Ralston v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on November 12, 2014. (tg)

THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
JOLEEN RALSTON

PLAINTIFF

v.

Civil No. 13-3064

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Joleen Ralston, 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 her claim for
supplemental security income under Title XVI of the Social Security Act (hereinafter “the Act”), 42 U.S.C.
§§ 1382c(a)(3)(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
Plaintiff applied for SSI on April 26, 2010. (Tr. 12.) Plaintiff alleged an onset date of April 26,

2010 due to learning disabilities. (Tr. 190.) Plaintiff’s applications were denied initially and on
reconsideration. Plaintiff requested an administrative hearing, which was held on February 15, 2012 in
front of Administrative Law Judge (“ALJ”) Clifford Shilling. Plaintiff was present to testify and was
represented by counsel. The ALJ also heard testimony from Vocational Expert (“VE”) John Massey.
Plaintiff’s attorney requested a supplemental hearing to question the VE. (Tr. 248.) This was held on May
18, 2012. (Tr. 27.)
At the time of the administrative hearing, Plaintiff was 37 years old, and possessed a tenth grade
education, all within the special education track. (Tr. 44.) The Plaintiff had past relevant work experience
(“PRW”) as fast food worker. (Tr. 21.)

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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.

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On May 24, 2012, the ALJ concluded that Plaintiff suffered from the following severe
impairments: learning disorder and anxiety disorder. (Tr. 14.) The ALJ found that Plaintiff maintained the
residual functional capacity to perform the full range of work at all exertional levels, with the following
nonexertional limitations:
the claimant can only occasionally climb (ramps, stairs, ladders, ropes, or scaffolds),
kneel, and crouch; and no more than frequently balance, stoop, and crawl. Furthermore,
the claimant is limited to work that requires no decision making, judgment, or interaction
with the public; requires no more than occasional interaction with co-workers; and
requires close supervision and instruction from supervisors, with supervisors checking
her work four times per day.
(Tr. 16.) With the assistance of the VE, the ALJ determined that the Plaintiff could perform such
representative occupations as handpackager, conveyor feeder, and dishwasher. (Tr. 21-22.)
Plaintiff requested a review by the Appeals Council on July 27, 2012.(Tr. 8.) The Appeals Council
declined review on April 26, 2013. (Tr. 1.) Plaintiff filed this appeal on June 21, 2013. (ECF. No. 1.)
Both parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 12, 13.)
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, 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).

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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: (1) whether the claimant has engaged in substantial gainful activity since
filing his claim; (2) whether the claimant has a severe physical and/or mental impairment or combination
of impairments; (3) whether the impairment(s) meet or equal an impairment in the listings; (4) whether
the impairment(s) prevent the claimant from doing past relevant work; and, (5) whether the claimant is
able to perform other work in the national economy given his age, education, and experience. 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
Plaintiff raises five issues on appeal: 1) the Commissioner erred in not finding Plaintiff disabled

under Listing 12.05C; 2) the Commissioner erred in not finding Plaintiff disabled under Listing 12.05D;
3) the ALJ erred in giving more weight to the opinions of the nonexamining State Agency physicians over
that of Consulting Examining Psychologist (CE) Dr. Hartfield; 4) the ALJ erred in discounting Plaintiff’s
subjective complaints; 5) the Commissioner’s decision violates POMS § DI 25020.010(A)(3)(b). Because

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this Court finds that the ALJ erred in his treatment of Plaintiff’s IQ score for Listing 12.05, the other issues
will not be addressed.
The introductory paragraph to Listing 12.05: Intellectual Disability (formerly Mental Retardation2)
states: that: 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 the impairment before age 22.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1
“[T]he requirements in the paragraph are mandatory,” and a claimant must “demonstrate or support onset
of the impairment before age 22.” Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006.) The plain
language of this paragraph does not require that the claimant provide a valid IQ score obtained prior to
the age of 22. Nor is a formal diagnosis of intellectual disability required. Id. Nor is the definition of
mental retardation in the Diagnostic and Statistical Manual of Mental Disorders (DSM) to be utilized. Id.
Rather, the regulations specifically state that “ current evidence” may be used to “infer when impairment
began” for Listing 12.05. Id. at 900. (citing Revised Medical Criteria for Evaluating Mental Disorders and
Traumatic Brain Injury, 65 FR 50746-01 (2000.))
In making this inference, the Eighth Circuit has stated that intellectual disability “is not normally
a condition that improves as an affected person ages. Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001.).
“Rather, a person’s IQ is presumed to remain stable over time in the absence of any evidence of a change
in the claimant’s intellectual functioning.” Id.
In this case, Plaintiff underwent a psychological examination by CE Dr. Cara Hartfield, PhD on
June 7, 2010. (Tr. 252.) Dr. Hartfield administered a Wechsler Adult Intelligence test (WAIS-IV) and
found that her full scale IQ was 66. (Tr. 255.) Dr. Hartfield found no evidence of exaggeration or

