Opinion
Civil Action No. 00-0088.
September 26, 2000.
ORDER AND REASONS
Plaintiff Lynn Rowell seeks judicial review pursuant to Section 405(g) of the Social Security Act (the Act) of the final decision of the Commissioner of Social. Security Administration (the SSA), which denied her claim for supplemental security income benefits (SSI) under Title XVI, §§ 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. § 1381(a). Plaintiff and defendant filed timely memoranda of facts and law. Record Doc. Nos. 7, 8.
1. PROCEDURAL HISTORY
Rowell applied for SSI on August 9, 1995, alleging disability since December 8, 1992, because of back and mental problems. (Tr. 82-85). The Commissioner denied her application initially and on reconsideration. (Tr. 72-75, 77-79). Plaintiff requested a hearing before an administrative law judge ("ALJ"), which was held on December 18, 1997. The ALJ denied Rowell's application on May 20, 1998. (Tr. 13-29). After the Appeals Council denied review on November 9, 1999 (Tr. 3-4), the ALJ's decision became the final decision of the Commissioner for purposes of this Court's review.
2. STATEMENT OF ISSUE ON APPEAL
Plaintiff contends the ALJ erred in failing to consider plaintiff under Listing 12.05.
3. ALJ's FINDINGS RELEVANT TO ISSUES ON APPEAL
The Commissioner made the following findings relevant to the issues on appeal:
A. Claimant has mental problems (borderline or mild mental retardation and some depression or adjustment disorder which are more than "non severe." The evidence fails to demonstrate any "severe" physical impairment. Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985).
B. Claimant's impairments, singly or in combination do not meet or equal the criteria of any impairment in the Listing of Impairments, Appendix 1, Subpart P. Part 404.
C. Claimant's assertions as to pain, functional limitation and the complete inability to do work are not substantiated by the evidence and are not credible. She does not suffer with frequent severe pain or other symptoms.
D. While there is no previous relevant work which claimant necessarily would be able to perform, she has the ability to perform other jobs existing in significant numbers in the national economy such as: hotel/motel maid; janitorial/cleaning work; handpacking; light farmwork.
E. Claimant has not been under a "disability" as defined in the Social Security Act at any time through the date of this decision.
(Tr. 22).
4. ANALYSIS
A. Standards of Review
The function of this Court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence is more than a scintilla but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Spellman, 1 F.3d at 360. This Court may not reweigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's Id.; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this Court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022;Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
To be considered disabled and eligible for SSI, plaintiff must show that she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. § 404.1501 to 404.1599 Appendices, §§ 416.901 to 416.998 (1995). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity. Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990). The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. § 404.1520(b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c).
Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520(d), 416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education and work experience are considered to see whether he or she can meet the physical and mental demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide certain tables that reflect major functional and vocational patterns. When the findings made with respect to claimant's vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical-Vocational Guidelines").
The claimant has the burden of proof under the first four parts of the inquiry. Id. If she successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236; Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989). When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant." Id.; accord Selders, 914 F.2d at 618.
The Court "weigh[s] four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) [her] age, education, and work history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve conflicts in the evidence." Id.
B. Factual Background
Plaintiff was 39 years old at the time of the administrative hearing. She completed the tenth grade, but did not continue thereafter. She was pregnant at the time, but could still have attended. She chose not to, however, because she was "going slow in her work," and the teacher wanted it done faster. (Tr. 52). She has three children who were ages 17, 15 and 13 at that time. The 17 year old boy, however, was in jail. Her 15 year old son lives with her and is disabled due to being hit by a car in 1991. He receives SSI benefits. Both he and plaintiffs 13 year old daughter attend school. At the hearing plaintiff claimed she hurt her back while having to carry her son with a cast on his leg after the car accident. She stated he had the cast on for two years.
