LEFTWICH v. COLVIN
Filing
16
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 1/11/2016, RECOMMENDED that the Commissioner's decision finding no disability be reversed and that the matter be remanded under sentence fo ur of 42 U.S.C. § 405(g), for further administrative proceedings to include reevaluation of whether Plaintiff's intellectual functioning meets or medically equals the requirements of Listing 12.05C. As a result, Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) should be granted to the extent it seeks remand, and Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) should be denied. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BETTY H. LEFTWICH,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:13CV00414
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Betty H. Leftwich, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security,
denying
(“DIB”).
Plaintiff’s
claim
(Docket Entry 2.)
for
Disability
Insurance
Benefits
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, 14).
For
the reasons that follow, the Court should remand this matter for
further administrative proceedings.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date
of May 1, 2009.
(Tr. 121-24.)
Upon denial of that application
initially (Tr. 70, 72-75) and on reconsideration (Tr. 71, 81-88),
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”) (Tr. 89-90). Plaintiff and her attorney attended the
hearing.
(Tr. 45-60.)
The ALJ subsequently determined that
Plaintiff did not qualify as disabled under the Act.
(Tr. 19-39.)
The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6), making the ALJ’s ruling the Commissioner’s final
decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of the
. . . Act through December 31, 2012.
2.
[Plaintiff] has not engaged in substantial gainful
activity since May 1, 2009, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
degenerative disc disease, cervical kyphosis, borderline
intellectual functioning, mood disorders, and anxietyrelated disorders.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . except she can only
occasionally climb ropes, ladders or scaffolds and must
avoid concentrated exposure to workplace hazards such as
heights and machinery. . . . [Plaintiff] has the mental
residual functional capacity to understand and remember
simple three-step directions, to sustain sufficient
attention to complete simple routine tasks for a two-hour
period, to accept direction from a supervisor and
maintain adequate relationships with co-workers in work
settings with no demand for extensive social interaction,
to work in an environment not requiring work with the
general public, to adapt to change, and to function with
a stable work assignment.
2
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. . . . [T]here are jobs that exist in significant
numbers in the national economy that [Plaintiff] can
perform.
. . . .
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from May 1, 2009, through the
date of this decision.
(Tr. 24-39 (internal parenthetical citations omitted).)
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 [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Even given those limitations, the Court should remand this case for
further administrative proceedings.
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).
Instead,
the Court “must uphold the factual findings of the ALJ [underlying
the denial of benefits] if they are supported by substantial
evidence and were reached through application of the correct legal
3
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 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 Social Security 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 [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the reviewing 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
4
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.
(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
1
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
Supplemental Security Income . . . 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).
5
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
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 179.3
Step four then requires the ALJ to assess
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).
3
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
6
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 567.4
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
4
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 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.”).
7
(1)
“[t]he
ALJ
.
.
.
improperly
evaluated
her
mental
impairment against Listing 12.05C for intellectual disability”
(Docket Entry 11 at 4); and
(2)
“[t]he
Guidelines]
to
ALJ
deny
improperly
used
Plaintiff’s
claim
the
[Medical-Vocational
where
significant
non-
exertional impairments existed” (id. at 8).
Defendant
contends
otherwise
and
urges
evidence supports the finding of no disability.
that
substantial
(Docket Entry 15
at 3-20.)
1.
Listing 12.05C
Plaintiff contends that the ALJ erred at step three of the SEP
because he should have concluded that Plaintiff met subsection C of
the mental retardation listing codified at 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.05 (“Listing 12.05”).
at 4-8.)5
verbal
(See Docket Entry 11
Plaintiff maintains that the ALJ improperly rejected her
IQ
score
of
70
resulting
from
the
Wechsler
Adult
Intelligence Scale - Third Edition (“WAIS-III”) administered by
consultative examiners Dr. Patrick B. Sullivan and Courtney Zahner,
M.A., on November 20, 2009.
also Tr. 243.)
(See id. at 6 (citing Tr. 29); see
According to Plaintiff, the ALJ rejected that IQ
5
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.”
8
score “because there was an IQ score of 97 in [Plaintiff’s] school
records,” but that the 97 IQ score “is a group IQ score, not an
individual score for [Plaintiff],” “[t]here is no explanation of
how it measured [Plaintiff’s] individual intelligence,” and “it is
not expressed in terms of a verbal, performance or full scale score
as required by [Listing 12.05C].”
Tr. 192).)
(Docket Entry 11 at 6 (citing
Further, Plaintiff argues that her “terrible grades,”
her childhood achievement test scores, and letters from former
coworkers and supervisors documenting her inability to read and
write, establish that she suffered the requisite deficits in
adaptive functioning “throughout her life.”
