Laflan v. Colvin

Filing 28

OPINION AND ORDER re: 12 SOCIAL SECURITY ADMINISTRATIVE RECORD filed by Carolyn W. Colvin, by Magistrate Judge Michael J. Watanabe on 9/14/2015. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03091-MJW
VIRGINIA FRANCIS LAFLAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

OPINION AND ORDER
MICHAEL J. WATANABE
United States Magistrate Judge
The government determined that Virginia Laflan is not disabled for purposes of
Disability Insurance and Supplemental Security Income under the Social Security Act.
Laflan has asked this Court to review that decision, raising four grounds for appeal.
The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have
agreed to have this case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c).
One of Laflan’s arguments is correct, and as a result the Court vacates and remands
the government’s determination for further proceedings consistent with this opinion.
Discussion
In Social Security appeals, the Court reviews the administrative law judge’s
(“ALJ”) decision to determine whether the factual findings are supported by substantial
evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue,
500 F.3d 1074, 1075 (10th Cir. 2007). “Substantial evidence is such evidence as a
reasonable mind might accept as adequate to support a conclusion. It requires more

2
than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269,
1271–72 (10th Cir. 2009) (internal quotation marks omitted). The Court “should, indeed
must, exercise common sense” and “cannot insist on technical perfection.” KeyesZachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the
evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
As noted, Laflan asserts four reversible errors.
I.

Intellectual Disability under Listing 12.05(C)
Laflan’s first argument is that the ALJ applied the wrong legal standards and/or

came to unsupportable factual conclusions as to whether Laflan is sufficiently mentally
retarded to be deemed disabled under Listing 12.05(C).1
Legal Standards
Listing 12.05 contains a threshold test—variously described as a “diagnostic” or a
“capsule” definition—under its flush language, followed by four alternative tests for
severity under paragraphs (A), (B), (C), and (D). 20 C.F.R. Part 404, Subpart P, App. 1,
§ 12.05. More specifically, in 2013, the listing stated:
12.05 Mental retardation: Mental retardation 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.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.

1

In the Social Security Administration’s five-step sequential process for reviewing
disability claims, the third step asks whether the claimant’s impairments meet or equal
the conditions listed in a regulatory appendix; if so, the claimant is deemed disabled.
See, e.g., 20 C.F.R. § 416.920(a)(4).

3
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.
Id. (paragraph structure altered).
The listing itself does not clearly suggest that the capsule definition is to
be applied separately from the severity tests—an ambiguity pointed out by the
Tenth Circuit over a decade ago. Barnes v. Barnhart, 116 F. App’x 934, 938
(10th Cir. 2004). But since then, the Commissioner has amended the
introduction to the 12.00-series listings to explain, specifically:
The structure of the listing for intellectual disability (12.05) is different from
that of the other mental disorders listings. Listing 12.05 contains an
introductory paragraph with the diagnostic description for intellectual
disability. It also contains four sets of criteria (paragraphs A through D). If
your impairment satisfies the diagnostic description in the introductory
paragraph and any one of the four sets of criteria, we will find that your
impairment meets the listing. Paragraphs A and B contain criteria that
describe disorders we consider severe enough to prevent your doing any
gainful activity without any additional assessment of functional limitations.

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For paragraph C, we will assess the degree of functional limitation the
additional impairment(s) imposes to determine if it significantly limits your
physical or mental ability to do basic work activities, i.e., is a “severe”
impairment(s) . . . . If the additional impairment(s) does not cause
limitations that are “severe” . . . , we will not find that the additional
impairment(s) imposes “an additional and significant work-related
limitation of function,” even if you are unable to do your past work because
of the unique features of that work. Paragraph D contains the same
functional criteria that are required under paragraph B of the other mental
disorders listings.
Id. § 12.00(A). Thus, it is now clear that the beginning paragraph is a separate
“diagnostic description” that must be satisfied, independently of the four alternative
severity tests.
Nonetheless, the regulation does not purport to establish any standard for
determining when the claimant shows sufficient “deficits in adaptive functioning initially”
to move onto the severity tests. In fact, the government has provided no guidance at all
for applying this language, instead offering the following explanation for why it has not
adopted specific guidelines:
Comment: One commenter recommended that we use the
definition of mental retardation (MR) found in the Diagnostic and Statistical
Manual of Mental Disorders (4th ed. 1994) (DSM-IV), published by the
American Psychiatric Association, as the definition of MR in listing 12.05
and 112.05.
Response: We did not adopt the comment. The definition of MR
we use in our listings is consistent with, if not identical to, the definitions of
MR used by the leading professional organizations. The four major
professional organizations in the United States that deal with MR have
each established their own definition of MR. While all the definitions
require significant deficits in intellectual functioning, as evidenced by IQ
scores of approximately 70 or below, age of onset and the method of
measuring the required deficits in adaptive functioning differ among the
organizations.

