LEO I. BRISBOIS, Magistrate Judge.
Plaintiff, Lisa Dorthea Paulsen ("Plaintiff"), seeks judicial review of the decision of the Commissioner of Social Security ("Defendant") denying her application for disability benefits by the Social Security Administration ("SSA"). The District Court has referred the present case to the undersigned United States Magistrate Judge for report and recommendation, pursuant to 28 U.S.C. § 636 and Local Rule 72.1.
Both parties submitted cross-motions for summary judgment, [Docket Nos. 14, 16], and the Court took the matter under advisement on the written submissions. For the reasons discussed below, the Court recommends that Plaintiff's Motion for Summary Judgment, [Docket No. 14], be
On November 8, 2012, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II, as well as, an application for supplemental security income under Title XVI of the Social Security Act. (Tr. 11).
Administrative Law Judge Virginia Kuhn ("ALJ") conducted a hearing on September 3, 2014. (Tr. 11). The Plaintiff along with an independent vocational expert, Kenneth E. Ogren, ("IVE Ogren") testified at the hearing. (Tr. 19). Plaintiff was represented by an attorney at the administrative hearing. (Tr. 11). On November 6, 2014, the ALJ issued a decision denying Plaintiff's request for a period of disability, disability insurance benefits, and supplemental security income. (Tr. 11-24). The ALJ concluded that Plaintiff was not disabled within meaning of the Social Security Act. (Tr. 24).
Plaintiff thereafter sought review of the decision by the Appeals Council. (Tr. 6-7). Subsequently, on February 9, 2016, the Appeals Council denied Plaintiff's request for review. (Tr. 1). Accordingly, the ALJ's decision became the final decision of the Commissioner.
On April 8, 2016, Plaintiff filed the present action. (Compl. [Docket No. 1]). Thereafter, both parties submitted cross-motions for summary judgment, [Docket Nos. 14, 16], and the Court took the matter under advisement on the written submissions.
If a claimant's initial application for disability benefits is denied, she may request reconsideration of the decision. 20 C.F.R. §§ 404.907-404.909. A claimant who is dissatisfied with the reconsidered decision may then obtain administrative review by an administrative law judge ("ALJ"). 42 U.S.C. § 405(b)(1); 20 C.F.R. § 404.929.
To determine the existence and extent of a claimant's disability, the ALJ must follow a five-step sequential analysis. This analysis requires the ALJ to make a series of factual findings regarding the claimant's impairments, residual functional capacity, age, education, and work experience.
If the claimant is dissatisfied with the ALJ's decision, she may request review by the Appeals Council, although the Appeals Council need not grant that request for review.
Judicial review of the administrative decision generally proceeds by considering the decision of the ALJ at each of the five steps. Judicial review of the Commissioner's decision to deny disability benefits, however, is constrained to a determination of whether the decision is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g);
In reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact for that of the ALJ.
The claimant bears the burden under the Social Security Act of proving that she is disabled.
In this matter, Administrative Law Judge Virginia Kuhn ("ALJ") made the following determinations during the five-step disability evaluation process:
At step one, the ALJ concluded that Plaintiff had not engage in substantial gainful activity since March 25, 2011, through November 6, 2014, the date of the ALJ's decision. (
At step two, the ALJ concluded that Plaintiff "had the following severe impairments: borderline intellectual functioning; generalized anxiety disorder; and major depressive disorder." (Tr. 13). Plaintiff does not challenge the findings made by the ALJ at step two.
At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 14). Specifically, the ALJ found that Plaintiff did not have any mental impairment or combination of impairments which met or medically equaled "the criteria of listing 12.02, 12.04, and 12.06." (Tr. 14). Plaintiff does not challenge this particular finding made by the ALJ at step three. Plaintiff does, however, challenge the ALJ's finding at step three that Listing 12.05C "is not the proper listing for evaluation of borderline intellectual functioning as [Plaintiff] does not meet the 12.05 definitional A criteria for requisite deficits of adaptive functioning." (Tr. 15).
At step four, the ALJ made the following RFC determination:
(Tr. 17-18). In making that RFC determination, the ALJ, considering the record as a whole, found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms;" however, the ALJ also found that Plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms [were] not credible to the extent they [were] not consistent with the objective medical evidence and other evidence as defined in 20 CFR 404.1529(c)(4) and 416.929(c)(4)." (Tr. 18). Based on that RFC determination, the ALJ found that Plaintiff was unable to perform any past relevant work which according to testimony given by vocational expert Kenneth E. Ogren was semi-skilled work as an assembler and certified nursing assistant (CNA). (Tr. 23).