(Id. at 5-6 (citing
Tr. 193-95, 200-06).) Finally, Plaintiff asserts that, because the
ALJ found that she suffered from “several severe impairments” at
step two of the SEP, she has shown she possessed other impairments
that imposed additional and significant work-related limitations.
(Id. at 5.)
In
Plaintiff’s arguments have merit.
order
to
meet the
requirements
of Listing
12.05C,
a
claimant must demonstrate: 1) “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” (“adaptive deficits”); 2) “[a] valid verbal, performance,
or full scale IQ of 60 through 70”; and 3) “a physical or other
mental
impairment
imposing
an
9
additional
and
significant
work-related limitation of function.” 20 C.F.R. Pt. 404, Subpt. P,
App’x 1, § 12.05C.6
In regard to adaptive deficits, Plaintiff must
prove that she had those deficits both 1) during the developmental
period, i.e., prior to age 22, and 2) during the subsequent period
of alleged disability.
See Hancock v. Astrue, 667 F.3d 470, 475
(4th Cir. 2012) (noting that “[e]ither finding alone,” i.e., no
adaptive deficits generally or no such deficits prior to age 22,
“suffic[es] to support the conclusion that [the claimant] did not
satisfy” Listing 12.05).
Although 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, Subpt. P, App’x 1, §§ 12.05
and 12.00(C)(1)); accord Hager v. Astrue, No. 2:09CV1357, 2011 WL
1299509, at *2 (S.D.W. Va. Mar. 31, 2011) (unpublished).7
6
“In cases where more than one IQ is customarily derived from the test
administered, e.g., where verbal, performance, and full scale IQs are provided
in the Wechsler series, [the Commissioner] use[s] the lowest of these in
conjunction with [Listing] 12.05.”
20 C.F.R. Pt. 404, Subpt. P, App’x 1,
§ 12.00D.6.c.
7
Similarly, a well-regarded treatise defines “adaptive functioning” as skills
related to “communication, self-care, home living, social/interpersonal skills,
use of community resources, self-direction, functional academic skills, work,
leisure, and safety.”
American Psychiatric Ass’n, Diagnostic & Statistical
Manual of Mental Disorders 41 (4th ed. text rev. 2007).
10
In discussing the components of Listing 12.05C, the ALJ found
as follows:
[T]he “paragraph C” criteria of [L]isting 12.05 are not
met because [Plaintiff] does not have 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. [Plaintiff] earned a verbal IQ of 70 based on
intelligence testing conducted on November 20, 2009 using
the [WAIS-III].
Although the consultative examiners
. . . indicated that this score was a “valid estimate of
[Plaintiff’s] current intellectual functioning” and
stated that it was consistent with her premorbid
functioning,
her
school
records
indicate
that
[Plaintiff’s] IQ was 97. . . . [Plaintiff] earned poor
grades and only completed the seventh grade. However,
[Plaintiff’s] school records also suggest that her
conduct was rather poor, which certainly could have
contributed to her academic difficulties. There is also
no indication that she was in special education classes.
In
addition,
the
undersigned
acknowledges
that
[Plaintiff] has difficulty reading and writing, but this
limitation alone does not support a finding that
[Plaintiff] meets the requirements of [L]isting 12.05.
After all, [Plaintiff] is married, was able to raise a
family, helps care for her parents, is able to drive, and
successfully
performed
semiskilled
work
at
the
substantial gainful activity level for many years.
Finally, the consultative examiners diagnosed [Plaintiff]
with borderline intellectual functioning rather than
mental retardation. All of these factors suggest that
[Plaintiff] did not manifest, prior to age 22, the
adaptive deficits that one would expect from a person
whose mental impairment meets or medically equals the
requirements of [L]isting 12.05.
In further support of the above findings, the undersigned
notes that the State agency psychological consultants
. . . concluded that [Plaintiff’s] mental impairments,
including her borderline intellectual functioning, were
severe but not of listing[] level severity.
The
undersigned gives these assessments significant weight
11
because they are consistent with the overall evidence of
record.
(Tr. 29-30 (internal citations omitted) (emphasis added).)
Substantial evidence fails to support the ALJ’s decision to
reject Plaintiff’s verbal IQ score of 70.
In dismissing that IQ
score, the ALJ relied solely on Plaintiff’s IQ score of 97 from the
California
Test
of
Mental
Maturity
(Short
Form)
(“CTMM-SF”)
administered in January 1973 when Plaintiff was eight years old and
in the second grade.
(Tr. 29 (citing Tr. 192).)
However, the
ALJ’s reliance on Plaintiff’s 1973 IQ score from the CTMM-SF
constitutes
legal
error
for
several
reasons.
