Howell v. Colvin

Filing 17

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the relief which Plaintiff seeks in her Complaint and Brief in Support of Complaint is GRANTED in part, and DENIED, in part. (Docs. 1, 13). IT IS FURTHER ORDERED that a Judgment of Reversal and Remand w ill issue contemporaneously herewith remanding this case to the Commissioner of Social Security for further consideration pursuant to 42 U.S.C. § 405(g),sentence 4. IT IS FINALLY ORDERED that, upon entry of the Judgment, the appeal period will begin which determines the thirty (30) day period in which a timely application for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, may be filed.. Signed by Magistrate Judge Noelle C. Collins on 2/9/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

KAREN HOWELL,

)
)
Plaintiff,
)
)
V.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 1:15CV20NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner denying the application of Karen Howell
(Plaintiff) for Supplemental Security Income (SSI), under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381 et seq. Plaintiff has filed a brief in support of the
Complaint. (Doc. 13). Defendant has filed a brief in support of the Answer. (Doc.
16). The parties have consented to the jurisdiction of the undersigned United
States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). (Doc. 8).
I.
PROCEDURAL HISTORY
On February 8, 2011, Plaintiff filed her application for SSI. (Tr. 97-103).
Plaintiff alleged a disability onset date of June 15, 2010. Plaintiff’s application
was denied, and she requested a hearing before an Administrative Law Judge

(ALJ). (Tr. 25, 43-47, 50). After a hearing, by decision, dated September 20,
2013, the ALJ found Plaintiff not disabled. (Tr. 11-20). On December 4, 2014, the
Appeals Council denied Plaintiff’s request for review. (Tr. 5-7). As such, the
ALJ’s decision stands as the final decision of the Commissioner.
II.
LEGAL STANDARDS
Under the Social Security Act, the Commissioner has established a five-step
process for determining whether a person is disabled. 20 C.F.R. §§ 416.920,
404.1529. “‘If a claimant fails to meet the criteria at any step in the evaluation of
disability, the process ends and the claimant is determined to be not disabled.’”
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for
disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant
must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social
Security Act defines “severe impairment” as “any impairment or combination of
impairments which significantly limits [claimant’s] physical or mental ability to do
basic work activities.” Id. “The sequential evaluation process may be terminated
at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page
v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari,
2

250 F.3d 603, 605 (8th Cir. 2001) (citing Nguyen v. Chater, 75 F.3d 429, 430-31
(8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the Regulations. 20 C.F.R.
§§ 416.920(d), 404.1520(d); pt. 404, subpt. P, app. 1. If the claimant has one of, or
the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant’s age, education, or work history. See id.
Fourth, the impairment must prevent the claimant from doing past relevant
work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at
this fourth step to establish his or her Residual Functional Capacity (RFC). See
Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this
analysis, the claimant has the burden of showing that she is disabled.”);
Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ
will review a claimant’s RFC and the physical and mental demands of the work the
claimant has done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other
work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential
analysis, the Commissioner has the burden of production to show evidence of other
jobs in the national economy that can be performed by a person with the claimant’s

3

RFC. See Steed, 524 F.3d at 874 n.3; Young, 221 F.3d at 1069 n.5. If the
claimant meets these standards, the ALJ will find the claimant to be disabled.
“The ultimate burden of persuasion to prove disability, however, remains with the
claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004)
(citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of production
shifts to the Commissioner at step five.”); Charles v. Barnhart, 375 F.3d 777, 782
n.5 (8th Cir. 2004) (“[T]he burden of production shifts to the Commissioner at step
five to submit evidence of other work in the national economy that [the claimant]
could perform, given her RFC.”).

Even if a court finds that there is a

preponderance of the evidence against the ALJ’s decision, the decision must be
affirmed if it is supported by substantial evidence. See Clark v. Heckler, 733 F.2d
65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th
Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). In Bland v.
Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals
held:

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The concept of substantial evidence is something less than the weight
of the evidence and it allows for the possibility of drawing two
inconsistent conclusions, thus it embodies a zone of choice within
which the Secretary may decide to grant or deny benefits without
being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not
reverse merely because substantial evidence exists for the opposite decision.”)
(quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (“[R]eview of the Commissioner’s
final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the
factual record de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993);
Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Instead, the district court
must simply determine whether the quantity and quality of evidence is enough so
that a reasonable mind might find it adequate to support the ALJ’s conclusion. See
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ,
who is the fact-finder. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).
See also Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an
ALJ’s decision is conclusive upon a reviewing court if it is supported by
“substantial evidence”). Thus, an administrative decision which is supported by

5

substantial evidence is not subject to reversal merely because substantial evidence
may also support an opposite conclusion or because the reviewing court would
have decided differently.

