Shelby Ellis v. Jo Anne B Barnhart

Case 2:04-cv-08043-RGK-RZ Document 19 Filed 01/26/06 Page 1 of 20 Page ID #:146 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF C...

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Case 2:04-cv-08043-RGK-RZ Document 19 Filed 01/26/06 Page 1 of 20 Page ID #:146

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SHELBY ELLIS,

) ) Plaintiff, ) ) v. ) ) JO ANNE B. BARNHART, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________)

NO. CV 04-08043 (Mc) MEMORANDUM OF DECISION AND ORDER IN A SOCIAL SECURITY CASE

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The plaintiff, SHELBY ELLIS, filed the present action for review

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of a final determination of the Commissioner of Social Security (the

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“Commissioner”) that the plaintiff is not disabled and not entitled to

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Supplemental Security Income (“SSI”) disability benefits.

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reasons set forth below, the court finds that the decision of the

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Commissioner is supported by substantial evidence and that there are

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no errors of law.

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affirmed.

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For the

The decision of the Commissioner, therefore, is

BACKGROUND

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The plaintiff protectively filed an application for SSI

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disability benefits under the Social Security Act (the “Act”) on

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\\\

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April 30, 1996.1 [Administrative Record (“AR”) 147, 148-49.]

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Commissioner denied the application initially and on reconsideration.

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[AR 82-85, 89-92.]

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hearing was held before Administrative Law Judge David Agatstein

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(the “ALJ”) on June 17, 2004. [AR 56-79.]

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filed a decision concluding that the plaintiff was not under a

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disability as defined in the Act at any time through the date of the

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decision. [AR 15-32.]

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request for review of the ALJ’s decision. [AR 7-9.]

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The

At the plaintiff’s request, an administrative

On June 24, 2004, the ALJ

The Appeals Council denied the plaintiff’s The decision of

the ALJ stands as the final decision of the Commissioner.

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Thereafter, the plaintiff filed the present action.

The

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plaintiff and the Commissioner have consented to proceed before a

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United States Magistrate Judge.

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Stipulation setting forth their arguments.

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The parties have entered into a Joint

STANDARDS OF REVIEW

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The court must sustain the findings of the Commissioner unless:

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(a) they are not supported by substantial evidence in the record as a

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whole; or (b) the Commissioner applied an improper legal standard.

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See 42 U.S.C. 405(g); Gordon v. Secretary of Health and Human

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Services, 803 F.2d 1071, 1072 (9th Cir. 1986).

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means “more than a mere scintilla” but less than a preponderance.

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Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28

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L.Ed.2d 842 (1971); Desrosiers v. Secretary of Health and Human

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Services, 846 F.2d 573, 576 (9th Cir. 1988).

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is evidence a “reasonable mind might accept as adequate to support a

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Substantial evidence

“Substantial evidence”

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The denials of the plaintiff’s prior applications are not at issue. [See AR 16.] -2-

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conclusion.”

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Secretary of Health and Human Services, 803 F.2d at 1072.

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Richardson v. Perales, 402 U.S. at 402; Gordon v.

This court must review the record as a whole and consider adverse

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as well as supporting evidence.

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529-30 (9th Cir. 1986).

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one rational interpretation, the court must sustain the Commissioner’s

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decision.

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1984).

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See Green v. Heckler, 803 F.2d 528,

Where evidence is susceptible of more than

See Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir.

THE FIVE-STEP SEQUENTIAL EVALUATION The Commissioner has established a five-step sequential

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evaluation for determining whether a person is disabled.

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Commissioner determines whether the person is engaged in “substantial

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gainful activity.”

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benefits.

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determines whether the person has a medically severe impairment or

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combination of impairments.

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impairment or combination of impairments, the Commissioner denies

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benefits.

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Commissioner determines whether the impairment meets or equals one of

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a number of “listed impairments.”

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“listed impairment,” the Commissioner conclusively presumes that the

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person is disabled.

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the “listed impairments,” the Commissioner determines whether the

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impairment prevents the person from performing past relevant work.

