Opinion
Civil Action No. SA: 04-CA-373-XR.
June 8, 2005
ORDER
On this date the Court considered Plaintiff's appeal of an adverse disability determination by the Social Security Administration and Plaintiff's objections to the Report and Recommendation of the United States Magistrate Judge. After careful consideration of the record and of Plaintiff's objections, the Court ACCEPTS the Magistrate Judge's recommendation and AFFIRMS the Commissioner's denial of disability benefits.
I. Background
Claimant filed an application for Disability Insurance Benefits and Supplemental Security Income Benefits on August 30, 2001, alleging disability beginning March 1, 2001. Plaintiff was initially denied benefits on January 30, 2002, and was denied on reconsideration April 24, 2002. Additionally, a hearing was held on April 14, 2003. On July 22, 2003, the administrative law judge (ALJ) ruled that Plaintiff was not disabled. Plaintiff filed an appeal to the Appeals Council on September 23, 2003. Plaintiff's Request for Review was denied on March 12, 2004. Subsequently, Plaintiff brought this action before this Court.
Plaintiff's Original Complaint alleged that (1) the decision of the ALJ was not supported by substantial evidence, and (2) the ALJ failed to apply the proper legal standards to Plaintiff's claim. The matter was referred to a United States Magistrate Judge for review. On February 25, 2005, United States Magistrate Judge Pamela Mathy filed a Report and Recommendation finding: (1) substantial evidence did support the ALJ's determination that Plaintiff was not disabled under the Social Security Act; and (2) the decision was in accord with relevant legal standards.
II. Facts
Plaintiff Victor Peoples was 32 years old at the time of the initial denial of disability. He completed education through the ninth grade and has worked at installing trailer skirting, leveling trailers, and trimming trees. Plaintiff claims to have been disabled since March 1, 2001, due to bipolar disorder, schizophrenia, a left shoulder injury, and learning problems.
Plaintiff was first seen at University Health System's Psychiatric Center on March 13, 2001, claiming he was bipolar and had trouble talking to people. He reported drinking a twelve-pack of beer per weekend as well as daily marijuana use, with his last use of both a few weeks prior. Plaintiff also disclosed that he had been arrested five months prior for driving while intoxicated and that his driver's license had been suspended. He reported that he was a slow learner and had been in special education classes in school, dropping out after the ninth grade. Though the social worker found that Plaintiff had a history of intellectual functioning deficits and bipolar disorder, it was observed that Plaintiff's thought processes were goal oriented, clear, and logical, and his insight and judgment were fair. A progress note dated September 4, 2001, six months later, stated that he had received no psychiatric treatment since his initial evaluation and his diagnosis was major depression recurrent.
On August 9, 2001 Plaintiff became intoxicated, lost control of his motorcycle, and injured his left shoulder, dislocating three bones. He refused corrective surgery due to lack of funds. One year after the accident, in September 2002, Plaintiff was observed to have 5/5 strength in both upper extremities, with good sensation.
Plaintiff first saw Dr. Earl Stenger on February 15, 2002, who helped Plaintiff file a welfare/food stamp application, indicating that Plaintiff was unable to work for a period of one year as a result of his mental impairments. However, Dr. Stenger documented on February 22, 2002, that Plaintiff would have a fair time remembering work-like processes, maintaining attention for a two hour segment of time, sustaining an ordinary routine without special supervision, getting along with co-workers or peers without unduly distracting them or exhibiting behavior extremes, and dealing with work-related stress. Dr. Stenger further found that Plaintiff would have a fair time making work-related decisions, understanding, remembering, and carrying out detailed work instructions, interacting appropriately with the general public, and adhering to basic standards of neatness and cleanliness. His impairments would cause him to miss work less than one day a month.
On May 28, 2002, Dr. Prisad Sripada found Plaintiff to be bipolar, with borderline intellectual functioning. At that time Plaintiff was taking Zoloft and Risperdal without problems, was not using drugs or alcohol, but was having transient hallucinations and continued shoulder problems. At a later visit to Dr. Sripada, on July 29, 2002, Plaintiff reported continued abstinence from drugs or alcohol, that he was getting around on a bicycle, but that he heard things at times. Though Dr. Sripada noted that Plaintiff's intelligence was average, the diagnosis was again borderline intellectual functioning, bipolar disorder, and left shoulder problems.
