Dyre v. Commissioner of Social Security
Filing
22
ORDER - The decision of the ALJ is reversed and remanded solely for the calculation of benefits from Plaintiff's claimed onset of disability. Signed by Senior Judge Donald E OBrien on 3/4/15. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
TAUNI DYRE,
Plaintiff,
No. 14-CV-3004-DEO
v.
ORDER
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
____________________
This matter is before the Court pursuant to Tauni Dyre’s
[hereinafter Ms. Dyre] application for supplemental security
income (SSI) under Title XVI of the Act.
The Court has
considered the parties’ arguments and briefs and now enters
the following.
I.
FACTUAL BACKGROUND
Ms. Dyre was born October 17, 1989.
age at the time of the hearing.
She was 22 years of
Ms. Dyre has an eighth grade
education and has not completed her GED.
Prior to dropping
out of school, Ms. Dyre participated in special education
classes.
Ms. Dyre does not drive and does not have a driver’s
license.
At the time of the hearing, Ms. Dyre had one child,
but did not have custody of the child.
Ms. Dyre lives with
Grandparents and is supported by both her Mother and her
Grandparents.
Ms. Dyre has no work history and previously
applied for benefits in 2006, 2007, and 2009.
Ms. Dyre claims disability based on variety of mental
impairments, including:
bipolar disorder, major depressive
disorder, anxiety disorder, learning disabilities, generalized
anxiety disorder, oppositional defiant disorder; avoidant
personality disorder and mild mental retardation.
II.
PROCEDURAL HISTORY
Ms. Dyre filed her application for Supplemental Security
Income (“SSI”) benefits on January 28, 2011.
the application, she was 21 years old.
At the time of
The claim was denied
initially on March 4, 2011, and upon reconsideration on May
19,
2011.
Ms.
Administrative
Dyre
Law
appeared
Judge
[ALJ]
for
on
a
hearing
October
2,
before
2012.
November 16, 2012, the ALJ denied Ms. Dyre’s claim.
an
On
Ms. Dyre
appealed, and her appeal was denied on October 30, 2013.
Thus, the ALJ's decision stands as the final decision of the
Commissioner.
Ms. Dyre filed the present case on January 21,
2014.
2
The ALJ set out the issue presently before the Court:
[t]he issue is whether the claimant is
disabled under section 1614(a)(3)(A) of the
Social Security Act. Disability is defined
as the inability to engage in any
substantial gainful activity by reason of
any medically determinable physical or
mental
impairment
or
combination
of
impairments that can be expected to result
in death or that has lasted or can be
expected to last for a continuous period of
not less than 12 months.
Docket No. 9, Tr. 15.
Under the authority of the Social Security Act, the
Social Security Administration has established a five-step
sequential
evaluation
process
for
determining
individual is disabled and entitled to benefits.
404.1520.
The five successive steps are:
whether
an
20 C.F.R. §
(1) determination
of whether a plaintiff is engaged in “substantial gainful
activity,” (2) determination of whether a plaintiff has a
“severe medically determinable physical or medical impairment”
that lasts for at least 12 months, (3) determination of
whether a plaintiff’s impairment or combination of impairments
meets or medically equals the criteria of a listed impairment,
(4) determination of whether a plaintiff’s Residual Functional
Capacity
(RFC)
indicates
an
3
incapacity
to
perform
the
requirements
of
determination
their
of
past
whether,
relevant
given
and
(5)
Plaintiff’s
a
work,
RFC,
age,
education and work experience, a plaintiff can “make an
adjustment to other work.”
20 C.F.R. § 404.1520(4)(i-v).
At step one, if a plaintiff is engaged in “substantial
gainful activity” within the claimed period of disability,
there
is
no
disability
404.1520(a)(4)(i).
during
that
time.
20
C.F.R.
§
At step 2, if a plaintiff does not have a
“severe medically determinable physical or mental impairment”
that lasts at least 12 months, there is no disability.
C.F.R. § 404.1520(a)(4)(ii).
impairments
meet
or
20
At step 3, if a plaintiff’s
medically
equal
the
criteria
of
an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1,
and
last
at
least
12
months,
a
plaintiff
is
deemed
disabled. 20 C.F.R. § 404.1520(e). Before proceeding to step
4
and
5,
the
ALJ
must
determine
Functional Capacity [RFC].
still
do”
despite
404.1545(a)(1).
their
a
plaintiff’s
Residual
RFC is the “most” a person “can
limitations.
