Opinion
Civil Action No 99-0926-RV-L
November 27, 2000
REPORT AND RECOMMENDATION
Plaintiff brings this action under 42 U.S.C. § 405(g) and § 1383(c)(3) seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for Supplemental Security Income benefits as a child and as an adult.
This action was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Plaintiffs Motion to Waive Oral Argument was granted by this Court (Doc. 24). Upon consideration of the administrative record and the memoranda of the parties, it is recommended that the decision of the Commissioner be affirmed.
I. Issue on Appeal .
Whether the ALJ erred in finding Plaintiff not disabled as a child pursuant to Listing 112.05(D) and as an adult pursuant to Listing 12.05(C).
II. Background Facts .
Plaintiff was twenty-eight (28) years old at the time of the supplemental administrative hearing in December 1998 (Tr. 194). At the hearing, Plaintiff testified as follows: She completed the twelfth grade, returned for additional course work and obtained her diploma in 1990 (Tr. 194, 235). Plaintiff was unmarried and lived alone in a house trailer (Tr. 194). She was currently employed at a nursing home (Tr. 194-195, 238). Her earnings record indicated that she worked in 1987 and 1988 but she could not recall where (Tr. 195). She stated that she had worked continuously from 1990 to the present (Tr. 195, 238). Plaintiff stated she was legally blind in her left eye which began at age thirteen (Tr. 195-196). The medical records indicate that Plaintiff contracted toxoplasmosis in her eye which reduced her vision to within the limits for legal blindness (Tr. 146-150, 164, 164-165). At her initial hearing, Plaintiff testified that she had been working thirty to thirty-five hours per week for about three years as a sewing machine operator earning minimum wage (Tr. 16, 36-37, 97-99). At her supplemental hearing in December 1998, Plaintiff testified that she was working at a nursing home and had been for eight or nine months (Tr. 194-195). The ALJ noted her work record showed earnings since 1990 (Tr. 195).
Mary Woodard filed an application for Supplemental Security Income childhood disability benefits on behalf of her daughter, Dywanda Woodard, on October 8, 1986 (Tr. 39-40). Plaintiff alleged an onset of disability in 1984 due to left eye blindness (Tr. 101-143). The application was denied on November 18, 1986 and Plaintiff did not appeal (Tr. 45-50).
However, the Social Security Administration issued a notice of re-adjudication under Sullivan v Zebley, 493 U.S. 521, 530 (1990), on July 14, 1991 (Tr. 51). During the Zebley re-adjudication process, evidence was presented which indicated Plaintiff was limited in her intellectual functioning (Tr. 144-145, 165, 234-236). The re-adjudicated claim was denied initially and on reconsideration (Tr. 52-72; 75-94). Plaintiff filed a request for hearing before an administrative law judge (ALJ) and the hearing was held on April 14, 1994, before ALJ James D. Smith (Tr. 29-38). Plaintiff and her mother appeared and testified. Plaintiff was not represented by counsel. On March 21, 1995, the ALJ entered a decision finding Plaintiff not disabled (Tr. 6-16). The ALJ found that Plaintiff had a left eye impairment but no mental impairment (Tr. 15-16). The Appeals Council denied review (Tr. 3-4).
On June 17, 1996, Plaintiff filed an appeal to the U.S. District Court. On July 22, 1997, Senior U.S. District Judge Virgil Pittman entered a judgment reversing and remanding the case to the Commissioner for a new hearing (Tr. 201-209). The Court instructed the ALJ to give due consideration to the combined effect of Plaintiffs mental and visual impairments and to her potential eligibility for disability pursuant to Listing 112.05(D) of the Listing of Impairments. 20 C.F.R. Pt. 404, Subpt. App. 1 (Tr. 201-209). On July 1, 1998, the Appeals Council entered an Order remanding the case to the ALJ (Tr. 210-211).
On December 4, 1998, a supplemental hearing was held before the ALJ. Plaintiff testified and was represented by Counsel. A Vocational Expert also testified (Tr. 191, 197-200). On July 26, 1999, the ALJ entered a decision wherein Plaintiff was found not disabled (Tr. 167-183). The ALJ found that Plaintiff experienced severe impairments of left eye blindness and IQ scores in the borderline to mild mental retardation range but her impairments did not medically or functionally equal the requirements of any listed impairment (Tr. 172). The ALJ found that if Plaintiff experienced "true mental retardation" the combination would meet the requirements of 112.05(D). However, he determined she did not have "true mental retardation" under the Listing, nor did she medically or functionally equal a listing (Tr. 172). In his Psychiatric Review Technique Form, based upon Listing 12.05, the ALJ found an absence of"a valid verbal, performance, or full scale I.Q. of 60 to 70 inclusive and a physical or other mental impairment imposing additional and significant work-related limitation of function" (Tr. 182). He also found "IQ scores in the borderline range to mild mental retardation range" (Tr. 182). The ALJ found her slightly limited in activities of daily living and maintaining social functioning, that she would seldom experience deficiencies in concentration, persistence and pace, and that she would never experience episodes of deterioration or decompensation in work or a work-like setting (Tr. 182-183). The ALJ also found that before the age of eighteen (18) years, Plaintiff did not have a mental or physical impairment which was of comparable severity to that which would cause an adult to be disabled (Tr. 178).
The ALJ further found that during the period from August 1, 1988 through December 31, 1990, Plaintiff had attained the age of eighteen (18) years and retained the residual functional capacity to perform sedentary and light unskilled jobs which did not require depth perception or work around dangerous moving machinery.
