LANE v. ASTRUE
Filing
13
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 6/16/2014; that the Commissioner's decision finding no disability from September 1, 2005 to July 6, 2009 is REVERSED, that Plaintiff's Motion for Judgment R eversing Judgment of the Commissioner or Remanding the Cause for Rehearing (Doc. 8 ) is GRANTED IN PART as to Plaintiff's request for a remand for further proceedings and DENIED IN PART as to Plaintiff's request for an order awarding benefits, that Defendant's Motion for Remand Under Sentence Four of 42 U.S.C. § 405(g) (Doc. 10 ) is GRANTED, and that this action is remanded for further administrative proceedings which shall include (1) reconsideration o f Plaintiff's educational level; (2) administration of a current IQ test; and (3) a specific discussion of whether Plaintiff's decreased intellectual functioning meets or equals the criteria of any of the listed impairments in light of the new IQ test and any subsequent testimony and evidence. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JANICE R. LANE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
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1:11CV474
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff, Janice R. Lane, brought this action pursuant to
Section 205(g) of the Social Security Act, as amended (42 U.S.C.
§ 405(g)), to obtain judicial review of a final decision of
Defendant, the Commissioner of Social Security, denying Plaintiff=s
claim for Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act (the “Act”).
(Complaint (Doc. 1).)
Now
before the court is Plaintiff’s motion seeking a reversal of
Defendant’s decision and an order directing an award of benefits.
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue as the Defendant in this suit. No further
action need 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).
1
(Pl.’s Mot. for J. on the Pleadings (Doc. 8).)
In the alternative,
Plaintiff’s motion requests that the court remand the case for a
hearing de novo before an administrative law judge (“ALJ”).
(Id.)
In response, Defendant filed a motion for remand, maintaining that
the case requires further fact-finding regarding Plaintiff’s
intellectual functioning.
(Def.’s Mot. for Remand (Doc. 10).)
Defendant opposes Plaintiff’s request for an order directing the
payment of benefits, arguing that such an order would require the
court to engage in impermissible fact-finding.
Supp. of Mot. for Remand (Doc. 11) at 2-4.)
(Def.’s Mem. in
For the reasons that
follow, the court will remand the case for a hearing de novo.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB in March of 2007, alleging an onset
of disability in September of 2005.
(Tr. 99-103.)
After denials
initially and upon reconsideration (Tr. 63, 64, 65-68, 69-72), an
ALJ concluded, after a hearing, that Plaintiff suffered from severe
degenerative disease of the lumbar spine, asthma, hypertension,
obstructive sleep apnea, restless leg syndrome, obesity, and
decreased intellectual functioning, but that none of those
impairments matched the severity of any of the conditions covered
in the Commissioner’s listing of impairments, 20 C.F.R. pt. 404,
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subpt. P, app. 1 (Tr. 25-29).2
Of particular relevance to the issues
before the court, the ALJ found that Plaintiff’s decreased
intellectual functioning did not meet the criteria of Listing 12.05,
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05, which governs mental
retardation.3
(Tr. 27-28.)
The ALJ next concluded that Plaintiff’s
residual functional capacity for a range of light work prevented her
from performing her prior work as a child care monitor.
29-31.)
(Id. at
Turning to the Commissioner’s Medical-Vocational
The listing of impairments “describes for each of the major
body systems impairments that [the Commissioner] consider[s] to be
severe enough to prevent an individual from doing any gainful
activity, regardless of his or her age, education, or work
experience.” 20 C.F.R. § 404.1525(a). Each listed impairment
“specif[ies] the objective medical and other findings needed to
satisfy the criteria of that listing.” 20 C.F.R. § 404.1525(c)(3).
The Commissioner will find that an impairment “meets the requirements
of a listing when it satisfies all of the criteria of that listing,
including any relevant criteria in the introduction, and meets the
duration requirement.” Id.
2
Effective September 3, 2013, the title of this Listing was
changed to “Intellectual Disability.” See 78 Fed. Reg. 46,499
(August 1, 2013); Kennedy v. Colvin, 738 F.3d 1172, 1175 n.1 (9th
Cir. 2013) (noting the change in name but recognizing that “[t]he
substance of the listing has not changed”). However, because the
ALJ’s decision regarding Listing 12.05 predated this change, the
court will refer to this Listing under its prior title, “Mental
Retardation.”
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Guidelines (“Grids”),4 the ALJ relied upon Rule 202.13 to find that
Plaintiff had not been disabled at any time from her onset date to
the day prior to her 55th birthday, July 6, 2009.
(Tr. 32.)
The
ALJ noted that on July 7, 2009, Plaintiff attained 55 years of age,
categorized by the regulations as “advanced age,” 20 C.F.R. §
404.1563(e), and relied upon Rule 202.04 to conclude that Plaintiff
was “disabled” beginning on July 7, 2009.
