Cheatham v. Social Security Administration

Filing 27

OPINION AND ORDER by Magistrate Judge Steven P. Shreder reversing and remanding the decision of the ALJ (dma, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THEEASTERN DISTRICT OF OKLAHOMA
LATOYAL LASHAWN CHEATHAM,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.

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Case No. CIV-10-424-SPS

OPINION AND ORDER
The claimant Latoyal Lashawn Cheatham requests judicial review of a denial of
benefits by the Commissioner of the Social Security Administration pursuant to 42
U.S.C. § 405(g).

She appeals the Commissioner’s decision and asserts the

Administrative Law Judge (“ALJ”) erred in determining she was not disabled.

As

discussed below, the Commissioner’s decision is REVERSED and the case is
REMANDED to the ALJ for further proceedings.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment[.]” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social
Security Act “only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of substantial gainful work

which exists in the national economy[.]” Id. § 423 (d)(2)(A). Social security regulations
implement a five-step sequential process to evaluate a disability claim. See 20 C.F.R. §§
404.1520, 416.920.1
Section 405(g) limits the scope of judicial review of the Commissioner’s decision
to two inquiries: whether the decision was supported by substantial evidence and whether
correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997). Substantial evidence is “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). See also Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996). The Court may not reweigh the evidence or substitute its discretion for the
Commissioner’s. See Casias v.Secretary of Health & Human Services, 933 F.2d 799,
800 (10th Cir. 1991). But the Court must review the record as a whole, and “[t]he

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Step one requires the claimant to establish that she is not engaged in substantial gainful
activity. Step two requires the claimant to establish that she has a medically severe impairment
(or combination of impairments) that significantly limits her ability to do basic work activities. If
the claimant is engaged in substantial gainful activity, or her impairment is not medically severe,
disability benefits are denied. If she does have a medically severe impairment, it is measured at
step three against the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. If the claimant
has a listed (or “medically equivalent”) impairment, she is regarded as disabled and awarded
benefits without further inquiry. Otherwise, the evaluation proceeds to step four, where the
claimant must show that she lacks the residual functional capacity (RFC) to return to her past
relevant work. At step five, the burden shifts to the Commissioner toshow there is significant
work in the national economy that the claimant can perform, given her age, education, work
experience and RFC. Disability benefits are denied if the claimant can return to any of her past
relevant work or if her RFC does not preclude alternative work. See generally Williams v.
Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).

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substantiality of the evidence must take into account whatever in the record fairly detracts
from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see also
Casias, 933 F.2d at 800-01.
Claimant’s Background
The claimant was born on April 10, 1982, and was twenty-six years old at the time
of the administrative hearing. (Tr. 108). While in high school, she attended special
education classes and graduated. She subsequently attended two years of college at
Seminole State College, but states that she was in special education courses there as well.
(Tr. 18, 41). The claimant alleges that she has been unable to work since March 27, 2007
because of panic attacks and a learning disability. (Tr. 112).
Procedural History
The claimant applied on March 27, 2007 for supplemental security income
payments under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-85. Her
application was denied.

ALJ Lance K. Hiltbrand determined the claimant was not

disabled in a written opinion dated March 20, 2009. (Tr. 55-63). The Appeals Council
denied review, so the ALJ’s opinion is the Commissioner’s final decision for purposes of
this appeal. See 20 C.F.R. §416.1481.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential evaluation. The ALJ
determined that the claimant’s severe impairments consisted of panic disorder without
agoraphobia and mild mental retardation. (Tr. 57). He further found that claimant had
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the RFC to lift and/or carry 50 pounds occasionally and 25 pounds frequently, stand
and/or walk for six hours in an eight-hour workday, and sit for six hours in an eight-hour
workday. (Tr. 61).

Further the ALJ found that the claimant was capable of

understanding, remembering, and carrying out simple tasks with routine supervision,
interact appropriately with others at a superficial level but not the general public, and
adapt to a work situation.

(Tr. 61). Though the ALJ found that the claimant was

incapable of performing her past relevant work, she was nevertheless not disabled
because there was work in the national economy that she was capable of performing, i. e.,
auto detailer, laundry sorter, and price marker. (Tr. 63).
Review
The claimant contends that the ALJ erred: (i) by failing to properly analyze the
opinion of Dr. Ron Smallwood; (ii) by finding that she did not satisfy the criteria of
Listing 12.05C; (iii) by failing to include all of her impairments in her RFC findings at
step four; and (iv) by failing to include all of her impairments in the hypothetical question
posed to the vocational expert.