See Krogmeier, 294 F.3d at 1022.

See also

Eichelberger, 390 F.3d at 589; Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000)
(quoting Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998)); Hutsell v. Massanari,
259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by
substantial evidence, the court is required to review the administrative record as a
whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s
physical activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.
1980); Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).

6

Additionally, an ALJ’s decision must comply “with the relevant legal
requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
The Social Security Act defines disability as the “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 has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the claimant has the burden of
proving that the disability results from a medically determinable physical or mental
impairment, direct medical evidence of the cause and effect relationship between
the impairment and the degree of claimant’s subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When
evaluating evidence of pain, the ALJ must consider:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant’s pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992);
Polaski, 739 F.2d at 1322.

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The absence of objective medical evidence is just one factor to be
considered in evaluating the plaintiff’s credibility. See id. The ALJ must also
consider the plaintiff’s prior work record, observations by third parties and treating
and examining doctors, as well as the plaintiff’s appearance and demeanor at the
hearing. See Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at 1186.
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him or her to reject the plaintiff’s
complaints. See Guilliams, 393 F.3d at 801; Masterson, 363 F.3d at 738; Lewis v.
Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v. Chater, 62 F.3d 220, 223 (8th
Cir. 1995). It is not enough that the record contains inconsistencies; the ALJ must
specifically demonstrate that he or she considered all of the evidence. Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972
(8th Cir. 2000)). The ALJ need only acknowledge and consider those factors. See
id. Although credibility determinations are primarily for the ALJ and not the court,
the ALJ’s credibility assessment must be based on substantial evidence.

See

Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler, 780
F.2d 1371, 1374 (8th Cir. 1985).

8

RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a)(1), and includes an assessment of physical abilities and
mental impairments. 20 C.F.R. § 404.1545(b)-(e). The Commissioner must show
that a claimant who cannot perform his or her past relevant work can perform other
work which exists in the national economy. See Karlix v. Barnhart, 457 F.3d 742,
746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy v. Schweiker, 683
F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first prove
that the claimant retains the RFC to perform other kinds of work. See Goff, 421
F.3d at 790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by
substantial evidence. Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
Second, once the plaintiff’s capabilities are established, the Commissioner has the
burden of demonstrating that there are jobs available in the national economy that
can realistically be performed by someone with the plaintiff’s qualifications and
capabilities. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert
(VE) may be used. An ALJ posing a hypothetical to a VE is not required to
include all of a plaintiff’s limitations, but only those which the ALJ finds credible.
See Goff, 421 F.3d at 794 (“[T]he ALJ properly included only those limitations
supported by the record as a whole in the hypothetical.”); Rautio, 862 F.2d at 180.
Use of the Medical-Vocational Guidelines is appropriate if the ALJ discredits the

9

plaintiff’s subjective complaints of pain for legally sufficient reasons. See Baker
v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v. Sullivan, 902 F.2d
1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989).
III.
DISCUSSION
The issue before the court is whether substantial evidence supports the
Commissioner’s final determination that Plaintiff was not disabled. See Onstead,
962 F.2d at 804. Thus, even if there is substantial evidence that would support a
decision opposite to that of the Commissioner, the court must affirm her decision
as long as there is substantial evidence in favor of the Commissioner’s position.
See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
Plaintiff, who was born on July 23, 1977, alleged disability based on back
problems, chronic obstructive pulmonary disease (COPD), anxiety, left leg and
hand problems, depression, and a learning disability. (Tr. 30, 114). Plaintiff
testified, at the hearing, that she had pain in her left shoulder and above her head
with reaching; that she had anxiety attacks twice a week or more; that her anxiety
attacks were caused by stress and by being around other people; and that she had
crying spells twice a week, during which time she isolated herself. (Tr. 337-39,
347).
The ALJ found that Plaintiff had not engaged in substantial gainful activity
since February 8, 2011, her application date; that Plaintiff had the severe
10

