SUSAN RUSS WALKER, Chief Magistrate Judge.
Plaintiff Belinda Maddox Gunter brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social Security ("Commissioner") denying her application for a period of disability and disability insurance benefits under Title II of the Social Security Act. The parties have consented to entry of final judgment by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c). Upon review of the record and briefs submitted by the parties, the court concludes that the decision of the Commissioner is due to be affirmed.
Plaintiff completed eighth grade in 1981; she began but did not finish ninth grade. (R. 147). Plaintiff was not in special education classes, but she performed poorly in her regular classes. She did, however, attain scores of 70 or above in academic courses of science, math and social studies for one semester each during her seventh and eighth grade years. (R. 9, 11, 137). Plaintiff testified that "they kept on passing [her] on" even though there were things she could not do and that "[n]obody seemed to want to help." (R. 11). Plaintiff also testified that she is unable to read or write. (R. 11).
Plaintiff filed the present application for disability insurance benefits on August 30, 2007, when she was forty-two years old, alleging that she became disabled on May 15, 2008, due to "Ld/slow learner, nerves, [and] headaches." (R. 113-20, 168). She reported that she "had problems with remembering the instructions that were given to [her,] [f]ollowing those instructions and learning to do the tasks [she] was required to know in order to hold down a job." (R. 168). She stated that she is not able to handle any job-related pressure or responsibilities and that she is "very paranoid and just cannot cope with the day to day activities required in a public environment." (
After plaintiff's claim was denied initially, she requested a hearing before an ALJ, which was held on August 26, 2009. (R. 5-41, 61-70).
The court's review of the Commissioner's decision is narrowly circumscribed. The court does not reweigh the evidence or substitute its judgment for that of the Commissioner. Rather, the court examines the administrative decision and scrutinizes the record as a whole to determine whether substantial evidence supports the ALJ's factual findings.
Plaintiff contends that the ALJ erred by failing to accept her IQ scores as valid and, as a result, in concluding that her impairments did not satisfy Listing 12.05C. Plaintiff further argues that the ALJ erred in assessing her credibility and in relying on vocational expert testimony based on a hypothetical question that did not represent her limitations. She contends that — since the ALJ concluded that plaintiff could not perform her past relevant work as a garment inspector — he erred by finding that she could perform the job of "inspector" identified by the vocational expert in response to the ALJ's hypothetical question.
For a claimant to be found disabled under Listing 12.05, she must have "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period," and, in addition, meet one of the four requirements described in subparagraphs A through D.
Plaintiff submitted evidence to the ALJ that when she was tested by psychometrist Jamie Abshire on February 15, 2008, her WAIS-III scores resulted in a verbal IQ of 62, a performance IQ of 69 and a Full Scale IQ of 62 — scores that fall within the range of mild mental retardation. (Exhibit 10F). If these IQ scores were accepted as a valid indication of plaintiff's intellectual ability, plaintiff would be entitled to a finding of disability under Listing 12.05C, because the ALJ found that she has other severe impairments. However, even "[a] valid IQ score is not conclusive of mental retardation when the IQ score is inconsistent with other evidence in the record about claimant's daily activities."
In this case, the ALJ found that the IQ scores were not valid (R. 51), stating a number of reasons for his conclusion that they were not indicative of plaintiff's actual level of mental functioning (R. 50-51). Some of his reasons, as plaintiff argues, do not have merit (e.g., the fact that plaintiff maintains an intimate relationship with her husband, a police officer who does not suffer from retardation). However, the ALJ also identified valid evidence weighing against a finding of mental retardation. The ALJ noted that while plaintiff performed poorly in school, she was not in special education and she occasionally attained grades greater than 70 in academic courses. (R. 50-51). This is supported by plaintiff's education record from junior high school. (R. 137).
Plaintiff notes that the ALJ "never discussed `success' in any job with her, or the other factors involved in her work environment[,]" pointing out that, at her job at Pizza Hut, plaintiff had the support of all of her sisters. (Doc. # 13, p. 8). Significantly, however, the record demonstrates that plaintiff worked in the semi-skilled position of garment inspector for three and a half years (R. 34, 174), and that she left her most recent garment inspector job because the factory closed (R. 18). Plaintiff held a number of jobs as a cook — also semi-skilled work (R. 34, 174) — other than at Pizza Hut. She testified that she quit her job as a cook at a grocery store after about six months because, on the day after she called in sick on one occasion, her supervisor "jumped all over [her] and it hurt [her] feelings[.]" (R. 13-14). She testified that she left her job as a cook at a nursing home after about four months because she "was the only white person there that worked in the kitchen and they treated [her] terribly." (R. 14-15). Thus, the record supports the ALJ's conclusion that plaintiff "succeeded" in these jobs to the extent that she was able to perform the requirements of the positions, and left for reasons other than her inability to understand or perform those requirements.
