Garrett v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on May 30, 2013. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
SHERRY GARRETT

v.

PLAINTIFF

CASE NO.

12-2025

CAROLYN W. COLVIN1, Commissioner
of Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision
of the Commissioner of Social Security Administration (Commissioner) denying his claim for a
period of disability and disability insurance benefits (DIB) and supplemental security income
(“SSI”) under Title II of the Social Security Act (Act), 42 U.S.C. § 423(d)(1)(A). In this judicial
review, the court must determine whether there is substantial evidence in the administrative
record to support the Commissioner’s decision. See 42 U.S.C. § 405(g).

I. Procedural Background:
The plaintiff filed her applications for DIB and SSI on May 19, 2009, alleging an onset
date of December 22, 2008, due to plaintiff’s Broken Ankle (T. 123). Plaintiff’s applications
were denied initially and on reconsideration. Plaintiff then requested an administrative hearing,
which was held on July 27, 20102. Plaintiff was present and represented by counsel.

1

Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner Michael
J. Astrue as the defendant in this suit.
2

Note that Tr. 414-416, and 418-419 are missing from the transcript.

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At the time of the administrative hearing, plaintiff was 40 years of age and possessed a
12th grade education. The Plaintiff had past relevant work (“PRW”) experience as a cook and
line worker. (T. 124). Also, it appears that at the time of the hearing the Plaintiff attorney raised
the issue of the Plaintiff’s IQ and requested a Consultive Examination on that issue. T. 417.
On March 11, 2011, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s osteoarthritis of the right ankle, chronic low back pain, obesity, somatization
disorder vs. conversion disorder, borderline intellectual functioning/mild mental retardation and
alcohol abuse did not meet or equal any Appendix 1 listing. T. 12. The ALJ found that plaintiff
maintained the residual functional capacity (“RFC”) to perform sedentary work with additional
limitations. T. 13. With the assistance of a vocational expert, the ALJ then determined Plaintiff
could perform the requirements of representative occupation such as lamp shade assembler,
compact assembler, and shoe buckler and lacer. T. 19.
II. Applicable Law:
This court's role is to determine whether the Commissioner's findings are supported by
substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining
the record to find substantial evidence in support of the ALJ’s decision; we also consider
evidence in the record that fairly detracts from that decision.” Id. As long as there is substantial
evidence in the record to support the Commissioner’s decision, the court may not reverse the
decision simply because substantial evidence exists in the record to support a contrary outcome,
or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742,
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747 (8th Cir. 2001). If the court finds it possible “to draw two inconsistent positions from the
evidence, and one of those positions represents the Secretary’s findings, the court must affirm the
decision of the Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A).
The Act defines “physical or mental impairment” as “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § § 423(d)(3), 1382(3)(c). A plaintiff
must show that his disability, not simply his impairment, has lasted for at least twelve
consecutive months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits. See 20 C.F.R. § § 404.1520(a)- (f)(2003). Only if
the final stage is reached does the fact finder consider the plaintiff’s age, education, and work
experience in light of his or her residual functional capacity. See McCoy v. Schweiker, 683 F.2d
1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
III. Discussion:
The Plaintiff contends that the ALJ erred at Step Three in failing to find that the Plaintiff
met Listing 12.05c and that the ALJ failed to properly develop the record.
The determination of whether a claimant meets or equals an impairment described in the
Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, is made at step three of the
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disability determination process. 20 C.F.R. § 416.920(a)(4)(iii). During this step, the ALJ has the
responsibility to decide whether “medical equivalence” has been established. Id. § 416.926(e).
An impairment is medically equivalent under the regulations if it is “at least equal in severity and
duration to the criteria of any listed impairment.” Id. § 416.926(a). If the ALJ finds that a
claimant has an impairment that meets or equals one of the listings, then the claimant will be
found disabled. Id. § 416.920(a)(4)(iii). Carlson v. Astrue 604 F.3d 589, 592 (C.A.8
(Iowa),2010).
The Plaintiff was examined by Dr. Patricia Walz on September 14, 2010 and was
administered a WAIS-IV test and an MMPI-2. As a result of her test and examination Dr. Walz
stated that the Plaintiff "demonstrated intellectual functioning in the extremely low to borderline
level with a WAIS-IV Full Scale IQ of 67". (T. 411). No records were sent to Dr. Walz to review
(T. 407) but the Plaintiff stated to Dr. Walz that she thought she did “pretty well” in school and
that she could read “pretty well”. That she could read all the words in the newspaper and fill out
job applications. (T. 407). The Plaintiff testified, however, that she was all special education
classes and that she had a cumulative grade point of 1.2 (See T. 160) but she testified she did not
know what that meant. (T. 433). She could not fill out a job application and could not read a
newspaper. She could not read street signs but learned to recognized the shape and color. She
could never pass her written driving test and had to take an oral test six or seven times. (T. 434).
Dr. Walz found that the Plaintiff had impairments in “academic and social skills” which qualified
her for a diagnosis of Mild Mental Retardation. (T. 411). The court notes that the DSM-IV states
that “Mental Retardation would not be diagnosed in an individual with an IQ lower than 70 if
there are no significant deficits or impairments in adaptive functioning”. (DSM-IV, p. 42).
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The regulations define mental retardation as “significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during the developmental
period” before age 22. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. Muncy v. Apfel 247
F.3d 728, 734 (C.A.8 (Mo.),2001)
The regulation further state that “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 other 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 of extended duration.
See 20 CFR Part 404, Subpart P, Appendix 1
The ALJ classified the Plaintiff’s mental impairment as Borderline Intellectual
Functioning/Mild Mental Retardation. (T. 11). There is no explanation in the ALJ’s opinion
concerning how the determination of BIF was obtained or why it is even in his determination of
the Plaintiff’s severe impairments but the evidence is clear that the Plaintiff was diagnosed with
Mild Mental Retardation. The ALJ makes several references to 12.05 D and finding that the

