Sylvia Jackson v. Michael Astrue
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:09-cv-00193-RJC-DCK Copies to all parties and the district court/agency. [998794403].. [10-2226]
Appeal: 10-2226
Document: 43
Date Filed: 02/23/2012
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2226
SYLVIA JACKSON,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, at Office
(Administrative Law Judges),
of
Disability
Adjudication
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Robert J. Conrad,
Jr., Chief District Judge. (3:09-cv-00193-RJC-DCK)
Argued:
December 6, 2011
Decided:
February 23, 2012
Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Remanded by unpublished opinion.
Judge Gregory
opinion, in which Judge Motz and Judge Keenan joined.
wrote
the
ARGUED: Hannah Rogers Metcalfe, HANNAH ROGERS METCALFE, PA,
Greenville, South Carolina, for Appellant.
Lisa G. Smoller,
SOCIAL SECURITY ADMINISTRATION, Boston, Massachusetts, for
Appellee.
ON BRIEF: Anne M. Tompkins, United States Attorney,
Jennifer A. Youngs, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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GREGORY, Circuit Judge:
In
2004,
Sylvia
Jackson
filed
supplemental security income (“SSI”).
number
of
depression
mental
and
disorder
physical
and
an
application
Jackson suffers from a
impairments,
diminished
for
including
intellectual
major
functioning.
After her claim was denied by the commissioner of the Social
Security Administration, Jackson requested a hearing before the
Administrative Law Court.
The administrative law judge (“ALJ”)
denied her claim, and the Appeals Council likewise denied her
request
for
review.
Having
exhausted
her
administrative
remedies, Jackson filed a civil action pursuant to 42 U.S.C.
§ 405(g).
The district court adopted the magistrate judge’s
recommendation to affirm the commissioner’s denial of Jackson’s
application for SSI.
order
affirming
reasons
that
the
Jackson now appeals the district court’s
commissioner’s
follow,
sentence six remand.
we
find
that
final
decision.
Jackson
is
For
entitled
the
to
a
See 42 U.S.C. § 405(g) (“The court may
. . . at any time order additional evidence be taken before the
Secretary . . . upon a showing that there is new evidence which
is material. . . .”).
I.
Judicial review of the commissioner’s decision is governed
by 42 U.S.C. § 405(g).
Johnson v. Barnhart, 434 F.3d 650, 653
2
Appeal: 10-2226
(4th
Document: 43
Cir.
2005)
Date Filed: 02/23/2012
(per
curiam).
Page: 3 of 10
When
reviewing
a
denial
of
benefits, this Court must accept the commissioner’s findings of
fact if they are supported by substantial evidence and if they
Hines v.
were reached by applying the correct legal standard.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
A finding is
supported by substantial evidence if it is based on “relevant
evidence [that] a reasonable mind might accept as adequate to
support a conclusion.”
Johnson, 434 F.3d at 653.
As we have
explained, substantial evidence requires more than a scintilla,
but
less
Apfel,
than
270
evidence
a
preponderance,
F.3d
allows
171,
176
reasonable
of
(4th
the
Cir.
minds
to
evidence.
2001).
differ
If
as
Mastro
v.
“conflicting
to
whether
a
claimant is disabled,” the Court defers to the commissioner’s
decision.
Johnson, 434 F.3d at 653.
II.
The
commissioner
disability
claims.
416.920(a)(4).
uses
a
See
five-step
20
C.F.R.
process
to
evaluate
§§ 404.1520(a)(4),
Under this process, the commissioner asks, in
sequence, whether the applicant (1) is performing substantial
gainful
activity;
(2)
has
a
severe
impairment;
(3)
has
an
impairment that meets or equals the requirements of a listed
impairment; (4) is capable of performing her past relevant work;
and (5) is capable of adjusting to other work that is available
3
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in significant numbers in the national economy.
§ 416.920(a)(4).
See 20 C.F.R.
The claimant has the burden of production and
proof in steps 1-4.
See Hunter v. Sullivan, 993 F.2d 31, 35
(4th Cir. 1992) (per curiam).