Finally, at step five, the ALJ concluded that "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are [other] jobs that exist in significant numbers in the national economy that the claimant can perform." (Tr. 22). Relying upon testimony from vocational expert Kenneth E. Ogren, the ALJ specifically found that among the occupations Plaintiff would be able to perform were rack room worker (Dictionary of Occupational Titles No. 920.665-014) of which there are 4,700 positions in the regional economy of Minnesota; polisher (Dictionary of Occupational Titles No. 709.687-012) of which there are 2,500 positions in the regional economy of Minnesota; and stuffer (Dictionary of Occupational Titles No. 780.684-066) of which there are 4,900 positions in the regional economy of Minnesota. (Tr. 23-24). Accordingly, the ALJ found that Plaintiff was not under a disability, as that term is defined by the Social Security Act, at any time during the adjudicated period. (Tr. 24).
Plaintiff raises only one issue on her appeal of the ALJ's decision: Whether the ALJ's finding that Plaintiff did not have the significant deficits in adaptive functioning to warrant consideration under Listing 12.05C was supported by substantial evidence in the record. (Plf.'s Mem., [Docket No. 15], at 1, 10).
"Listing 12.05C requires: 1) significant subaverage general intellectual functioning with deficits in adaptive functioning initially manifested . . . before age 22, 2) a valid verbal, performance, or full scale IQ of 60 through 70, and 3) a physical or other mental impairment imposing an additional and significant work-related limitation of function."
The ALJ found that Listing 12.05C was not the proper Listing to consider in this case. In determining that Listing 12.05C was not the proper Listing for evaluation of Plaintiff's borderline intellectual functioning, the ALJ noted that Plaintiff's activities of daily living and work history demonstrated that Plaintiff lacked the requisite deficits of adaptive functioning. Specifically, the AJL noted that Plaintiff lived independently with her husband; provided childcare and rearing; drove; had a history of semi-skilled substantial gainful activity level work; advocated for herself adequately and independently in medical visits; and despite special education services in high school, completed her certified nursing assistant (CNA) certification. (Tr. 15). The ALJ specifically noted that although Plaintiff claims she had her certified nursing assistant certification exam read to her, "she also needed to demonstrate certain skills and she passed all requirements for certification." (Tr. 15).
The ALJ also considered Plaintiff's counsel's reliance on
The ALJ acknowledged the "2007 psychological evaluation with IQ and other testing, which resulted in a diagnosis of mild mental retardation based on the Full Scale IQ s[c]ore of 67, and [Plaintiff's] significant impairment in adaptive functioning in the areas of communication, work, academic skills and interpersonal relationships," as well as, the September 2012, psychological evaluation containing IQ testing that resulted in a Full Scale IQ of 67; however, the ALJ assigned greater weight to other evidence in the record which contradicted the 2007 and 2012 psychological evaluations. (Tr. 15-16). The ALJ specifically noted that the 2007 psychological evaluation was based on Plaintiff's self-report "which was not the same as her report of daily and overall functioning in reports completed at Exhibit 4E in February 2013, Exhibit 7E, and the examination, mental status examination and activities reported in the May 2013 SSA consultative examination at 5F." (Tr. 15-16 (citing Tr. 227-36, 245-54, 382-86)). The ALJ also noted that "the reported activates during the 2012 visit and the assessment of a Global Assessment of Functioning (GAF) Scale score of 60 [did] not support the requisite deficits of adaptive functioning for evaluation of intellectual disability under Listing 12.05." (Tr. 20).
The ALJ determined that "[t]he reported activities and overall functioning in these documents demonstrate greater activity and ability than reported in 2007 and in the 2012 assessment," and the ALJ gave "greater weight" to the reported activities and overall functioning "in concluding [Plaintiff did] not have the requisite deficits of adaptive functioning required for evaluation under Listing 12.05." (Tr. 16). The ALJ thoroughly discussed the September 2012, psychological evaluation, and concluded that "[a] review of the overall evidence, including the claimant's testimony at the hearing supports a higher level of adaptive functioning." (Tr. 20).
The ALJ's finding that Plaintiff did not demonstrate the requisite deficits of adaptive functioning to warrant consideration of Listing 12.05C is supported by substantial evidence in the record as a whole.
