Gregory v. Astrue

Filing 14

MEMORANDUM AND RECOMMENDATIONS on 10 MOTION for Summary Judgment - Social Security filed by Jimmy Dean Gregory, 12 MOTION for Summary Judgment - Social Security filed by Michael J. Astrue Objections to M&R due by 1/27/2014. Signed by Magistrate Judge Dennis Howell on 01/09/14. (emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:12cv309
JIMMY DEAN GREGORY,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
_______________________________

MEMORANDUM AND
RECOMMENDATION

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial
review of the final decision by the Commissioner of Social Security
(“Commissioner”) denying Plaintiff’s claim for social security disability insurance
benefits. This case came before the Court on the administrative record and the
parties’ Motions for Summary Judgment [# 10 & # 12]. The Court
RECOMMENDS that the District Court DENY the Commissioner’s Motion for
Summary Judgment [# 12], GRANT the Plaintiff’s Motion for Summary Judgment
[# 10], and REMAND this case.
I.

Procedural History

Plaintiff filed an application for disability insurance benefits on January 15,
2010. (Transcript of Administrative Record (“T.”) 127.) Plaintiff alleged an onset
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date of December 15, 2007. (T. 127.) The Social Security Administration denied
Plaintiff’s claim. (T. 62.) Plaintiff requested reconsideration of the decision,
which was also denied. (T. 69.) A disability hearing was then held before an
Administrative Law Judge (“ALJ”). (T. 24-38.) The ALJ then issued a decision
finding that Plaintiff was not disabled through the date of the decision. (T. 12-19.)
Plaintiff requested review of the ALJ’s decision, which was denied by the Appeals
Council (T. 1-3). Plaintiff then brought this action seeking review of the
Commissioner’s decision.
II.

Standard for Determining Disability

An individual is disabled for purposes of receiving disability payments if she
is unable 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 . . . .” 42 U.S.C. § 423(d)(1)(A); see also Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001). The Commissioner undertakes a five-step inquiry to
determine whether a claimant is disabled. Johnson v. Barnhart, 434 F.3d 650, 653
(4th Cir. 2005). Under this inquiry, the Commissioner must consider in sequence:
(1) whether a claimant is gainfully employed; (2) whether a claimant has a severe
impairment that significantly limits her ability to perform basic work-related

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functions; (3) whether the claimant’s impairment meets or exceeds the listing of
impairments contained in Appendix I of 20 C.F.R. Part 404, subpart P; (4) whether
the claimant can perform her past relevant work; (5) whether the claimant is able to
perform any other work considering his age, education, and residual functional
capacity. Mastro, 270 F.3d at 177; Johnson, 434 F.3d at 654 n.1; 20 C.F.R. §
404.1520. If at any stage of the inquiry, the Commissioner determines that the
claimant is or is not disabled, the inquiry is halted. 20 C.F.R. §§ 404.1520(a) and
416.920(a).
III.

The ALJ’s Decision

In his March 21, 2011, decision the ALJ found that Plaintiff was not
disabled under Sections 216(i) and 223(d) of the Social Security Act. (T. 19.) The
ALJ made the following specific findings:
(1)

The claimant meets the insured status requirements of the
Social Security Act through December 31, 2012.

(2)

The claimant has not engaged in substantial gainful activity
since December 15, 2007, the alleged onset date (20 CFR
404.1571 et seq.)

(3)

The claimant has the following severe impairments: bilateral
degenerative joint disease of the knees and obesity (20 CFR
404.1520(c)).

(4)

The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
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CFR 404.1520(d), 404.1525 and 404.1526).
(5)

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) that
does not require stair or ladder climbing, or squatting.

(6)

The claimant is unable to perform any past relevant work (20
CFR 404.1565).

(7)

The claimant was born on May 10, 1964 and was 43 years old,
which is defined as a younger individual age 18-44, on the
alleged onset date (20 CFR 404.1563).

(8)

The claimant has a limited education and is able to
communicate in English (20 CFR 404.1564).

(9)

Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not
disabled,” whether or not the claimant has transferable job
skills. (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).

(10) Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the nation economy that the claimant can
perform (20 CFR 404.1569 and 404.1569(a)).
(11) The claimant has not been under a disability, as defined in the
Social Security Act, from December 15, 2007, through the date
of this decision (20 CFR 404.1520(g)).
(T. 14-19.)
IV.

Standard of Review

Section 405(g) of Title 42 provides that a plaintiff may file an action in
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federal court seeking judicial review of the Commissioner’s denial of social
security benefits. Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The
scope of judicial review, however, is limited. The Court “must uphold the factual
findings of the Secretary if they are supported by substantial evidence and were
reached through application of the correct legal standard.” Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. (internal
quotation marks omitted). It is more than a scintilla but less than a preponderance
of evidence. Id. When a federal district court reviews the Commissioner’s
decision, it does not “re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment for that of the Secretary.” Id.
Accordingly, the issue before the Court is not whether Plaintiff is disabled but,
rather, whether the Commissioner’s decision that he is not disabled is supported by
substantial evidence in the record, and whether the ALJ reached his decision based
on the correct application of the law. Id.
V.

