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Depace v. Colvin

United States District Court, E.D. Tennessee, Greenville

January 20, 2015

JOSHUA S. DEPACE
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security.

MEMORANDUM OPINION

DENNIS H. INMAN, Magistrate Judge.

This matter is before the United States Magistrate Judge upon the consent of the parties for final disposition. Both the plaintiff and the defendant Commissioner have filed Motions for Summary Judgment [Docs. 13 and 15]. Plaintiff's application for Supplemental Security Income was administratively denied following a hearing before an Administrative Law Judge ["ALJ"].

The sole function of this Court in making this review is to determine whether the findings of the Commissioner are supported by substantial evidence in the record. McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6th Cir. 1988). "Substantial evidence" is defined as evidence that a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389 (1971). It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury. Consolo v. Federal Maritime Commission, 383 U.S. 607 (1966). The Court may not try the case de novo nor resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues differently, the Commissioner's decision must stand if supported by substantial evidence. Liestenbee v. Secretary of Health and Human Services, 846 F.2d 345, 349 (6th Cir. 1988). Yet, even if supported by substantial evidence, "a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).

The plaintiff is now 36 years of age. He was in special education classes throughout school, beginning in Kindergarten (Tr. 144). There is a dispute as to whether his attempts at employment rose to the level of "past relevant work."

Plaintiff bases his claim primarily upon his assertion that he meets the requirements of 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C, one of the Listings of Impairments, meaning he maintains he is disabled as matter of law at Step Three of the sequential evaluation process. Listing 12.05 which deals with "intellectual disability" contains an introductory paragraph which states "intellectual disability 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." It also contains four exclusive circumstances, A through D, which would show the required level of severity. 12.05C is the circumstance at issue in plaintiff's case, and 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." 12.00A, which describes the various specific mental listings when talking about Listing 12.05C, states that "if your impairment satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that your impairment meets the listing." Thus, plaintiff must show (1) subaverage intellectual functioning combined with deficits in adaptive functioning originating before age 22, and (2) in his case, an IQ score of between 60 and 70, and (3) an additional and significant limitation of function. This last requirement of "an additional and significant work-related limitation of function" is referring to the presence of a severe mental or physical impairment besides the subaverage intellectual functioning. See, §12.00A.

Plaintiff's medical history is summarized by his counsel as follows:

On March 17 and 20, 1992, at the age of eight, Plaintiff was administered a psychological evaluation at the request of the Amphitheater Public School (Tr. 278-284). The specific testing used included the Wechsler Intelligence Scale for Children - Third Edition (WISC-III) and the Vineland Adaptive Behavior Scale. On the WISC-III, Plaintiff was found to have a verbal IQ of 60, Performance IQ of 68, and a Full Scale IQ of 61 (Tr. 283). Plaintiff adaptive skills and visual motor skills were noted as commensurate with mentally deficient range (Tr. 282). On the Vineland, Plaintiff's scores were noted as falling within the mentally deficient range (Tr. 282). The evaluator felt that these results were a valid indication of Plaintiff level of functioning at that time (Tr. 284).
On October 12, 1994, at the age of eleven, Plaintiff was again administered a psychological evaluation (Tr. 269-277). Plaintiff was again given the WISC-III and a Vineland. On the WISC-III, Plaintiff was found to have a verbal IQ of 48, a performance IQ of 65, and a full scale IQ of 53 (Tr. 272). On the Vineland Social Maturity Scale, Plaintiff was found to be functioning at the age equivalency of three years and one month in the categories of communication and socialization (Tr. 273). The age equivalency in daily living skills was noted as seven years and five months and the category of composite was four years and six months (Tr. 273). The examiner noted "In the opinion of the diagnostician, the test scores obtained were valid estimates of Joshua's skill levels" (Tr. 272).
On March 3, 2008, at the request of the Vocational Rehabilitative Services, Plaintiff underwent a psychological evaluation (Tr. 215-220). The evaluation procedures included a clinical interview, mental status evaluation, Vineland-II adaptive behavior scales, and a Wechsler Adult Intelligence Scale-III(WAIS-III). The Vineland adaptive behavior scale was noted as being completed on April 1, 2008, after the other procedures (Tr. 215). The overall behavioral observations of the examiner included the statement "Joshua was cooperative and displayed good effort" (Tr. 215, 218). The WAIS-II testing revealed a verbal IQ of 71, a performance IQ of 75, and a full scale IQ of 70 (Tr. 217). Following the completion of the Vineland-II, the examiner noted "His general level of adaptive functioning is low" (Tr. 218). This examiner further states "According to the professional guidelines (AAMR expert consensus, DSM-IV, and APA Division 33), Joshua's Vineland-II results and his reported IQ score suggest a classification of mild mental retardation" (Tr. 218). At the conclusion of this report the examiner states "Joshua does appear to have a mental impairment which results in substantial impediment to employment; can benefit from Vocational Rehabilitation Services; and Joshua will require Rehabilitation if he is to gain and retain employment" (Tr. 219). The examiner further notes "Joshua meets criteria for mental retardation, mild, with a Full Scale IQ below 75 and with Adaptive Functioning based on the Vineland-II below age expected level" (Tr. 219). Still further the examiner states "Additionally, Joshua is (a) unable to operate a motor vehicle as he does not have a license and may be unable to use public transportation even if available; (b) has limited ability to set vocational goals or choose realistic/appropriate employment, and lacks job seeking skills; (c) has limited social skills and is below age level in social skills; (d) has had minimal work experience and minimal marketable skills" (Tr. 219).
On April 19, 2012, Plaintiff was seen for an initial evaluation at Frontier Health (Tr. 222). During this initial evaluation, Plaintiff reported some symptoms of depression and anxiety with, what the evaluator described, as possible panic features (Tr. 222). Plaintiff further indicated issues with concentration and focus (Tr. 222). Following this evaluation, Plaintiff diagnoses included major depressive disorder, described as moderate and recurrent, and generalized anxiety (Tr. 223). Plaintiff was given a prescription for Celexa 20 mg (Tr. 223). Plaintiff returned to this location for follow up on May 24, 2012 (Tr. 221). Plaintiff reported the medication was helping some with sadness (Tr. 221). Instructions were given to continue working with case manager and/or therapist (Tr. 221). Plaintiff returned on July 19, 2012 and reported that he was doing well (Tr. 225). Plaintiff indicated that he preferred to take the Celexa at bedtime because it seemed to help him rest.
On October 10, 2012, at the request of the Disability Determination Services (DDS), Plaintiff was evaluated by Dr. John Johnson (Tr. 241-243). The purpose of this examination was to determine the extent of Plaintiff's visual condition. Following examination, Plaintiff was found to have visual acuity of 20/100 OD and 20/70 OS (Tr. 241). Plaintiff's best corrected vision was 20/30 OD and 20/25 OS with significant myopia and astigmatism (Tr. 241). The impression was given as myopia and astigmatism (Tr. 241).
Plaintiff was seen at the Church Street Pavilion, Frontier Health, on October 11, 2012 (Tr. 267). The diagnosis included major depressive disorder recurrent severe (Tr. 267). Plaintiff reported some residual depression which resulted in an increase dosage of Celexa being ordered (Tr. 267). Additionally, some abnormal mannerisms were noted by this source (Tr. 267). Plaintiff further indicated that his mood was up and down (Tr. 268). Plaintiff returned to this location on January 10, 2013 (Tr. 266-267). Plaintiff was reported as being stable at this time with the diagnosis of major depressive disorder recurrent severe being maintained (Tr. 266). On April 4, 2013, Plaintiff returned again and reported that the Celexa was causing him to be tired and sleepy (Tr. 265). The mental status portions of these notes indicate that Plaintiff made little to no eye contact, had some abnormal mannerisms, and affect being blunted (Tr. 265). Plaintiff also reported his mood as being "on and off" and having some difficulty with concentration (Tr. 265).

[Doc. 14, pgs. 2-5].

With respect to the findings of examining ophthalmologist Dr. Johnson, Dr. Randall, a state agency ophthalmology consultant, reviewed Dr. Johnson's examination notes and opined that plaintiff ...


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