Morgan v. Colvin

Filing 35

MEMORANDUM: Based on the foregoing, the Court finds that the Commissioner's decision is not supported by substantial evidence on the record as a whole. Upon remand, the Commissioner should consider the educational records, including IQ scores an d psychological testing, and formulate a new RFC that is supported by substantial evidence. The Commissioner should also consider the effects Morgan's borderline intellectual functioning has on her hearing impairment. Signed by Magistrate Judge Abbie Crites-Leoni on 03/26/2020. (CMH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARY C. MORGAN,
Plaintiff,
vs.
ANDREW M. SAUL, 1
Commissioner of Social Security
Administration,
Defendant.

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Case No. 4:13 CV 766 ACL

MEMORANDUM
Plaintiff Mary C. Morgan brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the Social Security Administration Commissioner’s denial of her application
for child’s disability insurance benefits under Title II of the Social Security Act.
An Administrative Law Judge (“ALJ”) found that, despite Morgan’s severe impairments,
she was not disabled prior to attaining age 22 as she had the residual functional capacity (“RFC”)
to perform work existing in significant numbers in the national economy.
This matter is pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c). A summary of the entire record is
presented in the parties’ briefs and is repeated here only to the extent necessary.
For the following reasons, the decision of the Commissioner will be reversed and
remanded.

1

After this case was filed, a new Commissioner of Social Security was confirmed. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul is substituted for Deputy
Commissioner Nancy A. Berryhill as the defendant in this suit.
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I. Procedural History
Morgan has a lengthy history of applications for benefits. On May 5, 1986, she filed an
application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security
Act. (Tr. 14.) The State agency found that Morgan’s hearing impairment met the listing for
deafness since May 1, 1986, and she has been receiving SSI since June 1987. Id. She filed an
application for Disability Insurance Benefits under Title II on April 22, 1997, which was denied
at the State agency level due to Morgan’s lack of insured status. Id.
Morgan filed the application at issue—for disabled child’s benefits under Title II—on
March 28, 2008, claiming an alleged onset date of January 22, 1981. (Tr. 296-99.) Morgan
was born in 1959, and was 21 years of age at the time of her alleged disability onset date. (Tr.
20.) Her application was denied initially. (Tr. 122-24.) Morgan’s claim was denied by an
ALJ on July 25, 2011. (Tr. 84-98.) On September 10, 2012, the Appeals Council denied
Morgan’s claim for review. (Tr. 99-102.)
Morgan appealed to federal district court. On December 9, 2013, the United States
District Court for the Eastern District of Missouri2 remanded the matter to the Commissioner
pursuant to sentence six of 42 U.S.C. § 405(g), because the agency was unable to locate
Morgan’s file. (Doc. 19.) After remand, the agency located the claim file, and held two
administrative hearings. (Tr. 13-22.) A sign language interpreter was present to assist Morgan
at both hearings. (Tr. 13.) On August 22, 2017, an ALJ issued a new decision finding Morgan
was not disabled prior to attaining age 22. (Tr. 13-22.) The decision of the second ALJ stands
as the final decision of the Commissioner. Defendant subsequently moved to reopen the instant

2

Retired United States Magistrate Judge Lewis M. Blanton.
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case, which the undersigned granted.3
In this action, Morgan first argues that “the decision of the administrative law judge did
not properly consider all the evidence of record in finding severe medically determinable
impairments, and thus, impermissibly discarded the evidence of record regarding a cognitive
impairment.” (Doc. 29 at p. 6.) She also contends that the ALJ’s “residual functional capacity
is not supported by some evidence, as required under the standards contained in Singh and
Lauer.” Id. at p. 9.
II. The ALJ’s Determination
The ALJ first found that Morgan had not attained age 22 as of January 22, 1981, her
alleged onset date. (Tr. 16.) Morgan had not engaged in substantial gainful activity since her
alleged onset date. Id. The ALJ next found that Morgan had the following severe impairment
prior to attaining age 22: bilateral sensorineural hearing loss. (Tr. 17.) The ALJ found that
Morgan did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments. Id.
As to Morgan’s RFC, the ALJ stated:
After careful consideration of the entire record, the undersigned
finds that, prior to attaining age 22, the claimant had the residual
functional capacity to perform a full range of work at all exertional
levels but with the following nonexertional limitations: the
claimant was limited to work in a quiet environment such as a
library, private office, or museum. She could not perform work
that required hearing other than loud noises intended to alert her to
dangers or hazards in the workplace. She could not perform work
that involves interaction with the public.

