Merriott v. Commissioner of Social Security Administration

Filing 22

ORDER that Plaintiff's case is DISMISSED and the Clerk of Court shall enter judgment. Signed by Magistrate Judge Lynnette C Kimmins on 7/26/2018. (MCO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alicia Merriott,

No. CV-17-00138-TUC-LCK
Plaintiff,

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v.

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ORDER

Nancy A. Berryhill,

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Defendant.

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Plaintiff Alicia Merriott filed this action pursuant to 42 U.S.C. § 405(g) seeking

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judicial review of a final decision by the Commissioner of Social Security

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(Commissioner). (Doc. 1.) Before the Court are Merriott’s Opening Brief, Defendant’s

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Responsive Brief, and Merriott’s Reply. (Docs. 14, 15, 17.) The parties have consented to

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Magistrate Judge jurisdiction. (Doc. 21.) Based on the pleadings and the administrative

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record, the Court affirms the Commissioner’s decision.

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PROCEDURAL HISTORY

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Merriott filed an application for Supplemental Security Income (SSI) on March

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26, 2013. (Administrative Record (AR) 181.) She alleged disability from December 15,

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2008. (Id.) Merriott’s application was denied upon initial review (AR 95-106) and on

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reconsideration (AR 107-21). A hearing was held on October 26, 2015 (AR 59-93), after

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which an ALJ found that Merriott was not disabled because she could perform work

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available in the national economy (AR 22-33). The Appeals Council denied Merriott’s

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request to review the ALJ’s decision. (AR 1.)

FACTUAL HISTORY

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Merriott was born on September 19, 1976, making her 36 years of age at the time

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her SSI application was submitted. (AR 181.) Merriott left school after eighth grade. (AR

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202.) She has been employed twice, for a few months each time, in 2007 and 2008. (AR

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203, 263.)

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The ALJ found Merriott had one severe impairment, affective disorder. The ALJ

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determined Merriott had the RFC to perform work at all exertional levels limited to

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occupations that do not require complex written or spoken communication; simple,

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routine, repetitive tasks that can be learned hands-on or by observation; and only

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occasional interaction with coworkers and the public. (AR 26.) Based on the testimony of

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a vocational expert, the ALJ concluded that Merriott could perform work that exists in

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significant numbers in the national economy. (AR 33.) In particular, she could work as a

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janitor/cleaner, assembler, and dishwasher/kitchen helper. (Id.)
STANDARD OF REVIEW

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The Commissioner employs a five-step sequential process to evaluate SSI claims.

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20 C.F.R. § 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To

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establish disability the claimant bears the burden of showing she (1) is not working;

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(2) has a severe physical or mental impairment; (3) the impairment meets or equals the

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requirements of a listed impairment; and (4) claimant’s RFC precludes her from

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performing her past work. 20 C.F.R. § 416.920(a)(4). At Step Five, the burden shifts to

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the Commissioner to show that the claimant has the RFC to perform other work that

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exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071,

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1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or

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“not disabled” at any point in the five-step process, she does not proceed to the next step.

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20 C.F.R. § 416.920(a)(4).

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“The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

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Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings

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of the Commissioner are meant to be conclusive if supported by substantial evidence. 42

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U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a

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preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v.

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Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The Court may overturn the decision to

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deny benefits only “when the ALJ’s findings are based on legal error or are not supported

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by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033,

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1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must

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resolve conflicts in the evidence, and if the evidence can support either outcome, the

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court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019

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(quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc.

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Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner’s decision,

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however, “cannot be affirmed simply by isolating a specific quantum of supporting

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evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence

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that supports as well as detracts from the Commissioner’s conclusion. Day v.

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Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION

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Merriott argues the ALJ committed three errors: (1) she failed to consider an

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examining psychologist’s opinion and test results; (2) she failed to consider whether

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Merriott met Listing 12.05C; and (3) she failed to develop the record regarding Merriott’s

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cognitive abilities.

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Examining Psychologist

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Merriott argues that the ALJ failed to mention the opinion of psychologist Dee

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Winsky, Ph.D. Dr. Winsky examined Merriott on February 7, 2013, in conjunction with a

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CPS case. She found evidence of PTSD, anxiety, ADHD, and dementia with

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corresponding memory deficits. (AR 307.) She tested Merriott and concluded she fell in

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the intellectually deficient range, reading at a fifth grade level. (Id.) And, on the Basic

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Personality Inventory, Merriott scored high for a Thinking Disorder, indicating she was

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“markedly confused, distractible and disorganized”; and she “cannot remember even

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simple things day to day.” (Id.)

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Under the regulations, medical opinions are “judgments about the nature and

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severity of your impairments(s), including your symptoms, diagnosis and prognosis, what

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you can still do despite your impairment(s) and your physical and mental restrictions.” 20

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C.F.R. § 416.927(a)(1). The ALJ was required to evaluate the portions of Dr. Winsky’s

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report that qualified as medical opinion and failed to do so. 20 C.F.R. § 416.927(b) & (c)

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(“we will always consider the medical opinions in your case record”; “we will evaluate

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every medical opinion we receive.”) Defendant argues any error was harmless. Thus, the

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Court evaluates the record as a whole to determine if the error would alter the outcome of

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Merriott’s case; if not, the error is harmless. Molina v. Astrue, 674 F.3d 1104, 1115 (9th

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Cir. 2012) (finding error harmless if it was “inconsequential to the ultimate nondisability

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determination”) (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 553 F.3d 1155, 1162

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(9th Cir. 2008)).