The VE testified that Plaintiffs left eye blindness and reduced intellectual functioning rendered her best suited for unskilled jobs or jobs at the low semi-skilled level requiring rote memory and without complex instruction, including the work she performed at the time of the supplemental hearing, sewing machine operator (Tr. 198-199, 238). The ALJ found the VE's testimony established Plaintiff would be incapable of driving in a job situation or of working around dangerous moving machinery, but it did not establish more than a very slight reduction in the range of work which the Plaintiff could perform at the unskilled sedentary and light levels of exertion (Tr. 180). Relying upon the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rules 201.21 and 202.17, as well as Plaintiffs continuous occupation in substantial gainful activity since January 1, 1991, he found Plaintiff not disabled at any time relevant to his decision (Tr. 170, 176-180). The Appeals Council denied review and the ALJ's decision became the final decision of the Commissioner.
III. Evidence A. Education
Plaintiffs academic records indicate she attended regular classes through twelfth grade (Tr. 235-236). The grade report submitted shows that from the second through eighth grade, she generally obtained grades of C and D in all academic classes but for grade of B+ and C+ in reading in grades 6, 7, and 8 (Tr. 236). There are no grade records for kindergarten or first grade. Her secondary school records indicate she failed seventeen semester credits and passed sixty two semester credits which include her repeat of ninth grade, two summer school semester and one correspondence semester. Her grade report is marked "was graduated" in the lower left corner (Tr. 235). She passed the Alabama High School Graduation Exam for reading and language in 1988 and for Math in 1989 (Doc. 235).
B. Intelligence Testing
In February 1978, when Plaintiff was ten years old, Washington County Board of Education psychometrist, Dr. Theron M. Covin, administered the Wechsler Intelligence Scale for Children-Revised (WISC-R). Plaintiff obtained a Verbal score of 82, a Performance score of 70 and a Full Scale score of 74. He recommended placement in an educable mentally retarded classroom and re-testing in two years. The record does not show that this recommendation was followed. (Tr. 144).
In September 1992, when Plaintiff was twenty-two years old, a psychological evaluation was performed by Dr. D. Kent Welsh, Ph.D. The Wechsler Adult Intelligence Scale-Revised (WAIS-R) was administered and Plaintiff obtained a Verbal score of 75, Performance score of 72 and a Full Scale score of 73. Dr. Welsh found Plaintiff in the borderline intellectual functioning range. He noted strengths in short term memory and attention to auditory detail but no particular weaknesses. He found she could "sustain concentration, [but] she tended to give up easily on tasks as they became more difficult." He found the test was an adequate assessment of her level of functioning and concluded she had an "adequate range of interests and activities, . . . sufficient understanding and memory to recall instructions," could "adapt adequately to new situations" and "sufficient calculation skills to manage her own financial affairs." No psychiatric problems were observed (Tr. 157-158).
In August 1997, when Plaintiff was twenty-seven years old, a psychological evaluation was performed by Curry B. Hammack, Ph.D. The WAIS-R was administered and she obtained a Verbal score of 70, a Performance score of 67 and a Full Scale score of 67. Dr. Hammack found Plaintiff in the lower borderline intellectual functioning range to upper mild mental retardation range. Dr. Hammack noted adequate effort in testing and found the results valid. On the WRAT (Wide Range Achievement Test), she obtained a third grade level in reading and a fifth grade level in math. He noted "moderate to significant delays" in "language comprehension/expressive skills, extent of word knowledge and visual reasoning/performance skills." He found "significant delays" in "math reasoning skills and in her fund of general information." He suggested Vocational Rehabilitation services for job training. No psychiatric problems were observed (Tr. 222-224).
In September 1998, when Plaintiff was twenty-eight years old, a psychological evaluation was performed by Patricia G. McCleary, Ph.D. The WAIS-R was administered and Plaintiff obtained a Verbal score of 74, a Performance score of 68 and a Full Scale score of 70. Dr. McCleary found Plaintiff in the borderline intellectual functioning range. She noted that Plaintiffs "motivation was adequate," her "persistence was good" and the test results were a "valid and reliable estimate of her current level of functioning." In her summary, she noted Plaintiff had a "normal lifestyle but reported a mildly restricted range of activities which interest her." She also found Plaintiff could manage her own financial benefits, and "could understand, carry out and remember simple instructions." Dr. McCleary completed a mental residual functional capacity evaluation wherein she found Plaintiff slightly restricted in activities of daily living, unrestricted in maintaining social functioning, would seldom experience deficiencies of concentration, persistence or pace and would once or twice experience episodes of deterioration or decompensation in work. She also found Plaintiff moderately restricted in the ability to understand, carry out and remember instructions, mildly restricted in the ability to respond appropriately to customary work pressures, but otherwise unrestricted in ability to respond appropriately to supervision or co-workers, perform simple or repetitive tasks. No psychological problems were observed (Tr. 214-220).
C. Medical Evidence
From 1988 though 1998, Plaintiff was treated by Dr. Seba Mazunder. The medical records submitted contain notations of frequent gynecological problems and other intermittent illnesses and injuries (Tr. 239-273).
On May 9, 1984, Dr. Rollins L. Tindell, Jr., M. D., stated in his letter to Plaintiffs mother, that at the time of Plaintiffs examination on March 26, 1984, she had normal vision in her right eye and was legally blind in her left eye (Tr. 163).
