Riley v. Commissioner of Social Security Administration

Filing 22

OPINION AND ORDER. The decision of the Commissioner is reversed and the case remanded for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). Signed by Honorable Charles Goodwin on 03/21/2019. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHELSEA D. RILEY,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Case No. CIV-17-985-G

OPINION AND ORDER
Plaintiff Chelsea D. Riley 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 (“SSA”) denying Plaintiff’s applications for supplemental security income
(“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Upon review
of the administrative record (Doc. No. 10, hereinafter “R. _”),1 and the arguments and
authorities submitted by the parties, the Court reverses the Commissioner’s decision and
remands the case for further proceedings.
PROCEDURAL HISTORY AND ADMINISTRATIVE DECISION
Plaintiff protectively filed her SSI application on October 10, 2013, alleging
disability beginning September 8, 1998. R. 15, 314-20. Following denial of her application
initially and on reconsideration, several hearings were conducted before an administrative

With the exception of the administrative record, references to the parties’ filings use the
page numbers assigned by the Court’s electronic filing system.
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law judge (“ALJ”). R. 42-88, 89-95, 96-131, 132, 141. The ALJ issued an unfavorable
decision on July 27, 2016. R. 12-41.
The Commissioner uses a five-step sequential evaluation process to determine
entitlement to disability benefits. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009);
20 C.F.R. § 416.920. At step one, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since she had filed her application on October 10, 2013. R. 17. At step two,
the ALJ determined that Plaintiff had the medically determinable impairments of: history of
hydrocephalus with ventriculoperitoneal shunt placement with multiple revisions; asthma and
various allergies; degenerative disc disease; multiple arthralgias, with complaint of hip and
shoulder pain, status post right shoulder surgery in 2011; headaches; history of extraocular
muscle surgery at the age of five, with residual absence of depth perception; pain disorder
with psychological components; cognitive disorder; and expressive language disorder. R. 1727. The ALJ found that these impairments were severe “singly and/or in combination.” R.
17. At step three, the ALJ found that Plaintiff’s condition did not meet or equal any of the
presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the
“Listings”). R. 27-29.
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on all of
her medically determinable impairments. R. 29-33. The ALJ found:
[Plaintiff] has the [RFC] to perform light work as defined in 20 CFR 416.967(b)
except that [Plaintiff] is further limited to frequent stooping, kneeling,
crouching, crawling, balancing, and climbing of ramps, stairs, ladders, ropes
and scaffolds, as well as limited to frequent use of the right upper extremity for
reaching overhead. [Plaintiff] also should not perform tasks requiring depth
perception. In addition, [Plaintiff] should avoid more than occasional exposure
to extreme heat, cold, vibration, as well as occasional exposure to pulmonary
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irritants. [Plaintiff] also should avoid more than occasional exposure to
workplace hazards, such as unprotected heights and dangerous moving
machinery. [Plaintiff] also is limited to performing simple and routine task[s]
consistent with unskilled work, with learning of task[s] provided through verbal
instruction and demonstration.
R. 29. At step four, the ALJ found that Plaintiff had no past relevant work. R. 33.
At step five, the ALJ considered whether there are jobs existing in significant
numbers in the national economy that Plaintiff—in view of her age, education, work
experience, and RFC—could perform. R. 34-35. Relying upon testimony provided by a
vocational expert (“VE”) at the third hearing regarding the degree of erosion to the
