REED v. COLVIN
Filing
17
MEMORANDUM OPINION AND ORDER. Signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 9/30/2014, that Plaintiff's motion for judgment reversing the Decision of the Commissioner (Doc. 12 ) is DENIED, that Defendant's motion for judgment on the pleadings (Doc. 14 ) is GRANTED, and that this action is dismissed with prejudice. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RITA D. REED,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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1:13CV713
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff, Rita D. Reed, 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 claims for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act.
The court has
before it the certified administrative record and Defendant has
filed a motion for judgment on the pleadings.
I.
BACKGROUND
Plaintiff filed an application for SSI on June 7, 2010,
alleging a disability beginning on June 1, 2007.
After her
claim was denied initially (Tr. at 72) and upon reconsideration
(Tr. at 89), Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”), which took place on April 16,
2012 (Tr. at 105).
In a decision dated June 27, 2012, the ALJ
denied Plaintiff’s application. (Tr. at 17–27.)
The ALJ found
that Plaintiff had the following severe impairments: bipolar
disorder; anxiety with panic attacks; OCD; and depression. (Tr.
at 19.)
The ALJ also found that her impairments, alone or in
combination, did not meet or equal a Listing impairment. (Id.)
The ALJ determined that Plaintiff had the RFC to perform a
full range of work at all exertional levels with following
nonexertional limitations: simple, routine repetitive tasks; no
contact with the public; occasional contact with coworkers and
supervisors for completion of job tasks; and non-production jobs
entailing only routine changes. (Tr. at 20–21.)
The ALJ
determined that Plaintiff had no past relevant work but that
considering her age, education, work experience, and RFC, there
were jobs that existed in significant numbers in the national
economy which she was capable of performing, including: cleaner,
silver wrapper, and supply worker. (Tr. at 25–26.)
Thus, the
ALJ found that Plaintiff was not disabled. (Tr. at 26.)
After
unsuccessfully seeking review by the Appeals Council (Tr. at 1),
Plaintiff filed the present action on August 29, 2013.
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II.
ANALYSIS
The Commissioner uses a five-step process to evaluate
disability claims.
416.920(a)(4).
See 20 C.F.R. §§ 404.1520(a)(4),
Under this process, the Commissioner asks, in
sequence, whether the claimant: (1) worked during the alleged
period of disability; (2) had a severe impairment; (3) had an
impairment that met or equaled the requirements of a listed
impairment; (4) could return to her past relevant work; and (5)
if not, could perform any other work in the national economy.
See 20 C.F.R. § 416.920(a)(4).
Plaintiff’s arguments focus on the second and third step of
the sequential analysis.
In regards to Step 2, Plaintiff argues
that the ALJ improperly concluded that Plaintiff’s intellectual
disability was not a severe impairment.
(Pl.’s Br. Supporting
Mot. to Reverse the Decision of the Commissioner of Social
Security (“Pl.’s Br.”) (Doc. 13) at 4.)
In regards to Step 3,
Plaintiff asserts that the ALJ erred in failing to consider
whether Plaintiff’s impairments met the requirements under
Listing 12.05C (intellectual disability).
A.
(Id. at 3-6.)
Step 2: Severe Impairment
Plaintiff argues that the ALJ improperly concluded that
Plaintiff’s intellectual disability was not a severe impairment.
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As the ALJ listed Plaintiff’s severe impairments in Step 2 of
the sequential analysis, the ALJ included bipolar disorder,
anxiety with panic attacks, OCD, and depression. (Tr. at 19.)
The ALJ did not list “intellectual disability” as a severe
impairment.
In determining whether the claimant has a severe
impairment, an ALJ considers whether the claimant has an
“impairment or combination of impairments which significantly
limits [the claimant’s] physical or mental ability to do basic
work activities.”
20 C.F.R. § 416.920(c).
This requirement
only requires a de minimis showing of severity.
v. Astrue, 459 F. App'x 226, 230 (4th Cir. 2011).
Felton-Miller
However, when
an alleged severe impairment is based on a single I.Q. test, an
ALJ has the “discretion to assess the validity of an I.Q. 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,
473 (4th Cir. 2012).
In a 2010 consultative psychological evaluation conducted
by Dr. Jan D. Lhotsky, Plaintiff received a verbal comprehension
I.Q. score of 70 and a full performance I.Q. score of 69. (Tr.
at 246.)
In her opinion, the ALJ rejected Plaintiff’s assertion
that the I.Q. scores met the 12.05C Listing.
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(Tr. at 20.)
The
ALJ asserted, and it is undisputed, that the current I.Q. score
was not supported with school testing prior to age 22 or
independent testing to determine if the score was the product of
Plaintiff’s best efforts.
(Id.) As explained by the ALJ,
Plaintiff’s statements to Dr. Lhotsky that she could read and
write “pretty well,” and the evidence of Plaintiff’s adaptive
functioning were inconsistent with this I.Q. score.
