Wiggins v. Astrue

Filing 78

ORDER denying 65 Motion for Judgment on the Pleadings; granting 72 Motion for Judgment on the Pleadings; and, adopting 75 Memorandum and Recommendations. Signed by District Judge Louise Wood Flanagan on 03/21/2012. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No.5:11-CV-85-FL

ELIZABETH A. WIGGINS,

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Plaintiff,
v.

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

ORDER

This matter comes before the court on the parties' cross motions for judgment on the
pleadings (DE ## 65, 72). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
72(b), United States Magistrate Judge Robert B. Jones, Jr. entered memorandum and
recommendation ("M&R") (DE # 75) wherein he recommends that the court deny plaintiff s motion,
grant defendant's motion, and uphold the final decision of the Commissioner of Social Security
("Commissioner"). Plaintiff timely filed objection to the M&R, to which defendant responded. In
this posture, the issues raised are ripe for ruling. For the reasons that follow, the court adopts the
recommendation of the magistrate judge.

BACKGROUND
On February 13, 2008, plaintiff filed an application for a period of disability, Disability
Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI"), alleging a disability onset
date ofAugust 1,2003. Hearing was held before an Administrative Law Judge ("ALJ") on February

1,2010. Plaintiff was represented by counsel, and a vocational expert (HVE") testified. On March
23,2010, the ALJ issued a decision denying plaintiffs request for benefits. The Appeals Council
denied plaintiffs request for review on January 4,2011. Plaintiff filed her complaint in this court
on February 28, 2011, seeking review of the final administrative decision.
A detailed summary of the procedural and factual history of the case is found in the M&R.
See M&R 4-8. Where plaintiff does not object to this portion ofthe M&R, the factual history ofthe
case as set forth in the M&R is incorporated here by reference.

DISCUSSION
A.

Standard of Review
The court has jurisdiction under 42 U.S.C. § 405(g) to review the Commissioner's final

decision denying benefits. The court must uphold the factual findings of the ALJ "if they are
supported by substantial evidence and were reached through application of the correct legal
standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence is ... such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389,401 (1971) (quotations omitted). The standard is met by "more
than a mere scintilla of evidence but ... less than a preponderance."

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368 F.2d

640,642 (4th Cir. 1966).
To assist it in its review of the Commissioner's denial ofbenefits , the court may "designate
a magistrate judge to conduct hearings . . . and to submit . . . proposed findings of fact and
recommendations for the disposition [ofthe motions for judgment on the pleadings]." See 28 U .S.C.

§ 636(b)(1 )(B). The parties may object to the magistrate judge's findings and recommendations, and
the court "shall make a de novo determination of those portions of the report or specified proposed
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findings or recommendations to which objection is made." Id. § 636(b)(l). Absent a specific and
timely filed objection, the court reviews only for "clear error" and need not give any explanation for
adopting the M&R. Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310,315 (4th Cir. 2005);
Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, "the court
may accept, reject, or modifY, in whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(l).
The ALJ's determination of eligibility for Social Security benefits involves a five-step
sequential evaluation process, which asks whether:
(1) the claimant is engaged in substantial gainful activity; (2) the claimant has a
medical impairment (or combination of impairments) that are severe; (3) the
claimant's medical impairment meets or exceeds the severity of one of the
impairments listed in [the regulations]; (4) the claimant can perform her past relevant
work; and (5) the claimant can perform other specified types of work.

Johnson v. Barnhart, 434 F.3d 650, 654 n.l (4th Cir. 2005) (citing 20 C.F.R. § 404.1520). The
burden of proof is on the claimant during the first four steps of the inquiry but shifts to the
Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
In the instant matter, the ALJ performed the sequential evaluation. At step one, the ALJ
found that plaintiff had not engaged in substantial gainful activity since August 1,2003, the alleged
onset date of her disability. The AL] then found at step two that plaintiff had the following severe
impairments: depression, anxiety and panic attacks, and attention deficit disorder. However, at step
three the AL] further determined that these impairments were not sufficiently severe to meet or
medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Prior to proceeding to step four, the ALJ assessed plaintiffs residual functional capacity

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("RFC") and found that plaintiff had the ability to perform a full range of work at all exertional
levels but with the following nonexertionallimitations: she was limited to simple, repetitive, routine
tasks or essentially unskilled work. (R. 17). In making this assessment, the ALI found plaintifrs
statements about her limitations not fully credible. The ALl further found that plaintiff was unable
to perform any past relevant work.