impairments of degenerative disc disease, left rotator cuff syndrome, affective
disorder, anxiety/panic disorder with agoraphobia, and borderline intellectual
functioning; and that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed impairment. The ALJ found
that Plaintiff had the following RFC: Plaintiff could lift and carry up to 20 pounds
occasionally and up to 10 pounds frequently; she could stand and walk up to 6
hours in an 8-hour day; she could sit up to 6 hours in an 8-hour day; she could
never climb ladders, ropes, or scaffolds; she could occasionally crouch, stoop,
crawl, kneel, balance, and climb ramps and stairs; she could occasionally reach
overhead with her left arm; she could perform simple, repetitive, and routine tasks;
and she could have occasional interaction with the general public, co-workers, or
supervisors. Further, the ALJ concluded that Plaintiff was unable to perform her
past relevant work; that, based on the testimony of a VE, and considering her age,
education, work experience, and RFC, there were jobs, existing in significant
numbers in the national economy, which Plaintiff could perform; and that,
therefore, Plaintiff was not disabled within the meaning of the Act. (Tr. 13-20).
Plaintiff contends that the ALJ’s decision is not supported by substantial
evidence because: The ALJ failed to find Plaintiff met or equaled Listing 12.05C;
the ALJ failed to support his decision at Step 5 of the sequential analysis; and the
VE’s testimony differed from the Dictionary of Occupational Titles (DOT) in

11

regard to Plaintiff’s ability to reach overhead with her left arm. For the following
reasons, the court will reverse and remand this matter.
A.

Listing 12.05C:
The court first notes that 20 C.F.R. Ch. lll, Pt. 404, Supt. P, App. 1 §

12.00(a) states, in relevant part, that:
The evaluation of disability on the basis of mental disorders requires
documentation of a medically determinable impairment(s),
consideration of the degree of limitation such impairment(s) may
impose on your ability to work, and consideration of whether these
limitations have lasted or are expected to last for a continuous period
of at least 12 months.
Section 12.00(a) further lists mental disorders in diagnostic categories,
which include, among others, intellectual disabilities (§ 12.05).1

The

Commissioner has supplemented the familiar five-step sequential process for
generally evaluating a claimant's eligibility for benefits with additional regulations
dealing specifically with mental impairments. 20 C.F.R. § 404.1520a. A special
procedure must be followed at each level of administrative review. See Pratt v.
Sullivan, 956 F.2d 830, 834 n.8 (8th Cir. 1992) (per curiam).
In 2013, the Regulations replaced the term “mental retardation” with “intellectual
disability.” See Change in Terminology: “Mental Retardation” to “Intellectual
Disability,” 78 Fed. Reg. 46499–01 (Aug. 1, 2013). “Both terms ‘describe the
identical phenomenon,’ and the change in nomenclature has been approved by
Congress and members of the psychiatric profession.” See Johnson v. Colvin, 788
F.3d 870, 873 n.3 (8th Cir. 2015) (citing Hall v. Florida, 134 S. Ct. 1986, 1990
(2014) and Rosa’s Law, Pub.L. No. 111–256, 124 Stat. 2643 (2010)). The court
will, therefore, use the term “intellectual disability” instead of “mental retardation”
unless directly quoting or paraphrasing another source.
1

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The mere existence of a mental condition, however, is not per se disabling.
See Lott v. Colvin, 772 F.3d 546, 549 (8th Cir. 2014); Dunlap v. Harris, 649 F.2d
637, 638 (8th Cir. 1981).

The sequential process for evaluating mental

impairments is set out in 20 C.F.R. § 404.1520a. This Regulation states that the
steps set forth in § 404.1520 also apply to the evaluation of a mental impairment.
§ 404.1520a(a). However, other considerations are included. The first step is to
record pertinent signs, symptoms, and findings to determine if a mental
impairment exists. 20 C.F.R. § 404.1520a(b)(1). These are gleaned from a
mental status exam or psychiatric history and must be established by medical
evidence consisting of signs, symptoms, and laboratory findings. 20 C.F.R. §§
404.1520a(b)(1).
If a mental impairment is found, the ALJ must then analyze whether certain
medical findings relevant to ability to work are present or absent. 20 C.F.R. §
404.1520a(b)(1).

The procedure then requires the ALJ to rate the degree of

functional loss resulting from the impairment in four areas of function which are
deemed essential to work. 20 C.F.R. § 404.1520a(c)(2). Those areas are: (1)
activities of daily living; (2) social functioning; (3) concentration, persistence, or
pace; and (4) deterioration or decompensation in work or work-like settings. 20
C.F.R. § 404.1520a(c)(3).