20
C.F.R.
§
The RFC an ALJ assigns a plaintiff has been
referred to as the “most important issue in a disability case
. . . .”
Malloy v. Astrue, 604 F. Supp. 2d 1247, 1250 (S.D.
4
Iowa 2009) (citing McCoy v. Schweiker, 683 F.2d 1138, 1147
(8th Cir. 1982)(en banc) abrogated on other grounds by Higgins
v.
Apfel,
222
F.3d
504,
505
(8th
Cir.
2000)).
When
determining RFC, the ALJ must consider all of the relevant
evidence and all of the Plaintiff’s impairments, even those
which are not deemed severe, as well as limitations which
result
from
symptoms,
404.1545(a)(2) and (3).
such
as
pain.
20
C.F.R.
§
An ALJ “may not simply draw his own
inferences about a plaintiff’s functional ability from medical
reports.”
Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th
Cir. 2004).
At step 4, if, given a plaintiff’s RFC, a plaintiff can
still
perform
disability.
their
past
relevant
work,
20 C.F.R. § 404.1520(a)(4)(iv).
there
is
no
At step 5, if,
given a plaintiff’s RFC, age, education, and work experience,
a plaintiff can make an adjustment to other work, there is no
disability.
416.920(a)(4)(v).
20
C.F.R.
§§
404.1520(a)(4)(v)
and
This step requires the ALJ to provide
“evidence” that a plaintiff could perform “other work [that]
exists in significant numbers in the national economy.”
C.F.R. § 404.1560(c)(2).
20
In other words, at step 5, the
5
burden of proof shifts from a plaintiff to the Commissioner of
the S.S.A..
Basinger v. Heckler, 725 F.2d 1166, 1168 (8th
Cir. 1984).
The ALJ generally calls a Vocational Expert (VE)
to aid in determining whether this burden can be met.
In this case, the ALJ applied the appropriate methodology
and found that Ms. Dyre has not engaged in substantial gainful
employment since April 28, 2011, the alleged onset date.
The
ALJ stated that Ms. Dyre has the following severe impairments:
Borderline Intellectual Functioning (BIF), Bipolar Disorder
vs. Major Depressive Disorder, Post Traumatic Stress Disorder,
Generalized
Anxiety
Disorder,
and
Avoidant
Personality
Disorder. However, the ALJ found that Ms. Dyre did not suffer
from a disability as contemplated by the Social Security Code.
Specifically, the ALJ stated:
[t]he claimant does not have an impairment
or combination of impairments that meets or
medically equals the severity of one of the
listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 416.920(d),
416.925 and 416.926).
Docket No. 9, Tr. 17.
The ALJ considered Ms. Dyre’s mental impairments using
the "paragraph B" criteria and the "paragraph C" criteria as
set out in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
6
416.920(d), 416.925 and 416.926) and determined that Ms.
Dyre’s
mental
requirements.
impairments
did
not
meet
either
set
of
Docket No. 9, Tr. 18.
The ALJ went on to consider residual functional capacity
and concluded:
[a]fter careful consideration of the entire
record, the undersigned finds that the
claimant has the residual functional
capacity to perform a full range of work at
all
exertional
levels
but
with
the
following nonexei1ional limitations (would
have an SVP of 3): The claimant is limited
to simple routine tasks and requires a job
with no contact with the general public, or
limited contact with fellow workers.
Docket No. 9 Tr. 19.
The ALJ than considered the plaintiff’s
credibility under the Polaski standard and stated:
although the claimant described disabling
symptoms as a result of her medical
impairments, the record is not consistent
with those allegations. The above residual
functional capacity assessment is supported
by the objective medical evidence, the
medical opinions when afforded appropriate
weight, and the claimant's subjective
complaints during the relevant period when
taken in proper context. In view of all of
the
factors
discussed
above,
the
limitations on the claimant's capacities
which were described earlier in this
decision are considered warranted, but no
greater or additional limitations are
justified.
7
Docket No. 9, Tr. 22.
