Smith v. Berryhill

          ORDER AND OPINION ^[1]

          ALAN J. RAVERMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Eddie Lee Thomas Smith brought this action pursuant to § 1631(c) of the Social Security Act, 42 U.S.C. § 1383(c)(3), to obtain judicial review of the final decision of the Acting Commissioner of the Social Security Administration (“the Commissioner”) denying his application for Supplemental Security Income (“SSI”).^[2] For the reasons set forth below, the undersigned AFFIRMS the final decision of the Commissioner.

         I. PROCEDURAL HISTORY

         Plaintiff filed an application for SSI on May 28, 2010 alleging disability commencing that same date. [Record (hereinafter “R”) 252]. Plaintiff's application was denied initially and on reconsideration. [R145, 153]. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). [R165]. A hearing was held on February 9, 2012 where Plaintiff was represented by counsel. [R34-69]. The ALJ issued a decision on March 28, 2012, denying Plaintiff's application on the ground that he had not been under a “disability” at any time through the date of the decision. [R128].

         Plaintiff sought review by the Appeals Council, which vacated the ALJ's decision and remanded the case on the grounds that the ALJ's decision did not (1) address all IQ test scores, (2) clarify Plaintiff's cognitive impairment in the RFC, and (3) state limitations in vocationally relevant terms. [R141-42].

         Another hearing was held on August 25, 2015. [R73]. On September 25, 2015, the ALJ issued a second decision, concluding that Plaintiff was not disabled. [R14]. Plaintiff sought review by the Appeals Council, [R12], which review was denied on October 28, 2016, [R6], making the ALJ's decision the final decision of the Commissioner.

         Plaintiff then filed the instant action in this Court on December 21, 2016, seeking review of the Commissioner's decision. [Doc. 1]. The answer and transcript were filed on May 30, 2017. [Docs. 9-10]. On July 5, 2017, Plaintiff filed a brief arguing that the Commissioner's decision must be reversed, [Doc. 13], and on August 2, 2017, the Commissioner filed a response in support of the decision, [Doc. 14].^[3] The matter is now before the Court upon the administrative record, the parties' pleadings and briefs, ^[4]and it is accordingly ripe for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         II. PLAINTIFF'S CONTENTIONS

         As set forth in Plaintiff's brief, the issue to be decided is whether the ALJ erred in concluding that Plaintiff did not meet Listing 12.05 by not finding that:

1. Plaintiff meets the second requirement of the Listing 12.05C test;

2. Plaintiff's IQ score range of 60 to 70 on three different testing occasions satisfied the first requirement of the Listing 12.05C test; and

3. Deficits in Plaintiff's adaptive functioning that manifested prior to the age of 22 satisfied the third requirement of the Listing 12.05C test.

[Doc. 13 at 1].

         III. STATEMENT OF FACTS^[5]

         A. Background

         Plaintiff was born in July 1984 and, therefore, was 26 years old on the alleged onset date. [R252]. Plaintiff completed eighth grade, [R82], in special education classes, [R49]. Although, he left his work history report incomplete, [R286], Plaintiff received some negligible W2 income in 2004, 2008, and 2011-12. [R272-73]. He alleges disabling conditions of learning disabilities and an inability to read. [R292].

         B. Lay Testimony

         Plaintiff testified at his 2012 and 2015 hearings. In 2012, Plaintiff testified that he lived with his then-girlfriend, Neekol Maria Brown (“Ms. Brown”), in rented Section 8 housing. [R41]. In 2015, he testified that he was engaged to LaQuanda Berley, who paid for the apartment in which they lived together with her three children. [R79-81]. In 2012, he testified that he has a seven year old daughter who lived with him but that she was mostly cared for and financially supported by Ms. Brown. [R47]. In 2015, he testified that this daughter resided with her mother. [R80].

         Plaintiff testified that, in the past, he worked at a Dollar Store position he got through his girlfriend, but, after two days, gave up because he could not read the labels to “put stuff in position the correct way.” [R44-45, 51]. He also testified that he previously worked at a recycling place cleaning catalytic converters and, because the supervisor got on his nerves, he would “just walk off . . . just leave.” [R102, 113-14]. Plaintiff explained that he stopped going to that job because it only provided him with work six days a month. [R114]. He testified that a girlfriend got him a job at a warehouse that required a lot of reading and because he was paid based on what he could produce, he stopped working when his paycheck “was like a $100 and something dollar.” [R102-03].

