ROBERT S. BALLOU, District Judge.
Plaintiff Neal Thomas Smith ("Smith") challenges the final decision of the Commissioner of Social Security ("Commissioner") determining that he was not disabled and therefore not eligible for supplemental security income ("SSI"), and disability insurance benefits ("DIB") under the Social Security Act ("Act"). 42 U.S.C. §§ 401-433, 1381-1383f. Specifically, Smith alleges that the ALJ erred by finding that he did not meet the requirements of listing 12.05C for intellectual disability, by failing to probe his non-exertional impairments and by failing to consider his ability to function outside of his home. I find that substantial evidence supports the ALJ's determination. Thus, I
This court limits its review to a determination of whether substantial evidence supports the Commissioner's conclusion that Smith failed to demonstrate that he was disabled under the Act.
Smith filed for SSI and DIB on December 28, 2010, claiming that his disability began on July 22, 2010.
On July 25, 2013, the ALJ entered her decision analyzing Smith's claim under the familiar five-step process,
Smith requested that the Appeals Council review the ALJ's decision. On March 24, 2014, the denied Smith's request for review (R. 1-5), and this appeal followed.
On appeal, Smith alleges that the ALJ erred by failing to adopt the opinion of his treating physician that his mental impairment meets or equals listing 12.05C. Smith was born in 1972, has a ninth grade education and is unable to read and write. R. 24, 62. He previously worked as an iron worker, construction laborer, and brick manufacturing laborer. He also worked in a wood factory. R. 308. Smith stopped working at his construction job in July 2010 when he was rear-ended in a car accident and began to suffer low back pain. R. 63.
A "listed impairment" is one considered by the Social Security Administration "to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience." 20 C.F.R. § 404.1525(a). "When satisfied, the listings of impairments automatically result in a finding of disability. The listings are designed to reflect impairments that, for the most part, `are permanent or expected to result in death.'"
Listing 12.05(C) for intellectual disability states the following:
20 C.F.R. Pt. 404, Subpt. P., App'x 1, § 12.05. The structure of this listing is different than other mental disorder listings in that it contains "an introductory paragraph with the diagnostic description for intellectual disability" as well as four sets of criteria in Paragraphs A through D. 20 C.F.R. Pt. 404, Subpt. P., App'x 1, § 12.00(A). Thus, listing 12.05(C) presents a three-pronged proof requirement.
There is no dispute that Smith has a valid verbal, performance or full scale IQ score of 60 through 70. On May 25, 2011, Angela Berry, Psy.D., completed a psychological evaluation of Smith and performed a Weschsler Adult Intelligence Scale-Fourth Edition (WAIS-IV). R. 533-38. Smith scored a full scale IQ of 65, with a verbal comprehension composite score of 74, and a perceptional reasoning scale of 75. R. 536. Dr. Berry found a 95% chance that Smith's true IQ score falls in the range of 62-70, although she noted that his test scores may slightly underestimate his true level of cognitive functioning. R. 537. There is no evidence of a change in Smith's intelligence functioning, thus it must be assumed that his IQ has remained relatively constant over time.
Smith also satisfies Prong 3, the presence of a "physical or other mental impairment imposing an additional and significant work-related limitation of function." 20 C.F.R. Pt. 404, Subpt. P, App.1, § 12.05C. The ALJ found that Smith suffered from degenerative disc disease and adjustment disorder with depressed mood. R. 16. These are severe physical and mental impairments, as defined by 20 C.F.R. § 416.920(c), and the ALJ explicitly found that "these impairments cause more than minimal work-related limitations and are thus `severe' as that term is defined in the Regulations." R. 16. As listing § 12.00 adopts the definitions in 20 C.F.R. § 416.920(c), this finding necessarily means that the evidence of record met the requirements of Prong 3 of Listing 12.05(C), i.e. "a physical or other mental impairment imposing an additional and significant work-related limitation of function." 20 C.F.R. Pt. 404, Subpt. P., App'x 1, § 12.05(C);
Additionally, the Fourth Circuit has found that a claimant has a significant work-related limitation if he or she cannot perform his past relevant work.
The ALJ determined that Smith did not have deficits in adaptive functioning that initially manifested prior to age 22, and as such, did not meet the requirement of listing 12.05C. I have carefully considered the ALJ's conclusions and the evidence of record. I find that substantial evidence supports the ALJ's determination that Smith did not manifest deficits in adaptive functioning prior to age 22.
"While `intellectual functioning' is determined by standardized intellectual quotient (or "IQ") testing, `[a]daptive functioning refers to how effectively an individual copes with common life demands and how well [he] meets the standards of personal independence expected of someone in [his] particular group, sociocultural background, and community setting.'"
