Rogers v. Social Security Administration

Filing 29

OPINION AND ORDER by Magistrate Judge Paul J Cleary reversing and, remanding case (terminates case) (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
LINDA FAY ROGERS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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Case No. 14-CV-563-PJC

OPINION AND ORDER
Claimant, Linda Fay Rogers (“Rogers”), pursuant to 42 U.S.C. § 405(g), requests judicial
review of the decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying Rogers’ applications for disability insurance benefits and
supplemental security income benefits under Titles II and XVI of the Social Security Act, 42
U.S.C. §§ 401 et seq. In accordance with 28 U.S.C. § 636(c)(1) and (3), the parties have
consented to proceed before a United States Magistrate Judge. Any appeal of this order will be
directly to the Tenth Circuit Court of Appeals. Rogers appeals the decision of the Administrative
Law Judge (“ALJ”) and asserts that the Commissioner erred because the ALJ incorrectly
determined that Rogers was not disabled. For the reasons discussed below, the Court
REVERSES AND REMANDS the Commissioner’s decision.
Procedural History
Rogers filed her applications for disability insurance benefits and supplemental security
income benefits with a protective filing date of May 13, 2010. (R. 18, 112-20). Rogers asserted
onset of disability on May 18, 2009. Id. The applications were denied initially and on

reconsideration. (R. 97-99, 107-11). An administrative hearing was held before ALJ John W.
Belcher on March 13, 2013. (R. 891-925). By decision dated April 4, 2013, the ALJ found that
Rogers was not disabled. (R. 18-30). On July 21, 2014, the Appeals Council denied review. (R.
6-8). Thus, the decision of the ALJ represents the Commissioner’s final decision for purposes of
this appeal. 20 C.F.R. §§ 404.981, 416.1481.
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 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 in the national economy.” 42 U.S.C. § 423(d)(2)(A).
Social Security regulations implement a five-step sequential process to evaluate a disability
claim. 20 C.F.R. § 404.1520.1 See also Wall v. Astrue, 561 F.3d 1048, 1052-53 (10th Cir. 2009)
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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. 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. See 20 C.F.R. § 404.1520(c). 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 (“Listings”). 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 the 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. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). Disability
benefits are denied if the Commissioner shows that the impairment which precluded the
performance of past relevant work does not preclude alternative work. 20 C.F.R. § 404.1520.
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(detailing steps). “If a determination can be made at any of the steps that a claimant is or is not
disabled, evaluation under a subsequent step is not necessary.” Lax, 489 F.3d at 1084 (citation
and quotation omitted).
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g). This Court’s review is limited to two inquiries: first, whether the decision was supported
by substantial evidence; and, second, whether the correct legal standards were applied. Hamlin v.
Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted).
Substantial evidence is such evidence as a reasonable mind might accept as adequate to
support a conclusion. Wall, 561 F.3d at 1052 (quotations and citations omitted). Although the
court will not reweigh the evidence, the court will “meticulously examine the record as a 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.
Decision of the Administrative Law Judge
In his decision, the ALJ found that Rogers met insured status requirements through
December 31, 2015. (R. 20). At Step One, the ALJ found that Rogers had not engaged in any
substantial gainful activity since her amended alleged onset date of September 1, 2011. Id. At
