Lancaster v. Commissioner of Social Security

Filing 28

MEMORANDUM OPINION AND ORDER -- Having reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties, the undersigned magistrate judge REVERSES the Commissioner's decision and REMANDS for further administrative development. Signed by Magistrate Judge Shon T. Erwin on 2/19/16. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GLORIADEAN JEANNETTE
LANCASTER ,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-15-154-STE

MEMORANDUM OPINION AND ORDER
Gloriadean Jeannette Lancaster brings this action pursuant to 42 U.S.C. § 405(g)
for judicial review of the final decision of the Commissioner of the Social Security
Administration denying her application for benefits under the Social Security Act. The
Commissioner has answered and filed a transcript of the administrative record
(hereinafter TR. ____). The parties have consented to jurisdiction over this matter by a
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on
the Court’s review of the record and the issues presented, the Court REVERSES the
Commissioner’s decision and REMANDS the matter for further administrative
proceedings.
I.

PROCEDURAL BACKGROUND
Plaintiff’s application for disability insurance benefits was denied initially and on

reconsideration. Following a hearing, an Administrative Law Judge (ALJ) issued an

unfavorable decision. (TR. 22-34). The Appeals Council denied Plaintiff’s request for
review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the
Commissioner.
II.

THE ADMINISTRATIVE DECISION
The ALJ followed the five-step sequential evaluation process required by agency

regulations. Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §
416.920. At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since November 17, 2011, the application date. (TR. 24). At step two,
the ALJ determined that Plaintiff had severe impairments of status post fracture of right
humerus, status post January 2010 surgery; osteoarthritis; obesity; learning disability;
depression; below average intellectual functioning; anxiety; and post-traumatic stress
disorder. (TR. 24). At step three, the ALJ found that Plaintiff’s impairments did not meet
or medically equal any of the presumptively disabling impairments listed at 20 C.F.R.
Part 404, Subpart P, Appendix 1 (TR. 25).
At step four, the ALJ found Plaintiff had the residual functional capacity (RFC) to:
[P]erform less than the full range of “light work,” as defined at 20 CFR
416.967(b), except that claimant can only: occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl; never climb ropes,
ladders, or scaffolds; perform no work over head; below overhead level,
frequently, but not constantly, use her right arm for reaching, handling,
fingering, and feeling; understand, remember, and carry out simple,
routine, repetitive tasks; make only simple work related decisions; deal
with only occasional changes in work processes and environment; have no
contact with the general public; have only incidental, superficial workrelated type contact with co-workers and supervisors, i.e., brief, cursory,
succinct communication relevant to the job being performed; cannot
perform any fast pace type work (i.e., no high production standard); and

2

require the claimant to perform no reading, writing, or mathematics
beyond the 6th grade level.
(TR. 29).
Based on the finding that Ms. Lancaster could not perform her past relevant
work, the ALJ proceeded to step five. (TR. 32). There, he asked a vocational expert
(VE) whether any jobs existed that Plaintiff could perform with the above-listed RFC
limitations. (TR. 60). Given the limitations, the VE identified three jobs from the
Dictionary of Occupational Titles (DOT). (TR. 61). The ALJ adopted the testimony of the
VE and concluded that Ms. Lancaster was not disabled based on her ability to perform
the identified jobs. (TR. 34).
III.

ISSUES PRESENTED
Plaintiff alleges error at step three in the consideration of Listing 12.05(C). The

Court agrees and orders reversal and remand for further analysis at step three.
IV.

STANDARD OF REVIEW
This Court reviews the Commissioner’s final decision “to determin[e] whether the

factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir.
2010). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in
weighing particular types of evidence in disability cases, the court does not reweigh the

3

evidence or substitute its own judgment for that of the Commissioner. Bowman v.

Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
V.

ERROR AT STEP THREE
As alleged by Ms. Lancaster, the ALJ committed legal error at step three in his

consideration of Listing 12.05(C).
A.

Criteria at Step Three

At step three, the ALJ must determine whether the claimant’s impairment is
“equivalent to one of a number of listed impairments that the Secretary acknowledged
as so severe as to preclude substantial gainful activity.” Clifton v. Chater, 79 F.3d 1007,
1009 (10th Cir. 1996). If this standard is met, the claimant is considered per se
disabled. Knipe v. Heckler, 755 F.2d 141, 146 (10th Cir. 1985). The question of whether
a claimant meets or equals a listed impairment is strictly a medical determination.

Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990); 20 C.F.R. §§ 416.925(c)(3)-(4),
416.926(b). The claimant has the burden at step three of demonstrating, through
medical evidence, that her impairments “meet all of the specified medical criteria”
contained in a particular listing. Sullivan v. Zebley, 493 U.S. at 530 (emphasis in
original). “An impairment that manifests only some of those criteria, no matter how
severely, does not qualify.” Id.
Once the claimant has produced such evidence, the burden is on the ALJ to
identify and discuss any relevant listings. Id. at 733, n.3. In doing so, the ALJ must
weigh the evidence and make specific findings to support the step three determination.

Clifton v. Chater, 79 F.3d at 1009.

4

B.

Listing 12.05(C)

Listing 12.05(C) sets forth the requirements to determine whether an individual
with an intellectual disability1 is presumptively disabled. To satisfy Listing 12.05, “a
claimant must meet[] the requirements of that listing’s capsule definition [as well] as
one of the four severity prongs for mental retardation as listed in the regulations.” Wall

v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009) (internal quotation marks omitted).
The capsule definition for Listing 12.05 states:
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.
20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05 (Listing 12.05). And the “severity”
prong for Listing 12.05(C) requires: “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. Part 404, Subpart P, Appendix
1, § 12.05(C) (Listing 12.05(C)).
C.

Error in the Consideration of Listing 12.05(C)

At step three, the ALJ concluded that Plaintiff had not satisfied Listing 12.05(C)
because she had not satisfied the requisite severity prong. (TR. 28). The ALJ stated:

1

Prior to August 1, 2013, courts and medical practitioners referred to “mental retardation”
instead of “intellectual disability.” On August 1, 2013, the SSA changed Listing 12.05 from
“mental retardation” to “intellectual disability.” Change in Terminology: “Mental Retardation” to
“Intellectual Disability,” 78 Fed. Reg. 46,499, 46, 499 (Aug. 1, 2013). Based on the timing of
various diagnoses and case law referenced herein, the Court deems the terms interchangeable
for purposes of this opinion.

5

[T]he “paragraph C” criteria of listing 12.05 are not met 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. 28). Beyond this statement, the ALJ failed to explain his findings and he did not
discuss the capsule definition of Listing 12.05 at step three. (TR. 25-28).
Despite these findings, contrary evidence of a qualifying IQ score and Plaintiff’s
severe impairments at step two provide conclusive evidence that Ms. Lancaster had met
Listing 12.05(C)’s severity prong. On February 27, 2012, Dr. Mark Englander performed
a consultative examination on Plaintiff and administered the Wechsler Adult Intelligence
Scale–III (WAIS–III). Tests results revealed full scale and verbal IQs of 69 and 70,
respectively, and Dr. Englander diagnosed Plaintiff with mild mental retardation. (TR.
297). The scores create a presumption that Ms. Lancaster met the IQ requirement for
Listing 12.05(C). See Peck v. Barnhart, 214 Appx. 730, 2006 WL 3775866, at 3 (10th
Cir. Dec. 26, 2006) (unpublished op.) (noting that at “full scale score of 70 under the
WAIS-III . . . [met] the valid IQ score requirement for Listing 12.05(C)). And at step
two, the ALJ’s finding of severe impairments satisfy the requirement for “a physical or
other mental impairment imposing an additional and significant work-related limitation
of function.” See id. at 3-4 (noting that “severe” impairments at step two satisfy the
“significant limitation of function” portion of Listing 12.05(C)); 20 C.F.R. Part 404,
Subpart P, Appendix 1, § 12.00 (stating that a “severe” impairment as defined in 20
C.F.R. § 416.920(c) will be found to impose an “additional and significant work-related
limitation of function” as set forth in Listing 12.05(C)).

6

At step three, the ALJ committed legal error by not discussing the IQ scores or
Dr. Englander’s diagnosis of mild mental retardation. (TR. 28). The Commissioner
apparently concedes the error as she agrees that Ms. Lancaster met the severity prong
for Listing 12.05(C). (ECF 26:7). But as discussed, Ms. Lancaster had to meet all of the
criteria in Listing 12.05(C) to be considered presumptively disabled. In addition to the
severity prong, Plaintiff had to meet Listing 12.05(C)’s capsule definition which requires
a showing of “significantly subaverage general intellectual functioning with deficits in
adaptive functioning initially manifested during the developmental period.” Listing
12.05. The ALJ committed legal error by failing to discuss and explain his apparent
rejection of the capsule definition at step three. (TR. 28); Clifton v. Chater, 79 F.3d at
1009 (requiring the ALJ to “discuss the evidence and explain why he found that [a
claimant] was not disabled at step three”).
The parties disagree over whether the error was harmless. The Court concludes
that it was not.
In Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004), the Tenth Circuit
Court of Appeals defined its allowance of harmless error in the context of Social
Security cases. The Court stated: “it nevertheless may be appropriate to supply a
missing dispositive finding under the rubric of harmless error in the right exceptional
circumstance, i.e., where, based on the material the ALJ did at least consider (just not
properly), the court could confidently say that no reasonable administrative factfinder,
following the correct analysis, could have resolved the factual matter in any other way.”

