Guyer v. Berryhill

Filing 18

MEMORANDUM (Order to follow as separate docket entry)For the reasons addressed above, this case will be remanded to the Commissioner for further proceedings to clarify: (1) what standard was used to assess Plaintiffs deficits in adaptive functioning in the context of Listing 12.05; and (2) whether these deficits manifested before Plaintiff reached the age of 22. An Order consistent with the foregoing will be issued contemporaneously. Signed by Honorable Richard P. Conaboy on 11/13/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Brian Lynn Guyer,

:
: CIV. No. 3:17-cv-00609
Plaintiff,
:
:(Judge Richard P. Conaboy)
v.
:
:
Nancy A. Berryhill,1
:
Acting Commissioner
:
of Social Security
:
:
:
Defendant,
:
:
:
:
___________________________________________________________________
MEMORANDUM
I.Background
We consider here Plaintiff’s appeal from an adverse decision
of the Social Security Administration (“SSA” or “Agency”) on his
application for Disability Insurance Benefits (”DIB”) and
Supplemental Security Income (“SSI”). Plaintiff’s application
alleged that he became disabled on January 1, 2012. His claim was
initially denied at the administrative level and, after being

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure which addresses the substitution of parties when a
public officer is replaced, Nancy A. Berryhill should be substituted for Acting Commissioner
Carolyn W. Colvin as the defendant in this suit. Fed. R. Civ. P. 25 (d). No further action needs to 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. Section 405(g), which states that “[a]ny action instituted in accordance with this
subsection shall survive notwithstanding any change in the person occupying the office of
Commissioner of Social Security or any vacancy in such office.”

granted a hearing before an administrative law judge (“ALJ”),
denied again by a written decision dated August 31, 2015. The
Appeals Council denied Plaintiff’s request for review on February
8, 2017. The Appeals Council’s action constituted a “final
decision” by the Agency and vests this Court with jurisdiction over
this matter pursuant to 42 U.S.C. § 405 (g) and 42 U.S.C. § 1383
(c)(3). The parties have briefed the issues (Docs. 15, 16, and 17)
and this case is ripe for disposition.
II. Testimony Before the ALJ.
Plaintiff’s hearing before the ALJ was conducted on February
23, 2015. Plaintiff was represented by Atty. Kelly Anne Perry. In
addition to Plaintiff’s testimony, testimony was taken from Tim
Mahler, a vocational expert.
Plaintiff stated that he lived with his grandfather in
Huntingdon, Pennsylvania; that he was 29 years old on the date of
the hearing; that he had one child aged three years; that he
graduated from high school but had experienced difficulty with
math, reading and writing; and that he experiences difficulty
reading the newspaper. (R.52-54).
Plaintiff recounted his work history. He testified that he had
worked at Wal-Mart in 2008 and 2009 as a paint mixer. He testified
that he would simply type the number of the paint ordered by a

customer and the machine would do the rest. The Plaintiff recalled
that in his job at Wal-Mart he lifted no more than ten pounds at
any time. (R.54).
Plaintiff then stated that he had worked as an egg crater at
Farmer’s Pride in 2006 and 2007. His job there consisted of placing
eggs in a crate and then placing the crate in an incubator. The job
at Farmer’s Pride did not require Plaintiff to lift more than
fifteen pounds. (R. 54-555).
From 2003 to 2006 Plaintiff worked as a trash collector for
Parks Garbage Service. On that job Plaintiff had to lift up to
fifty pounds at times. When very heavy objects were encountered
plaintiff would lift them with the assistance of a co-worker.
(R.55).
Plaintiff stated that he stopped working at Wal-Mart in 2009
because he “started getting pain and stuff in my back.” He stated
further that he no longer supports himself and that he receives
food stamps and health insurance through “the assistance office”.
He testified also that he had a driver’s license and that he drove
45 minutes to arrive at the hearing. (R.55-56).
Plaintiff sees family doctors at Broad Top Medical including
Dr. Noah Schmuckler. He has seen Dr. Schmuckler “a lot” in the
month preceding the hearing. Dr. Schmuckler was treating him for
3