However, at step five, upon considering plaintifrs age,

education, work experience, and RFC, the ALI concluded that jobs exist in significant numbers in
the national economy that plaintiff could perform. The ALl therefore concluded that plaintiff had
not been under a disability, as defined in the Social Security Act, from August 1, 2003, through the
date of his decision.
B.

Analysis
Plaintiff raises one objection to the M&R. She contends that the magistrate judge incorrectly

found that her condition did not meet or equal Listing 12.05, the listing for mental retardation. See
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. After careful consideration ofthe arguments presented
and the evidence in the record, the court overrules plaintifr s objection for the reasons set forth
below.
At the third step of the sequential evaluation process, the ALI must consider the medical
severity ofthe applicant's impairment(s) and determine whether any impairment meets or equals one
ofthe listings in 20 C.F.R. Pt. 404, Subpt. P, App 1. Plaintiff bears the burden of demonstrating that
her impairment meets or equals a listed impairment. Pass, 65 F.3d at 1204.
Plaintiff contends that she met the criteria of Listing 12.05, the listed impairment for mental
retardation. Listing 12.05 requires a showing of"deficits in adaptive functioning initially manifested
during the development period; i.e., the evidence demonstrates or supports onset ofthe impairment
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before age 22" ("Prong I"). 20 C.F.R. Pt. 404, SUbpt. P, App. 1 § 12.05. The listing also requires
satisfaction of one of four additional requirements identified as Requirements A-D. Id. At issue in
this case is Requirement C, which calls for a showing of"[a] valid verbal, performance, or full scale
IQ of 60 through 70" ("Prong 2"), as well as "a physical or other mental impairment imposing an
additional and significant work-related limitation of function" ("Prong 3"). Id. § 12.05C (emphasis
added). See also Hancock v. Astrue, 667 F.3d 470, 473 (4th Cir. 2012).
Under the first prong of the Listing 12.05C analysis, plaintiff must satisfY the diagnostic
definition of mental retardation by showing that she suffers from "significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested during the
development period; i. e., the evidence demonstrates or supports onset ofthe impairment before age
22." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05. Listing 12.05 does not define "adaptive
functioning."

But the Social Security Administration informs: "[t]he definition of [mental

retardation] we use in our listings is consistent with, if not identical to, the definitions ... used by
the leading professional organizations." Technical Revisions to Medical Criteria for Determinations
of Disability, 67 Fed. Reg. 20,018-01,20,022 (Apr. 24,2002). Accordingly, this court looks for
guidance to the fourth edition ofthe American Psychiatric Association's Diagnostic and Statistical
Manual of Mental Disorders ("DSM-IV"). See Dixon v. Astrue, No. 7:08-cv-218-FL, 2009 WL
4545262, at *2 (E.D.N.C. Dec. 4,2009).
"The essential feature of Mental Retardation is significantly subaverage general intellectual
functioning ... that is accompanied by significant limitations in adaptive functioning in at least two
of the following skill areas: communication, self-care, home living, social/interpersonal skills, use
ofcommunity resources, self-direction, functional academic skills, work, leisure, health, and safety."
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DSM-IV 39 (1994). "Adaptive functioning refers to how effectively individuals cope with common
life demands and how well they meet the standards ofpersonal independence expected of someone
in their particular age group, sociocultural background, and community setting." Id. at 40 (emphasis
in original).
Plaintiff first contends that the record substantiates a finding that she suffered from deficits
in adaptive functioning in the area of functional academic skills, or education. In support, plaintiff
states that "she had to repeat the [twelfth] grade" and "was enrolled in and performing poorly in
below-grade level coursework instead ofthe usual sequential academic courses." Pl.'s Objections
1. The ALl emphasized however that plaintiff graduated from high school. Further, he determined
that she had never enrolled in special education classes and found incredible her testimony to the
contrary. (R. 13) ("[W]hen asked in her initial disability interview if she was ever in special
education[,] [plaintiff] answered noLl and her school transcripts do not indicate any special
classes."). 1 The ALl's credibility finding is entitled to substantial deference. Barker v. Shalala,40
F.3d 789, 795 (6th Cir. 1994).
Other districts courts in this circuit, when reviewing whether a claimant suffered deficits in
adaptive functioning in education, have found important a claimant's illiteracy, failure to graduate
from high school, enrollment in special education classes, and poor grades.

