JENKINS v. ASTRUE
Filing
15
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 2/2/2015; that the Commissioner's decision finding no disability be affirmed, Defendant's motion for judgment on the pleadings (Docket Entry 12 ) be granted, Plaintiff's motion for judgment on the pleadings (Docket Entry 10 ) be denied, and this action be dismissed with prejudice. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PORTIA D. JENKINS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
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)
1:12CV1251
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Portia D. Jenkins, brought this action pursuant to
Sections 205(g) and 1631(c)(3) of the Social Security Act (the
“Act”), as amended (42 U.S.C. §§ 405(g) and 1383(c)(3)), to obtain
judicial review of a final decision of Defendant, the Commissioner
of Social Security, denying Plaintiff’s claim for Supplemental
Security Income (“SSI”) under Title XVI of the Act.
1.)
(Docket Entry
The Court has before it the certified administrative record
(cited herein as “Tr. __”), as well as the parties’ cross-motions
for judgment (Docket Entries 10, 12). For the reasons that follow,
the Court should enter judgment for Defendant.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for SSI on August 13, 2009,
alleging a disability onset date of January 1, 2006. (Tr. 117-20.)
Upon denial of the application initially and upon reconsideration
(Tr. 65, 66, 67-70, 74-78), Plaintiff requested and received a
hearing de novo before an Administrative Law Judge (“ALJ”), at
which Plaintiff, her representative, and a vocational expert (“VE”)
appeared.
(Tr. 36-64.)
under the Act.
The ALJ then ruled Plaintiff not disabled
(Tr. 15-32.)
The Appeals Council subsequently
denied Plaintiff’s request for review (Tr. 1-6), thereby making the
ALJ’s ruling the Commissioner’s final decision for purposes of
judicial review.
In rendering this disability determination, the ALJ made the
following findings later adopted by Defendant:
1. [Plaintiff] has not engaged in substantial gainful
activity since August 13, 2009, the application date.
. . . .
2. [Plaintiff] has the following severe impairments:
degenerative joint disease of her bilateral knees,
degenerative disc disease, obesity, asthma, an anxietyrelated disorder, major depressive disorder, and
borderline intellectual functioning.
. . . .
3. [Plaintiff] does not have an impairment or combination
of impairments that meets or medically equals one of the
listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.
. . . .
4.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . except that she can
only occasionally climb, balance, and crouch; can
frequently stoop, kneel, and crawl; cannot climb ladders;
and must avoid concentrated exposure to irritants,
including fumes, dust and gases.
With regard to her
mental residual functional capacity, . . . [Plaintiff]
can perform simple routine tasks with simple, short
instructions; can make simple work-related decisions; can
tolerate few workplace changes; can occasionally interact
with the public, coworkers, and supervisors; and cannot
perform work requiring her to write reports.
. . . .
5. [Plaintiff] is capable of performing past relevant
work as a foam fabricator. This work does not require
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the performance of work-related activities precluded by
[Plaintiff’s] residual functional capacity.
. . . .
6. [Plaintiff] has not been under a disability, as
defined in the . . . [Act], since August 13, 2009, the
date the application was filed.
(Tr. 20-32.)
II.
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of our review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
reviewing
[resulting
court must
in
uphold
denial
of
the
factual
benefits]
if
findings
they
are
Instead, “a
of
the
supported
ALJ
by
substantial evidence and were reached through application of the
correct legal standard.” Hines, 453 F.3d at 561 (internal brackets
and quotation marks omitted).
“Substantial evidence means ‘such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th
Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 390
(1971)).
“It consists of more than a mere scintilla of evidence
but may be somewhat less than a preponderance.”
Mastro v. Apfel,
270 F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation
-3-
marks omitted).
“If there is evidence to justify a refusal to
direct a verdict were the case before a jury, then there is
substantial evidence.”
Hunter, 993 F.2d at 34 (internal quotation
marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in
any
substantial
gainful
activity
by
reason
of
any
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 12 months.’” Id.
-4-
(quoting
42
U.S.C.
§
423(d)(1)(A)).1
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Comm’r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).2
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
1
“The Social Security Act comprises two disability benefits programs.
The Social Security Disability Insurance Program . . . provides benefits to
disabled persons who have contributed to the program while employed.
[SSI]
. . . provides benefits to indigent disabled persons. The statutory definitions
and the regulations . . . for determining disability governing these two programs
are, in all aspects relevant here, substantively identical.” Craig, 76 F.3d at
589 n.1 (internal citations omitted).