The Court finds merit in the claimant’s second

contention.
The claimant was evaluated by state consultative examiner Dr. M. Gerald Ball,
Ph.D. on July 26, 2007. (Tr. 180-181). During this appointment, Dr. Ball administered
the Wechsler Adult Intelligence Scale-III (WAIS-3) and the reading section of the Wide
Range Achievement Test-III (WRAT-3).

The results of the WAIS-3 indicated that

claimant had a verbal IQ of 70, a performance IQ of 64, and a full scale IQ of 65, and
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said results placed her in the range of mild mental retardation. (Tr. 181). Further, the
claimant was assessed to read at a third-grade level, which Dr. Ball found consistent with
her IQ results, and he noted that claimant’s test results suggested that though claimant
attended two years of college, he had questions about her success while attending. (Tr.
181). Dr. Ball’s diagnosed claimant with panic disorder without agoraphobia and mild
mental retardation, and assigned to claimant a GAF score of 48. (Tr. 181).
State reviewing physician Dr. Ron Smallwood completed a Psychiatric Review
Technique and corresponding Mental Residual Functional Capacity Assessment. (Tr.
185-201). Dr. Smallwood found that claimant’s mental retardation and anxiety disorder
caused her to experience moderate limitations in the areas of activities of daily living,
maintaining social functioning, and maintaining concentration, persistence, or pace. (Tr.
199). Further, Dr. Smallwood noted in the Mental RFC Assessment that claimant was
markedly limited in the following areas: (i) ability to understand and remember detailed
instructions; (ii) ability to carry out detailed instructions; and (iii) ability to interact
appropriately with the general public. (Tr. 186).
At step three of the sequential evaluation, the ALJ must determine if the claimant
meets or equals the requirements for an impairment listed in in the Commissioner’s
regulations, see 20 C.F.R. Part 404, Subpt. P, App. 1, i. e., “whether the claimant’s
impairment is equivalent to one of a number of listed impairments that . . . [are] so severe
as to preclude substantial gainful activity.” Clifton v. Chater, 79 F.3d 1007, 1009 (10th
Cir. 1996) [quotation omitted]. Clifton requires the ALJ to discuss the evidence and
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explain why claimant was not disabled at step three. Id. at 1009, citing Cook v. Heckler,
783 F.2d 1168, 1172-73 (4th Cir. 1986).
At step three of the sequential evaluation, the ALJ determined that the claimant’s
mental retardation, though a severe impairment, did not meet Section 12.05 of the Listing
of Impairments because “the claimant 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.” (Tr. 15). This conclusion
is, however, unsupported by both the record and the ALJ’s findings at steps two and four.
In order to satisfy section 12.05C, the claimant must first satisfy the diagnostic
description included in the introductory paragraph, i. e., she must show “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.” 20 C.F.R. pt. 404, subpt. P, app. 1, Listing
12.05.

This initial requirement is referred to as the “capsule definition.”

Peck v.

Barnhart, 214 Fed. Appx. 730, 736 (10th Cir. 2006) [unpublished opinion]. In addition
to satisfying the capsule definition of mental retardation, the claimant must also satisfy
two additional prongs in order to meet the requirements of Listing 12.05C: “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[.]”
20 C.F.R. pt. 404, subpt. P, app. 1.