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The limitation in the first three functional areas of activities of daily living
(social functioning and concentration, persistence, or pace) is assigned a
designation of either Anone, mild, moderate, marked, [or] extreme.@ 20 C.F.R. §
404.1520a(c)(4). The degree of limitation in regard to episodes of decompensation
is determined by application of a four-point scale: A[n]one, one or two, three, four
or more.@ Id. When Athe degree of [] limitation in the first three functional areas@
is Anone@ or Amild@ and Anone@ in the area of decompensation, impairments are not
severe, Aunless the evidence otherwise indicates that there is more than a minimal
limitation in [a claimant=s] ability to do basic work activities.@

20 C.F.R. §

404.1520a(d)(1). When it is determined that a claimant=s mental impairment(s) are
severe, the ALJ must next determine whether the impairment(s) meet or are
equivalent in severity to a listed mental disorder. This is done by comparing the
medical findings about a claimant=s impairment(s) and the rating of the degree of
functional limitation to the criteria of the appropriate listed mental disorder. See
20 C.F.R. § 404.1520a(d)(2). If it is determined that a claimant has Aa severe
mental impairment(s) that neither meets nor is equivalent in severity to any
listing,@ the ALJ must then assess the claimant=s RFC.

20 C.F.R. §

404.1520a(d)(3).
The Regulations state:
12.05 Intellectual disability: Intellectual disability refers to
significantly subaverage general intellectual functioning with deficits
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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.
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.
20 C.F.R. § Pt. 404, Subpt. P, App. 1 (emphasis added).
In particular, to show that his or her impairment meets subsection C of
Listing 12.05, a claimant must show that he or she had: (1) significantly
subaverage general intellectual functioning with deficits in adaptive functioning

15

manifesting prior to age twenty-two; (2) a valid verbal, performance, or full scale
IQ of 60 to 70; and (3) another physical or mental impairment imposing an
additional and significant work-related limitation of function. See 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.05C. A claimant must show that he or she meets all of
the criteria for the listed impairment, and “[a]n impairment that manifests only
some of those criteria, no matter how severely, does not qualify.” See Sullivan v.
Zebley, 493 U.S. 521, 531 (1990); 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00; 20
C.F.R. § 416.925(d).

See also Lott, 772 F.3d at 549 (“An impairment that

manifests only some of [a Listing’s] criteria, no matter how severely, does not
qualify.”) (internal quotation and citation omitted).
Thus, for Plaintiff to meet Listing 12.05C, she “need[ed] the following: (1)
a valid verbal, performance, or full scale IQ of 60 to 70; (2) an additional ‘severe’
impairment; and (3) evidence supporting the onset of intellectual and adaptive
functioning disability before age twenty-two.” Id. After considering the evidence
of record, the ALJ found that Plaintiff did not meet Listing 12.05C in that she did
not have the requisite deficits in adaptive functioning or the requisite IQ before the
age of twenty-two, as contemplated by that Listing. (Tr. 14).
Notably, at the administrative hearing, Plaintiff’s counsel acknowledged that
Plaintiff did not have an IQ score that met the criteria for Listing 12.05C. In fact,
Plaintiff’s attorney stated that Plaintiff had a full-scale IQ of 71, but argued that

16

this score is very close to that required by Listing 12.05C. Plaintiff’s counsel
further stated that he understood that Plaintiff’s full scale score of 71 “may not
meet or equal the listing, but [he] just wanted to kind of bring [it] to the . . . Court’s
attention.” (Tr. 345-46).
Plaintiff argues before this court that, even though the record does not
demonstrate she had a qualifying IQ score before age twenty-two, other evidence
establishes she had the requisite IQ to meet the Listing. In particular, Plaintiff
argues that she has established that she had the requisite IQ prior to her attaining
the age of twenty-two based on her participation in special education and in selfcontained classrooms beginning in ninth grade, her dropping out of school because
“they wanted her to repeat some classes,” and her being suspended twice for
fighting with other students while in school. (Doc. 13 at 8).
The record reflects, however, that Plaintiff attended regular classes, in
addition to special education classes, and that she earned Bs and Cs while in
school. (Tr. 146-47). See Johnson v. Colvin, 788 F.3d 870, 872 (8th Cir. 2015)
(finding claimant did not meet Listing 12.05C where claimant attended some
special-education classes in school, could “read a little,” struggled with algebra and
history, and ultimately dropped out of school after completing the ninth grade).
Also, Plaintiff told Jonathan D. Rosenboom, Psy. D., that she missed days in high
school due to her drinking alcohol. (Tr. 182).