See,~,

Holtslaw v.

Astrue, No.1: 1O-cv-199, 2011 WL 6935499, at *4 (W.O.N.C. Dec. 30, 2011); see also Catron v.
Astrue, No. 2:08-cv-43, 2009 WL 2424679, at *2 (W.O.Va. Aug. 1,2009). Here, the ALl foundand substantial evidence supports - that plaintiff (1) is literate (she often reads romance novels); (2)

1 The court, in its review ofplaintifPs high school transcripts lodged in the record at pages 297 through 300, sees no
indication of special education courses.

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graduated from high school; (3) did not take special education classes; and (4) did not receive
particularly poor grades. 2 Accordingly, substantial evidence supports the ALJ' s finding that plaintiff
did not suffer from deficits in adaptive functioning in education before the age of22.
Plaintiffnext appears to argue that results from a psychological evaluation conducted in July
2009, when plaintiff was 39 years old, show that she suffered deficits in adaptive functioning during
development. Plaintiff states that she was assessed with a full scale IQ composite score of61. 3 She
then argues that, in the absence of evidence of a change in her intellectual functioning, it must be
assumed that her IQ has remained relatively constant.
The first prong determination regarding deficits in adaptive functioning is separate and
distinct from the second prong determination of whether plaintiffs IQ score falls between 60 and
70. "The Fourth Circuit has not held that low IQ alone proves manifestation of deficits in adaptive
functioning before age 22." Edge v. Astrue, 627 F. Supp. 2d 609, 618 (E.D.N.C. 2008) (quoting
Justice v. Barnhart, 431 F. Supp. 2d 617, 619 (W.D. Va. 2006)). Rather, "even ifthe record clearly
establishes that the plaintiff meets [requirement C], a finding of mental retardation cannot be
warranted without a finding that the plaintiff manifested deficits in adaptive functioning before age
22." Justice, 431 F. Supp. 2d at 619.

2 "The claimant's high school transcripts show a 'C' grade in math in the tenth grade; "A-" for basic math in the eleventh
grade; and 'C' in the twelfth grade." (R. 13).
3 An ALJ "has the discretion to assess the validity of an IQ test result and is not required to accept it even if it is the
only such result in the record." Hancock v. Astrue, 667 F.3d 470,474 (4th Cir. 2012). Here, the ALJ found that
plaintiff's full scale IQ score of61 was inconsistent with her WJ-III Broad Math and Broad Written Language scores.
(R. 13). The latter scores, the examiner Grace Stroud reported, were higher than would be expected given plaintiff's low
IQ score. (R. 148). In addition, the ALJ found that plaintiffs low full scale IQ score was inconsistent with her high
school record. (R. 13). The ALJ therefore questioned the validity of plaintiff's full scale IQ score, raising an issue as
to whether plaintiff satisfied prong 2 of the Listing 12.05C analysis, which requires a showing of a "valid verbal,
performance, or full scale IQ of 60 through 70." 20 C.F.R. Pt. 404, Subpt. P, App. I § 12.05C. The court need not
determine, however, whether prong 2 is satisfied, because plaintiff has not satisfied the first prong.

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Here, plaintiff has failed to satisfy her burden of establishing the first prong of the Listing
12.05C analysis. She has not directed the court to evidence in the record that would support a
finding that she suffered, prior to age 22, from deficits in adaptive functioning in any of the
following skill areas: communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure, health, and safety.
See DSM-IV 39 (1994). Accordingly, the ALl's determination that plaintiff did not have an
impairment that met or equaled Listing 12.05 is supported by substantial evidence.
Finally, the court has reviewed the remaining portions of the M&R to which no objections
were made and finds no clear error.
CONCLUSION

Upon de novo review of those portions of the magistrate judge's M&R to which specific
objections have been filed, and upon considered reviewed of those portions of the M&R to which
no such objection has been made, the court ADOPTS the findings and recommendations of the
magistrate judge in full, GRANTS defendant's motion for judgment on the pleadings (DE # 72),
DENIES plaintiff s motion for judgment on the pleadings (DE # 65), and upholds the final decision
of the Commissioner. The clerk is directed to close this case.
SO ORDERED this thecilstaay of March, 2012.

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