CURTIS v. COLVIN

Filing 15

ORDER granting in part and denying in part 10 Plaintiff's Motion for Summary Judgment and denying 12 Defendant's Motion for Summary Judgment. The case is remanded for further evaluation in light of this Order. Signed by Judge Alan N. Bloch on 3/31/2015. (dpo)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TONYA L. CURTIS,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN, ACTING
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)

Civil Action No. 14-54-E

O R D E R
AND NOW, this 31st day of March, 2015, upon consideration
of Defendant’s Motion for Summary Judgment (Doc. No. 12) filed
in the above-captioned matter on August 8, 2014,
IT IS HEREBY ORDERED that said Motion is DENIED.
AND, further, upon consideration of Plaintiff’s Motion for
Summary

Judgment

(Doc.

No.

10)

filed

in

the

above-captioned

matter on June 30, 2014,
IT IS HEREBY ORDERED that said Motion is GRANTED IN PART
and DENIED IN PART.

Specifically, Plaintiff’s Motion is granted

to the extent that it seeks a remand to the Commissioner of
Social Security (“Commissioner”) for further evaluation as set
forth below, and denied in all other respects.

Accordingly,

this matter is hereby remanded to the Commissioner for further

1

evaluation under sentence four of 42 U.S.C. § 405(g) in light of
this Order.
I.

Background
On January 21, 2011, Plaintiff Tonya L. Curtis filed a

claim for Supplemental Security Income under Title XVI of the
Act, 42 U.S.C. §§ 1381-1383f.

Specifically, Plaintiff claimed

that she became disabled on August 30, 2002, due to severe
depression, a learning disability, bipolar disorder, and hernia
surgery.

(R. 22, 172, 182).

After being denied benefits

initially on March 9, 2011, Plaintiff sought, and obtained, a
hearing before an Administrative Law Judge (“ALJ”) on July 11,
2012.

(R. 97-101, 110-11, 42-75).

In a decision dated August

10, 2012, the ALJ denied Plaintiff’s request for benefits.
22-38).

(R.

The Appeals Council declined to review the ALJ’s

decision on February 1, 2014.

(R. 1-3).

Plaintiff filed a

timely appeal with this Court, and the parties have filed crossmotions for summary judgment.
II.

Standard of Review
Judicial review of a social security case is based upon the

pleadings and the transcript of the record.
§ 405(g).

See 42 U.S.C.

The scope of review is limited to determining whether

the Commissioner applied the correct legal standards and whether
the record, as a whole, contains substantial evidence to support
the Commissioner's findings of fact.
2

See Matthews v. Apfel, 239

F.3d 589, 592 (3d Cir. 2001) (noting that “’[t]he findings of
the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive’” (quoting 42
U.S.C. § 405(g))); Schaudeck v. Comm’r of Soc. Sec. Admin., 181
F.3d 429, 431 (3d Cir. 1999) (stating that the court has plenary
review of all legal issues, and reviews the administrative law
judge's findings of fact to determine whether they are supported
by substantial evidence).
“Substantial evidence” is defined as “‘more than a mere
scintilla.

It means such relevant evidence as a reasonable mind

might accept as adequate’” to support a conclusion.

Plummer v.

Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Ventura v.
Shalala, 55 F.3d 900, 901 (3d Cir. 1995)).

However, a “single

piece of evidence will not satisfy the substantiality test if
the [Commissioner] ignores, or fails to resolve, a conflict
created by countervailing evidence.”

Morales v. Apfel, 225 F.3d

310, 317 (3d Cir. 2000) (quoting Kent v. Schweiker, 710 F.2d
110, 114 (3d Cir. 1983)).

“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.”

Id.

A disability is established when the claimant can
demonstrate some medically determinable basis for an impairment
that prevents him or her from engaging in any substantial
3

gainful activity for a statutory twelve-month period.

See

Fargnoli v. Massanari, 247 F.3d 34, 38-39 (3d Cir. 2001).

“A

claimant is considered unable to engage in any substantial
gainful activity ‘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 . . . .’”

