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Chao V. v. Saul

United States District Court, D. Minnesota

September 26, 2019

Chao V., Plaintiff,
Andrew Saul, Commissioner of Social Security, Defendant.



         Pursuant to 42 U.S.C. § 405(g), Plaintiff Chao V. seeks judicial review of a final decision by the Acting Commissioner of Social Security denying his applications for supplemental security income (“SSI”) and disability insurance benefits (“DIB”). The matter is now before the Court on the parties’ cross-motions for summary judgment. For the reasons set forth below, the Court denies Plaintiff’s motion and grants Defendant’s motion.

         I. Procedural Background

         Plaintiff filed applications for SSI and DIB on July 30, 2014, alleging a disability onset date of October 1, 2012, which he later amended to July 9, 2014. (R. 40, 245, 252 [Doc. No. 11].) He claimed to be impaired by lower back problems, back and leg pain, depression, and anxiety. (R. 276.) His applications were denied initially and on reconsideration, and he requested a hearing before an administrative law judge (“ALJ”). The ALJ convened a hearing on March 30, 2017, at which Plaintiff and a vocational expert testified. (R. 35.)

         On July 13, 2017, the ALJ issued a written decision denying Plaintiff’s SSI and DIB applications. (R. 7–22.) Pursuant to the five-step sequential process outlined in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ first determined that Plaintiff had not engaged in substantial gainful activity since July 9, 2014. (R. 12.) At step two, the ALJ determined that Plaintiff had severe impairments of depression and degenerative disc disease-related low back pain with radiating bilateral leg pain. (R. 12.) The ALJ found at the third step that none of Plaintiff’s impairments, considered singly or in combination, met or equaled the severity of an impairment listed in 20 C.F.R. part 404, subpart P, appendix 1. (R. 13.) The ALJ determined that Plaintiff did not meet or equal the criteria of Listing 1.04 with respect to his spinal condition, did not meet or equal the criteria of Listing 1.02 with respect to his lower extremity pain, and did not meet or equal the criteria of Listing 12.04 with respect to his depressive disorder. (R. 13.)

         At step four, the ALJ concluded that Plaintiff retained the residual functional capacity (“RFC”)[1] to perform light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the following restrictions: lifting, carrying, pushing, and pulling 20 pounds occasionally and 10 pounds frequently; sitting for six hours; standing and/or walking for about 4 hours in an 8-hour workday; occasional operation of foot controls with the left foot; occasional climbing of ramps and stairs; no climbing ladders, ropes, or scaffolds; occasional balancing, stooping, kneeling, crouching, and crawling; no work at unprotected heights; and limited to simple, routine, and repetitive tasks. (R. 15.) With this RFC, the ALJ concluded, Plaintiff could not perform any past relevant work, but he could adjust successfully to other work such as plastic hospital products assembler or plastics inspector. (R. 20–21.) Consequently, the ALJ determined that Plaintiff was not disabled.

         The Appeals Council denied Plaintiff’s request for review, which made the ALJ’s decision the final decision of the Commissioner. Plaintiff then filed this action for judicial review.

         The Court has reviewed the entire administrative record, giving particular attention to the facts and records cited by the parties. The Court will recount the facts of record only to the extent they are helpful for context or necessary for resolution of the specific issues presented in the parties’ motions.

         II. Standard of Review

         Judicial review of the Commissioner’s denial of benefits is limited to determining whether substantial evidence on the record as a whole supports the decision. 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). The Court must examine “evidence that detracts from the Commissioner’s decision as well as evidence that supports it.” Id. (citing Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)). The Court may not reverse the ALJ’s decision simply because substantial evidence would support a different outcome or the Court would have decided the case differently. Id. (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). In other words, if it is possible to reach two inconsistent positions from the evidence, and one of those positions is that of the Commissioner, the Court must affirm the decision. Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).

         A claimant has the burden to prove disability. See Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). To meet the definition of disability for DIB, the claimant must establish that he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). The same standard applies to SSI. See 42 U.S.C. § 1382c(a)(3)(A). The disability, not just the impairment, must have lasted or be expected to last for at least twelve months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).