25.)1
(Tr. at 20,
As recognized in Hancock, the ALJ relied upon a comparison
to Plaintiff’s functioning, at least in part, in discrediting
the I.Q. scores.
Hancock, 667 F.3d at 476.
This evidence
supports the ALJ’s finding that Plaintiff’s alleged intellectual
disability did not constitute a severe impairment. See Clark v.
Apfel, 141 F.3d 1253, 1256 (8th Cir. 1998).
Accordingly, this court concludes that the evidence
considered by the ALJ provides sufficient support for the ALJ’s
rejection of the I.Q. scores, and as a result, the ALJ did not
err by excluding “intellectual disability” from the list of
Plaintiff’s severe impairments.
This court also notes that while not expressly referenced
by the ALJ, Plaintiff’s long-term treating psychiatrist, Dr. W.
Stuart Collins, never diagnosed intellectual limitation or made
note of such a condition. (Tr. at 280 (noting a normal level of
intellectual functions based on observations).) The record
containing this entry was noted by the ALJ, who described the
fact that Plaintiff’s “mental status was normal” in January and
March of 2009. (Tr. at 22.)
1
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B.
Step 3: Listing 12.05C
Plaintiff next argues that the ALJ did not sufficiently
consider her impairments when determining if she qualified for
Listing 12.05C.
A finding of “intellectual disability” under Listing 12.05C
requires the satisfaction of three distinct prongs.2
Claimant
must show that she has “[a] valid verbal, performance, or full
scale I.Q. of 60 through 70” (“Prong 1”), as well as “a physical
or other mental impairment imposing an additional and
significant work-related limitation of function” (“Prong 2”).
20 C.F.R. Part 404, Subpart P, App. 1, 12.05C.
Listing 12.05
also requires 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 3”).
Id.
The ALJ found that Plaintiff established that she suffered
from severe mental impairments, including bipolar disorder,
anxiety with panic attacks, OCD, and depression (Tr. at 19),
2
As Defendant recognizes in its brief, the Commissioner of
Social Security recently replaced the term “mental retardation”
with the term “intellectual disability” in Listing 12.05C. See
78 Fed. Reg. 46,449, 46501 (2013). The revision did not change
the listing’s substantive requirements. Id. The court uses the
updated term and recognizes that this change does not alter any
of the arguments made by either party.
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satisfying Prong 2.
See Luckey v. U.S. Dep't of Health and
Human Servs., 890 F.2d 666, 669 (4th Cir. 1989) (recognizing
that finding a claimant suffers from a severe impairment
establishes the significant work related limitation of function
required by 12.05B).
However, the ALJ found that Plaintiff did
not establish the other prongs, that is Prongs 1 and 3, of
Listing 12.05C.
Plaintiff disputes this finding.
However, Plaintiff can
prevail only if she establishes that the ALJ erred in her
analysis of both Prong 1 and Prong 3.
Therefore, even if the
ALJ's finding concerning Prong 1 of Listing 12.05C did not rest
on substantial evidence, this court would still be required to
affirm the ALJ's decision if her finding with regard to Prong 3
was based on substantial evidence.
As a result, this court
considers whether substantial evidence existed to support the
ALJ's findings with respect to Prongs 1 and 3.
i.
Prong 1
The first prong under 12.05C requires that Plaintiff
demonstrate a valid full scale I.Q. score between 60 and 70.
As
mentioned previously, the ALJ found that there was no evidence
to corroborate the I.Q. test result where Plaintiff had a verbal
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comprehension I.Q. score of 70 and a full performance I.Q. score
of 69.
Plaintiff makes two arguments in response.
First, Plaintiff argues that the ALJ did not give controlling
weight to the finding of Dr. Lhotsky (the professional who
performed the consultative psychological evaluation) that the I.Q.
scores were consistent with Plaintiff’s educational and vocational
history.
(Pl.’s Br. (Doc. 13) at 5; Tr. at 248.)
First of all,
the opinions generated after a “one-time evaluation by a nontreating psychologist,” like the ones Dr. Lhotsky generated after
the consultative psychological evaluation, are not entitled to
controlling weight.
Clark, 141 F.3d at 1256.
Additionally, as
explained above, the ALJ provided sufficient justification for
disregarding the opinions based on the evaluation, and the court
finds that there was substantial evidence to support the ALJ’s
decision.
Second, Plaintiff argues that the ALJ imposed additional
requirements not found in the regulations when it required that
Plaintiff file educational records and independent testing to
corroborate the more recent I.Q. scores.
at 4-5.)
issue.
(Pl.’s Br. (Doc. 13)
Plaintiff misinterprets the ALJ’s opinion on this
The ALJ used the lack of school records and the lack of
independent testing to support her decision to reject Dr.
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Lhotsky’s findings. (Tr. at 20.)
In doing so, the ALJ was not
adding an additional requirement but merely citing some of her
reasons for rejecting Dr. Lhotsky’s findings, which included the
fact that Plaintiff did not meet the adaptive functioning
deficits.