Id.

at 39 (quoting 42 U.S.C. § 423(d)(2)(A)).
The Social Security Administration (“SSA”) has promulgated
regulations incorporating a five-step sequential evaluation
process for determining whether a claimant is under a disability
as defined by the Act.

See 20 C.F.R. § 416.920.

In Step One,

the Commissioner must determine whether the claimant is
currently engaging in substantial gainful activity.
C.F.R. § 416.920(b).
denied.

See 20

If so, the disability claim will be

See Bowen v. Yuckert, 482 U.S. 137, 140 (1987).

If

not, the second step of the process is to determine whether the
claimant is suffering from a severe impairment.
416.920(c).

See 20 C.F.R. §

“An impairment or combination of impairments is not

severe if it does not significantly limit [the claimant’s]
physical or mental ability to do basic work activities.”
C.F.R. § 416.921(a).

20

If the claimant fails to show that his or

her impairments are “severe," he or she is ineligible for
4

disability benefits.

If the claimant does have a severe

impairment, however, the Commissioner must proceed to Step Three
and determine whether the claimant’s impairment meets or equals
the criteria for a listed impairment.
416.920(d).

See 20 C.F.R. §

If a claimant meets a listing, a finding of

disability is automatically directed.

If the claimant does not

meet a listing, the analysis proceeds to Steps Four and Five.
Step Four requires the ALJ to consider whether the claimant
retains the residual functional capacity (“RFC”) to perform his
or her past relevant work, see 20 C.F.R. § 416.920(e), and the
claimant bears the burden of demonstrating an inability to
return to this past relevant work, see Adorno v. Shalala, 40
F.3d 43, 46 (3d Cir. 1994).

If the claimant is unable to resume

his or her former occupation, the evaluation then moves to the
fifth and final step.
At this stage, the burden of production shifts to the
Commissioner, who must demonstrate that the claimant is capable
of performing other available work in the national economy in
order to deny a claim of disability.
416.920(g).

See 20 C.F.R. §

In making this determination, the ALJ should

consider the claimant’s RFC, age, education, and past work
experience.

See id.

The ALJ must further analyze the

cumulative effect of all the claimant’s impairments in

5

determining whether he or she is capable of performing work and
is not disabled.

See 20 C.F.R. § 416.923.

III. The ALJ's Decision
In the present case, the ALJ applied the sequential
evaluation process in reviewing Plaintiff’s claim for benefits.
In particular, the ALJ found that Plaintiff had not been engaged
in substantial gainful activity since January 21, 2011, her
application date.

(R. 24).

The ALJ also found that Plaintiff

met the second requirement of the process insofar as she had
several severe impairments, specifically, major depressive
disorder, psychosis, borderline intellectual functioning, mood
disorder, borderline personality disorder, dysthymic disorder,
and status-post hernia repair.

(R. 24).

He found, however,

that Plaintiff’s alleged adjustment disorder with mixed anxiety
and depressed mood, posttraumatic stress disorder, bipolar
disorder, and bilateral hearing impairment did not constitute
medically determinable impairments.

(R. 24-25).

After

addressing whether Plaintiff’s impairments met or medically
equaled the criteria of several listings, including Listing
12.05, the ALJ concluded that Plaintiff’s impairments did not
meet any of the listings that would satisfy Step Three.

(R. 25-

28).
The ALJ next found that Plaintiff retained the RFC to
perform medium work as defined in 20 C.F.R. § 416.967(c), except
6

that she must avoid all exposure to unprotected heights,
dangerous machinery, and like workplace hazards; is limited to
understanding, remembering, and carrying out simple instructions
and performing simple, routine tasks; is limited to only
occasional and superficial interaction with co-workers and the
public with no transactional interaction such as sales or
negotiation; and is limited to a low stress work environment,
which means no production rate pace work, but rather, goaloriented work with only occasional and routine change in work
setting.

(R. 28-36).

At Step Four, the ALJ found that

Plaintiff had no past employment, so he moved on to Step Five.
(R. 36).

The ALJ then used a vocational expert (“VE”) to

determine whether or not a significant number of jobs existed in
the national economy that Plaintiff could perform.