In an undated Function Report, as well as, a Function Report dated February 15, 2013, Plaintiff reported that she takes care of others with the assistance of her husband, including taking care of her children, husband, and cat; performs her own personal care tasks, including dressing, bathing, grooming, and feeding herself, although it sometimes stresses her to perform these tasks; performs household chores, including doing the laundry, cleaning the bathroom and windows, dusting, vacuuming, and washing the dishes; goes outside every day; drives herself; goes shopping every other week for groceries, clothing, and things for the apartment; and with some help, pays bills, counts change, handles a savings account, and uses a check book. (Tr. 227-32, 245-52). Along with those Function Reports, Plaintiff also provided a written narrative of her typical day indicating that—although she sometimes becomes stressed and depressed— when she wakes up in the morning she gets her son and daughter up and ready; showers; plays with her kids, if she is not feeling too stressed or depressed; fixes lunches for everyone; gets "stuff done for the day;" prepares dinner when her kids arrive home from school; watches television as a family; prepares and puts her children to bed; and then prepares herself for bed. (Tr. 229-30, 247-48). Plaintiff also reported that her hobbies included watching television, playing outside with her children, playing with animals, making "stuff," and reading children's books. (Tr. 233). She stated that her reading and writing were not "really good" as she did not "always understand vocabulary in books," however, she completed both of her Function Reports herself. (Tr. 227-36, 245-54).
At the September 3, 2014, administrative hearing, Plaintiff testified that she thenpresently lived with her husband and two children; had previously lived independently for "years;" and after high school, lived in a dorm with three roommates. (Tr. 36-38, 50, 58-59). She further testified that she performed a wide range of household chores, including cooking, cleaning, doing laundry, and paying the bills before she got married to her current husband. (Tr. 37, 47, 50, 56-57). Plaintiff testified that before she married she went shopping, and since she married, she now goes shopping with her husband. (Tr. 37, 45). Plaintiff also testified that she prepares her seven year old child for school each day, drives her seven year old child to school, and cares for her three year old child who stays home with her all day. (Tr. 45, 47, 58, 59). Moreover, she testified that she has worked as a caregiver for her grandmother for a period of three years. (Tr. 40, 67).
On May 7, 2013, Plaintiff had a psychological consultative examination with Donald E. Wiger, PhD, LP, where she similarly recounted her activities of daily living largely as she had reported them in her two previous Function Reports. (Tr. 382-85). During the examination, Dr. Wiger observed that while Plaintiff was "somewhat fidgety," she remained seated during the entire interview; followed directions; understood every question; and did not stare into space, easily shift focus, talk excessively, blurt out answers, interrupt, or get easily distracted. (Tr. 384). Plaintiff also "adequately counted by 3s beginning with 1 such as 1, 4, 7;" "correctly said the months of the year forward and backward," albeit "somewhat slowly;" "correctly spelled the word WORLD forward and backward;" "correctly multiplied 3×4;" "recalled 3 of 3 words immediately and after five and thirty minutes;" correctly remembered the names of her previous schools and teachers, as well as, her recent meals and events in her life; and was able to "abstractly interpret[] a proverb." (Tr. 384). She was unable to count backward from 100 by 7s, and she incorrectly said that 4×7 was 24. (Tr. 384). Dr. Wiger opined that Plaintiff likely had borderline intellectual functioning; however, she was able to understand directions, carry out mental tasks with persistence and pace concordant with intellectual functioning, respond appropriately to other people, and handle the stressors of the workplace. (Tr. 385).
Plaintiff also completed her certified nursing assistant (CNA) certification, and she performed worked in that capacity. (Tr. 38-39, 41-42, 51-55).
Courts have consistently found that individuals performing daily activities such as those Plaintiff reported performing and with work histories similar to that of Plaintiff have failed to demonstrate the adaptive function limitations necessary to meet Listing 12.05C due to the successful history of performance of those activities and employment positions.
Nevertheless, Plaintiff offers several arguments as to why this finding by the ALJ at step three regarding the inapplicability of Listing 12.05C was not supported by substantial evidence in the record as a whole.
First, Plaintiff argues that "the ALJ selectively reference[d] examples of [Plaintiff's] activities of daily living as described in function reports completed by [Plaintiff] and in her testimony at the hearing." (Plf.'s Mem., [Docket No. 15], at 11). To demonstrate this alleged selective referencing, Plaintiff points instead to her 2007 psychological evaluation, the lack of effectiveness Plaintiff exhibited in certain activities of daily living, and Plaintiff's 2012 Vineland-II test which was administered during her 2012 psychological evaluation. (
Regarding her 2007 psychological evaluation and her 2012 psychological evaluation, which included a Vineland-II test, Plaintiff argues that the results of each psychological evaluation reflects deficits in adaptive functioning. Plaintiff notes that her 2007 psychological evaluation found scores indicating deficits in adaptive functioning, and it also noted "that her day-to-day living skills were strengths that she may use to compensate for skill in other areas." (
To the extent that Plaintiff argues that there was also substantial evidence in the record that might have supported Plaintiff's conclusion regarding the evidence, the Court may not reverse the ALJ simply because substantial evidence supports an opposite conclusion.