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Moreover, Dr. Rosenboom, a consultative examiner, administered the
Wechsler Adult Intelligence Scale - Fourth Edition (WAIS-IV), on September 9,
2011. Pursuant to this testing, Dr. Rosenboom reported that Plaintiff had a full
scale IQ score of 71, a verbal comprehension index score of 74, a perceptual
reasoning index score of 69, and a working memory index score of 77, all of which
scores were “borderline,” with the exception of the perceptual reasoning index
score which was “extremely low.” Dr. Rosenboom also reported that Plaintiff had
a processing speed index score of 86, which was “low average.”

(Tr. 184).

According to Dr. Rosenboom’s opinion, Plaintiff’s full scale IQ score and various
index scores represented “a reliable and valid estimate of [Plaintiff’s] current and
characteristic level of intellectual functioning.” (Tr. 184).
As for activities of daily living, the ALJ found that Plaintiff had only a mild
restriction in this area. In this regard, the ALJ considered that Plaintiff reported
that she was “able to see to her personal needs and get her children off to school.”
(Tr. 14). Significantly, Plaintiff acknowledges that she reported caring for herself
and her children, but argues that her ability to perform activities of daily living
does not suggest that she “is not mentally retarded” and suggests that her living
with others supports a finding that her limitation in regard to activities of daily
living was more severe than found by the ALJ. (Doc. 13 at 9). Nonetheless, there
is no evidence that Plaintiff was dependent upon others for toileting, eating,

18

dressing, or bathing. See 20 C.F.R. Pt. 404, Subpt. 1, § 12.00C(1) (“Activities
such as cleaning, shopping, cooking, taking public transportation, paying bills,
maintaining a residence, caring appropriately for your grooming and hygiene,
using telephones and directories, and using a post office are considered “adaptive
activities.”).
Further, the court notes that Plaintiff stated, in a Function Report – Adult,
that her alleged disabling conditions did not affect her ability to dress, bathe, care
for her hair, feed herself, or use the toilet, and that she prepared her own meals
twice a day. Further, Plaintiff reported that she was able to care for her children,
with help from her boyfriend; that she drove a car and went out alone; that she
shopped in stores for food and household items; and that she read and watched
television. (Tr. 122-25, 130). See McGee v. Astrue, 291 Fed. App’x. 783, 787
(8th Cir. 2008) (per curiam) (maintaining a home and raising young children
inconsistent with the Listing level for an intellectual disability). See also Johnson,
788 F.3d at 872 (“Johnson can read, write, and count change; can care for herself
and her youngest son, whom she raised from infancy; and can perform most
household tasks. These activities are not consistent with the deficits in adaptive
functioning contemplated by Listing 12.05C.”); Miles v. Barnhart, 374 F.3d 694,
699 (8th Cir. 2004) (passing driver’s license test and driving a car were
inconsistent with Listing 12.05 criteria).

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Additionally, although a formal diagnosis of an intellectual disability is not
required to meet Listing 12.05C, it is notable that the record does not reflect that
any of Plaintiff’s medical providers diagnosed her with a qualifying intellectual
disability. (Tr. 145-47, 161-80, 203-326). As considered by the ALJ, it was often
reported that Plaintiff was cooperative, appropriately or well-groomed, and
oriented to time, person, place, and situation; that she had intact receptive and
expressive language; that she had normal association, judgment, motoric behavior,
speech, thought processes, and attitude; and that she had an ability and willingness
to learn. (Tr. 31, 166, 170, 171, 174, 177, 178, 213, 218, 221, 251, 254, 256, 257,
259, 262, 265, 268, 269, 276, 277, 280, 288, 294, 297, 300, 301, 304, 305, 307,
325).
Notably, Dr. Rosenboom reported, pursuant to Plaintiff’s mental status
examination, that: Plaintiff made “adequate and appropriate eye contact”; she had
no “bizarre posturing”; Plaintiff’s speech had “adequate rate, volume, pitch, and
productivity”; her range of oral vocabulary “was not significantly restricted and her
grammar was generally good”; she was cooperative, showed good motivation, and
appeared to be a reliable informant; she was awake, alert, and attentive during the
examination; she was oriented to “all aspects of time”; her immediate auditory
memory and delayed auditory recall were not grossly impaired; and her sensorium
was “overall” grossly intact. Dr. Rosenboom opined, pursuant to his examination