First,
the
regulations make clear that, because “the results of IQ tests
[generally] tend to stabilize by the age of 16,” IQ test scores
“obtained between the ages of 7 and 16” remain valid for only two
years.
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 112.00D.10.
Thus,
Plaintiff’s IQ score from the CTMM-SF in January 1973 remained a
valid indication of her intellectual functioning only through
January 1975 and should not have been relied upon by the ALJ as the
sole
basis
to
discredit
the
2009
IQ
scores
obtained
at
the
consultative examination.
Second,
the
regulations
emphasize
that
“[s]tandardized
intelligence test results are essential to the adjudication of all
cases of intellectual disability.”
App’x 1, § 12.00D.6.b.
20 C.F.R. Pt. 404, Subpt. P,
In turn, a “standardized psychological
test” means “a psychological test measure that has appropriate
12
validity, reliability, and norms, and is individually administered
by a qualified specialist.”
Psychiatric
Ass’n,
Id., § 12.00D.5.a; see also American
Diagnostic
&
Statistical
Manual
of
Mental
Disorders 46 (4th ed. text rev. 2007) (“Individualized testing is
always required to make the diagnosis of [m]ental [r]etardation.”).
In contrast, as Plaintiff argued (see Docket Entry 11 at 6; see
also Tr. 60), the CTMM-SF consists of a series of multiple-choice
questions administrated in a group setting to students, see Thomas
v. Allen, 614 F. Supp. 2d 1247, 1294 (N.D. Ala. 2009); Hornick v.
Burough of Duryea, 507 F. Supp. 1091, 1096 (M.D. Pa. 1980).
The
above-described characteristics of the CTMM-SF render erroneous the
ALJ’s reliance upon Plaintiff’s CTMM-SF IQ score to disregard the
IQ score of 70 in the record.
Third,
the
record
reveals
no
other
apparent
basis
for
rejecting the validity of Plaintiff’s verbal IQ score of 70.
Consultative examiner Dr. Sullivan administered the WAIS-III to
Plaintiff, which yielded a verbal IQ of 70 (borderline range), a
performance IQ of 80 (low average range), and a full-scale IQ of 73
(borderline range).
(Tr. 243.)
According to Dr. Sullivan, “[n]o
significant discrepancy” existed between Plaintiff’s verbal and
performance IQs and Plaintiff “appeared to put forth good effort on
the evaluation and appeared to enjoy several of the tasks” and thus
the “obtained scores [were] a valid estimate of [Plaintiff’s]
current intellectual functioning.”
13
(Tr. 245.)
Dr. Sullivan
concluded that, “based on educational, vocational, and functional
histories, [Plaintiff’s] current intellectual functioning appears
consistent with premorbid functioning and reflects longevity of
functioning.” (Id.) This examination by Dr. Sullivan thus met all
of the regulatory requirements for deriving a valid IQ score: a
standardized intelligence test with a mean of 100 and a standard
deviation
of
specialist,
15
(WAIS-III),
clinical
individually
observations
by
the
administered
specialist
by
a
regarding
Plaintiff’s performance on the test, and assessment of the scores’
validity and consistency with Plaintiff’s functional limitations.
See 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00D.5.
dismissal
of
these
regulatorily
compliant
The ALJ’s
psychological
test
results on the sole basis of a 1973 IQ score which lacks most of
those regulatory criteria constitutes legal error.
Similarly, substantial evidence does not support the ALJ’s
conclusion that Plaintiff failed to establish deficits in adaptive
functioning prior to age 22.
(See Tr. 29.)
The ALJ primarily
relied upon Plaintiff’s daily activities and work history to find
a lack of adaptive deficits prior to age 22 (Tr. 29-30 (citing Tr.
48-58, 140-41, 148, 153, 160-61, 168, 197, 200-06, 207, 220, 230,
232-34,
241,
Occupational
420,
429-30,
Titles,
No.
443,
459;
904.383-010
G.P.O.,
Dictionary
of
(Tractor-Trailer-Truck
Driver), 1991 WL 687703 (4th ed. rev. 1991) (“DOT”))); however,
almost none of this evidence relates to the time period prior to
14
Plaintiff’s 22nd birthday (see Tr. 37 (reflecting Plaintiff’s birth
date), 140 (showing work income of $3,487.91 in 1984 and $6,728.83
in 1985 from unidentified sources that predated Plaintiff’s 22nd
birthday)).
For example, although the ALJ found that Plaintiff
“successfully performed semiskilled work at the substantial gainful
activity
level
for
many
years”
(Tr.
29),
he
cited
almost
exclusively to evidence relating to her prior work as a truck
driver performed between 1992 and 2007 (see id. (citing Tr. 49,
140-41, 148, 153, 197, 200-06, 220; DOT No. 904.383-010, 1991 WL
687703)).
