Trotter v. Social Security Administration, Commissioner
Filing
15
MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 6/20/18. (MRR, )
FILED
2018 Jun-20 PM 04:22
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ELOISE D. TROTTER,
Plaintiff,
vs.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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Case No. 2:17-cv-364-TMP
MEMORANDUM OPINION
I.
Introduction
The plaintiff, Eloise D. Trotter, appeals from the decision of the Commissioner
of the Social Security Administration (ACommissioner@) denying her application for
Disability Insurance Benefits (ADIB@) and Supplemental Security Income (ASSI@).
Ms.
Trotter timely pursued and exhausted her administrative remedies, and the decision of
the Commissioner is ripe for review pursuant to 42 U.S.C. '' 405(g), 1383(c)(3). The
parties have consented to the jurisdiction of the undersigned magistrate judge pursuant
to 28 U.S.C. ' 626(c). Accordingly, the court enters this memorandum opinion.
Page 1 of 16
Ms. Trotter filed her application for benefits on November 14, 2011. She was 51
years old at the time of the Administrative Law Judge’s (“ALJ’s”) final decision, and she
has a high school education, with special education classes, and community college
training as a nursing assistant. (Tr. at 25, 53-55). Her past work experience includes
work as a day care worker and hospital cleaner. (Tr. at 575). Ms. Trotter claims that
she became disabled on February 24, 2010, and has asserted that she is mildly mentally
retarded. (Tr. at 153). Ms. Trotter received disability payments beginning in 1993,
based upon her diagnosis of mental retardation (tr. at 446) and pursuant to Sullivan v.
Zebley, 493 U.S. 521, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990), which required the
Commissioner to consider the functionality of the recipient of childhood disability
claims, rather than focusing solely on whether the child met or equaled an SSA listing.
In granting benefits in 1993, the SSA found that Ms. Trotter’s “I.Q. testing done at age
27 remains valid to date and represents a true estimate of her intellectual functioning.”
(Tr. at 447).
Under the Sullivan decision, a child can receive disability benefits by
showing that his impairment is as severe as one that would prevent an adult from
working. 493 U.S. at 541.
In Ms. Trotter’s case, the Commissioner continued disability payments to her for
seventeen years, after further determining that the claimant had not shown any medical
improvement. (Id.) Disability payments ceased in 2010, however, based upon the fact
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that Ms. Trotter engaged in substantial gainful activity by working at Brookwood
Hospital cleaning hospital rooms for about two years. She was fired from that job
because she wasn’t able to “keep up.” (Tr. at 477). She attempted to find other jobs,
but was unable to pass any written tests. (Tr. at 56-57).
Ms. Trotter filed the application for benefits at issue here in 2011. She was
initially denied, and then sought and received a hearing. (Tr. at 33-76). The ALJ
issued an unfavorable decision on September 13, 2013 (tr. at 108-19), from which Ms.
Trotter appealed. The Appeals Council vacated the ALJ’s decision and remanded the
matter for further evaluation of the plaintiff ’s mental impairment. (Tr. at 125-26). A
second hearing was held on July 14, 2015. (Tr. at 545-83).
The ALJ issued a second
unfavorable decision on August 18, 2015 (tr. at -16-27), from which Ms. Trotter
appealed. The Appeals Council denied review, and this appeal followed.
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process.
See 20 C.F.R.
'' 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The
first step requires a determination of whether the claimant is “doing substantial gainful
activity.” 20 C.F.R. '' 404.1520(a)(4)(i), 416.920(a)(4)(i). If she is, the claimant is not
disabled and the evaluation stops. Id. If she is not, the Commissioner next considers
the effect of all of the physical and mental impairments combined.
Page 3 of 16
20 C.F.R.
'' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These impairments must be severe and must
meet the durational requirements before a claimant will be found to be disabled. Id.
The decision depends upon the medical evidence in the record. See Hart v. Finch, 440
F.2d 1340, 1341 (5th Cir. 1971). If the claimant’s impairments are not severe, the
analysis stops.
20 C.F.R. '' 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
Otherwise, the
analysis continues to step three, which is a determination of whether the claimant’s
impairments meet or equal the severity of an impairment listed in 20 C.F.R. pt. 404,
Subpart P, Appendix 1. 20 C.F.R. '' 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
claimant’s impairments fall within this category, she will be found disabled without
further consideration. Id. If she does not, a determination of the claimant’s residual
functional capacity (“RFC”) will be made and the analysis proceeds to the fourth step.
