Opinion
Civil Action No. 01-1366 Section "R"
February 28, 2002
ORDER AND REASONS
This matter comes before the Court on plaintiff Patrice Lawrence's appeal of the Administrative Law Judge's ("ALJ") decision to deny plaintiff's claim. For the following reasons, plaintiff's appeal is denied.
I. Background
Plaintiff Patrice Lawrence applied for Supplemental Security Income ("SSI") in 1992 and the Social Security Administration ("SSA") found her to be disabled and eligible for benefits. At that time, plaintiff had an IQ of 61 and a history of behavioral problems. In 1996, the SSA evaluated plaintiff's condition and found that her disability ended in January 1996. At that time, plaintiff achieved a full scale IQ score of 71, and she was considered medically improved and able to understand and carry-out simple instructions. Plaintiff's motion for reconsideration of the termination of her benefits was denied, and she applied for a hearing before an Administrative Law Judge ("ALJ"). The hearing was held on November 24, 1998. In a decision rendered on December 9, 1998, the ALJ found that plaintiff's disability ended in January 1996 and that she was last eligible for SSI benefits in March 1996 because substantial evidence demonstrated that plaintiff had medically improved and that she was able to engage in substantially gainful activity. Plaintiff appealed the decision to the SSA's Appeals Council and the Appeals Council denied plaintiff's request for review in March 2001 making the ALJ's decision the final decision of the Commissioner.
Plaintiff filed this appeal under 42 U.S.C. § 405 (g), and she argues that the ALJ erroneously found her to no longer be disabled. In her appeal, plaintiff makes the following objections to the ALJ's decision to terminate benefits: (1) the ALJ erroneously found that plaintiff's mental retardation and depression are "non-severe", (2) the ALJ erroneously failed to find that plaintiff's condition met specific "listings," (3) the ALJ incorrectly applied the rules for alcohol use in evaluating disability, and (4) that the ALJ failed to supply the vocational expert with sufficient information to make a proper evaluation of plaintiff's residual functional capacity. Plaintiff also argues that a remand is required because her copy of the administrative record is incomplete.
II. Standard of Review
The function of this Court on judicial review under 42 U.S.C. § 405 (g) is limited to determining whether there is substantial evidence in the record to support the Commissioner's decision, and whether the Commissioner applied the appropriate legal standards in reaching the decision. See Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); Speilman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). The Commissioner's final decision must be upheld if it is supported by substantial evidence. See 42 U.S.C. § 405 (g). Substantial evidence is more than a scintilla, less than a preponderance, and such that a reasonable mind might accept a conclusion based thereon. See Spellman, 1 F.3d at 360. A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings exist to support the Commissioner's decision. See Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). The Court may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner. See Spellman, 1 F.3d at 360; Martinez, 64 F.3d at 173. Conflicts in evidence are for the Commissioner to resolve, not the courts. See Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983)
III. Discussion
A. Application of the Stone Standard
Plaintiff contends that the ALJ incorrectly applied the standard for determining whether plaintiff's impairments are severe, and as a result, the ALJ erroneously failed to find that plaintiff's mental retardation and depression are severe. Disability benefits may be terminated if substantial evidence demonstrates that:
(A) there has been any medical improvement in the individual's impairment or combination of impairments (other than medical improvement which is not related to the individual's ability to work), and
(B) the individual is now able to engage in substantial gainful activity; . . .42 U.S.C. § 423 (f)(1).
The implementing regulations define a medical improvement as "any decrease in the severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled." 20 C.F.R. § 404.1594 (b)(1). Medical improvements are based on changes in the symptoms, signs, and/or laboratory findings associated with claimant's impairment(s). Id.; Griego v. Sullivan, 940 F.2d 942, 944 (5th Cir. 1991). Medical improvement is related only to an individual's ability to work "if there has been a decrease in the severity . . . of the impairment(s) present at the time of the most recent favorable medical decision and an increase in . . . functional capacity to do basic work activities." 20 C.F.R. § 404.1594 (b)(3). For the second part of the evaluation process, the ability to engage in substantial gainful activity, the implementing regulations incorporate most of the standards set forth in the regulations governing initial disability determinations and the same general sequential evaluation process. See C.F.R. §§ 404.1520 and 404.1594. The second step in the sequential analysis, which is at issue here, requires that the fact-finder decide whether the claimant's impairment is "severe." In Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), the Fifth Circuit set out the proper standard for determining whether a claimant's impairment is severe:
"`[A]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.'"