Further, the ALJ noted that Plaintiff “[was] married, was able
to raise a family, help[ed] care for her parents, [and] “[was] able
to drive” (Tr. 29), but relied on Plaintiff’s hearing testimony in
October 2011 (see Tr. 48, 50), her daughter’s statements on a
“Function Report - Adult - Third Party” completed in October 2009
(see Tr. 160-67), and various references to such activities in
mental health treatment notes from 2009 to 2011 (see Tr. 220, 230,
232-34, 241, 420, 429-30, 443, 459), to make those findings.
That
evidence constitutes contemporaneous statements of Plaintiff’s
abilities, not accounts that relate back to the time period prior
to her 22nd birthday.
Moreover, the ALJ made no attempt at the
hearing, beyond asking Plaintiff how far she had gone in school
(Tr. 48), and whether she had obtained a graduate equivalency
degree (“GED”) (id.), to elicit testimony regarding Plaintiff’s
15
abilities to communicate, care for herself, maintain a home, relate
with others, or work prior to her 22nd birthday (see Tr. 48-58).
Compounding the ALJ’s failure to properly elicit and consider
evidence as to Plaintiff’s functionality prior to age 22, the ALJ
erred in evaluating Plaintiff’s school records. (Tr. 29.) The ALJ
acknowledged Plaintiff’s “poor grades” and that she “only completed
the seventh grade,” but dismissed those considerations by noting
that Plaintiff did not attend special education classes and that
her
“conduct
was
rather
poor,
which
contributed to her academic difficulties.”
certainly
(Id.)
could
have
The absence of
proof of special education and speculation that behavioral issues
“could have contributed” to Plaintiff’s academic failures cannot
overcome the more significant facts that Plaintiff repeated both
the first and seventh grades (Tr. 192), and that her California
Achievement Test (“CAT”) scores placed her reading, math, language,
and spelling abilities consistently between two and three grade
levels below her actual grade (Tr. 192, 195-96).
Such school
records, as virtually the only evidence of Plaintiff’s functioning
prior to age 22, show that she did experience the requisite
adaptive
deficits
before
age
22.
Indeed,
such
poor
school
performance of the sort present here “is directly material” to
Listing 12.05’s requirement of deficits in adaptive functioning
during the developmental period.
214,
218
(4th
Cir.
2012);
see
16
Jackson v. Astrue, 467 F. App’x
also
Salmons
v.
Astrue,
No.
5:10–CV195–RLV, 2012 WL 1884485, at *7 (W.D.N.C. May 23, 2012)
(unpublished)
(recognizing
that
“functional
academic
skills”
represent primary measure of adaptive functioning before age 22);
Smith v. Astrue, C.A. No. 3:10–66–HMH–JRM, 2011 WL 846833, at *2
(D.S.C. March 7, 2011) (unpublished) (holding that documentation of
scholastic achievement “substantially below grade level . . .
demonstrat[ed] that [the plaintiff] portrayed deficits in adaptive
behavior during her developmental period”); Watson v. Astrue, 729
F. Supp. 2d 786, 788 (E.D.N.C. 2010) (“The totality of [the]
[p]laintiff’s school records indicate that deficits in adaptive
functioning manifested before the age of 22.”).
Moreover, substantial evidence does not support the ALJ’s
analysis as to Plaintiff’s adaptive deficits during the period of
alleged disability.
Although the ALJ did not make an express
finding in that regard, he did make specific findings concerning
Plaintiff’s work history and daily activities after her 22nd
birthday, e.g., that Plaintiff “successfully performed semiskilled
work at the substantial gainful activity level for many years,”
“[was] married, was able to raise a family, help[ed] care for her
parents, [and] “[was] able to drive” (Tr. 29), which suggest a
conclusion that Plaintiff did not possess adaptive deficits during
the period of alleged disability.
However, those findings do not
sufficiently support the ALJ’s implied conclusion that Plaintiff
lacked adaptive deficits during the disability period.
17
The
ALJ
based
his
finding
that
Plaintiff
“successfully
performed semiskilled work at the substantial gainful activity
level for many years” (Tr. 29) primarily on Plaintiff’s truck
driver work from 1992 to 2007 (see id. (citing Tr. 49, 140-41, 148,
153, 197, 200-06, 220; DOT No. 904.383-010, 1991 WL 687703).
However, Plaintiff’s ability to work during her younger years,
prior to the onset of “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’x 1, § 12.05C, has
limited relevance to the adaptive deficit inquiry:
“[T]he fact that a claimant has been able to work in the
past does not necessarily suggest that the claimant does
not satisfy the deficits in adaptive functioning
requirement. . . . ‘Listing 12.05(C) assume[s] many, if
not most, mildly mentally retarded individuals will be
able to work . . . [but that they may] subsequently
become disabled due to the development of additional
severe impairments.’”