At step 5, however, the burden
shifts to the commissioner “to produce evidence that other jobs
exist
in
the
national
economy
that
the
claimant
can
perform
considering h[er] age, education, and work experience.”
a
determination
of
disability
can
be
made
at
any
Commissioner need not analyze subsequent steps.
Id.
If
step,
the
See 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).
At
steps
1
and
2,
the
ALJ
found
that
Jackson
had
not
engaged in substantial gainful activity since the date of her
application
for
SSI
and
that
she
impairments,
including
functioning.
At step 3, the ALJ found that Jackson did not have
depression
suffered
from
and
diminished
severe
intellectual
an impairment that met or equaled one of the listed impairments
found at 20 C.F.R. Pt. 404, Subpt. P, App’x 1.
Finally, at
steps 4 and 5, the ALJ found that Jackson could return to her
past work as a housekeeper and that other jobs existed in the
national
economy
that
she
could
perform.
Based
on
these
findings, the ALJ denied her application for SSI, concluding
that
she
was
not
disabled
within
Security Act.
4
the
meaning
of
the
Social
Appeal: 10-2226
Document: 43
The
only
Date Filed: 02/23/2012
issue
on
appeal
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is
whether
the
ALJ
properly
evaluated Jackson’s case at the third step, which requires the
ALJ to identify the relevant listed impairments and compare the
listing criteria with the evidence of the plaintiff’s symptoms.
As grounds for reversal, Jackson argues that the ALJ erred by
concluding that her level of cognitive functioning did not meet
or equal the listed impairment for mental retardation, detailed
in Listing 12.05.
in
adaptive
Listing 12.05 requires a showing of “deficits
functioning
developmental
period;
initially
i.e.,
the
manifested
evidence
demonstrates
supports onset of the impairment before age 22.”
404, Subpt. P, App’x 1, § 12.05.
the
satisfaction
identified
as
of
one
Requirements
of
during
the
or
20 C.F.R. Pt.
Listing 12.05 also requires
four
A-D.
additional
At
issue
in
requirements
this
case
was
Requirement C, which requires “[a] valid verbal, performance, or
full scale IQ of 60 through 70,” as well as “a physical or other
mental impairment imposing an additional and significant workrelated limitation of function.”
The ALJ found that Jackson did not establish any of the
impairments
listed
in
Appendix
1,
including
Listing
12.05C.
Jackson argues that the ALJ erred with regard to this finding by
(1)
discrediting
Jackson’s
IQ
scores
without
sufficient
explanation, (2) ignoring substantial evidence indicating that
Jackson currently exhibits deficits in adaptive functioning and
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exhibited these deficits during her development period, and (3)
improperly relying on work history at the third step to deny
benefits.
We now consider whether substantial evidence existed
to support the ALJ’s findings with respect to Listing 12.05C.
III.
The record contains undisputed evidence that Jackson’s IQ
scores are within the 60 to 70 range as required for the first
prong of Listing 12.05C.
In an effort to satisfy this first
prong, Jackson submitted intelligence testing from a 2004 courtordered
psychological
evaluation.
The
examiner,
Mr.
Nunez,
reported that Jackson had a verbal IQ of 60, a performance IQ of
73, and a full scale IQ of 65.
In addition, school records from
Jackson’s childhood indicate a verbal IQ score of 67.
Jackson also satisfied the second prong of Listing 12.05C,
presence of a “physical or other mental impairment imposing an
additional and significant work-related limitation of function.”
20
C.F.R.
determined
Pt.
404,
that
Subpt.
Jackson
P.,
App’x
suffers
1,
from
§ 12.05.
severe
The
impairments
depression and diminished intellectual function.
ALJ
of
Moreover, the
evidence in the record reveals that Jackson has been diagnosed
by a number of clinicians as suffering from (1) major depressive
disorder
with
disorder,
and
psychotic
(4)
symptoms,
personality
(2)
psychosis,
disorder.