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Plaintiff did not have two Marked Limitations in the areas of Activities of Daily Living, Social
Functioning, or Concentration, Persistence, or Pace. (T. 13) The ALJ then stated that “the
requirements in paragraph A are met when there is mental incapacity evidenced by dependence
upon other 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. In
this case, the claimant has not allege limitations in this area, nor does the evidence of record
establish such limitations. Accordingly, as the paragraph A requirements are not met, there is no
need to discuss the requirements in paragraph B of the listing.” (T. 13). This language is a
reference to Subparagraph A of 12.05 but it is unclear why the ALJ stated that he had no need to
discuss Subparagraph B which provides that the required level of severity is met when the
claimant has a “valid verbal, performance, or full scale IQ of 59 or less”. There is absolutely no
evidence int the record that the claimant’s IQ was at such a level but the evidence clearly
established an IQ of 67. The ALJ discussed 12.05 A and 12.05 D and mentions 12.05 B but he is
completely silent on 12.05 C which is precisely the subpart in issue.
Section 12.05 C provides that mental retardation is sufficiently severe to constitute a
listed disability when the claimant has: (1) "[a] valid verbal, performance, or full scale IQ of 60
through 70," and (2) "a physical or other mental impairment imposing additional and significant
work-related limitation of function." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C). A physical
or other mental impairment is sufficient to satisfy the second part of this test when such
impairment "has a 'more than slight or minimal' effect on [the claimant's] ability to perform
work." Sird v. Chater, 105 F.3d 401, 403 (8th Cir.1997) (quoting Cook v. Bowen, 797 F.2d 687,
690 (8th Cir.1986)).
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It is clear that the ALJ did not even consider the listing requirements for 12.05 C. Since
the Plaintiff had a valid full scale IQ of 67 the ALJ was then required to consider whether she
had a physical or other mental impairment which imposed an “additional and significant workrelated limitation or function”.
Such an analysis was never conducted although the ALJ found her right ankle status post
fracture and multiple surgeries, chronic low back pain, obesity, somatization disorder/conversion
disorder and alcohol abuse to all be severe. (T. 11). It is difficult to imagine that, singly or in
combination, these disorders would not have additional and significant work-related limitation or
function and how their limitations would not imposed different limitations than her limitations
imposed by her Mild Mental Retardation.
The court believes that remand is necessary to allow the ALJ to evaluate the Plaintiff’s
claim under 12.05 C and to adequately explain why the Plaintiff’s additional sever impairments
do not constitute additional work related limitations.
IV. Conclusion:
Accordingly, the court finds that the ALJ’s decision is not supported by substantial
evidence, and therefore, the denial of benefits to the Plaintiff should be reversed and this matter
should be remanded to the Commissioner for further consideration.

Dated this May 30, 2013.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE

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