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For example, the definition of MR used in the DSM-IV is
predominantly based on (but not identical to) the revised definition of MR
promulgated by the American Association on Mental Retardation (AAMR)
in 1993. The DSM-IV states: “The essential feature of mental retardation
is significantly subaverage general intellectual functioning (further defined
as an IQ standard score of approximately 70 or below), that is
accompanied by significant limitations in at least two of the following skill
areas: communication, self-care, home living, social/interpersonal skills,
use of community resources, self-direction, functional academic skills,
work, leisure, health, and safety. The onset must occur before age 18
years.”
Following publication of this new definition of MR by the AAMR, the
American Psychological Association published its own “Manual of
Diagnosis and Professional Practice in Mental Retardation, 1996.” It
states: “Mental retardation refers to (a) significant limitations in general
intellectual functioning; (b) significant limitations in adaptive functioning,
which exist concurrently; and (c) onset of intellectual and adaptive
limitations before the age of 22 years.” In its definition, (a) is defined as “*
* * an IQ or comparable normed score that is two or more standard
deviations below the population mean for the measure;” and for (b), “* * *
the criterion of significance is a summary index score that is two or more
standard deviations below the mean * * *.”
The definition of MR used by SSA in the listings is not restricted to
diagnostic uses alone, nor does it seek to endorse the methodology of one
professional organization over another. While capturing the essence of
the definitions used by the professional organizations, it also is used to
determine eligibility for disability benefits. SSA’s definition establishes the
necessary elements, while allowing use of any of the measurement
methods recognized and endorsed by the professional organizations.
Technical Revisions to Medical Criteria for Determinations of Disability, 67 Fed. Reg.
20018, 20022 (Apr. 24, 2002). The Tenth Circuit has adopted this reasoning, and
requires the Commissioner to determine “deficits in adaptive functioning” by reference
to “any of the measurement methods recognized and endorsed by the [four major]
professional organizations [dealing with mental retardation].” Barnes, 116 F. App’x at
942.

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Discussion
Here, the government does not dispute that Laflan satisfies the severity test
under paragraph (C). Thus, the question is whether Laflan satisfies the capsule
definition. More precisely, given this Court’s limited standard of review, the question is
whether the ALJ applied the right legal test in determining that the capsule definition
was not satisfied, and whether her factual findings are supported by substantial
evidence.
The ALJ did not discuss the test in explicit terms of separate capsule definitions
and severity tests, nor did she address paragraph (C). Rather, the ALJ’s total analysis
as to Listing 12.05 was:
[T]he medical evidence includes a verbal comprehension IQ score of 70,
leading to a diagnoses of borderline intellectual functioning, not mild
mental retardation as counsel argues (See ex. 4F). Moreover, the
evidence is not consistent with a diagnosis of mild mental retardation
because it does not document significant deficits of adaptive functioning in
at least two of the skill areas required under section 12.05. These
conclusions are supported by the assessments of two state agency
psychological consultants (See ex. 4A; Prior File, DDE).
(AR 31.) Contrary to Laflan’s argument, this appears to apply substantially the correct
legal test, even if it is not stated precisely correctly. Although Listing 12.05 does not
“require” the ALJ to look for limitations in “at least two [] skill areas,” it does allow the
ALJ to do so—because that is the test for deficits in adaptive functioning endorsed by
the DSM-IV. See Technical Revisions to Medical Criteria for Determinations of
Disability, 67 Fed. Reg. at 20022 (“accompanied by significant limitations in at least two
of the following skill areas: communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills, work,

7
leisure, health, and safety” (emphasis added)). In reviewing an ALJ’s opinion, this Court
does not “insist on technical perfection,” Keyes-Zachary, 695 F.3d at 1166, and by all
appearances the ALJ identified an appropriate legal standard.
That said, the ALJ’s discussion is not supported by substantial evidence. The
only evidence cited by the ALJ on the question of deficits in adaptive functioning are
“the assessments of two state agency psychological consultants”—the one from this
determination, and the one from Laflan’s previous application for disability benefits. The
records from the previous application are not part of the record on appeal in this case,
and as a result the Court cannot determine whether it supports the ALJ’s analysis. But
the assessment of the state agency psychological consultant from Laflan’s current
application is in the record—and it does not offer support for the ALJ’s finding. The
consultant filled out a Mental Residual Functional Capacity (“RFC”) Assessment,
offering opinions on Laflan’s degree of functional limitation in a variety of work-related
areas. (AR 188–90 (opinion of Gayle Frommelt, Ph.D.).) None of those opinions deal
explicitly with the “skill areas” identified in DSM-IV—nor would one expect them to,
because the residual functional capacity assessment is an administrative determination
and not a medical one.2
Moreover, to the extent the ALJ might have drawn inferences as to “adaptive
functioning” skill areas from the state agency’s RFC analysis, those inferences would