         III. Discussion

         A. Plaintiff’s Learning Disorder Diagnosis

         Plaintiff first contends the ALJ erred by rejecting his learning disorder diagnosis. (Pl.’s Mem. Supp. Mot. Summ. J. at 11 [Doc. No. 17].) Plaintiff claims the ALJ erred at both step two by not deeming his learning disorder a severe impairment and at step three by not considering Listing 12.05 (intellectual disorder).

         1. The ALJ’s Consideration of Plaintiff’s Learning Disorder Diagnosis at Step Two

         At step two, the claimant must show he has an impairment that significantly limits his ability to work in most jobs. Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (quoting 20 C.F.R. §§ 404.1520(c), 404.1521(b)); see 20 C.F.R. § 416.920(c). “An impairment is not severe if it amounts only to a slight abnormality that would not significantly limit the claimant’s physical or mental ability to do basic work activities.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). That is, the impairment must have “more than a minimal effect on the claimant’s ability to work.” Id. A claimant’s “age, education, and work experience” are not relevant to the step two inquiry. See 20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(c). Rather, “medical evidence alone is evaluated in order to assess the effects of the impairment(s) on ability to do basic work activities.” SSR 85-28, 1985 WL 56856, at *4 (S.S.A. 1985). The severity showing “is not an onerous requirement for the claimant to meet, . . . but it is also not a toothless standard.” Kirby, 500 F.3d at 708 (citations omitted).

         The ALJ acknowledged that Plaintiff was diagnosed with a learning disorder during a neurocognitive evaluation in May 2016. (R. 13.) This diagnosis was based on earlier test results that reflected “an equivalent full scale IQ score of 45 on the CTONI-2, which is an examination for non-English-speaking individuals.”[2] (R. 13.) This score would have placed Plaintiff “in the moderately retarded range of intellectual functioning.”[3] (R. 13.) The ALJ found the score inconsistent with Plaintiff’s daily activities, such as driving a car and shopping at stores. (R. 13.) The ALJ also noted that testing conducted in December 2015 indicated “below-average” intellectual functioning, but not a learning disorder. (R. 13.) The ALJ therefore determined that the claimed learning disorder was not a severe impairment. (R. 13.) Plaintiff contends the ALJ erred in making this determination.

         Jennica Tomassoni, M.A., Psy.D candidate, conducted the December 2015 testing as part of a psychological evaluation. (R. 820.) She noted that individuals who were not born in the United States may not be familiar with the pictorial portions of the various tests. (R. 821.) She believed this was a factor in Plaintiff’s poor and inconsistent scores. (R. 821.) In addition, the CTONI-2 and Bender tests do not have norms for individuals who were not born in the United States. (R. 821.) Plaintiff scored in the <1 percentile (very poor) on the CTONI-2 test, which indicated that he struggled with managing nonverbal information, organizing spatial material, perceiving visual data, and mastering abstract properties of visual symbols. (R. 822.) Plaintiff’s CTONI-2 score was equivalent to a full-scale IQ score of 45. (R. 822.) Other test results indicated that Plaintiff “[s]truggled greatly with delayed memory, ” language, and attention, and that he had “significant difficulties with information storage, long-term memory, learning new information and information retrieval.” (R. 822.) Ms. Tomassoni believed there could be several explanations for Plaintiff’s performance, including not understanding the tasks, poor verbal intellectual functioning, cultural factors, a language barrier, and mental health symptoms. (R. 823.) Ms. Tomassoni concluded that Plaintiff’s intellectual functioning was below average, but she did not diagnose him with a learning disorder, intellectual disability, or borderline intellectual functioning. (R. 823.)

         Plaintiff was referred by his attorney for a neurocognitive evaluation that was conducted by Julie A. Vandermay, Psy.D, M.A., and Monique Lowe, Ph.D, L.P., in May 2016. (R. 652.) The evaluators largely accepted and incorporated the December 2015 CTONI-2 and Bender test results and did not repeat those tests. (R. 654.) Since Plaintiff understood some English, testing instructions were administered in English and the interpreter did not interpret some of the task items. (R. 655.) The evaluators diagnosed Plaintiff with a learning disorder. (R. 658.)