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the person can perform past relevant work, the Commissioner denies

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benefits.

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burden shifts to the Commissioner to show that the person is able to

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perform other kinds of work.

First, the

If so, the Commissioner denies disability

Second, if the person is not so engaged, the Commissioner

If the person does not have a severe

Third, if the person has a severe impairment, the

If the impairment meets or equals a

Fourth, if the impairment does not meet or equal

If

Fifth, if the person cannot perform past relevant work, the

The person is entitled to disability

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benefits only if he or she is unable to perform other work.

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C.F.R. § 404.1520 and 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S.

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137, 140-42, 107 S.Ct. 2287, 96 L.Ed 119 (1987).

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See 20

FINDINGS OF THE ALJ The plaintiff was born September 12, 1945. [AR 148.]

The ALJ

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found that the plaintiff has a high school education and no past

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relevant work. [AR 31.]

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to work since February, 1963, because of physical and mental problems.

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More specifically, the plaintiff alleged back, hip, and neck pain, a

The plaintiff alleges that he has been unable

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history of stabbings and a gunshot wound to the left leg.

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plaintiff also alleges mental problems which caused him to lose his

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memory.

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The

[AR 152.]

The ALJ found that the plaintiff had not engaged in substantial

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gainful activity since the alleged onset of disability.

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that the plaintiff had medically determinable impairments consisting

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of osteoarthritis of the lumbosacral spine, early cataracts in both

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eyes, history of treatment in 1999 for a scalp lymphoma, type B, with

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radiation therapy, history of hospitalization in 1999 for left-sided

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numbness with a finding of lacunar infarct on a diagnostic scan,

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dysthymia, and possible borderline intellectual functioning.

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found that these impairments in combination were severe but that the

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plaintiff did not have an impairment or combination of impairments

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listed in, or medically equal to one listed in, Appendix 1, Subpart P,

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Regulations No. 4. [AR 30-31.] The ALJ found that the plaintiff’s

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allegations regarding his limitations were not totally credible and

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that the plaintiff retained the residual functional capacity to

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perform work at the medium level of exertion.

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ALJ found that the plaintiff could lift and/or carry 50 pounds

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The ALJ found

The ALJ

More specifically, the

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occasionally and 25 pounds frequently, stand and/or walk for six

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hours, and sit for six hours in an eight-hour workday.

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was also limited to the performance of unskilled work, involving

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simple, repetitive tasks.

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contact with supervisors, co-workers, and the general public.

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found that the plaintiff has no past relevant work.

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that the plaintiff was of “advanced age” as of his fifty-fifth

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birthday, September 12, 2000, but that prior to that date, he was an

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individual “closely approaching advanced age.”2

The ALJ further found

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that the plaintiff had a high school education.

The ALJ determined

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that although the plaintiff’s non-exertional limitations did not allow

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him to perform the full range of medium work, the plaintiff

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nevertheless retained the residual functional capacity to perform a

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significant range of medium work.

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203.21 and 203.14 as a framework for decision-making, the ALJ found

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that there were a significant number of jobs in the national economy

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that the plaintiff could perform.

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the plaintiff was not under a “disability” as defined in the Act at

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any time through the date of his decision.

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The plaintiff

The plaintiff must have a minimum of The ALJ

The ALJ found

Using Medical-Vocational Rules

Accordingly, the ALJ concluded that

[AR 31.]

THE PLAINTIFF’S CONTENTIONS The plaintiff contends that the ALJ’s reliance upon the

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vocational expert’s testimony was improper because he failed to

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propound a complete hypothetical to the vocational expert.

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plaintiff also argues that the ALJ erred in finding that the plaintiff

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possessed a high school education.

The

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An individual age fifty-five or older is considered a person of “advanced age.” 20 C.F.R. § 416.963(e). An individual between age fifty and fifty-four is considered a person “closely approaching advanced age.” 20 C.F.R. § 416.963(d). -5-

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DISCUSSION The hypothetical question to the vocational expert “In order for the testimony of a VE to be considered reliable,

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the hypothetical posed must include ‘all of the claimant's functional

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limitations, both physical and mental’ supported by the record."