2

Change in Terminology: “Mental Retardation” to “Intellectual Disability,” 78 FR
46499 (2013). Therefore the new term will be substituted for mental retardation where
appropriate in this opinion.
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malingering, (Tr. 254), and stated that her current intellectual functioning “is consistent with her
educational and work history. There does not appear to have been a decline in her cognitive functioning.”
(Tr. 255.) Neither party disputes the validity of this IQ score. Dr. Hartfield also found marked impairments
in three areas of adaptive functioning: Plaintiff’s capacity to communicate in an intelligible and effective
manner, cope with typical demands of work-like tasks, and attend and sustain concentration on basic tasks.
(Tr. 256.) However, she stated that because she was functioning adequately in all other areas of adaptive
functioning, she “does not meet the criteria for a diagnosis of mild mental retardation.” (Tr. 256.) It is not
clear from this opinion whether Dr. Hartfield was referring to the Listing criteria or the DSM criteria.
The ALJ expressly considered Listing 12.05, and found that Plaintiff did not meet the requirements
of the introductory paragraph because “there are no IQ test results or evaluations in evidence of record
establishing mental retardation prior to the claimant reaching age 22.” (Tr. 16.) He noted Plaintiff’s current
IQ score of 66, but dismissed it, stating that Dr. Hartfield found that she “does not meet the criteria for
a diagnosis of mental retardation.” (Tr. 16.)
Both of these reasons for dismissing Plaintiff’s IQ score of 66 constitute plain error.
Both the Eighth Circuit and the regulations have expressly stated that a Plaintiff is not required
to produce a qualifying IQ score obtained prior to the age of 22. Instead, current IQ scores are presumed
to be the same as that of the developmental period unless there is evidence of some change in intellectual
functioning. Dr. Hartfield specifically stated that “there did not appear to be a decline in her cognitive
functioning” and that her current intellectual functioning “is consistent with her educational and work
history.” Nor do the facts in the record show otherwise, with Plaintiff having been held back in
kindergarten, having spent her entire educational career in the special education track, and having dropped
out after the tenth grade. Nor did she excel in special education, with her high school grades primarily in
the B-D range. (Tr. 239.) Therefore, at least with the evidence currently before this Court, Plaintiff’s IQ
score should have been presumed to be 66 prior to the age of 22.

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The Eighth Circuit has also expressly stated that the Plaintiff is not required to produce a formal
diagnosis of mental retardation/intellectual disability, and that the DSM criteria are not to be relied upon
to determine if a claimant meets Listing12.05. It is not clear from Dr. Hartfield’s records whether her
statement regarding a diagnosis of mental retardation is based on the Listing or the DSM. However, given
that the Listing does not use the term “mild mental retardation” and the DSM does, it seems likely that she
was using the DSM criteria. Therefore, the ALJ’s reliance on Dr. Hartfield statement that Plaintiff “did
not meet the criteria for a diagnosis of mild mental retardation” was error for two reasons. First, Plaintiff
was not required to produce a formal diagnosis, therefore the lack of one should not be used against her.
Second, it appears that the diagnosis was made using the incorrect criteria for a Listing analysis.
In summary, it appears that the Plaintiff has met the threshold introductory paragraph requirement
of Listing 12.05. Therefore, a remand is required in order to give the ALJ the opportunity to complete a
full Listing 12.05 analysis. The Court notes that the ALJ found the Plaintiff to have another severe
impairment, and that CE Dr. Hartfield found the Plaintiff to have marked impairments in adaptive
functioning in three areas. Therefore the ALJ may wish to give particular attention to Listing 12.05C and
12.05D. In completing this analysis, the ALJ is directed to expressly discuss his reasoning and to use
accurate page citations to facts used in the analysis.
IV.

Conclusion
Accordingly, we conclude that the ALJ’s decision is not supported by substantial evidence and

should be reversed and remanded to the Commissioner for further consideration pursuant to sentence four
of 42 U.S.C. § 405(g).

DATED this 12th day of November 2014.

J. Marschewski

/s/

HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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