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Edwards v. Astrue

September 15, 2010

CHARLES M. EDWARDS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Charles Edwards brings the above-captioned action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act, seeking a review of the Commissioner of Social Security's decision to deny his application for Supplemental Security Income (SSI) benefits.

II. BACKGROUND

On November 18, 2003, plaintiff protectively filed an application for SSI. (T. 46, 61)*fn1.

Plaintiff was 51 years old at the time of his application and alleged an inability to work due to diabetes, high blood pressure, heart problems, neuropathy, stomach problems, a weak bladder, vision problems, depression and osteoporosis. (T. 21, 79). Plaintiff completed high school and was a migrant farm worker from age 12 to age 50. (T. 110, 135).

On January 27, 2004, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on September 13, 2004.*fn2

(T. 47, 220). On January 21, 2005, the ALJ issued a decision denying plaintiff's claim for disability benefits. (T. 20-31). The Appeals Council denied plaintiff's request for review on June 27, 2007, making the ALJ's decision the final determination of the Commissioner. (T. 4). This action followed.

III. DISCUSSION

The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." The Act defines "disability" as the "inability 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). There is a five-step analysis for evaluating disability claims:

"In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a 'severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step.

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citations omitted).

A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw, 221 F.3d at 131. Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).

On January 21, 2005, the ALJ found at step one that plaintiff has not engaged in substantial gainful activity since December 24, 2002. (T. 21). At step two, the ALJ concluded that plaintiff suffered from diabetes, neuropathy, multiple foot impairments, cognitive and depressive disorders and borderline intellectual function which qualified as "severe impairments" within the meaning of the Social Security Regulations (the "Regulations"). (T. 22-23, 30). At the third step of the analysis, the ALJ determined that plaintiff's impairments did not meet or equal the severity of any impairment listed in Appendix 1 of the Regulations. (T. 25). The ALJ found that plaintiff had the residual functional capacity ("RFC") to "perform light exertional activities of occasional lifting of twenty (20) pounds and more frequent lifting of ten (10) pounds. I grant the claimant the benefit of the doubt in regard to his foot pain, and further limit him to standing at one hour intervals." (T. 27). The ALJ also found that plaintiff retained the ability to perform simple routine work without significant public contact. Accordingly, the ALJ found that plaintiff was unable to perform his past relevant work. (T. 28). The ALJ obtained the testimony of a vocational expert to determine whether there were jobs plaintiff could perform. Based upon the vocational expert's testimony, the ALJ concluded at step five, that plaintiff was capable of making a successful adjustment to work that exists in significant numbers in the national economy such as work as a slicing machine tender, label pinker and semi-conductor bonder. (T. 29). Therefore, the ALJ concluded that plaintiff was not under a disability as defined by the Social Security Act. (T. 31).

In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:

(1) the ALJ failed to properly evaluate plaintiff's claim under Section 12.05(c); (2) the RFC analysis is not supported by substantial evidence; and (3) the ALJ failed to properly evaluate the vocational evidence and thus, the Commissioner did not sustain his burden of proof at the fifth step of the sequential evaluation process. (Dkt. No. 12).

A. Section 12.05(c)

For purposes of Social Security benefits, as an adult, in order to be considered disabled due to mental retardation certain criteria are necessary. Meashaw v. Chater, 1997 WL 16345, *3 (N.D.N.Y. 1997).

Listing 12.05 states, in relevant part:

Mental retardation: Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.

The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied. . . .

C. 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.

20 C.F.R. Pt. 404, Subpt. P, App. 1.

Plaintiff argues that his impairments meet or medically equal Listing 12.05(c).