Step Two, the ALJ found that Rogers had severe impairments of “peripheral vascular disease;
heart disease; degenerative disc disease cervical and lumbar spine; degenerative changes of the
feet; and depression.” Id. At Step Three, the ALJ found that Rogers’ impairments did not meet
any Listing. (R. 21-23).
The ALJ found that Rogers had the RFC to perform light work with no climbing ladders,
ropes, or scaffolds, and occasional climbing stairs, balancing, bending, stooping, crouching, or
crawling. (R. 23). He found that Rogers should avoid hazardous machinery, unprotected heights,
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and driving. Id. He said that Rogers could do simple work and was limited to superficial contact
with coworkers, supervisors, or the general public. Id. At Step Four, the ALJ determined that
Rogers could not return to past relevant work. (R. 28). At Step Five, the ALJ found that there
were a significant number of jobs in the national economy that Rogers could perform, taking into
account her age, education, work experience, and RFC. (R. 28-29). Therefore, the ALJ found
that Rogers was not disabled at any time from September 1, 2011 to the date of his decision. (R.
29).
Review
The Court agrees with Rogers that the ALJ’s analysis of the evidence and law relating to
Listing 12.05C is not in compliance with legal requirements. For these reasons, the ALJ’s
decision is REVERSED AND REMANDED.
Listing 12.05 states as follows:
12.05 Intellectual disability: Intellectual disability 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.
[Subsections A and B omitted.]
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 workrelated limitation of function;
[Subsection D omitted.]
20 C.F.R. Pt. 404, Subpt. P, App.1, § 12.05.
In his decision, the ALJ discussed Listing 12.05 and said that Rogers did not meet
paragraph C of this Listing because she did “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.” (R. 22). He then noted the Full Scale IQ score
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found by agency examining consultant Larry Vaught, Ph.D., on September 27, 2012. (R. 22-23).
The ALJ continued as follows:
However, school records, prior to age 22, at Exhibit 15E, show the claimant during
certain quarters in high school had grades of A’s, B’s and C’s in subjects such as
English, Math, History, and Science. There are also several quarters showing D’s
and F’s, but there is no evidence to explain why the claimant went from good
grades to poor grades. The claimant testified that she dropped out of school to help
her father. There does not appear to be enough evidence to show the claimant had
significant learning disabilities prior to age 22.
(R. 23).
The Tenth Circuit discussed Listing 12.05C and the requirement that a claimant have
deficits in adaptive functioning at some length in Barnes v. Barnhart, 116 Fed. Appx. 934 (10th
Cir. 2004) (unpublished). While the wording of Listing 12.05C itself does not make clear that
deficits in adaptive functioning are an added requirement to the criteria of low IQ and an
additional severe impairment, the Tenth Circuit found that the Social Security Administration had
confirmed that deficits in adaptive functioning are a requirement through a 2000 amendment and
agency rulings. Id. at 938-39. The court noted, however, that several questions remained about
the additional requirement of deficits in adaptive functioning, including “how it should be
assessed by the ALJ.” Id. at 940. The Barnes court described the analysis of the ALJ in that case
as an “ad hoc functional approach,” and it said that the ALJ had not complied with the
Commissioner’s “direction that ALJs choose and apply one ‘of the measurement methods
recognized and endorsed by [one of] the [four major] professional organizations’ dealing with
mental retardation.” Id., quoting 67 Fed. Reg. 20,018, 20,022 (Apr. 24, 2002) (brackets in
original). Because the ALJ had not complied with the requirement of choosing and applying an
identified method, the Tenth Circuit said that the case must be remanded and that the ALJ must