Smith has the burden of proving a deficiency in adaptive functioning during his developmental years.
On November 18, 2012, Smith's primary care physician, Charles L. Cooke, M.D., completed a medical source statement with regard to Smith's physical impairments. R. 626-35. Dr. Cooke stated that Smith meets listing 12.05C, stating, "[h]e clearly had [IQ score of 65] before age 22 since he completed only the 8th grade, he was in spec[ial] ed[ucation] [and] can write only his name." R. 626.
On December 18, 2012, consultative psychologist Gary Bennett, Ph.D., completed an interrogatory as to Smith's mental impairments and concluded that he did not meet listing 12.05C. Dr. Bennett noted that Smith's educational difficulties and inability to read and write could point to possible mental retardation but could also be a result of learning disorders or other factors. R. 644. Dr. Bennett also noted that there is no evidence relevant to deficits in adaptive functioning other than Smith's poor grades. R. 644. Dr. Bennett considered Dr. Berry's assessment of Smith's IQ, along with her opinion that it was a slight underestimate of his intellectual capacity. Dr. Bennett also considered and disagreed with Dr. Cooke's conclusion that Smith meets listing 12.05C.
The ALJ agreed with Dr. Bennett's findings, and determined that the evidence did not reflect that Smith had adaptive deficits prior to age 22 manifested as to meet or equal Listing 12.05C. The ALJ dismissed Dr. Cooke's conclusion, noting that his analysis was perfunctory and outside of his area of expertise. R. 18.
Substantial evidence supports the ALJ's decision. The ALJ noted that Smith testified that he could not read or write and attended six schools growing up.
As noted above, Dr. Berry completed a psychological evaluation of Smith in May 2011, during which Smith reported that he goes outside daily; travels unaccompanied by car; counts change; enjoys playing with his kids and fishing, attends church three times a month, completes yard work and socializes with friends.
The ALJ noted that although Smith quit school after the eighth grade, was placed in special education, was suspended for smoking, and typically earned grades of Fs, he also reported good relationships with teachers and peers, and the ALJ found no other suggestions of pre-22 adaptive deficits.
Smith also claims that the ALJ "failed to probe" Smith's non-exertional impairments and failed to consider his ability to function outside of his home.
The ALJ considered all of the evidence in the record, including treatment records, physicians' opinions and Smith's testimony regarding his non-exertional impairments. The ALJ recognized that Smith suffered from non-exertional impairments (e.g. borderline intellectual functioning and adjustment disorder with depressed mood), and specifically accounted for those impairments in the RFC by limiting Smith to simple, unskilled, non-stressful, routine, repetitive job tasks. Smith's argument that the ALJ did not "fully probe" Smith's non-exertional impairments is nothing more than an invitation to re-analyze the facts, re-weigh the evidence and make a de novo determination of the proper RFC in this matter, which I am not permitted to do under the regulations. The issue before this Court is not whether it is plausible that a different fact finder could have drawn a different conclusion or even if the weight of the evidence supports a finding of disability. The standard is whether the ALJ's decision is supported by substantial evidence. So long as this standard—defined as more than a mere scintilla but perhaps somewhat less than a preponderance—is met, I cannot recommend reversing the ALJ.
Smith also objects to the ALJ's consideration of his activities of daily living as a basis for finding him capable of a range of light work. Smith acknowledges that the ALJ is entitled to consider his activities of daily living, but claims that the ALJ must also consider his ability to function outside of the home. Once again, Smith does not direct the Court to any evidence in the record that the ALJ failed to consider or considered in error. Smith is simply asking the Court to re-weigh the evidence, which I am not permitted to do under the regulations.
As noted above, Smith reported that he goes outside daily; travels unaccompanied by car; counts change; enjoys playing with his kids and fishing, attends church three times a month, completes yard work and socializes with friends. R. 534-35. Smith lives with his wife and three children and reported being capable of independent self-care and financial management. Id. The ALJ considered Smith's activities of daily living, in combination with all the other evidence in the record, and found that it did not support a finding of disability. R. 23. The ALJ acknowledged that Smith's activities of daily living are "limited" as a result of his impairments, but found that the activities Smith does perform are inconsistent with his complaints of prolonged and consistent disabling functional limitations. R. 23. The Commissioner is required to consider factors such as a claimant's daily activities and treatment used for pain in determining and evaluating a claimant's subjective complaints and credibility.
For the foregoing reasons, the Commissioner's motion for summary judgment is
