CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying an application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons discussed below, the court will deny plaintiff's motion for summary judgment and grant the Commissioner's cross-motion for summary judgment.
Plaintiff, born October 15, 1992, applied on April 26, 2011 for SSI, alleging disability beginning May 1, 2006. Administrative Transcript ("AT") 18, 249. Plaintiff alleged he was unable to work due to mental retardation. AT 109. The Social Security Administration denied this claim both initially and on reconsideration. AT 18. In a decision dated April 10, 2013, the ALJ determined that plaintiff was not disabled.
On remand, in a decision dated September 8, 2014, the ALJ again found plaintiff not disabled. AT 14-41. The ALJ made the following findings (citations to 20 C.F.R. omitted):
AT 22-41.
Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) the ALJ erred in finding that plaintiff did not have a presumptively disabling impairment, as she improperly evaluated the medical evidence; and (2) the ALJ failed to base her step five finding on the correct hypothetical limitations.
The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it.
The record as a whole must be considered,
Plaintiff states his claim in terms of the ALJ's improper rejection of certain medical evidence. However, he essentially contends that the ALJ erred in her step three finding that plaintiff did not meet Listing 12.05C and therefore was not presumptively disabled. Plaintiff takes issue with the ALJ's reliance on the medical opinions of Dr. Finkel and Dr. Walter in reaching this conclusion. Specifically, he argues that the ALJ "should not have relied on Dr. Finkel's report as it was done in the absence of treating records and should not have relied upon Dr. Walter's testimony as he repeatedly contradicts himself." (ECF No. 20-1 at 13.)
The Social Security Regulations "Listing of Impairments" is comprised of impairments to certain categories of body systems that are severe enough to preclude a person from performing gainful activity.
To meet a listed impairment, a claimant must establish that he meets each characteristic of a listed impairment relevant to his claim. To equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings "at least equal in severity and duration" to the characteristics of a relevant listed impairment, or, if a claimant's impairment is not listed, then to the listed impairment "most like" the claimant's impairment. 20 C.F.R. § 404.1526. A finding of equivalence must be based on medical evidence only. 20 C.F.R. § 404.1529(d)(3).
The Listings under 12.05 describe intellectual disabilities consisting of a "significant subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period," i.e. the onset of the impairment occurred before the individual was age 22. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05. The manifested deficit in adaptive functioning is a prerequisite that must be met by Listings 12.05A-D, along with the individual requirements for each subdivision. Listing 12.05C requires 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. Plaintiff cites his severe depression as a mental impairment under Listing 12.05(C).
In her step three analysis, the ALJ noted that plaintiff "had been diagnosed with cognitive problems at an early age"; however, the record "also shows that he has dealt with his cognitive problems without much medical treatment." AT 23. In the absence of regular mental health records, the ALJ gave "much consideration" to consultative psychological evaluations in order to determine the severity of plaintiff's problems. AT 24. Dr. Barry Finkel conducted one such evaluation of plaintiff in June 2011, administering a battery of psychological tests and an IQ test. AT 24. He determined that plaintiff had an IQ of 69, found him polite and cooperative, and diagnosed him with Borderline Intellectual Functioning at Axis II. AT 24.
As to plaintiff's depression, the ALJ cited Dr. Finkel's report as follows:
AT 26.
Dr. Sydney Walter testified at the hearing based on a review of plaintiff's medical record, including plaintiff's 2011 evaluation by Dr. Finkel, his 2014 psychological evaluation by Dr. Deborah Schmidt, and his 2012 and 2013 treatment reports with Dr. Daniel McCrimons. AT 59-70. In her step three analysis, the ALJ gave "much weight" to Dr. Walter's testimony. AT 33. Per the ALJ's summary, Dr. Walter testified that plaintiff's "symptoms of depression and anxiety, particularly his lack of motivation, were associated more with his low IQ and underlying diagnosis of borderline intellectual functioning and that his depression and anxiety were otherwise mild." AT 27. As to step three, "Dr. Walter indicated that the record does not support a finding that the severity of the claimant's condition reached a listing level." AT 33.
Plaintiff argues that Dr. Finkel's and Dr. Walter's conclusions were flawed for various reasons. However, defendant argues that, as a threshold matter, plaintiff has not met his burden to establish that he met the criteria of Listing 12.05(C) or any other sub-part of Listing 12.05. In other words, defendant contends, plaintiff has not shown "significantly subaverage general intellectual functioning with deficits in adaptive functioning" that manifested before he turned twenty-two. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05.