On November 7, 1986, Plaintiff was consultatively examined by Dr. John L. Hinton, M. D., Ophthalmologist. He found her right eye normal but her left eye had 98% vision loss. He diagnosed her left eye with toxoplasmosis, hyperopia and an "old black and white macular scar." He indicated her prognosis as fair and recommended no medical or other therapy. He did not restrict her activities or state any conditions to avoid. (Tr. 146-150).
On September 1, 1992, Plaintiff was consultatively examined by Tom M. Walker, M. D., Ophthalmologist. He found Plaintiff legally blind in her left eye with normal vision in her right eye. He also noted her condition as stable, with no useful binocular vision, no depth perception, and that she should avoid working conditions which require depth perception. (Tr. 153-156).
On May 19, 1993, Dr. Mazunder completed an examination form for submission to Adult Vocational Rehabilitation Services. He noted Plaintiff had no vision in her left eye, frontal headaches which were better with less eye strain, and low back pain possibly secondary to scoliosis to the left at the lower thoracic vertebrae. He recommended a consult with an orthopaedic physician. All other findings were normal but for low arches, agitation and itching with nervousness, and bloody sediment in her urine (Tr. 164-165).
III. ALJ Findings
In his July 26, 1999 decision, the ALJ found in regard to Plaintiffs childhood disability claim (a closed period from October 8, 1986 through September 30, 1988) that Plaintiff had severe impairments of left eye blindness and "IQ scores in the borderline to mild mental retardation range" but her impairments did not, singly or in combination, meet or medically or functionally equal any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. He found that prior to age eighteen, Plaintiff did not have a mental or physical impairment which was of "comparable severity" to that which would disable an adult. He found her to have a moderate limitation of cognitive functioning and mild limitation of communicative functioning (Tr. 178).
In his July 26, 1999 decision, in regard to Plaintiffs adult disability claim (Plaintiff reached age eighteen on August 1, 1988), the ALJ found that Plaintiff did not engage in substantial gainful activity prior to January 1, 1991, but had continuously engaged in substantial gainful activity since that date (Tr. 178). He found during the closed period from August 1, 1988 through December 31, 1990, Plaintiff had severe impairments of left eye blindness and IQ test scores in the borderline to mild mental retardation range; however, these impairments, either singly or in combination, did not meet or equal any listing described in App. 1, Subpt P, of Regulations No. 4 (Tr. 179).
The ALJ found, at the time Plaintiff reached age eighteen, that she had a residual functional capacity for sedentary to light unskilled jobs which did not require work around dangerous moving machinery or depth perception (Tr. 179). She had no past relevant work, and was a younger individual, who completed the eleventh grade but had no transferable skills (Tr. 179). The ALJ found that based upon the Vocational Expert testimony she was best suited for unskilled jobs or jobs at the low semi-skilled level and that her impairments would slightly reduce her range of work. Further, the ALJ found that her continuous employment since January 1, 1991 indicated to the ALJ that "the necessary deficits in adaptive behavior which are required in order to establish mental retardation" were absent (Tr. 180).
IV. Discussion A. Standard of Review .
In reviewing claims brought under the Act, this Court's role is a limited one. The Court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986). The Commissioner's findings of fact must be affirmed if they are based upon substantial evidence. Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991), citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is defined as "more than a scintilla but less than a preponderance," and consists of "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 390, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Bloodsworth, 703 F.2d at 1239. The Secretary's decision must be affirmed if it is supported by substantial evidence even when a court finds that the preponderance of the evidence is against the decision of the Secretary. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (1971); Bloodsworth, 703 F.2d at 1239. "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Further, it has been held that the Commissioner's "failure to apply the correct law or to provide the reviewing court with sufficient reasoning for determining that the proper legal analysis has been conducted mandates reversal." Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). This Court's review of the Commissioner's application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
B. Statement of the Law for Adults
An individual who applies for Social Security disability benefits or supplemental security income must prove their disability. See 20 C.F.R. § 404.1512; 20 C.F.R. § 416.912. Disability is defined as the "inability to do 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); 20 C.F.R. § 404.1505(a)(1992); 20 C.F.R. § 416.905 (a) (1991). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven their disability. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. At the first step, the claimant must prove that he or she has not engaged in substantial gainful activity. At the second step, the claimant must prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove inability to perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant's age, education and work history. Id, at 1005. Once a claimant meets this burden, it becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity and age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987), citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985).
C. Statement of the Law for Children
Prior to February 20, 1990, the date of decision of Sullivan v. Zebley, 493 U.S. 521, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990), the supplemental security income statute enacted by Congress provided that a child must prove he or she suffered from a medically determinable physical or mental impairment of "comparable severity" to an impairment that would preclude work for an adult. 42 U.S.C. § 1382c(a)(3) (1982). However, a child claimant could obtain benefits under the Commissioner's regulations only if he or she was not performing substantial gainful activity, if his or her impairment met the duration requirement, and if his or her impairment was medically equivalent to a listed impairment. Sullivan v. Zebley, 493 U.S. at 526, 110 S.Ct. at 889. No counterpart to the fourth and fifth steps of the adult analysis was required. Id.
The Supreme Court in Zebley found that under the regulations an adult had an opportunity to further establish disability, which a child did not have. Sullivan v Zebley, 493 U.S. at 534-535, 110 S.Ct. at 885. The Supreme Court also found that the Commissioner's regulations were contrary to the statute as enacted by Congress and exceeded the Commissioner's statutory authority. Sullivan v Zebley, 493 U.S. at 541, 110 S.Ct. at 885.
