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Kimberly Y. Jarvis v. Commissioner of Social Security

October 31, 2011

KIMBERLY Y. JARVIS,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Vernelis K. Armstrong United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

Plaintiff seeks judicial review, pursuant to 42 U. S. C. § 405(g), of Defendant's final determination denying her claim for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (Act), 42 U. S. C. §§ 416 (i) and 423 and for Supplemental Security Income (SSI) under Title XVI of the Act, 42 U. S. C. §§ 1381 et seq. Pending are the parties' Briefs on the Merits and Plaintiff's Reply (Docket Nos. 14, 19, & 20). For the reasons that follow, the Commissioner's decision is affirmed.

I.PROCEDURALBACKGROUND

On April 26, 2007, Plaintiff completed applications for DIB and SSI alleging that she became unable to work because of her disabling condition which commenced on July 27, 2006 (Docket No. 12, Exhibit 7, pp. 2-6, 8-9 of 28). The applications were denied initially and upon reconsideration (Docket No. 12, Exhibit 5, pp. 11-13, 15-17, 18-20, 22-24 of 26).

Plaintiff filed a request for hearing on February 8, 2008 (Docket No. 12, Exhibit 5, pp. 25-26 of 26). On November 17, 2009, a video hearing was held at which Plaintiff, represented by counsel and Bruce Holderead, a Vocational Expert (VE), appeared before Administrative Law Judge (ALJ) Priscilla M. Rae at Falls Church, Virginia. ALJ Rae entered a decision on November 25, 2009, and determined that Plaintiff was not under a disability as defined under the Act (Docket No. 12, Exhibit 2, pp. 16-23 of 49).

On July 30, 2010, an Appeals Officer from the Office of Disability Adjudication and Review denied Plaintiff's request for review, finding no reason under the rules to review the ALJ's decision. The ALJ's decision was rendered the final decision of the Commissioner of Social Security in this case. (Docket No. 12, Exhibit 2, p. 2-4 of 49).

II.FACTUALBACKGROUND

1. Plaintiff's Testimony

On November 17, 2009, Plaintiff was 25 years of age. Her height was 4'11" and her weight was approximately 97 pounds (Docket No. 12, Exhibit 2, p. 31 of 49; Exhibit 11, p. 4 of 42).

Plaintiff was awarded a special education twelfth grade certificate. After high school, she commenced the study of veterinary science. She did not complete the course of study that would qualify her for a position as a veterinarian's assistant as she could not pay for the books (Docket No. 12, Exhibit 2, pp. 31-33 of 49).

Plaintiff obtained work at the Animal Protective League (APL) as a dishwasher. Plaintiff quit her job at the APL because no one would train her to work with the animals. Now she cannot work because she is plagued with chronic fatigue, memory loss and lower back problems (Docket No. 12, Exhibit 2, pp. 33- 34, 36 of 49). In fact, Plaintiff claims that because of lower back pain, she cannot perform any work on a full-time basis that includes standing (Docket No. 12, Exhibit 2, p. 35 of 49).

Although Plaintiff had a problem concentrating, she generally watched entire television programs and movies. The onset of fatigue interfered with her ability to concentrate on television (Docket No. 12, Exhibit 2, p. 37 of 49).

2. The VE's Testimony

The ALJ classified a hypothetical plaintiff as a younger individual with a special education twelfth grade certificate level of education. The VE responded that this individual could execute, remember, understand and carry out only single instructions and there would be a limited number of jobs that he or she could perform. If the jobs were limited to one-two step tasks and a level of specific vocational preparation (SVP) that included a short demonstration only, the hypothetical plaintiff could perform the following work:

JOB DICTIONARY OF SVP NUMBER OF JOBS IN THE OCCUPATIONAL TITLES NATIONAL ECONOMY REFERENCE STREET 955.687-018 SHORT DEMONSTRATION 15,000 CLEANER MACHINE 715.686-014 SHORT DEMONSTRATION 12,000 FEEDER CLEANER II 919.687-014 SHORT DEMONSTRATION 250,000

The ability to read at a third grade level and do math at a fourth grade level would not preclude any of the work listed above because the language and math levels required to perform the jobs of street cleaner, machine feeder and cleaner jobs were compatible with first through third grade levels of comprehension. However, if the hypothetical plaintiff had difficulty maintaining attention and concentration and would be off-task for ten minutes in an hour, there would be no jobs that he or she could perform (Docket No. 12, Exhibit 2, pp. 37-39 of 49).

If the need to sit and/or stand was included in the hypothetical, the jobs of street cleaner, machine feeder and cleaner would be eliminated from the pool of work that the hypothetical plaintiff could perform. It would be unacceptable behavior if the hypothetical plaintiff missed more than three days in a month (Docket No. 12, Exhibit 2, p. 39-40 of 49).