Specifically, plaintiff claims that his IQ scores are within the Listing level. Moreover, plaintiff claims that he suffers from physical and mental impairments that impose additional and significant work-related limitation of function to satisfy the second prong of § 12.05(c). (Dkt. No. 12, p. 15). While plaintiff claims that he meets the criteria for subsection (c) of Listing 12.05, plaintiff failed to address the introductory paragraph of Listing 12.05. Plaintiff did not provide any argument or cite to any evidence establishing that he suffered from subaverage intellectual function with adaptive functioning deficits initially manifested before age 22. Even assuming the evidence comports with the criteria of Listing 12.05(c), in order to satisfy the definition of mental retardation, plaintiff must meet all the criteria of that Listing. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Accordingly, before addressing the requirements of subsection (c) of 12.05, the Court must analyze the evidence and determine whether plaintiff's impairments satisfy the introductory paragraph of the Listing. See Paulino v. Astrue, 2010 WL 3001752, at *21 (S.D.N.Y. 2010).

1. Deficits in Adaptive Functioning

Deficits in adaptive functioning "denote[] an inability to cope with the challenges of ordinary everyday life". Carrube v. Astrue, 2009 WL 6527504, at *4 (N.D.N.Y. 2009) (citing Novy v. Astrue, 492 F.3d 708, 710 (7th Cir. 2007)). "Adaptive functioning includes a claimant's effectiveness in areas such as social skills, communication, and daily living skills." Id. at *5 (citing West v. Comm'r of Soc. Sec. Admin., 240 F. App'x 692, 698 (6th Cir. 2007) (unpublished decision)). Courts have found circumstantial evidence, such as the following, sufficient to infer deficits in adaptive functioning prior to age 22: evidence a claimant attended special education classes; dropped out of school before graduation; or had difficulties in reading, writing, or math. MacMillan v. Astrue, 2009 WL 4807311, at *6 (N.D.N.Y. 2009) (citing, inter alia, Christner v. Astrue, 498 F.3d 790,793 (8th Cir.2007)). A plaintiff who can dress, bathe, manage money, communicate effectively, do simple math and take care of personal needs does not suffer from adaptive deficits. See Harris v. Comm'r of Soc. Sec., 330 F. App'x 813, 815 (11th Cir. 2009). An ALJ is entitled to consider plaintiff's work and social history including plaintiff's relationships when making a factual finding on this issue. Ali v. Astrue, 2010 WL 889550, at *6 (E.D.N.Y. 2010) (the record did not compel the conclusion that the plaintiff suffered from adaptive function deficits prior to the age of 22 because of a lack of diagnosis and the fact that the plaintiff worked for many years). Moreover, the fact that no medical professional actually diagnosed a claimant with mental retardation is relevant. Id.

Here, the record does not contain any reports from any treating mental health professional or any school records. The only evidence concerning plaintiff's mental impairments and/or cognitive abilities are consultative reports from Brett T. Hartman, Psy.D, and a Psychiatric Review Technique and Mental Residual Functional Capacity evaluation completed by P.A.

Spearman, Ph.D.

On December 30, 2003, Brett T. Hartman, Psy.D. examined plaintiff at the request of the agency. Dr. Hartman completed a psychiatric and organicity report. (T. 135). Dr. Hartman administered WAIS-III IQ testing which revealed a verbal IQ score of 69, a performance IQ score of 64 and a full scale IQ score of 64.*fn3 (T. 137). Dr. Hartman also administered a reading test and found plaintiff's skills equivalent to the 4th grade level. (T. 137). Dr. Hartman noted that plaintiff functioned in the "deficient range of intelligence overall". (T. 137). Although the test results supported a diagnosis of mild mental retardation, Dr. Hartman opted for a more conservative approach and diagnosed plaintiff with borderline intellectual functioning and cognitive disorder. Dr. Hartman also diagnosed plaintiff with major depressive disorder - mild to moderate - without psychotic features. (T. 139). Dr. Hartman provided a Medical Source Statement and opined that plaintiff could follow and understand simple directions and instructions; had a fair ability to make appropriate decisions; and had mild attention and concentration problems. Dr. Hartman ...


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