After Zebley, the regulations for child disability claims were revised and the Commissioner began using a four-step sequential analysis for determining whether a child was disabled. See 20 C.F.R. § 416.924(c)-(f). The four-step evaluation process began with (1) whether the child was engaged in substantial gainful activity, (2) whether the child has a severe impairment or impairments, (3) whether the impairment(s) met or equaled a listing, and (4) if the child has a severe impairment(s) but that impairment(s) does not meet or equal in severity a listed impairment, the ALJ must make an individualized functional assessment to determine whether the impairment or impairments were of "comparable severity" to that which would disable an adult. Haws v Apfel, 61 F. Supp.2d 1266, 1272 (M.D. Fla. 1999).
However, the "comparable severity" standard was eliminated with passage of the Personal Responsibility and Work Opportunity Act of 1996 (Welfare Reform Act) which amended § 1614(a)(3) of the Social Security Act, 42 U.S.C. 1382c(a)(3) and became effective on August 22, 1996. See Pub.L. No. 104-193, 110 Stat. 2105 § 211(b)(2)(1996) (directing the Commissioner to eliminate the individual functional assessment set forth in the regulations at 20 C.F.R. § 416.924d and 416.924e).
Further, the Welfare Reform Act specifically stated that it applied to cases not "finally adjudicated" at the time of enactment. Id. § 211(d)(1)(A)(i), 110 Stat, at 2190. "The new statute applies to all child disability applicants who file claims on or after August 22, 1996 and applicants whose claims have not been finally adjudicated by August 22, 1996. A case that is pending upon judicial review is not considered to be finally adjudicated." Wilson v. Callahan, 1997 WL 714863, 2 (W.D.N.Y. 1997) (citing 110 Stat. 2105 § 211(d)(1)(A)(ii)).
The Welfare Reform Act defines childhood disability as follows:
An individual under the age of 18 shall be considered disabled for the purposes of this subchapter if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and 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 12 months.42 U.S.C. § 1382c(a)(3)(C)(i) (Cum.Supp. 1997).
Additionally, 20 C.F.R. § 416.924(a)(1997) sets forth the sequential evaluation process as it applies to childhood disability:
We follow a set order to determine whether you are disabled. If you are doing substantial gainful activity, we will determine that you are not disabled and not review your claim further. If you are not doing substantial gainful activity, we will consider your physical or mental impairment(s) first to see if you have an impairment or combination of impairments that is severe. If your impairment(s) is not severe, we will determine that you are not disabled and not review your claim further. If your impairment(s) is severe, we will review your claim further to see if you have an impairment(s) that meets, medically equals, or functionally equals in severity any impairment that is listed in appendix 1 of subpart P of part 404 of this chapter. If you have such an impairment(s), and it meets the duration requirement, we will find that you are disabled. If you do not have such an impairment(s), or if it does not meet the duration requirement, we will find that you are not disabled.
The current standard is more stringent than that employed prior to the effective date of the Welfare Reform Act, given Congress' decision, as stated in the House conference report, to confine the definition of childhood disability to the first three steps of the sequential evaluation process. Hart ex rel. Thomas v. Chater, 963 F. Supp. 835, 839 (W.D. Mo. 1997). The report reads in pertinent part as follows:
The conferees intend that only needy children with severe disabilities be eligible for SSI, and the Listing of Impairments and other current disability determination regulations as modified by these provisions properly reflect the severity of disability contemplated by the new statutory definition. . . . The conferees are also aware that SSA uses the term `severe' to often mean `other than minor' in an initial screening procedure for disability determination and in other places. The conferees, however, use the term `severe' in its common sense meaning.Id. (quoting 142 Cong. Rec. H8829-92, 8913 (1996 WL 428614), H.R. Conf. Rep. No. 104-725 (July 30, 1996)). "The new law tightens rather than expands the definition of `disabled' with respect to children under 18, with the result that any child considered not disabled under the old law is necessarily considered not disabled under the new law as well." Wilson v Apfel. 179 F.3d 1276, 1277-1278 (11th Cir. 1999).
One week after enactment of the Act, the Commissioner issued emergency instructions regarding implementation of the new legislation, stating that "`[a]ny case that would have been denied under the prior [post- Zebley] standard would also be denied under the new standard.'" Haws v Apfel, 61 F. Supp.2d 126, 1276 (M.D. Fla. 1999) (quoting SSA Emergency Teletype No. EM-96-131 S III(a)(5)) (citations omitted); Childhood Disability Provisions, 62 Fed.Reg. 6408 ("[u]nder the new law, a child's impairment or combination of impairments must cause more serious impairment-related limitations than the old law and our regulations required.").
Review of the record indicates that at the time of the ALJ's initial decision in this case, March 21, 1995, the comparable severity standard was in effect and the ALJ obtained an individual functional analysis of Plaintiff. However, it was replaced by the standard set forth in the Welfare Reform Act effective August 22, 1996. The Act preceded both the judgment of remand to the ALJ which was dated May 30, 1997 and the ALJ's second decision of July 26, 1999. Based upon the foregoing, this Court shall review the ALJ's decision of July 26, 1999 to determine whether Plaintiffs claim for childhood disability was properly denied under the post- Zebley standard. Therefore, if this Court finds that the ALJ's step three determination is supported by substantial evidence, the decision denying benefits should be affirmed. Brown v. Callahan, 120 F.3d 1133, 1135 (10th Cir. 1997) ("In reviewing the Commissioner's decision, . . . we do not concern ourselves with his findings at step four of the analysis; we ask only whether his findings concerning the first three steps are supported by substantial evidence."); Hart, supra, 963 F. Supp. at 840 ("I conclude that plaintiffs claims regarding the ALJ's errors in the determination of his individualized functional assessment are effectively rendered moot by the enactment of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. The only remaining question is whether plaintiffs functional limitations meet or equal the listing criteria.")
