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Harvey Convery v. Commissioner of Social Security

January 9, 2012

HARVEY CONVERY, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Monte C. Richardson United States Magistrate Judge

MEMORANDUM OPINION AND ORDER*fn1

THIS CAUSE is before the Court on Plaintiff's appeal of an administrative decision denying his application for Social Security benefits. The Court has reviewed the record, the briefs, and the applicable law. For the reasons set forth herein, the Commissioner's decision is AFFIRMED.

I. PROCEDURAL HISTORY

Plaintiff filed an application for Supplemental Security Income ("SSI") on January 25, 2000, alleging he became disabled on September 11, 2005. (Tr. 88-90, 100). The Social Security Administration denied Plaintiff's application initially and upon reconsideration. (Tr. 37-44, 47-49). On January 15, 2009, a hearing was held before an ALJ (Tr. 20-36), who issued a decision on February 5, 2009, finding Plaintiff not disabled. (Tr. 10-19). Plaintiff requested review of the ALJ's decision on February 9, 2009 (Tr. 6), and the Appeals Council denied Plaintiff's request on October 29, 2010.

(Tr. 1-4). Plaintiff timely filed his Complaint in the U.S. District Court for review of the Commissioner's decision. (Doc. 1).

II. NATURE OF DISABILITY CLAIM

A. Basis of Claimed Disability

Plaintiff claims to be disabled since September 11, 2005, due to Hepatitis C, depression, fatigue, and illiteracy. (Tr. 104).

B. Summary of Evidence Before the ALJ

Plaintiff was 52 years old on the date he filed his application for benefits, which classifies him as a person closely approaching advanced age. See 20 C.F.R. § 416.963(d). Plaintiff has a limited education (Tr. 24, 107) and his past work experience includes carpenter, babysitter, molder, and construction yard laborer (Tr. 25-26, 32, 105, 113-20, 121-26). Plaintiff's medical history is discussed at length in the ALJ's decision and will be summarized herein.

Plaintiff's medical evidence is comprised mostly of consultative examinations obtained in connection with his application for disability and the review of his medical evidence by the state agency physicians.*fn2

In February 2007, Dr. Eftim Adhami, M.D. performed a physical examination of Plaintiff (Tr. 204-08). Dr. Adhami noted that Plaintiff had no restrictions in his range of motion and observed that he had no lumbar muscle spasms, full muscle strength in all muscles, normal gait, and normal straight leg raise with discrete left knee pain (Tr. 207-07). Dr. Adhami further noted that Plaintiff was able to understand questions and answer appropriately (Tr. 207).

In March 2007, Dr. Louis Legum, Ph.D. evaluated Plaintiff for his mental impairment (Tr. 210-15). Plaintiff reported his daily activities included heating up food, doing laundry, cleaning, shopping, watching television, using the computer, and playing cards with friends (Tr. 211). Dr. Legum administered an intelligence test which yielded an overall IQ score of 63 (Tr. 213). Dr. Legum wrote that the IQ scores were consistent with an individual who was functioning in the mild range of mental retardation. He was diagnosed with a learning disorder, alcohol abuse in partial remission, mild mental retardation, traits of passive/dependent personality disorder and was assigned a GAF of 55 (Tr. 214).*fn3

In June 2007, Plaintiff was seen at the Putman Community Medical Center for complaints of back pain (Tr. 210-14, 269, 309-12, 314). In December 2007, results of an x-ray showed that Plaintiff had scoliosis and mild degenerative disc disease in his thoracic spine and mild multilevel disc disease in his lumbar spine (Tr. 270, 320). On June 12, 2007, Dr. Robert Steele, M.D. (a state agency medical expert) reviewed Plaintiff's records and concluded that he was limited to light work (Tr. 244-250).

In October 2008, Dr. William E. Benet, Psy.D. evaluated Plaintiff's mental capabilities (Tr. 328-35). Plaintiff reported that his past work included owning a locksmith business and that he was married for seven years until 1984 (Tr. 332-33). Dr. Benet administered the Minnesota Multiphasic Personality Inventory-2, which Plaintiff was able to complete on his own without assistance, after demonstrating that he could read and understand the test terms (Tr. 333).*fn4 Dr. Benet completed a medical source statement in which he opined Plaintiff would have marked limitations in his ability to understand and remember complex instructions, carry out complex instructions, and make judgments on complex work-related decisions due to severe anxiety, depression and alcohol dependence. Dr. Benet further opined that Plaintiff would have marked limitations in his ability to respond appropriately to usual work situations and to changes in a routine work setting (Tr. 328-330).

In January 2009, Dr. Philip R. Yates, Ph.D. examined Plaintiff and found he had an overall IQ score of 67 with a verbal IQ score of 63 (Tr. 336-41). Dr. Yates classified Plaintiff's intellectual capabilities as being in the mild range of mental retardation (Tr. 340, 341). Additionally, Dr. Yates completed a residual functional capacity assessment in which he concluded that Plaintiff would not be significantly limited in his ability to carry out short and simple instructions (Tr. 343). However, he opined Plaintiff would have moderate limitations in his ability to remember locations and work-like procedures, understand and remember very short and simple instructions and remember and understand very detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within ...


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