3

The district court retains jurisdiction after a sentence six remand. See Travis v. Astrue, 477
F.3d 1037, 1039 (8th Cir. 2007).

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(Tr. 18.) The ALJ found that Morgan had no past relevant work, but was capable of performing
other jobs existing in significant numbers in the national economy, such as routing clerk and
linen room attendant. (Tr. 21.)
The ALJ therefore concluded that Morgan was not under a disability, as defined in the
Social Security Act, at any time prior to January 26, 1981, the date she attained age 22. (Tr. 22.)
The ALJ’s final decision reads as follows:
Based on the application for child’s insurance benefits filed on
March 28, 2008, the claimant was not disabled as defined in
section 223(d) of the Social Security Act prior to January 26, 1981,
the date she attained age 22.

Id.

III. Applicable Law
III.A. Standard of Review
The decision of the Commissioner must be affirmed if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389,
401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). Substantial evidence is less
than a preponderance of the evidence, but enough that a reasonable person would find it adequate
to support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This
“substantial evidence test,” however, is “more than a mere search of the record for evidence
supporting the Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir.
2007) (internal quotation marks and citation omitted). “Substantial evidence on the record as a
whole . . . requires a more scrutinizing analysis.” Id. (internal quotation marks and citations
omitted).
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To determine whether the Commissioner’s decision is supported by substantial evidence
on the record as a whole, the Court must review the entire administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff’s vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.

5.

Any corroboration by third parties of the plaintiff’s
impairments.

6.

The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant’s impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (internal
citations omitted). The Court must also consider any evidence which fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050
(8th Cir. 1999). However, even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (citing Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as
a whole, we must affirm the administrative decision, even if the record could also have supported
an opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal
quotation marks and citation omitted); see also Jones ex rel. Morris v. Barnhart, 315 F.3d 974,
977 (8th Cir. 2003).
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III.B. Determination of Disability
A disability is defined 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 that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant
has a disability when the claimant is “not only unable to do his previous work but cannot,
considering his age, education and work experience engage in any kind of substantial gainful
work which exists … in significant numbers in the region where such individual lives or in
several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see “whether the claimant has a severe impairment that significantly limits the
claimant’s physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343
F.3d 602, 605 (8th Cir. 2003). “An impairment is not severe if it amounts only to a slight
abnormality that would not significantly limit the claimant’s physical or mental ability to do
basic work activities.” Kirby, 500 F.3d at 707; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary
to do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include (1) physical

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functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, or handling; (2)
capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering
simple instructions; (4) use of judgment; (5) responding appropriately to supervision, coworkers, and usual work situations; and (6) dealing with changes in a routine work setting. Id. §
416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987). “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 ability to work.” Page v.
Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d);
see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional
tasks or, in other words, what the claimant can still do despite his or his physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a

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consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. §
416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other
evidence listed in the regulations. See id. If a claimant retains the RFC to perform past
relevant work, then the claimant is not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at Step Four, and
his or his age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n.5
(8th Cir. 2000). The Commissioner must prove not only that the claimant’s RFC will allow the
claimant to make an adjustment to other work, but also that the other work exists in significant
numbers in the national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004);
20 C.F.R. § 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists
in significant numbers in the national economy, then the Commissioner will find the claimant is
not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner
will find that the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(v). At Step Five, even though
the burden of production shifts to the Commissioner, the burden of persuasion to prove disability
remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
The evaluation process for mental impairments is set forth in 20 C.F.R. §§ 404.1520a,
416.920a. The first step requires the Commissioner to “record the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment” in the case record to assist in the
determination of whether a mental impairment exists. See 20 C.F.R. §§ 404.1520a(b)(1),
416.920a(b)(1). If it is determined that a mental impairment exists, the Commissioner must