20 C.F.R. '' 404.1520(e), 416.920(e). Residual functional capacity is an assessment
based on all relevant evidence of a claimant’s remaining ability to do work despite his or
her impairments. 20 C.F.R. ' 404.1545(a).
The fourth step requires a determination of whether the claimant’s impairments
prevent her from returning to past relevant work. 20 C.F.R. '' 404.1520(a)(4)(iv),
416.920(a)(4)(iv). If the claimant can still do her past relevant work, the claimant is not
disabled and the evaluation stops. Id. If the claimant cannot do past relevant work,
then the analysis proceeds to the fifth step. Id. Step five requires the court to consider
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the claimant’s RFC, as well as the claimant’s age, education, and past work experience, in
order to determine if she can do other work.
20 C.F.R. '' 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can do other work, the claimant is not disabled. Id.
The burden of demonstrating that other jobs exist which the claimant can perform is
on the Commissioner; and, once that burden is met, the claimant must prove her
inability to perform those jobs in order to be found to be disabled. Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that Ms. Trotter has
not been under a disability within the meaning of the Social Security Act from the date
of her application (November 14, 2011) through the date of her decision (August 18,
2015). (Tr. at 27). She determined that Ms. Trotter has not engaged in substantial
gainful activity since the alleged onset of her disability. (Tr. at 18). According to the
ALJ, claimant’s obesity, osteoarthritis of the right knee, borderline intellectual
functioning, and dysthymic disorder are considered “severe” based on the requirements
set forth in the regulations. (Id.) She further determined that these impairments
neither meet nor medically equal any of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. at 19-20). More specifically, the ALJ determined that the
severity of the osteoarthritis, singly or in combination with other impairments, does not
meet or medically equal Listing 1.02. (Id.) She further determined that Ms. Trotter’s
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“mental impairments,” considered singly and in combination with other impairments,
did not meet or medically equal Listings 12.02 or 12.04. (Id.)
The ALJ considered
whether the criteria of “paragraph B” were met, but determined that the claimant’s
mental impairments did not cause at least two “marked” limitations, and did not result
in “repeated” episodes of decompensation of extended duration. The ALJ went on to
evaluate the “paragragh C” criteria, finding that the claimant had not demonstrated the
“inability to function” outside of a highly supportive living arrangement for a year or
more, and had not shown the evidence of, or likelihood of, repeated decompensation
episodes that would satisfy the “paragraph C” requirements. (Tr. at 20). Based upon
this finding, the ALJ continued to the fourth step of the analysis.
The ALJ found Ms. Trotter’s allegations to be “not entirely credible” (tr. at 21),
and she determined that the claimant has the residual functional capacity to perform a
limited range of light work. (Tr. at 21). The ALJ found that the claimant should be
subject to the following limitations: she can occasionally lift and/or carry 20 pounds
and frequently lift and/or carry 10 pounds; she can sit for six hours in an eight-hour
work day and stand/walk for six hours in and eight-hour workday; she should never
climb ladders, ropes, or scaffolds, but can occasionally balance, stoop, or crouch; she
can understand, remember, and carry out simple instructions; can maintain attention
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and concentration for two-hour periods; can adapt to routine and infrequent workplace
changes; and can have only occasional interactions with the public. (Tr. at 21).
According to the ALJ, Ms. Trotter is unable to perform any past relevant work;
she was a “younger individual age 18-49” at the date of onset, she has at least a high
school education, and she is able to communicate in English. (Tr. at 25).
She
determined that transferability of skills is not material to the determination of disability
in this case because her past work was unskilled. (Id.) The ALJ found that there are a
significant number of jobs in the national economy that Ms. Trotter is capable of
performing, such as production assembler, small products assembler, and
cutlery/hardware worker. (Tr. at 26).
The ALJ concluded her findings by stating that
the claimant is “not disabled” under the Social Security Act. (Id.)
II.
Standard of Review
This court’s role in reviewing claims brought under the Social Security Act is a
narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See Richardson
v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002).