Analysis1

A.

The ALJ Erred in Considering Plaintiff’s Mental Impairments at
Step Two

1

Rather than separately set forth the facts in this case, the Court has incorporated the relevant facts into its
legal analysis.

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The ALJ’s determination as to whether an impairment is severe or not is a
threshold determination. See 20 C.F.R. § 404.1520(c). An impairment is not
severe “only if it is a slight abnormality which has such a minimal effect on the
individual that it would not be expected to interfere with the individual’s ability to
work, irrespective of age, education, or work experience.” Evans v. Heckler, 734
F.2d 1012, 1014 (4th Cir. 1984) (internal citation and quotation omitted) (emphasis
in original).
At step two of the five step evaluation process, the ALJ found that Plaintiff
had the following severe impairments: bilateral degenerative joint disease of the
knees and obesity. (T. 14.) The ALJ also partially addressed the alleged mental
impairments, but found that they were not severe. Specifically, the ALJ found
that:
The claimant did not allege any mental limitations or learning
difficulties at the time he filed his application. However, at the
disability hearing the claimant indicated that he had received special
education resources. The evidence in the record does not support a
limitation in cognitive ability and the claimant’s work history does not
support functional deficits.
(T. 15.) The above quoted language constituted the extent of the ALJ’s analysis as
to Plaintiff’s mental impairments, including cognitive functioning.
As a threshold matter, the Wide Range Achievemant Test score in the record
reflects that Plaintiff had an IQ of between 70-75 (T. 207), which alone would
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suggest borderline intellectual functioning. See Reichenbach v. Heckler, 808 F.2d
309, 312 (4th Cir. 1985); Davis v. Astrue, Civil Action No. 5:11-00408, 2012 WL
4018899 (S.D.W. Va. Aug. 9, 2012). In fact, a full scale IQ of 60 through 70 is the
first prong of Listing 12.05 mental retardation. 20 C.F.R. Pt. 404, Subpt. P, App'x
1, Part A, § 12.05; Jackson v. Astrue, 467 F. App’x 214, 217 (4th Cir. 2012)
(unpublished). Moreover, the fact that the IQ score was recorded while Plaintiff
was still in elementary school does not necessarily render the score irrelevant. As
other courts have explained, “a person’s IQ is presumed to remain stable over time
in the absence of any evidence of a change in the claimant’s intellectual
functioning.” Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001); see also Luckey
v. U.S. Dept. of Health & Human Servs, 890 F.2d 666, 668 (4th Cir. 1989);
Talavera v. Astrue, 697 F.3d 145, 152, (2nd Cir. 2012); Maresh v. Barnhart, 438
F.3d 897, 900 (8th Cir. 2006). And while the ALJ need not accept the validity of
an IQ score, even when it is the only score in the record, Hancock v. Astrue, 667
F.3d 470, 474 (4th Cir. 2012), the ALJ must at a minimum provide a sufficient
reason in the decision for doing so in order to allow this Court to conduct a
meaningful review. The ALJ in this case failed to offer any grounds for rejecting
the IQ score and offered little more than a cursory discussion of Plaintiff’s alleged
mental impairments despite evidence of Plaintiff’s borderline intelligence.

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The ALJ’s failure to address the IQ score in the record is all the more critical
in this case because of the additional evidence in the record supporting Plaintiff’s
borderline intellectual functioning. For example, Plaintiff testified that he was
enrolled in special education classes his entire time at school2, that he cannot read
or write very well, that he dropped out of school after the tenth grade, and that he
did not get a GED. (T. 27.) Plaintiff also performed very poorly in school (T.
207), and Plaintiff contends that he cannot read the newspaper or most letters that
he receives (T. 189). Plaintiff’s standardized test support Plaintiff contention
regarding his reading ability; while in the sixth grade, Plaintiff read on a second
grade level (T. 213). Put simply, the ALJ’s cursory rejection of Plaintiff’s alleged
mental impairment is not supported by substantial evidence in the record.
Accordingly, remand is required for the ALJ to fully assess Plaintiff’s mental
limitations, in particular his intellectual functioning.
B.

The RFC Determination of the ALJ is not Supported by
Substantial Evidence in the Record

Residual functional capacity is an administrative assessment made by the
Commissioner as to what a claimant can still do despite his or her physical or
mental limitations. SSR 96-8p, 1996 WL 374184 (Jul. 2, 1996); 20 C.F.R. §§
2 The Court notes that the Disability report, which Plaintiff did not fill out, reflects that Plaintiff did not attend
special educations classes. (T. 147). Whether or not Plaintiff attended special education classes, however, is not
dispositive of the issue, and the Court would reach the same conclusion in this case even if the facts clearly
demonstrated that Plaintiff never attended special education classes.