752 F.2d at 1101 ( quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984)).
If it is determined that any of the claimant's impairments are severe, the evaluating ALJ must then determine whether the impairments meet or exceed the criteria of listed disorders in Appendix I. 20 C.F.R. § 404.1594 (f)(2). Here plaintiff does not contest the issue of whether there has been any medical improvement. Rather, she attacks the second part of the termination of benefits test under section 423(f).
Plaintiff argues that the ALJ improperly applied Stone because he failed to find that her mental retardation and depression are "severe" despite statements in his report to the contrary. Plaintiff's argument is inapposite because the ALJ did not terminate plaintiff's benefits based on a finding that her impairments are not severe. See Chapparo v. Bowen, 815 F.2d 1008, 1011 (5th Cir. 1987) (argument regarding improper application of Stone standard irrelevant to disposition of case if outcome of case not turn on issue of severity); see also Shipley v. Director of Health and Human Services, 812 F.2d 934, 935 (5th Cir. 1987). The ALJ's report contains a statement of the Stone standard and a determination that as it applied to this case, claimant's personality disorder is a severe impairment. See R. 18. The ALJ then proceeded to the next step of the sequential evaluation and assessed whether an impairment or a combination of plaintiff's impairments met or exceeded the severity of the impairments listed in the appendix. See 20 C.F.R. § 404.1594 (f)(2). In the absence of a "non-severe" finding as to any one of plaintiff's impairments and a decision to terminate plaintiff's benefits based on a "non-severe" finding, plaintiff cannot complain that any prejudice resulted from the ALJ's performance at this stage in the evaluation. See Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996) (decision will not be reversed where claimant makes no showing that she was prejudiced by deficiencies she alleges). Therefore, the Court rejects plaintiff's first contention and finds that the ALJ applied the appropriate legal standards in reaching its decision.
B. Severity of Listings in Appendix I
Plaintiff contends that the ALJ's determination that none of her impairments meet or equal the severity of an impairment listed in Appendix I of the Commissioner's Regulations is not supported by substantial evidence. To have a continuing disability, the claimant's impairments or combination of impairments must meet or equal the severity of the impairments listed in Appendix I. 20 C.F.R. § 404.1594 (f)(2); Griego, 940 F.2d at 944 n. 1. Plaintiff specifically asserts that the specific impairments listed in Appendix that she is suffering from are affective disorder (12.04), mental retardation (12.05), and personality disorder (12.08). 20 C.F.R. Pt. 404, Subpt. P. App. 1, §§§ 12.04, 12.05, 12.08.
In order to meet the listing for mental retardation under 12.05, plaintiff must have a valid verbal, performance, or full scale IQ of 60 through 70 inclusive. While plaintiff acknowledges that she obtained IQ scores of 71 full scale, 73 performance, and 71 verbal, she contends that the ALJ should have found the scores within the range for mental retardation because the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV") notes that ranges of 70-75 may be diagnosed as mentally retarded. In Selders v. Sullivan, 914 F.2d 614 (5th Cir. 1990), the Fifth Circuit rejected such an argument. The claimant in Selders argued that the ALJ mistakenly found that he did not have a listed impairment because his 70 verbal IQ score placed him only one point away from an impairment listing that required an IQ range of 60-69 inclusive. See 914 F.2d at 619. The Fifth Circuit affirmed the ALJ's finding and held that Selders' argument did not warrant relief, particularly in light of the fact that his other IQ scores were 72 and 76. See id. Plaintiff rests her argument on a note in the DSM-IV that it is possible to diagnose an individual with mental retardation who has an IQ between 70 and 75 and who exhibits significant deficits in adaptive behavior. The note in the DSM-IV that a doctor may diagnose an individual with plaintiff's IQ scores with mental retardation does not overcome the fact that there is substantial evidence based on plaintiff's IQ scores to support the ALJ's determination that she does not meet the requirements under 12.05. Accordingly, in the absence of any diagnostic evidence that plaintiff's scores of 71, 73, and 71 are the "substantial equivalent" of a score between 60 and 70, the Court finds that plaintiff's argument does not warrant relief. See id.