2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
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engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, the “claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.3
3
A claimant thus can establish disability via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
(continued...)
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B.
Assignment of Error - Listing 12.05C
Plaintiff contends that the ALJ erred at step three of the SEP
because he should have concluded that Plaintiff met the mental
retardation listing codified at 20 C.F.R. Pt. 404, Subpt. P, App.
1, § 12.05(C) (“Listing 12.05C”).
According
to
Plaintiff,
the
(Docket Entry 11 at 3-8.)4
ALJ
improperly
“discounted
[Plaintiff’s] performance IQ score of 67 and verbal IQ score of 70
by asserting that various activities engaged [in] by Plaintiff
indicate functioning above the level of mental retardation.”
at 4 (citing Tr. 30).)
(Id.
In addition, Plaintiff maintains that the
ALJ erred by relying on Plaintiff’s academic record in secondary
school, past work experience, family history, and daily activities
to find that she did not possess the requisite deficits in adaptive
functioning prior to age 22.
Instead, Plaintiff asserts that the
ALJ should have focused on the report of consultative examiner
Gregory A. Villarosa, Ph.D., who assessed Plaintiff’s full scale IQ
at 70 and opined that those results did “not appear to suggest any
appreciable change from prior functional abilities” (Tr. 231), and
3
(...continued)
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
4
Effective September 3, 2013, the Social Security Administration replaced
the term “mental retardation” with “intellectual disability” in its Listing of
Impairments. See Change in Terminology: “Mental Retardation” to “Intellectual
Disability”, 78 Fed. Reg. 46499–01 (Aug. 1, 2013). Because this case commenced
prior to the change and the ALJ utilized the old terminology, this Recommendation
will use the term “mental retardation.”
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Plaintiff’s elementary school records which reflect IQ scores of 58
and 70 (Tr. 193).
(Id. at 7.)
Finally, Plaintiff asserts that the
ALJ failed entirely to address the third prong of Listing 12.05C,
i.e.,
whether
another
impairment
imposes
an
additional
and
significant limitation of function. (Id. at 8 (citing Tr. 22-23).)
Plaintiff’s argument provides no basis for relief.
The mental retardation listing provides in relevant part:
12.05 Mental retardation: Mental retardation refers to
significantly subaverage general intellectual functioning
with
deficits
in
adaptive
functioning
initially
manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment
before age 22.
The required level of severity for this disorder is met
when the requirements in A, B, C, or D are satisfied.
. . .
C. A valid verbal, performance, or full scale IQ of 60
through 70 and 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 (emphasis added).
Accordingly,
a
claimant
can
meet
Listing
12.05C
by
establishing:
1) “a showing of deficits in adaptive functioning initially
manifested during the developmental period; i.e., the evidence
demonstrates or supports onset of the impairment before age 22
(Prong 1),” Hancock v. Astrue, 667 F.3d 470, 473 (4th Cir. 2012)
(internal quotation marks omitted);
2) “a valid verbal, performance, or full scale IQ of 60
through 70 (Prong 2),” id. (internal quotation marks omitted); and
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3)
“a
physical
or
other
mental
impairment
imposing
an
additional and significant work-related limitation of function
(Prong 3),” id. (internal quotation marks omitted).
Plaintiff’s
respect
to
arguments
Prong
2
regarding
(IQ
scores)
the
and
ALJ’s
Prong
findings
3
with
(additional
impairment(s)) lack merit. Contrary to Plaintiff’s assertions, the
ALJ did not discount Plaintiff’s IQ scores from Dr. Villarosa’s
consultative examination in analyzing Listing 12.05C5 and did make
an
express
impairments.
[Plaintiff]
finding
that
Specifically,
has
additional
Plaintiff
the
ALJ
severe
had
found
additional
that,
impairments
severe
“[a]lthough
and
although
intelligence testing has revealed IQ scores of 60 through 70, the
‘paragraph C’ criteria of [L]isting 12.05 are not met because the
evidence of record does not support a finding that [Plaintiff] has
the requisite adaptive deficits.”
(Tr. 22.)