Plaintiff slipped and fell in a an A P store in June of 1995. That claim was settled approximately a year before the hearing and she received $2,500 after the lawyer's fees, but she did not state at the hearing what injury she suffered from that fall. However, the doctor she saw at that time noted she suffered contusion of the back and hips. (Tr. 128). He also noted she had been involved in a bus accident in November of 1992, wherein she injured her neck and back, and in a bus accident in July of 1992, wherein she inhaled fumes, but she stated she had recovered from both of these accidents prior to the slip and fall accident in June of 1995. (Tr. 127).
Plaintiff worked for a period of time in the 1980's as a waitress at a bar, but claims she was let go because she was dropping drinks and getting the orders confused. She cites her "nerves" as the reason she allegedly was and still is constantly dropping things. She states she continues to suffer from back problems and "nerve" problems. (Tr. 38-58).
C. Medical Evidence
This Court has carefully reviewed the medical records in evidence and the ALJ's summary of the medical evidence (Tr. 16-21), and finds the ALJ's thorough summary of the evidence substantially correct and incorporates it herein by reference.
Whether pain is disabling is an issue for the ALJ, who has the primary responsibility for resolving conflicts in the evidence. Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991). It is within the ALJ's discretion to determine the disabling nature of a claimant's pain, and the ALJ's determination is entitled to considerable deference. Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991); James v. Bowen, 793 F.2d 702 (5th Cir. 1986). The determination whether an applicant is able to work despite some pain is within the province of the administrative agency and should be upheld if supported by substantial evidence. Jones v. Heckler, 702 F.2d 616 (5th Cir. 1983); Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980).
Subjective complaints must be corroborated by objective medical evidence. Houston v. Sullivan, 895 F.2d 1012, 1016 (5th Cir. 1989). When the medical signs or laboratory findings show that the claimant has medically determinable impairments that could reasonably be expected to produce the alleged symptoms, the Commissioner must evaluate the intensity and persistence of the symptoms, so that he can determine how the symptoms limit the claimant's capacity for work. 20 C.F.R. § 404.1529(c). In evaluating the intensity and persistence of symptoms, the following objective factors can corroborate the existence of disabling pain: limitations on range of motion, muscular atrophy, weight loss, impairment of general nutrition, x-ray evidence, neurological deficits and muscle spasms. Hollis, 837 F.2d at 1384.
The Commissioner found, and his conclusion is substantially supported by the medical evidence, that plaintiffs assertions as to pain and symptomatology were exaggerated, inconsistent and lacked corroboration or substantiation in the medical record. Also, the Commissioner properly considered plaintiffs combined impairments. An individual's combined impairments can prohibit substantial gainful activity. 20 C.F.R. § 404.1523, 416.923; Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985). It is well settled that "the Commissioner must analyze both the disabling effect of each of the claimant's ailments and the combined effect of all of these impairments." Fraga v. Bowen, 810 F.2d 1296, 1305 (5th Cir. 1987) (quotations omitted). However, an ALJ's finding that multiple impairments do not render a plaintiff disabled will be upheld unless the Commissioner "so fragmentized [plaintiffs] several ailments" that he failed properly to evaluate their combined effect upon plaintiff. Id. In the instant case, this Court's review of the record reveals the Commissioner did "not simply [make] a rote statement" that he had evaluated plaintiffs impairments in combination. Fraga, 810 F.2d at 1305; accord Tamez v. Sullivan, 888 F.2d 334, 336 (5th Cir. 1989). The Commissioner evaluated the medical evidence carefully. See Fraga, 810 F.2d at 1305; see Harrell v. Bowen, 862 F.2d 471, 482 (5th Cir. 1988). Substantial evidence supports the ALJ's conclusion that plaintiffs combined physical and mental limitations do not disable her from performing the type of work activity described in his hypothetical to the vocational expert.
