COOKE v. BERRYHILL
Filing
17
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 8/21/2018; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) be granted, and that judgment be entered for Defendant. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TIMOTHY COOKE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:17CV841
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Timothy Cooke, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Plaintiff’s
claim
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.)
Defendant has filed the certified administrative record
(Docket Entry 8 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 10, 14; see also Docket Entry 11
(Plaintiff’s Memorandum), Docket Entry 16 (Defendant’s Amended
Memorandum)).
For the reasons that follow, the Court should enter
judgment for Defendant.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging an onset date of
December
18,
2011.
(Tr.
229-37.)
Upon
denial
of
those
applications initially (Tr. 57-86, 121-31) and on reconsideration
(Tr. 87-118, 133-50), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 151-53). Plaintiff failed
to appear at the hearing, and the ALJ rescheduled the hearing.
(See Tr. 42-56.)1
Plaintiff, his attorney, and a vocational expert
(“VE”) attended the rescheduled hearing.
(Tr. 27-41.)2
The ALJ
subsequently ruled that Plaintiff did not qualify as disabled under
the Act.
(Tr. 8-19.)
The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 1-5, 225-28), 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 March 31, 2016.
. . .
2.
[Plaintiff] has not engaged in substantial gainful
activity since January 24, 2016, the [amended] alleged
onset date.
3.
[Plaintiff] has the following severe impairments:
COPD; degenerative disc disease; and osteoarthritis.
. . .
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.
1
The record does not contain an explanation for Plaintiff’s absence at the first
hearing.
2
On the day of the rescheduled hearing, Plaintiff amended his onset date to
January 24, 2016, his fiftieth birthday. (See Tr. 11, 263.)
2
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . with exceptions: He
can frequently balance, stoop, kneel, crouch, or crawl.
He must avoid concentrated exposure to fumes, dust,
gases, and pulmonary irritants.
He can frequently
operate pedals with his left foot.
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [he] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from January 24, 2016, through the
date of this decision.
(Tr.
13-19
(bold
font
and
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).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
3
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 if they are
supported
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 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
4
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.
(quoting
42
U.S.C.
§
423(d)(1)(A)).3
“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
3
regulations
establish
a
The Act “comprises two disability benefits programs. [DIB] . . . 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).
5
‘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. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).4
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,
4
“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).
6
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.5
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 567.6
5
“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”
(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.
6
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
B.
Assignments of Error
Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ erred by failing to explain why he did not grant
Plaintiff’s request for a [consultative examination (‘CE’)] to
assess Plaintiff’s intelligence” (Docket Entry 11 at 4 (bold font
and single-spacing omitted)); and
2) “[t]he ALJ erred by failing to evaluate Listing 12.05C”
(id. at 6 (bold font omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 16 at 5-13.)
1. Request for IQ Testing
In Plaintiff’s first issue on review, he argues that “[t]he
ALJ erred by failing to explain why he did not grant Plaintiff’s
request for a CE to assess Plaintiff’s intelligence.”
Entry
11
at
4
(bold
font
and
single-spacing
(Docket
omitted).)
In
particular, Plaintiff asserts that his “administrative attorney
requested the ALJ to order a psychological CE to assess Plaintiff’s
intelligence five months before the first hearing” and “renewed
this request at [Plaintiff’s first hearing,]” but that the ALJ “did
not even indicate in a perfunctory manner that he rejected the
request – it is not mentioned in the [ALJ’s] decision at all.”
(Id. (citing Tr. 45-46, 351).)
Plaintiff deems the ALJ’s failure
to rule on Plaintiff’s request for IQ testing “harmful” (id.),
8
because Plaintiff’s school records, which “contain[ed] IQ scores
. . . in Listing 12.05C range” and demonstrated that “he was
testing several grades below grade level at the second to fourth
grade levels[,]” constituted “sufficient evidence before the ALJ to
create a reasonable suspicion that Plaintiff suffered from a degree
of mental retardation as defined by [Listing] 12.05 . . . thereby
requiring
that
examination.”
the
ALJ
order
a
necessary
consultative
IQ
(Id. at 5 (citing Tr. 285, 291) (internal quotation
marks omitted).)
Here, the ALJ did not err by failing to rule on
Plaintiff’s request for IQ testing (or to order such testing),
because the record shows that Plaintiff abandoned his request for
such testing while his claims remained pending before the ALJ.
