Carpenter v. Commissioner of Social Security

Filing 14

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §405(g) for proceedings consistent with the order. Signed by Chief Judge Gary L. Sharpe on 3/5/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ANDREA E. CARPENTER,
Plaintiff,

7:12-cv-1759
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Conboy, McKay Law Firm
307 State Street
Carthage, NY 13619
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

LAWRENCE D. HASSELER,
ESQ.

SIXTINA FERNANDEZ
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Andrea E. Carpenter challenges the Commissioner of Social
Security’s denial of Supplemental Security Income (SSI), seeking judicial
review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) After reviewing the
administrative record and carefully considering Carpenter’s arguments, the
Commissioner’s decision is reversed and remanded.
II. Background
On April 23, 2010, Carpenter filed an application for SSI under the
Social Security Act (“the Act”), alleging disability since October 27, 2008.
(Tr.1 at 53, 113-16.) After her application was denied, (id. at 54-57),
Carpenter requested a hearing before an Administrative Law Judge (ALJ),
which was held on August 1, 2011, (id. at 60, 26-46). On September 12,
2011, the ALJ issued an unfavorable decision denying the requested
benefits which became the Commissioner’s final determination upon the
Social Security Administration Appeals Council’s denial of review. (Id. at 16, 10-25.)
Carpenter commenced the present action by filing her complaint on

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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)

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November 29, 2012 wherein she sought review of the Commissioner’s
determination. (Compl.) The Commissioner filed an answer and a certified
copy of the administrative transcript. (Dkt. Nos. 8, 9.) Each party, seeking
judgment on the pleadings, filed a brief. (Dkt. Nos. 11, 12.)
III. Contentions
Carpenter contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence. (Dkt. No. 11 at
11-21.) Specifically, Carpenter claims that the ALJ erred in: (1) assessing
the severity of Carpenter’s intellectual functioning; (2) failing to find that
Carpenter suffers a listing level impairment; (3) rendering a residual
functional capacity (RFC) determination that is unsupported by substantial
evidence; and (4) substituting her own judgment for competent medical
opinion. (Id.) The Commissioner counters that the appropriate legal
standards were used by the ALJ and her decision is also supported by
substantial evidence. (Dkt. No. 12 at 6-14.)
IV. Facts
The court adopts the parties’ undisputed factual recitations. (Dkt.
No. 11 at 1-9; Dkt. No. 12 at 1-2.)
V. Standard of Review
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The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 is well established and will not be repeated here. For
a full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Severity Determination
First, Carpenter contends that the ALJ failed to properly assess the

severity of Carpenter’s intellectual functioning. (Dkt. No. 11 at 11-15.)
According to Carpenter, in making her severity determination, the ALJ
“totally disregarded the consultative intelligence evaluation conducted in
2005 where [Carpenter] scored a [sixty-seven] verbal IQ, [sixty-nine]
performance IQ, and a [sixty-five] full-scale IQ,” as well as evidence of
Carpenter’s enrollment in special education classes, inability to manage
money, and difficulty with reading comprehension. (Id. at 12-14.) The

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42 U.S.C. § 1383(c)(3) renders section 405(g) of Title 42 applicable to judicial review
of SSI claims.