III.MEDICALEVIDENCE

On January 8, 2001, Dr. K. Scott Pacer, M. D., a psychiatrist, conducted a study of Plaintiff's mental disorders at the behest of the Department of Human Services. Dr. Pacer diagnosed Plaintiff with major depression and "R/O post traumatic stress disorder." He subjectively rated Plaintiff's social, occupational and psychological functioning and gave her a score that denoted serious symptoms (Docket No. 12, Exhibit 12, p. 16 of 34; www.vitals.com/doctors/Dr_Kenneth_Pacer.html).

On December 17, 2005, Dr. Michael Baumgardner, D.O., an emergency room physician, diagnosed Plaintiff with acute undifferentiated abdominal pain, etiology uncertain (Docket No. 12, Exhibit 10, pp. 5-6 of 32). The supporting clinical examination showed a large amount of air scattered throughout the small intestine and colon and borderline distention of the small bowel loops. Bilateral spondylosis (degenerative osteoarthritis) was observed at L5 of the lumbar vertebrae (Docket No. 12, Exhibit 10, pp. 7, 8 of 32; www.vitals.com/doctors/Dr_Michael_Baumgardner.html).

On November 30, 2006, Dr. Richard Litwin, Ph. D., a licensed clinical psychologist, conducted an evaluation of Plaintiff's intellectual functions. The results from the WECHSLER ADULT INTELLIGENCE SCALE 3 (WAIS-III), the WIDE RANGE TEST OF ACHIEVEMENT-3, the GRAY ORAL READING TEST-4, TEST OF WORD READING EFFICIENCY TEST, and the BOSTON NAMING TEST showed, generally, that Plaintiff had a low aptitude, limited abilities, poor comprehension and limitations in lateral thinking. Specifically, Plaintiff had a full scale intelligence quotient (IQ) of 70; she read words on a third grade level and her math and spelling abilities were on a fourth grade level; her word reading efficiency was on a second grade level; she could identify 32 of 60 words in a confrontation naming test; and she was highly concrete and black and white in her thinking.

Dr. Litwin concluded that Plaintiff had an adjustment disorder with anxiety and depressed mood (mild) and a reading disorder and some mild symptoms or some difficulty in social, occupational, or school functioning. He subjectively rated Plaintiff's ability to function in the borderline to low average ranges; however, Plaintiff's IQ alone would not qualify her for mental retardation/developmental disabilities (Docket No. 12, Exhibit 10, pp. 13-16 of 32).

Following a two-year period during which she stopped taking her medication, Plaintiff presented to Dr. Thomas M. Robb, D. O., a psychiatrist, for treatment of depression. On December 13, 2006, he diagnosed Plaintiff with major depression, recurrent, and questionable past post-traumatic stress disorder. A conservative dosage of Celexa, an antidepressant, was prescribed with instructions to increase the dosage (Docket No. 12, Exhibit 10, p. 29 of 32; www.healthgrades.com/directory.../dr-thomas-robb-do). On January 24, 2007, Dr. Robb determined that there were no side effects of the medication. He subjectively rated Plaintiff's social, occupational, or school functioning as limited by moderate symptoms or moderate difficulties. There were no medication-induced movement disorders (Docket No. 12, Exhibit 10, p. 28 of 32). On April 25, 2007, Dr. Robb reported that the Celexa was effective in treating the symptoms of depression. There were no medication-induced movement disorders and Plaintiff continued to exhibit moderate symptoms or moderate difficulty in social, occupational, or school functioning (Docket No. 12, Exhibit 10, pp. 27-28 of 32).

On July 31, 2007, Dr. Gary Sipps, Ph. D., a clinical psychologist, conducted a clinical interview, during which the WAIS-III and the WECHSLER MEMORY SCALE-III, a test designed to measure different memory functions, were administered by Leon Howard, Ph. D. Plaintiff's full scale IQ score was 70 (Docket No. 12, Exhibit 11, pp. 3, 7 of 42; www.everydayhealth.com/doctors/dr-gary_j_sipps_phd). Dr. Sipps diagnosed Plaintiff with borderline intellectual functioning, a major depressive disorder, recurrent but in partial remission with treatment and attention-deficit/hyperactivity disorder (ADHD) and moderate symptoms or moderate difficulty in social, occupational, or school functioning. "When comparing her scores on the WMS-III with predictions based on Plaintiff's WAIS-III performance, Plaintiff's low-average range predicted scores were significantly higher than the borderline range visual immediate memory and deficient range visual delayed memory." It was Dr. Sipps opinion that Plaintiff's ability to concentrate and attend to tasks appeared to be mildly impaired (Docket No. 12, Exhibit 11, pp. 8-9 of 42).

Dr. Roy Shapiro, Ph. D., a clinical psychologist, evaluated the following mental activity in the context of Plaintiff's capacity to sustain that activity over a normal weekday and workweek on an ongoing basis. It was his opinion that Plaintiff was moderately limited in her ability to:

* Understand and remember detailed instructions;

* Carry out detailed instructions;

* Maintain attention and concentration for ...


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