Slapper v. Astrue

Filing 30

ORDER granting 23 Motion for Judgment on the Pleadings and denying 25 Motion for Judgment on the Pleadings. The decision of the Commissioner is REVERSED and this case is REMANDED for an award of benefits. Signed by District Judge Terrence W. Boyle on 8/18/11. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:10-cv-477-BO

JOHN R. SLAPPER,
Plaintiff,

)
)

)

)
)

)
)
)

v.

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

o

R D E R

This matter is before the Court on the parties
for Judgment

on the Pleadings pursuant

Cross-Motions

I

12 (c)

to Rule

of the

Federal Rules of Civil Procedure. For the reasons stated below,
Plaintiff1s motion is GRANTED, Defendant's motion is DENIED, and
the decision of the Commissioner is REVERSED and REMANDED for an
award of benefits.
I.

BACKGROUND

Plaintiff filed an application for a period of disability and
disability

insurance

disability beginning

benefits
February

on
28,

August
2003

28,

(Tr.

2006,

11,

alleging

89-91,

100.)

Plaintiff's application was denied initially on November 7, 2006
(Tr. 11, 49,

51-54)

and upon reconsideration on January 26, 2007

(Tr. 11, 50, 57-60.) A hearing was held before an Administrative
Law Judge

(ALJ)

on February 3,

2009

(Tr.

11,

21-48)

and the ALJ

issued an unfavorable decision on February 18, 2009 (Tr. 8-20.) The
ALJ's decision became the final decision of the Commissioner when
the

Appeals

Council

denied

Plaintiff's

request

for

review

on

September 11, 2010

(Tr. 1-5.) Plaintiff commenced this action by

filing a complaint with this Court on November 9, 2010.
II.

Under

the

Social

DISCUSSION

Security Act,

42

U.S.C.

405 (g),

§§

and

1383(c) (3), this Court's review of the Commissioner's decision is
limited

to

determining

whether

the

decision,

as

a

whole,

is

supported by substantial evidence and whether the Commissioner
employed the correct legal standard. Substantial evidence consists
of more than a mere scintilla of evidence, but may be less than a
preponderance of evidence. Richardson v. Perales, 402 U.S. 389, 401
(1971) .
An individual
engage

in

any

is considered disabled if he

substantial

gainful

activity

by

is unable

"to

reason

any

of

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than [twelve] months."
42

U.S.C.

§

1382c(a) (3) (A).

The Act

further

provides

that

an

individual "shall be determined to be under a disability only if
his

physical

or mental

impairment

or

impairments

are

of

such

severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other line of substantial gainful work which exists in the
national economy." 42 U.S.C.

§

1382c (a) (3) (B) .

2

A.

The Five-Step Sequential Evaluation

Regulations issued by the Commissioner establish a five-step
sequential evaluation process to be followed in a disability case.
20 C.F.R.

§

416.920.

At step one,

if the claimant is currently

engaged in substantial gainful activity, the claim is denied. When
substantial gainful activity is not an issue,

at step two,

the

claim is denied if the claimant does not have a severe impairment
or combination of impairments significantly limiting him or her
from performing basic work activities. If the claimant has a severe
impairment, at step three, the claimant's impairment is compared to
those in the Listing of Impairments
Subpart P, App.

(Listing),

20 C.F.R.

§

404,

1; if the impairment meets or equals a Listing,

disability is conclusively presumed. If the claimant's impairment
does not meet or equal a Listing,

at step four,

the claimant's

residual functional capacity (RFC) is assessed to determine if the
claimant can perform his or her past work despite the impairments;
if so,

the claim is denied.

If the claimant cannot perform past

relevant work, at step five, the burden shifts to the Commissioner
to show that the claimant, based on his or her age, education, work
experience, and RFC, can perform other substantial gainful work.
Here, at step one, the ALJ determined that Plaintiff had not
engaged in substantial gainful activity from the alleged onset date
thought

his

date

last

insured

(Tr.

13).

At

step two,

the ALJ

determined that Plaintiff had the following severe impairments:

3

diabetes mellitus with peripheral neuropathy,
borderline intellectual functioning
ALJ

determined

that

Plaintiff's

(Tr.

hypertension,

and

13.) At step three,

the

impairments

did

not

meet

or

medically equal the criteria of any of the listed impairments in 20
C.F.R.

Part

404,

Subpt.

evaluating Listings 4.02
heart

disease),

retardation)

9.08

4,

App.

1

(Listings),

(chronic heart failure),

(diabetes

mellitus),

and

specifically
4.04

(ischemic

12 .05

(mental

(Tr. 14-15.) The ALJ then determined that during the

period at issue the Plaintiff had the residual functional capacity
to

perform

additional
every

45

tasks;

light

work

as

defined

in

the

regulations,

limitations of requiring the opportunity to
minutes;

performing

performing
no

only

constant

simple,

fine

rout ine,

fingering;

and

with

stretch

repeti ti ve
requiring

limitations consistent with a finding of illiteracy (Tr. 15-19.) At
step four, the ALJ found that Plaintiff was unable to perform any
past relevant work (Tr. 19.) At step five, the ALJ relied on the
testimony of a vocational expert and determined that jobs existed
in significant numbers in the national economy that Plaintiff could
perform

(Tr.