VI. Plaintiffs Argument 1. Whether Plaintiff was erroneously found not disabled as a child .
Plaintiff argues that her impairments meet or medically or functionally equal Listing 112.05D. In addition to her IQ score of 70 on the 1978 test, Plaintiff argued that her failure of two grades in school combined with low grades in many of her classes indicate that she was mentally retarded. Mental retardation is defined in Listing 112.05 as follows: "Characterized by significantly subaverage general intellectual functioning with deficits in adaptive functioning." 20 C.F.R. § 404, Subpt P, App. 1. 20 C.F.R. Pt. 404, Subpt. P, App. 1 also sets forth as follows:
The structure of the listings for Mental Retardation (112.05) . . . is different from that of the other mental disorders. Listing 112.05 (Mental Retardation) contains six sets of criteria. If an impairment satisfies the diagnostic description in the introductory paragraph and any one of the six sets of criteria, we will find that the child's impairment meets the listing. (emphasis added)
Therefore, an individual child meets Listing 112.05D if he or she has "significantly subaverage general intellectual functioning with deficits in adaptive functioning" and, meets one of the six criteria which in this case is "[a] valid verbal, performance or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant limitation of function . . . ." See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 112.05.
"The essential feature of Mental Retardation is significantly subaverage general intellectual functioning . . . accompanied by significant limitations in adaptive functioning . . . ." The Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, 39 (4th ed. 1994).
When an individual claims she has an impairment which meets a listed impairment, she" must present specific medical findings that meet the various tests listed under the description of the applicable impairment or, if in the alternative he contends that he has an impairment which is equal to one of the listed impairments, the claimant must present medical evidence which describes how the impairment has such an equivalency." Bell v. Bowen, 796 F.2d 1350, 1353 (11th Cir. 1986).
Following the "comparable severity" analysis, the ALJ found Plaintiff did not engage in substantial gainful activity as a child (Tr. 170). He found Plaintiff to have severe impairments of legal blindness in her left eye and IQ scores in the borderline intellectual functioning to mild mental retardation range (Tr. 170). The ALJ discussed the medical records from ophthalmologists, Dr. Tindell, Dr. Walker and Dr. Hinton and specifically addressed her loss of depth perception and lack of useful binocular vision (Tr. 170-171). He specifically addressed her scores on the 1978 WISC-R, the recommendation for placement in mentally retarded classes and Plaintiffs school records indicating that she attended regular classes through the twelfth grade but did not receive a graduation diploma. (Tr. 171).
As previously stated herein, her secondary school grade report indicates she graduated after taking a correspondence course to complete additional credits (Tr. 235-236).
Though it was recommended in the Order on remand (Tr. 202-209) that the ALJ consider the staleness of Plaintiffs 1978 IQ testing, he did not address this issue. However, the undersigned finds that it is harmless error. Consideration of the stale IQ test results would only serve to show that. Plaintiff did not present evidence of a current IQ test with an IQ score between 60 and 70. The Listing states that "IQ test results must also be sufficiently current for accurate assessment under 112.05. . . . IQ test results obtained between ages 7 and 16 should be considered current for 4 years when the tested IQ is less than 40, and for 2 years when the IQ is 40 or above." 20 C.F.R. Pt. 404, Subpt. P, App. 1. According to the regulations, Plaintiffs IQ score would have been current only through 1980, four years prior to her alleged onset date in 1984.
Harmless errors are those that do not affect the ALJ's determination that a claimant is not entitled to benefits. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)); See also Mays v. Bowen, 837 F.2d 1362 (5th Cir. 1988) citing Gulf States Utilities Co., v. Ecodyne Corp. 635F.2d 517, 520 (5th Cir. Jan. 1981) (Policy behind harmless error is to preserve judgment and avoid waste of time.)
It is noted that in 1978, the school psychometrist recommended another IQ test in two years, or 1980, which further indicates that the 1978 IQ test results would become stale (Tr. 144).
As stated herein, Plaintiff must present evidence to establish disability. Bell at 796 F.2d 1353. The record does not include another IQ test taken prior to obtaining age eighteen. In fact, the next IQ test taken by Plaintiff at age twenty-two, revealed a Verbal IQ score of 75, Performance IQ score of 72 and a Full Scale IQ score of 73 (Tr. 157-158).
At step four of the sequential evaluation, the ALJ referenced the child development questionnaire completed by Plaintiffs mother. The ALJ found her activities unrestricted, developmental milestones timely met, "no limitation of motor function," "no reported social difficulties," no limitation of maintaining concentration, persistence and pace, and independence in grooming skills. He also noted no report of problems at school or with the law (Tr. 172-173).
The ALJ concluded that the "record does not show deficits in an adaptive behavior or any pervasive developmental disorder characterized by social and significant communicative deficits" and that Plaintiff did not meet the requirements of the Listing during the relevant time period (Tr. 172). The ALJ also found that the evidence did not "establish that the claimant experienced mental retardation under the standards required by § 112.05D of the Listing. Similarly, the claimant's impairments do not medically or functionally equal the requirements of any listed impairment" (Tr. 172). He found she would experience mild communicative difficulty because of her left eye blindness and moderate limitation of cognitive functioning as a result of her IQ score (Tr. 173).