20

of Plaintiff, that her ability to understand, remember and carry out complex
instructions was “slightly impaired”; that Plaintiff’s ability to respond
appropriately to work supervisors, co-workers, and work stressors was “mildly
impaired” by her panic attacks; and that Plaintiff did possess the capacity to
manage her finances. (Tr. 185-86).
Also, as considered by the ALJ, pursuant to his September 9, 2011
examination of Plaintiff, Dr. Rosenboom diagnosed Plaintiff with borderline
intellectual functioning, which diagnosis is contrary to a finding that a claimant has
a qualifying intellectual disability. (Tr. 17-18, 181-86). See Cox v. Astrue, 495
F.3d 614, 618 (8th Cir. 2007) (holding that an effective diagnosis of borderline
intellectual functioning is contrary to a finding of a mild intellectual disability).2
Indeed, the American Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 41 (4th ed. 2000) (DSM-IV), states that “[t]he essential feature
2

The court held, in Cox, 495 F.3d at 618:
In light of this direct, precise, and extensive discussion in
Dr. Ziolko's report, which supports and culminates in an
effective diagnosis of borderline intellectual functioning, we
conclude that her remark indicating a contrary diagnosis of
mild mental retardation was the result of inadvertence or
imprecision. To hold otherwise would require the improbable
conclusion that Dr. Ziolko had intended to offer a cursory
diagnosis in direct contradiction to the careful findings and
conclusions she thoroughly recounted and characterized on
prior pages, and in direct contradiction to the defining
diagnostic characteristics of mental retardation as identified by
the DSM-IV that her analysis explicitly addressed.
21

of Mental Retardation is significantly subaverage general intellectual functioning .
. . accompanied by significant limitations in adaptive functioning in at least two
[enumerated] skill areas.” Id. (emphasis added).
Similarly, Scott Brandhorst, Psy. D., a state-agency psychologist, reviewed
Plaintiff’ medical records, and, after doing so, specifically considered and rejected
a diagnosis of “Mental Retardation,” noted that Plaintiff had been diagnosed with
borderline intellectual functioning, and opined that Plaintiff’s ability to understand,
remember, and carry out complex instructions was “slightly impaired” by her
borderline intellectual functioning. (Tr. 18, 189, 191, 194). As considered by the
ALJ, Dr. Brandhorst’s opinion was entitled to great weight because his opinion
was consistent with the evidence and because, as a state-agency psychologist, he
was familiar with the definitions and evidentiary standards applicable to Social
Security disability determinations. (Tr. 18). See 20 C.F.R. §§ 404.1527(f)(2)(i),
416.927(f)(2)(i) (holding that state agency medical consultants are highly qualified
experts in Social Security disability evaluation; therefore, ALJs must consider their
findings as opinion evidence).
The court finds, regardless of Plaintiff’s IQ scores, that substantial evidence,
including statements made by Plaintiff’s counsel, Plaintiff’s self-reporting of her
functional limitations, and the findings of Dr. Brandhorst and Dr. Rosenboom,
supports the ALJ’s conclusion that Plaintiff did not meet the threshold requirement

22

of Listing 12.05C - that she demonstrate “significantly subaverage intellectual
functioning with deficits in adaptive functioning initially manifested during the
developmental period.” (Tr. 14-15). See, e.g., Cheatum v. Astrue, 388 F. App’x
574, 576-77 (8th Cir. 2010) (unpublished) (holding that, where plaintiff had a valid
verbal IQ score of 69, she did not meet the requirements for 12.05C because she
did not demonstrate the necessary deficits in adaptive functioning before age 22
required for the diagnosis of intellectual disability) (citing Randall v. Astrue, 570
F.3d 651, 659–60 (5th Cir. 2009) (holding that Listing 12.05 requires claimant to
demonstrate deficits in adaptive functioning in case where claimant otherwise
meets the requirements of Listing 12.05C). In any case, the court finds that
substantial evidence supports the ALJ’s conclusion that Plaintiff did not have the
requisite IQ score to meet the criteria for Listing 12.05C, and that the ALJ’s
decision, in this regard, is consistent with the Regulations and case law.
To the extent Plaintiff argues that the ALJ should have inquired further
regarding Plaintiff’s functional limitations, it was Plaintiff’s burden to establish
that she met all of the requirements of Listing 12.05C. Blackburn v. Colvin, 761
F.3d 853, 858 (8th Cir. 2014). To the extent Plaintiff argues that the ALJ did not
provide a thorough analysis of Plaintiff’s adaptive functioning manifesting before
age twenty-two (Doc. 13 at 8), as discussed above, the ALJ engaged in a lengthy
narrative of Plaintiff’s ability to care for herself and her lack of dependence upon