The ALJ specifically discussed the 2007 and 2012 psychological evaluations and found that those assessments were contradicted by other substantial evidence in the record, including Plaintiff's own reported daily activities and reports made during a different consultative examination. The ALJ also noted that the psychological evaluations were based on Plaintiff's self-reports which also contradicted Plaintiff's self-reported Function Reports. Accordingly, the ALJ assigned greater weight to other evidence in the record including Plaintiff's reported daily activities and work history, which contradicted the 2007 and 2012 psychological evaluations. Such a finding is a proper reason for discounting the 2007 and 2012 psychological evaluations.
Moreover, the ALJ specifically found that Plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms [were] not credible to the extent they [were] not consistent with the objective medical evidence and other evidence as defined in 20 CFR 404.1529(c)(4) and 416.929(c)(4)." (Tr. 18). Importantly, Plaintiff does not contest this finding.
Here, Plaintiff simply asks the Court to reweigh the evidence that the ALJ considered, and come to a different conclusion than the ALJ; this the Court cannot do.
Plaintiff also argues that the ALJ erred in finding that Plaintiff's certified nursing assistant certification and subsequent significant work as a CNA evidenced a lack of adaptive functioning. (Plf.'s Mem., [Docket No. 15], at 13). The ALJ found that while Plaintiff claims she had her certified nursing assistant certification exam read to her, "she also needed to demonstrate certain skills and she passed all requirements for certification." (Tr. 15). Plaintiff argues that the ALJ failed to consider the daily challenges Plaintiff faced in subsequently performing her CNA jobs.
The ALJ did not err in finding that Plaintiff's employment as a certified nursing assistant, along with other substantial evidence in the record as a whole, demonstrated a lack of deficits in adaptive functioning.
As already observed, Plaintiff simply asks the Court to reweigh independently the evidence the ALJ has already considered and substitute its own judgment for that of the ALJ; a task which the Court cannot undertake under the applicable standard of review.
While some evidence in the record may support or suggest Plaintiff had some possible level of deficits in adaptive functioning, "[t]he mere fact that some evidence may support a conclusion opposite to that reached by the Commissioner does not allow this Court to reverse the decision of the ALJ."
Accordingly, the Court's review of the record as a whole indicates that the ALJ's decision that Plaintiff lacked the requisite deficits in adaptive functioning was supported by substantial evidence in the record.
Other than her argument that she meets the criteria for Listing 12.05C, Plaintiff does not point to any other portion of the ALJ's decision which she argues is unsupported by substantial evidence in the record.
Consequently, the Court's review of the record as a whole indicates that the ALJ's decision that Plaintiff was not disabled as defined by the Social Security Administration was supported by substantial evidence in the record.
Therefore, it is recommended that Plaintiff's Motion for Summary Judgment, [Docket No. 14], be
Based on the foregoing, and on all of the files, records, and proceedings herein,
On September 19, 2012, and September 21, 2012, Plaintiff underwent a multi-session psychological evaluation with Licensed Psychologist Dr. Elizabeth Caven, PsyD. (Tr. 369-77). During the September 2012, evaluation, Plaintiff was administered eleven different tests, including a Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV) and a Vineland Adaptive Behavior Scales-II (Vineland-II) test. The WAIS-IV resulted in Plaintiff receiving a Full Scale IQ of 67. (Tr. 370). Plaintiff's Vineland-II test, which measures the personal and social skills of individuals from birth through adulthood, resulted in a score of 53, which "classifie[d] her general adaptive functioning as low." (Tr. 371). The Vineland-II was based on the interview with Plaintiff, and the report specifically notes that the test is based on what the individual actual does "rather than what he or she is able to do." (Tr. 371). Dr. Caven opined a diagnosis of Major depressive disorder, recurrent, sever with psychotic features; generalized anxiety disorder; and mild mental retardation. (Tr. 376). Dr. Caven further opined that Plaintiff's "Mild Mental Retardation . . . existed concurrent with demonstrated deficits in adaptive behavior." (Tr. 376).