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404.1546(c); 404.946(c). In assessing a claimant’s residual functional capacity,
the ALJ will consider all of the claimant’s medically determinable impairments,
including those that are not severe. 20 C.F.R. § 404.1545(a)(2). The residual
capacity assessment is based on the all the relevant medical and other evidence in
the record. 20 C.F.R. § 404.1545(a)(3). In determining a claimant’s residual
functional capacity, the ALJ must identify the claimant’s functional limitations or
restrictions and assess the claimant’s work-related abilities on a function-byfunction basis. SSR 96-8p. The ALJ’s assessment must include a narrative
discussion detailing how the evidence in the record supports his or her conclusion.
SSR 96-9p.
The ALJ found that Plaintiff had the RFC “to perform sedentary work as
defined in 20 CFR 404.1567(a) that does not require stair or ladder climbing, or
squatting.” (T. 15.) The ALJ did not incorporate any limitations related to
Plaintiff’s intellectual functioning into the RFC, did not limit Plaintiff to unskilled
or semi-skilled work, and did not discuss in the decision why such limitations were
not required in this case despite the evidence of Plaintiff’s borderline intellectual
functioning. As such, the RFC provides that Plaintiff can perform a full range of
sedentary work, including skilled work, so long as it does not require stair or
ladder climbing or squatting. (T. 15.) Moreover, most sedentary occupations, “fall

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within the skilled, semi-skilled, professional, administrative, technical, clerical,
and benchwork classifications.” 20 CFR Pt. 404, Subpt. P, App. 2, § 201.00(a);
see also Parravan v. Colvin, No. 2:12cv472, 2013 WL 5701531 (E.D. Va. Oct. 18,
2013).
Based upon a review of the record, the Court finds that the RFC is not
supported by substantial evidence in record. The ALJ’s finding that Plaintiff could
perform a full range of sedentary work with no restrictions for intellectual
functioning is contradicted by the evidence in the record; the record reflects that
Plaintiff has limitations related to his intellectual functioning that would restrict
Plaintiff to a more limited range of sedentary work than Plaintiff’s RFC.3 Because
the ALJ erred in failing to address Plaintiff’s intellectual functioning, remand is
required for the ALJ to properly assess the extent of any such limitations and
assess a RFC that accurately reflects all of Plaintiff’s impairments. See generally,
SSR 85-16, 1985 WL 56855, at *3 (1985); 20 C.F.R. § 404.1545(a). On remand
the ALJ should determine the scope of Plaintiff’s intellectual functioning and make
a RFC determination that incorporates any limitations based on Plaintiff’s
intellectual functioning.
Finally, the Court notes that the ALJ’s determination that Plaintiff has a
3 It will be up to the ALJ on remand to determine, based on the evidence in the record, whether Plaintiff is limited
to unskilled work, semi-skilled work, or some other limitation.

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limited education is also not supported by substantial evidence in the record.
Although Plaintiff did complete the 10th grade, which would normally constitute a
finding of limited education where there is no evidence to contradict such a
finding, 20 CFR § 404.15654, there is evidence in the record contradicting a
finding that Plaintiff has a limited education. As previously discussed, Plaintiff
stated that he was in special education classes, Plaintiff performed very poorly in
school, Plaintiff testified that he could not read at a corresponding level to his
education, Plaintiff had an IQ in the 70-75 range, and according to his standardized
test scores, read well below his grade level. The ALJ assessed the limited
education category without discussing any of this evidence. On remand, the ALJ
should assess Plaintiff’s education category based on all the evidence in the record
and provide a rational for any such determination in the decision. Although the
ALJ may reach the same decision on remand, the decision should set forth
sufficient reasoning to allow this Court to conduct a meaningful review and should
discuss the evidence in the record.
VI.

Conclusion

The Court RECOMMENDS that the District Court GRANT the Plaintiff’s
Motion for Summary Judgment [# 10], DENY the Commissioner’s Motion for
Summary Judgment [# 12], and REMAND this case.

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Signed: January 9, 2014

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Time for Objections
The parties are hereby advised that, pursuant to 28, United States Code,
Section 636(b)(1)(c), and Rule 72, Federal Rules of Civil Procedure, written
objections to the findings of fact, conclusions of law, and recommendation
contained herein must be filed within fourteen (14) days of service of same.
Responses to the objections must be filed within fourteen (14) days of service
of the objections. Failure to file objections to this Memorandum and
Recommendation with the district court will preclude the parties from raising such
objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S.
1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied,
467 U.S. 1208 (1984).

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