Terry v. Berryhill

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

TRENTON NATHAN TERRY, )

)

Plaintiff, )

)

vs. ) Case No. 17-00138-CV-W-ODS

)

NANCY A. BERRYHILL,1 )

Acting Commissioner of Social Security, )

)

Defendant. )

ORDER AND OPINION AFFIRMING

COMMISSIONER’S FINAL DECISION DENYING BENEFITS

Pending is Plaintiff’s appeal of the Commissioner of Social Security’s final

decision denying his applications for disability insurance benefits and supplemental

security income. For the following reasons, the Commissioner’s decision is affirmed.

I. STANDARD OF REVIEW

The Court’s review of the Commissioner’s decision is limited to a determination

whether the decision is “supported by substantial evidence on the record as a whole.

Substantial evidence is less than a preponderance but…enough that a reasonable mind

would find it adequate to support the conclusion.” Andrews v. Colvin, 791 F.3d 923, 928

(8th Cir. 2015) (citations omitted). “As long as substantial evidence in the record

supports the Commissioner's decision, we may not reverse it because substantial

evidence exists in the record that would have supported a contrary outcome, or

because we would have decided the case differently.” Cline v. Colvin, 771 F.3d 1098,

1102 (8th Cir. 2014) (citation omitted). Though advantageous to the Commissioner, this

standard also requires the Court consider evidence that fairly detracts from the final

decision. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2015) (citation omitted).

Substantial evidence means “more than a mere scintilla” of evidence; rather, it is

1 Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for

former Acting Commissioner Carolyn A. Colvin as the Defendant in this suit.

relevant evidence that a reasonable mind might accept as adequate to support a

conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th Cir. 2010).

II. BACKGROUND

Plaintiff was born in 1991, and is a high school graduate. R. at 854. Plaintiff

previously worked as a sandwich maker, pizza delivery driver, production assembler,

and marking clerk. R. at 235-40, 878. Plaintiff applied for disability and disability

insurance benefits as well as supplemental security income, alleging a disability onset

date of June 24, 2013. R. at 10. Plaintiff’s applications were denied, and he requested

a hearing before an administrative law judge (“ALJ”). R. 89-99. A hearing was held on

December 11, 2015. R. at 850-880. In February 2016, ALJ Raymond Souza issued his

decision, finding Plaintiff was not disabled. R. at 7-19.

In rendering his decision, the ALJ found Plaintiff has the following severe

impairments: anxiety, depression, Asperger’s syndrome, ADHD, PTSD, and personality

disorder. R. at 12. The ALJ determined Plaintiff has the residual functional capacity

(“RFC”) to:

[P]erform a full range of work at all exertional levels with the following

nonexertional limitations: he should avoid all use of hazardous machinery

and all exposure to unprotected heights; he is limited to simple work

(defined in the DOT as SVP levels 1 and 2), routine tasks, and occasional

changes in the work setting, with no strict production quotas as emphasis

on a per shift rather than per hour basis, and only occasional interaction

with the general public, coworkers, and supervisors.

R. at 14. Based upon the RFC and the vocational expert’s (“VE”) testimony, the ALJ

concluded Plaintiff could work as a linen room attendant, counter supply worker, and

change house attendant.2 R. at 18. Plaintiff appealed the ALJ’s decision to the Appeals

Council, which denied his appeal. R. at 1-4. Plaintiff now appeals to this Court.

2 The ALJ’s decision states Plaintiff can work as a “change out attendant (DOT 258.667-

010).” R. at 18. The position of “change out attendant” is not found in the Dictionary of

Occupational Titles (4th ed. 1991) (“DOT”). However, the Court believes, and the

parties’ briefs proceed on this assumption as well, that the ALJ intended to refer to the

position of “change house attendant” identified in the DOT as position number 358.687-

010. See Docs. #19, at 29; #22, at 14. The Court finds no error based on this mistaken

identification.