pneumonia and he was also seeing a Dr. Silvis in Hershey regarding
a possible hip surgery. (R. 56-58).
Plaintiff stated that he could walk about one block on a level
surface before he would need to stop and rest. His hip would start
“going out” at that point. He has fallen against walls several
times because of his hip problem. He takes Percocet for his pain as
needed and typically needs Percocet “every couple of days.” He
estimates that he can comfortably lift and carry about 20 pounds.
If he lifted more than 20 pounds he would experience back and hip
pain. He also estimates that he can sit for approximately 45
minutes before he would need to change positions and get up to move
around. He also estimates that he is capable of standing in one
position on a level surface for about 45 minutes. After 45 minutes
he would need to “sit down and relax.” (R. 58-6c).
Asthma has been a persistent problem for the Plaintiff. He
takes asthma medication daily. He does not have a nebulizer at home
and has not seen a respiratory specialist. He is scheduled to have
an MRI on his hip and has also been diagnosed with attention
deficit hyperactive disorder (“ADHD”). He takes 20 milligrams of
Paroxetine daily to help control his ADHD but still experiences
restlessness and anxiety. He takes unspecified medications
prescribed by his family doctor for anxiety and depression. They

help keep him “calmed down”. He denies side effects from these
medications. His biggest problem, by his own estimation, is his hip
problem. The hip problem is the biggest obstacle to his ability to
maintain full-time employment. (R. 60-62).
Plaintiff’s daily regimen does not consist of much physical
activity. He runs the sweeper every few days, sometimes does
grocery shopping to an unspecified extent, and does none of the
cooking in his abode.
He sometimes visits and socializes with family and friends to
“talk and stuff.” He plays no sports and does not use video games.
He last went to a restaurant about a month earlier. He stated that
he does experience difficulty being out in public if a lot of
people are around him. Being in that type of environment affects
him badly. (R. 62-64).
Upon questioning by his attorney, Plaintiff revealed that he
has a weak heart muscle and had been prescribed unspecified
medications for that problem. He experiences “bad” chest pains on a
daily basis. When these pains come on he will lie down, take his
medicine, and try to forget about it. Walking makes his chest pains
worse. He also related that he has an enlarged liver and reiterated
his anxiety problem when in large groups of people. He takes a
medication to help him relax and fall asleep. He typically gets
5

about 5 hours of sleep each night. He is frequently tired during
the day and every 3 days or so it will “catch up” to him.
Approximately 3 times each day he must lie down and try to relax
for 45 minutes to combat his chest and hip pain. He does not
believe that he can get through an entire workday without lying
down. He thinks that even if he was able to sit or stand at a job
as needed he would not be able to perform that job unless he was
allowed to periodically lie down. (R. 64-67).
Also testifying was Tim Mahler, a vocational expert whose
expertise was stipulated to by Plaintiff’s counsel. Mr. Mahler
indicated that he had reviewed Plaintiff’s work history and was
familiar with his past relevant work as a paint mixer, an egg
crater, and a garbage collector. Mr. Mahler stated that the paint
mixer position was “light, semiskilled” work; the egg crater
position was “light, unskilled” work; and the garbage collector
position was “very heavy, unskilled” work.
Mr. Mahler was asked to respond to a hypothetical question
from the ALJ that asked him to assume a person of the same age,
educational level, and work background as the Plaintiff who was
able to: lift and carry 20 pounds occasionally and ten pounds
frequently; stand and walk 6 hours of an 8 hour work day with up to
6 hours of seated work with occasional left lower extremity pedal

operation; occasionally bend, balance, stoop, kneel, crouch and
crawl; and no exposure to ladders, ropes, scaffolds, extreme cold
or humidity, pulmonary irritants, unprotected heights, or dangerous
machinery. The hypothetical question also limited work to simple,
routine tasks that would not involve fast-paced quotas or more than
occasional interaction with the public, coworkers, or supervisors.
Mr. Mahler stated that, based upon the criteria in the hypothetical
question, the only job the Plaintiff had ever held within those
criteria was the egg crater position. Mr. Mahler indicated that
other jobs in the national economy within the limitations imposed
by the hypothetical question existed, including laundry folder,
sorters, and inspector/checkers. Each of these jobs also fall
within the classification of “light, unskilled”.
Mr. Mahler also testified that, in order to retain any full
time employment, a worker needs to be productive or “on task” at
least 90% of the time not allocated to scheduled work breaks. Mr.
Mahler stated unequivocally that being on task less than 90% of the
time or habitually missing work more than one day per month would
result in termination of employment. Mr. Mahler also stated that
his opinions were consistent with the Dictionary of Occupational
Titles and its supplements.