Shaw v. Astrue, No. 4:08CV132D(2), 2009 WL 2486932, at *6-7 (E.D.N.C. Aug. 13, 2009)
(unpublished) (quoting Muntzert v. Astrue, 502 F. Supp.
2d 1148, 1158 (D. Kan. 2007)). . . . [An] ALJ thus should
take care not to place too much weight on [a claimant’s]
former work experience in reaching a conclusion . . . as
to whether [the claimant] can meet her burden of showing
deficits in adaptive functioning as required by . . .
Listing 12.05C. See Brooks v. Astrue, No. 2:10CV37D,
2011 WL 3882283, at *8 (E.D.N.C. Aug. 17, 2011)
(unpublished), recommendation adopted, 2011 WL 3904104
(E.D.N.C. Sept. 2, 2011) (unpublished).
Nelson v. Astrue, No. 1:09CV117, 2012 WL 37364, at *8 (M.D.N.C.
Feb. 3, 2012) (unpublished), recommendation adopted, slip op.
(M.D.N.C. Mar. 9, 2012).
Thus, without further explanation,
Plaintiff’s work history does not constitute substantial evidence
18
to support the ALJ’s implicit finding that Plaintiff lacked the
requisite adaptive deficits during the disability period.
In regards to Plaintiff’s daily activities, the ALJ noted that
Plaintiff “[was] married, was able to raise a family, help[ed] care
for her parents, [and] “[was] able to drive.”
(Tr. 29 (citing Tr.
48, 50, 160-67, 220, 230, 232-34, 241, 420, 429-30, 443, 459).)
However, the ALJ failed to adequately address evidence reflecting
Plaintiff’s significant difficulty with numerous fundamental daily
activities.
Party,
For example, on a Function Report - Adult - Third
Plaintiff’s
sister
indicated
that
Plaintiff
“can’t
do
anything involving reading or writing” (Tr. 161), “can’t read the
labels” on her medication (Tr. 162), has to have instructions read
to her (id.), shops with other people so they can assist her with
reading items (Tr. 163), “can’t spell out words to write a check or
money order” or pay bills (id.), and needs verbal instructions
“repeated several times” (Tr. 165).
Subsequently, at the hearing,
Plaintiff testified that she could read only “some small words” but
not a newspaper, that she could not fill out a job application,
that she could not write more than her name, and that she obtained
a driver’s license by taking on oral examination.
(Tr. 50.)
Further, seven of Plaintiff’s former coworkers and supervisors
submitted statements attesting to Plaintiff’s virtual inability to
read any work-related documents and the assistance they provided
reading the materials for Plaintiff.
19
(Tr. 200-06.)
The ALJ’s
failure to consider such significant limitations in Plaintiff’s
ability to perform daily activities further renders his implicit
finding that Plaintiff did not manifest the requisite adaptive
deficits during the disability period unsupported by substantial
evidence.
See Milovanovich v. Colvin, No. 4:12–CV–243–BO, 2013 WL
5962950, at *3 (E.D.N.C. Nov. 7, 2013) (unpublished) (rejecting
ALJ’s conclusion claimant did not have requisite adaptive deficits
where
claimant
“[was]
functionally
illiterate,”
had
not
ever
“performed work involving reading and math,” did not “complete[]
the function report for her disability application,” and needed
“her attorney to rephrase and break down several questions . . .
during [the] hearing because she did not understand them”).
Further, the ALJ erred by finding that Plaintiff did not have
another physical or mental impairment imposing significant workrelated limitations.
(Tr. 29.)
Notably, the parties agree (see
Docket Entry 11 at 4-5; Docket Entry 15 at 4), and the record
definitively establishes, that Plaintiff did suffer from such other
impairments.
At step two of the SEP, the ALJ labeled as severe
Plaintiff’s degenerative disc disease, cervical kyphosis, mood
disorders, and anxiety-related disorders (Tr. 24), and then (at the
RFC stage) limited Plaintiff to medium work with numerous nonexertional
limitations
(Tr.
30),
which
performing any past relevant work (Tr. 37).
precluded
her
from
See Flowers v. United
States Dep't of Health & Human Servs., 904 F.2d 211, 214 (4th Cir.
20
1990) (“In this circuit, we follow the rule that if a claimant
cannot return to [her] past relevant work, [she] has established a
work-related limitation of function which meets the requirements of
§ 12.05(C).”); Wallace v. Astrue, No. 5:09CV359FL, 2010 WL 2520084,
at *3 (E.D.N.C. June 21, 2010) (unpublished) (“[T]he ‘work-related
limitation of function’ requirement of § 12.05C is satisfied where
a claimant is found to have a ‘severe impairment’ at step two of
the five-part analysis.” (citing, inter alia, Luckey v. United
States Dep’t of Health & Human Servs., 890 F.2d 666, 669 (4th Cir.