2

In fact, the mental RFC assessment overlaps quite neatly with the severity criteria
under Listing 12.05’s paragraph (D)—suggesting that it is, in fact, an entirely different
inquiry than “deficits in adaptive functioning” in the capsule definition. Certainly, if the
inquiries overlap at all, the capsule definition must be a lower, easier-to-meet
standard—because otherwise, paragraph (D) would be superfluous.

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need to be drawn the other way. The state agency’s RFC analysis found moderate
limitations in three out of six types of workplace social interactions; it found moderate
limitations in three out of seven persistence-and-pace functions; and it found a
moderate limitation as to Laflan’s ability to “respond appropriately to changes in the
work setting.” To the extent inferences as to the DSM-IV’s “skill areas” can be drawn
solely from this RFC assessment, they can be reasonably drawn in Laflan’s favor only.
Remedy
The evidence cited by the ALJ does not support the ALJ’s determination.3 As a
result, the case must be remanded—either for further proceedings, or to render
benefits. The Court may only render benefits if the record already conclusively
establishes that Laflan satisfies the capsule definition in Listing 12.05. See Sorenson v.
Bowen, 888 F.2d 706, 713 (10th Cir. 1989).
The record is replete with evidence of significant “deficits in adaptive functioning.”
For example, Laflan was held back in school three times (in the second, sixth, and
seventh grades), ultimately dropping out, pregnant, at the age of 18—while still in the
eighth grade. (AR 275-77; 359, 406.) Further, Laflan has never managed to keep a job
for more than a few months, working off-and-on at mostly minimum-wage positions from
the age of 15 through 22—never earning as much as $5,200 in any one year. (AR 191,

3

The government relies on the ALJ’s citation to Exhibit 4F, rather than her citation to
Exhibit 4A. But the ALJ did not cite Exhibit 4F in her discussion of deficits in adaptive
functioning; she cited it for its diagnosis and IQ score, before moving on to discuss
evidence as to adaptive functioning as a separate inquiry. Further, the government
rests its entire argument on the distinction between a diagnosis of mild mental
retardation and one of borderline intellectual functioning in the DSM-IV—but a
claimant’s impairments are not medical diagnoses. They are administrative
determinations reserved to the Commissioner.

9
274.) She has never had a driver’s license. (AR 407.) She is functionally illiterate.
(Entire record.) At least one consultative examiner felt she should not be trusted with
her own funds. (AR 416.) Two out of three psychological examiners felt that her social
interactions were inhibited. (AR 189, 361, 416.) Looking at the DSM-IV’s “skill areas”—
”communication, self-care, home living, social/interpersonal skills, use of community
resources, self-direction, functional academic skills, work, leisure, health, and safety”—
there is substantial evidence suggesting that Laflan is significantly limited in at least
two.4
That said, the record is not uniform. There are portions of the record that
suggest normal functioning in at least some of the DSM-IV skill areas. (See, e.g., AR
315 (Laflan reports that she takes care of her kids, and most household/living
activities).) Because it is not this Court’s place to weigh the evidence, the Court finds
that further proceedings are appropriate. And because the government has already
conceded that the severity test in paragraph (C) is met, the remand is limited to further
fact-finding on the sole question of whether Laflan has “deficits in adaptive functioning”
sufficient to meet Listing 12.05’s capsule definition.
II.

Duty to Develop Record as to Physical Impairments
Laflan further argues that, as to physical limitations, the ALJ failed to develop the

record sufficiently. “In a social security disability case, the claimant bears the burden to
prove her disability.” Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009) (internal
quotation marks omitted). But because “administrative disability hearings are

4

The Court notes that, because paragraphs (A) through (D) test for “severity,” one
would not expect the threshold test in Listing 12.05 to be particularly onerous.