(Id.)
STANDARD OF REVIEW
In cases such as this one, where the matter was previously
adjudicated by an ALJ, review of the ALJ’s ruling is limited to the
following two issues: (1) whether substantial evidence supports the
ALJ’s decision; and (2) whether the ALJ applied the correct legal
standards.
See 42 U.S.C. § 405(g) (2010); Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990).
The question is not whether Plaintiff
The Medical-Vocational Guidelines apply at the final step in
the disability evaluation process, where an individual’s severe
impairments, while not of listing level severity, prevent the
performance of any past relevant work. 20 C.F.R. pt. 404, subpt.
P, app. 2, § 200.00(a). Each guideline (or “rule”) takes into
account the individual’s age, education, prior work experience and
residual functional capacity to direct a conclusion of “disabled”
or “not disabled.” Id. In promulgating the rules, the Commissioner
took administrative notice of the numbers of unskilled jobs that
exist throughout the national economy at the various exertional
levels (i.e., sedentary, light, etc.). 20 C.F.R. pt. 404, subpt.
P, app. 2, § 200.00(b). Thus, where an individual’s age, education,
prior work experience and residual functional capacity coincide
entirely with a specific rule, the Commissioner may rely upon that
rule to direct a conclusion of disability or non-disability. 20
C.F.R. pt. 404, subpt. P, app. 2, § 200.00(a).
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is disabled, but whether the ALJ’s finding that Plaintiff is not
disabled is supported by substantial evidence and based upon a
correct application of the relevant law.
See Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517
(4th Cir. 1987).
If a reasonable mind might accept as adequate the
evidence in support of the ALJ’s decision, the court should not
reweigh the evidence or substitute its judgment for that of the ALJ.
Hays, 907 F.2d at 1456.
DISCUSSION
I.
Plaintiff’s Educational Abilities and the Applicability of the
Grids5
Plaintiff contends that the ALJ erred in finding that she
possessed “at least a high school education” and, in turn, in relying
upon Rule 202.13 of the Grids (which is predicated upon a attainment
of at least a high school education) to direct a conclusion of “not
disabled” prior to July 7, 2009.
Tr. 31).)
(Pl.’s Br. (Doc. 9) at 5 (quoting
According to Plaintiff, an ALJ may rely on a numerical
grade level to determine a claimant’s educational ability “only if
contradictory evidence does not exist.”
(Id. (citing 20 C.F.R.
§ 404.1564(b), Boone v. Sec’y of Health & Human Servs., 595 F. Supp.
758, 759 (E.D. Mich. 1984), and Social Security Ruling 83-11, Titles
Plaintiff’s first and second assignments of error are
sufficiently inter-related that the court will discuss them together
as one issue.
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II and XVI: Capability To Do Other Work — The Exertionally Based
Medical-Vocational Rules Met, 1983 WL 31252, at *2 (“SSR 83-11”)).)
Plaintiff then catalogs record evidence that she claims demonstrates
that she is “functionally illiterate.”
(Pl.’s Br. (Doc. 9) at 6-8.)
Plaintiff urges that, had the ALJ found her “functionally
illiterate,” the ALJ would have applied Rule 202.09 to direct a
conclusion of “disabled.”
Plaintiff asserts that the ALJ’s failure
in this regard constitutes reversible error warranting an award of
benefits.
(Id. at 9-10.)
Plaintiff’s argument fails for the simple reason that the
evidence is far from clear that she is “functionally illiterate.”
The Commissioner’s regulations provide that a claimant is considered
illiterate if he or she “cannot read or write a simple message . . .
even though the person can sign his or her name.”
§ 404.1564(b)(1).
20 C.F.R.
Moreover, in general, the regulations assume
that “an illiterate person has had little or no formal schooling.”
Id.
Here, the evidence conflicts sharply not only as to Plaintiff’s
ability to read and write, but also as to her level of formal
schooling.
On one hand, Plaintiff testified that she attended
school “through the twelfth grade” (Tr. 40 (emphasis added)),
indicated on a disability report that she did not attend special
education classes (Tr. 143), and described the duties of her prior
work as a certified nursing assistant (“CNA”) as, among other tasks,
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giving medications, taking vital signs and updating charts (Tr. 138),
all of which is flatly inconsistent with a status as an illiterate
individual.
Furthermore, a consultative examiner concluded that
Plaintiff was a “well-adjusted [] high school graduate” who could
“read and write full sentences.”
(Tr. 232, 234.)
On the other hand,
Plaintiff testified that she can only write “a little,” has “trouble
reading hard words,” cannot “spell” or “make a grocery list,” and
in direct contradiction to her disability report, did not complete
any reports as a CNA.