Plaintiff retained his administrative counsel on March 1,
2013, the same day that he applied for DIB and SSI.
20, 229-37.)
(See Tr. 119-
On March 5, 2013, Plaintiff’s counsel completed a
Disability
Report
-
Adult
“COPD[,]”
“Degenerative
(see
Spine
Tr.
266-74),
Disease[,]”
and
listed
only
“Anxiety[,]”
and
“Depression[,]” in response to a request to “[l]ist all of the
physical or mental conditions (including emotional or learning
problems) that limit [Plaintiff’s] ability to work” (Tr. 267).7
Plaintiff’s administrative counsel also indicated that Plaintiff
could speak, read, and write more than his name in English (see Tr.
7
Although the Disability Report itself does not reflect the date on which
Plaintiff’s administrative counsel completed the Report (see Tr. 274), the index
of the administrative transcript reflects a date of March 5, 2013, for the Report
(see Docket Entry 8 at 3).
9
266), and did not attend special education classes (see Tr. 268).
However,
in
the
“Remarks”
section
of
the
Disability
Report,
Plaintiff’s administrative counsel noted that Plaintiff had “a
learning disability and had to have help through school so [he]
could pick up on things.”
administrative
process,
(Tr. 274.)
the
Thus, at this point in the
Disability
Determination
Services
(“DDS”) had some notice, albeit not very compelling notice, that
Plaintiff claimed to have a learning disability.
On
March
23,
2013,
just
18
days
after
Plaintiff’s
administrative counsel completed the Disability Report, Plaintiff
attended a consultative psychological examination at the request of
the DDS.
(See Tr. 499-501.)
At that examination, Plaintiff
“denied ever having learning problems or significant behavioral
problems during his school years” (Tr. 499 (emphasis added)),
“denied problems with his concentration[,]” and stated that he
could “keep up with [his family’s] money, but he d[id] not like to
do it” (Tr. 500). Consultative examiner Philip B. Hatfield, Ph.D.,
diagnosed only “depressive disorder not otherwise specified . . .
mild in impact[,]” and noted that Plaintiff could “use technology
such as cellular phones [and] word processing[,] and [could] access
the internet using a computer.”
(Tr. 501.)
Accordingly, as of
March 23, 2013, Plaintiff abandoned any prior claim that he (or his
administrative counsel) may have made that Plaintiff suffered from
a learning disability.
10
Following this consultative psychological examination, on
April 5, 2013, Plaintiff submitted his academic records from Elkin
City Schools.
(Tr. 283-321; see also Docket Entry 8 at 3 (index of
administrative transcript reflecting submission date of April 5,
2013).)
Those records indicate that Plaintiff failed the first,
seventh, and eighth grades (see Tr. 284), tested two to three
grades below his grade level on the California Achievement Test
(“CAT”) in sixth and seventh grades, and obtained total IQ scores
of 67 (age 14) and 70 (age 15) on the Short Form Test for Academic
Aptitude, Level 4 (“SFTAA-4”) (Tr. 291).
Nearly three years later, on January 25, 2016, Plaintiff’s
administrative counsel sent a letter to the Office of Disability
Adjudication
and
Review
(“ODAR”),
contending
that
Plaintiff’s
school records, which showed that Plaintiff “repeated multiple
grade levels, earned very poor grades in his academic courses, and
received IQ scores as low as 67[,]” should “have supported [DDS]
scheduling
a
consultative
examination
[Plaintiff’s] intellectual functioning.”
to
further
(Tr. 351.)
assess
Plaintiff’s
administrative counsel requested ODAR to schedule “a psychological
CE, including IQ testing, . . . prior to [Plaintiff’s] hearing.”
(Id.)
On June 8, 2016, Plaintiff failed to appear at his scheduled
administrative hearing before an ALJ.
(See Tr. 44-45.)
The ALJ
nevertheless asked Plaintiff’s administrative counsel about the
11
basis
for
his
request
for
IQ
testing,
and
Plaintiff’s
administrative counsel identified “three IQ scores in [Plaintiff’s]
school records that [we]re 70 or below” (Tr. 45), as well as argued
that the school records “support that beyond the sixth grade
[Plaintiff]
qualified
as
was
only
socially
“marginal
promoted”
educationally”
and
(Tr.
that
46).