19-20.)

Accordingly,

the ALJ found that

from the

alleged onset date through his date last insured, Plaintiff was not
disabled within the meaning of the Act.
B.

The ALJ's Finding that Plaintiff's Mental ImDair.ment Did
Not Meet Or Equal Listing 12. OSC Is Not Supported By
Substantial Evidence

Plaintiff now assigns error to the ALJ's determination that

4

Listing 12. 05C has not been met.

Plaintiff bears the burden of

demonstrating that his medical impairment meets or equals a listed
impairment. Bowen v. Yuckert/ 482 U.S. 137/ 146 n.5 (1987); Hall v.

Harris/ 658 F.2d 260/ 264 (4th Cir. 1981). Listing 12.05 sets forth
a two-part inquiry for determining mental retardation under the
listings. Norris v. Astrue/ No. 7:07-CV-184-FL/ 2008 WL 4911794/ at
*3 (E.D.N.C. Nov. 14/ 2008); see also 20 C.F.R. Pt. 404/ Subpt. p/
App. 1

12.05.

§

First/ a claimant must satisfy the diagnostic description of
mental retardation/ which requires a showing of "(1) significantly
subaverage general intellectual functioning
adaptive

functioning

(3)

developmental period;

i. e.

C.F.R.

Pt.

404/

Subpt.

p/

with deficits in

manifested

initially

(2)

during

before age 22.
App.

1

§

12.05).

Id.

II

the

(quoting 20

Upon making

this

showing/ the claimant must then meet the required severity level of
this disorder/ which is accomplished by satisfying anyone of four
categories labeled (A)-(D) under

12.05. Id. Plaintiff contends he

§

satisfies the mental retardation listing under category C ("Listing
12.05CII) /

which requires

(1)

a valid verbal/ performance or full

scale IQ of 60 through 70; and (2) another impairment/ physical or
mental/

that imposes an additional and significant work-related

limitation of function. Id. at

§

12.05C.

The record demonstrates that Plaintiff suffers from adaptive
deficits which manifested before the age of 22.

5

Plaintiff has a

sixth grade education, and, as noted by the ALJ, is illiterate (Tr.
43.) Additionally, Plaintiff suffered from viral meningitis when he
was 3 years old which resulted in permanent damage to his cognitive
functioning (Tr. 136-43.) Finally, Plaintiff's verbal, performance,
and full scale IQ scores
Plaintiff wi thin the

of 67,

73, and 67, respectively, place

"low range of

intelligence overall."

(Tr.

154.) In this circuit, in the absence of any evidence of a change
in a claimant's intelligence functioning,

it must be assumed that

the claimant's IQ had remained relatively constant throughout their
life,

and thus an adult IQ score is presumed to be an accurate

reflection of the claimant's childhood functioning as well. Branham
v. Heckler,

demonstrates

775 F.2d 1271, 1274 (4th Cir. 1985). Thus, the record
that

Plaintiff

suffers

from

deficits

of

adaptive

functioning that manifested before age 22.
As to the second portion of the 12.05C analysis,

the Court

finds that Plaintiff's impairments impose additional, significant
work-related

limitations.

The

Court

notes

that

an

additional

limitation "need not be disabling in and of itself." Luckey v. U.S.
Dept.

of Health

&

Human Services,

890

F.2d 666,

669

(4th Cir.

1989). Rather "[t]he inquiry is whether the claimant suffers from
any additional physical or mental impairment significantly limiting
work-related functions." Luckey, 890 F.2d at 669, citing Kennedy v.
Heckler,

739 F.2d 168, 172 (4th Cir. 1984).

Here, ALJ Marrero found that Mr.

6

Slapper suffered from the

severe impairments of diabetes mellitus with peripheral neuropathy
and hypertension in addition to intellectual impairments (Tr 13.)
These impairments create significant limitations in work-related
functioning. The extent of these limitations was reflected in the
ALJ

Marrero's

residual

RFC

functional

determination

(Tr.

15) (Plaintiff

capacity to perform light work

~had

the
wi th

additional limitations including the opportunity to stretch every
45 minutes, performing only simple, routine, repetitive tasks, with
no constant fine fingering and with the finding of illiteracy.")
Because it is undisputed that Plaintiff's diabetes mellitus and
hypertension

create

additional

functional limitations,

and

significant

work-related

Plaintiff satisfies the second and final

requirement of Listing 12.05C.
III.

CONCLUSION

As the foregoing demonstrates, the decision of the ALJ is not
supported by substantial evidence.
for Judgment

on the

Pleadings

Accordingly, Plaintiff I s Motion

[DE 23]

Motion for Judgment on the Pleadings

is GRANTED,

[DE 25]

Defendant's

is DENIED,

and the

decision of the Commissioner is REVERSED.
The decision of whether to reverse and remand for benefits or
reverse and remand for a new hearing is one which "lies within the
sound discretion of the district court."

Edwards v. Bowen, 672 F.

Supp. 230, 237 (E.D.N.C. 1987). Accordingly, this case is REMANDED
for an award of benefits.

7

SO ORDERED.
This the

Ir

day of

~

, 2011.

~Jt~~
RRE~CE

T
W. BOYLE
UNITED STATES DISTRICT JUDGE

8