7

The Court continued its discussion and expressed concern in applying harmless error,
stating:
Two considerations counsel a cautious, if not skeptical, reception to this
idea. First, if too liberally embraced, it could obscure the important
institutional boundary preserved by Drapeau's admonition that courts
avoid usurping the administrative tribunal’s responsibility to find the facts.
Second, to the extent a harmless-error determination rests on legal or
evidentiary matters not considered by the ALJ, it risks violating the
general rule against post hoc justification of administrative action
recognized in SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed.
626 (1943) and its progeny.

Id.
In Fischer-Ross v. Barnhart, 431 F.3d 729, 734 (10th Cir. 2005), the Tenth
Circuit applied Allen in the context of listed impairments, and held that an error at step
three is harmless if “confirmed or unchallenged findings made elsewhere in the ALJ’s
decision confirm the step three determination under review.” Thus, under Allen and

Fischer-Ross, the ALJ’s failure to discuss the capsule definition at step three may be
harmless if the ALJ concluded elsewhere in the decision that Plaintiff had not satisfied
this requirement.
At step four, the ALJ acknowledged Dr. Englander’s examination of Ms.
Lancaster, and discussed several of the psychologist’s findings. (TR. 31). However, the
ALJ neither mentioned Dr. Englander’s diagnosis of mild mental retardation, nor the
numeric values of the IQ scores, only referencing them as “low.” (TR. 31). In his
discussion, the ALJ suggested that the capsule definition had not been met when he
stated:

8

Despite her low IQ scores, the claimant has demonstrated significant
ability in adaptive functioning, to-wit: she was self-employed mechanic
since age 15, drives, cooks, and quit the 12th grade to work, not due to
academic difficulties.
(TR. 31). If these findings conclusively prove that Plaintiff had not satisfied the capsule
definition, then any error at step three would be harmless.
The Commissioner defends the ALJ’s error as harmless, arguing a lack of
evidence that Plaintiff met the capsule definition before age 22. But the ALJ did not
reject the capsule definition based on such a finding. (TR. 31). Instead, the ALJ stated
that Plaintiff had “demonstrated significant ability in adaptive functioning” based on her
prior work as a mechanic and her daily activities. (TR. 31). To find that the capsule
definition had not been met based on the timing of when Ms. Lancaster’s mental
impairment may have manifested would violate the two cautionary principles outlined in

Allen—it would: (1) usurp the duty of the ALJ to have made that finding in the first
instance and (2) require an impermissible post-hoc analysis. This the Court will not do.
Arguing against a harmless-error analysis, Ms. Lancaster contends: (1) the ALJ
ignored Dr. Englander’s diagnosis of mild mental retardation which provides conclusive
evidence that the capsule definition had been met and (2) the ALJ improperly relied on
the mechanic job and daily activities as evidence that she did not meet the capsule
definition. Ms. Lancaster’s first argument has merit, and the Court need not discuss the
remaining contention.
According to Plaintiff, Dr. Englander’s diagnosis of mild mental retardation was
based on the definition of that impairment as listed in the Diagnostic and Statistical

9

Manual of Mental Disorders, 4th ed.; text revision, 2000 (DSM-IV-TR). Under that
manual’s definition, an individual meets the criteria for mild mental retardation if, before
age 18, she has an IQ between 55 and 70 with “deficits or impairments in present
adaptive functioning . . . in at least two of the following areas: communication, self-care,
home living, social/interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, health, and safety.” DSM-TR-IV. Therefore,
Plaintiff argues that Dr. Englander’s diagnosis provides conclusive proof that the capsule
definition had been met, as it requires “significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during the
developmental period; i.e., . . . before age 22.” Listing 12.05.
SSA regulations do not provide express criteria to determine the type or degree
of deficit that the capsule definition requires. However, in 2002, the SSA stated that the
capsule definition for Listing 12.05 “is consistent with, if not identical to, the definitions
of [mental retardation] used by . . . [t]he four major professional organizations in the
United States that deal with [mental retardation].” Technical Revisions to Medical
Criteria for Determinations of Disability, 67 Fed. Reg. 20,018, 20,022 (Apr. 24, 2002).
The SSA further stated that determination of the capsule definition “allow[s] the use of
any of the measurement methods recognized and endorsed by the professional
organizations.” Id.
Thus, Dr. Englander’s diagnosis of mental retardation under the DSM-IV-TR may
have provided conclusive evidence that Ms. Lancaster had met the capsule definition.
On the other hand, the ALJ may have legitimately found otherwise by utilizing a