The question in this case thus becomes whether the ALJ’s
determination adverse to Plaintiff on the “adaptive functioning”
component of Prong 1 of Listing 12.05C can rest on these factual
predicates:
1) Plaintiff “earned Cs or better in eighth and ninth grades”
(Tr. 22);
2) Plaintiff “worked in several jobs in the textile industry”
(id.);
5
Notably, the passage cited by Plaintiff in support of her argument in
this regard (Docket Entry 11 at 4 (citing Tr. 30)), forms part of the ALJ’s
discussion of Plaintiff’s RFC and not the analysis of whether Plaintiff’s
borderline intellectual functioning meets or equals Listing 12.05C.
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3) Plaintiff “worked at the substantial gainful activity level
performing foam-cutting tasks in a foam fabrication plant” (id.);
4) Plaintiff “was married twice and was able to raise two
children” (Tr. 23); and
5) Plaintiff “can take care of personal finances” and “was
able to care for her elderly parents and currently babysits her
grandchildren” (id.; see also id. (noting that Plaintiff could
handle her own grooming and personal needs, that Plaintiff’s care
of her parents included cooking, shopping, cleaning, administering
medication, and bathing, that care of her grandchildren included
preparing meals, reading to them, and helping with homework, and
that Plaintiff lived alone in an apartment and talked to others on
the telephone four to five times per day)).
The Court should conclude that the foregoing factual findings
provide a sufficient basis to sustain Defendant’s decision that
Plaintiff failed to carry her burden under Prong 1 of showing
“deficits in adaptive functioning,” Hancock, 667 F.3d at 473, for
at least two reasons.
First, although Prong 1 of Listing 12.05C “does not expressly
define
‘deficits
in
adaptive
functioning’
.
.
.
‘[a]daptive
activities’ are described elsewhere in the [Mental Disorders]
Listing . . . as ‘cleaning, shopping, cooking, taking public
transportation,
paying
bills,
maintaining
a
residence,
caring
appropriately for your grooming and hygiene, using telephones and
directories, and using a post office.’”
Blancas v. Astrue, 690 F.
Supp. 2d 464, 476 (W.D. Tex. 2010) (quoting 20 C.F.R. Pt. 404,
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Subpt. P, App. 1, §§ 12.05 and 12.00(C)(1)) (emphasis added);
accord Hager v. Astrue, No. 2:09CV1357, 2011 WL 1299509, at *2
(S.D.W. Va. Mar. 31, 2011) (unpublished).6
the
ALJ
(see
Tr.
22-23))
contains
The record (as cited by
substantial
evidence
that
Plaintiff can perform virtually all of these adaptive functions.
Second, the ALJ’s findings regarding Plaintiff’s demonstrated
capacity to carry out relevant activities compares favorably to the
level of functionality deemed sufficient to overcome the claimant’s
appeal in Hancock, 667 F.3d at 475-76 & n.3.
In other words, in
Hancock, the Fourth Circuit upheld an ALJ’s finding that the
claimant failed to carry the burden of showing deficits in adaptive
functioning under Prong 1 of Listing 12.05C and, in this case, the
record
contains
evidence
that
Plaintiff
performs
relevant
activities at least as well as did the claimant in Hancock, who had
the following characteristics:
1) “the ability to shop, pay bills, and make change,” id. at
476
2) “takes care of three small grandchildren at a level of care
that satisfies the Department of Social Services,” id.;
3) “does the majority of her household’s chores, including
cooking and baking,” id.;
4) “is attending school to obtain a GED,” id.; and
6
Similarly, a highly regarded treatise defines “adaptive functioning” as
an individual’s skills with respect to “communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, and safety.” Diagnostic & Statistical
Manual of Mental Disorders 41 (4th ed. text rev. 2007).
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5) “does puzzles for entertainment,” id.7
Under these circumstances, the Court should reject Plaintiff’s
arguments regarding Listing 12.05C.
III.
The
record
does
not
CONCLUSION
reveal
a
basis sufficient
to grant
Plaintiff’s request for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, Defendant’s motion for judgment
on the pleadings (Docket Entry 12) be granted, Plaintiff’s motion
for judgment on the pleadings (Docket Entry 10) be denied, and this
action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 2, 2015
7
Although the Fourth Circuit found these characteristics sufficient to
support a finding of an absence of deficits in adaptive functioning, it did not
intimate that those (or comparable) capabilities constituted the minimum that
would suffice to support such a finding. See Hancock, F.3d at *5 & n.3. Hancock
thus provides a valuable comparison standard for assessing an ALJ’s findings
regarding Prong 1’s adaptive functioning requirement, but does not identify an
outer boundary in this context.
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