Jordan, Sr. v. Commissioner of Social Security

Filing 18

Memorandum Opinion and Order remanding, pursuant to sentence four of 42 U.S.C. §405(g) for further proceedings to determine if Plaintiff meets intellectual disorder listing (12.05). On remand Commissioner shall conduct a de novo hearing and issue a new decision. Magistrate Judge James R. Knepp, II on 7/18/17. (A,P)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROGER LYLE JORDAN, SR.,

Case No. 1:17 CV 33

Plaintiff,
v.

Magistrate Judge James R. Knepp, II

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

MEMORANDUM OPINION AND ORDER
INTRODUCTION

Plaintiff Roger Lyle Jordan, Sr. (“Plaintiff”) filed a complaint against the Commissioner
of Social Security (“Commissioner”) seeking judicial review of the Commissioner’s decision to
deny Supplemental Security Income (“SSI”). (Doc. 1). The district court has jurisdiction under 42
U.S.C. § 405(g), and the parties consented to the exercise of jurisdiction by the undersigned in
accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 6). Plaintiff filed his Brief on the
Merits. (Doc. 15). The Commissioner then filed a Motion to Remand (Doc. 16), which Plaintiff
partially opposed (Doc. 17). For the reasons stated below, the undersigned remands the case
pursuant to sentence four of 42 U.S.C. § 405(g) with instructions to conduct a de novo hearing and
issue a new decision.
BACKGROUND
Here, Plaintiff filed a brief on the merits, alleging the ALJ erred in her analysis of Listing
12.05(C) regarding the mental disorder of intellectual disability. (Doc. 15). Listing 12.05(C) (in
effect at the time of the ALJ’s decision) had two parts. The first part, which is referred to as the
“diagnostic definition,” required: 1) significantly sub-average general intellectual functioning; 2)
deficits in adaptive functioning; and 3) onset before age twenty-two. 20 C.F.R. Pt. 404, App. 1,

Listing 12.05; see also Hayes v. Comm'r of Soc. Sec., 357 F. App’x 672, 675 (6th Cir. 2009). The
second part, which was referred to as the “severity criteria” of subsection C, requires: 1) a valid
verbal, performance, or full scale IQ of 60 through 70; and 2) a physical or other mental
impairment imposing an additional and significant work-related limitation or function. 20 C.F.R.
Pt. 404, App. 1, Listing 12.05(C); Sheeks v. Comm'r of Soc. Sec., 544 F. Appx. 639, 641 (6th Cir.
2013).
The ALJ here never reached the question of whether Plaintiff had deficits in adaptive
functioning that began prior to age 22; she stopped her analysis after finding Plaintiff did not have
an impairment that imposed additional and significant work-related limitations and therefore could
not meet the “Paragraph C” criteria. See Tr. 17. Plaintiff cites case law for the proposition that if
an ALJ finds a severe impairment at Step Two—as she did in this case—that impairment satisfies
the “additional and significant work-related limitation or function” prong of Listing 12.05(C) (or,
at a minimum, the distinction should be discussed). See Doc. 15, at 12-13 (citing Hutchinson v.
Comm’r of Soc. Sec., 2013 WL 4604561 (E.D. Mich); Oddo v. Astrue, 2012 WL 7017622, at *5
(N.D. Ohio)).
In response to Plaintiff’s motion, the Commissioner filed a Motion to Remand, stating that
“[a]fter careful review of the above-captioned case, agency counsel determined that remand was
necessary for further evaluation of Plaintiff’s claim” and requesting that “[o]n remand, the Appeals
Council will vacate the findings in the [ALJ]’s decision and the Commissioner will re-evaluate
whether Plaintiff met Listing 12.05(C).” (Doc. 16, at 1).

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DISCUSSION
The parties do not dispute that a remand pursuant to sentence four of 42 U.S.C. § 405(g) is
appropriate in this case. The only dispute is whether such a remand should include a requirement
that the Commissioner hold a de novo hearing. The Commissioner contends “[a]lthough a new
hearing may be held on remand, it is also possible that Plaintiff’s claim could be decided without
the need for an additional hearing” and the Court should “permit the agency to develop the
administrative record within its discretion.” Id. at 3. Plaintiff agrees that a remand is appropriate,
but requests language mandating a new ALJ hearing and decision. (Doc. 17). This is so, he
contends, because, given that the ALJ did not properly evaluate the relevant listing, further record
development related to the issue is appropriate. Id. at 2. Further, Plaintiff points out that the listing
at issue was amended effective January 17, 2017, and a new hearing would allow for record
development and analysis related to the new version of the Listing. Id. at 2-3.
The new Listing criteria for intellectual disorder states:
12.05 Intellectual disorder (see 12.00B4), satisfied by A or B:
A. Satisfied by 1, 2, and 3 (see 12.00H):
1.
Significantly subaverage general intellectual functioning evident in
your cognitive inability to function at a level required to participate
in standardized testing of intellectual functioning; and
2.