10
nonadversarial . . . the ALJ has a duty to ensure that an adequate record is developed
during the disability hearing consistent with the issues raised.” Id. “Further, this duty
pertains even if the claimant is represented by counsel.” Id. at 1063. Accordingly, the
ALJ was required to gather enough evidence to evaluate Laflan’s functional capacity
and make a disability determination. “‘The standard’ for determining whether the ALJ
fully developed the record ‘is one of reasonable good judgment.’” Segura v. Barnhart,
148 F. App’x 707, 710 (10th Cir. 2005) (quoting Hawkins v. Chater, 113 F.3d 1162,
1168 (10th Cir. 1997)). If there is sufficient information to make a disability
determination, the record is sufficiently developed. Cowan v. Astrue, 552 F.3d 1182,
1187 (10th Cir. 2008) ; 20 C.F.R. § 404.1520b.
An adequate record exists here. Most importantly, Laflan was examined by a
consultant who found no physical limitations. Further, as the ALJ exhaustively
recounted, the objective medical records provide no basis for believing that Laflan
suffers from any physical functional limitations. Cf. Kelley v. Chater, 62 F.3d 335, 338
(10th Cir. 1995) (absence of restrictions or opinions of disability from claimant’s treating
physicians supported ALJ’s finding that he was not disabled). Moreover, without some
evidence of a functional limitation from a condition, especially in a case where the
claimant is represented by counsel, the ALJ has no duty to further develop the record as
to that condition. See Hawkins v. Chater, 113 F.3d 1162, 1167–68 (10th Cir. 1997)
(“[T]he starting place must be the presence of some objective evidence in the record
suggesting the existence of a condition which could have a material impact on the
disability decision requiring further investigation.”); see also Rutledge v. Apfel, 230 F.3d

11
1172, 1175 (10th Cir. 2000) (no duty to develop record further as to certain exertional
factors where objective evidence did not suggest any impairment to those functions).
Finally, Laflan does not suggest what specific evidence the ALJ should have
developed—an oversight that ends her duty-to-develop argument. See, e.g., Watson v.
Barnhart, 194 F. App’x 526, 530 (10th Cir. 2006) (“Watson neither (1) suggests what the
omitted treatment evidence might reveal; nor (2) identifies anything in the record that
would have reasonably notified the ALJ that such evidence existed.”); Jaramillo v.
Massanari, 21 F. App’x 792, 795 (10th Cir. 2001) (“She has not identified medical
providers from whom records were missing nor did she ask assistance in obtaining any
records. On appeal, she has failed to identify the evidence she claims the ALJ should
have obtained. The ALJ did not violate the duty to develop the record.”).
The Court rejects Laflan’s second argument.
III.

Cumulative Impact of Impairments in RFC Analysis
Laflan further argues that the ALJ failed to consider, as required by law, the

combined effect of all her impairments—whether severe or not. See 20 C.F.R.
§ 404.1545(a)(2). But in order for Laflan’s non-severe impairments to be considered,
they must first be “impairments.” Under the regulations, an “impairment must result
from anatomical, physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques. A physical or mental
impairment must be established by medical evidence consisting of signs, symptoms,
and laboratory findings, not only by [the claimant’s] statement of symptoms.” 20 C.F.R.
§ 404.1508. “Symptoms are [the claimant’s] own description” of “physical or mental

12
impairment. [The claimant’s] statements alone are not enough to establish that there is
a physical or mental impairment.” 20 C.F.R. § 404.1528. The ALJ correctly found no
abnormalities shown by medically acceptable techniques, with nothing other than
Laflan’s own statements supported them. Thus, Laflan established no physical
impairments—nonsevere or otherwise—that the ALJ was required to address in the
RFC analysis.
The Court rejects Laflan’s third argument.
IV.

Conflict Between DOT and Vocational Expert’s Testimony
Finally, Laflan argues that the vocational expert’s testimony does not comport

with the Dictionary of Occupational Titles (“DOT”), and the ALJ failed to reconcile the
discrepancy. But the Tenth Circuit, in an unpublished decision, has adopted the rule
that an ALJ has no duty to investigate potential conflicts between a vocational expert’s
testimony and the DOT, where the vocational expert affirmatively testifies that there are
no conflicts relevant to the claimant’s case. Gibbons v. Barnhart, 85 F. App’x 88, 93
(10th Cir. 2003) (quoting at length Carey v. Apfel, 230 F.3d 131, 146–47 (5th Cir.
2000)); Phelan v. Astrue, 2013 WL 24374, at *11 (D. Colo. Jan. 2, 2013) (Jackson, J.).
The Court rejects Laflan’s fourth argument.
Conclusion
For the reasons set forth above, the Commissioner’s decision is VACATED and
REMANDED for further fact-finding as to whether Virginia Francis Laflin meets Listing
12.05(C), and such other proceedings as the Administrative Law Judge deems
appropriate.

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Dated this 14th day of September, 2015.
BY THE COURT:
/s/ Michael J. Watanabe
MICHAEL J. WATANABE
United States Magistrate Judge