The ALJ also discounted the statements
of Shelly Dyre, the Plaintiff’s mother.
The ALJ determined that:
[c]onsidering
the
claimant's
age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
perform (20 CFR 416.969 and 416.969(a)).
Docket No. 9, Tr. 22.
Based
on
Ms.
Dyre’s
RFC
and
the
testimony
of
the
vocational expert, the ALJ concluded that:
[b]ased on the testimony of the vocational
expert, the undersigned concludes that,
considering the claimant's age, education,
work experience, and residual functional
capacity, the claimant is capable of making
a successful adjustment to other work that
exists in significant numbers in the
national economy.
A finding of "not
disabled" is therefore appropriate under
the framework of section 204.00 in the
Medical-Vocational Guidelines.
Docket No. 9, Tr. 23.
III.
STANDARD OF REVIEW
This
Court's
role
in
review
of
the
ALJ's
decision
requires a determination of whether the decision of the ALJ is
supported by substantial evidence in the record as a whole.
See 42 U.S.C. § 405(g); Finch v. Astrue, 547 F.3d 933, 935
8
(8th
Cir.
2008).
Substantial
evidence
is
less
than
a
preponderance but enough that a reasonable mind might find it
adequate to support the conclusion in question.
Juszczyk v.
Astrue, 542 F.3d 626, 631 (8th Cir. 2008) (citing Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007)).
This Court must
consider both evidence that supports and detracts from the
ALJ's decision.
Karlix v. Barnhart, 457 F.3d 742, 746 (8th
Cir. 2006) (citing Johnson v. Chater, 87 F.3d 1015, 1017 (8th
Cir. 1996)).
In applying this standard, this Court will not
reverse the ALJ, even if it would have reached a contrary
decision, as long as substantial evidence on the record as a
whole supports the ALJ's decision.
Eichelberger v. Barnhart,
390 F.3d 584, 589 (8th Cir. 2004).
The ALJ's decision shall
be reversed only if it is outside the reasonable "zone of
choice."
Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.
2006) (citing Culbertson v. Shalala, 30 F.3d 934, 939 (8th
Cir. 1994)).
This Court may also ascertain whether the ALJ's decision
is based on legal error.
(8th Cir. 2001).
Lauer v. Apfel, 245 F.3d 700, 702
If the ALJ applies an improper legal
standard, it is within this Court's discretion to reverse
9
his/her decision.
Neal v. Barnhart, 405 F.3d 685, 688 (8th
Cir. 2005); 42 U.S.C. 405(g).
IV.
ISSUES
In her brief, Ms. Dyre makes two primary arguments.
First, Ms. Dyre argues that the ALJ erred in failing to find
that Ms. Dyre’s intellectual disability met Listing 12.05,
Subsection C.
pose
a
expert.
Second, Ms. Dyre argues that the ALJ failed to
complete
hypothetical
question
to
the
vocational
Intrinsic in these two arguments is an allegation
that the ALJ also incorrectly discounted the testimony of Ms.
Dyre and her mother.
The Court will address these issues
below.
V.
ANALYSIS
In
order
for
a
Plaintiff
to
qualify
for
disability
benefits, they must demonstrate they have a disability as
defined in the Social Security Act [hereinafter the Act]. The
Act defines a disability as an:
inability to engage in any substantial
gainful activity by reason of any medically
determinable physical or mental impairment
which can be expected to result in death or
which has lasted or can be expected to last
for a continuous period of not less than 12
months . . . .
10
42 U.S.C. § 423(d)(1)(A).
A.
§ 12.05 Mental Impairment
Ms. Dyre argues that her condition meets or equals the
criteria of Listing § 12.05C, regarding disability arising out
of a mental impairment. Specifically, Ms. Dyre argues the ALJ
failed
to
recognize
she
had
an
IQ
score
within
the
requirements of Listing § 12.05C, and that the ALJ erred by
finding that she did not have the required functional deficits
prior to age 22.
The impairments described in the Listings are considered
“severe enough to prevent an individual from doing any gainful
activity.”
20 C.F.R. § 416.925(a), see also Sullivan v.
Zebley, 493 U.S. 521, 530 (1990).
“For a claimant to show
that his impairment matches a [L]isting, it must meet all of
the specified medical criteria.