1989))).
As a result, the Court should conclude that Plaintiff
possessed “a physical or other mental impairment imposing an
additional and significant work-related limitation of function,”
Hancock, 667 F.3d at 473 (internal quotation marks omitted).
Finally, the ALJ’s reliance on opinion evidence does not
amount to substantial evidence to support his conclusion that
Plaintiff’s borderline intellectual functioning did not meet or
equal Listing 12.05C.
First, the ALJ relied on consultative
examiner Dr. Sullivan’s diagnosis of Plaintiff with “borderline
intellectual functioning rather than mental retardation” as support
for his ultimate conclusion regarding Listing 12.05C. (Tr. 29-30.)
However, Dr. Sullivan’s report states that he chose Plaintiff’s
full scale IQ score of 73, to diagnose borderline intellectual
functioning: “The claimant’s full scale IQ score indicates she was
functioning in a borderline range of intelligence.” (Tr. 244.) In
21
contrast, the regulations make clear that, “in cases where more
than one IQ is customarily derived from the test administered,
e.g., where verbal, performance, and full scale IQs are provided in
the Wechsler series, [the Commissioner] use[s] the lowest of these
in conjunction with [Listing] 12.05.” 20 C.F.R. Pt. 404, Subpt. P,
App’x 1, § 12.00D.6.c (emphasis added).
Here, Plaintiff’s lowest
IQ score, her verbal IQ of 70, falls within the range of Listing
12.05C and thus the ALJ should not have relied on Dr. Sullivan’s
borderline intellectual functioning diagnosis as a basis to find
Plaintiff did not meet or equal Listing 12.05C.
Second, the ALJ relied on the state agency consultants’
conclusions that Plaintiff’s “mental impairments, including her
borderline
intellectual
functioning,
were
severe
but
not
of
listing[] level severity” to support his Listing 12.05C finding.
(Tr. 30.) Although both state agency consultants did conclude that
Plaintiff’s borderline intellectual functioning did not meet or
equal any listings (see Tr. 255, 278), neither consultant conducted
any specific analysis of the components of Listing 12.05C, i.e., an
IQ score of 60 to 70, deficits in adaptive functioning which
manifested
prior
to
age
22,
and
another
physical
or
mental
impairment imposing significant work-related limitations (see Tr.
255, 263, 278, 289).
inadequate
explanations
In light of the ALJ’s legal errors and
regarding
his
conclusions
as
to
the
specific components of Listing 12.05C, the generalized state agency
22
findings in question do not constitute a sufficient basis to
support the ALJ’s ultimate determination that Plaintiff did not
meet or equal Listing 12.05C.
In sum, the ALJ failed to properly address whether Plaintiff
met or equaled Listing 12.05C.
2. Exclusive Reliance on Medical-Vocational Guidelines
Plaintiff’s second and final assignment of error asserts that
the ALJ erred by relying exclusively on the Medical-Vocational
Guidelines to direct a conclusion of non-disability, where the ALJ
also found that Plaintiff suffered from a number of non-exertional
limitations.
(Docket Entry 11 at 8-9 (citing Hooper v. Heckler,
752 F.2d 83 (4th Cir. 1985), and Grant v. Schweiker, 699 F.2d 189
(4th Cir. 1983).)
According to Plaintiff, “[b]eing illiterate and
having significant difficulties understanding directions are going
to significantly erode the occupational base at any exertional
level” and “[t]he ALJ should have consulted a [vocational expert
(“VE”)] to assess how much these limitations would affect the
occupational base and to obtain testimony regarding jobs and their
incidence in the economy which would accommodate these admitted
limitations.”
(Id. at 9.)
Plaintiff’s arguments do not warrant
relief.
Where, as in this case, “the claimant reaches step five, the
burden shifts to the [Commissioner] to produce evidence that other
jobs exist in the national economy that the claimant can perform
23
considering his [or her] age, education, and work experience.”
Hunter, 993 F.2d at 35.
“The Commissioner may meet this burden by
relying on the Medical–Vocational Guidelines (Grids) or by calling
a [VE] to testify.”
Aistrop v. Barnhart, 36 F. App’x 145, 146 (4th
Cir. 2002) (citing 20 C.F.R. § 404.1566)).8 “[W]hen non-exertional
as well as exertional limitations exist, the testimony of a [VE] is
normally required,” Hooper, 752 F.2d at 88 (emphasis added);
however, “not every non-exertional limitation . . . preclude[s]
reliance on the Grids,” Walker v. Bowen, 889 F.2d 47, 49 (4th Cir.