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Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002), quoting Flores

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v. Shalala, 49 F.3d 562, 71 (9th Cir. 1995).

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The plaintiff contends that the hypothetical to the vocational expert was flawed “because the vocational expert was not asked to

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consider Ms. [sic] Ellis’s nonexertional limitations of borderline

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intellect.

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operating in the bottom 8 percent of the population could perform work

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activity which requires an individual to be above the bottom 10

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percent.” [Joint Stipulation at 9.]

Simply put, the vocational expert was not asked if someone

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The plaintiff’s argument is essentially as follows:

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1.

“With caution, the Administrative Law Judge gave the

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greatest weight to the mental diagnosis given by the

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medical expert Dr. [Glenn] Griffin.”

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2.

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Dr. Griffin opined that the plaintiff suffered from dysthymia and borderline intellectual functioning.

3.

The ALJ found that the plaintiff could perform the work

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of hospital cleaner, DOT 323.687-010; laborer, stores,

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DOT 922.687-058; and hand packager, DOT 920.587-018.

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4.

The plaintiff’s borderline intellectual functioning

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means that the plaintiff is functioning at the lowest

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eighth percentile of the population. [Joint Stipulation

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at 4-5.]

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relies upon a page from the Wechsler Adult Intelligence

As support for this statistic, the plaintiff

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Scale-Revised attached to the Joint Stipulation as

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Exhibit 2.

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borderline intellectual functioning falls within the

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lowest ten per cent of the population. [Joint

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Stipulation, Exhibit 2.]

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5.

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The DOT identifies the jobs enumerated by the ALJ as requiring a General Learning Ability of 4.

6.

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This page indicates that a person with

A General Learning Ability of 4 is defined as the lowest one-third, excluding the bottom ten per cent.

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Since the plaintiff has borderline intellectual

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functioning, he is functioning at the lowest eighth

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percentile of the population, which is within the

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lowest ten percent specifically excluded from the

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General Learning Ability requirements of the jobs of

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hospital cleaner, laborer/stores, and hand packager.

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The plaintiff, therefore, cannot perform these jobs.

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[Joint Stipulation at 6.]

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The plaintiff’s argument is not persuasive.

Although the ALJ

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indicated that he gave the greatest weight to the mental diagnoses

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offered by Dr. Griffin, the ALJ did not adopt the entirety of Dr.

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Griffin’s opinions.

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contrary to what the plaintiff implies, the ALJ did not find that the

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plaintiff suffered from borderline intellectual functioning but rather

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“possible borderline intellectual functioning” (emphasis added). [AR

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31.] In so finding, the ALJ essentially rejected the diagnoses of

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every treating and examining physician, none of whom indicated that

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the plaintiff suffered even from “possible borderline intellectual

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functioning.” [AR 252 (diagnosed chronic paranoid schizophrenia, but

More particularly, unlike Dr. Griffin, and

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“[i]ntellectually, he appeared normal”); AR 522 (diagnosed, inter alia

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with various learning disorders, but IQ estimated to be in the low

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average range; AR 546 (diagnosed with a history of learning disorders

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with functioning in the borderline to low average range); AR 556

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(diagnosed on Axis II with learning disorder, by history, but assessed

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to be functioning in the low average range of intellectual functioning

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despite “generally valid” estimate of functional levels as reflected

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in IQ testing results which revealed a verbal IQ of 89, performance

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I.Q. of 74, and a full scale I.Q. of 80); AR 570 (no diagnosis of

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borderline intellectual functioning with intellectual functioning

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found to be “grossly intact”); AR 621, 623-24, 628 (no diagnosis of

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borderline intellectual functioning by the plaintiff’s treating

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physicians or even reports of symptoms reflecting impairment of

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intellectual functioning).]

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The IQ test results, on the other hand, may be considered to fall

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within the American Psychiatric Association’s definition of

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“borderline intellectual functioning” (I.Q. 71-84).

