Pickens v. Colvin

Filing 28

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that this action is REVERSED AND REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration in accordance with this Memorandum and Order. A separate Judgment will accompany this Order. Signed by Magistrate Judge Noelle C. Collins on 8/24/2017. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KENTRELL D. PICKENS,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security
Defendant.

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Case No. 4:16-cv-00526-NCC

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 Kentrell D. Pickens (“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. 19), Defendant has
filed a brief in support of the Answer (Doc. 26), and Plaintiff has filed a Reply (Doc. 27). The
parties have consented to the jurisdiction of the undersigned United States Magistrate Judge
pursuant to Title 28 U.S.C. § 636(c) (Doc. 12).
I. PROCEDURAL HISTORY
Plaintiff received SSI from age four to age eighteen for an intellectual disability and
organic mental disorders (Tr. 41). On September 9, 2013, the Commissioner ceased Plaintiff’s
SSI, determining that his conditions did not meet or equate adult disability standards (Tr. 41-42).
On January 10, 2014, a Disability Hearing Officer upheld the cessation of Plaintiff’s benefits (Tr.
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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).

63-64). Plaintiff filed a Request for Hearing before an Administrative Law Judge (“ALJ”) on
April 7, 2014 (Tr. 69-71). After a hearing, by decision dated December 29, 2014, the ALJ found
Plaintiff not disabled (Tr. 12-22). On March 22, 2016, the Appeals Council denied Plaintiff’s
request for review (Tr. 1-5). As such, the ALJ’s decision stands as the final decision of the
Commissioner.
II. DECISION OF THE ALJ
The ALJ determined that Plaintiff has not engaged in substantial gainful activity since
May 13, 1999, the filing date of the application for SSI (Tr. 14). The ALJ found Plaintiff has the
severe impairments of depression and anxiety, but that no impairment or combination of
impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (Tr. 14-15).
After considering the entire record, the ALJ determined Plaintiff has the residual
functional capacity (“RFC”) to perform a full range of work with the following non-exertional
limitations (Tr. 16). He can understand, remember, and carry out simply tasks (Id.). He can
have occasional interaction with supervisors, co-workers, and the public (Id.). He can make
simple, work-related decisions, and tolerate occasional changes in work location (Id.). The ALJ
found Plaintiff had no past relevant work (Tr. 21). The ALJ found that there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform, including laundry aide,
hand packager, and store laborer (Id.). Thus, the ALJ concluded that a finding of “not disabled”
was appropriate (Tr. 22). Plaintiff appeals, arguing a lack of substantial evidence to support the
Commissioner’s decision.

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III. LEGAL STANDARD
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, 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).
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. 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 RFC. 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.”). The ALJ

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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 RFC. Steed, 524 F.3d at 874
n.3. 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.” Young v.
Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). 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.”). 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. 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).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Cox, 495 F.3d at 617. 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. 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

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the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).
Thus, an administrative decision which is supported by 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. Krogmeier, 294 F.3d at 1022.
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).
IV. DISCUSSION
In his appeal of the Commissioner’s decision, Plaintiff raises three issues. First, Plaintiff
argues the ALJ erred in failing to consider medical equivalence to Listing 12.05C (Doc. 19 at 1215). See 20 C.F.R. § 404, Subpart P App. 1, 12.05C (Westlaw 2015) (hereinafter “Listing
12.05C”). Second, Plaintiff asserts that the ALJ erred in failing to include a specific limitation
for Plaintiff’s pace in the RFC determination (Doc. 19 at 15-17). Third, Plaintiff argues the ALJ
erred in failing to consider relevant longitudinal evidence, including Plaintiff’s prior SSI file (Id.
at 18-20). Because the ALJ erred in failing to consider medical equivalence to Listing 12.05C,