(Tr. 40, 41.)
Moreover, Plaintiff indicated
on a disability report that the highest grade in school that she
completed was eleventh rather than twelfth grade (Tr. 143), and the
consultative examiner did note “intellectual inefficiency” that was
“fairly conspicuous” during his brief examination.
(Tr. 234.)
In
light of these conflicts in the record evidence, the court cannot
determine whether the ALJ’s determination that Plaintiff has “at
least a high school education” (Tr. 31) is supported by substantial
evidence, nor does the court find the evidence clear that Plaintiff
is “functionally illiterate,” as she urges.
The court agrees with
Defendant that a reversal and order for an award of benefits would
require the court to engage in impermissible fact-finding regarding
Plaintiff’s literacy and educational level, and thus, that a remand
for a new hearing to address these issues further is the appropriate
relief in this matter.
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II.
Listing 12.05C
Plaintiff next argues that the ALJ erred by not finding that
her decreased intellectual functioning met the criteria of Listing
12.05C.
(Pl.’s Br. (Doc. 9) at 10-14.)
Specifically, Plaintiff
points to a Stanford-Binet IQ test administered in 1967 which yielded
a score of 66, deficits in adaptive functioning which manifested
prior to age 22 (including participation in special education classes
and difficulty with reading, writing and arithmetic), and other
impairments imposing additional and significant work-related
limitations, as evidence that her decreased intellectual functioning
meets all of the requirements of Listing 12.05C.
(Id.)
Plaintiff
contends that her ability to satisfy the criteria of Listing 12.05C
constitutes “a separate basis for the court to reverse the final
decision of the Commissioner and remand the claim for an award of
benefits.”
(Id. at 14.)
Plaintiff’s argument does not demonstrate her entitlement to
an immediate award of benefits, because the IQ test upon which
Plaintiff relies is insufficient in two respects to establish
listing-level severity.
First, as correctly noted by the ALJ, the
Stanford-Binet Intelligence Scale, Form L-M (1960 rev.) does not
constitute the type of IQ test “contemplated in listing 12.05.”
27.)
(Tr.
As recognized in the introduction to the mental listings, the
IQ scores in the listings reflect values from IQ tests that have a
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mean of 100 and a standard deviation of 15 such as the Wechsler series.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00D(6)(c).
In fact, the
Commissioner’s Program Operations Manual System (“POMS”) further
provides that “[t]he Stanford-Binet IV is preferred over the earlier
LM edition because of the updated and enlarged normative sample.”
POMS § DI 24515.055A.
POMS further explains that “IQ results of
tests with parameters other than [means of 100 and standard
deviations of 15] would obviously require special transformation in
order to render them comparable to the requirements stated in the
Listings.”
Id.
Second, Plaintiff’s Stanford-Binet IQ test was
administered in 1967 when Plaintiff was 12 years old.
(Tr. 186-93.)
Under the regulations, IQ scores obtained between the ages of 7 and
16 remain current for only two years when the IQ score is 40 or higher.
20 C.F.R. pt. 404, subpt. P, app. 1, § 112.00D(10).
Both the
regulations and POMS recognize that IQ test results “tend to
stabilize by the age of 16.”
Id.; POMS § DI 24515.055A.
Because
Listing 12.05C requires a reliable and valid IQ score in the 60 to
70 range, this case must be remanded for a new hearing before an ALJ.
In conjunction with this remand, the ALJ shall order a current IQ
test for Plaintiff which complies with the requirements of the
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listings, and shall include an evaluation of the test’s results in
his or her decision.6
CONCLUSION
IT IS THEREFORE ORDERED that the Commissioner=s decision finding
no disability from September 1, 2005 to July 6, 2009 is REVERSED,
that Plaintiff=s Motion for Judgment Reversing Judgment of the
Commissioner or Remanding the Cause for Rehearing (Doc. 8) is GRANTED
IN PART as to Plaintiff’s request for a remand for further proceedings
and DENIED IN PART as to Plaintiff’s request for an order awarding
benefits, that Defendant=s Motion for Remand Under Sentence Four of
42 U.S.C. § 405(g) (Doc. 10) is GRANTED, and that this action is
remanded for further administrative proceedings which shall include
(1) reconsideration of Plaintiff’s educational level; (2)
administration of a current IQ test; and (3) a specific discussion
of whether Plaintiff’s decreased intellectual functioning meets or
equals the criteria of any of the listed impairments in light of the
new IQ test and any subsequent testimony and evidence.
The court acknowledges that Plaintiff’s attorney offered to
have Plaintiff tested anew to demonstrate her illiteracy (albeit not
specifically her IQ), and that the ALJ apparently did not opt to order
such testing. (Tr. 61.)
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This the 16th day of June, 2014.
_______________________________________
United States District Judge
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