The court approaches the factual findings of the Commissioner with
deference, but applies close scrutiny to the legal conclusions. See Miles v. Chater, 84 F.3d
Page 7 of 16
1397, 1400 (11th Cir. 1996). The court may not decide facts, weigh evidence, or
substitute its judgment for that of the Commissioner. Id. AThe substantial evidence
standard permits administrative decision makers to act with considerable latitude, and
>the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency=s finding from being supported by substantial
evidence.=@ Parker v. Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting)
(quoting Consolo v. Fed. Mar. Comm=n, 383 U.S. 607, 620 (1966)). Indeed, even if this
Court finds that the evidence preponderates against the Commissioner=s decision, the
Court must affirm if the decision is supported by substantial evidence. Miles, 84 F.3d
at 1400. No decision is automatic, however, for Adespite this deferential standard [for
review of claims] it is imperative that the Court scrutinize the record in its entirety to
determine the reasonableness of the decision reached.@ Bridges v. Bowen, 815 F.2d 622,
624 (11th Cir. 1987). Moreover, failure to apply the correct legal standards is grounds
for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III.
Discussion
Ms. Trotter asserts that the ALJ=s decision should be reversed and remanded
because the ALJ: (1) failed to give proper weight to her examining sources= opinions,
(2) failed to properly apply the medical improvement standard, (3) failed to evaluate the
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severity of the impairments in combination, and (4) did not rely on substantial evidence
to support the finding that plaintiff=s impairments did not meet or equal any Listing.
(Doc. 10, p. 1). The Commissioner asserts that the ALJ properly evaluated the medical
evidence, evaluated the claimant=s impairments in combination, was not required to
apply the medical improvement standard, and reached a conclusion that is supported by
law. (Doc. 11). While the court does not find the plaintiff=s specific arguments
persuasive, the court nevertheless finds that the ALJ made an error in application of the
law that requires remand.
The ALJ properly found at steps one and two that Ms. Trotter had not engaged
in substantial gainful activity since her date of onset, and that she had severe
impairments. The court thus begins with an examination of the ALJ=s finding, reached
at step three of the evaluative process, that Ms. Trotter’s impairments did not meet or
equal any Listing.
As discussed supra, the ALJ examined in some detail the
requirements of Listing 1.02 as it related to her knee osteoarthritis, and Listings 12.02
and 12.04 as they related to her mental impairment. However, the ALJ did not address
the claimant’s diagnosis of mild mental retardation, supported by IQ scores of 70 or
less, except in relation to Listings 12.02 and 12.04. The ALJ failed to consider or even
to mention the mental retardation criteria contained in Listing 12.05, despite the fact
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that her mild mental retardation had provided a basis for the receipt of benefits from
1993 until 2010.1
To “meet” a listing at the third step of the analysis, the claimant must have an
impairment that “satisfies all of the criteria of that listing” and meets the durational
requirements.
20 C.F.R. '' 404.1524(c)(3), 416.925(c)(3).
Under Listing 12.05,
the ALJ must first determine whether the claimant has “significantly subaverage
intellectual functioning with deficits in adaptive functioning initially manifested during
the developmental period; i.e., the evidence demonstrates or supports onset of the
impairment before age 22.” 2
Listing 12.05C further provides that “[t]he required level
of severity for this disorder is met when the evidence demonstrates . . . [a] valid verbal,
1
In August of 2013, the SSA amended Listing 12.05 and replaced the words “mental
retardation” with “intellectual disability,” recognizing the pejorative and offensive connotations that
had come to be associated with the impairment. However, the change in terminology did not “affect
the actual medical definition of the disorder.” 78 Fed. Reg. 46,4999, 46,501. Because Ms. Trotter’s
application predates this change, the court uses the term “mental retardation” rather than “intellectual
disability to be consistent with the terminology of the Listing at the time of her application.
2
It has been noted that “absent evidence of sudden trauma that can cause retardation” an
IQ test demonstrating retardation creates “a rebuttable presumption of a fairly constant IQ
throughout [] life.” Hodges v. Barnhart, 276 F.3d 1265, 1268B69 (11th Cir. 2001) (citing Muncy v. Apfel,
247 F.3d 728, 734 (8th Cir. 2001) (“Mental retardation is not normally a condition that improves as an
affected person ages. . . . Rather, a person’s IQ is presumed to remain stable over time in the absence of
any evidence of a change in a claimant’s intellectual functioning.”); Luckey v. U.S. Dept. of Health &
Human Servs., 890 F.2d 666, 668 (4th Cir.1989) (holding absence of IQ test in developmental years did
not preclude finding of mental retardation predating age 22 and courts should assume an IQ remained
constant absent evidence indicating change in intellectual functioning).