The ALJ further observed that plaintiff manages a home and drives a car. (R. 50). Plaintiff reported that her son and husband depend on her "to wash their clothes, clean the house and cook for them[,]" that she can mow the grass, and that her condition does not limit her in cooking and preparing meals or performing household chores. (R. 142-44). Although plaintiff prefers to have her mother or husband accompany her to the grocery store because she does not "do math very well," plaintiff's husband reported that plaintiff shops in stores for food, clothing and household items. (R. 144, 152). Plaintiff is also able to drive a car. (R. 145, 152). The ALJ further relied on evidence that, in all of plaintiff's "other doctor visits, no doctor has noted that she appears to have mental retardation. (R. 50). This observation is supported by the medical record, including the record of plaintiff's treatment at South Central Alabama Mental Health. (
Accordingly, the court concludes that the evidence outlined above is sufficient to support the ALJ's determination that plaintiff does not satisfy the requirements of Listing 12.05C and, further, that this determination is supported by substantial evidence of record.
In the Eleventh Circuit, a claimant's assertion of disability through testimony of pain or other subjective symptoms is evaluated pursuant to a three-part standard. "The pain standard requires `(1) evidence of an underlying medical condition and either (2) objective medical evidence that confirms the severity of the alleged pain arising from that condition or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain.'"
At the administrative hearing, plaintiff testified that she takes Lexapro and Xanax. In response to the ALJ's question about how well the medications controlled her symptoms, plaintiff responded, "Well when it comes up bad weather nothing does. And if somebody makes me mad or, it doesn't do any good either." (R. 19). She testified, "When it rains I'm scared. I have to go somewhere to feel safe. I have to be with somebody and out of my trailer to feel safe." The ALJ asked plaintiff whether she felt safe inside the various shops or buildings where she worked during bad weather; plaintiff responded, "No, sometimes I would leave there because I wouldn't feel safe there and I would go somewhere like to my sister[`]s or down to my sister's law office to feel safe." (R. 19-20). In response to questioning by her attorney, plaintiff testified that she does not like the dark and does not drive in the dark. She stated that her husband drove her to the hearing and she rode in a reclined position, with a pillow over her face, because she is "just concerned about having a wreck." (R. 22). She does not attend her son's medical appointments in Birmingham because she "can't get in the car to go" and is afraid that "something is gonna happen." (R. 22).
In response to her attorney's question about whether she "drives a car sometimes around town," plaintiff responded that she does so when the weather is bad, and she goes to her sister's house and stays there. Sometimes, she goes to her mother's house. (R. 21). She testified that she hears "voices in [her] head" and that the voice tells her "if I just go ahead and kill my son and kill myself then I won't have to worry about it." She hears the voice "[e]very day." (R. 23). She stated that she also "sees things" that are not there "[e]very day of [her] life."
Plaintiff contends that the ALJ erred in failing to find her testimony regarding her symptoms to be "entirely credible," in view of the record as a whole. (Doc. # 13, pp. 10-12). The ALJ found that the evidence satisfied the requirements of the pain standard — i.e., "that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms[.]" (R. 54). However, the ALJ concluded that plaintiff's allegations regarding "the intensity, persistence, and limiting effects" of her symptoms were not fully credible. (
The ALJ observed that — except for a single instance in February 2005
As to plaintiff's alleged limitations in driving, the ALJ observed that plaintiff did not indicate that she had lost any job because she could not drive to it and, also, that she drives herself to the homes of family members even when the weather is adverse, and also drives to the store. (R. 55;
Plaintiff also contends that the VE's testimony assumes "no absenteeism," an attendance rate that plaintiff cannot attain, in view of her impairments. She points to the VE's testimony that a person who must leave work three times a month due to panic attacks cannot maintain competitive employment. (Doc. # 13, p. 12). She argues that she cannot "maintain an absentee rate below three absences per month, much less of zero" and, therefore, that the hypothetical question to the vocational expert does not describe her limitations. (
However, the court does not read the VE's testimony to be that a hypothetical individual with the limitations identified by the ALJ can maintain employment only if there is "no absenteeism" whatsoever. (
Plaintiff's past relevant work includes the job of garment inspector; plaintiff's work history report indicates that she performed this job for several years, from January of 1994 through June of 1997. (R. 174, 176;
After the ALJ rendered his decision, plaintiff submitted additional evidence to the Appeals Council. (
The additional medical records include an August 3, 2009, form completed by plaintiff for her annual update evaluation, identifying her symptoms. As in her initial intake evaluation, plaintiff reported hallucinations. (R. 379). Plaintiff checked boxes indicating that she experiences all but sixteen of the 63 "functional deficits" listed on the form. (R. 380-81). As the Commissioner argues and as discussed above, however, the ALJ found plaintiff's testimony regarding her symptoms to be less than fully credible.