7

III. Medical Evidence
A. Dr. Noah Schmuckler
Dr. Schmuckler was Plaintiff’s family physician from May of
2013 through at least February of 2015. In January of 2015 Dr.
Schmuckler executed both a Mental Capacity Assessment and a
Residual Functional Capacity Questionnaire regarding the Plaintiff.
Dr. Schmuckler’s Mental Capacity Assessment indicated that
Plaintiff had “slight” limitations in: the ability to remember
locations and work procedures; the ability to remember and
understand very short and simple instructions; the ability to
perform activities within a schedule, maintain regular attendance,
and be punctual with customer tolerances; the ability to sustain an
ordinary routine without special supervision; and the ability to
ask simple questions or request assistance.2 Plaintiff had
“moderate” limitations in: the ability to understand and remember
detailed instructions; the ability to carry out detailed
instructions; the ability to maintain attention and concentration
for extended periods; the ability to make simple work related
decisions; the ability to interact appropriately with the general
public; the ability to accept instructions and respond

2

“Slight” impairment in the context of the Mental Capacity Assessment means: “There is
some mild limitation in this area but the individual can generally function satisfactorily.”

appropriately to criticism from supervisors; the ability to respond
appropriately to changes in the work setting; the ability to be
aware of normal hazards and take appropriate precautions; the
ability to travel in unfamiliar places or use public
transportation; and the ability to set goals or make plans
independently of others.3 Plaintiff had “marked” limitations in:
the ability to work in coordination with or in proximity to others
without being distracted by them; the ability to complete a normal
workday without interruptions from psychologically based symptoms;
and the ability to perform any consistent pace with a standard
number of rest periods.4 Plaintiff had “extreme” limitations with
respect to the ability to complete a normal work week without
interruptions from psychologically based symptoms.5 Dr. Schmuckler
also indicated that Plaintiff had no limitation in his ability to:
carry out short and simple instructions; get along with coworkers
without exhibiting behavioral extremes; and the ability to maintain
socially appropriate behavior and basic standards of neatness and
cleanliness.

3

“Moderate” impairment in the context of the Mental Capacity Assessment means: “The
individual will have intermittent difficulty performing in this area. The individual can generally
perform satisfactorily in this area but not always.”
4
“Marked” impairment in the context of the Mental Capacity Assessment means: “There is
serious limitation in his area. The individual cannot generally perform satisfactorily in this area.”
5
“Extreme” limitations in the context of the Mental Capacity Assessment means: “There is
major limitation in this area. There is no useful ability to function in this area.”
9

Dr. Schmuckler also found, based on his interviews of the
Plaintiff and his reported work history, that he would likely miss
4 or more days of work each month. Finally, Dr. Schmuckler noted
that Plaintiff could manage benefits in his best interest and had
experienced no difficulty with impulse buying or managing his
finances. (R. at 931-934).
Dr. Schmucker also addressed Plaintiff’s physical limitations in
a Residual Functional Capacity Questionnaire. In that document he
indicated (on January 9, 2015) that he had been Plaintiff’s family
physician for approximately one year and that he had diagnosed
Plaintiff with left hip pain due to a congenital deformity, heart
disease, and asthma/COPD. His prognosis was “life long impairment”.
He identified Plaintiff’s systems as hip pain, shortness of breath,
dizziness, and fatigue upon minimal exertion.
Dr. Schmuckler indicated also that Plaintiff’s symptoms would
“constantly” be severe enough to interfere with the concentration
necessary to perform simple work-related tasks. Dr. Schmuckler
stated that side effects from Plaintiff’s medications included
sedation and nausea and that these side effects would impact his
capacity to work.
Dr. Schmuckler indicated further that Plaintiff would need to
recline or lie down for some unspecified time beyond normal work

