eit her of t he t wo t rials for Immediat e Recall, and he missed wit h no concern or dist ress. His digit span fell in t he borderline range, and he count ed backward from 20 adequat ely. He made no effort on serial 3s t hough t he examiner had expect ed difficult y as he has a mat hemat ics disorder. He has not had a j ob wit h co-workers and bosses, but he report s t hat he was able t o handle get t ing along wit h ot her st udent s and his t eachers. He has some abilit y t o deal wit h t he public based on his behavior in t he int erview. He can follow inst ruct ions and he can handle work st ress and changes. The pat ient was reluct ant t o persist in t he int erview and t est ing sit uat ion. He has t he capacit y t o persist at least for short periods of t ime as he can read or play a video game for one hour at a t ime by his report . ... The pat ient at t ended and sust ained his concent rat ion in t he st ruct ured -4- t est ing and int erview sit uat ion. His digit span fell in t he borderline range and he could count backward from 20 adequat ely. The pat ient has some abilit y t o complet e work-like t asks wit hin an accept able t imeframe ... since t here is no evidence t hat he did his best on t he t est s request ed. See Transcript at 331-332. Bunt ing suspect ed t hat Labor was malingering and/ or exaggerat ing and observed t hat his “ sympt om allegat ions were not congruent wit h his present at ion.” See Transcript at 332. Labor sought medical t reat ment for his ot her impairment s during 2013 and 2014. See Transcript at 345 (03/ 25/ 2013), 344 (06/ 14/ 2013), 343 (08/ 05/ 2013), 350-355 (04/ 04/ 2014), 356-360 (07/ 07/ 2014). The progress not es from t hose examinat ions offer no insight int o his int ellect ual funct ioning, save t o not e t hat he has a hist ory of a learning disorder. Labor and his mot her complet ed a series of document s in connect ion wit h Labor’ s applicat ion for supplement al securit y income payment s. See Transcript at 183-192, 195202, 207-214, 244-251. The document s reflect t hat Labor has difficult y underst anding and following inst ruct ions and has t rouble complet ing t asks. He can, t hough, at t end t o his own personal care; prepare simple meals; perform rout ine household chores such as cleaning, washing dishes, and vacuuming; perform some yard work; and read, wat ch t elevision, and play games during his free t ime. He has never had a full-t ime j ob and never had any subst ant ial gainful act ivit y. Labor t est ified during t he administ rat ive hearing. See Transcript at 29-45. He was -5- born on February 2, 1971, and was t herefore fort y-t hree years old at t he t ime of t he hearing. He graduat ed from high school, but all of his classes were special educat ion classes. He has difficult y reading and writ ing and can perform “ a lit t le bit ” of basic mat hemat ics. See Transcript at 32. He has never worked a full-t ime j ob and at t ribut ed his inabilit y t o hold a j ob t o being “ t oo slow,” specifically t est ifying t hat he does not “ work real fast and st uff like t hat and t ry t o keep up wit h people ...” See Transcript at 32. Labor lives at a church shelt er and helps out wit h odd j obs around t he facilit y. He spends his free t ime wat ching t elevision, reading sport s magazines, and collect ing sport s memorabilia. 4 The ALJ found at st ep t wo t hat Labor has severe impairment s in t he form of a personalit y disorder, a mat hemat ics disorder, anxiet y, and depression. The ALJ assessed Labor’ s residual funct ional capacit y and found t hat he is capable of performing a full range of work at all exert ional levels but wit h t he following non-exert ional limit at ions: ... t he work must not require excellent reading/ writ ing skills. The claimant requires work t hat consist s of simple, rout ine, and repet it ive t asks. Int erpersonal cont act must be incident al t o t he work performed. The complexit y of one or t wo st ep t asks is learned and performed by rot e, wit h few variables, and requiring lit t le j udgment . The supervision required would be simple, direct , and concret e; t he work must be limit ed t o SVP one or t wo j obs t hat can be learned wit hin 30 days. See Transcript at 13. In so finding, t he ALJ gave some weight t o t he evaluat ion performed 4 Labor’ s mot her also t est ified during t he administ rat ive hearing. See Transcript at 45-58. Her t est imony was consist ent wit h his t est imony. -6- in Sept ember of 1988, when Labor was sevent een years old, but gave no weight t o t he t est ing performed in March of 1993 and July of 1995. 