23

others or caring for her personal needs, and concluded that Plaintiff was not
dependent upon others. Although the ALJ did not specifically limit his discussion
of Plaintiff’s adaptive functioning to the period before she turned twenty-two,
some of the evidence considered by the ALJ, including Plaintiff’s performance in
school, related to her adaptive functioning prior to her turning twenty-two.
To the extent Plaintiff points to her limited work history as evidence that she
had deficits in adaptive functioning consistent with Listing 12.05C (Doc. 13 at 9),
Plaintiff stated, in a Disability Report – Adult, that she stopped working because
she “did not want to work.” (Tr. 114). See Medhaug v. Astrue, 578 F.3d 805,
816-17 (8th Cir. 2009) (holding that leaving work for reasons unrelated to an
alleged disabling impairment weighs against a finding of disability). Plaintiff’s
past employment, moreover, included her working in home health care and as a
cashier at a gas station. See Hillier v. Soc. Sec. Admin, 486 F.3d 359, 367 n.5 (8th
Cir. 2007) (“[T]he cashier II (clerical) and check cashier positions require level
three reasoning development, defined as the ability to ‘[a]pply commonsense
understanding to carry out instructions furnished in written, oral, or diagrammatic
form’ and ‘[d]eal with problems involving several concrete variables in or from
standardized situations.’”) (quoting the DOT, app. C) (http://www.oalj.dol.gov/
PUBLIC/DOT/REFERENCES/DOTAPPC.HTM).

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Further, Plaintiff denied relationship problems with supervisors and general
problems with authority figures. In fact, Plaintiff reported that she got along
“good” with authority figures. (Tr. 127, 132, 183).
Additionally, upon considering whether Plaintiff met the requirements of
Listing 12.05C, the ALJ considered the medical evidence, as required by the first
step of a mental impairment analysis. See Pratt, 956 F.2d at 835; 20 C.F.R. §§
404.1520a(b)(1), 404.1508.

In conclusion, the court finds that the ALJ’s

determination that Plaintiff did “not have a deficit in adapt[ive] functioning
initially manifested during the developmental period” and that she did not have “a
valid verbal, performance or full scale IQ of 60 through 70” is based on substantial
evidence and consistent with the Regulations and case law.
To the extent Plaintiff argues that the ALJ erred by not finding the medical
equivalence of Listing 12.05C (Doc. 13 at 10-11), the ALJ did consider, at Step 3,
whether Plaintiff met or equaled any Listing.

(Tr. 28).

Regarding medical

equivalence, the Program Operation Manual System (POMS) guidelines state: “To
determine that such a mental impairment does not meet but equals a listed
impairment, it must first be shown that the capsule definition of that impairment is
satisfied. The capsule definition follows the diagnostic category, e.g., Organic
Mental Disorders, and describes the essential features of the impairment.” Social
Security Administration, POMS DI 24515.056 (available at https://secure.ssa.gov/

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apps10/poms.nsf/lnx/0424515056). Listing 12.05C requires subaverage intellectual
functioning and adaptive functioning deficits manifested before age twenty-two;
and, as found above, substantial evidence supports the ALJ’s finding that Plaintiff
did not suffer deficits in adaptive functioning. See McDonald v. Colvin, 2013 WL
5406612, at *11 (E.D. Mo. Sept. 25, 2013) (finding plaintiff did not medically
equal Listing 12.05C because he did not suffer adaptive functioning deficits).
In conclusion, the court finds that substantial evidence supports the ALJ’s
conclusion that Plaintiff did not meet Listing 12.05C in that she did not have the
requisite deficits in adaptive functioning or the requisite IQ before the age of
twenty-two, as contemplated by that Listing. (Tr. 14). Further, the court finds that
the ALJ’s decision, in this regard, is based on substantial evidence and is consistent
with the Regulations and case law.
B.