Defendant points to record evidence of plaintiff's "capacity to engage in a wide range of daily activities and appropriately fulfill his work responsibilities at Pride Industries," a training environment for the developmentally disabled, where plaintiff worked beginning in 2012. Citing plaintiff's work history and medical evidence of mild or moderate (as opposed to severe) depression, defendant argues that plaintiff cannot satisfy the Listing 12.05 criteria.
As noted by the ALJ, plaintiff's case manager at Pride Industries
AT 26. Plaintiff worked at Pride Industries for two years cleaning floors. He took the bus to work and worked with around fifty other people. AT 26. Plaintiff also testified that he missed work a lot due to stress and depression. AT 26. At the time of the hearing, plaintiff was on leave from his job, as he had started arguments with coworkers during a month when he was angry and sad. AT 50-51.
Dr. McCrimon's treatment records also shed light on plaintiff's mental health and ability to function in a work setting. Dr. McCrimon diagnosed plaintiff with depression in 2012 and prescribed Prozac, but noted in follow-up visits that plaintiff's depressive symptoms were moderate and "relieved by medication." AT 26-27, 437-438. In follow-up visits in 2012 and 2013, plaintiff's behavior and affect were normal, and he showed no signs of anhedonia, agitation, hallucinations, paranoia, or suicidal ideation. (AT 323, 325, 425),
In
Plaintiff next claims that the ALJ's hypothetical questions to vocational expert David Dettmer did not include all plaintiff's impairments as reflected in the record.
"At Step Five . . ., the Commissioner bears the burden of proving that the claimant can perform other jobs that exist in substantial numbers in the national economy. 20 C.F.R. § 416.920(f). There are two ways for the Commissioner to meet this burden: (1) by the testimony of a vocational expert or (2) by reference to the grids."
Dettmer testified that a person who could understand, remember, and carry out simple one-to-two-step job instructions; could maintain concentration, persistence and pace for simple job tasks; and could interact appropriately with supervisors, coworkers and the public, could work in production assembly as an agricultural sorter, for example. AT 25-26. The ALJ questioned him as follows:
AT 97. Questioned by plaintiff's attorney, Dettmer further testified that, if the claimant also required "a supervisor to remind them to stay on task twice an hour," he likely would not be employable. AT 97.
Plaintiff argues the ALJ should have relied on certain records that showed these last two hypotheticals applied to plaintiff and, as a result, no jobs were available for him. However, the hypothetical that ultimately served as the basis for the ALJ's determination was based on plaintiff's "identical vocational background and residual functional capacity[.]"
Plaintiff cites records from Alta California Regional Center, which evaluated plaintiff in 2013, and his employer Pride Industries, as support for the contention that plaintiff required a job that allowed him to be absent once a week and a supervisor who reminded him twice an hour to stay on task. Alta's report stated: "Due to his disruptive social behaviors, emotional outbursts and work ethics, Joseph is not ready for off site employment opportunities." AT 429. The report noted that plaintiff "struggles with attendance," and that his productivity at Pride was 55%. AT 429. However, his case manager "noticed a positive difference at work" when plaintiff was "taking medication for his moods." AT 429.
Following a largely positive summary of plaintiff's history at Pride (noted above), the ALJ stated that she "also recognizes that the claimant testified at the initial hearing that he missed work a lot due to stress and depression." AT 25-26. A December 2012 record of plaintiff's attendance at Pride between November 2011 and November 2012 shows it ranging between 31% and 77%. AT 327. At the hearing, Dr. Walter opined that, based on his review of the record, plaintiff was "capable of simple work but has a serious problem in work ethics and responsibility.. . . I think the main problem is he doesn't feel like attending, he doesn't, and the structural work rules, he seems to disregard." AT 60. Asked if he had a "diagnosis" based on the record, Dr. Walter testified: "Well, there is no diagnosis for someone who's indifferent to work . . . but it can probably fall into a personality problem. But there's no objective diagnosis for that." RT 60-61.
Based on the foregoing, the undersigned finds that hypothetical that ultimately served as the basis for the ALJ's determination was supported by substantial evidence in the record as a whole.
For the reasons stated herein, IT IS HEREBY ORDERED that:
The claimant bears the burden of proof in the first four steps of the sequential evaluation process.
