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Sullivan v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

April 27, 2015

TOMMY A. SULLIVAN, Plaintiff,
v.
CAROLYN W. COLVIN Commissioner of the Social Security Administration, Defendant.

ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF APPEAL

TIM A. BAKER, Magistrate Judge.

I. Introduction

Plaintiff Tommy A. Sullivan appeals the Commissioner's denial of his Social Security application for a period of disability, disability insurance benefits, and supplemental security income. Sullivan asserts: (1) the ALJ erroneously determined that Sullivan did not meet or equal listings 12.05B or 12.05C; (2) the ALJ's failure to summon a medical advisor was in error; (3) the ALJ's credibility determination was patently wrong; and (4) the ALJ erred in concluding that Sullivan was capable of performing work in the national economy. For the reasons set forth below, Plaintiff's brief in support of appeal [Filing No. 14] is denied and the Commissioner's decision is affirmed.

II. Discussion

A. Standard of Review

Under 42 U.S.C. § 405(g), the Commissioner's factual findings must be upheld if substantial evidence supports his findings. The Seventh Circuit defines substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Blakes v. Barnhart , 331 F.3d 565, 568 (7th Cir. 2003). The ALJ is obligated to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of nondisability while ignoring evidence that points to a disability finding. Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010). If evidence contradicts the ALJ's conclusions, the ALJ must confront that evidence and explain why it was rejected. Moore v. Colvin , 743 F.3d 1118, 1123 (7th Cir. 2014). The ALJ, however, need not mention every piece of evidence, so long as he builds a logical bridge from the evidence to his conclusion. Pepper v. Colvin , 712 F.3d 351, 362 (7th Cir. 2013).

B. Combination of impairments

Sullivan asserts that substantial evidence does not support the ALJ's conclusion that Sullivan did not meet or equal listings 12.05B and 12.05C. Sullivan contends that the combination of his verbal I.Q. score, full scale I.Q. score, special education, and chronic backleg pain meet or equal these listings and warrant a finding of disability. Listing 12.05 covers intellectual disability and "refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. Under listing 12.05B, a claimant meets a listing if he has a valid verbal, performance, or full scale I.Q. of 59 or less. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05B. A claimant meets listing 12.05C when he has "a valid verbal, performance, or full scale I.Q. of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C.

Sullivan scored a verbal I.Q. of 58 and a full scale I.Q. score of 67, which meets the requirements of listing 12.05. The ALJ acknowledged that fact. [Filing No. 12-2, at ECF p. 17.] However, the ALJ found these scores were invalid. Relying on Dr. Greg Lynch's consultative assessment, the ALJ found that Sullivan's I.Q. tests did not satisfy the listing because Dr. Lynch reported that these scores were an underestimate of Sullivan's actual abilities, which he estimated in the borderline range. Dr. Lynch also concluded that Sullivan's adaptive behavioral functioning was not deficient. [Filing No. 12-7, at ECF p. 18.] Sullivan rightly asserts that Dr. Lynch did not specifically state that the I.Q. tests were invalid. However, the Court disagrees with Sullivan's conclusion that remand is necessary.

Substantial evidence supports the ALJ's finding that the I.Q. tests were invalid. Maggard v. Astrue , 167 F.3d 376, 379-81 (7th Cir. 1999). The ALJ accounted for Dr. Lynch's conclusion that the tests underestimated Sullivan's ability. Likewise, the ALJ acknowledged Dr. Lynch's report that Sullivan gave poor effort on his I.Q. tests. He was unwilling to guess on the verbal items and seemed to give up easily without giving adequate consideration. [Filing No. 12-7, at ECF p. 17.] Sullivan's employer's report also supported the ALJ's decision. Sullivan's employer noted that Sullivan worked many years as a skilled, reliable employee and was considered a quick learner that worked well with others. Sullivan's employer also believed Sullivan conducted himself in a professional manner, all of which the ALJ determined showed that Sullivan had good adaptive functioning skills. [Filing No. 12-6, at ECF p. 13-15.] Indeed, Sullivan's employer noted that Sullivan's poor attendance resulted in his termination, not his intellectual functioning. [Filing No. 12-6, at ECF p. 13-14.]

The ALJ further considered the fact that Sullivan did not attend any special education classes as evidence to support a finding that Sullivan's I.Q. tests were invalid. This reasoning was erroneous as the evidence includes two months of special education. [Filing No. 12-6, at ECF p. 52.] Even so, this error does not negate the fact that overwhelming evidence in the record supports the ALJ's conclusion that Sullivan's scores were invalid and thus, Sullivan did not meet a listing.[1] See Brazitis v. Astrue , No. 11-c-7993, 2013 WL 140893, at *11 (N.D. Ill. Jan. 11, 2013) ("In some cases, the Seventh Circuit has affirmed the ALJ's decision despite the presence of flaws in reasoning when the ALJ's other reasons are valid.").

Sullivan also contends that the ALJ failed to specifically list listings 12.05B and 12.05C in his decision, which is reversible error. Sullivan cites to Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006) to support this assertion. However, Ribaudo is distinguishable. In Ribaudo, the ALJ failed to mention the relevant listing and did not evaluate any of the evidence to the listing's criteria. Id. Here, the ALJ discussed relevant evidence and evaluated the required criteria under listing 12.05. Thus, the ALJ's failure to specifically list listings 12.05B and 12.05C does not justify remand.

C. Failure to summon a medical advisor

Sullivan contends that the ALJ's failure to summon a psychologist to determine whether Sullivan's combination of impairments equaled a listing was in error. According to Sullivan, the ALJ cited no evidence to support his medical equivalence determination, and therefore, the decision must be remanded. The decision on whether to summon a medical advisor is one of discretion. An ALJ should summon a medical advisor if he lacks ...


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