III. DISCUSSION

Plaintiff argues the ALJ’s decision must be reversed because (1) the ALJ failed to

consider whether Plaintiff met Listing 12.05C for intellectual disability, and (2) Plaintiff’s

RFC is not supported by the substantial evidence of the record.

A. Listing 12.05C

Plaintiff argues the ALJ failed to consider whether he met Listing 12.05C for

intellectual disability, and argues he meets this listing. When determining whether a

claimant is disabled, the ALJ employs a five-step process. Jones v. Astrue, 619 F.3d

963, 968 (8th Cir. 2010). Under step three, which is relevant to this Court’s decision,

the ALJ considers the severity of the claimant’s impairment and whether the impairment

meets or equals a listed impairment. Id. (quoting Kluesner v. Astrue, 607 F.3d 533, 537

(8th Cir. 2010)); 20 C.F.R. § 416.920(a)(4)(iii). “For a claimant to show that his

impairment matches a listing, it must meet all of the specified medical criteria.” Id. at

969 (quoting Brown ex rel. Williams v. Barnhart, 388 F.3d 1150, 1152 (8th Cir. 2004))

(emphasis in original). The claimant has the burden of proving “his or her impairment

meets or equals a listing.” Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004)

(citation omitted).

Listing 12.05C states:

Intellectual Disability: Intellectual disability refers to significantly

subaverage general intellectual functioning with deficits in adaptive

functioning initially manifested during the developmental period; i.e., the

evidence demonstrates or supports onset of the impairment before age

22.

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 an additional and

significant work-related limitation of function.

SOCIAL SECURITY ADMINISTRATION: PROGRAM OPERATIONS MANUAL SYSTEM,

https://secure.ssa.gov/poms.nsf/lnx/0434132009 (last visited Nov. 29, 2017) (identifying

operative Listing language effective for the period of Dec. 18, 2017 through Sept. 28,

2016). To meet Listing 12.05C, a person must show “(1) a valid verbal, performance, or

full scale IQ of 60 through 70; (2) an onset of the impairment before age 22; and (3) a

physical or other mental impairment imposing an additional and significant work-related

limitation of function.” Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006).

Additionally, one must meet the mandatory requirements in Listing 12.05’s introductory

paragraph, that is, demonstrating “deficits in adaptive functioning” that manifested prior

to age 22. Cheatum v. Astrue, 388 F. App’x 574, 576 (8th Cir. 2010).

In rendering his decision, the ALJ stated Plaintiff did not meet impairments 12.04,

12.06, 12.08, and 12.10, but did not specifically state whether he considered Listing

12.05C. R. at 13. Plaintiff first argues the ALJ’s decision should be reversed because

the ALJ did not “reference or discuss whether Plaintiff’s IQ meets or equals Listing

12.05C.” Doc. #19, at 26. The Court disagrees because a failure to reference or

discuss a particular listing is not reversible error if the ALJ’s overall conclusion is

supported by the record. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011)

(citations omitted) (“There is no error when an ALJ fails to explain why an impairment

does not equal one of the listed impairments as long as the overall conclusion is

supported by the record.”).

Plaintiff also argues the ALJ’s decision should be reversed because he met the

requirements for Listing 12.05C. Although Plaintiff has two performance IQ scores of 75

(R. at 800, 819), the record includes one performance IQ score of 65 (R. at 797) when

Plaintiff was about fifteen years old. Defendant concedes the ALJ’s finding of severe

impairments of anxiety, depression, Asperger’s syndrome, ADHD, PTSD, and

personality disorder fulfills the third Maresh requirement of an “additional and significant

work-related limitation of function.” However, Defendant contends Plaintiff has not met

his burden to establish “deficits in adaptive functioning” that manifested prior to age

twenty-two, as required by the introductory paragraph of Listing 12.05.