Aside from demonstrating symptoms that indicate plaintiff suffers from the specific impairments she asserts, she must also demonstrate that she suffers from specific functional limitations of an incapacitating severity in order to meet the requirements for listings under 12.04 and 12.08. See 20 C.F.R. Pt. 404, Subpt. P. App. 1 §§ 12.04, 1208. In order to show a functional limitation, a claimant must demonstrate that she suffers from two of the following: (1) marked restriction of daily living; (2) marked difficulty in maintaining social functioning; (3) frequent deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner; or (4) three or more episodes of deterioration or decompensation in work or worklike settings. See id. The ALJ found that plaintiff met none of the listed functional limitations, and the Court finds his conclusion to be supported by the record. Plaintiff points to Dr. Krimmerman's report of September 25, 1996 in support of her argument for finding functional limitations. Instead of supporting plaintiff's contention, Dr. Krimmerman's report provides evidence in favor of the ALJ's conclusion. Specifically relating to the ALJ's finding of no marked social deficits, Dr. Krimmerman stated that "[plaintiff] does respond appropriately to understanding and it doesn't take too long to break through her defenses." R. 238. Dr. Cohen's November 1995 report stated that "[t]here does not appear to be any restriction in the performance of age appropriate activities." R. 220. The Court notes that although Dr. Brown's September 1997 report stated that plaintiff's ability to interact socially was marginal and her ability in social situations "will probably be extremely limited because of her defensiveness and guardedness," the Court is not in the position of resolving conflicts in evidence. See Patton, 697 F.2d at 592.
There was also evidence before the ALJ that indicated that plaintiff regularly spent time with friends just "hanging out" (R. 222) and going to fast food restaurants, movies, and shopping malls. R. 218-19. Furthermore, the record before the ALJ contained substantial evidence that plaintiff did not suffer from three or more episodes of deterioration or decompensation in work or work-like settings. For example, Dr. Gordon observed that during testing "Patrice presented as cooperative and pleasant . . . [t]here we no overt signs of gross disturbances in personality functioning or thought process . . ." R. 223. Dr. Gordon concluded that "[plaintiff's] capacity to understand, retain, and follow instructions is adequate" and "[h]er ability to sustain attention in order to perform simple, repetitive tasks is adequate." R. 223. Dr. Gordon also noted that plaintiff's "ability to tolerate the stress and pressures associated with day-to-day work-related activity is questionable," (R. 224) but Dr. Krimmerman's report expressed a positive outlook on plaintiff's ability to perform in a work-related setting: "In a job situation she would have difficulty relating to others that is moderate in severity," but that with the help of counseling she could learn from her mistakes. R. 238 (emphasis added). Further, Dr. Cohen observed that "[t]here is no impairment in her ability to relate to others." R. 220. Again, it is the job of the ALJ to reconcile conflicting reports ( see Patton, 697 F.2d at 592), and there is substantial evidence in the reports of Dr. Gordon, Dr. Krimmerman, Dr. Cohen, and Dr. Brown that plaintiff did not exhibit the required functional limitations.
C. ALJ's Consideration of Plaintiff's Alcohol Use
Plaintiff contends that the ALJ's finding that plaintiff would not be disabled if she stopped using alcohol was both unnecessary and erroneous. Under the Commissioner's regulations, if a finding is made that a claimant is disabled, and there is evidence of drug addiction or alcoholism, the ALJ must determine whether the drug addiction or alcoholism is a "contributing factor material to the determination of disability. . . ." 20 C.F.R. § 416.935 (a). Here, the ALJ determined that plaintiff was not disabled based on the submitted medical evaluations, but he still proceeded to evaluate whether plaintiff would "still be disabled if [she] stopped using drugs or alcohol." 20 C.F.R. § 416.935 (b)(1). It appears from the record that the ALJ addressed plaintiff's alcohol problem because of a suicide attempt by plaintiff after the doctors conducted their medical evaluations. During the hearing before the ALJ, Dr. Kronberger, a medical expert, in response to the ALJ's question as to whether plaintiff's drinking would be material to her potential mental disability, testified that "if she continues to drink, yes, I would think it would be material to the depression and, and the suicidal episodes." R. 302. Dr. Kronberger also testified that if plaintiff suffers from depression and fails to take her medicine or begins to drink, then it would make it very unlikely that she would be able to work. R. 301. Therefore, the Court finds that there is substantial evidence to demonstrate that plaintiff's alcoholism is a contributing factor material to the determination that she has an affective disorder. Regardless, because the ALJ found that plaintiff was not disabled based on other findings, such as a lack of functional limitations required for a finding that plaintiff's affective disorder meets the listing under 12.04 (R. 18), the Court finds that the ALJ's evaluation of plaintiff's alcoholism did not prejudice plaintiff, and it therefore does not warrant remand or reversal. See Carey v. Apfel, 230 F.3d 131, 143 (5th Cir. 2000).