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Merriott argues that if the ALJ had credited Dr. Winsky’s opinion, she would have

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determined Merriott was markedly limited in both activities of daily living and

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concentration, persistence and pace. First, with respect to activities of daily living, Dr.

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Winsky offered a “somewhat guarded” prognosis of Merriott’s ability to parent her

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children but concluded that if she continued with the case plan and substance abstinence

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she might be able to regain custody. (AR 309.) Merriott subsequently regained custody of

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her children. Dr. Winsky provided no other “opinion” on Merriott’s limitations in

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activities of daily living. Even if the ALJ had weighed Dr. Winsky’s report, it did not

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necessitate a finding of marked limitations in activities of daily living. The other medical

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opinion evidence of record, which the ALJ gave great weight, found only mild and

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moderate limitations in activities of daily living. (AR 99, 114.)

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Second, Dr. Winsky found Merriott had limited cognitive abilities and early signs

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of dementia, including memory deficits, confusion, and inability to remember things day

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to day. (AR 307.) Dr. Winsky did not offer a direct opinion on Merriott’s limitations in

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concentration, persistence, and pace. She found that Merriott scored high in distractibility

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(AR 307) but stated that Merriott actively participated during the interview (although she

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became fatigued) (AR 303). It is not evident that the ALJ would have founded a marked

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limitation after considering Dr. Winsky’s opinion. The other medical opinion evidence of

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record, which the ALJ gave great weight, found moderate limitations in concentration,

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persistence, and pace. (AR 114, 332.)

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The ALJ gave great weight to other examining and reviewing physicians who

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identified Merriott as having cognitive limitations. Dr. Sticken found Merriott had mild

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cognitive impairment based on an MMSE score of 22/30, and she noted difficulty in

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maintaining attention and severely compromised delayed recall. (AR 329.) Dr. Marks

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diagnosed ADHD rule out borderline intellectual functioning (and OCD rule out

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borderline intellectual functioning). (AR 428-29.) He noted that Merriott had attentional

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difficulty, which could be a symptom of lower intellectual functioning. (AR 429.) Dr.

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Marks concluded Merriott could learn hands-on work that was simple and repetitive, if

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the tasks did not require high-level cognition. (AR 430.) Similarly, Dr. CCG found

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Merriott had marked limitations in responding to detailed instructions and limited her to

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simple tasks. (AR 116, 118.) The ALJ incorporated these limitations by restricting

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Merriott to occupations that do not require complex written or spoken communication but

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only require simple, routine, repetitive tasks that can be learned hands-on or by

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observation. (AR 26.)

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The ALJ’s RFC incorporated three medical opinions that Merriott had cognitive

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impairments, including limitations in attention and ability to handle more than simple

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instructions or tasks. If the ALJ had considered the opinion of Dr. Winsky it would not

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have altered his findings that incorporated similar findings by other doctors. Therefore,

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the error was harmless.

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Listing 12.05C

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Merriott argues that her test results implicated Listing 12.05C, and the ALJ erred

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in not evaluating whether she could meet or equal this listing. Listing 12.05C requires:

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“A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other

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mental impairment imposing an additional and significant work-related limitation of

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function.” Additionally, all subsets of Listing 12.05 are based on “significantly

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subaverage general intellectual functioning with deficits in adaptive functioning initially

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manifested during the developmental period; i.e., the evidence demonstrates or supports

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onset of the impairment before age 22.”

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Merriott concedes that, based on the lack of full-scale IQ score in the record, she

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did not meet Listing 12.05. However, she contends the ALJ could have found the listing

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was equaled.1 Although the ALJ did not find that Merriott had an intellectual disorder at

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Step 2, there are several medical opinions indicating an intellectual deficit. (AR 307

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(intellectually deficient range of ability), AR 329 (mild cognitive impairment), AR 428-

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29 (rule out borderline intellectual functioning).) For an impairment listed in the

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appendix (such as 12.05 intellectual disorder), if the claimant does not exhibit one of the

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findings or does exhibit the finding but not at the required level of severity, equivalence

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will be met if the claimant has “other findings related to your impairment that are at least

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of equal medical significance to the required criteria.” 20 C.F.R. § 416.926(b)(1).

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Merriott argues that she satisfies equivalence based on her borderline intellectual

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functioning and mental impairment. (Doc. 14 at 15.)

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Under the DSM-IV, borderline intellectual functioning was defined by an IQ of 71

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to 84. Am. Psych. Ass’n, Diagnostic & Statistical Manual of Mental Disorders 48 (4th ed.