         Upon questioning, the ALJ confirmed that Plaintiff had previously worked as a “driver's helper” for less than a month when he was 17 or 18, through a temporary agency, which consisted of unloading food from trucks. [R110-11]. He testified that he cannot follow verbal instructions because he forgets. [R106].

         Plaintiff further testified that he does not have a driver's license because he does not know how to read, but that he can write his name. [R41-42, 47]. In 2012, he testified that Ms. Brown took him to the hearing, [R42], and, in 2015, he testified that his sister and her boyfriend took him, [R81]. He claimed that he has never taken public transit by himself and cannot read street signs to drive. [R50].

         Plaintiff stated that he can do dishes but can only cook simple things like noodles. [Id.]. He does not know how to do laundry. [R52]. He described his reading and writing abilities as poor and his arithmetic as fair. [R42-43]. He testified that he cannot read his own mail, books, newspapers, or magazines, and required help filling out his SSA application and reports. [R49, 86]. When he received checks for work, he cashed them with someone's help. [R52]. He reported that has never gone grocery shopping alone, [R53], and that he has tried to use a computer but cannot because he “doesn't know what to look for.” [R84]. He spends his days watching television. [R45]. Plaintiff's girlfriends also testified and, essentially, verified Plaintiff's statements concerning his living situation and daily activities. [R54-60, 89-98].

         C. Objective Records

         1. Educational Testing Records

         On December 6, 1993, when Plaintiff was in third grade, Gail Golden performed the Wechsler Intelligence Scale for Children-III (WISC-II) and evaluated him with an overall IQ of 75, noting weaknesses in visual sequencing, processing speed, and cognitive functioning (reasoning/judgment organization). [R383].

         On October 10, 1996, when Plaintiff was 12 years old, David Batchelor, a school psychologist, administered the WISC-II, the Development Test of Visual-Motor Integration (VMI), the Wide Range Achievement Test-3 (WRAT-3), the LD Screening Checklist, and the Kaufman Brief Intelligence Test as part of the three-year re-evaluation requirement for students in special education programs. [R432]. Plaintiff was assessed with an IQ of 68 with a borderline range on the verbal scale and a mid-range on the performance scale, resulting in overall intelligence in the mid range with weaknesses in long-term memory of factual data. [R433-34]. Dr. Bachelor concluded that Plaintiff's “inappropriate behavior patterns interfere with classroom functioning and social/emotional development.” [R435].

         2. Consultative Exams

         On July 21, 2010, Plaintiff was referred for evaluation to consultative medical examiner Steven Snook, Ph.D., (“Dr. Snook”), a licensed psychologist. [R350-56]. Dr. Snook conducted a clinical interview and mental status examination; administered the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV), Wide Range Achievement Test-Fourth Edition (WRAT-4), Trail Making Test Part A and B, and Rey 15 Item Memory Test; and reviewed records. [R351]. He noted that Plaintiff was driven to the examination by Ms. Brown, who provided collateral information after Plaintiff's initial interview. [R352]. Plaintiff reported “no significant medical concerns” and alleged impairments of learning disability and illiteracy. [Id.].

         Plaintiff reported leaving high school after completing eighth grade, enrollment in special education classes while in middle school, and receiving grades of D's and F's. [Id.]. Although Plaintiff denied difficulties with teachers and peers, the records reviewed reflected frequent truancy. [Id.]. Plaintiff reported that he worked for a delivery service for three months but lost control of a dolly and injured his leg. [Id.]. He also reported that he never received mental health treatment or was hospitalized for psychiatric reasons but, at the evaluation, both Plaintiff and Ms. Brown reported “irritability and mood swings” beginning during Plaintiff's five month incarceration for cocaine possession, as well as recent sleep disturbance and decreased appetite. [R352-53].

         Plaintiff reported that he was “able to attend to his activities of daily living independently to include showering, grooming, and dressing.” [R353]. He also reported that he could prepare simple foods in the oven or microwave, perform basic household chores, including the use of appliances and laundry-related tasks, had no driver's license (but could drive), could make simple purchases, but had limited financial management ability (requires assistance with bank statements and legal documents). [Id.].

         Dr. Snook found that Plaintiff's behavior was cooperative, his speech normal, his associations tight, his thought content grossly logical, and his recent and remote memory, insight, judgment, and decision-making abilities were intact. [Id.]. However, Dr. Snook noted that Plaintiff's “effort was less than would have been anticipated” as he “appeared to have minimal difficulty with attention and concentration however tended to give up easily despite redirection and praise.” [R354]. His scores on the Trail Making tests were in deficient ranges ...