The VE

testified that, based on Plaintiff’s age, education, past
relevant work experience, and RFC, Plaintiff could perform jobs
that exist in significant numbers in the national economy, such
as dry cleaner helper, janitor, and dishwasher. (R. 37, 67-68).
Accordingly, the ALJ found that Plaintiff was not disabled.
(R. 37-38).
IV.

Legal Analysis
Plaintiff argues that the ALJ erred in several ways in

finding that she was not disabled, including that he failed to
analyze her intellectual impairments properly under Listing
7

12.05C, 20 C.F.R. Part 404, Subpart P, Appendix 1, at Step Three
of the sequential analysis.

She further contends that the

record establishes that her condition does, in fact, meet that
listing, rendering her disabled under the Act.

While the Court

does not fully agree with the arguments set forth by Plaintiff,
it does agree that remand is warranted in this case.
Specifically, the Court finds that the ALJ failed to provide
sufficient analysis regarding whether Plaintiff’s impairments
meet or equal the criteria of Listing 12.05C.

The Court leaves

for the ALJ, however, to determine — after providing further
analysis of Plaintiff’s alleged deficits in adaptive functioning
— whether Plaintiff’s condition ultimately meets that listing.
Accordingly, the Court finds that substantial evidence does not
support the ALJ’s decision, and it will remand the case for
further consideration.
Listing 12.05 provides, “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 can be met when the requirements of Listing
12.05C are satisfied, i.e., “[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
8

limitation of function.”

In his decision, the ALJ found that

Plaintiff did not meet the requirements of Listing 12.05C
because, according to his analysis, she did not possess the
required deficits in adaptive functioning.

In so finding, he

stated that he reviewed Plaintiff’s “reports regarding her
independent functionality.”

(R. 27).

He then discussed a

number of facts from the record, including Plaintiff’s
allegations of special assistance in school and lack of
corresponding school records, her graduation from high school,
her completion of the function report in this matter on her own,
and various facts regarding her living situation, daily
activities, and care of her daughter and pets.

He also noted

that Dr. Byron Hillin, Ph.D., who performed IQ testing on
Plaintiff, assessed Plaintiff a Global Assessment of Functioning
(“GAF”) score of 60.

(R. 27-28).

He further questioned the

validity of the results of the tests administered by Dr. Hillin
based on Dr. Hillin’s comments that Plaintiff’s effort at
testing had been “only fair” and that she “tended to give up
easily.”

(R. 28).

Plaintiff, in her brief, questions the standard that the
ALJ employed in making these findings, and argues that the ALJ
improperly required that she show “significant” deficits in
adaptive functioning, rather than just deficits, in determining
whether she met the listing.

She further argues that he
9

improperly equated being a parent and having the ability to do
limited chores with a lack of deficits in adaptive functioning.
She therefore asserts that his Step Three Analysis is not
supported by substantial evidence.
Although not challenged by Plaintiff, the Court should note
at the outset that it agrees with the many courts that have
found that a finding of the appropriate deficits in adaptive
functioning is a requirement of Listing 12.05C.

See, e.g.,

Cortes v. Comm’r of Soc. Sec., 255 Fed. Appx. 646, 651 (3d Cir.
2007) (noting that under Section 12.05, the Commissioner’s
regulations require that a claimant prove “‘subaverage general
intellectual functioning with deficits in adaptive functioning’
manifesting before age 22”); Gist v. Barnhart, 67 Fed. Appx. 78,
81 (3d Cir. 2003) (“As is true in regard to any 12.05 listing,
before demonstrating the specific requirements of Listing
12.05C, a claimant must show proof of a ‘deficit in adaptive
functioning’ with an initial onset prior to age 22.”); Harper v.
Colvin, No. 13-446, 2014 WL 1278094, at *7 (W.D. Pa. Mar. 27,
2014) (agreeing with the ALJ’s interpretation of Listing 12.05C
as requiring the necessary deficits in adaptive functioning,
which is consistent with the Commissioner’s own view and with
the “view endorsed by an overwhelming majority of courts in this
Circuit, including the Court of Appeals”).

10

As noted, though, this is not the real issue here, as
Plaintiff does not deny her need to establish deficits in
adaptive functioning.

She does, however, challenge the standard

employed by the ALJ in making his finding that she lacked these
requisite deficits, albeit somewhat indirectly.