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and because the ALJ erred in not finding that Plaintiff’s borderline intellectual functioning is a
severe impairment, the Court will only address these issues.
The Social Security Administration’s Listing of Impairments describes physical and
mental impairments that the Commissioner considers severe enough to be disabling. 20 C.F.R.
§ 416.925. Listing 12.05 provides that an individual is intellectually disabled when the
requirements in one of its subparts (A, B, C, or D) are met. Under Listing 12.05C, a claimant is
required to establish: “(1) a valid verbal, performance, or full scale IQ score of 60 through 70, (2)
an onset of the impairment before age 22, and (3) a physical or other mental impairment
imposing an additional and significant work-related limitation of function.” Hesseltine v. Colvin,
800 F.3d 461, 464 (8th Cir. 2015) (quoting Phillips v. Colvin, 721 F.3d 623, 625 (8th Cir. 2013)).
Further, the medical equivalence regulation provides:
If you have a combination of impairments, no one of which meets a listing . . ., we
will compare your findings with those for closely analogous listed impairments.
If the findings related to your impairments are at least of equal medical
significance to those of a listed impairment, we will find that your combination of
impairments is medically equivalent to that listing.
20 C.F.R. § 404.1526(b)(3). “Instructions for determining whether a person’s combination of
impairments is medically equal to a given listing are outlined in the Program Operations Manual
System (POMS).” Hesseltine, 800 F.3d at 465. The POMS guideline for Listing 12.05C
provides:
Listing 12.05C is based on a combination of an IQ score with an additional and
significant mental or physical impairment. The criteria for this paragraph are
such that a medical equivalence determination would very rarely be required.
However, slightly higher IQ’s (e.g., 70-75) in the presence of other physical or
mental disorders that impose additional and significant work-related limitation of
function may support an equivalence determination. It should be noted that
generally the higher the IQ, the less likely medical equivalence in combination
with another physical or mental impairment(s) can be found.

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POMS § DI 24515.056. Though the POMS do not have legal force, the Eighth Circuit “has
instructed that an ALJ should consider the POMS guidelines.” Hesseltine, 800 F.3d at 465
(quoting Shontos v. Barnhart, 328 F.3d 418, 424 (8th Cir. 2003)).
Here, the ALJ’s opinion does not consider Listing 12.05C or medical equivalence to
12.05C under the applicable POMS guideline. Plaintiff has been diagnosed with borderline
intellectual functioning and has a full scale IQ score of 75 (Tr. 259, 264).2 Moreover, Plaintiff
has been diagnosed with schizoaffective disorder, depression, and anxiety, and the ALJ found
Plaintiff’s depression and anxiety to be severe impairments (Tr. 14, 287, 288, 310). Under
POMS § DI 24515.056, Plaintiff has a “slightly higher IQ [than 70] in the presence of other . . .
mental disorders” which “may support an equivalence determination.” The ALJ’s failure to
consider equivalence to 12.05C warrants remand. See Hesseltine, 800 F.3d at 466; Shontos, 328
F.3d at 424; Chunn v. Barnhart, 397 F.3d 667, 672 (8th Cir. 2005) (remanding because it was
“not clear from [the ALJ’s] decision that he even considered whether the [claimant] met the
requirements for listing 12.05C”).
The Court also finds that the ALJ erred at step two by not finding that Plaintiff’s
borderline intellectual functioning is a severe impairment. “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). Plaintiff
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The full scale IQ “is described in the regulations as being an acceptable standardized test for
establishing [intellectual disability].” Anderson v. Callahan, 981 F. Supp. 1258, 1264 n.6 (E.D.
Mo. 1997) (citing 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00D).
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received SSI as a minor for mental retardation3 (Tr. 41), was diagnosed with borderline
intellectual functioning by two doctors (Tr. 264, 286), and neither the ALJ nor the Commissioner
disputes Plaintiff’s full scale IQ score of 75 (Tr. 19; Doc. 26 at 6). Plaintiff’s borderline
intellectual functioning “is supported by sufficient medical evidence”; therefore, it should have
been found to be a severe impairment at step two. Nicola, 480 F.3d at 887; see Hunt, 250 F.3d at
625.
Therefore, because the Court finds that the ALJ erred at step two in the sequential
analysis by not finding Plaintiff’s borderline intellectual functioning to be a severe impairment
and also at step three by not considering medical equivalence to Listing 12.05C, the Court will
reverse and remand this case. Nicola, 480 F.3d at 887; Hesseltine, 800 F.3d at 466.
V. CONCLUSION
For the foregoing reasons, the Court finds the ALJ’s decision was not based on
substantial evidence in the record as a whole and should be reversed and remanded. On remand,
the ALJ is directed to reconsider Plaintiff’s severe impairments at step two; consider medical
equivalence to Listing 12.05C; further develop the medical record if necessary; and then proceed
through the sequential evaluation process before issuing a new decision.
IT IS HEREBY ORDERED that this action is REVERSED AND REMANDED to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration in
accordance with this Memorandum and Order.
A separate Judgment will accompany this Order.
Dated this 24th day of August, 2017.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE
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“Mental retardation” is a historically used term for intellectual disability or intellectual
developmental disorder. 20 C.F.R. § 404, Subpart P App. 1, 12.00B(4)(b).
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