         Plaintiff argues there are inconsistencies between the December 2015 and May 2016 evaluations that the ALJ did not reconcile. The Court agrees to a limited extent. The May 2016 evaluation conveys a formal diagnosis of a learning disorder, whereas the December 2015 evaluation does not, even though the May 2016 evaluation largely incorporated and relied on the December 2015 evaluation and test results. The December 2015 evaluation, by contrast, describes Plaintiff’s cognitive functioning as below average. Even below-average functioning would demonstrate more than a minimal effect on Plaintiff’s ability to work.

         To be considered a “medically determinable impairment, ” there must be some evidence of “medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1521 (effective Mar. 27, 2017). The December 2015 evaluation contained medically acceptable clinical findings that Plaintiff struggled with processing information, managing nonverbal information, perceiving visual data, organizing spatially oriented material, mastering abstract properties of visual symbols, learning new information, and retrieving information, and that Plaintiff had “significant difficulties with information storage, long-term memory, learning new information, and information retrieval.” (R. 822–23.) The ALJ did not identify any evidence at step two to refute this evidence. The May 2016 evaluation was not inconsistent with these findings; to the contrary, that evaluation generally relied on and incorporated them.

         With respect to the ALJ’s rejection of the IQ score of 45 as inconsistent with daily activities such as driving and shopping, the Court agrees that the score seems inconsistent with those activities. But rejecting that score, in and of itself, does not establish that Plaintiff’s ability to do basic work activities was not limited by his cognitive functioning. Both the December 2015 and May 2016 evaluations contain other medical evidence that Plaintiff’s cognitive functioning had more than a minimal effect on his ability to work. Moreover, because “medical evidence alone is evaluated in order to assess the effects of the impairment(s) on ability to do basic work activities, ” SSR 85-28, 1985 WL 56856, at *4, the Court questions whether the ALJ properly considered Plaintiff’s daily activities at step two.

         The Commissioner argues, however, that any error at step two is harmless because the ALJ found “Plaintiff’s depression qualified as a severe mental impairment and evaluated its impact on his work capacity.” (Def.’s Mem. Supp. Mot. Summ. J. at 8) (emphasis added). It is true that an error at step two in failing to assess a claimed severe impairment “is harmless if the claimant ‘makes a threshold showing of any “severe” impairment [and] the ALJ continues with the sequential evaluation process and considers all impairments, both severe and nonsevere.’” Snyder v. Colvin, No. 12-cv-3104 (MJD/JJK), 2013 WL 6061335, at *9 (D. Minn. Nov. 18, 2013) (quoting Bondurant v. Astrue, No. 09-cv-328 (ADM/AJB), 2010 WL 889932, at *2 (D. Minn. Mar. 8, 2010)); accord Lund v. Colvin, 13-cv-113 (JSM), 2014 WL 1153508, at *27 (D. Minn. Mar. 21, 2014); Johnson v. Comm’r of Soc. Sec., No. 11-cv-1268 (JRT/SER), 2012 WL 4328413, at *21–22 (D. Minn. July 11, 2012), R. & R. adopted, 2012 WL 4328389 (D. Minn. Sept. 20, 2012); Lorence v. Astrue, 691 F.Supp.2d 1008, 1028 (D. Minn. 2010).

         Depression, of course, is not the same as a learning disability or a cognitive impairment. But the ALJ also considered at step four Plaintiff’s cognitive impairments, memory deficits, cognitive test results, impaired concentration, “below-average” intellectual functioning, GED testing, claimed language barrier, and equivalent full scale IQ score of 45. (R. 14, 17–18.) Thus, even if the ALJ erred at step two, the error is harmless because the ALJ fully considered Plaintiff’s actual cognitive impairments at step four, as discussed below.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;2. The ALJ’s Failure to Consider Listing ...

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