The undersigned finds that the ALJ's decision at step three of the childhood sequential evaluation process that Plaintiffs severe impairments did not meet or medically or functionally equal Listing 112.05D is supported by substantial evidence. While the Plaintiff presented evidence that she was blind in her left eye, a severe impairment which resulted in a loss of depth perception, the Plaintiff did not meet her burden to establish mental retardation as required under the Listing. The Plaintiff presented a stale IQ test results, low grades and her failure of two grade to show that she met the listing. However, as the ALJ points out, Plaintiff was placed in regular classes and ultimately graduated. The Plaintiff has not presented a valid IQ score nor the functionally equivalent evidence which would place her in the required range. Moreover, as discussed above, there is no evidence that she met the diagnostic description in the introductory paragraph of Listing 112.05 Mental Retardation, i.e., deficits in adaptive functioning. Therefore, since the ALJ's findings at step three of the sequential evaluation process are supported by substantial evidence, his determination that Plaintiff was not disabled is binding under the Welfare Reform Act. Wilson v. Apfel, 179 F.3d at 1277-1278.
2. Whether Plaintiff was erroneously found not disabled as an adult from August 1, 1988 through December 31, 1990 .
The ALJ found Plaintiff was not engaged in substantial gainful activity during this time (Tr. 174). In his analysis of her impairments during this time period, the ALJ referenced the medical reports of Dr. Tindell, Dr. Hinton, and Dr. Walker (Tr. 174) and specifically referenced Dr. Walker's opinion that Plaintiff should not work in jobs requiring depth perception because of her left eye blindness (Tr. 174). He also noted her 1978 IQ test results which placed her in the borderline intellectual functioning to mild mental retardation range (Tr. 174). Also, in the Psychiatric Review Technique Form, the ALJ found that a valid verbal, performance, or full scale IQ of 60 to 70 was absent and that Plaintiff was in the borderline intellectual functioning range (Tr. 182). The ALJ found that from August 1, 1988 through December 31, 1990, "[t]hese conditions resulted in impairments which were severe; however, they did not either singly, or in combination, meet or equal the requirements for any impairment described in Appendix 1 to Subpart P of Regulations No. 4." (Tr. 174). He found that Plaintiff did not meet Listing 12.05C "because the record does not disclose that the claimant had the required deficits in an adaptive behavior manifested during the developmental period or a pervasive developmental disorder characterized by social and significant communicative deficits" (Tr. 174).
Plaintiffs next IQ test was performed in 1992, beyond the time period at issue. However, the 1992 IQ test did not obtain an IQ score between 60 and 70.
The ALJ also discussed her additional complaints of headaches caused by eye strain secondary to her left eye blindness, dizziness and sharp chest pain. He found her headaches controlled by over-the-counter medication and there was no record of complaints of dizziness or sharp chest pain to any treating source. He concluded that she experienced no medically determinable impairment in regard to these subj ective complaints (Tr. 174).
Upon consideration of Plaintiffs activities of daily living and absence of evidence of limitations of her basic work activities but for not working in a job which required depth perception, the ALJ concluded she had the "residual functional capacity to perform unskilled sedentary and light jobs which did not require her to work around dangerous moving machinery or require her to have depth perception" (Tr. 175).
The ALJ considered the testimony of the Vocational Expert (VE) and noted his opinion that because of Plaintiffs reduced IQ she was best suited for jobs in the unskilled to low semi-skilled level (Tr. 175). The ALJ also considered the testimony of the VE in regard to the effect of Plaintiffs left eye blindness and lack of depth perception on her residual functional capacity. The VE testified that she would be precluded from jobs requiring driving a vehicle or working around dangerous machinery such as working in a factory. The VE also stated that these limitations would create only a slight reduction in the job base at any exertional level. The ALJ noted that the VE testified that there were "no contraindications in the record regarding the claimant's ability to continue working as a sewing machine operator" (Tr. 175). The ALJ referenced Rules 201.24 and 202.17 of 20 C.F.R. § 404, Subpt P, App. 2, the Medical-Vocational Guidelines and based upon the testimony of the VE and the Guidelines found that Plaintiff was not disabled during the period from August 1, 1988 through December 31, 1990 (Tr. 176).
Plaintiff, during this period, had no past relevant work; therefore, the inquiry continued to the fifth step of the sequential evaluation process.
The undersigned finds that the ALJ's decision is supported by substantial evidence. The introductory section of 12.00 Mental Disorders of the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1, sets forth as follows:
The structure of the listing for mental retardation (12.05) is different from that of the other mental disorders listings. Listing 12.05 contains an introductory paragraph with the diagnostic description for mental retardation. It also contains four sets of criteria (paragraphs A through D). If your impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that your impairment meets the listing. Paragraphs A and B contain criteria that describe disorders we consider severe enough to prevent your doing any gainful activity without any additional assessment of functional limitations. For paragraph C, we will assess the degree of functional limitation the additional impairment(s) imposes to determine if it significantly limits your physical or mental ability to do basic work activities, i.e., is a "severe" impairment(s), as defined in SS 404.1520(c) and 416.920(c). If the additional impairment(s) does not cause limitations that are "severe" as defined in SS 404.1520(c) and 416.920(c), we will not find that the additional impairment(s) imposes "an additional and significant work-related limitation of function," even if you are unable to do your past work because of the unique features of that work. Paragraph D contains the same functional criteria that are required under paragraph B of the other mental disorders listings. (Emphasis added)
The Listing defines mental retardation, in pertinent part, as follows:
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 . . . .