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2000).2 Even if Merriott met the criteria for a borderline intellectual functioning

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Merriott argues that when a claimant posits a plausible theory for equaling a
listing, the ALJ must evaluate that possibility. See Lewis v. Apfel, 236 F.3d 503, 514 (9th
Cir. 2001) (concluding the claimant’s impairments did not equal a listing). Merriott
argues the ALJ erred in not assessing Listing 12.05C equivalence. In the pre-hearing
brief, Merriott argued that “[w]ith an appropriate full scale IQ exam, listing 12.05 should
be considered.” (AR 297-98.) Thus, Merriott argued she could meet Listing 12.05 (with a
full scale IQ test), but did not argue that her impairments “equaled” a listing in severity.
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The DSM-V, published in 2013, removed the IQ boundaries for a diagnosis of
borderline intellectual functioning.
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diagnosis, which the ALJ did not find at Step Two,3 Listing 12.05C requires an IQ below

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the 71 start value of the borderline intellectual functioning range. Merriott argues there is

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a correlation between Shipley scores (a test administered by Dr. Winsky) and IQ scores.

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However, Dr. Winsky did not report Merriott’s Shipley score (merely the range), and

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there is no record evidence, nor argument, demonstrating how that range would correlate

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to an IQ number. The ALJ acknowledged that medical opinions found Merriott had

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cognitive limitations, including a score of 22/30 on the MMSE (suggesting only mild

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impairment). However, Merriott has not established equivalence of the stated IQ range

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under 12.05C.

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Further, there is not sufficient record evidence to establish the onset of a cognitive

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impairment prior to age 22. The only relevant evidence is that Merriott reads at a fifth

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grade level, received special education services, and left school after eighth grade. (AR

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82, 306, 307.) The administrative record contains no school records or testing and no

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opinion evidence of Merriott’s abilities prior to age 22. There is evidence to undermine

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an assumption that any cognitive defects were present during Merriott’s developmental

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period. Record evidence indicates that Merriott’s limited education and/or cognitive

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deficits may be connected to her drug use. Merriott acknowledged that she began using

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drugs at 13 and left school after falling behind due to ongoing drug use in eighth grade.

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(AR 303, 306.) Also, Dr. Winsky indicated Merriott may have suffered brain damage due

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to her extended drug use, which might be the source of her cognitive problems. (AR 309.)

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Based on the record before the ALJ, she did not err in her conclusion that

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Merriott’s impairments did not equal Listing 12.05C. See Didway v. Astrue, 303 F. App’x

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553, 554 (9th Cir. 2008).

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Record Development

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Merriott argues there was record evidence of her cognitive impairments.

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Specifically, that she scored in the intellectually deficient range on the Shipley Institute

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of Living Scale, reads at a fifth grade level, and scored 22/30 on the MMSE. Merriott

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The ALJ included limitations in Merriott’s RFC that reflect cognitive deficits.
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argues that she may have met Listing 12.02 or 12.05 if the ALJ had obtained full-scale IQ

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scores. Therefore, the ALJ erred in not requesting IQ testing.

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In the pre-hearing brief, Merriott requested post-hearing development if there was

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not sufficient evidence to decide in her favor. (AR 293.) At the hearing, Merriott’s

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counsel indicated that she was seeking cognitive testing but that it had not been

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scheduled. (AR 63.) Counsel requested that the ALJ consider whether further

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development was required. (AR 64.) However, an ALJ must obtain additional evidence

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only when she determines the record is ambiguous or is not adequate to allow her to

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evaluate the evidence. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001).

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Merriott does not address the specific requirements of Listings 12.02 and 12.05 to

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support her argument that she could meet either one with a valid IQ score. Listing 12.02,

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Organic Mental Disorders (as it existed in January 2016), does not require an IQ score.

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However, it does employ the paragraph B criteria, which the ALJ found were not met as

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to other listings. For those reasons, the ALJ did not err in failing to obtain an IQ test in

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order to evaluate Listing 12.02.

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Listing 12.05 requires a valid IQ score. However, it also requires evidence of onset

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during the developmental period, or before age 22. As discussed above, there is very

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sparse record evidence to satisfy that criteria. Merely obtaining an IQ score would be

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insufficient to satisfy Listing 12.05 because Merriott did not submit evidence of onset

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prior to age 22.

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The ALJ took Merriott’s cognitive limitations, as determined by several medical

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opinions, into account when formulating her RFC. Those opinions were consistent with

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Dr. Winsky’s opinion and did not create ambiguity regarding Merriott’s functional

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abilities. Because a full-scale IQ score would not have altered the ALJ’s analysis of

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Listing 12.02 and 12.05, development of the record to obtain such testing was not

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required.

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CONCLUSION

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A federal court may affirm, modify, reverse, or remand a social security case. 42

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U.S.C. ' 405(g). The Court concludes the ALJ did not err as to any of the claims raised

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by Merriott. Therefore, Merriott is not entitled to relief and her appeal is denied.

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Accordingly,

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IT IS ORDERED that Plaintiff’s case is DISMISSED and the Clerk of Court

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shall enter judgment.
Dated this 26th day of July, 2018.

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