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Psychiatric Association, Diagnostic and Statistical Manual of Mental

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Disorders IV-TR, 740 (4th ed. 2000).

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questioned the validity of the IQ scores and the diagnoses regarding

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the plaintiff’s intellectual functioning “given [the plaintiff’s]

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ability to study for and pass the GED examination while in prison and

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his history of exaggerating his symptoms.” [AR 20.] The plaintiff

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raises no issue concerning these findings, and most notably, nowhere

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in his argument does the plaintiff actually claim that the ALJ found

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that the plaintiff suffered from borderline intellectual functioning

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but rather that the ALJ gave greatest weight to the testimony of Dr.

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Griffin, and Dr. Griffin found that the plaintiff suffered from -8-

American

However, the ALJ specifically

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borderline intellectual functioning.

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ignored a crucial element in his argument–namely, that it is the ALJ’s

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finding that ultimately matters, not Dr. Griffin’s.

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Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)(“The ALJ need not

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substitute the judgment of expert witnesses for his own”); Russell v.

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Bowen, 856 F.2d 81, 83 (9th Cir. 1988)(“It is not necessary to agree

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with everything an expert witness says in order to hold that his

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testimony contains ‘substantial evidence’").

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Clearly, the plaintiff has

Sample v.

Rather, the plaintiff proceeds as if the ALJ found that the

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plaintiff did, in fact, suffer from borderline intellectual

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functioning.

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is below the lowest tenth percentile of the population, which is

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specifically excluded from the jobs enumerated by the vocational

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expert.

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not find that the plaintiff actually suffered from borderline

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intellectual functioning or that the ALJ accepted the validity of the

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IQ test results, the inference that the ALJ implicitly found that the

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plaintiff’s intellectual functioning fell within the lowest percentile

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of the population is not established.

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plaintiff’s argument is flawed, the plaintiff’s ultimate conclusion

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likewise is flawed.3

Therefore, according to the plaintiff, his functioning

However, because it is clear from the record that the ALJ did

Because the premise of the

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The plaintiff’s reliance upon a single page from the Wechsler Adult Intelligence Scale-Revised (WAIS-R) is otherwise problematic. The plaintiff essentially proffers this single page as support for his argument that a person with borderline intellectual functioning falls within the lowest tenth percentile. This page suggests that a person with borderline intellectual functioning does, in fact, fall within the lowest tenth percentile. “Borderline intellectual functioning” is defined as corresponding to an IQ between 70-79. [Joint Stipulation, Exhibit 2.] On the other hand, the American Psychiatric Association’s definition of borderline intellectual functioning covers a range of IQ from 71-84. American Psychiatric Association, Diagnostic and -9-

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In summary, the ALJ did not find that the plaintiff suffered from

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borderline intellectual functioning, and the plaintiff himself does

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not claim that the ALJ so found.

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evidence that the ALJ implicitly found that the plaintiff was

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functioning in the lowest tenth percentile of the population, and

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therefore, the ALJ was not required to include such a finding in his

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hypothetical question to the vocational expert. Rollins v. Massanari,

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261 F.3d 853, 857 (9th Cir. 2001)(There was no error where the ALJ

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included all the limitations that he found to exist if his findings

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This being the case, there is no

are supported by substantial evidence). Moreover, granting that even “possible borderline intellectual

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functioning” could be a non-exertional limitation which must be posed

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to the vocational expert, the mere fact that the ALJ did not include

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these words in his hypothetical does not mean that the ALJ’s

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hypothetical was incomplete.

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words, which, by themselves, fail to convey any idea of the nature and

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degree of impairment in work function.