breaks each day. Dr. Schmuckler also estimated that Plaintiff: can
walk less than one city block without needing to rest; can sit for
no more than 5 minutes at a time and for a total of no more than
one hour in an 8 hour work day; can stand or walk for no more than
15 minutes at a time and no more than 3 hours in an 8 hour workday;
would require a sit/stand option in order to work; would require a
30 minute break every 5 to 15 minutes; can occasionally lift up to
50 pounds; has no limitation with respect to grasping or twisting
objects or with fine manipulation but has no ability to repeatedly
reach with his arms; is not a malinger but, nonetheless, could be
expected to miss work more than 4 times each month; and was
physically incapable of maintaining any full time employment on a
sustained basis. (R. at 935-36)
B. Dr. Andrew Cole
Dr. Andrew Cole is a Doctor of Psychology who saw Plaintiff
for a consultative examination on June 9, 2015. Dr. Cole noted that
Plaintiff had driven unaccompanied to his appointment a distance of
some 51 miles. Plaintiff reported periods of depression, social
withdrawal, and uneasiness in large groups. Dr. Cole described
Plaintiff’s demeanor as cooperative and assessed that he related
adequately. Dr. Cole also assessed Plaintiff as well groomed with
normal posture, motor behavior, and eye contact. Plaintiff’s speech
11

was fluent and clear but his receptive language skills appeared
under-developed for his age. His thought processes were coherent
and goal directed and his mood was euthymic.
Dr. Cole stated that Plaintiff’s attention and concentration
were “mildly to moderately impaired due to limited intellectual
functioning.” Plaintiff’s recent and remote memory skills were
regarded to be in the “deficient range” and his fund of information
was “somewhat limited”. His insight and judgment were both assessed
as “fair”. Plaintiff appeared relax and comfortable during the
evaluation and his attention and concentration were “adequate”. Dr.
Cole administered the WAIS-IV Test and determined that Plaintiff’s
full scale IQ was 65, a score in the extremely low range. Dr.
Cole’s diagnoses were: mild intellectual disability; unspecified
depressive disorder; and unspecified anxiety disorder.
Dr. Cole completed a Medical Source Statement regarding
Plaintiff’s mental capacity. He assessed that Plaintiff had: “mild
impairment” in his ability to understand simple instructions; his
ability to carry out simple instructions; and the ability to make
judgment on simple work-related decisions; had “moderate”
impairment in his ability to interact appropriately with
supervisors and co-workers; and had “marked” impairment in his
ability to interact with the general public and in responding

appropriately to changes in a routine work setting. (R. at 985992).
C. Dr. Jennifer Hartley
Dr. Jennifer Hartley, Doctor of Psychology, saw Plaintiff on
referral from the SSA on November 10, 2011. After taking a history
from Plaintiff, Dr. Hartley observed the Plaintiff was well groomed
and had appeared for his appointment in weather appropriate
clothing. She found him to be alert and fully oriented and found
that he was a good historian in relating his personal background.
She experienced no difficulty communicating with Plaintiff and
assessed his basic attention to be “intact”. Dr. Hartley found
Plaintiff’s concentration to be “inefficient” and that his
cognitive functioning was “below average”. Plaintiff maintained
good eye contact, responded to questions with “adequate
comprehension”, and displayed euthymic affect. He was “generally
pleasant and cooperative throughout the interview.”
On the basis of her one encounter with Plaintiff, Dr. Hartley
diagnosed Plaintiff with learning disorder not otherwise specified,
borderline intellectual functioning, and serious learning
difficulties. She assigned a Global Assessment of Function Score of
52. (R. at 474-76).

13

IV.

ALJ Decision
The ALJ’s decision (Doc. 14-2 at 22-38) was unfavorable to the
Plaintiff. It included the following Findings of Fact and
Conclusions of Law:
1. The claimant meets the insured status requirements
of the Social Security Act through March 31, 2014.