Plaintiff's counselor's notes for the monthly sessions include his handwritten summary of plaintiff's reports of her symptoms and a mental status examination. In the treatment notes provided to the ALJ for the period from August 2008 to July 2009, and in those provided to the Appeals Council for the period from August 2009 to November 2009, the counselor's mental status evaluations always reflect that plaintiff's mood is anxious, her orientation normal and her appearance and affect appropriate. (R. 303-04, 325-26, 328, 333-35, 336). Plaintiff's sleep was reportedly fair from August through October 2008 and, in November, she reported hypersomnia. (R. 303-04, 325-26). Beginning in March 2009 — two months after her date last insured — plaintiff consistently reported her sleep as poor. (R. 328, 333-35, 354-56, 358-59). In the records before the ALJ, the counselor noted "thought or perceptional disturbances" only once; he recorded plaintiff's reported hallucinations at the intake appointment. (R. 326). In the treatment notes submitted to the Appeals Council, the counselor noted "thought or perceptional disturbances" of hallucinations and paranoia at plaintiff's annual update appointment in August 2009 (R. 359), slight paranoia in September 2009 (R. 356), and suicidal thoughts in October 2009 (R. 355). The counselor did not always assign GAF scores. However, those he did assign generally reflect his impression that plaintiff's level of functioning deteriorated, with plaintiff's scores remaining in the low 40s until March of 2009, dropping to 38 in May of 2009, to 34 in August of 2009, and to 20 in October of 2009 (R. 303-04, 325-26, 328, 335, 355). The mental status evaluation conducted closest in time to plaintiff's date last insured occurred on January 29, 2009, a month after plaintiff's date last insured. On that date, plaintiff was evaluated by the SCAMH staff psychiatrist. The psychiatrist's "Interview Notes" state, "Pt has negative thoughts about herself. Feels depressed and sometimes suicidal." In her evaluation of plaintiff's current mental status, the psychiatrist noted no abnormalities other than a depressed mood. For "Suicidal Estimate" — which allowed responses of ideation, threats, or attempts — the doctor marked "None Evident." (R. 329).
Upon careful review of the additional treatment records, the court concludes that they reflect a deterioration in plaintiff's mental status occurring after her date last insured. However, the records provide no additional insight into plaintiff's mental condition before her date last insured, and do not demonstrate that the ALJ erred in assessing plaintiff's functional capabilities during the relevant time period.
In the mental source opinion form plaintiff provided to the Appeals Council, counselor Walker and Dr. Brown assert that plaintiff has marked and extreme limitations in her ability to understand, remember and carry out instructions due to her history of depression, extreme anxiety and panic attacks and because she is illiterate and has limited coping skills. (R. 361). They indicate that she has marked and extreme limitations in her ability to interact appropriately with supervisors, co-workers and the public, citing her history of "depression, anxieties and panic attacks to the point she can not sustain employment[.]" They observe that she is poorly educated and illiterate. (R. 362). When asked to "[i]dentify the factors (e.g., the particular medical signs, laboratory findings or other factors described above)"
The opinions expressed by counselor Walker and Dr. Brown regarding plaintiff's inability to sustain employment are, as the Commissioner argues, opinions on an issue reserved to the Commissioner, rather than medical opinions that the Commissioner must consider.
Upon its review of the record as a whole, the court concludes that the evidence of plaintiff's continued treatment by SCAMH and the medical source opinion do not render the Commissioner's decision denying benefits erroneous. Accordingly, the Appeals Council did not err by denying review.
Upon consideration of the administrative record, and plaintiff's allegations of reversible error, the court concludes that the decision of the Commissioner is due to be AFFIRMED. A separate judgment will be entered.