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just that the plaintiff suffers from “possible borderline intellectual

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functioning” but rather the effect of this impairment on his

There is nothing magical about these

The issue, therefore, is not

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Statistical Manual of Mental Disorders IV-TR, 740 (4th ed. 2000). According to the WAIS scale found in Exhibit 2, the latter range would also fall within the low average classification (IQ 80-89). Thus, there is a question of mixing terminology. The WAIS classification apparently differs from that of the Diagnostic and Statistical Manual. There is also a question of which IQ result is to be used in determining the proper IQ range–the verbal, the performance, or the full scale. In the plaintiff’s case, there is a fifteen point range between performance and verbal I.Q. This court could speculate that the classification refers to the full scale IQ but there is no actual evidentiary foundation to support that assumption. Last, the plaintiff’s argument depends almost entirely on one page out of presumably hundreds of pages of text to evaluate a record described by Dr. Griffin as “very complicated.” [AR 170.] - 10 -

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functioning [Holz v. Apfel, 191 F.3d 945, 947-48 (8th Cir. 1999)(The

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matter was remanded for consideration of the effect of Holz’s

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borderline intellectual functioning] and whether the hypothetical

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question specifically incorporated the plaintiff’s limitations [Howard

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v. Massanari, 255 F.3d 577, 583 (8th Cir. 2001)(“By including in the

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RFC the qualification that Howard is only capable of performing

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simple, routine, repetitive tasks, the ALJ properly accounted for her

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borderline intellectual functioning, a nonexertional impairment”);

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Burns v. Barnhart, 312 F.3d 113, 123 (3rd Cir. 2002)(While the term

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“simple, repetitive one, two-step tasks” “could encompass a lack of

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intelligence,” it did not “necessarily incorporate all of the

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borderline aspects of Burns' intellectual functioning or the other

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deficiencies identified in [the consultative psychologist’s]

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report”)].

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However, other than arguing that the vocational expert should

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have been questioned whether an individual in the 8th percentile can

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perform the jobs enumerated, the plaintiff fails to indicate any other

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restrictions which were improperly excluded from the hypothetical

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questions to the vocational expert.

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In the plaintiff’s case, there are multiple conflicting opinions

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concerning the plaintiff’s abilities.

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Gustavo Vintas, diagnosed chronic paranoid schizophrenia in June,

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1996, and recommended ongoing psychiatric treatment.

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examination of the plaintiff and upon the plaintiff’s history, Dr.

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Vintas assessed that the plaintiff could not follow job instructions.

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[AR 252.] However, the ALJ rejected this assessment, and there is no

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issue raised as to the correctness of this rejection.

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court further notes that shortly after the plaintiff was examined by - 11 -

One consultative examiner, Dr.

Based upon his

[AR 25.] This

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Dr. Vintas, the plaintiff was incarcerated, and, as noted by the ALJ,

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there is little indication of any mental problems in the plaintiff’s

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prison medical records. [AR 27.]

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Sharply contrasting with Dr. Vintas’ opinion is the assessment

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four years later of Wayne R. General, Ph.D.

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that the plaintiff was only marginally capable of managing benefits in

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his best interest, and although he concluded that the plaintiff’s

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prognosis for returning to work was fair at best due to his history of

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incarceration [AR 522-23], otherwise, Dr. General assessed the

Although Dr. General felt

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plaintiff’s impairments in various functions to be mild except that

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the plaintiff’s impairment in ability to respond to customary work

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pressures and perform complex and varied tasks were moderately

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impaired. [AR 524-25.]

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In August, 2003, the plaintiff was again evaluated by Melanie K.

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Moran, Ph.D., who performed some psychological testing.

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diagnosed a history of learning disorders and psychotic symptoms by

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report but not in evidence during the examination.

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Moran diagnosed that the plaintiff was functioning in the borderline

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to low average range of intelligence but found that the plaintiff did

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“not evidence specific cognitive or emotional limitations that would

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prevent him learning and implementing at least simple repetitive

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skills,” although because of the plaintiff’s long incarceration, the

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plaintiff might have some difficulty adapting to changes in a work

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environment.

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non-interactive setting.

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related well to this authority figure.

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to stay on task.

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[AR 546.]

Dr. Moran

On Axis II, Dr.

Additionally, the plaintiff “would function best in a Reasoning capacities are intact. The patient He [did] not require structure

He would be able to maintain a regular schedule.”

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One month later, in September, 2003, the plaintiff underwent yet

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another psychological examination with Rosa Colonna, Ph.D., which

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included IQ testing.

