Silvers v. Social Security Administration

Filing 23

OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
BRANDI N. SILVERS,

)
)
)
)
)
)
)
)
)
)
)

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

Case No. CIV-13-108-KEW

OPINION AND ORDER

Plaintiff Brandi N. Silvers (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.

Claimant

appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined

that

discussed

below,

Claimant
it

is

was
the

not

disabled.

finding

of

this

For

the

Court

reasons

that

the

Commissioner’s decision should be and is REVERSED and REMANDED 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).
Security

Act

“only

if

A claimant is disabled under the Social
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

§423(d)(2)(A).

in

the

national

economy.

.

.”

42

U.S.C.

Social Security regulations implement a five-step

sequential process to evaluate a disability claim.

See, 20 C.F.R.

§§ 404.1520, 416.920.1
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
two inquiries:

This Court’s review is limited to

first, whether the decision was supported by

1

Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C.F.R. §§
404.1510, 416.910. Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), disability benefits are denied. At step three, the
claimant’s impairment is compared with certain impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work.
If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).

2

substantial

evidence;

and,

standards were applied.

second,

whether

the

correct

legal

Hawkins v. Chater, 113 F.3d 1162, 1164

(10th Cir. 1997)(citation omitted). The term “substantial evidence”
has been interpreted by the United States Supreme Court to require
“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)).

The

court may not re-weigh the evidence nor substitute its discretion
for that of the agency.

Casias v. Secretary of Health & Human

Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the court
must review the record as a whole, and the “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
Claimant was born on May 24, 1987 and was 24 years old at the
time of the ALJ’s decision.

Claimant completed her high school

education with special education classes.
relevant work.

Claimant has no past

Claimant alleges an inability to work beginning

August 1, 2004 due to limitations resulting from learning problems,
problems

following

instructions,

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difficulty

understanding

even

simple tasks, memory problems, concentration problems, problems with
reading comprehension, problems with math, problems getting along
with

other

people,

right

knee

pain,

ADHD,

and

borderline

intellectual functioning.
Procedural History
On

July

22,

2010,

Claimant

protectively

filed

for

child

disability insurance benefits and for supplemental security income
pursuant to Title XVI (42 U.S.C. § 1381, et seq.) of the Social
Security Act.

Claimant’s applications were denied initially and

upon reconsideration.

On October 7, 2011, an administrative

hearing was held before Administrative Law Judge (“ALJ”) Trace
Baldwin in McAlester, Oklahoma. By decision dated January 3, 2012,
the ALJ denied Claimant’s requests for benefits.

The Appeals

Council denied review of the ALJ’s decision on March 1, 2013.

As

a result, the decision of the ALJ represents the Commissioner’s
final decision for purposes of further appeal.

20 C.F.R. §§

404.981, 416.1481.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential
evaluation.

He determined that while Claimant suffered from severe

impairments, she did not meet a listing and retained the residual
functional

capacity

(“RFC”)

to

4

perform

sedentary

work

with

limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
properly consider whether Claimant’s impairments were medically
equivalent to a listed impairment; and (2) setting forth step five
findings that were not supported by substantial evidence.
Consideration of the Listings
In his decision, the ALJ found Claimant suffered from the
severe

impairments

obesity.

(Tr. 13).

of

borderline

intellectual

functioning

and

The ALJ determined Claimant retained the RFC

to perform sedentary work except that she could perform only simple
tasks with routine supervision, could relate to supervisors and
peers on a superficial work basis, and could not relate to the
general public, but could adapt to a work situation.

(Tr. 16).

After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of document preparer
and call out operator, which the vocational expert testified existed
in sufficient numbers nationally and regionally.

(Tr. 20).

ALJ, therefore, concluded Claimant was not disabled.

The

(Tr. 20-21).

Claimant contends the ALJ improperly determined that her
impairments were not medically equivalent to Listing 12.05C.

To

meet or equal Listing § 12.05C, a claimant must demonstrate the

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following:
12.05 Mental Retardation: Mental retardation refers to
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.
The required level of severity for this disorder is met
when the requirements in A, B, C, or D are satisfied.
*

*

*

C. 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.C. Pt. 404, Subpt. P, App. 1, Listing 12.05C.
Claimant must satisfy all of these required elements for a
Listing to be met.
Claimant

was

Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

evaluated

by

Dr.

B.

Todd

psychologist, on January 16, 2006.

Graybill,

a

clinical

On the WAIS-III testing,

Claimant scored a Verbal IQ of 74, a Performance IQ of 76, and a
Full Scale IQ of 73.

Dr. Graybill believed the testing to be a

valid representation of Claimant’s current intellectual ability.
(Tr. 291).

Claimant was assessed as functioning in the borderline

mentally retarded range intellectually. She was able to understand,
retain, and follow simple instructions.

Claimant’s attention span

and concentration abilities were impaired commiserate with her
overall intellectual level.
social skills.

Claimant was dull and naive in her

(Tr. 292).

6

Claimant contends her impairments are equivalent to Listing
12.05C since the evidence indicates her combined impairments were
equivalent to the listing.

Claimant references the Social Security

Administration’s Program Operations Manual System (“POMS”) No. DI
24515.056(D)(1)(c) which provides the following instructions under
Listing 12.05C:
Slightly higher IQ’s (e.g., 70-75) in the presence of
other physical or mental disorders that impose additional
and significant work-related limitations of function may
support an equivalence determination. It should be noted
that generally higher the IQ, the less likely medical
equivalence in combination with another physical or
mental impairment(s) can be found.
POMS DI 24515.056(D)(1)(c).
“This evaluation tool, however, is used only when ‘the capsule
definition’” — i.e., the introductory paragraph—of Listing 12.05 is
satisfied.

Crane v. Astrue, 369 F. Appx. 915, 921 (10th Cir. 2010)

(quoting POMS DI 24515.056(B)(1)).

The introductory paragraph or

“capsule definition” of Listing 12.05 requires a claimant to satisfy
three criteria: (1) “significantly subaverage general intellectual
functioning;”

(2)

“deficits

in

adaptive

behavior;”

and

“manifested deficits in adaptive behavior before age 22.”

(3)

Wall v.

Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009); Randall v. Astrue, 570
F.3d 651, 661 (5th Cir. 2009).
A review of the ALJ’s decision demonstrates that he did not
analyze whether Claimant met the “capsule definition”. (Tr. 14-16).
Moreover,

Defendant’s

post

hoc

7

attempts

to

argue

otherwise

notwithstanding,

the

ALJ

determined

constituted a severe impairment.

that

(Tr. 15).

Claimant’s

obesity

Claimant also suffered

from other additional non-severe impairments such as memory and
concentration problems associated with Claimant’s ADHD.

(Tr. 154,

295, 298, 329). Given the POMS permissible consideration of Listing
12.05C when the IQ is within a five point range of that specified
by the Listing, the ALJ should consider whether (1) Claimant meets
the “capsule definition” and (2) Claimant’s additional impairments
warrants the equivalency finding under the Listing on remand.
Step Five Analysis
The ALJ’s hypothetical questioning of the vocational expert at
step five was curious. The jobs identified by the vocational expert
did not meet the reasoning level established for Claimant. (Tr. 3738).

On remand, the ALJ shall insure the jobs identified by the

vocational

expert

take

into

account

Claimant’s

functional

limitations.
Conclusion
The

decision

of

the

Commissioner

is

not

supported

by

substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of
Social Security Administration should be and is

REVERSED and the

matter REMANDED for further proceedings consistent with this Opinion
and Order.

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IT IS SO ORDERED this 30th day of September, 2014.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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