An impairment that manifests
only some of those criteria, no matter how severely, does not
qualify.”
Sullivan, 493 U.S. at 530.
If an impairment does
not meet a Listing, but there are other findings that are at
least of equal medical significance, such as unusual symptoms
or additional limitations that are not contemplated by the
Listing, an impairment may medically equal a Listing.
11
See 20
C.F.R. § 416.926(b)(1)(ii) & (3).
designed
to
provide
an
Medical equivalence is not
alternative
for
“almost” meet the requirements of Listings.
conditions
that
The Government
argues that the record does not support a medical equivalency
evaluation.
Listing § 12.05C states:
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.[and] . . . .
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.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C.
The required criteria for Listing § 12.05C includes the
criteria outlined in the introductory diagnostic paragraph,
such as deficits in adaptive functioning initially manifested
before age twenty-two; a valid IQ score in the appropriate
range;
and
an
additional
severe
12
impairment
imposing
significant work-related limitations of function.1
See 20
C.F.R. pt. 404, subpt. P, app. 1, §§ 12.00A (structure of
listing for mental retardation) & 12.05C (listing for mental
retardation); see also Maresh v. Barnhart, 438 F.3d 897,
899-900
(8th
Cir.
2006)
(providing
that
requirements
in
introductory paragraph of Listing § 12.05C are mandatory).
The lowest IQ score in a testing series is used under Listing
§
12.05C.
See
20
C.F.R.
pt.
404,
subpt.
P,
app.
1
§
12.00D(6)(c).
In evaluating plaintiff’s impairments under Listing §
12.05C, IQ level is generally presumed to be stable, but an
ALJ should also evaluate test results to assure consistency
See Clark v. Apfel, 141 F.3d
with the rest of the record.
1253, 1255 (8th Cir. 1998) (“Indeed, test results of this sort
should be examined to assure consistency with daily activities
and
behavior.”)
(internal
quotation
marks
and
citation
omitted).
The Commissioner is not required to accept a
claimant’s
IQ
scores,
and
may
inconsistent with the record.
1
reject
scores
that
are
See Christner v. Astrue, 498
Adaptive functioning refers to a person’s ability, or
attempt, to function in society in light of their impairments.
13
F.3d 790, 793-94 (8th Cir. 2007) (citing Muncy v. Apfel, 247
F.3d 728, 733 (8th Cir. 2001)); Clark, 141 F.3d at 1255-56
(citing Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir. 1995)).
It
is
also
important
to
note
that
a
finding
of
mental
impairment so severe that it results in total disability does
not require a formal diagnosis of mental retardation. Maresh,
438 F.3d at 899.
In the present case, it is clear that Ms. Dyre has
significant mental impairments. However, in his analysis, the
ALJ stated:
[t]he undersigned has also considered
whether the "paragraph C" criteria of 12.02
and 12.06 are satisfied. The undersigned
has also considered whether the "paragraph
C" criteria are satisfied. In this case,
the evidence fails to establish the
presence of the "paragraph C" criteria of
12.02, as the claimant does not have a
medically documented history of a chronic
organic mental disorder of at least 2
years' duration that has caused more than
a minimal limitation of ability to do basic
work activities, with symptoms or signs
currently attenuated by medication or
psychosocial support, and one of the
following:
1.
Repeated episodes of
decompensation, each of extended duration;
or 2. A residual disease process that has
resulted in such marginal adjustment that
even a minimal increase in mental demands
or change in the environment would be
predicted to cause the individual to
14
decompensate; or 3. Current history of 1
or more years' inability to function
outside
a
highly
supportive
living
arrangement,
with
an
indication
of
continued need for such an arrangement. In
this case, the evidence also fails to
establish the presence of the "paragraph C"
criteria of 12.06, as the claimant has not
shown a complete inability to function
independently outside the area of the
home... Turning back to listing 12.05, the
requirements in paragraph A are met when
there is no evidence of 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.
As for the
"paragraph B" criteria, they are not met
because the claimant does not have a valid
verbal, performance, or full scale IQ of 59
or less.