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performance or full scale IQ of 60 through 70 and a physical or other impairment
imposing an additional and significant work-related limitation of function.
Listing 12.05C.”3
3
Listing 12.05 was substantially re-written by the Social Security Administration,
effective January 17, 2017. See 81 FR 66178, at 66167. The Commissioner agrees, however, that the
2017 version does not apply to the decision made with respect to the claimant’s disability. That
decision was made under pre-existing Listings. In effect at the time of the ALJ’s decision was the
following version of Listing 12.05:
12.05 Intellectual Disability: Intellectual disability refers to significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e. the evidence demonstrates or
supports onset of impairment before age 22.
The required level of severity for this disorder is met when the requirements in
A, B, C, or D are satisfied.
A. Mental incapacity evidenced by dependence upon others for personal
needs (.e.g. toileting, eating, dressing, or bathing) and inability to follow directions,
such that the use of standardized measures of intellectual functioning is precluded;
OR
B. A valid verbal, performance, or full scale IQ of 59 or less;
OR
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or mental impairment imposing an additional and significant work-related
limitation of function;
OR
D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in
at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each for extended duration.
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The Eleventh Circuit Court of Appeals has held that Listing 12.05C generally is
met “when the claimant presents a valid I.Q. score of 60 to 70 inclusive, and evidence
of an additional mental or physical impairment that has more than ‘minimal effect’ on
the claimant’s ability to perform basic work activities.” Monroe v. Comm=r of Soc. Sec., 504
F. App=x 808, 810 (2013) (quoting Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992)).
A claimant is conclusively presumed to be disabled if she meets or equals the level of
severity of a listed impairment. Perkins v. Comm’r, Soc. Sec. Admin., 553 F. App=x
870,872(11th Cir. 2014) (quoting Crayton v. Callahan, 120 F.3d 1217, 1219 (11th
Cir. 1997)). The appellate court has described the step-three analysis required by
Listing 12.05 as follows:
To meet listing 12.05 (“intellectual disability”), “a claimant must at least
(1) have significantly subaverage general intellectual functioning; (2) have
deficits in adaptive behavior; and (3) have manifested deficits in adaptive
behavior before age 22.” Crayton, 120 F.3d at 1219. These requirements
are referred to as the listing’s “diagnostic criteria.” See 20 C.F.R. pt. 404,
subpt. P, app. 1, ' 12.00 (“Listing 12.05 contains an introductory
paragraph with the diagnostic description for [intellectual disability].”) In
addition to satisfying the diagnostic criteria, a claimant must meet one of
the four severity requirements in paragraphs A through D of the listing.
See id. ' 12.05. Under paragraph C, the only paragraph at issue here, a
claimant must show that she has both “[a] valid verbal, performance, or
full scale IQ of 60 through 70 and a physical or other mental impairment
imposing an additional and significant work-related limitation of
function.”
Page 12 of 16
A valid IQ score of 60 to 70 satisfies the first prong of paragraph C and
creates a rebuttable presumption that the claimant satisfies the diagnostic
criteria for intellectual disability. See Hodges v. Barnhart, 276 F.3d 1265,
1268B69 (11th Cir. 2001). At the same time, it is well established that
such a presumption does not arise where a qualifying IQ score is
inconsistent with other record evidence concerning her daily activities and
behavior. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (citing Popp
v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986)). But once the ALJ
accepts an IQ score as valid and finds that the claimant’s impairments
meet or medically equal the other criteria of listing 12.05C, the disability
determination cannot be based on the claimant’s age, education, or work
experience. Id.
In sum, a claimant proves that she meets listing 12.05C by establishing the
diagnostic criteria for intellectual disability, including deficits in adaptive
functioning; showing onset before age 22; producing a valid, qualifying IQ
score; and exhibiting the requisite deficits in work-related functioning.
Frame v. Comm'r, Soc. Sec. Admin., 596 F. App’x 908, 910B11 (11th Cir. 2015).