Significant deficits in adaptive functioning currently manifested by
your dependence upon others for personal needs (for example,
toileting, eating, dressing, or bathing); and

3.

The evidence about your current intellectual and adaptive
functioning and about the history of your disorder demonstrates or
supports the conclusion that the disorder began prior to your
attainment of age 22.

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OR
B. Satisfied by 1, 2, and 3 (see 12.00H):
1.
Significantly subaverage general intellectual functioning evidenced
by a or b:
a.
A full scale (or comparable) IQ score of 70 or below on an
individually administered standardized test of general
intelligence; or
b.
A full scale (or comparable) IQ score of 71–75 accompanied
by a verbal or performance IQ score (or comparable part
score) of 70 or below on an individually administered
standardized test of general intelligence; and
2.

Significant deficits in adaptive functioning currently manifested by
extreme limitation of one, or marked limitation of two, of the
following areas of mental functioning:
a.
Understand, remember, or apply information (see
12.00E1); or
b.
Interact with others (see 12.00E2); or
c.
Concentrate, persist, or maintain pace (see 12.00E3);
or
d.
Adapt or manage oneself (see 12.00E4); and

3.

The evidence about your current intellectual and adaptive
functioning and about the history of your disorder demonstrates or
supports the conclusion that the disorder began prior to your
attainment of age 22.

20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 12.05; see also Soc. Sec. Admin., Revised Medical
Criteria for Evaluating Mental Disorders, 81 F.R. 66138-01, 2016 WL 5341732 (Sept. 26, 2016)
(effective Jan. 17, 2017).
The implementing regulations, in addition to providing an effective date of January 17,
2017, describe when the new listing will be applied by the Commissioner:
When will we begin to use these final rules?
As we noted in the dates section of this preamble, these final rules will be effective
on January 17, 2017. We delayed the effective date of the rules to give us time to
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update our systems, provide training and guidance to all of our adjudicators, and
revise our internal forms and notices before we implement the final rules. The prior
rules will continue to apply until the effective date of these final rules. When the
final rules become effective, we will apply them to new applications filed on or
after the effective date of the rules, and to claims that are pending on or after the
effective date.
81 F.R. 66138-01, 2016 WL 5341732. In a footnote, the agency further explained:
This means that we will use these final rules on and after their effective date, in any
case in which we make a determination or decision. We expect that Federal courts
will review our final decisions using the rules that were in effect at the time we
issued the decisions. If a court reverses our final decision and remands a case for
further administrative proceedings after the effective date of these final rules, we
will apply these final rules to the entire period at issue in the decision we make after
the court's remand.
Id. at n.1. The decision in this case—and ultimately the final decision of the Commissioner—was
submitted when the ALJ issued her written decision on January 8, 2016. (Tr. 12-23). She, thus
(appropriately) applied the old version of Listing 12.05. The parties agree that remand is
appropriate here. And, the parties agree that the reason for remand is to reevaluate Listing 12.05.
Pursuant to the Commissioner’s own regulations, the new version of the Listing will apply on
remand regardless of whether the undersigned requires a de novo hearing. See 81 F.R. 66138-01,
2016 WL 5341732, at n.1. Because the ALJ did not have occasion to consider the new version of
the Listing at the time of the original hearing, and because that version will necessarily apply to
any future decision in this case, the undersigned agrees with Plaintiff that a de novo hearing on
remand is appropriate to consider the changed Listing and the need for possibly different record
development.
The statute governing judicial review provides, inter alia:

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The court shall have power to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.
42 U.S.C. § 405(g) (emphasis added). Thus, it is within the Court’s power to decide whether to
order a rehearing. Due to the unique situation here with an intervening change to the Listing, the
undersigned agrees with Plaintiff that ordering a new hearing on remand is appropriate.
CONCLUSION
Following review, the undersigned concludes that this case shall be remanded, pursuant to
sentence four of 42 U.S.C. § 405(g), for further proceedings to determine if Plaintiff meets the
intellectual disorder listing (12.05). On remand, the Commissioner shall conduct a de novo hearing
and issue a new decision.
IT IS SO ORDERED.
s/James R. Knepp II
United States Magistrate Judge

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