1989).
Here,
the
ALJ
ruled
that,
despite
Plaintiff’s
severe
impairments (as found at step two), she retained the RFC to perform
medium
work
with
occasional
climbing
of
ropes,
ladders,
and
scaffolds and no concentrated exposure to heights and machinery.
(Tr. 30.)
The ALJ further found that Plaintiff could understand
and remember simple, three-step directions, sustain attention to
complete simple, routine tasks for two hours at a time, accept
direction from supervisors, maintain relationships with coworkers,
and adapt to changes with stable work assignments, but could not
8
“The Grids categorize jobs by their physical-exertion requirements, namely,
sedentary, light, medium, heavy, and very heavy. There are numbered tables for
the sedentary, light, and medium level (tables 1, 2, and 3, respectively), and
a specific rule for the heavy and very heavy levels. Based on the claimant’s
RFC, the ALJ must first determine which table to apply, i.e., if the claimant’s
RFC limits him to a sedentary exertional level, then Table No. 1 is the
appropriate table. Next, based on the claimant’s age, education, and previous
work experience, the [table or] rule directs a finding of ‘disabled’ or ‘not
disabled.’” Black v. Astrue, No. 3:09CV599, 2010 WL 2306130, at *4 (E.D. Va.
Apr. 26, 2010) (unpublished) (internal citations and footnotes omitted),
recommendation adopted, 2010 WL 2306136 (E.D. Va. June 3, 2010) (unpublished).
24
handle extensive social interaction or any contact with the general
public.
(Id.)9
At step five, the ALJ “consider[ed] [Plaintiff’s
RFC], age, education, and work experience in conjunction with the
Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix
2.”
(Tr. 38.)
Pursuant to that review, the ALJ observed that,
“[i]f [Plaintiff] had the [RFC] to perform the full range of medium
work, considering [her] age, education, and work experience, a
finding of ‘not disabled’ would be directed by Medical-Vocational
Rule 203.26.”
(Id.)
The ALJ then recognized that Plaintiff’s RFC did not allow for
the
full
range
of
medium
exertional-level
work,
but
instead
included certain non-exertional restrictions (i.e., occasional
climbing of ropes, ladders, and scaffolds, simple, three-step
directions, simple, routine tasks, no extensive social interaction,
no
contact
with
the
general
public);
“[h]owever,
[the
ALJ
determined that] the additional limitations have little or no
effect on the occupational base of unskilled medium work.”
(Id.;
see also id. (“Social Security Ruling 85-15 states that the basic
mental demands of competitive, remunerative, unskilled work include
the
abilities
to
understand,
carry
out
and
remember
simple
instructions; to respond appropriately to supervision, coworkers,
and usual work situations; and to deal with changes in a routine
work setting on a sustained basis (i.e., 8 hours a day, 5 days a
9
Plaintiff’s brief does not contend that the record lacks substantial evidence
supporting the ALJ’s RFC finding. (See Docket Entry 11 at 4-9.)
25
week, or an equivalent work schedule).
. . . [Plaintiff] has
retained the ability to meet these basic mental demands on a
sustained basis.
restrictions
Social Security Ruling 85-15 also provides that
against
unprotected
elevations
and
proximity
to
dangerous, moving machinery are not significant at any exertional
level.
Finally, Social Security Ruling 83-14 indicates that the
inability to ascend or descend ladders or scaffolding is not
significant.”).)
Given that determination (and without testimony
from a VE), the ALJ concluded that “[a] finding of ‘not disabled’
[wa]s
therefore
appropriate
Vocational Rule 203.26].”
Abundant
Plaintiff’s
authority
under
the
framework
the
ALJ’s
of
[Medical-
(Id.)
supports
non-exertional
limitations
occupational base of medium, unskilled work.
did
conclusion
not
erode
that
the
See, e.g., Cooper v.
Secretary of Health & Human Servs., No. 86-3514, 843 F.2d 1390
(table),
1988
WL
27503,
at
*1,
5
(6th
Cir.
Mar.
31,
1988)
(unpublished) (holding that “ALJ was justified in relying upon the
grids,” where ALJ “observed that claimant retained the [RFC] to
perform simple and repetitive sedentary work of a low-stress
type”); Smith v. Colvin, No. 3:13CV570MOC, 2014 WL 2159122, at *4
(W.D.N.C. May 23, 2014) (unpublished) (“The ALJ concluded [the]
plaintiff could do medium unskilled work with limited public
contact. . . .
The ALJ reasoned [that] unskilled work usually
involves working with things and not the public, a finding which
26
finds support in the regulations and case law within the Fourth
Circuit. . . .