5 The ALJ addit ionally gave “ appropriat e” weight t o Bunt ing’ s opinions, not ing her doubt s about t he reliabilit y of Labor’ s IQ scores. See Transcript at 15. Subst ant ial evidence on t he record as a whole support s t he ALJ’ s charact erizat ion and considerat ion of Labor’ s int ellect ual disabilit y at st ep t wo. The Court so finds for t hree reasons. First , t here is no doubt t hat Labor has an int ellect ual disabilit y, and t he ALJ so found. This case, t hen, does not involve an inst ance in which t he ALJ overlooked or ot herwise ignored a claimant ’ s int ellect ual disabilit y. Second, t he ALJ could and did properly rely upon Bunt ing’ s charact erizat ion of Labor’ s int ellect ual disabilit y as a “ mat hemat ics disorder” and not borderline int ellect ual funct ioning. It is t rue t hat t est ing performed in March of 1993 and July of 1995, and t est ing performed by Bunt ing in April of 2013, placed Labor’ s int ellect ual funct ioning in t he borderline and/ or mildly ment ally ret arded range, but t he ALJ could and did quest ion t he reliabilit y of t he t est ing. The t est ing from March of 1993 and July of 1995 occurred a number of years before t he alleged onset dat e, and Bunt ing suspect ed t hat Labor was 5 The ALJ observed t hat “ ot her IQ t est ing in t he record [i.e., t he t est ing performed in March of 1993 and July of 1995] does not provide t he necessary support for finding of a significant subaverage int ellect ual funct ioning before t he claimant ’ s [t went y-second] birt hday. Medical lit erat ure explains t hat an individual’ s int ellect ual capacit y is generally fully formed by t he t ime t hey are a t eenager and t hat if t here are no t raumat ic event s or ot her int ervening causes t o demonst rat e loss of cognit ive abilit ies, one’ s IQ scores remain st able t hroughout t heir lives. Accordingly, t he undersigned gives no weight t o t he IQ t est ing performed aft er t he claimant ’ s [t went y-second] birt hday.” See Transcript at 12. -7- malingering and/ or exaggerat ing and discount ed t he accuracy of his IQ scores. Moreover, Labor’ s act ivit ies of daily living are inconsist ent wit h his IQ scores. The record indicat es t hat he can at t end t o his own personal care; prepare simple meals; perform rout ine household chores; perform some yard work; and read, wat ch t elevision, and play games during his free t ime. Third, t he ALJ could and did properly find t hat Labor’ s “ mat hemat ics disorder” is a severe impairment . The record as a whole, and Bunt ing’ s opinions in part icular, est ablishes t hat t he disorder has more t han a minimal effect on Labor’ s abilit y t o work. It is also wort h observing t hat t he assessment of Labor’ s residual funct ional capacit y includes a limit at ion caused by an int ellect ual disabilit y. Specifically, t he ALJ found t hat Labor is capable of performing a full range of work at all exert ional levels but has non-exert ional limit at ions t hat prevent him from performing anyt hing more t han unskilled work. This case, t hen, is not an inst ance in which t he ALJ failed t o incorporat e a severe int ellect ual impairment int o t he assessment of a claimant ’ s residual funct ional capacit y. Labor maint ains t hat t he case at bar is ident ical t o Nicola v. Ast rue, 480 F.3d 885 (8t h Cir. 2007), and a remand is warrant ed. In t hat case, t here was some evidence t o support a diagnosis of borderline int ellect ual funct ioning. Nicola maint ained on appeal t hat t he ALJ erred when he failed t o ident ify t he impairment as a severe impairment at st ep t wo. The Commissioner conceded t hat t he ALJ should have included t he impairment as a severe impairment at st ep t wo but maint ained t hat t he error was harmless. The -8- Court of Appeals disagreed and remanded t he case as t he Court was “ persuaded by Nicola’ s assert ion and t he Commissioner’ s concession t hat t he ALJ erred in failing t o find t hat [t he] diagnosis of borderline int ellect ual funct ioning was a severe impairment .” See Id. at 887. The case at bar is dist inguishable from Nicola v. Ast rue in at least t hree respect s. First , t here was some evidence t o support a diagnosis of borderline int ellect ual funct ioning in Nicola v. Ast rue; t here is no such evidence in t he case at bar. Second, t he ALJ in Nicola v. Ast rue failed t o find t hat t he claimant ’ s int ellect ual disabilit y was a severe impairment ; in t he case at bar, t he ALJ found t hat Labor’ s “ mat hemat ics disorder” was a severe impairment . Third, t he Commissioner in Nicola v. Ast rue conceded t hat t he ALJ should have included borderline int ellect ual funct ioning as a severe impairment ; t he ALJ in t his inst ance makes no such concession. Labor offers a second reason why t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record. Labor maint ains t hat t he ALJ erred when he failed t o complet e a psychiat ric review t echnique. Alt hough t he failure t o prepare a psychiat ric review t echnique can be reversible error, see Cut hrell v. Ast rue, 702 F.3d 1114 (8t h Cir. 2013), Nicola v. Ast rue, supra, t he record reflect s t hat t he t wo such analyses were complet ed in t his case. As t he Commissioner correct ly not es, “ [t ]he first was performed by Cheryl Woodson-Johnson, Psy.D., on April 30, 2013, and t he second was performed by Abesie Kelley, Ph.D., on Sept ember 23, 2013.” See Document 12 at CM/ ECF 6. Given t he foregoing, t here is subst ant ial evidence on t he record as a whole t o -9- support t he ALJ’ s findings. Labor’ s complaint is t herefore dismissed, all request ed relief is denied, and j udgment will be ent ered for t he Commissioner. IT IS SO ORDERED t his 11t h day of January, 2017. UNITED STATES MAGISTRATE JUDGE -10-