Plaintiff
Plaintiff’s
administrative counsel then raised the possibility of the ALJ
finding Plaintiff disabled based upon the application of Rule
201.12 of the Medical-Vocational Guidelines (“Grids”) as of his
fiftieth
birthday
on
January
14,
2016
(see
Tr.
48-49),8
and
requested the ALJ “to make a decision on the record rather than
dismiss the case” (Tr. 50 (emphasis added)). After some discussion
between the ALJ, the VE, and Plaintiff’s administrative counsel
(see Tr. 51-55), the ALJ asked Plaintiff’s administrative counsel,
“Anything further on this one?” to which Plaintiff’s administrative
counsel responded, “No.”
(Tr. 56).
The ALJ then indicated that he
would “probably go ahead and make a decision on the record[,]” to
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 h[er] 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).
Rule 201.12, relied upon by Plaintiff’s administrative counsel, directs a finding
of “Disabled” for a claimant who can perform no more than sedentary work, has
attained the age of 50 to 54, graduated from high school, and has unskilled or
no past relevant work. See 20 C.F.R., Pt. 404, Subpt. P, App’x 2, § 201.12.
12
which Plaintiff’s administrative counsel responded, “Okay.”
(emphasis added).)
(Id.
Plaintiff requested neither that the ALJ to
make an express ruling on Plaintiff’s request for IQ testing nor
that the ALJ issue an order for IQ testing prior to the ALJ making
his decision on the record.
(See Tr. 56.)
Plaintiff thus
abandoned his request for IQ testing.
Subsequently, the ALJ ordered a new hearing and, at that
hearing, the following exchange took place between Plaintiff’s
administrative counsel and the ALJ:
ALJ:
COUNSEL:
No, Your Honor.
ALJ:
(Tr.
Are we expecting any late filed exhibits?
All right.
We’ll go ahead and close the
record at the end of the hearing today then.
30
(emphasis
administrative
added).)
Moreover,
counsel elicited
some
although
testimony
Plaintiff’s
from
Plaintiff
regarding his education level and limited ability to read (see Tr.
35-36), Plaintiff’s administrative counsel did not even mention,
much less renew his motion for IQ testing (see Tr. 27-41).
At the
end of Plaintiff’s testimony, the following discussion occurred
between the ALJ and Plaintiff:
ALJ:
Is there anything else you want me to
know to make a fair decision in your
case?
PLAINTIFF:
No, sir, I guess that’s about it.
ALJ:
Okay. Well I just want to make sure we
covered everything.
13
(Tr. 37.)
Furthermore, although the ALJ granted Plaintiff’s
administrative counsel the opportunity to give an opening statement
and a closing argument (see Tr. 30), he opted to give neither and
made no arguments regarding a need for IQ testing, Plaintiff’s
alleged
learning
disability,
or
whether
Plaintiff’s
learning
disability met or equaled Listing 12.05C (see Tr. 27-41). After an
unfavorable decision by the ALJ, Plaintiff’s administrative counsel
then argued to the Appeals Council that “[t]he ALJ failed to
fulfill his duty to develop the record by failing to order a
psychological consultative exam . . . including IQ testing.”
(Tr.
228.)
As the above-described progression of events makes clear,
Plaintiff abandoned his request for IQ testing while his claim
remained pending before the ALJ.
Plaintiff cannot now complain
that the ALJ failed to rule on Plaintiff’s request for IQ testing
(or failed to order such testing) when he had two different
opportunities to raise those matters before the ALJ but failed to
do so.
See Phillips v. Colvin, 593 F. App’x 683, 684 (9th Cir.
2015) (finding issue “waived by [the plaintiff’s] failure to raise
it
at
the
administrative
level
when
he
was
represented
by
counsel”); Mills v. Apfel, 244 F.3d 1, 8 (1st Cir. 2001) (deeming
matter waived based on the claimant’s failure to raise issue at
hearing before ALJ); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir.