6
The
(3)
record
anxiety
is
also
Appeal: 10-2226
filled
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with
Date Filed: 02/23/2012
evidence
limitations
of
including
activities,
and
Jackson’s
marked
difficulties
Page: 7 of 10
significant,
restriction
in
of
maintaining
work-related
daily-living
social
function,
concentration, persistence, and pace.
To the extent that the ALJ based its determination on a
failure to satisfy the first two prongs of Listing 12.05C -- the
IQ-score requirement and the presence of another impairment –such a decision was not supported by substantial evidence.
such,
we
are
left
to
determine
whether
substantial
As
evidence
supports the finding that Jackson has failed to establish the
final deficits-in-adaptive-behavior requirement.
Deficits in adaptive functioning can include limitations in
areas
such
as
communication,
self-care,
home
living,
social/interpersonal skills, use of community resources, selfdirection,
and safety.
functional
academic
skills,
work,
leisure,
health,
Atkins v. Virginia, 536 U.S. 304, 309 n.3 (2002).
In support of this prong, Jackson submitted evidence that
she has deficiencies in the areas of functional academic skills,
social/interpersonal
skills
and
communication,
self-care,
safety, and health.
With respect to the area of functional
academic skills, Jackson testified that she was in special needs
classes, that she dropped out of school in the tenth grade, and
that she has been unable to obtain her GED.
Moreover, she reads
at a sixth-grade level, and her cognitive functioning has been
7
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evaluated
as
Date Filed: 02/23/2012
within
the
“mildly
Page: 8 of 10
mentally
retarded
range
of
intellectual functioning.”
In this case, the ALJ found no evidence of deficits in
Jackson’s adaptive functioning on the grounds that there was no
documentation to support her testimony that she was in special
education classes and that it found her testimony on the matter
to
be
incredible.
supported
by
Jackson
substantial
argues
evidence
that
in
this
the
finding
record
is
and
not
that
evidence submitted to the Appeals Council further contradicts
this finding.
During
the
ALJ
proceeding,
Jackson’s
representative
requested an extension of time to submit additional evidence in
support of these allegations, but was unable to obtain Jackson’s
school records prior to the ALJ ruling because of the age of the
records.
When Jackson did ultimately retrieve the report of the
special education review committee, she submitted a copy to the
Appeals Council.
School
District
These school records from the Freeport Public
indicate
that
Jackson
was
identified
special needs student as early as the seventh grade.
as
a
What is
more, they demonstrate that further academic testing during that
time showed Jackson to be severely deficient in her intellectual
abilities, and in particular, reported her as having a verbal IQ
of 67.
While the Appeals Council acknowledged receipt of the
records, it did not provide any explanation for discounting the
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records apart from summarily stating that it “found that this
information
does
not
provide
a
basis
for
changing
the
Administrative Law Judge’s decision.”
Not only did these forms provide documentation that the
ALJ’s decision was lacking and eliminate the ALJ’s very reason
for
denying
credibility
Jackson’s
of
claim,
Jackson’s
they
testimony.
also
reinforced
Moreover,
the
information
reflected in the school record is directly material to the final
prong
of
Listing
suffered
12.05C
--
“significantly
functioning
with
the
question
subaverage
deficits
in
of
whether
general
adaptive
Jackson
intellectual
behavior
initially
manifested during the developmental period . . . before age 22.”
20 C.F.R. Pt. 404, Subpt. P., App’x 1, § 12.05.
that
substantial
evidence
supports
the
We cannot say
finding
that
Jackson
failed to establish this prong where new and material evidence
submitted
to
findings
the
and
Appeals
underlying
Council
contradicts
reasoning,
and
the
both
the
Appeals
ALJ’s
Council
failed to provide any reason for disregarding this additional
evidence.
In
this
situation,
our
proper
disposition
is
to
remand pursuant to sentence six of § 405(g) which authorizes a
remand
upon
a
showing
of
new
material
405(g).
9
evidence.
42
U.S.C.
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IV.
For the reasons above, we remand the case for consideration
of the new and material evidence.
REMANDED
10
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