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results and clinical data, the claimant is currently estimated to be

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functioning in the low average range of intellectual ability.”

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Colonna’s “[p]robable DSM-IV diagnoses” included mood disorder under

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Axis I and antisocial personality disorder and learning disorder, by

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history, under Axis II. [AR 556.] Dr. Colonna assessed that the

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plaintiff was generally able to understand, remember and carry out

Dr. Colonna opined that “[g]ive [sic] the test

Dr.

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short and simple instructions without impairment.

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inability to understand, remember and carry out detailed instructions.

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Although the plaintiff did not have a work history outside of prison,

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“based on cognitive impression,” the plaintiff was able to make simple

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work-related decisions and sustain an ordinary routine without special

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supervision.

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inability to get along with supervisors, coworkers, and peers. The

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plaintiff had a moderate impairment in ability to respond

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appropriately to work pressures and changes in a routine work-setting.

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[AR 557, 558-59.]

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He only showed mild

Dr. Colonna assessed that the plaintiff had a mild

In January, 2004, the plaintiff was psychiatrically evaluated by

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Dr. John S. Woodard who assessed that the plaintiff had slight to

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moderate impairment in interacting with the public, slight impairment

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for interacting with supervisors and co-workers, slight impairment in

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maintaining concentration and attention, slight impairment for

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withstanding normal stressors and pressure in the work place, slight

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impairment in performing detailed complex tasks, and no impairment in

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performing simple repetitive tasks.

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impairment in working on a continuous basis without special - 13 -

Similarly, the plaintiff had no

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supervision.

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completing a normal work week without interruption.

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assessed intellectual functioning to be grossly intact. [AR 570, 573-

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74.]

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The plaintiff had a slight to moderate incapacity for Dr. Woodard

The plaintiff’s treating psychiatrist, Dr. Meyong Choi, on the

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other hand, completed a form in June, 2004, indicating essentially

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that the plaintiff met Listings 12.03 and 12.04 [AR 625] and that the

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plaintiff had, inter alia, marked difficulties in maintaining social

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functioning and in maintaining concentration, persistence or pace [AR

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635].

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ALJ’s rejection of this opinion as well.

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However, there is no issue concerning the propriety of the

Dr. Griffin, while diagnosing borderline intellectual

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functioning, also testified that the plaintiff was capable of

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learning, remembering, and carrying out simple repetitive tasks and

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even more. [AR 71-72.] Dr. Griffin further testified that the record

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evidences difficulty interacting with others.

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bonified [sic] mental disorder on which to attach this difficulty in

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getting along with others, . . . it is nonetheless here.” [AR 72.]

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Although “[t]here is no

Thus, several consultative examiners and even Dr. Griffin, who

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diagnosed borderline intellectual functioning, found that the

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plaintiff was at the very least capable of simple, repetitive tasks

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with minimal contact with supervisors, co-workers, and the general

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public.

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even absent specific reference to the words “possible borderline

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functioning,” sufficiently incorporated all of the plaintiff’s

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functional limitations in the hypothetical.

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error.

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\\\

The ALJ’s hypothetical to the vocational expert, therefore,

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There was, therefore, no

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The plaintiff also asserts that the very fact that the ALJ did

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not inquire of the vocational expert whether there was a conflict

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requires remand, citing SSR 00-4p, which states, inter alia, that “the

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adjudicator has an affirmative responsibility to ask about any

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possible conflict between that VE or VS evidence and information

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provided in the DOT” and if a conflict is identified, that the ALJ

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explain in his decision how the conflict was resolved.

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than arguing that because he is in the bottom ten per cent of the

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population, there is a conflict between the DOT and the vocational

However, other

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expert’s testimony, the plaintiff identifies no other conflicts which

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require explanation pursuant to SSR 00-4p.

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that the mere fact that the ALJ did not inquire whether there was any

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conflict when no conflicts were identified or were apparent

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“erroneously assumes that an ALJ must make a mechanical inquiry on

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this point any time a VE testifies.”