2. The claimant has not engaged in substantial
gainful activity since January 1, 2012, the
alleged onset date.
3. The claimant has the following severe impairments:
borderline intellectual functioning, learning
disorder, attention deficit hyperactivity
disorder, left hip congenital abnormality,
sacroiliac joint dysfunction, heart disease
unspecified, mild intellectual disability,
unspecified depression and anxiety,
choleocystitis, solitary bone cyst of the left
iliac wing, and hearing loss.
4. The claimant does not have an impairment or a
combination of impairments that meets or medically
equals the severity of one of the listed

impairments.
5. After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform light work
except that the claimant is limited to occasional
left lower extremity pedal control; occasional
bending, balancing, stooping, kneeling, crouching,
and crawling; occasional ramps and stairs; and no
ladders, ropes, and scaffolds. The claimant is
also limited to no exposure to extreme cold,
humidity, and wetness; no exposure to noise above
street level; no exposure to pulmonary irritants
such as fumes, odors, dusts, and gases; and no
exposure to hazardous conditions such as
unprotected heights, dangerous machinery, and
uneven surfaces. The claimant is further
restricted to simple routine tasks involving no
more than simple, short instructions and simple
work-related decisions with few work place changes
and no work at production rate pace, fast-paced,
quota type work. The claimant also requires
occasional interaction with the public,
15

supervisors, and coworkers.
6. The claimant is capable of performing his past
relevant work as an egg crater. This work does not
require the performance of work-related activities
precluded by the claimant’s residual functional
capacity.
7. The claimant has not been under a disability, as
defined in the Social Security Act, from January
1, 2012 through the date of this decision.
V.

Disability Determination Process.
The Commissioner is required to use a five-step analysis to

determine whether a claimant is disabled.6 It is necessary for the
Commissioner to ascertain: 1) whether the applicant is engaged in a
6

“Disability” is defined as the “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than 12
months . . . .” 42 U.S.C. § 423(d)(1)(A). The Act further provides that an individual is disabled
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 in the
national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A).

substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 CFR §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past relevant
work.

If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.

Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).

As set out above, the instant decision was decided at the
fifth step of the process when the ALJ found there are jobs that
exist in the national economy that Plaintiff is able to perform.
(R.30-36).
VI. Standard of Review

17

This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.

Substantial evidence

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); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a talismanic or selfexecuting formula for adjudication; rather, our decisions make
clear that determination of the existence vel non of substantial
evidence is not merely a quantitative exercise.

A single piece of

evidence will not satisfy the substantiality test if the Secretary
ignores, or fails to resolve, a conflict created by countervailing
evidence.

Nor is evidence substantial if it is overwhelmed by

other evidence–-particularly certain types of evidence (e.g., that
offered by treating physicians)–-or if it really constitutes not
evidence but mere conclusion.

See Cotter, 642 F.2d at 706

(“Substantial evidence” can only be considered as supporting
evidence in relationship to all the other evidence in the record.”)

(footnote omitted).

The search for substantial evidence is thus a

qualitative exercise without which our review of social security
disability cases ceases to be merely deferential and becomes
instead a sham. 710 F.2d at 114.
This guidance makes clear it is necessary for the Secretary to
analyze all evidence.

If she has not done so and has not

sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000).

See, e.g., Knepp v.

“There is no requirement

that the ALJ discuss in its opinion every tidbit of evidence
19

included in the record.”
Cir. 2004).

Hur v. Barnhart, 94 F. App’x 130, 133 (3d

“[W]here [a reviewing court] can determine that there

is substantial evidence supporting the Commissioner’s decision, . .
.

the Cotter doctrine is not implicated.”

Hernandez v.

Commissioner of Social Security, 89 Fed. Appx. 771, 774 (3d Cir.
2004) (not precedential).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
court would have reached different factual conclusions.

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983) (internal quotation omitted).

Where the ALJ’s decision

is explained in sufficient detail to allow meaningful judicial
review and the decision is supported by substantial evidence, a
claimed error may be deemed harmless.

See, e.g., Albury v.

Commissioner of Social Security, 116 F. App’x 328, 330 (3d Cir.

2004) (not precedential) (citing Burnett v. Commissioner, 220 F.3d
112 (3d Cir. 2000) (“[O]ur primary concern has always been the
ability to conduct meaningful judicial review.”).

