Watts v. Social Security Administration

Filing 19

OPINION AND ORDER by Magistrate Judge Kimberly E. West reversing and remanding the decision of the ALJ (sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CRYSTAL WATTS,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

Case No. CIV-17-149-KEW

OPINION AND ORDER

Plaintiff Crystal Watts (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 the case
REMANDED to Defendant 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

§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:
substantial

This Court’s review is limited to

first, whether the decision was supported by

evidence;

and,

second,

1

whether

the

correct

legal

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).

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standards were applied.

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 22 years old at the time of the ALJ’s decision.
Claimant completed her high school education.
relevant work.

Claimant has no past

Claimant alleges an inability to work beginning

March 25, 1993 due to limitations resulting from hearing problems,

a learning disability, asthma, inactive tuberculosis, allergies,
acid

reflux,

high

blood

pressure,

knee

problems,

borderline

intellectual functioning, and affective and anxiety disorders.

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Procedural History
On April 14, 2014, Claimant protectively filed for disability
insurance benefits under Title II (42 U.S.C. § 401, et seq.) 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 November 23,

2015, Administrative Law Judge (“ALJ”) Deidre O. Dexter conducted
an administrative hearing in McAlester, Oklahoma.
an unfavorable decision on March 11, 2016.
denied review on February 17, 2017.

The ALJ entered

The Appeals Council

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 her decision at step five of the sequential
evaluation. She determined that while Claimant suffered from severe
impairments, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform less than a full range of
light work.

Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to find
Claimant’s impairments meet or equal a listing; and (2)

4

failing to

perform a proper credibility analysis.
Consideration of a Listing
In her decision, the ALJ found Claimant suffered from the
severe impairments of right knee complex lateral discoid meniscus
tear and large medial plica with significant synovitis, status post
right knee arthroscopy, borderline intellectual functioning, and
affective and anxiety disorders.

(Tr. 18).

The ALJ determined

Claimant retained the RFC to perform less than a full range of light
work.

In so doing, she found Claimant could lift/carry, push/pull

up to ten pounds frequently and 20 pounds occasionally; could sit
for up to six hours out of an eight hour workday; could stand and/or
walk up to four hours in an eight hour workday.

Claimant could

occasionally use foot controls with the right lower extremity;
occasionally climb ramps and stairs but never climb ladders, ropes,
or scaffolds.

Claimant was able to frequently balance and stoop,

occasionally kneel, crouch, or crawl.

She should never be exposed

to unprotected heights or moving mechanical parts.

Claimant was

found to be able to perform simple, routine, and repetitive tasks,
and was able to make simple work-related decisions.

Claimant was

able to occasionally interact with supervisors as required to
receive work instructions.

Claimant was able to work in proximity

to co-workers, but should have no more than occasional direct

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interaction with co-workers.

Claimant should never interact with

the general public. She must not be required to do more than simple
reading.

(Tr. 27).

After consultation with a vocational expert, the ALJ determined
Claimant could perform the representative jobs of small products
assembler, inspector packer, and electrical accessories assembler,
all of which the ALJ found existed in sufficient numbers in the
national and regional economies.

(Tr. 42).

As a result, the ALJ

concluded that Claimant was not under a disability from April 1,
2014 through the date of the decision.

(Tr. 43).

Claimant contends the ALJ erred at concluding that she did not

The ALJ is required to follow the

meet or equal a listing.

procedure

for

determining

mental

impairments

provided

by

regulation.

20 C.F.R. §§ 404.1520a, 416.920a; See, Listing of

Impairments.

The procedure must be followed for the evaluation to

be considered valid.

Andrade v. Sec. of Health & Human Services,

985 F.2d 1045, 1048 (10th Cir. 1993). The ALJ must first determine
whether there are medical findings of mental impairment especially
relevant to the ability to work found in Part A of the Listing of
Impairments.

20

C.F.R.

§§

404.1520a(b)(2),

416.920a(b)(2).

Additionally, Claimant must show he satisfies two of the following
required restrictions:

(1) marked restriction in activities of

6

daily living; or (2) marked difficulties in maintaining social
functioning;

or

(3)

marked

difficulties

in

maintaining

concentration, persistence, or pace; or (4) repeated episodes of
decompensation, each of extended duration.

20 C.F.R. Pt. 404,

Subpt. P, App. 1, 12.00C, 12.04. The ALJ must then either evaluate
the degree of functional loss resulting from the impairment, using
the Part B criteria, or examine the special criteria set forth in
the listings for evaluating the severity of particular impairments.
In asserting a condition meets a listing, a claimant bears the
burden of demonstrating that his impairment “meet[s] all of the
specified medical criteria. An impairment that manifests only some
of those criteria, no matter how severe, does not qualify.”
Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
To meet or equal Listing § 12.05C, a claimant must demonstrate
the 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

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limitation of function.
*

*

*

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

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

The Social Security Administration’s Program Operations Manual
System (“POMS”) No. DI 24515.056(D)(1)(c) 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
(3) “manifested deficits in adaptive behavior before age 22.” Wall
v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009); Randall v. Astrue,
570 F.3d 651, 661 (5th Cir. 2009).
The ALJ stated in her decision that she evaluated Claimant’s

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mental impairments and determined that they did not meet or equal
the criteria for Listings 12.04, 12.05, and 12.06.