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court disagrees that remand is appropriate on this basis.
At step two of the sequential evaluation, a claimant has the burden of
establishing that she has a “severe impairment,” which is “any impairment
or combination of impairments which significantly limits [her] physical or
mental ability to do basic work activities.” 20 C.F.R. § 416.920(c); see
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). As pertinent
here, basic work activities are “the abilities and aptitudes necessary to do
most jobs,” including: “[u]nderstanding, carrying out, and remembering
simple instructions; [u]se of judgment; [r]esponding appropriately to
supervision, co-workers and usual work situations; and [d]ealing with
changes in a routine work setting.” 20 C.F.R. § 416.921(b)(3)-(6). An
ALJ’s evaluation of a claimant’s mental impairments must reflect her
application of the “special technique” set out in 20 C.F.R. § 416.920a,
which necessitates her consideration of “four broad functional areas” that
include: “[a]ctivities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.” Id.
§ 416.920a(c)(3). The first three areas are rated on a five-point scale:
“[n]one, mild, moderate, marked, and extreme.” Id. § 416.920a(c)(4). “[I]f
the degree of limitation in each of the first three areas is rated ‘mild’ or
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better, and no episodes of decompensation are identified, then the [ALJ]
generally will conclude that the claimant’s mental impairment is not
‘severe.’” Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008) (quoting 20
C.F.R. § 404.1520a(d)(1)). Notably, the omission of an impairment at step
two may be deemed harmless error, particularly where the disability
analysis continues and the ALJ later considers the impairment in her RFC
determination. See Tryon v. Astrue, No. 5:10-CV-537, 2012 WL 398952,
at *4 (N.D.N.Y. Feb. 7, 2012); see also Plante v. Astrue, No. 2:11-CV-77,
2011 WL 6180049, at *4 (D. Vt. Dec. 13, 2011).
In this case, at step two, the ALJ determined that Carpenter suffered
from two severe impairments, namely, degenerative disc disease of the
lumbar spine, and obesity. (Tr. at 15.) The ALJ considered Carpenter’s
“borderline intellectual functioning” and noted her 2005 IQ scores. (Id.)
However, the ALJ determined that Carpenter’s “other records indicate that
her intellectual functioning is significantly higher,” relying on IQ testing
conducted in 2007 upon which Carpenter scored a verbal IQ of eighty,
performance IQ of seventy-six, and full-scale IQ of seventy-six. (Id. at 16.)
The ALJ also made findings in each of the four broad functional categories
set out in the regulations, finding that Carpenter suffers mild limitations in
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activities of daily living, social functioning, and concentration, persistence,
and pace. (Id.) Thus, the ALJ determined that Carpenter’s borderline
intellectual functioning does not cause more than minimal limitations on her
ability to perform basic mental work activities. (Id.)
Carpenter argues that the ALJ’s severity determination is not
supported by substantial evidence, as her mental limitations have more
than a minimal effect on her ability to perform the basic mental work
activities. (Dkt. No. 11 at 12.) Indeed, only de minimis claims may be
screened out at step two of the analysis. See Dixon v. Shalala, 54 F.3d
1019, 1030 (2d Cir. 1995). Here, Carpenter’s IQ scores are in the mild
mental retardation and borderline intellectual functioning range. (Tr. at
165, 167, 194.) Consultative examiner Richard Williams consistently
assigned Carpenter Global Assessment of Functioning (GAF) scores of
sixty, indicating moderate symptoms or moderate difficulty in school, work,
and social functioning. (Id.); see Kohler, 546 F.3d at 262 n.1. Further,
upon examination by Dr. Williams, Carpenter’s mental control, short-term
recall, and abstract thinking were poor, and her insight was limited. (Tr. at
164, 167, 193.) Additionally, treating psychiatrist Michael Camillo assigned
Carpenter a GAF score of fifty-five and noted that she could “not tell [him]
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the number of nickels in [one dollar] after a significant amount of
assistance.” (Id. at 215, 217.) Nevertheless, as the ALJ continued the
sequential analysis and considered Carpenter’s severe and non-severe
impairments in her RFC determination, any error at step two is harmless.
(Id. at 18-19); see Tryon, 2012 WL 398952, at *4.
B.

Listing 12.05(C)
Next, Carpenter argues that the ALJ erred in evaluating whether her