Plaintiff’s Ability to Perform Other Work:
As stated above, the ALJ found Plaintiff had the following RFC: Plaintiff

could lift and carry up to 20 pounds occasionally and up to 10 pounds frequently;
she could stand and walk up to 6 hours in an 8-hour day; she could sit up to 6 hours
in an 8-hour day; she could never climb ladders, ropes, or scaffolds; she could
occasionally crouch, stoop, crawl, kneel, balance, and climb ramps and stairs; she
could occasionally reach overhead with her left arm; she could perform simple,
repetitive, and routine tasks; and she could have occasional interaction with the

26

general public, co-workers, or supervisors. Plaintiff does not challenge the ALJ’s
RFC determination other than to the extent she challenged the ALJ’s determination
that she did not meet or equal Listing 12.05C. The court has found above that the
ALJ’s decision in that regard is based on substantial evidence. As such, the court
further finds that the ALJ’s RFC determination is based on substantial evidence.
The ALJ posed a hypothetical to a VE describing a person of Plaintiff’s age
and with her education, work experience, and RFC.

To the extent Plaintiff

suggests that the ALJ should have included further limitations in the hypothetical,
the ALJ was required to include only limitations which he found credible. Martise
v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (AThe ALJ's hypothetical question to
the vocational expert needs to include only those impairments that the ALJ finds
are substantially supported by the record as a whole.@) (quoting Lacroix v.
Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)); Wildman v. Astrue, 596 F.3d 959,
969 (8th Cir. 2010) (“[T]he ALJ was not obligated to include limitations from
opinions he properly disregarded.”).
The VE testified that there were jobs in the national economy which Plaintiff
could perform, including poultry eviscerator, housekeeping/cleaner, and hand
packager.

(Tr. 349-50).

Generally, a VE’s testimony constitutes substantial

evidence supporting the ALJ=s decision. Martise, 641 F.3d at 927 (ABased on our
previous conclusion . . . that >the ALJ's findings of [the claimant=s] RFC are

27

supported by substantial evidence,= we hold that >[t]he hypothetical question was
therefore proper, and the VE's answer constituted substantial evidence supporting
the Commissioner=s denial of benefits.=@) A VE’s testimony, however, does not
absolve an ALJ of the duty to consider the DOT. See Kemp v. Colvin, 743 F.3d
630, 633 (8th. Cir. 2014) (remanding denial of benefits because “the record does
not reflect whether the VE or the ALJ even recognized the possible conflict
between the hypothetical” and the recommended job). Pursuant to this duty, the
ALJ stated that he independently considered the DOT and determined that the
VE’s testimony was consistent with the DOT. (Tr. 20).
Nonetheless, the hypothetical which the ALJ posed to the VE limited
Plaintiff to occasional reaching overhead, but DOT 525.687-074, poultry
eviscerator, requires “reaching constantly [] 2/3 or more of the time”; DOT
323.687-014, housekeeper/cleaner requires “reaching frequently [] from 1/3 to 2/3
of the time”; and DOT 920.587-018, “packager, hand,” requires “reaching
constantly [] 2/3 or more of the time.”

(emphasis added).

The court is

unpersuaded by the Commissioner’s arguments that the VE sufficiently justified
the distinction between the DOT’s description of the jobs which he testified
Plaintiff could perform and Plaintiff’s RFC. Thus, the court finds that the ALJ’s
ultimate determination that Plaintiff could work as a poultry eviscerator,
housekeeper/cleaner, or hand packager is not based on substantial evidence. The

28

court will, therefore, reverse and remand this matter. Upon remand, the ALJ
should seek clarification from a VE in regard to Plaintiff’s ability to work in these
stated jobs, and further question the VE as to whether there is work, other than
poultry eviscerator, housekeeper/cleaner, and hand packager, which Plaintiff can
perform, given her RFC, age, work experience, and education. Also, the ALJ
should independently consider the DOT.
VII.
CONCLUSION
The court finds that this matter should be reversed and remanded to the
Commissioner of Social Security for further consideration pursuant to 42 U.S.C. §
405(g), sentence 4. Upon remand, the ALJ is directed to fully develop the record
in a manner consistent with this court=s opinion.
ACCORDINGLY,
IT IS HEREBY ORDERED that the relief which Plaintiff seeks in her
Complaint and Brief in Support of Complaint is GRANTED in part, and
DENIED, in part. (Docs. 1, 13).
IT IS FURTHER ORDERED that a Judgment of Reversal and Remand
will issue contemporaneously herewith remanding this case to the Commissioner
of Social Security for further consideration pursuant to 42 U.S.C. § 405(g),
sentence 4.

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IT IS FINALLY ORDERED that, upon entry of the Judgment, the appeal
period will begin which determines the thirty (30) day period in which a timely
application for attorney=s fees under the Equal Access to Justice Act, 28 U.S.C. §
2412, may be filed.
Dated this 9th day of February, 2016.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

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