unskilled light occupational base caused by Plaintiff’s additional limitations, the ALJ
concluded that Plaintiff could perform unskilled light occupations such as basket filler,
laundry bagger, and night cleaner, and that such occupations offer jobs that exist in
significant numbers in the national economy. R. 34-35.
The ALJ therefore concluded that Plaintiff had not been disabled within the meaning
of the Social Security Act during the relevant period. R. 35. Plaintiff’s request for review
by the SSA Appeals Council was denied, and the unfavorable determination of the ALJ
stands as the Commissioner’s final decision. See R. 1-5; 20 C.F.R. § 416.1481.
STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is limited to determining
whether factual findings are supported by substantial evidence in the record as a whole and
whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169 (10th
Cir. 2009). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th
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Cir. 2003) (internal quotation marks omitted). “A decision is not based on substantial
evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla
of evidence supporting it.” Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004)
(internal quotation marks omitted). The court “meticulously examine[s] the record as a
whole,” including any evidence “that may undercut or detract from the ALJ’s findings,”
“to determine if the substantiality test has been met.” Wall, 561 F.3d at 1052 (internal
quotation marks omitted). While a reviewing court considers whether the Commissioner
followed applicable rules of law in weighing particular types of evidence in disability
cases, the court does not reweigh the evidence or substitute its own judgment for that of
the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
ANALYSIS
Plaintiff raises several challenges to the denial of benefits, including the ALJ’s
failure to conduct a proper analysis and provide substantial evidence for her step-three
finding. See Pl.’s Br. (Doc. No. 15) at 6-7, 12-13; Pl.’s Reply (Doc. No. 20) at 7-8. Because
the Court concludes that remand is required by the ALJ’s errors at step three, this decision
does not address the additional challenges, as they “may be affected by the ALJ’s treatment
of this case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
A. The ALJ’s Step-Three Determination
At step three, the determination is made whether an impairment or combination of
impairments is “equivalent to one of a number of listed impairments that the Commissioner
acknowledges are so severe as to preclude substantial gainful activity.” Lax v. Astrue, 489
F.3d 1080, 1085 (10th Cir. 2007) (alteration and internal quotation marks omitted). “If the
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impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled
to benefits.” Id. (internal quotation marks omitted).
As noted above, the ALJ at step three determined that Plaintiff had no impairment
or combination of impairments that met or medically equaled the severity of one of the
Listings. R. 27-29; see 20 C.F.R. pt. 404, subpart P app. 1. Relevant here, the ALJ stated
that she considered Listing 12.05 but found that the “‘paragraph C’ criteria” of that Listing
“are not met because [Plaintiff] 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.” R. 29; see 20 C.F.R. pt. 404, subpart P
app. 1, § 12.05(C) (2016).2
B. Discussion
Plaintiff challenges the ALJ’s determination that Plaintiff does not meet the criteria
of Listing 12.05C for intellectual disability. See Pl.’s Br. at 6-7, 12-13; Pl.’s Reply at 7-8.
“Listing 12.05 contains an introductory paragraph with the diagnostic description for
intellectual disability. It also contains four sets of criteria (paragraphs A through D).” 20
C.F.R. pt. 404, subpart P app. 1, § 12.00(A). Under the Listing, if a claimant’s impairment
satisfies the diagnostic description (the “capsule definition”) and any one of the four sets
of severity criteria, the claimant is presumptively disabled. See id.; Lax, 489 F.3d at 1085.
Thus, to establish disability under Listing 12.05C, a claimant must show that he or she (a)

