United States District Court, E.D. Arkansas
November 26, 2014
Renee Michelle Branch Plaintiff,
Carolyn W. Colvin, Acting Commissioner, Social Security Administration Defendant.
JEROME T. KEARNEY, Magistrate Judge.
The following recommended disposition was prepared for U.S. District Judge James M. Moody, Jr. A party to this dispute may file written objections to this recommendation. An objection must be specific and state the factual and/or legal basis for the objection. An objection to a factual finding must identify the finding and the evidence supporting the objection. Objections must be filed with the clerk of the court no later than 14 days from the date of this recommendation. The objecting party must serve the opposing party with a copy of an objection. Failing to object within 14 days waives the right to appeal questions of fact. If no objections are filed, Judge Moody may adopt the recommended disposition without independently reviewing all of the record evidence.
Reasoning for Recommended Disposition
Renee Michelle Branch seeks judicial review of the denial of her application for supplemental security income (SSI). Branch first applied for SSI in September 2007. After the application was denied,  Branch worked at nursing home as a certified nursing assistant. She says she stopped working on October 31, 2008 because of back pain. She then reapplied for SSI. She based her claim on her back, degenerative disc disease, asthma, problems with the left knee, depression, and her weight. She claims she has been disabled since she stopped working at age 26.
The Commissioner's decision. Initially, the Commissioner's ALJ denied the application,  but on judicial review, the district court determined the ALJ failed to properly assess Branch's credibility and remanded the case. The ALJ then obtained updated evidence,  conducted a second hearing,  and issued a second unfavorable decision, providing reasons for discounting Branch's credibility.
In the second decision, the ALJ determined that Branch has severe impairments - degenerative joint disease/degenerative disc disease of the lumbar spine, scoliosis, obesity, hypertension, migraines, depression, generalized anxiety disorder, and learning disorder - but she can do some sedentary work. Because a vocational expert identified available sedentary work,  the ALJ determined Branch is not disabled and denied the application.
After the Appeals Council denied review,  the ALJ's second decision became the Commissioner's final decision for the purpose of judicial review. Branch filed this case to challenge the decision. In reviewing the decision, the court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error. This recommendation explains why substantial evidence supports the decision and why the ALJ made no legal error.
Branch's allegations. Branch challenges the ALJ's decision that she can work. She relies primarily on mental impairment. She contends she meets listing 12.05C (a listing for intellectual disability) because she has a qualifying IQ score plus and an additional physical and mental impairment. She says, that instead of objectively reviewing the evidence, the ALJ searched the record "for any reason to deny benefits." For these reasons, she maintains substantial evidence does not support the ALJ's decision.
Applicable legal principles. For substantial evidence to support the decision, a reasonable mind must accept the evidence as adequate to show Branch can do some sedentary work. Sedentary work "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." Sedentary work "represents a significantly restricted range of work. Individuals who are limited to no more than sedentary work by their medical impairments have very serious functional limitations."
The ALJ placed the following limitations on sedentary work:
(1) occasional climbing, balancing, stooping, kneeling, crouching, and crawling;
(2) occasional overhead work/reaching;
(3) no concentrated exposure to temperature extremes, humidity, fumes, odors, dusts, gases, or poor ventilation; and
(4) simple, routine, repetitive tasks involving incidental interpersonal contact and simple, direct, concrete supervision.
The court must determine whether a reasonable mind would accept the evidence as adequate to show Ranch can work within the ALJ's parameters.
Branch can work within the ALJ's physical parameters. Branch doesn't specifically challenge the ALJ's determination about her physical ability to work. To the extent she challenges the physical parameters, the medical evidence shows no serious functional limitation preventing sedentary work. Branch complains about disabling back, leg, knee, and shoulder pain, but diagnostic imaging shows no reason for disabling pain or limitation. Diagnostic imaging is negative,  except for some slight decrease in disc space in the lower back and very mild scoliosis in the upper back. The descriptors "some slight" and "very mild" do not implicate disability. If Branch has back, leg, knee, or shoulder pain, her weight is likely the cause.
Branch's weight and height reflects morbid obesity. Obesity can limit exertional and nonexertional functions,  but the ALJ accounted for reduced function by requiring sedentary work and limiting postural activity. Branch minimized what she does, but her activities exceed the ALJ's parameters.
Branch's treatment history suggests no disabling physical impairment. Branch has rarely sought medical treatment. She may lack financial resources, but if she experienced as much pain as she claims, she would need medical treatment. A reasonable person would accept the evidence as adequate to support the ALJ's decision about Branch's physical ability to work because: (1) medical evidence shows little impairment, (2) obesity imposes the only limitation, (3) Branch rarely seeks medical treatment, (4) her lifting capacity exceeds the requirement for sedentary work,  (5) Branch's daily activities exceed sedentary work, and (6) ALJ imposed more limitations than the medical evidence supports.
Branch can work within the ALJ's mental limitations. Listing 12.05C is one way of qualifying for SSI based on intellectual disability. Meeting the listing requires "[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." Branch doesn't have a qualifying IQ score.
To count in proving disability, an IQ score must be valid. Branch has two sets of IQ scores. The first set was obtained in August 2009 via testing by her attorney's examiner; the second set was obtained in March 2010 via testing by an agency examiner. The August 2009 test scores exceed the required range. The March 2010 test scores yielded a performance score within the required range.
The ALJ rejected the March 2010 scores because Branch's responses on a malingering-detection instrument showed "a great deal of symptom exaggeration." According to the examiner, Branch appeared to "consciously try to answer questions incorrectly." The examiner characterized the testing as invalid. This evidence provided a sufficient basis for rejecting the March 2010 scores.
Under the presumption of a stable IQ,  the August 2009 test scores are a more accurate assessment of IQ functioning. Branch's performance on the malingering-detection instrument is the only evidence explaining the 25-point decrease in performance scores. A reasonable mind would accept the evidence as adequate to show Branch has no valid qualifying IQ score. Without a valid score, no basis exists for meeting listing 12.05C.
No evidence suggests Branch is intellectually disabled, but evidence shows Branch experiences periodic depression and anxiety. When Branch used anti-depressant medication, she reported feeling "much better." This report shows her mental symptoms can be controlled with treatment. "An impairment which can be controlled by treatment or medication is not considered disabling."
The medical opinion evidence conflicts about the severity of Branch's symptoms,  but sufficient evidence supports the ALJ's mental limitations. According to the first agency mental examiner, Branch has little capacity to cope with the mental demands of work; however, the examiner attributed Branch's symptoms to the lack of treatment. According to the second agency examiner - the one who administered IQ testing - Branch can do simple, repetitive tasks; the examiner observed no difficulty with concentration. The agency medical expert reached a similar conclusion. A reasonable mind would accept the evidence as adequate to support the decision because the ALJ's mental limitations - simple, routine, repetitive tasks involving incidental interpersonal contact and simple, direct, concrete supervision - respond to Branch's symptoms.
Substantial evidence supports the ALJ's decision because a reasonable mind would accept the evidence as adequate to support the decision. The ALJ made no legal error. For these reasons, the undersigned magistrate judge recommends DENYING Branch's request for relief (docket entry # 2) and AFFIRMING the Commissioner's decision.