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Gardner v. Colvin

United States District Court, D. Kansas

July 29, 2015

DARLENE SUE GARDNER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

On October 6, 2010, plaintiff filed applications for social security disability insurance benefits and supplemental security income benefits. These applications alleged a disability onset date of November 26, 2007. On October 25, 2012, a hearing was conducted upon plaintiff's applications. The administrative law judge (ALJ) considered the evidence and decided on December 4, 2012 that plaintiff was not qualified to receive benefits. This decision has been adopted by defendant. This case is now before the court upon plaintiff's action to reverse and remand the decision to deny plaintiff's applications for benefits. Plaintiff argues that she meets the requirements for benefits under § 12.05C of the Listing of Impairments which concerns subaverage intellectual functioning and deficits in adaptive functioning. She also argues that the ALJ did not correctly assess her residual functional capacity. For the reasons discussed below, the court shall reverse the decision to deny benefits and remand for an award of benefits on the basis of plaintiff's § 12.05C argument.

I. STANDARD OF REVIEW

To qualify for disability benefits, a claimant must establish that he or she was "disabled" under the Social Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the claimant had "insured status" under the Social Security program. See Potter v. Secretary of Health & Human Services, 905 F.2d 1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131. To be "disabled" means that the claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

For supplemental security income claims, a claimant becomes eligible in the first month where he or she is both disabled and has an application on file. 20 C.F.R. §§ 416.202-03, 416.330, 416.335.

The court must affirm the ALJ's decision if it is supported by substantial evidence and if the ALJ applied the proper legal standards. Rebeck v. Barnhart, 317 F.Supp.2d 1263, 1271 (D.Kan. 2004). "Substantial evidence" is "more than a mere scintilla;" it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id., quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). The court must examine the record as a whole, including whatever in the record fairly detracts from the weight of the defendant's decision, and on that basis decide if substantial evidence supports the defendant's decision. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994) (quoting Casias v. Secretary of Health & Human Services, 933 F.2d 799, 800-01 (10th Cir. 1991)). The court may not reverse the defendant's choice between two reasonable but conflicting views, even if the court would have made a different choice if the matter were referred to the court de novo. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

II. THE ALJ'S DECISION (Tr. 19-32).

There is a five-step evaluation process followed in these cases which is described in the ALJ's decision. (Tr. 20-21). First, it is determined whether the claimant is engaging in substantial gainful activity. Second, the ALJ decides whether the claimant has a medically determinable impairment that is "severe" or a combination of impairments which are "severe." At step three, the ALJ decides whether the claimant's impairments or combination of impairments meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Next, the ALJ determines the claimant's residual functional capacity and then decides whether the claimant has the residual functional capacity to perform the requirements of his or her past relevant work. Finally, at the last step of the sequential evaluation process, the ALJ determines whether the claimant is able to do any other work considering his or her residual functional capacity, age, education and work experience.

In steps one through four the burden is on the claimant to prove a disability that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006). At step five, the burden shifts to the Commissioner to show that there are jobs in the economy with the claimant's residual functional capacity. Id . In this case, the ALJ decided plaintiff's application should be denied at the fifth step of the evaluation process.

The ALJ made the following specific findings in his decision. First, plaintiff meets the insured status requirements for Social Security benefits through September 30, 2012. Second, plaintiff did not engage in substantial gainful activity since November 26, 2007, the alleged onset date of disability. Plaintiff worked as a housekeeper after that date, but her earnings were such that the ALJ did not consider it substantial gainful activity. Third, plaintiff has the following severe impairments: incisional hernia status post-repair; obesity; depression and borderline intellectual functioning. Fourth, plaintiff does not have an impairment or combination of impairments that meet or medically equal the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Fifth, plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) in that plaintiff can occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds. The ALJ further found that plaintiff is capable of sitting for up to 6 hours and standing and walking for six hours in an 8-hour workday with normal breaks. The ALJ also concluded that plaintiff is limited to simple, routine, and repetitive tasks and also limited to work involving only simple, work-related decisions, with few, if any workplace changes. Finally, the ALJ determined that there are jobs that exist in significant numbers in the national economy that plaintiff can perform. Examples of such occupations, according to the ALJ, are housekeeper, folder of laundry, and bakery worker.

III. EVIDENCE

The arguments in this case focus upon evidence from three sources.

A. Dr. Mintz

One of those sources is a mental status examination performed on January 7, 2010 by Dr. Stanley Mintz. (Tr. 346-348). He noted that plaintiff did not appear psychotic, depressed, anxious, phobic or obsessive/compulsive. Also, there were no reports of hallucinations or delusions. Plaintiff's speech was intelligible. She appeared pleasant. Dr. Mintz concluded that plaintiff was able to understand only very simple instructions. Her concentration was limited for very repetitive tasks. She did not appear capable of handling her own funds because of symptoms of "mental retardation." (Tr. 347).

With regard to adaptive levels of functioning, Dr. Mintz concluded that plaintiff had difficulty "with receptive and expressive communication, self direction and self help, and vocational functioning." Id . Dr. Mintz found that plaintiff functioned within the borderline intellectual range. Her full-scale IQ score was 66; her verbal IQ score was 65; and her performance IQ score was 74. He concluded that plaintiff's scores placed her within the "mild mentally retarded range of verbal intellectual ability" and "within the borderline range of ...


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