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At the outset, the ALJ wholly failed to discuss whether the claimant satisfied the
capsule definition of Listing 12.05C. The Commissioner argues “the medical evidence,
including Dr. Smallwood’s report, refutes a finding that Plaintiff initially manifested
mental retardation before age 22[,]” but Dr. Smallwood (whose opinion was given “great
weight” by the ALJ) found that the claimant did satisfy the capsule definition, i. e., he
checked the box next to a statement which specifically encompasses the capsule
definition of Listing 12.05 in the evaluation form provided for the claimant (Tr. 193). If
this was unclear to the ALJ, he should have re-contacted Dr. Smallwood for clarification.
See Maes v. Astrue, 522 F.3d 1093, 1097-98 (10th Cir. 2008) (“[T]he ALJ generally must
recontact the claimant’s medical sources for additional information when the record
evidence is inadequate to determine whether the claimant is disabled. . . . [W]hen the ALJ
considers an issue that is apparent from the record, he has a duty of inquiry and factual
development with respect to that issue.”), citing 20 C.F.R. § 404.1512(e) and Grogan v.
Barnhart, 399 F.3d 1257, 1263-64 (10th Cir. 2005). And if the ALJ understood but
simply rejected this finding, he should have discussed his reasons for adopting some, but
not all, of Dr. Smallwood’s findings. See, e. g., Haga v. Astrue, 482 F.3d 1205, 1208
(10th Cir. 2007) (“[T]he ALJ should have explained why he rejected four of the moderate
restrictions on Dr. Rawlings’ RFC assessment while appearing to adopt the others. An
ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking
only the parts that are favorable to a finding of nondisability. . . . [T]he ALJ did not state
that any evidence conflicted with Dr. Rawlings’ opinion or mental RFC assessment. So it
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is simply unexplained why the ALJ adopted some of Dr. Rawlings’ restrictions but not
others. We therefore remand so that the ALJ can explain the evidentiary support for his
RFC determination.”).
Regarding the additional requirements for meeting Listing 12.05C, “‘the purpose
of § 12.05C is to compensate a claimant with an IQ in the 60-70 range and a limitation of
function that affects his work.’” Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997),
quoting Sird v. Chater, 105 F.3d 401, 403 n.6 (8th Cir. 1997). The claimant clearly
satisfies the first prong of the listing since her verbal, performance, and full scale IQ
scores all fall below 70, e. g., the claimant scored a verbal IQ of 70, performance IQ of
64, and a full scale IQ of 65 on the WAIS-III. (Tr. 181). The second requirement is that
the claimant must have 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. 1,
Listing 12.05C. In this regard, the Tenth Circuit has adopted the view of the First and
Eleventh Circuits that a Ҥ 12.05C limitation is significant if the claimant suffers from a
severe physical or other mental impairment, as defined at step two of the disability
analysis, apart from the decreased intellectual function.” Hinkle, 132 F.3d at 1352 (“We
conclude the analysis employed by the First and Eleventh Circuits is the better
interpretation of what must be shown to satisfy the second prong of § 12.05C.”), citing
Edwards v. Heckler, 736 F.2d 625, 629-31 (11th Cir. 1984) and Nieves v. Secretary of
Health & Human Services, 775 F.2d 12, 14 & n.7 (1st Cir. 1985). But see Edwards ex
rel. Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985) (clarifying that “[t]he
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question under Listing 12.05C . . . is not whether the impairment is in and of itself
disabling, [but] “the impairment is something less than ‘severe[.]’”).

“[W]hether a

claimant has a § 12.05C ‘significant limitation’ should ‘closely parallel’ the step two
standard, and is to be made without consideration of whether the claimant can perform
any gainful activity beyond the analysis as made at step two.” Hinkle, 132 F.3d at 135253, citing Fanning v. Bowen, 827 F.2d 631, 634 (9th Cir. 1987) (if claimant meets the §
12.05C listing and the durational requirement, “he must be found disabled without
consideration of his age, education, and work experience.”) [internal citations omitted].
Here, the ALJ determined that claimant’s panic disorder was a severe impairment at step
two. (Tr. 57). Severe impairments by definition (and as mentioned in the opinion)
“impose significant restrictions in the claimant’s abilities to perform work related
activities.” (Tr. 57). Thus, contrary to the ALJ’s statement regarding Listing 12.05C, the
claimant did establish both that she had an IQ score in the range of 60-70 and a “mental
impairment imposing an additional and significant work-related limitation,” i. e., panic
disorder without agoraphobia.
Because the ALJ failed to properly analyze at step three whether the claimant met
Listing 12.05C, the Commissioner’s decision must be reversed and the case remanded to
the ALJ for further analysis. On remand, the ALJ should properly determine whether the
claimant meets the listing and ultimately re-determine her disability.

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Conclusion
The Court finds correct legal standards were not applied by the ALJ, and the
Commissioner’s decision is therefore not supported by substantial evidence.

The

decision of the Commissioner is accordingly REVERSED, and the case is REMANDED
for further proceedings consistent herewith.
DATED this 29th day of March, 2012.

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