In this case, as he is clearly entitled to do, the Commissioner weighed all the medical evidence, including the diagnosis plaintiff received at a mental health clinic in September, 1993 of major depression. He found this diagnosis to be "greatly contradicted by the findings of two consultative examiners." (Tr. 19). "[T]he Act empowers the Commissioner to analyze the physicians' testimony. Substantial evidence supports the ALJ's decision to disregard the [physician's] conclusions. That basis is enough to survive our review." Greenspan, 38 F.3d at 237. Moore, 919 F.2d at 905 (citing Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985)). "`[T]he Commissioner is free to reject the opinion of any physician when the evidence supports a contrary conclusion.'" Martinez, 64 F.3d at 176 (quoting Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987)); 20 C.F.R. § 416.927(d); see also 20 C.F.R. § 404.1527(c)(2) ("If any of the evidence in your case record, including any medical opinion(s), is inconsistent with other evidence or is internally inconsistent, we will weigh all the other evidence and see whether we can decide whether you are disabled based on the evidence we have."). A reading of the ALJ's decision shows that he carefully considered, but ultimately rejected, the symptoms plaintiff related to the mental health clinic physician. (Tr. 19).
"The Commissioner, rather than the courts, must resolve conflicts in the evidence." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). As stated earlier, the Commissioner is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this Court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
The Commissioner nonetheless determined that Rowell was unable to perform her past relevant work as a waitress, and therefore correctly moved on to step five of the evaluation process. (See Fn. 1). After considering the plaintiffs residual functional capacity, education and work experience, he determined that she was nevertheless not disabled from performing sedentary, light or medium work activity, with the ability to do simple, repetitive tasks, with no direct dealing with the general public, notwithstanding that she has borderline or mild mental retardation and some depression or adjustment disorder, plus a moderate degree of pain. (Tr. 21-22). Substantial evidence supports the ALJ's conclusion that plaintiffs daily activities indicate she is able to perform a full range of this type of work. Under step four of the disability analysis, the Commissioner may consider evidence of participation in daily activities and household chores in conjunction with other evidence, Reyes v. Sullivan, 915 F.2d 151, 154-55 (5th Cir. 1990), which he did in this case. (Tr. 188).
Residual functional capacity" is a term of art which designates the ability to work despite physical or mental impairments. A person's `residual functional capacity' is determined by combining a medical assessment of an applicant's impairments with descriptions by physicians, the applicant, or others of any limitations on the applicant's ability to work." Hollis v. Bowen, 837 F.2d 1378, 1386-87 (5th Cir. 1988) (citation omitted). Such limitations include the claimant's subjective complaints of pain.
The Commissioner is required to determine whether jobs are available in the national economy that plaintiff has the residual functional capacity to perform. 20 C.F.R. § 404.1520(f). Once the Commissioner determines that such jobs are available, the burden shifts to plaintiff to rebut this finding with substantial evidence in the record. Selders, 914 F.2d at 618. In the instant case, the Commissioner made the determination, with the help of a vocational expert, that there were significant numbers of jobs available in the state and national economy which the plaintiff could perform. This Court finds substantial evidence in the record to support the Commissioner's findings.
D. Legal Argument
The plaintiff made no attempt to rebut the Commissioner's findings regarding job availability. Rather, she argues that the ALJ failed to consider whether plaintiff met the requirements of Listing 12.05(C):
12.05 Mental Retardation and Autism: Mental retardation refers to a significantly subaverage general intellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22). . . . The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied. (Emphasis added).
C. A valid verbal, performance, or full scale IQ of 60 to 69 inclusive and a physical or other mental impairment imposing additional and significant work-related limitation of function;20 C.F.R. Part 404, Subpart P, App. 1, 12.05(C)
Although plaintiff did meet subsection (C) of Listing 12.05 in that she had a Full Scale IQ score of 69 on a WAIS test administered in August of 1996 (Tr. 147-150), the ALJ found "there is no proof that claimant had `deficits in adaptive behavior initially manifested during the development period.'" Plaintiff cites non-binding precedent from other circuits for the proposition that a low IQ score raises the presumption of manifestation during the developmental period. See Hampton v. Apfel, 59 Soc. Sec. Rep. Ser. 711, 1999 WL 46614 (E.D. Pa. 1999), citing 4th 7th and 8th Circuit cases.
