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Irwin v. Astrue

February 28, 2008


The opinion of the court was delivered by: Leon Jordan United States District Judge


This is an action for judicial review of defendant Commissioner's final decision denying plaintiff's claim for disability insurance and Supplemental Security Income ("SSI") benefits under Titles II and XVI of the Social Security Act. For the reasons provided herein, defendant's motion for summary judgment [doc. 15] will be granted, and plaintiff's motion for summary judgment [doc. 13] will be denied.

I. Procedural History

Plaintiff was born in 1971. He applied for benefits in May 2004, claiming to be disabled by a learning disability, obesity, high blood pressure, and "leg and back problems." [Tr. 62, 74, 210]. Plaintiff initially alleged a disability onset date of December 1, 2002 [Tr. 62, 210], which he later amended to September 23, 2003. [Tr. 320-22].*fn1 The present applications were denied initially and on reconsideration. Plaintiff then requested a hearing, which took place before ALJ Deborah Smith ("the ALJ") in January 2007.

In February 2007, the ALJ issued a decision denying benefits. Therein, she concluded that plaintiff suffers from organic mental disorders, borderline intellectual functioning, a personality disorder, obesity, and mild degenerative changes of the lumbar spine, which are "severe" impairments but not equal, individually or in concert, to any impairment listed by the Commissioner. [Tr. 13]. Of particular relevance to the present appeal, the ALJ concluded that plaintiff does not satisfy the Commissioner's mental retardation listing, 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C, because "the evidence shows that he fails to meet the adaptive functioning criteria prior to his 22nd birthday" in light of "questionable" motivation, "negative" credibility, "poor" school attendance, prior adaptive functioning, and a history of drug and alcohol abuse. [Tr. 13-16].

The ALJ found plaintiff to have a residual functional capacity ("RFC") for a restricted range of medium to light exertion. [Tr. 16-17]. Relying on vocational expert testimony, the ALJ concluded that plaintiff remains able to perform past relevant work. [Tr. 17]. In the alternative, again relying on vocational expert testimony, plaintiff was found capable of performing certain sedentary jobs existing in the regional and national economies. [Tr. 17]. Accordingly, he was again deemed ineligible for benefits.

Plaintiff then again sought, and was again denied, Appeals Council review. [Tr. 4]. The ALJ's ruling therefore became the Commissioner's final decision. See 20 C.F.R. §§ 404.981, 416.1481. Through his timely complaint, plaintiff has properly brought his case before this court for review. See 42 U.S.C. § 405(g).

II. Background

Although he told Dr. Rodney Vivian in July 2006 that he has "never" worked, plaintiff's earnings record shows a significant work history. [Tr. 65-71, 239]. Plaintiff has been employed as a general laborer, sorter, mattress pad flipper, dishwasher, assembly line worker, lumberyard worker, grinder, and parts washer. [Tr. 65-71, 75-76, 93-99]. For the most part, he does not report a history of being fired from jobs. Rather, it is apparently the norm for plaintiff to quit his jobs when, for example, he becomes "embarassed [sic] when [his] employer finds out [he] can't read and [he] quit[s] and find[s] a new job," when he encounters "transportation problems," when he does "not make much money," when he is called upon to do "paperwork or something," when he finds himself unable to get out of bed in time for a work shift that begins at 4:00 p.m., when he wishes to "try to get a better more paying job," when he is allegedly in pain, when he moves, or when "it come[s] up to the hard point." [Tr. 32, 75, 161, 326-27, 329-30, 332-33].*fn2

Plaintiff began smoking marijuana when he was in third-grade, and he began drinking alcohol at approximately the same age. [Tr. 227, 256]. In his teens and twenties, plaintiff also "huffed" and used cocaine and LSD. [Tr. 227].

In April 2006, plaintiff told University Hospital staff that he does not use drugs at all. [Tr. 148]. In August 2006, plaintiff told a counselor that he had not smoked marijuana in the past year. [Tr. 222A]. Between these two dates, plaintiff tested positive for marijuana. [Tr. 310].

At the administrative hearing, plaintiff told the ALJ that he had not smoked marijuana since July 2006, but that he was smoking it daily prior to July 2006 "for pain medicine." [Tr. 338-39]. Purportedly without income for several years, plaintiff testified that his friends would give him marijuana daily because "it follows around them." [Tr. 339].*fn3

Plaintiff claims to occasionally hear voices telling him "to slap somebody in the head," "to sock his cousin in the face," or to hurt himself. [Tr. 162, 291, 341-42]. He has elsewhere denied hallucinations. [Tr. 204, 239]. It is unclear from the record whether the purported hallucinations are secondary to drug and alcohol abuse.*fn4

Plaintiff is 5' 5" tall and weighs as much as 400 pounds. [Tr. 206]. He was once described as "malignantly obese." [Tr. 222-22A].

In August 2004, plaintiff told the Commissioner (through his friend Sherry Sexson) [Tr. 101, 108] that he just sits around the house [Tr. 102], can perform no household chores due to pain, shortness of breath, and overheating [Tr. 104], does "not go anywhere" [Tr. 105], visits with others only twice per month [Tr. 105], and has "no social life . . . because of my illness." [Tr. 105]. Elsewhere, he has acknowledged being able to cook, vacuum, wash clothes, take out the trash, perform yardwork, attend church three times per week, and smoke marijuana with his friends daily. [Tr. 163, 167, 207, 323, 339, 342-43].

Plaintiff enjoys golfing. In August 2004, he told the Commissioner that he is no longer able to golf due to his illnesses. [Tr. 102]. The following month, he told a consulting psychologist that he "enjoys playing golf but did not have the money to play any this past summer." [Tr. 162] (emphasis added). In July and August 2006, plaintiff reported that he golfs and "toss[es] ball." [Tr. 224, 284].

Plaintiff purports to have breathing difficulties so severe as to preclude employment, but he smokes between a half and one pack of cigarettes per day and - as noted - has historically smoked marijuana daily. [Tr. 109, 161, 204-05, 322]. Plaintiff purports to have diabetes and high blood pressure which are untreated. [Tr. 113, 120]. In July 2006, he reported that his pain was no more than three on a scale of one to ten. [Tr. 275]. He remains able to carry logs for bonfires. [Tr. 335-36]. Plaintiff testified that he could do sedentary work if he had transportation and "a lot of breaks." [Tr. 334].

III. Relevant Evidence

A. Education

As noted above, plaintiff was smoking marijuana and drinking alcohol by age ten, and as a teenager he "huffed" and used cocaine and LSD. [Tr. 227, 256]. Plaintiff describes his school attendance as poor. [Tr. 205]. When present in the classroom, he would admittedly "goof around" and sleep. [Tr. 159].

It is thus unsurprising that plaintiff found himself "in a slow learning class" or "classes for learning disabled children" by age eleven or twelve. [Tr. 78-79]. It appears that plaintiff took some special education classes as early as first or second grade. [Tr. 128]. In fifth grade, he scored IQs of between 60 and 81. [Tr. 137, 142]. Functioning was at times graded as "satisfactory" or "outstanding" in all areas evaluated. [Tr. 136]. Elsewhere, social functioning was described as "delayed," and "concerns were noted with limited acquired knowledge and school learning." [Tr. 142-43]. In ninth grade, plaintiff's IQ tested at 57 and he remained in special education classes. [Tr. 144-45].

Plaintiff purports to now have virtually no skills in reading, writing, or arithmetic. [Tr. 105, 120]. In sum, he states that "I'm ...

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