Several aspects of the record support finding Plaintiff has not established deficits

in adaptive functioning prior to age twenty-two. First, Plaintiff has a history, beginning

around age seventeen, of unskilled work classified by the VE at Specific Vocational

Preparation (“SVP”) level 2. R. at 235-240, 878. At the time of Plaintiff’s hearing, he

had worked at a retail store for over two years in an SVP 2 position, characterized as

light unskilled work. R. at 861, 878.3 Second, the ALJ noted Plaintiff’s “wide range of

normal activity” in his daily life. R. at 13. Plaintiff’s hobbies include hanging out with

friends, going to the movies, watching television, bowling, and hunting, but he reports a

“lack of money” as a restriction on his activities. R. at 625-26. Plaintiff also reported

being able to care for his personal hygiene, do dishes and laundry, cook simple meals

for himself, drive, go out unaccompanied, and shop for himself. R. at 330-337.

Furthermore, Plaintiff and his grandmother testified he can use a cell phone, and the

record indicates Plaintiff enjoys online computer games. R. at 667, 856, 874.

Finally, the ALJ noted no medical opinion in the record indicated Plaintiff was so

functionally limited that he could not perform basic work tasks at any exertional level. R.

at 15. Although Plaintiff struggled in school, requiring special education classes and the

assistance of a paraprofessional to graduate, the record does not contain a medical

professional opining Plaintiff has a severe intellectual disability. Also, a consultative

examiner, psychologist John Keough, found Plaintiff’s “intellectual functioning is in the

Borderline to Low Average Range.” R. at 626. The lack of a severe intellectual

disability, when considered with Plaintiff’s work history and daily activities, precludes a

finding of deficits in adaptive functioning existing prior to age twenty-two that would

warrant finding Plaintiff meets or equals Listing 12.05C. Compare Cheatum, 388 F.

App’x at 576-77 (finding Plaintiff’s “Borderline Intellectual Functioning,” work history, and

daily activities did not establish deficits in adaptive functioning necessary to meeting

Listing 12.05C) with Lott v. Colvin, 772 F.3d 546, 551-52 (8th Cir. 2014) (remanding to

resolve inconsistencies in the ALJ’s opinion and medical opinion evidence where the

record did not contain an IQ score, but the ALJ found Plaintiff suffered from the “severe

impairment of mild mental retardation”). As in Cheatum, Plaintiff’s work history,

3 Plaintiff contends his work history is not substantial evidence that he does not have

the requisite deficits in adaptive functioning. While prior work is not inconsistent with a

finding of disability, Plaintiff’s work history is relevant to whether he has shown deficits

in adaptive functioning necessary to meet Listing 12.05C where Plaintiff has not

otherwise met the requirements of Listing 12.05C. See Cheatum, 388 F. App’x at 576

n.3. The ALJ specifically noted Plaintiff’s latest position in retail did not reach the

substantial gainful activity level, but stated the position “evinces an ability to perform a

variety of physical and mental work-related tasks that is inconsistent with [Plaintiff’s]

allegations in pursuit of disability benefits.” R. at 16.

activities, and lack of a severe intellectual disability diagnosis, all of which were

identified in the ALJ’s opinion, indicates Plaintiff did not have deficits in adaptive

functioning prior to age twenty-two necessitating a finding he met or equaled Listing

12.05C. Accordingly, the Court finds no reversible error in this respect.

B. Plaintiff’s RFC

One’s RFC is the “most you can still do despite your limitations.” 20 C.F.R. §

404.1545(a)(1). The ALJ must base the RFC on “all of the relevant evidence, including

the medical records, observations of treating physicians and others, and an individual’s

own description of his limitations.” McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.

2000). Plaintiff contends the ALJ’s RFC was not supported by substantial evidence.

In determining Plaintiff’s RFC, the ALJ considered, among other things, Plaintiff’s

symptoms consistent with the objective medical evidence; the intensity, persistence,

and limiting effects of Plaintiff’s symptoms; medical records from treating physicians and

consultative examinations; Plaintiff’s work history; compliance with treatment; and a

third-party function report submitted by Plaintiff’s grandmother. R. at 12-19.