An ALJ’s

decision can only be reviewed by a court based on the evidence that
was before the ALJ at the time he or she made his or her decision.
Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
VII.

Discussion.

A. General Considerations
At the outset of our review of whether the ALJ has met the
substantial evidence standard regarding the matters at issue here,
we note the Third Circuit has repeatedly emphasized the special
nature of proceedings for disability benefits.
606 F.2d at 406.

See Dobrowolsky,

Social Security proceedings are not strictly

adversarial, but rather the Social Security Administration provides
an applicant with assistance to prove his claim.

Id.

“These

proceedings are extremely important to the claimants, who are in
real need in most instances and who claim not charity but that
which is rightfully due as provided for in Chapter 7, Subchapter
II, of the Social Security Act.”

Hess v. Secretary of Health,

Education and Welfare, 497 F. 2d 837, 840 (3d Cir. 1974).

As such,

the agency must take extra care in developing an administrative
record and in explicitly weighing all evidence.
21

Dobrowolsky, 606

F.2d at 406.

Further, the court in Dobrowolsky noted “the cases

demonstrate that, consistent with the legislative purpose, courts
have mandated that leniency be shown in establishing the claimant’s
disability, and that the Secretary’s responsibility to rebut it be
strictly construed.”

Id.

B. Plaintiff’s Allegations of Error.
1. Whether the ALJ erred in concluding that Plaintiff did not
meet the criteria of Listing 12.05C?
A claimant may prove disability at Step Three of the
administrative process if he shows that he meets all the criteria
of an Agency Listing. An impairment that meets only some of the
criteria of a listed impairment,“no matter how severely, does not
qualify.” Sullivan v. Zebley, 493 U.S. 521,530 (1990). It is the
claimant’s burden to present sufficient evidence indicating that an
impairment or combination of impairments meets or equals a listed
impairment. Id; see also 20 C.F.R. § 416.926. The ALJ need not use
“magic words” in analyzing whether a claimant meets a listing, as
long as his discussion of the evidence provides for “meaningful
judicial review.” Jones v. Barnhart, 364 F3rd 501, 505 (3rd Cir.
2004).
Listing 12.05C states as follows:

12.05 Mental retardation refers to significantly
sub average 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 twenty-two.

The required level of severity for this disorder is met
when the requirements of 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 limitation of
function.
The case law of our Circuit holds that “ … to meet or equal
listing 12.05, a claimant must prove that she experiences
‘deficits’ in adaptive functioning” with an onset prior to
age 22 ….” She must also show that she meets the
requirements listed in one of subsections A, B, C, or D of
that section.”7 Gist v. Barnhart, 67 Fed. Appx. 78 (3rd

7

We considered here only the requirements of subsection C because Plaintiff’s allegation of
error concerns only subsection C.
23

Circuit 2003); see also Demacio v. the Commissioner of
Social Security, 2014 WL 1278086 at *12 (W. D. Pa.).
Because it is very clear to this Court that Plaintiff meets
two of the criteria under listing 12.05 C (2 IQ scores between 60
and 70 and physical and mental impairments that impose additional
and sufficient work-related limitations of function), this case
pivots solely on whether there is substantial evidence to support
the ALJ’s conclusion that “the record does not establish deficits
in adaptive functioning.” (R. at 30). Due to the fact that the ALJ
does not advise what standard he is using to measure “adaptive
functioning”, the Court lacks the ability to meaningful review this
issue.
In 2002, the Social Security Administration published
commentary indicating that it had purposely left open the
question of what constituted an adaptive deficit. See
Technical Revisions to Medical Criteria for Determination of
Disability, 67 Federal Register 20018-01(April 24, 2002).
The SSA acknowledged in that publication that, while the
four leading professional mental health organizations
employed disparate definitions of “intellectual disability”
due to different standards for measuring “significant
deficits in intellectual functioning”, the SSA declined to