"The only remaining question in step three, then, is whether Hampton was required to show that his mental retardation manifested itself prior to his twenty-second birthday, and, if so, whether he made such a showing. The regulations define mental retardation as "a lifelong condition." 20 C.F.R. subpt. P. Appendix 1 S 12.00(B)(4). That definition of mental retardation is not at odds with the introductory material to Listing S 12.05, which defines mental retardation as "a significantly subaverage general intellectual functioning . . . initially manifested during the developmental period (before age 22) " (emphasis added). The introductory material goes on to state that "The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied." One could read that sentence to mean that satisfaction of the requirements of the subheadings of Listing S 12.05 is sufficient to constitute mental retardation; under such a reading, there is no additional requirement of a showing of early manifestation. One could also read the sentence to refer merely to the severity requirement — as distinguished from the manifestation requirement — of Listing S 12.05; under such a reading, a claimant must also provide evidence of early manifestation. "The Third Circuit has not considered this issue, but every circuit — and district court — that has considered the issue has read S 12.05 not to impose a requirement of proving early manifestation of mental retardation in addition to the requirements established by S 12.05(C). There is good reason not to impose such a requirement. As the Fourth Circuit has noted, "there may be many reasons why an individual would not have had the opportunity or need to have a formal intelligence quotient test until later in life." Branham v. Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985). Thus, "in the absence of any evidence of a change in a claimant's intelligence functioning, it must be assumed that the claimant's IQ had remained relatively constant."Luckey v. HHS, 890 F.2d 666, 668 (4th Cir. 1989). Accord Sird v. Chater, 105 F.3d 401, 402 n. 4 (8th Cir. 1997) (adopting the Fourth Circuit rule of rebuttable presumption of constant IQ); Guzman v. Bowen, 801 F.2d 273, 275 (7th Cir. 1986) (same); Lebron v. Sullivan, 1990 WL 149198, *2-*3 (E.D.Pa.) (same); Morrison v. Bowen, 738 F. Supp. 1351, 1353 (D. Kansas 1987) (same). As all of the above cases make clear, a low IQ test raises a presumption of manifestation during the developmental period. Absent evidence of a deterioration in mental functioning following the developmental period, the presumption stands. Because there is no evidence of deterioration in mental functioning in Hampton's case, the Commissioner has not rebutted the presumption that Hampton's low IQ manifested itself during the developmental period." Hampton v. Apfel, 59 Soc. Sec. Rep. Ser. 711, 1999 WL 46614 (ED. Pa. 1999) (Emphasis added).
This court declines to address the issue of whether or not a low IQ test creates a presumption of "deficits in adaptive behavior initially manifested during the development period." See Listing 12.05, supra. Rather, the Court finds that plaintiff failed to prove "a physical or other mental impairment imposing additional and significant work-related limitation of function," as required by subsection (C) of that listing. Although the ALJ stated in paragraph two of his Findings that claimant's mental problems were more than non-severe, it is clear from a reading of his entire opinion that he did not consider plaintiffs mental problems to impose any "additional and significant work-related limitation of function," as required by subsection (C). Further, he found that the evidence failed to demonstrate any severe physical impairments. See Johnson v. Bowen, 864 F.2d 340 345 (5th Cir. 1988) (fifty-one year old claimant whose IQ was between 60 and 69 and suffered from depression, high blood pressure, a hiatal hernia, and abdominal pains did not meet 12.05(C) because "neither her physical impairments nor her other mental impairments imposed any additional and significant work-related limitation of function.").
Conclusion
For the reasons set forth above, the Court finds that the ALJ's decision is supported by substantial evidence and represents a correct application of the pertinent regulations. Therefore, IT IS ORDERED that plaintiffs complaint be dismissed with prejudice.