Similarly, the "paragraph C"
criteria of listing 12.05 are not met
because the claimant does not have 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. While there are test scores in
the file that would indicate the claimant
achieved a Verbal IQ, Performance IQ, and
Full
Scale
IQ
of
68,
68,
and
65
respectively, it was noted that the
claimant "did not appear to put forth her
best effort" which renders the scores
invalid in the eyes of the undersigned. In
fact, other IQ testing (K-Bit 2) obtained
has indicated a composite IQ of 85 with
verbal subsets of 81 and nonverbal of 93.
Given the inconsistency in effort and
scores, coupled with academic skills, a
15
finding
of
Borderline
Intellectual
Functioning is likely more correct than
Mild Mental Retardation. (Ex. 6F, 8F, 17F,
30F).
Docket No. 9, Tr. 18-19.
Ms.
Dyre
challenges
Subsection C finding.
each
aspect
of
the
ALJ’s
12.05
Regarding adaptive functioning, Ms.
Dyre argues:
[i]n this case, Ms. Dyre met the first
prong of Listing 12.05C, despite the lack
of any finding in the decision as to
whether she had a deficit in adaptive
functioning prior to age 22... Ms. Dyre has
demonstrated
deficits
in
adaptive
functioning well before she attained the
age of 22. The record shows she struggled
greatly in school, participating in special
education
programs
throughout
her
childhood. (AR 237-252; 370-381; 385-387).
When she was in the eighth grade, she
scored below the 10th percentile in math
and written language, and below the 25th
percentile in reading. (AR 385-387). Ms.
Dyre testified she did not complete high
school, nor has she been able to fulfill
the requirements necessary to acquire a
GED. (AR 38-39). Ms. Dyre was diagnosed
with major depression as early as 2004.
(AR 438). She has also been hospitalized
multiple times for suicide attempts (AR
553-554, 588-590, 590-592). She has never
been able to live on her own, instead
relying on her mother and grandparents.
(AR 39-40, 46).
She needs reminders to
perform small daily tasks such as putting
on deodorant, and her psychologist still
noted body odor issues three years later.
16
(AR 220, 583).
Ms. Dyre required
assistance in making change when purchasing
things.
Docket No. 12, p. 8-9.
Moreover, in her reply brief, Ms. Dyre
argues, “[h]ere, the Commissioner does not contest Ms. Dyre’s
impairments satisfy Listing 12.05C’s requirements of having an
adaptive functioning deficit prior to age 22 or that she
suffers from another physical or mental impairment imposing an
additional significant work-related limitation of function.
Commissioner’s Brief at 7.”
Docket No. 14, p. 2.
that is not precisely what the Defendant says.
However,
Defendant
states:
Plaintiff argues that she satisfies all
three of these distinct requirements. Pl’s
Br. at 6-12. However, the only relevant
requirement in this case is the IQ score
because that is the factor the ALJ relied
on to find that plaintiff did not meet
Listing 12.05(c) (Tr. 18).
Docket No. 13, p. 7.
Accordingly, the Defendant does not
concede adaptive functioning, so much as argue that the ALJ
did not even need to address that issue.
But, in fact, the
ALJ’s decision states, “in this case, the evidence also fails
to establish the presence of the “paragraph C” criteria of
12.06, as the claimant has not shown a complete inability to
17
function independently...”
specifically
discredited
Docket No 9, Tr. 18.
Ms.
Dyre’s
claims
The ALJ
of
limited
functioning, stating, “the objective findings in this case
fail to provide strong support for the claimant’s allegations
of
disabling
limitations.”
Docket
No.
9,
Tr.
20.
Accordingly, to consider the adaptive functioning issue, the
Court must first consider the ALJ’s credibility determination.
The
standard
settled.
“In
regarding
order
to
credibility
assess
a
findings
claimant's
is
well
subjective
complaints, the ALJ must make a credibility determination by
considering
frequency,
the
and
claimant's
intensity
daily
of
the
activities;
pain;
duration,
precipitating
and
aggravating factors; dosage, effectiveness and side effects of
medication; and functional restrictions.”
Mouser v. Astrue,
545 F.3d 634, 638 (8th Cir. 2008) citing Polaski v. Heckler,
739 F.2d 1320, 1322 (8th Cir. 1984).
The ALJ may not discount
subjective complaints solely because they are not supported by
objective medical evidence.
An ALJ must have sufficient
justification for doubting a claimant's credibility.
