Milovonavic v. Astrue
Filing
32
ORDER GRANTING 22 Plaintiff's Motion for Judgment on the Pleadings, and DENYING 24 Defendant's Motion for Judgment on the Pleadings. This matter is REMANDED to the Commissioner for further proceedings consistent with this Order. Signed by US District Judge Terrence W. Boyle on 11/6/2013. Counsel is directed to read Order in its entirety for critical information. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:12-CV-243-BO
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PAMELA MILOVANOVICH,
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Plaintiff,
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v.
CAROLYN COLVIN,
Acting Commissioner of Social Security,
ORDER
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Defendant.
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This matter is before the Court on the parties' cross-motions for judgment on the
pleadings. [DE 22 & 24]. A hearing on this matter was held in Raleigh, North Carolina on
October 30, 2013 at 2:00p.m. For the reasons discussed below, this matter is REMANDED for
further consideration by the Commissioner.
BACKGROUND
On January 27, 2010, plaintiff filed applications for disability insurance benefits under
Title II of the Social Security Act and for supplemental security income payments under Title
XVI of the Act. She alleges an onset date of December 24, 2009. The claimant's application was
denied initially and upon reconsideration. An Administrative Law Judge ("ALJ") held a hearing
on April 6, 2011. On May 11, 20 11 the ALJ denied plaintiffs claim in a written decision. On
August 28, 2012 the Appeals Council denied the claimant's request for review, rendering the
ALJ's decision the final decision of the Commissioner. The plaintiff now seeks judicial review
of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
MEDICAL HISTORY
Plaintiff allegedly suffers from right ear hearing loss, Type II diabetes, residuals from
cervical discectomy and fusion, obesity, hypothyroidism with history of thyroid cancer,
depression disorder, reading disorder, and borderline intellectual functioning. Plaintiff has
complained of shoulder, neck, and back pain, and depression. She has received limited general
physical treatment. (Tr. 340-80, 396-544, 567-609, 623-76, 679-707). She has also received
some limited mental health treatment. (Tr. 545-66, 610-22, 677-78). She underwent a series of
mental and physical evaluations and state agency reviews. (Tr. 392-95, 387-91, 103-115, 11833).
DISCUSSION
When a social security claimant appeals a final decision of the Commissioner, the district
court's review is limited to the determination of whether, based on the entire administrative
record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence
which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v.
Heckler, 739 F.2d 987, 989 (4th Cir. 1984)(quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed.
Smith v. Chafer, 99 F.3d 635, 638 (4th Cir. 1996).
In making a disability determination, the ALJ engages in a five-step evaluation process.
20 C.P.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis
requires the ALJ to consider the following enumerated factors sequentially. At step one, if the
claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the
claim is denied if the claimant does not have a severe impairment or combination of impairments
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significantly limiting him or her from performing basic work activities. At step three, the
claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part
404, Subpart P, App'x 1. If the impairment is listed in the Listing of Impairments or if it is
equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's
impairment does not meet or equal a listed impairment then, at step four, the claimant's residual
functional capacity ("RFC") is assessed to determine whether plaintiff can perform his past work
despite his impairments. If the claimant cannot perform past relevant work, the analysis moves
on to step five: establishing whether the claimant, based on his age, work experience, and RFC
can perform other substantial gainful work. The burden of proof is on the claimant for the first
four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chafer, 65 F.3d
1200, 1203 (4th Cir. 1995).
Plaintiff argues that the ALJ erred at step three in the process when he evaluated Ms.
Milovanovich's impairments under listing 12.05C. The listing requires a valid verbal,
performance, or full scale IQ of 60-70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of function. 10 C.F.R. Part 404, Subpt. P,
App'x I § 12.05C. Additionally, the claimant must have adaptive deficits which manifested
before age 22. !d. § 12.05.
The ALJ found that Ms. Milovanovich did not meet listing 12.05C because (1) there was
no evidence to suggest she was functioning at the mild mental retardation level before age 22, (2)
there was no evidence in the record to support her allegation of being in special education
classes, and (3) her earnings records demonstrated that she had been employed for the majority
of her adult life. (TR. 26).
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However, there is evidence that Ms. Milovanovich was function in the mild mental
retardation range prior to age 22. At the age of 14, her IQ was measured at only 60. (Tr. 93).
Further, even if this score was not in the record, mental retardation is a lifelong condition, and, in
the absence of evidence of a change in the claimant's intellectual functioning, it must be assumed
that the claimant's IQ score remained relatively constant throughout her life. Luckey v. US.
Dept. of Health and Human Servs., 890 F.2d 666, 668 (4th Cir. 1989). "[T]he absence of an IQ
test during the developmental years does not preclude a finding of mental retardation predating
age 22." Id. Further, the record has several references to her being in special education while in
school. (Tr. 322, 392, 550)
The ALJ erred when finding that plaintiffs work history precluded her from meeting the
12.05C listing. A mildly mentally retarded individual can perform unskilled work such as
sweeping and mopping floors and taking out the trash (Tr. 40-41 ), but cannot work a desk job.
Listing 12.05C assumes many, if not most, mildly mentally retarded individuals will be able to
work, and the fact that a claimant has a history of continuous employment in the past is irrelevant
to whether she has subsequently become disabled due to the development of additional severe
impairments. Shaw v. Astrue, 2009 U.S. Dist. LEXIS 71571 at *16-17 (E.D.N.C. July 10, 2009)
adopted by U.S. Dist. LEXIS 71568 (E.D.N.C. Aug. 13, 2009). The Fourth Circuit follows the
rule that if a claimant cannot return to his past relevant work, he has established a work related
limitation of function which meets the requirements of 12.05C. Flowers v. US. Dept. of Health
and Human Servs., 904 F.2d 211,214 (4th Cir. 1990).
The ALJ found that plaintiff suffers from additional impairments imposing significant
work related limitations of function finding that her hearing loss, diabetes mellitus, residuals
from cervical discectomy and fusion, obesity, hypothyroidism with history of thyroid cancer,
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depressive disorder, borderline intellectual functioning, and reading disorder which were all
severe impairments. (Tr. 22).
The final requirement to meet a 12.05C listing is deficits of adaptive functioning. These
include limitations in areas such as communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills, work, leisure,
health, and safety. Atkins v. Virginia, 536 U.S. 304, 309 n.3 (2002). Several adaptive deficits
were noted for Ms. Milovanovich in the record. She has very poor academic skills and is
functionally illiterate. (Tr. 43). She never performed work involving reading and math. !d. She
has always performed menial jobs in the past. (Tr. 394). Her husband completed ther function
report for her disability application. (Tr. 307-08). She also has an adaptive deficit in
communicating with others as evidenced by her need for her attorney to rephrase and break
down several questions for her during her hearing because she did not understand them. (Tr. 46,
55-56).
There is not substantial evidence that supports the ALJ' s determination that plaintiff did
not meet the 12.05C listing. Indeed, all of the substantial evidence is that she conforms to the
listing. Accordingly, the ALJ erred in his determination at step three, and this Court remands this
matter to the Commissioner for further proceedings consistent with this Order.
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CONCLUSION
For the foregoing reasons, the plaintiffs motion for judgment on the pleadings is
GRANTED, defendant's motion is DENIED, and the matter is REMANDED to the
Commissioner for further proceedings consistent with this Order.
SO ORDERED.
This
_k_ day ofNovember, 2013.
~~~¥
¥RRENCE W. BOYLE I
UNITED STATES DISTRICT JUD E
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