1999) (ruling that, “at least when claimants are represented by
14
counsel,
they
must
raise
all
issues
and
evidence
at
their
administrative hearings in order to preserve them on appeal”);
Garza v. Commissioner of Soc. Sec., No. 1:14-CV-1150, 2015 WL
8922011, at *6 (W.D. Mich. Nov. 25, 2015) (unpublished) (“Now,
after the claims were denied, [the] plaintiff raises an issue on
appeal in this [c]ourt that should have been raised and preserved
long ago during the administrative process.
not
tolerate
1:14-CV-1150,
sandbagging.”),
2015
WL
8958469
Courts generally do
recommendation
(W.D.
Mich.
adopted,
Dec.
15,
No.
2015)
(unpublished); Pawlowski v. Astrue, 800 F. Supp. 2d 958, 967 (N.D.
Ill. 2011) (noting that “[j]udicial review of an ALJ’s decision is
not a game of Gotcha”).
In sum, Plaintiff’s first assignment of error lacks merit.
2. Listing 12.05C
Plaintiff next asserts an entitlement to relief because “[t]he
ALJ erred by failing to evaluate Listing 12.05C.” (Docket Entry 11
at 6 (bold font omitted).)
In particular, Plaintiff contends that
the record contains evidence that Plaintiff can meet all three
requirements of Listing 12.05C, i.e., a valid IQ score from 60 to
70,
an
additional
physical
impairment
significantly
limiting
work-related functions, and deficits in adaptive functioning that
manifested before age 22.
(Id. at 6-8.)
According to Plaintiff,
because “there is ample evidence in the record supporting a finding
that [Plaintiff] meets or medically equals Listing 12.05C, . . . it
15
cannot be said that the ALJ’s failure to evaluate the listing is
harmless.”
(Id. at 8 (citing Odoms v. Colvin, 1:15-cv-252-MOC,
2016 WL 3679293, at *7 (W.D.N.C. Jul. 11, 2016) (unpublished), Dial
v. Colvin, 1:16-cv-70-CCE-JEP, 2016 WL 6997502, at *6 (M.D.N.C.
Nov. 30, 2016) (unpublished)).)
Plaintiff’s arguments in this
regard do not entitle him to reversal or remand.
“Under Step 3, the [Social Security Administration’s SEP]
regulation states that a claimant will be found disabled if he or
she has an impairment that ‘meets or equals one of [the] listings
in [A]ppendix 1 of [20 C.F.R. Pt. 404, Subpt. P] and meets the
duration requirement.’”
Radford v. Colvin, 734 F.3d 288, 293 (4th
Cir. 2013) (quoting 20 C.F.R. § 404.1520(a)(4)(iii)) (internal
bracketed numbers omitted).
“The listings set out at 20 CFR [P]t.
404, [S]ubpt. P, App[’x] 1, are descriptions of various physical
and
mental
illnesses
and
abnormalities,
categorized by the body system they affect.
most
of
which
are
Each impairment is
defined in terms of several specific medical signs, symptoms, or
laboratory test results.” Sullivan v. Zebley, 493 U.S. 521, 529-30
(1990) (internal footnote and parentheticals omitted).
“In order
to satisfy a listing and qualify for benefits, a person must meet
all of the medical criteria in a particular listing.” Bennett, 917
F.2d at 160 (citing Zebley, 493 U.S. at 530, and 20 C.F.R.
§ 404.1526(a)); see also Zebley, 493 U.S. at 530 (“An impairment
16
that manifests only some of th[e] criteria [in a listing], no
matter how severely, does not qualify.”).
An ALJ must identify the relevant listed impairments and
compare them to a claimant’s symptoms only where “there is ample
evidence in
the
record
to
support
a determination
that
[the
claimant’s impairment] met or equalled [sic] one of the [ ]
impairments listed in Appendix 1 . . . .”
Cook v. Heckler, 783
F.2d 1168, 1172 (4th Cir. 1986) (emphasis added); see also Russell
v. Chater, No. 94–2371, 60 F.3d 824 (table), 1995 WL 417576, at *3
(4th Cir. July 7, 1995) (unpublished) (“Cook . . . does not
establish an inflexible rule requiring an exhaustive point-by-point
discussion [of listings] in all cases.”); Ollice v. Colvin, No.
1:15CV927,
2016
(unpublished)
WL
7046807,
(Peake,
M.J.)
at
*3
(“[A]n
(M.D.N.C.
