Stultz-Robertson v. Social Security Administration

Filing 31

OPINION AND ORDER by Magistrate Judge T Lane Wilson , remanding case (terminates case) (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
KELLEY A. STULTZ-ROBERTSON,

)
)
Plaintiff,
)
)
vs.
)
)
)
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 12-cv-623-TLW

OPINION AND ORDER
Plaintiff Kelley A. Stultz-Robertson seeks judicial review of the decision of the
Commissioner of the Social Security Administration denying her claim for supplemental security
income benefits under Titles II and XVI of the Social Security Act (“SSA”), 42 U.S.C. §§ 416(i),
423, and 1382c(a)(3). In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have consented
to proceed before a United States Magistrate Judge. (Dkt. # 8). Any appeal of this decision will
be directly to the Tenth Circuit Court of Appeals.
INTRODUCTION
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported
by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Substantial evidence is more than a scintilla but less than a preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. See id. The
Court’s review is based on the record, and the Court will “meticulously examine the record as a
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Effective February 14, 2013, pursuant to Fed. R. Civ. P. 25(d)(1), Carolyn W. Colvin, Acting
Commissioner of Social Security, is substituted as the defendant in this action. No further action
need be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act. 42 U.S.C. § 405(g).

whole, including anything that may undercut or detract from the ALJ’s findings in order to
determine if the substantiality test has been met.” Id. The Court may neither re-weigh the
evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395
F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s decision stands. See White v. Barnhart,
287 F.3d 903, 908 (10th Cir. 2002).
BACKGROUND
Plaintiff, then a 32-year old female, applied for benefits under Titles II and XVI on May
15, 2009. (R. 122-128). Plaintiff alleged a disability onset date of July 1, 2007. Id. Plaintiff
claimed that she was unable to work due to “seizures, head injury, learning disability, emotional,
[and] depression.” (R. 136). Plaintiff’s claims for benefits were denied initially on June 25, 2009,
and on reconsideration on October 5, 2009. (R. 68-76; 81-86). Plaintiff then requested a hearing
before an administrative law judge (“ALJ”). (R. 88). The ALJ held the hearing on June 18, 2010.
(R. 32-59). The ALJ issued a decision on August 16, 2010, denying benefits and finding plaintiff
not disabled because she was able to perform her past relevant work as a food server, and a deli
worker. (R. 15-31). The Appeals Council denied review, and plaintiff appealed. (R. 1-5); (Dkt. #
2). On March 27, 2014, the Court conducted a hearing. (Dkt. # 30). After reviewing the evidence
and the arguments of the parties, the Court has determined that remand is appropriate.
The ALJ’s Decision
The ALJ found that plaintiff had not performed any substantial gainful activity since her
alleged disability onset date of July 1, 2007. Her last insured date was determined to be
December 31, 2011. (R. 20). The ALJ found that plaintiff had the severe impairments of seizures
and mental retardation. Id. Plaintiff alleged disabling back pain and depression, but the ALJ

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considered each a non-severe impairment because the record revealed no evidence that “would
impose more than a minimal limitation” on her ability to perform basic work. (R. 20-21). The
ALJ applied the “special technique” to determine that plaintiff’s mental impairment of
depression was nonsevere. (R. 21-22). Under the “paragraph B” criteria, plaintiff had mild
restrictions in activities of daily living, social functioning, and concentration, persistence, and
pace; and no episodes of decompensation. Id. Plaintiff’s impairments did not meet or medically
equal a listed impairment. (R. 22-23).
After reviewing plaintiff’s testimony, the medical evidence, and other evidence in the
record, the ALJ concluded that plaintiff could perform
light work as defined in 20 CFR 404.1567(b) and 416.967(b). Due to seizure
precautions, the claimant should avoid such things as heights and open
machinery. She is limited to simple, repetitive tasks.
(R. 23). The ALJ then found that plaintiff’s residual functional capacity allowed her to return to
her past relevant work as a food server, or a deli worker, citing testimony from the vocational
expert at the hearing that with the seizure precautions of avoiding heights and heavy machinery,
and a limitation to simple repetitive tasks, plaintiff could perform these unskilled, light exertion
jobs. (R. 28).2 Accordingly, the ALJ found that plaintiff was not disabled. Id.
ANALYSIS
Plaintiff alleges four errors: (1) that the ALJ failed to find that plaintiff meets or equals
Listing 12.05, (2) that the ALJ deprived plaintiff of her constitutionally protected right to due
process by failing to make a full and fair inquiry to develop the record, (3) that the ALJ failed at
step four of his determination because he did not properly consider the effects of plaintiff’s
combined mental and physical impairments on her ability to function, and (4) that the ALJ’s
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The ALJ did not make an alternative step five finding.
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failed to perform a proper credibility determination. Because the first issue is dispositive, the
Court need not consider the remaining three.
Listing 12.05
Plaintiff argues that the ALJ failed to find that she meets the listing requirements for
12.05B or 12.05C. Plaintiff claims that because her full scale IQ score is 59, she meets the
requirements for 12.05B. In the alternative, plaintiff argues that she also meets the listing
requirements for 12.05C, because her full scale IQ is 59, and she has an added severe impairment
of seizures. (Dkt. # 12). The Commissioner counters that the ALJ properly found that plaintiff’s
scores were not valid, and that the ALJ found that plaintiff’s seizures were well controlled with
medication, and therefore did not significantly impact her ability to work. (Dkt. # 14).
The requirements for meeting Listing 12.05 are, first, to establish “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.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.05. Plaintiff
satisfied this initial step by presenting evidence from her high school that her “intellectual
functioning [was] within the mentally deficient range” at age 15. Further, plaintiff’s mother
testified at the hearing that plaintiff suffered a severe head injury at the age of four, and stated
that plaintiff was diagnosed “mentally retarded” at age six. (R. 47-48, 304).
Next, to meet 12.05B, a claimant must have “[a] valid verbal, performance, or full scale
IQ of 59 or less.” Dr. Crall performed a consultative examination of plaintiff on July 19, 2005,
and after utilizing the WAIS-III test, opined that plaintiff’s verbal IQ was 61, her performance

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IQ was 65, and her full scale IQ was 59. (R. 212). Dr. Crall repeatedly stated that the test results
were “considered valid and reliable indicators of her cognitive ability.” Id.
The ALJ stated in his decision that he gave “great weight” to both the consultative
examiners (Dr. Crall was actually the only consultative examiner), and the medical consultants
of the DDS. There is a Psychiatric Review Technique form, completed by Dr. Hartley (an agency
reviewing physician) that states that plaintiff’s demonstrated level of functioning is higher than a
valid full scale IQ of 59. (R. 288). Dr. Hartley also completed a Mental RFC form, opining
therein that plaintiff could “perform simple tasks with routine supervision,” “relate to supervisors
and peers on a superficial work basis,” and “adapt to a work situation,” but that she “cannot
relate to the general public.” (R. 292).
The ALJ failed to reconcile this conflicting evidence. The ALJ gave “great weight” to Dr.
Crall’s opinion but did not accept Dr. Crall’s “valid” full scale IQ score of 59. More importantly,
he failed to explain why he did not accept all of the limitations that Dr. Hartley placed on
plaintiff (i.e., that she cannot relate to the general public). As a result, this case must be
remanded with instructions to the ALJ to reconcile this conflicting evidence at the least, or to
order further testing of plaintiff to determine her “valid” IQ scores.
CONCLUSION
For the reasons stated above, the decision of the Commissioner is REVERSED AND
REMANDED for further proceedings consistent herewith.
SO ORDERED this 28th day of March, 2014.

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