D. Plaintiff's Residual Functional Capacity
Plaintiff asserts that the ALJ's finding regarding her residual functional capacity is not supported by substantial evidence. When the ALJ relies on a vocational expert's testimony to determine a claimant's capacity to perform a range of jobs existing in significant numbers in the national economy, the hypothetical questions posed to the vocational expert must incorporate reasonably all disabilities recognized by the ALJ. Boyd v. Apfel, 239 F.3d 698, 707 (5th Cir. 2001) ( citing Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994)). Here, the ALJ relied on the vocational expert's testimony to terminate plaintiff's disability benefits based on the expert's opinion that there are jobs in significant numbers in the state and national economies that a person with plaintiff's limitations could perform. R. 20. At the hearing, the ALJ's initial hypothetical to the vocational expert contained the following disabilities: limited education, borderline mental functioning, can follow only one and two-step simple job instructions. R. 303. Given those limitations, the vocational expert determined that the plaintiff could perform work as an unskilled assembly worker, a hand packer and packager, and a vehicle washer and equipment cleaner. Id. The ALJ asked the vocational expert to confirm that the cited jobs required no contact with the public and only minimal contact with co-workers and supervisors. R. 303-04. The expert answered in the affirmative to both questions. Id. The ALJ then asked the vocational expert how major depression that affects concentration, persistence, and pace would impact his conclusion about the availability of jobs in the state and national economies. Id. The vocational expert stated that such major depression would eliminate the assembly jobs and the hand packing jobs, but that the vehicle washer job would be somewhat less affected. Id.
Plaintiff contends that the ALJ's failure to include plaintiff's social functioning limitations in his hypothetical questions to the vocational expert, such as her difficulty getting along with others and her memory problems, warrants reversal of the termination of benefits. Although the ALJ did not list plaintiff's social functioning limitation in the section of his report regarding the vocational expert's conclusions, he asked the vocational expert during the hearing whether the jobs the expert found available given the limitations the ALJ mentioned require any contact with the public and any more than minimal contact with co-workers and supervisors. Moreover, claimant's memory difficulties were taken into account by the limitation to simple, one and two-step instructions, which was specifically mentioned in the hypothetical questions the ALJ presented to the expert. Therefore, the Court finds that the hypothetical questions presented to the vocational expert reasonably incorporated all the disabilities of the claimant recognized by the ALJ, including plaintiff's social functioning limitations and memory problems, and a reversal is not warranted. Boyd, 239 F.3d at 707.
Claimant asserts that the hypothetical questions the ALJ asked the vocational expert are unreasonable because he also failed to mention plaintiff's hallucinations. The reports submitted to the ALJ, however, do not support a finding that plaintiff suffered from hallucinations. In fact, Dr. Brown's report states that "[t]here are no signs of any auditory or visual hallucinations." R. 240-41.
E. Incomplete Administrative Record
Plaintiff maintains that the case should be remanded because five pages of the hearing testimony in plaintiff's copy of the administrative record were missing. The Court rejects this claim. According to the Assistant United States Attorney, the missing pages of the hearing testimony are and have always been contained in the certified transcript of the record, and the Court's copy of the hearing transcript is complete. Plaintiff had ample time to request copies of the missing record before submitting this motion. Furthermore, the case cited by plaintiff to support her claim is not applicable to this case. In Marshall v. Schweiker, 688 F.2d 55, 56 (8th Cir. 1982), the court noted that a remand of a denial of a claim for social security benefits can be based on the appellate court's inability to render a decision in the absence of a complete record. This Court has a complete record of the hearing transcript, and finds that there is substantial evidence to support the ALJ's termination of plaintiff's social security benefits.
III. Conclusion
For the foregoing reasons, the Court DENIES plaintiff's appeal.