The ALJ found, and Plaintiff concedes, that there is no evidence in the record that Plaintiff is mentally retarded. The ALJ did not accept Dr. Stenger's assessment of February 15, 2002, as valid, but did find the evaluation of February 22, 2002, to be valid. With respect to the shoulder injury, the ALJ noted at that time that two years had passed since the motorcycle accident and Plaintiff had still not had surgery, speaking to the apparent level of pain associated with the injury. The ALJ relied on the lack of evidence in the record of any serious muscular weakness, atrophy, medical joint motion, muscle spasm, sensory loss, or other progressive physical deterioration which might be expected when there is intense and continuous pain. Though the ALJ found that the Plaintiff's combination of impairments could be considered severe and that Plaintiff could not do his past work, he found that the impairments are not disabling and there are other jobs in the economy that Plaintiff can perform.
III. Analysis
When a party objects to the Magistrate Judge's Report and Recommendation, the District Court conducts a de novo review. 28 U.S.C. § 636(b)(1). Such a review means that the Court will examine the entire record and will make an independent assessment of the law. Petitioner has objected to the Magistrate Judge's recommendation that his appeal be dismissed. When reviewing an ALJ's decision to deny disability benefits, the Court is limited to a determination of whether the decision is supported by substantial evidence and whether the ALJ applied the proper legal standard in evaluating the evidence. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as satisfactory to support a conclusion. Id. A finding that there is no "substantial evidence" to uphold an ALJ's decision should occur only if no credible evidentiary choices or medical findings support the decision. Id. In applying this standard, this Court may not re-weigh the evidence or substitute its judgment for that of the ALJ. Id.
To determine whether a claimant is disabled, the ALJ uses a five-step sequential evaluation. 20 C.F.R. §§ 404.1520, 416.920. First, if a party has been gainfully employed since the alleged disability began, he is not disabled. Second, an individual who does not have a "severe impairment" will not be found disabled. At the third step a party may be found disabled if he meets or medically equals a listed impairment in the code; if not, the analysis progresses to step four. At step four, the ALJ will ascertain the party's residual functional capacity (RFC) and determine whether he can perform his past relevant job duties. If so, the party is not disabled. Finally, if the party cannot perform their past work, factors such as age, experience, education, past work, and RFC will be considered to determine whether an adjustment can be made to other work. The claimant bears the burden of proof at the first four steps of the analysis. Leggett v. Charter, 67 F.3d 558, 564 (5th Cir. 1995). In the fifth step, the burden shifts to the Commissioner to show other substantial gainful employment that the claimant is able to perform and maintain for a significant period of time. Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
The ALJ found that Plaintiff met the first and second steps, but that Plaintiff did not meet or medically equal a listed impairment at step three. The ALJ then found that though Plaintiff could not do his past work (step four), there was other work in the national economy at the "light, unskilled" level that Plaintiff could perform and therefore Plaintiff was not under a disability (step five).
The Court has reviewed the record in this case and finds that the Commissioner's determination is supported by substantial evidence. Plaintiff argues that the ALJ failed to properly develop the record to determine if he met the requisite listing for mental retardation, which would therefore qualify him as disabled at the third step of the analysis. Though Plaintiff has not been diagnosed with mental retardation, he contends that he lacks only an IQ test to fulfill the listing, and therefore the record is insufficient and must be developed.
Listing 12.05 provides that "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." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05. If the impairment satisfies this diagnostic description in the introductory paragraph and any one of four sets of criteria, the required level of severity for the impairment will be met for the purposes of the listing. Id. § 12.00(A). Plaintiff contends that he lacks only an IQ test and may meet the criteria in paragraph 12.05(C), which 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." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05(C).