(Id.)
ii.
See Hancock, 667 F.3d at 474-75.
Prong 3
Finally, the third prong of 12.05C requires that Plaintiff
demonstrate “deficits in adaptive functioning initially
manifested during the developmental period.”
The ALJ concluded
that Plaintiff did not exhibit the deficits of adaptive
functioning to meet a 12.05C Listing.
Plaintiff objects to this
conclusion.
“Deficits in adaptive functioning can include limitations
in areas such as communication, self-care, home living,
social/interpersonal skills, use of community resources, selfdirection, functional academic skills, work, leisure, health and
safety.” Atkins v. Virginia, 536 U.S. 304, 309 n. 3 (2002).
What, precisely, will satisfy this prong of the inquiry are
case-specific. Richardson v. Colvin, No. 8:12–cv–03507–JDA, 2014
WL 793069, at *11 (D.S.C. Feb. 25, 2014) (noting that there are
“very few few bright-line rules”).
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Thus, although cases interpreting Listing 12.05 provide
some guidance, what factors will establish or contradict such a
finding are unique to each case. Compare Hancock, 667 F.3d at
475-76 (finding no deficit in adaptive functioning where
claimant worked several jobs and performed a variety of tasks;
shopped and paid bills; cared for three small grandchildren; did
the majority of household chores, including cooking and baking;
and that she does puzzles for entertainment), with Maresh v.
Barnhart, 438 F.3d 897, 900 (8th Cir. 2006) (finding evidence of
deficiencies in adaptive functioning where claimant attended
special education classes; struggled with reading, writing and
math; and dropped out of school in the ninth grade).
Here, the ALJ made a specific finding that the evidence
failed to demonstrate deficits in adaptive functioning
manifested before the age of 22 so as to meet this prong of
Listing 12.05C. (Tr. at 20).
The ALJ noted that Plaintiff has
been married, has lived on her own and, at one time, had custody
of her three children. (Tr. at 23-25, 245.)
While she left
school in seventh grade, she did so because she was pregnant.
(Tr. at 20.)
Since dropping out, she has been encouraged to get
her GED. (Tr. at 257).
Additionally, she is able to clean and
to care for her personal needs; she had a driver’s license in
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the past; and she stated to the consultative examiner that she
was able to read and write fairly well. (Tr. at 25, 37-39.)
Additionally, the ALJ observed that Plaintiff’s diagnosed mental
impairments, such as bipolar disorder, panic attacks, and
anxiety, accounted for any mental limitations and explained her
inability to hold a job, retain custody of her children, etc.
(Tr. at 25.)
These findings by the ALJ support the ALJ’s
decision that Plaintiff did not display deficiencies in adaptive
functioning as a result of intellectual disability.
As evidence of her deficits in adaptive functioning,
Plaintiff responds that: (1) she repeated two grades, (2) she
left school in the seventh grade, (3) she cannot count money,
(4) she had difficulty reading and understanding, (4) she is
unable to follow a recipe, and (5) she has been unable to hold a
job for an extended period of time.
(Pl.’s Br. (Doc. 13) at 5.)
Although these pieces of evidence provide some support for the
finding of deficiencies in adaptive functioning, the ALJ has the
duty to find facts and consider the importance of conflicting
evidence.
This court is not at liberty to “undertake to re-
weigh conflicting evidence, make credibility determinations, or
substitute [the court’s] judgment” for that of the ALJ.
v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
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Craig
The court’s review
stops when it finds the determination is supported by
substantial evidence, as the ALJ’s decision is here.
Plaintiff makes an additional argument that the court is
required to presume that an I.Q. score is constant throughout
life, making it easier for Plaintiff to prove that the mental
deficiencies arose before age 22.
(citing
(Pl.’s Br. (Doc. 13) at 5-6
Luckey v. U.S. Dep't of Health & Human Servs., 890 F.2d
666, 668 (4th Cir. 1989)).)
However, this argument does not
address the ALJ’s decisions that the I.Q. test was not
corroborated by other medical evidence and that there were no
deficiencies in adaptive functioning.
Therefore, this court
does not provide any further analysis on this point.
In sum, this evidence is sufficient to support the ALJ’s
finding of an absence of deficits in adaptive functioning.
Accordingly, the ALJ's decision that the adaptive functioning
prong of Listing 12.05C was not met was proper in light of the
substantial evidence in the record.
475–76.
See Hancock, 677 F.3d at
Consequently, remand for further consideration of the
issue is not warranted.
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III. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s motion for
judgment reversing the Decision of the Commissioner (Doc. 12) is
DENIED, that Defendant’s motion for judgment on the pleadings
(Doc. 14) is GRANTED, and that this action is dismissed with
prejudice.
A judgment consistent with this Memorandum Opinion
and Order will be entered contemporaneously herewith.
This the 30th day of September, 2014.
_______________________________________
United States District Judge
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