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function
In Crayton v. Callahan, 120 F.3d 1217 (11th Cir. 1997), the Court stated that in order "[t]o be considered for disability benefits under section 12.05, a claimant must at least (1) have significantly subaverage general intellectual functioning; (2) have deficits in adaptive behavior; and (3) have manifested deficits in adaptive behavior before age 22." Crayton, 120 F.3d at 1219. The Court further noted that "[g]enerally, the claimant meets the criteria for presumptive disability under . . . section 12.05c when the claimant presents a valid IQ score of 60 through 70 inclusive, and when the claimant presents evidence of an additional mental or physical impairment significantly affecting claimant's ability to work." Crayton, 120 F.3d at 1219.
The ALJ considered Plaintiffs evidence of three psychological examinations administered after January 1, 1991. In 1992, her examining psychologist, Dr. Welsh, placed her in the borderline intellectual functioning range. She obtained a Verbal IQ score of 75, a Performance IQ score of 72, and a Full Scale IQ score of 73 (Tr. 157-15 8). In 1997, her examining psychologist, Dr. Hammack, placed her in the borderline intellectual functioning to mild mental retardation range. She obtained a Verbal IQ score of 70, a Performance IQ score of 67, and a Full Scale IQ score of 67 (Tr.214-220). In 1998, her examining psychologist, Dr. McCleary, placed her in the borderline intellectual functioning range. She obtained a Verbal IQ score of 74, a Performance IQ score of 68, and a Full Scale IQ score of 70 (Tr. 222-224).
Plaintiff has argued that the ALJ erred in failing to consider her 1978, 1997 and 1998 IQ scores as evidence that her mental retardation manifested prior to age twenty-two. However, her 1978 IQ scores were not sufficiently current for an evaluation as a child and thus, could not be considered sufficiently current for evaluation as an adult. The ALJ's failure to discuss her 1978 IQ score in terms of her disability as an adult was harmless error. Also, her IQ scores at age twenty-two did not fall within the required 60 to 70 range (Tr. 157-158).
The 1997 and 1998 IQ scores were determined by the ALJ not to be valid for purposes of 12.05C. (Tr. 182). Further the ALJ found that despite the IQ scores between 60 and 70, Plaintiff did not experience deficits in adaptive behavior as required by Listing 12.05C (Tr. 175, 177).
The Eleventh Circuit has held that a valid IQ score is not conclusive of mental retardation if the score "is inconsistent with other evidence in the record on the claimant's daily activities and behavior." Lowery v Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) citing Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986).
In determining Plaintiff did not meet Listing 12.05C, the ALJ cited her continued work history from 1991 to the date of the hearing (Tr. 176-177). The ALJ found that the 1992 psychological evaluation by Dr. Welsh established that Plaintiff had borderline intellectual functioning (Tr. 176). He also noted Dr. McCleary's 1998 finding that Plaintiff was capable of carrying out, remembering and understanding simple job instructions (Tr. 177). Moreover, he noted that although the 1998 IQ test administered by Dr. McCleary showed an IQ in the mental retardation range, Dr. McCleary's diagnostic impression was that Plaintiff functioned at the borderline intellectual function range (Tr. 177, 216). Further, the ALJ noted that Dr. McCleary found Plaintiff had a "normal lifestyle and was capable of managing her own financial interests" (Tr. 177). Dr. McCleary also found Plaintiff was independent in her activities of daily living (Tr. 216). In the Mental Residual Functional Capacity questionnaire, Dr. McCleary found Plaintiff slightly restricted in activities of daily living, not restricted in maintaining social functioning, would seldom experience deficiencies of concentration, persistence and pace, and would once or twice experience episodes of deterioration or decompensation in work or work-like settings (Tr. 217-218). She also noted Plaintiff was moderately limited in the ability to understand, carry out and remember instructions, mildly limited in ability to respond appropriately to customary work pressures but was otherwise unlimited (Tr. 218-219). While Dr. Hammack did not complete a similar form in his 1997 evaluation, the ALJ noted Dr. Hammack's diagnostic impression that her "intellectual functioning was in the lower range of borderline to the upper range of mild mental retardation" which was consistent with prior evidence (Tr. 177, 224). Also, though he noted her report of limited social activities, Dr. Hammack agreed with Plaintiffs self-report that her main problems were her comprehension and reading skills and suggested Vocational Rehabilitation services, including a vocational evaluation and job training though he was unsure whether such services were available in her area (Tr. 222, 224).
Further, the only IQ testing performed prior to Plaintiffs obtaining age twenty-two was Dr. Covin's examination which became stale in 1980. The IQ test performed in 1992, the year Plaintiff reached age twenty-two, did not include an IQ between 60 and 70. The IQ testing in 1997 and 1998 did not include any report by the examining psychologists that the IQ was present prior to age twenty-two, as required under the listing. In Dr. McCleary's Mental Residual Functional Capacity evaluation she marked that Plaintiffs limitations would last beyond twelve months; however, she did not give an opinion as to the earliest date of existence of the level of severity described in her evaluation (Tr. 219).
