Brown v CSS

Filing 20

RULING - Therefore, the ALJ's decision is reversed and remanded solely for the calculation of benefits from the onset date. See text of Order. Signed by Senior Judge Donald E O'Brien on 1/8/13. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JANIS ELAINE BROWN
Plaintiff,

No. 12-CV-4030-DEO

v.
MICHAEL J. ASTRUE,
Commission or Social
Security

RULING

Defendant.
____________________
I.

INTRODUCTION AND BACKGROUND
This matter is before the Court on Plaintiff Janis Elaine

Brown’s [hereinafter Ms. Brown] Complaint seeking disability
benefits under 42 U.S.C. §§ 401 et seq. of the Social Security
Act (the “Act”).

The parties appeared for a telephonic

hearing on November 19, 2012. After listening to the parties’
arguments, the Court took the matter under consideration and
now enters the following:
II.

FACTUAL BACKGROUND
Ms. Brown was born on May 2, 1961, and was age 48 at the

time of the hearing. She completed ninth grade and eventually
obtained a GED.

She has little work history, occasionally

working as a babysitter for family members.

She also has

tried

to

work

in

the

cleaning

and

industries, but has not been successful.

telecommunications
Tr. 38-39.

She has

scored poorly on various IQ tests and generally has difficulty
functioning both socially and professionally.
III.

PROCEDURAL HISTORY
Ms. Brown initially filed her application for Social

Security Benefits on June 20, 2008.

Her claim was denied.

She applied for reconsideration and was denied again.

On

March 18, 2010, a hearing was held before an Administrative
Law Judge (ALJ).

On June 22, 2010, the ALJ determined that

Ms. Brown was not disabled.
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
2

meets or medically equals the criteria of a listed impairment,
(4) determination of whether a plaintiff’s Residual Functional
Capacity

(RFC)

indicates

an

incapacity

to

perform

the

requirements of his past relevant work, and (5) determination
of whether, given a Plaintiff’s 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

their

a

plaintiff’s

Residual

RFC is the “most” a person “can
limitations.
3

20

C.F.R.

§

404.1545(a)(1).

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.

. . . .”

Iowa 2009) (citing McCoy v. Schweiker, 683 F.2d 1138, 1147
(8th Cir. 1982)(en banc)). 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,
such as pain.

20 C.F.R. § 404.1545(a)(2) and (3).

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.”
4

20

C.F.R. § 404.1560(c)(2).

In other words, at step 5, the

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 determined that Ms. Brown had not engaged in substantial
gainful activity since June 20, 2008.

Tr. 19.

The ALJ also

determined that Ms. Brown had several severe impairments
including borderline intellectual functioning, depression, and
disorder of the back.

However, the ALJ determined that Ms.

Brown’s impairments did not meet the Code’s requirements for
disability.

The ALJ went onto say that Ms. Brown had the

residual functional capacity to engage in light work and that
there are jobs that exist in significant numbers that Ms.
Brown could perform.
Ms. Brown then filed the present Complaint, appealing the
ALJ’s determination.
IV.

ISSUES
Ms. Brown makes three general arguments.

First, she

argues that substantial evidence supports a finding that she
5

is disabled as a result of mental impairment as defined in 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.

Second, she argues

that the ALJ failed to determine and communicate a residual
functional capacity specific enough to determine if she is
disabled or not.

Finally, she argues that the overwhelming

evidence of record, when given the weight the rules demand,
supports a finding that Ms. Brown is disabled.
V.

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 on the record as a whole.
See 42 U.S.C. § 405(g); Finch v. Astrue, 547 F. 3d 933, 935
(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
6

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 in 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
his/her decision.

Neal v. Barnhart, 405 F.3d 685, 688 (8th

Cir. 2005); 42 U.S.C. 405(g).
VI.

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 (the “Act”).
defines 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
7

The Act

which has lasted or can be expected to last
for a continuous period of not less than 12
months . . . .
42 U.S.C. § 423(d)(1)(A).
A.

§ 12.05 Mental Impairment

Ms. Brown argues that her condition meets or equals the
criteria of Listing § 12.05C, regarding disability arising out
of a mental impairment.

Specifically, Ms. Brown 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.

Ms. Brown further asserts that even if she

does not meet the criteria for Listing 12.05C, she “equals”
it.
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.
8

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.
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.
argues

that

the

record

does

See 20

not

a

conditions

that

The Government

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 (emphasis in
original).

9

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

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
1

As discussed by counsel during the hearing, adaptive
functioning refers to a person’s ability, or attempt, to
function in society in light of their impairments.
10

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.

reject

scores

that

are

See Christner v. Astrue, 498

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 a 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. Brown has
severe mental impairments.

IQ tests revealed that she had

scores of 69 verbal, 79 performance, and 72 full scale.

As

noted in the Plaintiff’s brief, “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

11

with 12.05.”2
D(6)(c).

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00

Ms. Brown’s verbal score of 69 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. Brown is considered mildly retarded.
However, the ALJ did not find Ms. Brown retarded.

The

ALJ disregarded the score showing mild mental retardation, and
instead relied on Dr. Baker’s finding that Ms. Brown had
borderline functioning.

Tr. 19-20.

Specifically, the ALJ

found that:
Dr. Baker concluded that the claimant was
functioning in the borderline range and not
the mentally retarded range of functioning.
Moreover, at the hearing, the claimant
testified
that
she
has
difficulty
understanding things, but was able to get
a GED in the 1980s.
She also testified
that her reading ability had deteriorated
since then.
For these reasons, the
undersigned finds that the claimant was not
mentally retarded as a child.
Id.