See
Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010) (quoting
Schultz
v.
Astrue,
479
F.3d
18
979,
983
(8th
Cir.
2007)).
However, “[a] disability claimant's subjective complaints of
pain may be discounted if inconsistencies in the record as a
whole bring those complaints into question.”
Gonzales v.
Barnhart, 465 F.3d 890, 895 (8th Cir. 2006).
As
stated
above,
the
ALJ
may
only
discount
the
plaintiff’s allegations if they are inconsistent with the
record as a whole.
In this case, Ms. Dyre testified that she
can not drive, was not capable of getting a GED, and has
problems understanding things like IQ testing. See Docket No.
9,
Tr.
39-41.
She
testified
that
she
Grandparents, who help take care of her.
40.
lives
with
her
Docket No. 9, Tr.
Her Grandmother often prepares her meals and helps her
with daily functions like reading the mail. Docket No. 9, Tr.
40-41.
She also gets reading help from her mother.
Docket
No. 9, Tr. 41.
Ms. Dyre also testified that she often has anger issues,
especially when she is frustrated.
Docket No. 9, Tr. 42.
gets into arguments on average twice a week.
has crying spells twice a week.
19
She also
Docket No. 9, Tr. 43-44.
testified that she often stays in bed all day.
Tr. 42.
Id.
She
She
Docket No. 9,
Ms. Shelly Dyre, the Plaintiff’s mother, also testified
before the ALJ.
a
history
of
Ms. Shelly Dyre testified that she also has
learning
disabilities
and
received
Security Disability as a result of those issues.
Social
Ms. Shelly
Dyre testified that the Plaintiff lost custody of her son
because she could not handle taking care of him.
9, Tr. 46-47.
helps
the
Ms. Shelly Dyre also stated that she often
Plaintiff
appointments.
Docket No.
with
reading
and
also
takes
her
to
Docket No. 9, Tr. 47-48.
In this case, the ALJ disregarded Ms. Dyre’s subjective
complaints without any appropriate analysis, nor did the ALJ
properly articulate inconsistencies in the record that would
demonstrate that Ms. Dyre’s testimony was not supported by the
record as a whole.
On a highly related note, the ALJ discounted Ms. Dyre’s
Mother’s statements about the Plaintiff’s condition.
The 8th
Circuit Court of Appeals has stated, “statements of lay
persons regarding a claimant's condition must be considered
when an ALJ evaluates a claimant's subjective complaints... “
Willcockson v. Astrue, 540 F.3d 878, 880-81 (8th Cir. 2008).
That Court went on to say, “witnesses such as the family
20
members who gave statements here often may be the only ones
who witness a claimant's difficulties; though the ALJ is of
course not required to accept all lay testimony, we think that
it is almost certainly error simply to ignore it altogether.”
540
Willcockson,
F.3d
at
881.
The
record,
including
indisputable facts, such as the fact that Ms. Dyre required
special education, the fact that she dropped out of school,
the fact that she lost custody of her child, the fact that she
cannot
get
allegations.
a
driver’s
license,
support
her
So does her Mother’s testimony.
subjective
There is no
medical or other evidence that discounts Ms. Dyre’s testimony.
Accordingly, the ALJ’s determination that Ms. Dyre could
function
independently
is
not
supported
by
substantial
evidence.
The next issue is where the parties spend the bulk of
their arguments.
IQ tests revealed that she had scores of 69 verbal, 68
performance, and 65 full scale. “In cases where more than one
IQ is customarily derived from the test administered, e.g.,
where verbal, performance, and full scale IQs are provided in
the Wechsler series, we use the lowest of these in conjunction
21
with 12.05.”2
D(6)(c).
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00
Ms. Dyre’s full scale score of 65 is her lowest
score.
Thus, that score should be used to determine if
Plaintiff is presumed disabled by listing 12.05C. Because the
score is between 60 and 70, Ms. Dyre is considered mildly
retarded.
However, the ALJ did not find Ms. Dyre mildly retarded.
The ALJ disregarded the score showing mild mental retardation,
based upon Dr. Peters’ statement that Ms. Dyre did not appear
to
put
forth
her
best
effort.
(The
two
state
agency
consultants, Dr. Moore and Dr. Shafer, disregarded that IQ
score for the same reason.