ALJ
is
Dec.
not
2,
2016)
required
to
explicitly identify and discuss every possible listing; however, he
must
provide
sufficient
explanation
and
analysis
to
allow
meaningful judicial review of his step three determination where
the ‘medical record includes a fair amount of evidence’ that a
claimant’s impairment meets a disability listing.” (emphasis added)
(quoting Radford, 734 F.3d at 295)), recommendation adopted, slip
op. (M.D.N.C. Jan. 10, 2017) (Osteen, Jr., J.).
In
order
to
meet the
requirements
of Listing
12.05C,
a
claimant must demonstrate: 1) “significantly subaverage general
intellectual functioning with deficits in adaptive functioning
17
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
additional
and
significant
work-related limitation of function.” 20 C.F.R. Pt. 404, Subpt. P,
App’x 1, § 12.05C.
In this case, at step two, the ALJ did not find
that Plaintiff suffered from any kind of intellectual disability
(see Tr. 13-14), and at step three, the ALJ did not discuss whether
Plaintiff’s
intellectual
functioning met
Listing 12.05 (see Tr. 14-15).
or
medically
equaled
However, the ALJ did not err by
failing to discuss Listing 12.05C, because the record lacks “ample
evidence”
that
Plaintiff’s
intellectual
medically equaled Listing 12.05C.
functioning
met
or
Cook, 783 F.2d at 1172.
Assuming, arguendo, that the record demonstrates Plaintiff
suffered from a physical impairment imposing an additional and
significant
work-related
limitation
of
function
and
adaptive
deficits that manifested before age 22, the record does not contain
a valid IQ score from 60 to 70.
Although Plaintiff obtained a
total IQ score of 67 at age 14 and a total IQ score of 70 at age 15
on the SFTAA-4 (see Tr. 291), neither of those IQ scores qualify
under Listing 12.05C for three reasons.9
9
“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
(continued...)
18
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.
§ 112.00D.10.
20 C.F.R. Pt. 404, Subpt. P, App’x 1,
Thus, for purposes of Listing 12.05C, Plaintiff’s
total IQ score of 67 obtained in March 1980 at age 14 would have
remained valid only until March 1982, and his total IQ score of 70
obtained in April 1981 would have remained valid only until April
1983.
(See Tr. 291.)
Second,
the
regulations
emphasize
that
“[s]tandardized
intelligence test results are essential to the adjudication of all
cases of intellectual disability[,]” 20 C.F.R. Pt. 404, Subpt. P,
App’x 1, § 12.00D.6.b, and that a “standardized psychological test”
means “a psychological test measure that has appropriate validity,
reliability, and norms, and is individually administered by a
qualified specialist[,]” id., § 12.00D.5.a; see also American
Psychiatric
Ass’n,
Diagnostic
&
Statistical
Manual
of
Mental
Disorders 37 (5th ed. 2013) (“DSM-V”) (“Intellectual functioning is
typically
measured
psychometically
valid,
with
individually
comprehensive,
administered
culturally
and
appropriate,
psychometrically sound tests of intelligence.” (emphasis added)).
9
(...continued)
conjunction with [Listing] 12.05.”
§ 12.00D.6.c.
20 C.F.R. Pt. 404, Subpt. P, App’x 1,
19
The record here contains no evidence that Plaintiff’s middle school
administered the SFTAA-4 to Plaintiff individually. (See Tr. 291.)
Third, the regulations require clinical observations by the
qualified testing specialist regarding a claimant’s performance on
the test, and an assessment of the scores’ validity and consistency
with the claimant’s functional limitations. See 20 C.F.R. Pt. 404,
Subpt. P, App’x 1, § 12.00D.5; see also DSM-V 37 (“Clinical
training and judgment are required to interpret test results and
assess intellectual performance.”).
Again, the record does not
reflect that the individuals who administered the SFTAA-4 to
Plaintiff submitted any such observations or assessments with the
test scores.
(See Tr. 291.)
In short, because the record lacks “ample evidence” that
Plaintiff’s
intellectual
functioning met
or
medically
equaled
Listing 12.05C, Cook, 783 F.2d at 1172, the ALJ did not err by
failing to discuss that Listing at step three.
III.
CONCLUSION
Plaintiff has not established an error warranting reversal or
remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on
the
Pleadings
(Docket
20
Entry
10)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 14)
be granted, and that judgment be entered for Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 21, 2018
21
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