She evaluated

the paragraph B criteria and found Claimant had mild restrictions
in activities of daily living, moderate difficulties in social
functioning, moderate difficulties in concentration, persistence or
pace, and had experienced no episodes of decompensation of extended
duration.

(Tr. 23-25).

She acknowledged Claimant’s IQ score of 69

would seem to substantiate onset of ‘significantly
subaverage general intellectual functioning’ during the
developmental period sufficient to meet listing 12.05C,
as the claimant scored a performance IQ of 69 on the
January 7, 2013 Wechsler Adult Intelligence Scate – Third
Edition, (Exhibit B7F), and she has a physical or other
mental impairment that imposes an additional and
significant work-related limitation of function.
(Tr. 26).
The ALJ, however, also concluded that Claimant had no “deficits
in adaptive functioning” required by Listing 12.05C. Deficits in
adaptive functioning under the DSM-IV encompasses “how effectively
individuals cope with common life demands and how well they meet the
standards of personal independence expected of someone in their
particular age group, in the areas of communication, self-care, home
living, social/interpersonal skills, use of community resources,
self-direction, functional academic skills, work, leisure, health
and safety.”

DSM-IV at 42, 49.

The ALJ determined that Claimant completed the adult function
report and responded to questions asked of her.

She found Claimant

had no problems with personal care, could feed herself, and take

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medication.

She does not live in a supportive living environment

despite living with her family, prepares meals, does household
chores, was married, spends time with others, attends church, goes
shopping, relates well, was cooperative on examination, accessed
community resources, and does not require another individual to
direct her activities.
Claimant graduated from high school with an Individualized
Education Program in place.
courses.

She began college but failed some

She completed Vo-Tech training for child development, and

worked part time at the Salvation Army Thrift Store.
television, plays games, and reads.
and attended appointments.

She watched

Claimant took her medication

She follows basic safety precautions

with no evidence of a requirement for supervision and was not a risk
to harm herself or others.

As a result, the ALJ concluded Claimant

did not demonstrate any “deficits in adaptive functioning” as
required by Listing 12.05C.

(Tr. 26-27).

Claimant admittedly has moderate limitations in the area of
social functioning and concentration, persistence, or pace.
24).

(Tr.

It also appears from the record that Claimant has deficits in

communication to which she testified and the Oklahoma Department of
Rehabilitation Services recognized.

(Tr. 68-69, 294).

Claimant

also expressed an inability to understand instructions by her
supervisor at the Salvation Army Thrift Store.

(Tr. 71).

She

required someone to help her remember what she was supposed to do

10

and how she was supposed to do it.

(Tr. 72).

This Court concurs with our sister courts which have pointed
out that Listing 12.05 does not require a showing that Claimant may
engage

in

no

adaptive

functioning

“deficits in adaptive functioning.”
4598802, *6 (D. Kans.).

but

rather

must

only

show

See Gardner v. Colvin, 2015 WL

Claimant may well be able to engage in

activities of daily living with only limited restrictions but still
demonstrate deficits in adaptive functioning in other areas such as
social functioning, communication, and concentration.

The ALJ’s

conclusion that Claimant has no deficits in adaptive functioning is
not supported by substantial evidence.

On remand, the ALJ shall

assess the entirety of the record to reconsider this finding.
Credibility Determination
Claimant challenges the adequacy of the ALJ’s credibility
findings. The ALJ found Claimant was not “entirely credible”. (Tr.
29).

Later in the decision, the ALJ found Claimant “only partially

credible.” Her finding was based upon a thorough examination of the
medical record and the inconsistencies of those treatment records
with Claimant’s statements.

It is well-established that “findings as to credibility should
be closely and affirmatively linked to substantial evidence and not
just a conclusion in the guise of findings.”
F.3d 387, 391 (10th Cir. 1995).

Kepler v. Chater, 68

“Credibility determinations are

peculiarly in the province of the finder of fact” and, as such,

11

will not be disturbed when supported by substantial evidence.

Id.

Factors to be considered in assessing a claimant’s credibility
include (1) the individual’s daily activities; (2) the location,
duration, frequency, and intensity of the individual’s pain or
other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of
any medication the individual takes or has taken to alleviate pain
or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other
symptoms; (6) any measures other than treatment the individual uses
or has used to relieve pain or other symptoms (e.g., lying flat on
his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and (7) any other factors concerning the
individual's functional limitations and restrictions due to pain or
other symptoms.

Soc. Sec. R. 96-7p; 1996 WL 374186, 3.

The ALJ’s

credibility assessment is in line with her obligations under the
regulations and is supported by substantial evidence.
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
case is REMANDED to Defendant for further proceedings consistent

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with this Opinion and Order.
IT IS SO ORDERED this 28th day of September, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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