See Docket No. No. 13, p. 9.)
It
is undisputed that an ALJ can discount a test score if it is
not supported by the record. However, as discussed above, the
record clearly contains evidence of Ms. Dyre’s ongoing mental
limitations.3
More importantly, as stated in the Plaintiff’s
2
Wechsler series refers to a standardized intelligence
test customarily used in these types of cases.
3
The ALJ also cited to a different IQ test which
indicated that Ms. Dyre had borderline functioning. However,
the ALJ’s analysis of the second test is cursory at best.
Morever, as pointed out in the Plaintiff’s Reply brief,
“[m]oreover, the Commissioner’s argument with respect to Ms.
Dyre’s IQ score also exposes further error committed by the
ALJ: failure to discuss the weight assigned to the opinions
of the examining and non-examining physicians and the reasons
such weight was assigned. See C.F.R. § 404.1527.” Docket No.
22
brief, “[n]othing in the record indicates Dr. Peters concluded
Ms. Dyre’s test score was invalid. With respect to Ms. Dyre’s
effort in completing the test, Dr. Peters further stated,
‘Even if she had put forth her best effort, her intellectual
functioning would likely fall within the mild range of mental
retardation.
Tr. 480.
Id.’”
Docket No. 12, p. 8, citing Docket No. 9,
Clearly, the medical examiner felt that Ms. Dyre’s
IQ score was valid.
The Plaintiff correctly argues:
[t]he
ALJ’s
statement
represents
an
improper assessment of the validity of Ms.
Dyre’s IQ score... Even though the ALJ in
this case may be certified to administer IQ
tests (AR 37), it is the examining
psychiatrist or psychologist who either
validates or invalidates the score...
Here, rather than apply the proper legal
standard, the ALJ substituted his own
medical judgment for that of Dr. Peters’ by
determining Ms. Dyre’s IQ score was invalid
and
concluded
she
had
borderline
intellectual functioning, thus committing
legal error.
Docket No. 12, p. 9.
Accordingly, the ALJ’s determination
that Ms. Dyre did not have a sufficiently low IQ score is not
supported by substantial evidence and was in error.
The remaining record, including Ms. Dyre’s lack of work
history, her educational history, her testimony, her test
14, p. 2.
23
scores, and her mental health history all support a finding of
her disability.
The final 12.05C criteria requires that the Plaintiff
have another physical or mental impairment imposing additional
and significant work–related limitation of function.
Listing
12.05, 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d), 404.1525 and 404.1526).
The 8th Circuit has
stated that to be ‘significant,’ the functional limitation
under § 12.05(C) need not be disabling in and of itself,
because then the prior prongs of 12.05C would be irrelevant.
Accordingly,
substantial
standard.
something
gainful
less
than
employment
a
must
preclusion
be
the
from
any
appropriate
The 8th Circuit has endorsed a standard whereby
significant simply means more than a slight effect on the
Plaintiff’s ability to do work. Sird v. Chater, 105 F.3d 401,
403-04 (8th Cir. 1997).
Neither the ALJ nor the Defendant
address this issue in any detail. However, the ALJ determined
that Ms. Dyre suffers from Bipolar Disorder, Post Traumatic
Stress Disorder, Generalized Anxiety Disorder, and Avoidant
Personality Disorder.
See Docket No. 9, Tr. 17.
The ALJ
admitted that “the combination of the claimant’s impairments
[are] severe in that she is significantly affected in the
ability to perform basic work activities.”
24
Docket No. 9, Tr.
17.
Based on that, Ms. Dyre seems to meet the 12.05C criteria
for
additional
supported
by
mental
Ms.
impairments.
Dyre’s
testimony,
This
conclusion
discussed
above,
is
the
statements of her mother, Dr. Peters’ opinion Ms. Dyre is
“quite slow,” Docket No. 9, Tr. 481, and Dr. Courtney’s
opinion, Docket No. 9, Tr. 515.
Specifically, Dr. Courtney
examined Ms. Dyre in 2006 and opined:
[s]he seems to certainly have real learning
difficulties that are going to impact her
capacity for employment and she does not
have the temperament to deal with the
frustration of any sort of challenge. She
is a highly anxious person who has a
combination of Bipolar, PTSD, and deficit
intelligence
that
leaves
her
quite
compromised in ability to persist and
self-direct when frustrated.