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indicate whether medical findings “especially relevant to the ability to work are present or
absent.” 20 C.F.R. §§ 404.1520a(b)(2), 416.920a(b)(2). The Commissioner must then rate the
degree of functional loss resulting from the impairments. See 20 C.F.R. §§ 404.1520a(b)(3),
416.920a(b)(3). Functional loss is rated on a scale that ranges from no limitation to a level of
severity which is incompatible with the ability to perform work-related activities. See id. Next,
the Commissioner must determine the severity of the impairment based on those ratings. See 20
C.F.R. §§ 404.1520a(c), 416.920a(c). If the impairment is severe, the Commissioner must
determine if it meets or equals a listed mental disorder. See 20 C.F.R. §§ 404.1520a(c)(2),
416.920a(c)(2). This is completed by comparing the presence of medical findings and the rating
of functional loss against the paragraph A and B criteria of the Listing of the appropriate mental
disorders. See id. If there is a severe impairment, but the impairment does not meet or equal
the listings, then the Commissioner must prepare an RFC assessment. See 20 C.F.R. §§
404.1520a(c)(3), 416.920a(c)(3).
IV. Discussion
Morgan first argues that the ALJ failed to properly consider her cognitive impairment at
step two. In her related second claim, she contends that the ALJ erred in determining her RFC.
“An impairment...is not severe if it does not significantly limit [the claimant’s] physical
or mental ability to do basic work activities.” 20 C.F.R. § 416.921(a). Basic work activities
“mean the abilities and aptitudes necessary to do most jobs,” including physical functions;
capacities for seeing, hearing, and speaking; understanding, carrying out, and remembering
simple instructions; use of judgment; responding appropriately to supervision, co-workers and
usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. §
416.921(b). The burden of showing a severe impairment at step two of the sequential evaluation

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process rests with the claimant, and the burden is not great. Caviness v. Massanari, 250 F.3d
603, 605 (8th Cir. 2001); see also Gilbert v. Apfel, 175 F.3d 602, 604–05 (8th Cir. 1999) (court
to apply “cautious standard” at step 2 of evaluation process). “While ‘[s]everity is not an
onerous requirement for the claimant to meet...it is also not a toothless standard.’” Wright v.
Colvin, 789 F.3d 847, 855 (8th Cir. 2015) (quoting Kirby, 500 F.3d at 708).
The ALJ addressed Morgan’s alleged cognitive impairment in his step two analysis. He
stated that, “though the claimant’s representative argued that there is evidence of a cognitive
impairment, the evidence is limited to testing from when the claimant was substantially
younger.” (Tr. 17.) The ALJ continued that “there is no information relevant to the proscribed
period, and noting that the claimant was able to graduate from high school, the undersigned finds
insufficient evidence to support a medically determinable cognitive impairment.” Id.
Morgan argues that evidence submitted from the Special School District of St. Louis
County (“Special School District”), including IQ testing, supports the presence of a cognitive
impairment during the relevant period. That evidence is summarized as follows:
The Face Sheet from the Special School District indicated Morgan had a “language
impairment” during the years 1965, 1966, 1967, 1968, and 1969. (Tr. 572.)
Morgan underwent a “brief and fairly informal evaluation” performed by the Special
School District on August 7, 1963, at the age of four-and-a-half. (Tr. 582.) She was successful
on tests from a two-year age level through a three-and-a-half year age level when the tests did
not require any speech from her and did not require verbal directions. The examiner noted that
it seemed apparent that Morgan “was hearing the examiner when she spoke but she apparently
got no meaning from what she heard; and she made some sounds but nothing that even

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approached intelligible speech.” Id. The examiner “found it necessary to present materials and
tasks as to a deaf child.” Id.
A “Report of Special District Evaluation Clinic” dated September 24, 1964, noted that
Morgan had undergone IQ testing, which revealed an IQ score of 79. (Tr. 573.) Morgan was
also administrated the Nebraska Test of Learning Aptitude, which indicated Morgan functioned
“within the high educable mentally retarded to borderline range of intelligence.” (Tr. 574.)
A Psychological Re-Evaluation was performed on January 30, 1968. Morgan obtained
an IQ score of 75 on the “Goodenough Intelligence Test,” and a Performance IQ of 80 on the
Wechsler Intelligence Scale for Children. (Tr. 577.) It was noted that Morgan’s speech was
“not too bad,” but her language, especially receptive, was “poor.” Id. Morgan underwent the
“Bender-Gestalt Test,” which was “immature looking” and “suggests possible organicity as
well.” Id. It was concluded that Morgan’s overall intellectual abilities were “at the borderline
level on performance tasks,” and she was “unable to respond to the verbal portion of the test with
any success.” Id.
An Annual Progress Report for the 1974-1975 School Year at the Special School District,
Auditorily Impaired Classes, assessed Morgan’s progress as follows: Reading Level of 4th to 5th
grade; Arithmetic Level of 5th to 6th grade; and Social Studies Level of 5th grade. (Tr. 589.)
Morgan was sixteen years of age at the time.
The Court finds that the ALJ erred by failing to properly consider Morgan’s borderline
intellectual functioning. At the administrative hearing, Morgan’s attorney referred the ALJ to
Morgan’s educational records discussed above. He argued that the records “indicate that she
had significant problems with IQ,” and that achievement testing was indicative of a “marked
level of cognitive impairment.” (Tr. 663.) Despite being on notice that Morgan’s intellectual