adopt “the methodology of one professional organization over
another” and instead allowed for “the use of any measurement
method recognized and endorsed by the professional
organizations.” Id.
In this case, the ALJ concluded that the record did not
establish that Plaintiff had the requisite deficits in adaptive
functioning without announcing which of these standards he was
employing. If this Court is to meaningfully evaluate whether that
is so, it was necessary for the ALJ to tell us what standard he
used. See Demacio v. Commissioner, supra at *13; Lansdowne v.
Astrue, 2012 WL 4069363 at *5 (W.D.Pa. September 17, 2012); and
Fitts v. Commissioner of Social Security, (M.D. Pa. No. 4:15-cv631 at Doc. 17, February 29, 2016, Mehalchick, M.J.).8 In his
terse, one paragraph discussion of this point (Doc. 14-2 at 6) the
ALJ refers to none of the standards developed by the four leading
mental health associations nor does he even attempt to articulate
a composite standard of some sort. Beyond that, he flatly
misstates that “the claimant does not have a valid verbal,
8

We have read the Agency’s brief and are aware of at least one district court case in our
Circuit, Harper v. Colvin, 2014 WL 1478094 ( W. D. Pa.) and a Seventh Circuit case, Novy v.
Astrue, 497 F.3rd 708 (2007), that find otherwise. While those opinions are entitled to our
consideration and respect, this Court believes that the fundamental remedial purpose of the Social
Security Act is better protected by requiring an ALJ to declare exactly what standard he employs
when determining the extent of a claimant’s “adaptive deficits”. This Court will continue to apply
this standard unless and until the Third Circuit Court of Appeals directs us to the contrary.
25

performance or full scale IQ of 60 to 70 and a physical or other
mental impairment imposing an additional and significant workrelated limitation of function.” Id. In fact, the record includes
two full scale IQ tests evaluating the claimant’s IQ at 64 (long
before he attained the critical age of 22) and 65 (as an adult).
The ALJ has also identified numerous other “severe impairments”
(R. at 27) that were significant enough to impose additional
limitations on the Plaintiff’s ability to do “light work” in the
residual functional capacity the ALJ determined for the Plaintiff.
(R. at 30). Inaccuracies of this type coupled with the ALJ’s
failure to articulate the standard by which he assessed
Plaintiff’s deficits prevent this Court from concluding that the
Agency’s decision is supported by the requisite substantial
evidence. Accordingly, the Plaintiff’s assignment of error on this
point is approved and this case will be remanded for further
proceedings wherein the Agency: (1) more specifically discusses
the third prong under Listing 12.05 by specifically defining
“deficits in adaptive functioning,” either with reference to one
of the standards endorsed by the leading mental health
organizations such as the American Psychiatric Association or
American Association on Intellectual and Developmental
Disabilities or a definition which is consistent with the

definitions employed by those organizations; and (2) addresses why
Plaintiff had no deficits in adaptive functioning for purposes of
12.05 in light of the functional limitation findings which
appeared later in the ALJ’s decision.
2. Whether substantial evidence supports the vocational
expert’s testimony that work within Plaintiff’s capacities exists
in the national economy?
Plaintiff asserts that conflicts between the VE’s description
of jobs he identified as within Plaintiff’s capacities and the
description of those jobs in the Dictionary of Occupational Titles
require a remand of this case. These alleged conflicts concern the
amount of time spent standing and walking while performing jobs
classified by the SSA as “light work”.
While it is true that “light work” entails, by definition,
standing and walking for up to six hours of an eight hour work
day, the VE testified that, based on his 36 years of experience in
the field, the jobs he identified were “light” in nature and
actually required no more than 4 hours of walking and standing as
actually performed. (R. at 75). The Court views this explanation
as an adequate reconciliation of the VE’s testimony vis-a-vis the
literal text of the DOT. Accordingly, Plaintiff’s assignment of
error on this point will be rejected.
27

VIII. Conclusion.
For the reasons addressed above, this case will be remanded
to the Commissioner for further proceedings to clarify: (1) what
standard was used to assess Plaintiff’s “deficits in adaptive
functioning” in the context of Listing 12.05; and (2) whether
these deficits manifested before Plaintiff reached the age of 22.
An Order consistent with the foregoing will be issued
contemporaneously.

By the Court

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED: November 13, 2017

29