As discussed above, an ALJ can discount a test score if

it is not supported by the record.

2

However, in this case, the

Wechsler series refers to a standardized intelligence
test customarily used in these types of cases.
12

record clearly contains evidence of Ms. Brown’s lifelong
mental disability.
Ms. Brown was easily confused by the ALJ’s questions
during the hearing. See, for example, Tr. 37, where Ms. Brown
had a hard time answering a question regarding her disability
onset date.

See also Tr. 54-5.

and dropped out of school.

She has a hard time reading

Tr. 38-9.

At times, she has

trouble recalling and communicating such simple concepts as
the order among, and number, of siblings in her family.
303-04.

Ms. Brown’s work history is almost non-existent.

Tr.
It

seems that every job that she has attempted, she has lost due
to her various issues.

The only evidence on the record that

supports the ALJ’s determination is Dr. Baker’s report, Tr.
568, and the fact that Ms. Brown got her GED.3

Accordingly,

the ALJ’s determination regarding that Ms. Brown is not
retarded under 12.05 is not supported by substantial evidence.

3

During the hearing, the Government seemed to argue that
the manner in which Ms. Brown navigated the Social Security
process indicated a higher level of intelligence. The Court
agrees that the Social Security process is complicated.
However, the fact that the Plaintiff has sought treatment or
benefits should not be, and is not, evidence of her mental
aptitude.
13

The remaining record, including Ms. Brown’s work history,
her testimony, her test scores, and her mental health history
all support a finding of her disability.

A person's IQ is

presumed to remain stable over time in the absence of any
evidence of a change in a claimant's intellectual functioning.
Muncy v. Apfel, 247 F.3d 728 (8th Cir. 2001); See, e.g.,
Branham v. Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985)
(absent contrary evidence, an IQ test taken after the insured
period correctly reflects claimant's IQ during the insured
period).

The ALJ stated that because Ms. Brown’s reading

ability had decreased over time, her mental situation has
deteriorated over time.

Tr. 20.

However, the weight of the

evidence in this case supports the finding that Ms. Brown has
always been impaired.

The ALJ’s determination that Ms.

Brown’s mental functioning has decreased is not supported by
substantial evidence.
evidence.

It is not supported, really, by any

It is merely supposition based on her statement

that her reading ability has decreased.

As indicated above,

the assumption is that a person’s IQ is stable.
is not enough to overcome that presumption.

14

Supposition

Substantial

evidence supports a finding that Ms. Brown has always been
mentally retarded.
The ALJ conceded that Ms. Brown has other physical and
mental impairments, including depression and a back disorder,
that would satisfy one of the other listings under § 12.05C.
Tr. 19.

It is clear from the record that Ms. Brown has severe

anxiety issues, as well agoraphobia, that preclude normal
functioning.4
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.

imposing
See 20

Ms. Brown has a

score in the valid range, which is supported by substantial
evidence.

Ms. Brown has several, other, severe impairments

including anxiety and agoraphobia.

Finally, there is no

concrete evidence that Ms. Brown’s condition has deteriorated
over time, and the legal assumption is that IQ remains stable
4

As used by counsel during the hearing, Agoraphobia
refers to a condition where a person is prevented from leaving
their residence because of severe anxiety and fear.
15

over time.

Accordingly, Ms. Brown has met all § 12.05

criteria and is disabled as result of mild mental retardation.
B.

Residual Capacity

Because Ms. Brown is mentally retarded, the Court need
not reach the residual capacity argument. Suffice to say that
the Court is persuaded that the ALJ erred in determining that
Ms. Brown has the residual functional capacity to work.

The

questions posed to the vocational expert were not properly
formed as they did not consider Ms. Brown’s mild mental
retardation; nor did they consider that mild retardation in
light of Ms. Brown’s anxiety and agoraphobia, which alone can
have a significant impact on a person’s ability to function
outside of the home.

Substantial evidence does not support a

finding that Ms. Brown could work and the ALJ erred in finding
that it did.
C.

Substantial Evidence

As discussed above, Ms. Brown is mentally retarded under
§ 1205.

Accordingly, substantial evidence supports a finding

that she is disabled.

16

VII.

CONCLUSION
As indicated above, the ALJ incorrectly found that Ms.

Brown was not mildly retarded.

The question becomes whether

this Court should remand for further consideration or solely
for the purpose of awarding benefits.

The Eighth Circuit has

held that a remand for award of benefits is appropriate where
“the

record

disability.

‘overwhelmingly

supports’”

a

finding

of

Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir.

2000) (citing Thompson v. Sullivan, 957 F.2d 611, 614 (8th
Cir. 1992)).
After carefully considering the evidence, this Court is
persuaded that the record overwhelmingly supports a finding of
disability as discussed above.
is

reversed

and

remanded

Therefore, the ALJ’s decision

solely

for

the

calculation

of

benefits from the onset date.
Application for attorney fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (EAJA), must be filed
within thirty (30) days of the entry of final judgment in this
action.

Thus, unless this decision is appealed, if Brown’s

attorney wishes to apply for EAJA fees, it must be done within

17

thirty (30) days of the entry of the final judgment in this
case.
IT IS SO ORDERED this 8th day of January, 2013.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

18