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functioning was at issue, the ALJ did not discuss the educational or psychological evidence at
all. Rather, he dismissed Morgan’s claim of a cognitive impairment on the basis that the
educational evidence “wasn’t relevant to the proscribed period,” and Morgan was able to
graduate high school. (Tr. 12.)
“Borderline Intellectual Functioning describes individuals with IQs between 71 and 84.”
Byes v. Astrue, 687 F.3d 913, 914 (8th Cir. 2012). “[B]orderline intellectual functioning should
be considered a severe impairment” when “the diagnosis is supported by sufficient medical
evidence.” Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir. 2001) (citing Lucy v. Chater, 113
F.3d 905, 908 (8th Cir. 1997)); Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007) (remanding
because the ALJ did not include borderline intellectual functioning as a severe impairment at
step two of the sequential analysis).
Here, Morgan’s IQ scores, obtained when she was five and nine years of age, were all
within the range of borderline intellectual functioning.

She was found to be “within the high

educable mentally retarded to borderline range of intelligence” at the age of five, and within the
borderline range of intellectual functioning at the age of nine. (Tr. 574, 577.) The ALJ never
directly discussed these scores, other than noting the scores were not obtained during the relevant
period. In order to obtain child disability benefits, Morgan has to demonstrate her disability
began before attaining age twenty-two. See 20 C.F.R. § 404.350(a)(5). This case presents
challenges due to the relevant period having ended approximately thirty-nine years ago.
Although it is true there is no evidence of IQ testing performed closer to the end of the relevant
period, the scores provided are still within the relevant period and are undoubtedly relevant.
The ALJ’s other rationale for discrediting this evidence—that Morgan graduated high
school—is also unpersuasive. The educational records reveal Morgan took special education

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classes. When Morgan was sixteen years of age, achievement testing indicated she was
performing at the 4th to 5th grade level in Reading, 5th to 6th grade level in Arithmetic, and 5th
grade level in Social Studies. (Tr. 589.) This level of functioning is consistent with the earlier
IQ testing. The fact that Morgan was able to graduate from high school under these
circumstances does not support the ALJ’s finding that no medically determinable cognitive
impairment existed. Thus, the ALJ’s evaluation of Morgan’s intellectual functioning at step two
is not supported by substantial evidence.
A failure to find an impairment severe at Step 2 may be harmless where the ALJ continues
with the sequential evaluation process, and considers all impairments, both severe and nonsevere. See, e.g. Lorence v. Astrue, 691 F. Supp.2d 1008, 1028 (D. Minn. 2010); Johnson v.
Commissioner of Social Security, 2012 WL 4328413, *21 (D. Minn. July 11, 2012) (collecting
cases). Here, however, the harmless error standard does not apply because the ALJ found that
Morgan’s borderline intellectual functioning was not a medically determinable impairment. He
did not consider evidence of Morgan’s borderline intellectual functioning together with her other
impairments in determining her RFC. The ALJ only included limitations related to Morgan’s
hearing impairment and did not limit Morgan to simple work or otherwise address the impact of
her borderline intellectual functioning.
Where an ALJ errs in his failure to consider one of the claimant’s impairments, the
resulting RFC assessment is called into question inasmuch as it does not include all of the
claimant’s limitations. See Holmstrom v. Massanari, 270 F.3d 715, 722 (8th Cir. 2001). RFC
is defined as “what [the claimant] can still do” despite her “physical or mental limitations.” 20
C.F.R. § 416.1545(a). “When determining whether a claimant can engage in substantial
employment, an ALJ must consider the combination of the claimant’s mental and physical

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impairments.” Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). The Eighth Circuit has noted
the ALJ must determine a claimant’s RFC based on all of the relevant evidence, including the
medical records, observations of treating physicians and others, and an individual’s own
description of her limitations. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (citing
Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995)).
Because the ALJ did not take into consideration evidence of Morgan’s borderline
intellectual functioning when formulating her RFC, reversal and remand is required.
Conclusion
Based on the foregoing, the Court finds that the Commissioner’s decision is not
supported by substantial evidence on the record as a whole. Upon remand, the Commissioner
should consider the educational records, including IQ scores and psychological testing, and
formulate a new RFC that is supported by substantial evidence. The Commissioner should also
consider the effects Morgan’s borderline intellectual functioning has on her hearing impairment.

s/Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 26th day of March, 2020.

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