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identify which standard he selected so that the court would be able to provide a meaningful
review. Barnes, 116 Fed. Appx. at 940, 942-43.
This Court is in the same position in Rogers’ case that the Tenth Circuit was in with regard
to the Barnes case, with the same inability to provide meaningful review of the ALJ’s decision.
The ALJ’s discussion of Listing 12.05C was not comprehensive, and it is certainly not clear to
this Court that the ALJ used the correct standards in deciding that Rogers did not meet the
requirements of 12.05C. See Havenar v. Astrue, 438 Fed. Appx. 696, 698-99 (10th Cir. 2011)
(unpublished) (ALJ’s confusing explanation for why claimant did not meet requirements of
Listing 12.05C was “insufficient to permit meaningful review”).
The first flaw in the ALJ’s discussion was his incorrect statement, as quoted above, that
Rogers did not have a valid IQ of 60 through 70 and an additional impairment. (R. 22). In fact,
Rogers’ full scale IQ, as the ALJ noted later in his discussion of Listing 12.05C, was 64. (R. 796).
The requirement of an additional impairment appears to be met easily by the ALJ’s findings of
several severe impairments at Step Two of his decision, as well as his RFC imposing a limitation
to light work with significant postural and other limitations. (R. 20, 23). Thus, the ALJ’s first
sentence discussing Listing 12.05C appears to be incorrect. See Havenar, 438 Fed. Appx. at 698
(noting that the claimant met both the IQ and additional limitation requirements of Listing
12.05C). The Court has not been able to find a portion of the Commissioner’s Response Brief
that directly addresses this sentence of the ALJ’s decision. Commissioner’s Response Brief, Dkt.
#28.
The second flaw in the ALJ’s discussion of Listing 12.05C is that he never mentioned the
language of Listing 12.05 referring to “deficits in adaptive functioning.” (R. 18-30). Instead of
discussing whether Rogers had deficits in adaptive functioning, the ALJ discussed Rogers’
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performance in school, ultimately concluding that there was not enough evidence to show that
Rogers had “significant learning disabilities” prior to age 22. (R. 23). Listing 12.05 does not ask
whether a claimant had learning disabilities before age 22. Instead, the language the agency used
in its regulation was whether the claimant had deficits in adaptive functioning. 20 C.F.R. Pt. 404,
Subpt. P, App.1, § 12.05. Because the ALJ’s decision did not accurately recite or discuss the
language used by Listing 12.05, this Court is unable to rule that his decision applied the
appropriate standards. Havenar, 438 Fed. Appx. at 698-99 (ALJ’s confusing explanation for why
claimant did not meet requirements of Listing 12.05C was “insufficient to permit meaningful
review”); Peck v. Barnhart, 214 Fed. Appx. 730, 733-37 (10th Cir. 2006) (unpublished)
(reversing ALJ’s failure to make specific findings regarding Listing 12.05C); Smith v. Barnhart,
172 Fed. Appx. 795, 801-02 (10th Cir. 2006) (unpublished) (ALJ’s failure to specifically address
Listing 12.05 was reversible error because court could not “engage in meaningful judicial
review”).
The Commissioner concedes that the ALJ “did not use the correct terminology” in his
discussion of Listing 12.05C. Commissioner’s Response Brief, Dkt. #28, p. 5, n.3. While the
Commissioner does not use the term “harmless error” in this portion of her Brief, she does suggest
that the Court can “uphold a decision of less than ideal clarity if the agency’s path may reasonably
be discerned.” Id., quoting Davis v. Erdmann, 607 F.2d 918, 919 n.1 (10th Cir. 1979). The
difficulty here, of course, is that the ALJ’s “path” is not reasonably discerned because he did not
use the correct legal standard that the agency used in its own regulations. While Peck2 is not
precedential, the Court finds it persuasive that the Tenth Circuit in Peck refused to apply the
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According to Tenth Circuit Rule 32.1, unpublished decisions are not precedential, but
may be cited for their persuasive value.
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concept of harmless error when the ALJ had failed to make specific findings related to Listing
12.05C. Peck, 214 Fed. Appx. at 736-37. This Court rejects the Commissioner’s argument that
the ALJ’s discussion of learning disabilities was an adequate analysis of Listing 12.05C.
Further, the Commissioner suggests that Rogers’ performance of semiskilled work for
several years can also be used by this Court to find that Rogers did not meet the requirements of
Listing 12.05C, although she concedes that this reasoning was “not expressly considered by the
ALJ.” Commissioner’s Response Brief, Dkt. #28, p. 5. The Commissioner is aware that her
suggestion in this regard is in the nature of post hoc justification of the ALJ’s decision. The
undersigned will not usurp the ALJ’s function by making findings that are not contained in his
decision. Krauser v. Astrue, 638 F.3d at 1324, 1328-30 (10th Cir. 2011) (post hoc justifications
of ALJ’s analysis of treating physician opinion were prohibited); Carpenter v. Astrue, 537 F.3d
1264, 1267 (10th Cir. 2008) (post hoc rationale seeking to justify ALJ’s 12.05C Listing decision
is improper because it usurps agency’s function of weighing and balancing evidence in the first
instance); Havenar, 438 Fed. Appx. at 699.
Thus, as was true in Barnes, this Court must reverse and remand so that the ALJ can
explicitly address the requirement of deficits in adaptive functioning included in Listing 12.05C.
As discussed in this Order, the ALJ must state his method, chosen from one of the four
professional organizations as required by the Social Security Administration’s own regulations,
for determining whether Rogers meets the requirement of deficits in adaptive functioning. The
ALJ must provide his analysis of the facts of Rogers’ case measured against the chosen criteria.

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Conclusion
The Court takes no position on the merits of Rogers’ disability claim, and “[no] particular
result” is ordered on remand. Thompson v. Sullivan, 987 F.2d 1482, 1492-93 (10th Cir. 1993).
This case is remanded only to assure that the correct legal standards are invoked in reaching a
decision based on the facts of the case. Angel v. Barnhart, 329 F.3d 1208, 1213-14 (10th Cir.
2003), citing Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
Because this case is reversed based on the ALJ’s failure to adequately address the
requirements of Listing 12.05C, including his failure to explain his methodology for assessing
whether Rogers had deficits in adaptive functioning, the undersigned declines to discuss Rogers’
other asserted appeal issues. On remand, the Commissioner should ensure that any new decision
sufficiently addresses all issues raised by Rogers.
Based on the foregoing, the decision of the Commissioner denying disability benefits to
Claimant is REVERSED AND REMANDED.
Dated this 8th day of October 2015.

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