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Although Listing 12.05 has since been significantly revised, the Court uses the version
that was in effect at the time of the ALJ’s decision. See Chapo v. Astrue, 682 F.3d 1285,
1291 n.5 (10th Cir. 2012).
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meets Listing 12.05’s capsule definition of “[i]ntellectual disability,” i.e., that he or she has
“significantly subaverage general intellectual functioning with deficits in adaptive
functioning” that began “before age 22”; (b) has been assigned a “valid verbal,
performance, or full scale IQ of 60 through 70”; and (c) has “a physical or other mental
impairment imposing an additional and significant work-related limitation of function.” 20
C.F.R. pt. 404, subpt. P app. 1, §§ 12.05, 12.05(C); see Barnes v. Barnhart, 116 F. App’x
934, 939 (10th Cir. 2004).
1. Specific Criteria
(a) Capsule Definition
Plaintiff correctly notes that the ALJ entirely failed to discuss the first Listing
12.05C criterion: the capsule definition. See Pl.’s Reply at 7. Defendant acknowledges
that to be the case but argues that the omission is immaterial because Plaintiff could not
meet the capsule definition in any event, as Plaintiff “was not diagnosed with intellectual
disability” and did not have “significantly subaverage general intellectual functioning with
deficits in adaptive functioning” that began “before age 22.” Def.’s Br. at 14; 20 C.F.R.
pt. 404, subpart P app. 1, § 12.05.
The Listing does not require a definitive diagnosis of intellectual disability,
however. See 20 C.F.R. pt. 404, subpart P app. 1, § 12.05(C); cf. Revised Medical Criteria
for Evaluating Mental Disorders, 81 Fed. Reg. 66138, 66150 (Sept. 26, 2016) (“[O]ur
mental disorders listings are function-driven, not diagnosis-driven.”). And regarding the
requirement of “significantly subaverage general intellectual functioning with deficits in
adaptive functioning” beginning “before age 22,” the Tenth Circuit has rejected the
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proposition that an ALJ’s decision should be upheld, despite a failure to properly discuss
this issue, based on a reviewing court’s own finding of a lack of evidence that the claimant
meets the capsule definition. See Peck v. Barnhart, 214 F. App’x 730, 736 (10th Cir. 2006)
(“The Commissioner’s argument ignores our ruling in Clifton where we held that we can
only review ALJ decisions that make specific findings on the facts of the case. If [the
claimant] does not meet the capsule definition, then the ALJ must make that determination
in the first instance.” (citing Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996));
DeJarnett v. Colvin, No. CIV-15-721-CG, 2016 WL 4998524, at *4 (W.D. Okla. Sept. 19,
2016) (citing Peck).
In short, the ALJ’s decision does not adequately address whether Plaintiff met the
capsule definition and the Court may not independently supply the missing analysis.
“Failure to apply the correct legal standard or to provide this court with a sufficient basis
to determine that appropriate legal principles have been followed is grounds for reversal.”
Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984) (internal quotation marks omitted);
see Clifton, 79 F.3d at 1009 (holding that ALJ’s “bare conclusion [was] beyond meaningful
judicial review” and that ALJ was required to “explain why he found that [the claimant]
was not disabled at step three”).
(b) Qualifying IQ Score
Plaintiff argues that the ALJ failed to properly evaluate a verbal-testing score
received by Plaintiff in December 2015, specifically a Psychological Report issued by R.
Keith Green, PhD. See Pl.’s Br. at 13; R. 710-19 (Exhibit 16F). In this Psychological
Report, Dr. Green states that he administered the Wechsler Adult Intelligence Scale-IV
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(“WAIS-IV”) test to Plaintiff and that Plaintiff obtained a Verbal Comprehension score of
70, which ranks at the 2nd percentile—i.e., Plaintiff performed better than two percent or
less of other test-takers. R. 712. Dr. Green also noted that Plaintiff “demonstrated
significantly better developed nonverbal reasoning abilities than verbal reasoning abilities”
and displayed “[r]elative weaknesses” in “word fluency and word knowledge, as well as
general fund of knowledge and abstract reasoning.” R. 712. Defendant does not dispute
that Plaintiff’s WAIS-IV Verbal Comprehension score constituted a verbal IQ score that
qualifies for the second criterion of Listing 12.05C. See Def.’s Br. (Doc. No. 17) at 14 n.2;
see also DeJarnett, 2016 WL 4998524, at *3.
(c) Other Impairment
Defendant also does not dispute that Plaintiff met the third criterion of Listing
12.05C because Plaintiff had “another severe impairment.” Def.’s Br. at 14 n.2; see Hinkle
v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997).
2. Harmless Error
The ALJ’s failure to properly evaluate Plaintiff’s alleged intellectual disability at
step three cannot be excused as harmless, as Defendant argues, because Defendant has
pointed to “no ‘confirmed or unchallenged findings made elsewhere in the ALJ’s decision’
that ‘conclusively negate the possibility’ that [Plaintiff] can meet Listing 12.05C.”
DeJarnett, 2016 WL 4998524, at *4 (emphasis added) (quoting Murdock v. Astrue, 458 F.
App’x 702, 704 (10th Cir. 2012)). Although the ALJ noted Plaintiff’s “low average” fullscale IQ score, the ALJ also found that Plaintiff suffers from both “cognitive disorder” and
“expressive language disorder.” R. 17, 25-26, 712. “Moreover, the record contains
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evidence that [Plaintiff] suffers at least some amount of deficit in areas of adaptive
functioning.” DeJarnett, 2016 WL 4998524, at *4; see, e.g., R. 347, 349 (Plaintiff, who
was 16 years old when she filed her SSI application, reporting that she has problems
completing tasks, concentrating, and understanding and following spoken instructions),
402 (transcript showing that Plaintiff received failing grades in the ninth grade), 711 (Dr.
Green finding that Plaintiff had an “[i]mpaired capacity for retaining new learning”).
The Court could not find that Plaintiff fails to meet the Listing 12.05C criteria, and
specifically the capsule definition, without engaging in impermissible speculation and
factfinding. See Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007) (noting that
where an ALJ “did not provide” the Commissioner’s proffered explanations, the court
“may not create or adopt” such “post-hoc rationalizations to support the ALJ's decision”).
3. Summary
The medical evidence undisputedly shows that Plaintiff met the IQ-score and the
other-severe-impairment criteria of Listing 12.05C. And the ALJ’s failure to address the
capsule definition leaves the Court unable to review whether that criterion was met. For
these reasons, remand is required. See Peck, 214 F. App’x at 735-37; Murdock, 458 F.
App’x at 703-05; DeJarnett, 2016 WL 4998524, at *4.
CONCLUSION
The decision of the Commissioner is reversed and the case remanded for further
proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). A separate judgment
shall be entered.

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IT IS SO ORDERED this 21st day of March, 2019.

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