10

different, yet allowable, measurement method. But the Court cannot deem the step
three errors as harmless by upholding the step four analysis because: (1) the ALJ
ignored Dr. Englander’s diagnosis and (2) the ALJ never stated which method he had
used to gauge whether the capsule definition had been met. Had he identified a
standard and discussed Dr. Englander’s diagnosis, the Court would be able to determine
whether the ALJ’s analysis at step four was sufficient. But the ALJ fails to do either and
the errors warrant remand.
The Tenth Circuit Court of Appeals reached the same conclusion in Barnes v.

Barnhart, 116 Fed. Appx. 934 (10th Cir. Nov. 26, 2004) (unpublished op.). In Barnes,
the plaintiff claimed that the ALJ had erred at step three in rejecting a finding of
presumptive disability under Listing 12.05(C). The ALJ discussed Listing 12.05(C), but
rejected the listing because the “adaptive functioning” portion of the capsule definition
had not been met. Id. at 939. The ALJ stated:
[The claimant’s] impairment does not comply with the “capsule” definition
paragraph of the Listing. It requires that her impairment be a
“significantly subaverage general intellectual functioning with deficits in
adaptive behavior initially manifested during the developmental period
(before age 22).[”] Assessment of her usual daily activities, her social life,
and her educational life fails to reveal such deficits in adaptive behavior.
The claimant maintains neatness and grooming, cares for her children.
She went to school to the 10th grade and left to be married, not for
educational reasons. The dissolution of her marriage was due to her
husband's violation of his vows, and was not due to her own deficits.

Id.

11

On appeal, the Commissioner argued that the plaintiff had failed to show deficits
in adaptive functioning. Id. at 940. But the Court found legal error in the ALJ’s analysis
of whether Plaintiff had met the capsule definition. The Court stated:
The Commissioner publicly announced in April 2002 that there are at least
four possible definitions of “deficits in adaptive functioning”-from the four
major professional organizations dealing with mental retardation. . . . The
ALJ in this case, however, essentially improvised his own definition for
“deficits in adaptive functioning,” . . . . Legally, his analysis does not
comply with the Commissioner’s (subsequent) 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. For these reasons, the case must be remanded, and the ALJ
must identify which standard he has selected so that this court will be
able to provide a meaningful review if there is a second appeal[.]

Id. at 940, 942 (internal citation omitted).
Barnes v. Barnhart is persuasive. Dr. Englander’s diagnosis was based on a
definition from one of the “four major professional organizations dealing with mental
retardation.” Like in Barnes, the ALJ here seemed to adopt his own standard for
determining whether the capsule definition had been met. But in the absence of a
recognized measurement method from the ALJ, it is impossible to determine whether
Dr. Englander’s diagnosis provided conclusive proof that the capsule definition had been
met. As in Barnes, the ALJ there committed legal error and remand is warranted. See

Sanders v. Colvin, 2015 WL 1357925 at 5 (W.D. Okla. Mar. 24, 2015) (unpublished op.)
(“Because the ALJ appeared to use an ad hoc rather than a medically accepted
standard for [assessing the capsule definition], and did not articulate the standard that
was used, this Court is left in the same position as in Barnes, which is persuasive here,
and must remand on that basis.”).

12

VI.

CONCLUSION
The ALJ erred at step three by finding that the severity prong of Listing 12.05

had not been met. The Commissioner concedes the error in light of Dr. Englander’s IQ
test results. For two reasons, the Court is not persuaded that the error is harmless.
First, the ALJ failed to articulate a recognized method of assessing the capsule
definition. Second, the ALJ failed to discuss Dr. Englander’s diagnosis of mild mental
retardation which may have conclusively proved that the capsule definition had been
met. On remand, the ALJ must: (1) choose a standard measurement method consistent
with the SSA’s directive, (2) evaluate whether Dr. Englander’s diagnosis of mild mental
retardation is sufficient to meet the capsule definition of Listing 12.05, and (3) make
specific findings to support the step three determination.
ORDER
Having reviewed the medical evidence of record, the transcript of the
administrative hearing, the decision of the ALJ, and the pleadings and briefs of the
parties, the undersigned magistrate judge REVERSES the Commissioner’s decision and
REMANDS for further administrative development.
ENTERED on February 19, 2016.

13