16

F.Supp. 2d 770, 782 (E.D. Pa 2003); see Donahue v. Barnhart, 279 F.3d

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441, 446-47 (7th Cir. 2002).

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The plaintiff’s education

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The plaintiff’s argument

Thompson v. Barnhart, 281

Whether the plaintiff is entitled to benefits or whether he is

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legitimately found “not disabled” can depend upon his educational

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classification.

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of advanced age with a limited education4 or less with no work history

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is considered “disabled” even if capable of medium work.

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hand, a person with a high school education with a similar background

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would be found “not disabled” under Rule 203.14.

Medical-Vocational Rule 203.10 provides that a person

On the other

26 27

4

A seventh through eleventh grade level of formal education is generally considered a limited education. 20 C.F.R. § 416.964(b)(3).

28 - 15 -

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1

The plaintiff contends that the ALJ erred by “slavishly citing to

2

the numerical grade achieved” by the plaintiff.

3

20.

4

“[f]ormal education that [the individual] completed many years before

5

[the] impairment began . . . may no longer be useful or meaningful in

6

terms of the [individual’s] ability to work,” and that the numerical

7

grade completed in school may not accurately reflect actual

8

educational abilities. [Joint Stipulation at 15.] The plaintiff

9

contends that because he only achieved a fourth grade education in

Joint Stipulation at

The plaintiff cites 20 C.F.R. § 416.964(b) which provides that

10

school, because the GED he obtained was in the remote past, and

11

because he has spent the better part of his life in jail, the

12

plaintiff, notwithstanding the GED, does not have a high school

13

education.5

14

However, the Medical-Vocational Rules themselves fully interpret

15

20 C.F.R. § 416.964(b) and “reflect the analysis of the various

16

vocational factors (i.e., age, education, and work experience) in

17

combination with the individual's residual functional capacity . . .

18

in evaluating the individual's ability to engage in substantial

19

gainful activity in other than his or her vocationally relevant past

20 21 22 23 24 25 26 27 28

5

As support for his argument, the plaintiff cites Dixon v. Heckler, 811 F.2d 506, 509-10 (10th Cir. 1987). However, the issue in Dixon was not whether she completed sixth or seventh grade but whether she was illiterate. The court found that just because Dixon had six or seven years of formal schooling, this was not substantial evidence that the plaintiff was literate when there was essentially uncontroverted evidence that the plaintiff could not write. Dixon does not stand for the proposition that an individual’s stated level of education does not accurately reflect her educational capabilities because the education was obtained in the past. There is nothing in Dixon that suggests that she forgot how to write because of the remoteness of her education. Rather, Dixon provided evidence that her level of formal education did not accurately reflect her educational abilities. - 16 -

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1

work.”

2

The Rules specifically take into full consideration that the education

3

for people closely approaching advanced age and older was “ordinarily

4

completed in the remote past.”

5

example, the Rules recognize that an individual closely approaching

6

advanced age limited to sedentary work is so significantly limited

7

vocationally such that “even a high school education or more

8

(ordinarily completed in the remote past) would have little impact for

9

effecting a vocational adjustment unless relevant work experience

10 11

Section 200.00, Appendix 2, Subpart P, 20 C.F.R. Part 404.

reflects use of such education.”

Section 201.00(g), 202.00(c).

For

Section 201.00(g).

In contrast, an individual capable of a medium work is generally

12

considered to have “such substantial work capability at even the

13

unskilled level that a finding of disabled is ordinarily not

14

warranted.”

15

limited education and an “absence of any relevant work experience”

16

that the individual’s vocational profile is considered sufficiently

17

adverse to warrant a finding of disabled.

It is only when the individual is of advanced age with a

Section 203.00(b) and (c).

18

Therefore, even in the absence of relevant past work, with a

19

functional capacity for a wide range of medium work, the fact that the

20

education was obtained in the remote past does not negate the fact

21

that the plaintiff has a high school education.

22

ALJ as a framework have already taken into consideration the

23

provisions of 20 C.F.R. § 416.964(b).