Based upon the testimony of the VE, the Guidelines, Plaintiffs testimony in regard to her ability to work as a sewing machine operator, her IQ test scores and the absence of evidence presented by the Plaintiff to establish deficits in adaptive behavior which manifested during the developmental period as required by Listing 12.05C, the undersigned finds that the ALJ's decision that Plaintiff does not meet the Listing and identification of other work that Plaintiff can perform which exists in significant numbers in the national economy, and thus not disabled, is supported by proper application of law and substantial evidence.
Plaintiff has also argued that the ALJ erred by not giving controlling weight to the opinion of Dr. McCleary and Dr. Hammack, two of the examining psychologists that Plaintiff is mildly mentally retarded and that the ALJ erred by not stating the weight he gave to this evidence. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). The ALJ is required to state with particularity the weight given different medical opinions and reasons therefore. See Sharfarz v. Bowen 825 F.2d 278, 279 (11th Cir. 1987). Further, the ALJ's reasons must be legally correct and supported by substantial evidence in the record. Hale v. Bowen, 831 F.2d 1007, 1012 (11th Cir. 1987). Also, the ALJ can reject the opinion of any physician when the evidence supports a contrary conclusion or when it is contrary to other statements or reports of the physician. Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. Unit B 1981); Edwards v. Sullivan, 937 F.2d 580, 583-84 (11th Cir. 1991).
The undersigned finds no merit to this argument. The ALJ discussed each of the consultative psychological reports and it is apparent from his decision that he did not ignore or reject the opinions therein though he did reject the validity of the IQ scores between 60 and 70 in terms of meeting the Listing 12.05C. While he may not have specifically set forth the exact weight given to each consultative psychological report, he did more than make a conclusory statement in regard to his consideration and weighing of the evidence. Review of his decision indicates that he impliedly gave equal weight to each consultative psychological report because he found that each opinion supported his determination of borderline intellectual functioning to mild mental retardation (Tr. 171-172, 176-177). He found Dr. McCleary's 1998 findings were "consistent with all of the prior evidence in the case" (Tr. 177). He found Dr. Hammack's 1997 evaluation "was consistent with the prior evidence already introduced into the record" (Tr. 177). He found Dr. Welsh's 1992 examination established Plaintiff was in the borderline intellectual range which is consistent with his findings in regard to Dr. Hammack and Dr. McCleary (Tr. 157-158, 176). Also, as previously discussed, the scores obtained by Dr. Covin became stale by 1980 and any weight assigned to these scores would have been misplaced.
However, Dr. Covin noted that her "overall level of mental functioning was estimated to be within the upper limits of the educable range. At full maturity, it is probable that her potential for adult training will extend beyond this range" (Tr. 144) which supports the ALJ's decision that Plaintiff functions in the mild mental retardation to borderline intellectual range.
The ALJ noted their IQ test results, their findings in regard to Plaintiffs functional and behavioral limitations, and adopted their findings of mild mental retardation to borderline intellectual functioning. All were one time consultative examinations and all were equally considered by the ALJ. His decision shows that he adopted the opinions of each that Plaintiff did not have deficits of adaptive behavior or functioning, and relied upon these findings to reach his decision that she did not meet or equal the Listing and thus, not disabled.
3. Whether Plaintiff was erroneously found not disabled as an adult after January 1, 1991 .
It is undisputed that Plaintiff began work in January 1991 and was employed at the time of her hearing in December 1998 (Tr. 193-195). Plaintiff argues that Ambers v. Heckler, 736 F.2d 1467 (11th Cir. 1984) controls and she should be found disabled even though she was engaged in substantial gainful activity. Ambers addressed the disability claim of a person who was not working at the time of the administrative hearing. Therefore, the claimant in Ambers met the first step of the sequential evaluation process. Ambers, 736 F.2d at 1469-1470. (A claimant whose impairment meets a listing is disabled regardless of the fact that he or she worked in the past with the impairment or could return to past work.) Such is not the case here since the Plaintiff has engaged in substantial gainful activity since 1991 and testified at the supplemental hearing in December 1998 that she was currently working at a nursing home (Tr. 194-195).
Further, Plaintiff also references Powell o/b/o Powell v. Heckler, 773 F.2d 1572, 1576 (11th Cir. 1985) wherein the Eleventh Circuit held as follows"
We today extend our analysis in Ambers and hold that as a matter of law a person otherwise disabled under the terms of Title II who manages somehow to secure employment will pass into and out of eligibility for benefits when ceasing or embarking upon "substantial gainful activity"[.]
However, the Eleventh Circuit also stated that "the Secretary has directed that if one is engaged in substantial gainful activity `we will find that [the claimant is] not disabled regardless of [his] medical condition or [his] age, education, and work experience.' 20 C.F.R. § 404.1520(b) (emphasis supplied). Employment acts, in essence, to bar benefits to otherwise eligible claimants for the duration of employment." Powell, 773 F.2d at 1576.
Plaintiff had been gainfully employed for seven years and was working at the time of the administrative hearing. Therefore, she did not meet the first step of the sequential evaluation process. See 20 C.F.R. § 416.920, 404.1520 (1997). Based upon her substantial gainful employment, the undersigned finds that substantial evidence supports the ALJ's decision that Plaintiff was not disabled as an adult.
VII. Conclusion
For the reasons set forth, and upon consideration of the administrative record, the hearing decision, and the memoranda of the parties, it is recommended that the decision of the Commissioner denying the Plaintiffs claim for supplemental security income benefits be affirmed.