The ALJ was not obligated to bring in a VE and
properly relied
on
the
Grids
in
finding
[the]
plaintiff not
disabled.” (internal citation omitted)); Livingston v. Colvin, No.
3:13CV233MOC,
2014
WL
496484, at
*6 (W.D.N.C.
Feb.
6, 2014)
(unpublished) (“Plaintiff argues that the ALJ finding that her RFC
for light work was limited to SRRTs prevented the ALJ from relying
on the Grids in determining whether work existed in significant
numbers in the national economy that she could perform. . . .
A
limitation to SRRTs does not prevent an ALJ from relying on the
Grids.”); Scott v. Colvin, No. 1:12CV170RJC, 2013 WL 3927607, at
*6-7 (W.D.N.C. July 29, 2013) (unpublished) (rejecting argument
“that the ALJ should have consulted a [VE] to support [the] stepfive determination . . . [where] [t]he ALJ determined that [the]
[p]laintiff does suffer from mental health impairments . . .
accounted for in the ALJ’s RFC determination by restricting [the]
[p]laintiff to the performance of non-complex, repetitive and
routine tasks in a low stress, non-production environment that does
not involve significant interpersonal interaction . . . [because]
limitation to simple, unskilled, entry level work that allows for
less stress work without public contact or significant interaction
with others would not significantly erode the occupational base
represented by the Grids” (internal quotation marks omitted));
Lewandowski v. Astrue, No. 1:07CV1777DLB, 2008 WL 4736788, at *8
27
(E.D. Cal. Oct. 28, 2008) (unpublished) (“[T]he ALJ determined that
[the] [p]laintiff could perform a significant number of jobs in the
national
economy.
In
this
regard,
he
determined
that
her
non-exertional limitation to simple, routine tasks had little or no
effect on the occupational base of unskilled light work.
was
entitled
omitted));
to
Social
make
this
Security
determination.”
Ruling
85-15,
(internal
Titles
II
The ALJ
citation
and
XVI:
Capability to Do Other Work – The Medical-Vocational Rules as a
Framework for Evaluating Solely Nonexertional Impairments, 1985 WL
56857, at *4, 8 (1985) (limits to unskilled work and no heights or
moving machinery do not erode occupational base); Social Security
Ruling 83-14, Titles II and XVI: Capability to Do Other Work – The
Medical-Vocational
Rules
as
a
Framework
for
Evaluating
a
Combination of Exertional and Nonexertional Impairments, 1983 WL
31254, at *5 (1983) (preclusion of ascending or descending ladders
and scaffolds does not erode medium occupational base).
Plaintiff nevertheless maintains that the ALJ erred because he
did not expressly consider the effect that her illiteracy had on
the medium occupational base.
Tr. 38.)
(See Docket Entry 11 at 9; see also
However, as the Commissioner correctly argues, “[t]he
Grid[s] explicitly account[] for illiteracy” and thus “illiteracy
is not a non-exertional impairment” that can erode the occupational
base.
(See Docket Entry 15 at 18 (citing Wolfe v. Chater, 86 F.3d
1072, 1078 (11th Cir. 1996), and 20 C.F.R. Pt. 404, Subpt. P, App’x
28
2, Rules 201.23, 202.16)); see also 20 C.F.R. Pt. 404, Subpt. P,
App’x 2, Rules 201.00(i), 202.00(g) (providing that “the primary
work functions in the bulk of unskilled work relate to working with
things
(rather
functions
at
than
the
with
data
unskilled
or
people)
level,
and
literacy
in
or
these
ability
work
to
communicate in English has the least significance” and that the
capability for sedentary and light work reflects “substantial
vocational scope” for claimants aged 18 to 49 even if “illiterate
or unable to communicate in English”); 20 C.F.R. Pt. 404, Subpt. P,
App’x 2, Rule 203.00 (“The functional capacity to perform medium
work includes the functional capacity to perform sedentary, light,
and medium work.”).
In conclusion, Plaintiff has not shown prejudicial error
arising out of the ALJ’s exclusive reliance on the Grids to direct
a conclusion of non-disability.
III. CONCLUSION
Plaintiff has established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be reversed and that the matter be remanded
under
sentence
administrative
four
of
42
proceedings to
U.S.C.
§
405(g),
include
reevaluation
for
of
further
whether
Plaintiff’s intellectual functioning meets or medically equals the
requirements of Listing 12.05C.
As a result, Plaintiff’s Motion
for Judgment on the Pleadings (Docket Entry 10) should be granted
29
to the extent it seeks remand, and Defendant’s Motion for Judgment
on the Pleadings (Docket Entry 14) should be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 11, 2016
30
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?