The Rules used by the

24

From a factual standpoint, the evidence also supports the ALJ’s

25

finding that the plaintiff has a high school education, although, as

26

noted by the ALJ, the plaintiff’s various statements in this regard

27

are inconsistent. [AR 16.] In his Disability Report, the plaintiff

28

indicated that he completed the fourth grade. [AR 156.] Consistent - 17 -

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1

with his Disability Report, the plaintiff told Dr. Vintas that he

2

dropped out of school in the fifth grade. [AR 251.] However, he told

3

Dr. General that he completed high school at age eighteen while in

4

jail. [AR 518; see also AR 542, 568.] Elsewhere, the plaintiff

5

indicated that he completed the 9th grade and obtained his GED while

6

in prison.

7 8 9

[AR 554.]

The plaintiff’s testimony concerning his education did nothing to clarify the inconsistency: [ALJ]:

What education do you have?

10

A:

Limited.

11

Q.

Pardon me?

12

A.

Limited.

13

Q.

What does that mean?

14

A.

It’s limited, it’s very limited, very, very

15 16

limited. Q.

17 18

I see. . . . Tell me how many years you attended school and explain why there are discrepancies –

A.

Sir, I can’t explain all that to you because I

19

don’t really know.

20

things.

21

. . .

I forgets [sic] a lot of

My memory don’t even work completely. . .

22

Q.

What do you mean by a limited education?

23

A.

Well, I can’t function that well academically.

24

[AR 59-60.]

25

Even so, and even assuming that the plaintiff’s “reading and

26

writing is very poor” [AR 159], the ALJ apparently considered that the

27

plaintiff’s writing was not so poor as to prevent him from possibly

28

completing the third party questionnaire for his landlord to sign - 18 -

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1

“given than [sic] some answers begin with the pronoun ‘I’ rather than

2

‘he.’” [AR 28; see AR 206.] While the plaintiff has presented

3

testimonial evidence that his level of formal education may not

4

accurately reflect his educational abilities, on the other hand,

5

substantial evidence supports the ALJ’s finding to the contrary.

6

The plaintiff next argues that the ALJ’s finding that the

7

plaintiff is limited to simple, unskilled repetitive tasks is

8

inconsistent with his finding that the plaintiff has a high school

9

education because “[t]he Commissioner by regulation states that an

10

individual with high school educational abilities can do ‘semi-skilled

11

through skilled work’ while a marginal education provides a claimant

12

with the educational ability to perform ‘simple, unskilled types of

13

jobs,’” quoting 20 C.F.R. § 416.964(2) and (4).

14

what the plaintiff implies, 20 C.F.R. § 416.964(4) draws no such fixed

15

definitions but rather states that someone with a high school

16

education is “generally” considered to be capable of semi-skilled or

17

skilled work.

18

mental impairment.

19

plaintiff to simple, repetitive unskilled tasks, not his level of

20

education.

21

not limited to his alleged borderline intellectual functioning.

22

plaintiff also claimed that he heard voices and that he had memory

23

loss, and the ALJ and several examiners found that the plaintiff

24

suffered from mood disorder or dysthymia which was also taken into

25

consideration in the assessment of the residual functional capacity.

26

[See AR 570.] Accordingly, the fact that the plaintiff is limited to

27

simple unskilled work does not lead to a conclusion that the plaintiff

28

does not have a high school education.

However, contrary to

More significantly, the plaintiff asserts that he has a It is this mental impairment which limits the

The plaintiff’s claimed mental impairment, furthermore, is

- 19 -

The

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1

CONCLUSION

2

After careful consideration of the complaint, joint stipulation

3

of the parties, the transcript of the record, and in accordance with

4

the foregoing discussion, the magistrate judge finds that the decision

5

of the Commissioner is supported by substantial evidence and that the

6

Commissioner applied the proper legal standards.

7 8 9

ORDER IT IS ORDERED that judgment be entered in favor of the Commissioner and against the plaintiff.

10 11

Dated: January 26, 2006

12 13

/s/ JAMES W. McMAHON United States Magistrate Judge

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