While the ALJ is permitted to consider evidence that is inconsistent with a
finding of mental retardation, an ability to perform work for several years does not
rebut mental retardation where “there is no evidence that [the job held is] beyond the
reach of a mildly retarded individual.” Durham v. Apfel, 34 F. Supp. 2d 1373, 1380
(N.D. Ga. 1998). Moreover, a finding that a claimant worked in the past, and even that
a claimant could return to her past work, does not preclude an award of benefits where
the claimant meets or equals a Listing. Durham, 34 F. Supp. 2d at 1381.
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In this case, Ms. Trotter has presented evidence of IQ scores that meet the
12.05C requirement, and those scores were accepted as valid by the Commissioner in
1993. Although a more recent examining physician described Ms. Trotter’s intellectual
functioning as “borderline,” there is no indication in the record that any treating or
examining physician disputed the validity of the IQ scores. 4 Indeed, there is no
indication in the record that Ms. Trotter has undergone additional IQ testing that might
dispute the 1993 scores. The IQ scores are supported by Ms. Trotter’s history of
special education courses, and the corroborated testimony that she can barely read,
cannot write a check, failed an pre-employment test at Children’s Hospital, and has
never been able to pass a written driver’s exam, despite repeated attempts. She became
employed at Brookwood Hospital as a room cleaner only because no pre-employment
test was required. The IQ scores are not supported by her own testimony that she
received a certificate as a nursing assistant from a community college; however, she was
never able to find employment in any position requiring those skills, and has worked
only in cleaning hospital rooms and sitting with children in a day-care setting.
4
To the extent that the ALJ relied upon the consulting examination of Stephen D.
Dobbs, Ph. D., it should be noted that Dr. Dobbs relied upon the opinions of Cynthia Neville, who
was not a treating physician, and that the examination revolved around the application of Listings
12.02 and 12.04, but not 12.05C. (Tr. at 79-90). It appears that there has never been a consultative
examiner tasked with determining whether the plaintiff meets or medically equals Listing 12.05C.
Page 14 of 16
Given all of the evidence that was presented to the ALJ, an examination of
whether Listing 12.05C applied to Ms. Trotter was necessary before the ALJ could
move to the analysis of step four or step five. See, e.g., Tubbs v. Berryhill, No. 15-00597-B,
2017 WL 1135234, at *5 (S.D. Ala. 2017). Ms. Trotter was thus entitled to a rebuttable
presumption of mental retardation. At step three, if the claimant’s IQ scores below 71
have not been shown to be invalid, the ALJ must next determine whether her other
impairments cause “significant work-related limitations.” Listing 12.05C. In this
case, the ALJ has determined that Ms. Trotter has “other impairments” of obesity,
osteoarthritis of the right knee, and dysthymic disorder. 5
(Tr. at 18).
Such
impairments are deemed to impose Aadditional and significant work-related limitation
of function@ when the effect of the impairments is Amore than slight or minimal.@
Cobb v. Barnhart, 296 F. Supp. 2d 1295, 1297 (N.D. Ala. 2003) (quoting Edwards by
Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985) (finding that Asignificant@ is less
stringent than Asevere@ within the SSA regulations). In this case, the ALJ’s opinion
specifically stated that Ms. Trotter’s “impairments constitute more than a slight
abnormality” and have “more than a minimal effect on the claimant=s ability to perform
The Mayo Clinic defines dysthymia as “Persistent depressive disorder, also called
dysthymia (dis-THIE-me-uh), is a continuous long-term (chronic) form of depression.”
https://www.mayoclinic.org/diseases-conditions/persistent-depressive-disorder/symptoms-causes/
syc-20350929 (as viewed June 20, 2018).
5
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basis activities.” (Tr. at 18). Given this finding, coupled with the ALJ’s awareness of
Ms. Trotter’s 1993 IQ scores, there is no readily apparent reason from the ALJ’s decision
for why she did not consider disability under Listing 12.05. Because the ALJ failed to
examine whether Ms. Trotter met or equaled Listing 12.05C based on her intellectual
functioning in combination with her other severe impairments, the matter is due to be
remanded for consideration on that basis.
IV.
Conclusion
Upon review of the administrative record, and considering the law applicable to
these issues, the Commissioner=s decision is due to be reversed, and the case is due to be
remanded to the ALJ for consideration of whether the plaintiff meets or equals
Listing 12.05C.
DATED the 20th day of June, 2018.
_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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