Plaintiff is mistaken in contending that he must only fulfill the two prong test of paragraph (C), and not the introductory paragraph as well. Plaintiff's main objection that the record must be developed, since all that is required to satisfy the listing is an IQ test, relies on the assumption that Plaintiff meets the other requirements of the listing, including the introductory paragraph. That is, the Plaintiff must have "significantly subaverage general intellectual functioning with deficits in adaptive functioning" before the age of 22. Scores from a test taken prior to the age of 22 or conclusions from an evaluation performed before Plaintiff had turned 22 would help to show evidence of such deficits in adaptive functioning. Daniels v. Comm'r of Social Security, 70 Fed. Appx. 868, 873, 2003 WL 21774004 (6th Cir. 2003). In Daniels, the claimant, absent any scores before the age of 22, did not have the required deficits in intellectual functioning where three psychologists seemed to agree that Plaintiff was of low intelligence but not mentally retarded. Id. at 874. Also, a person leaving school after completing the ninth grade, when the reasons why are unclear, does not necessarily have deficits in adaptive functioning before age 22. Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001). The Foster court ruled that, without a finding of deficits in adaptive functioning before the age of 22, the ALJ does not abuse his discretion in rejecting requests for additional testing. Id. On the other hand, the record has been held inadequate where the Plaintiff took special education courses through ninth grade, dropped out and "struggled" to obtain a GED later on, had not held a job for at least fifteen years, and whose previous work had been limited to some painting and wallpapering of houses and cutting grass. Markle v. Barnhart, 324 F.3d 182, 189 (3d Cir. 2003). Such circumstances could be said to support an onset of mental retardation prior to age 22. Id.
In the instant case, there are no records of any testing done prior to age 22, other than Plaintiff's report cards showing that he took special education classes and held a "C" average in school. In fact, Plaintiff had poor attendance, dropping out of school. It is uncertain but doubtful that such evidence shows a deficit in adaptive functioning. What is certain from the record is that Plaintiff has not been diagnosed with mental retardation at any point in his life. This is similar to Daniels in that Plaintiff has been reported to be of borderline intelligence, but not mentally retarded. In fact, in April 2001, Plaintiff was referred to three individual therapy sessions, but refused treatment as he did not appear for any of the sessions. Failure to seek treatment is relevant in determining the credibility of the Plaintiff's subjective complaints. See Johnson v. Sullivan, 894 F.3d 683, 685 (5th Cir. 1988). While Plaintiff may be credible in contending that the requirements of the introductory paragraph of listing 12.05 are possibly less than a diagnostic description of mental retardation, there is still no evidence in the record showing that Plaintiff has satisfied this supposedly more lenient standard.
Even if the Court were to find that Plaintiff had such deficits in adaptive functioning before the age of 22, fulfilling the introductory paragraph, Plaintiff still must show that he satisfies the other requirements of 12.05(C). That is, along with an IQ test, he must have "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 § 12.05(C). The record is clear that Plaintiff's shoulder injury or other complications cannot satisfy this standard. The ALJ found that the shoulder pain "is not of such frequency, intensity, or duration as to be severe" since one year after the accident, and without surgery, Plaintiff had 5/5 strength with good sensation. (ALJ Decision at 4; Transcript at 15). The ALJ also did "not find the claimant's statements regarding severe limitations in his activities of daily living or his inability to perform any work activity to be credible." (ALJ Decision at 5; Transcript at 16). Such evidence shows that even if Plaintiff satisfies the introductory paragraph, which is doubtful, he does not show a significant additional impairment so as to satisfy 12.05(C), and thus does not meet the listing.
IV. Conclusion
Plaintiff seeks review of the decision to deny him disability benefits and objects to the Magistrate Judge's Recommendation of dismissal, alleging that the ALJ failed to properly develop the record in not ordering an IQ test. However, both the ALJ opinion and the Magistrate Judge's Recommendation properly conclude that Plaintiff does not meet listing 12.05, with or without an IQ test. Accordingly, the Court ACCEPTS the Magistrate Judge's recommendation and AFFIRMS the Commissioner's denial of disability benefits. Plaintiff's Complaint is DISMISSED and Plaintiff's alternative request for remand is DENIED. The Clerk of the Court is directed to enter judgment in favor of the Commissioner.