impairment meets listing 12.05(C). (Dkt. No. 11 at 15-18.) According to
Carpenter, the ALJ erred in providing no explanation for favoring
Carpenter’s 2007 test results over her 2005 results. (Id. at 16-17.) The
Commissioner counters that the ALJ properly rejected the 2005 test results
because they are inconsistent with the 2007 results, and, further,
Carpenter did not establish that she had the requisite deficits in adaptive
functioning to meet listing 12.05. (Dkt. No. 12 at 9-12.) For the following
reasons, the court agrees with Carpenter that remand is required.
At the third step of the disability evaluation, the ALJ is required to
determine whether the claimant’s impairment(s) meet or equal an
impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1. See 20 C.F.R.
§ 416.920(d). One way to establish disability under section 12.05, which
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pertains to intellectual disability, is if a claimant shows: (1) “significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period” prior to
age twenty-two; (2) “[a] valid verbal, performance, or full scale IQ of [sixty]
through [seventy];” and (3) “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 § 12.05(C); see id. § 12.00(A) (explaining that an
impairment must satisfy “the diagnostic description in the introductory
paragraph and any one of the four sets of criteria” in order to meet listing
12.05). “[D]eficits in adaptive functioning ‘denotes an inability to cope with
the challenges of ordinary everyday life.’” Carrube v. Astrue, No.
3:08-CV-0830, 2009 WL 6527504, at *4 (N.D.N.Y. Dec. 2, 2009) (quoting
Novy v. Astrue, 497 F.3d 708, 710 (7th Cir. 2007)); see also Talavera v.
Astrue, 697 F.3d 145, 153 (2d Cir. 2012). This includes consideration of a
“claimant’s effectiveness in areas such as social skills, communication, and
daily living skills.” West v. Comm’r of Soc. Sec. Admin., 240 F. App’x 692,
698 (6th Cir. 2007).
Here, Carpenter’s 2005 test scores satisfy the IQ requirement of
listing 12.05(C). (Tr. at 164); see 20 C.F.R. pt. 404, subpt. P, app. 1
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§ 12.05(C). However, the ALJ found that Carpenter did not meet the listing
because her 2007 IQ scores are too high. (Tr. at 17, 166.) While it is
within the purview of an ALJ to “reject an IQ score as invalid when it is
inconsistent with the record,” Juckett ex rel. K.J. v. Astrue, No. 09-CV-708,
2011 WL 4056053, at *7 (N.D.N.Y. June 29, 2011), the ALJ did not indicate
any factors that suggest the first test scores were invalid, or explain his
decision to adopt the 2007 IQ test results, rather than the 2005 IQ test
results. (Tr. at 17); see Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir.
1986) (finding the ALJ’s rejection of the claimant’s low IQ scores proper
where the claimant was close to completing a bachelor’s degree and had
taught high school algebra); see also Clay v. Barnhart, 417 F.3d 922, 92931 (8th Cir. 2005) (upholding the ALJ’s rejection of two sets of IQ scores
where the report on the first set was sufficiently equivocal as to its validity
to allow the ALJ to disregard its conclusion, and the test administrator
considered the second set invalid). Notably, the regulations do not specify
which score an ALJ should rely on when there are differing scores from two
apparently valid IQ tests, but they do provide that, when more than one IQ
score is reached from the test administered, the Commissioner must use
the lowest of these in conjunction with 12.05. See 20 C.F.R. pt. 404,
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subpt. P, app. 1 § 12.00(D)(6)(c); see also Coogan v. Astrue, No.
08-CV-1387, 2009 WL 512442, at *5 n.1, *6 n.2 (D.N.J. Feb. 27, 2009)
(stating that an ALJ may not decide which of multiple IQ scores he prefers
because the regulations only require one valid score in the range of sixty
through seventy); Ray v. Chater, 934 F. Supp. 347, 350 (N.D. Cal. 1996)
(“[I]t can be inferred that when multiple I.Q. scores are available the
[r]egulations prefer the lowest score.”). Thus, the court remands this
matter to the Commissioner for further analysis to resolve the discrepancy
between Carpenter’s two sets of IQ scores, mindful that there may be
reasons not apparent on the face of the record for continuing to favor the
2007 IQ scores.
The Commissioner suggests that, regardless of Carpenter’s IQ
scores, Carpenter did not establish that she had deficits in adaptive
functioning, and, thus, she failed to meet the threshold requirement of
listing 12.05. (Dkt. No. 12 at 10-11.) The Commissioner points to
Carpenter’s care for her children, graduation from high school, and
“extensive activities of daily living” as evidence that Carpenter does not
suffer from deficits in adaptive functioning. (Id.) However, while the ALJ
clearly did not believe that the record as a whole supported a diagnosis of
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mild mental retardation, (Tr. at 15-19), she failed to specifically address
deficits in adaptive functioning—or the listing 12.05(C) requirement of
suffering an additional significant limitation—and this is not a situation
“[w]here application of the correct legal standard could lead to only one
conclusion.” Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998); (Tr. at 17.)
Notably, Carpenter lost custody of her children due to “alleged inadequate
care.” (Tr. at 301.) Further, she received an IEP diploma from high
school, and was subsequently denied enrollment in GED classes because
she needed “special one on one help” due to her learning disabilities. (Id.
at 127, 166, 264.) The record also reflects that Carpenter has never
maintained competitive employment, but has worked part-time as a
dishwasher, with “intensive on-site support” from a job coach through the
St. Lawrence-Lewis BOCES Supported Employment Program. (Id. at 312.)
Thus, if the Commissioner determines that Carpenter has a qualifying IQ
score, the Commissioner is further directed to consider the remaining
elements of listing 12.05(C).
C.

Remaining Findings and Conclusions
Because Carpenter’s remaining contentions, (Dkt. No. 11 at 18-21),

may be impacted by the subsequent proceedings directed by this Order, it
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would be improper for the court to consider them at this juncture.
VII. Conclusion
ORDERED that the decision of the Commissioner is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
proceedings consistent with this Order; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
March 5, 2014
Albany, New York

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