It will
likely take an extended period of time for
her to be able to develop enough maturity
that she could support herself at a limited
skill level position... She has very real
problems with restlessness and focus. Her
basic mood stability is rather fragile.
Docket No. 9, Tr. 518.
In summation, the required criteria for Listing § 12.05C
includes deficits in adaptive functioning initially manifested
before age twenty-two; a valid IQ score in the appropriate
range;
and
an
additional
severe
impairment
significant work-related limitations of function.
C.F.R. pt. 404, subpt. P, app. 1, §§ 12.00A.
25
imposing
See 20
Ms. Dyre has a
score in the valid range, which is supported by substantial
evidence.
Ms. Dyre has several, other, severe impairments
including
Anxiety
Disorder,
Traumatic Stress Disorder.
Bipolar
Disorder,
and
Post
Accordingly, Ms. Dyre has met all
§ 12.05 criteria and is disabled as result of mild mental
retardation.
B.
Hypothetical
When questioned by the ALJ, the vocational expert noted
that Ms. Dyre has no past relevant work experience.
However,
the vocational expert testified that Ms. Dyre would be able to
perform various unskilled work including her past relevant
work and other jobs.
Docket No. 9, Tr. 50-51.
However, those
questions were premised on the ALJ’s conclusion that Ms. Dyre
would be able to leave her home and interact with others at a
functional intellectual level.
When the hypothetical was
modified to include a limitation on Ms. Dyre’s pace and
ability
to
interact
with
others,
the
vocational
expert
testified that the individual would not be able to perform the
work or maintain work in the national economy.
Tr. 51-53.
26
Docket No. 9,
As has been repeatedly stated, “[a] vocational expert's
testimony constitutes substantial evidence when it is based on
a hypothetical that accounts for all of the claimant's proven
impairments.”
Buckner v. Astrue, 646 F.3d 549, 560–61 (8th
Cir. 2011). “[T]he hypothetical need not frame the claimant's
impairments in the specific diagnostic terms used in medical
reports, but instead should capture the concrete consequences
of those impairments.”
Id.
(quoting Hulsey v. Astrue, 622
F.3d 917, 922 (8th Cir. 2010)).
Based on the forgoing analysis regarding credibility,
intellectual functioning, and social functioning, the Court is
persuaded that the ALJ failed to properly articulate Ms.
Dyre’s limitations in the hypothetical question(s) to the
vocational expert.
The hypothetical questions that most
closely stated all of Ms. Dyre’s limitations were those posed
to the vocational expert by Ms. Dyre’s attorney.
In response
to those questions, the vocational expert stated that no jobs
exist that Ms. Dyre could perform on a “sustained basis.”
Docket No. 9, Tr. 52.
VI.
CONCLUSION
It is clear the ALJ erred in finding that Ms. Dyre did
not meet the Listing § 12.05C criteria and in constructing the
27
hypothetical scenarios posed to the vocational expert.
The
question thus becomes whether this Court should remand for
further consideration or solely for the purpose of awarding
benefits.
This Court has the authority to reverse a decision of the
Commissioner,
“with
or
without
remanding
the
cause
for
rehearing, “but the Eighth Circuit has held that a remand for
an award of benefits is appropriate only where “the record
‘overwhelmingly supports’” a finding of disability. 42 U.S.C.
405(g); Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000)
(citing Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir.
1992).
The Court has considered the entire record, the parties’
briefs, and the arguments presented at hearing. In this case,
overwhelming evidence supports a conclusion that Ms. Dyre
meets the Listing § 12.05C criteria.
Accordingly, a finding
of disability is appropriate.
Therefore,
remanded
solely
the
decision
for
the
of
the
ALJ
calculation
is
of
reversed
benefits
and
from
Plaintiff’s claimed onset of disability.
Application for attorney fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (EAJA), must be filed
28
within thirty (30) days of the entry of final judgment in this
action.
Thus,
unless
this
decision
is
appealed,
if
plaintiff’s attorney wishes to apply for EAJA fees, it must be
done within thirty (30) days of the entry of the final
judgment in this case.
IT IS SO ORDERED this 4th day of March, 2015.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
29
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