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Hunter v. Colvin

United States District Court, D. Kansas

July 16, 2014

ANGELA N. HUNTER, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

SAM A. COW, Senior District Judge.

This is an action reviewing the final decision of the Commissioner of Social Security which denied plaintiff disability insurance benefits and supplemental security income payments. The matter has been fully briefed by the parties.

I. General legal standards

The court's standard of review is set forth in 42 U.S.C. § 405(g), which provides that "the findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." The court should review the Commissioner's decision to determine only whether the decision was supported by substantial evidence in the record as a whole, and whether the Commissioner applied the correct legal standards. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). When supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 401 (1971).

Substantial evidence requires more than a scintilla, but less than a preponderance, and is satisfied by such evidence that a reasonable mind might accept to support the conclusion. Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). The determination of whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it really constitutes mere conclusion. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989). But the standard "does not allow a court to displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. " Trimmer v. Dep't of Labor, 174 F.3d 1098, 1102 (10th Cir. 1999).

The Social Security Act provides that an individual shall be determined to be under a disability only if the claimant can establish that he has a physical or mental impairment expected to result in death or last for a continuous period of twelve months which prevents the claimant from engaging in substantial gainful activity (SGA). The claimant's physical or mental impairment or impairments must be of such severity that they are not only unable to perform their previous work but cannot, considering their age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential evaluation process to determine disability. If at any step a finding of disability or non-disability can be made, the Commissioner will not review the claim further. At step one, the agency will find non-disability unless the claimant can show that she is not working at a "substantial gainful activity." At step two, the agency will find non-disability unless the claimant shows that she has a "severe impairment, " which is defined as any "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled. If the claimant's impairment does not meet or equal a listed impairment, the inquiry proceeds to step four, at which the agency assesses whether the claimant can do her previous work. The claimant is determined not to be disabled unless she shows she cannot perform her previous work. The fifth step requires the agency to consider vocational factors (the claimant's age, education, and past work experience) and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 540 U.S. 20 (2003).

The claimant bears the burden of proof through step four of the analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993). At step five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in the national economy. Nielson, 992 F.2d at 1120; Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The Commissioner meets this burden if the decision is supported by substantial evidence. Thompson, 987 F.2d at 1487.

II. Procedural History

Plaintiff, at age thirty-two, filed applications for disability insurance benefits and SSI alleging bipolar disorder and depression but not mental retardation. At step one, the administrative law judge (ALJ) found that plaintiff had not engaged in substantial gainful activity since January 1, 2010, her amended alleged onset date. The ALJ found at step two that the plaintiff has severe impairments of affective disorder/anxiety disorder, but found at step three that those impairments did not meet or equal the severity of a listed impairment presumed severe enough to render one disabled.

Accordingly, the ALJ determined plaintiff's residual functional capacity (RFC) and found she is able to perform a full range of work at all exertional levels, with the following nonexertional limitations: superficial interaction with co-workers and supervisors, and infrequent interaction with the general public on the job. Tr. 18. The ALJ found the plaintiff could perform her past relevant work as a cleaner, and alternatively found that plaintiff could perform other jobs that exist in significant numbers in the national economy, including industrial cleaner, order filler, electronics subassembler, and small-parts assembly. Tr. 21-22. The ALJ thus determined Plaintiff is not disabled.

III. Listed Impairment of Mental Retardation

Plaintiff's primary argument is that the ALJ erred in not finding her disabled at step three under the listing for "mental retardation, " found at 20 C.F.R pt. 404, subpt. P, app. 1, § 12.05.[1] Plaintiff relies on an IQ test conducted by John Bopp, Ph.D. on February 18, 2011, at the behest of her attorney. (Tr. 310-12). Dr. Bopp administered the Wechsler Adult Intelligence Scale - Third Edition (WAIS-III) and the Wide Range Achievement Test (WRAT) (Tr. 310-11). Dr. Bopp found valid IQ scores of 66 on the verbal portion, 79 on the performance IQ portion, and 70 in full scale IQ.

The ALJ's decision addresses the IQ scores and rejects them as inconsistent with the remainder of the record. She notes that the only evidence of mild mental retardation is from Dr. Bopp's single IQ test, and that no other evidence of record, including Plaintiff's school history and other medical reports, supports that finding. (Tr. 310-11).

Plaintiff has the burden of demonstrating that her impairments meet all of the specified medical criteria contained in a particular listing. See Candelario v. Barnhart, 166 Fed.Appx. 379, 382-83 (10th Cir. 2006). The standards for listed impairments were intentionally set high because they operate to cut off further inquiry relatively early in the sequential evaluation process. Sullivan v. Zebley, 493 U.S. 521, 532 (1990).

To meet Listing 12.05, titled Mental Retardation, a claimant must meet the "capsule definition" and one of the four severity prongs for mental retardation. Lax v. Astrue, 489 F.3d 1080, ...


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