Plaintiff makes a number of objections to the RFC and the occupations the ALJ

found suitable for Plaintiff. Plaintiff focuses on his difficulties in school where he

required special education classes and the assistance of a paraprofessional, and notes

he has “borderline intellectual functioning.” Plaintiff also argues the suitable

occupations listed by the ALJ require a math and language level above his capabilities.

However, Plaintiff obtained a high-school diploma, and has a work history of

occupations with the same or similar math and language level requirements as those

identified by the ALJ. R. at 18, 235-240. Plaintiff argues his past positions cannot be

used to compare the requisite math and language levels because the ALJ found Plaintiff

could not return to his past work as a sandwich maker or pizza delivery driver, but this

misses the mark. Plaintiff’s RFC includes limitations on pace and skill of work because

Plaintiff struggled with the pace of the fast-food industry, but nothing in the record

indicates he was unable to perform the positions due to a math or language deficit. The

ALJ did not err in determining occupations suitable for Plaintiff that involved unskilled

work at math and language levels comparable to Plaintiff’s previous positions.

Plaintiff also argues the ALJ improperly relied on the opinion of psychologist John

Keough, who performed a consultative examination of Plaintiff. R. at 624-26. The

Court finds Plaintiff’s RFC properly accounts for limitations consistent with Mr. Keough’s

opinion, as well as other medical opinions in the record. To the extent Plaintiff argues

the ALJ improperly discounted Plaintiff’s Global Assessment of Functioning (“GAF”)

scores, the Court notes a claimant’s GAF score is not automatically determinative or

controlling. E.g., Jones v. Astrue, 619 F.3d 963, 974 (8th Cir. 2010); Juszczyk v.

Astrue, 542 F.3d 626, 632-33 (8th Cir. 2008). Additionally, the ALJ noted Plaintiff’s low

scores are inconsistent with the objective medical evidence. R. at 17. This finding is

consistent with notes where Plaintiff’s GAF scores were low, but Plaintiff was repeatedly

described as in a “good and stable mood,” and received good marks in areas such as

appearance, speech, thought content, and mental status during these same

examinations. R. at 645-52. The Court finds the ALJ properly considered the medical

opinion evidence in the record.

Finally, Plaintiff argues the ALJ erred in assessing his credibility and that of his

grandmother, with whom Plaintiff lives. As described above, Plaintiff’s daily activities

and hobbies do not support a finding of disability – he, among other things, regularly

watches movies at home, goes to movies and hangs out with friends, goes bowling or

hunting, and is able to care for himself. R. at 330-37, 625-626. Additionally, Plaintiff’s

ability to sustain employment, although not at the substantial gainful activity level, is

evidence of his ability to work that is inconsistent with his allegations of severe disability.

Similarly, the ALJ gave little weight to Plaintiff’s grandmother’s third-party adult function

report and hearing testimony because she alleged an inability to work that was

inconsistent with the record. The Court notes an ALJ may discount testimony of a

household member who may profit from any benefits Plaintiff may obtain. See Ownbey

v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993). The Court will not substitute its judgment for

that of the ALJ. See Baldwin v. Barnhart, 349 F.3d 549, 558 (8th Cir. 2003) (stating

“[t]he credibility of a claimant’s subjective testimony is primarily for the ALJ to decide,

not the courts.”). The Court finds the ALJ did not err in analyzing Plaintiff’s credibility,

his grandmother’s credibility, or formulating Plaintiff’s RFC.

IV. CONCLUSION

The Court concludes there is substantial evidence in the record as a whole to

support the ALJ’s decision. The Commissioner’s decision denying benefits is affirmed.

IT IS SO ORDERED.

/s/ Ortrie D. Smith

ORTRIE D. SMITH, SENIOR JUDGE

DATE: November 30, 2017 UNITED STATES DISTRICT COURT