The problem the

Court faces in reviewing the ALJ’s decision on this ground is
that the law does not specify one specific test to be used to
determine whether a claimant has the necessary deficits in
adaptive functioning under this listing.

See Harper, 2014 WL

1278094, at **7-8; Thomas v. Colvin, No. 13-267, 2014 WL 584048,
at **9-10 (W.D. Pa. Feb. 14, 2014); Logan v. Astrue, No. 071472, 2008 WL 4279820, at **8-10 (W.D. Pa. Sept. 16, 2008).

In

fact, the Social Security Administration, in commentary issued
in 2002 along with rules revising the listings, explained that
the definition of the term was purposefully left open-ended.
See Technical Revisions to Medical Criteria for Determination of
Disability, 67 Fed. Reg. 20018-01 (Apr. 24, 2002); Harper, 2014
WL 1278094, at *7.

The SSA recognized that each of the four

leading professional mental health organizations defines
intellectual disability and adaptive functioning in a slightly
different way, and, rather than endorsing the methodology of any
one of these organizations over another, instead stated that it
allows the use of any measurement method “recognized and

11

endorsed by the professional organizations.”1

67 Fed. Reg.

20018-01.
Accordingly, the SSA has expressly declined to explain what
its regulations mean in regard to deficits in adaptive
functioning.

Further, the SSA’s commentary has led courts to

disagree as to whether the ALJ is, in fact, specifically
required to cite which of the four tests he or she used in
evaluating a claimant’s alleged deficits in adaptive
1

For example, the American Psychiatric Association most recently stated
that deficits in adaptive functioning “refer to how well a person meets
community standards of personal independence and social responsibility, in
comparison to others of similar age and sociocultural background.”
Diagnostic and Statistical Manual of Mental Disorders (DSM-V) 37 (5th ed.,
American Psychiatric Ass’n 2013). Such deficits “limit functioning in one or
more activities of daily life, such as communication, social participation,
and independent living, across multiple environments, such as home, school,
work, and community.” Id. at 33. Further, adaptive functioning involves
reasoning in three domains: “The conceptual (academic) domain involves
competence in memory, language, reading, writing, math reasoning, acquisition
of practical knowledge, problem solving, and judgment in novel situations,
among others. The social domain involves awareness of others’ thoughts,
feelings, and experiences; empathy; interpersonal communication skills;
friendship abilities; and social judgment, among others. The practical
domain involves learning and self-management across life settings, including
personal care, job responsibilities, money management, recreation, selfmanagement of behavior, and school and work task organization, among others.”
Id. at 37. This criterion is met when at least one of these three domains of
adaptive functioning is sufficiently impaired that ongoing support is needed
in order for the person to perform adequately in one or more life settings at
school, at work, at home, or in the community. See id. at 38.
The standard for intellectual disability set forth by the American
Association of Mental Retardation (now the American Association on
Intellectual and Developmental Disabilities) includes “significant
limitations in intellectual functioning and in adaptive behavior as expressed
in conceptual (i.e., receptive and expressive language, reading and writing,
money concepts, and self-direction); social (i.e., interpersonal,
responsibility, self-esteem, gullibility, naiveté, follows rules, obeys laws,
and avoids victimization); and practical adaptive skills (i.e., personal
activities of daily living such as eating, dressing, mobility and toileting;
instrumental activities of daily living such as preparing meals, taking
medication, using the telephone, managing money, using transportation, and
doing housekeeping activities; maintaining a safe environment, and
occupational skills).” Logan v. Astrue, 2008 WL 4279820, at *8 n.4 (citing
Manual of Diagnosis and Professional Practice in Mental Retardation (American
Ass’n on Mental Retardation, 1993)).

12

functioning.

Compare Harper, 2014 WL 1278094, at *8 (declining

to require an ALJ to articulate one specific standard where he
“sufficiently explained the benchmark he used to arrive at his
conclusion”), with Shaw v. Astrue, No. 11-139J, 2012 WL 4372521,
at *6 n.8 (W.D. Pa. Sept. 24, 2012) (finding that the ALJ’s
failure to identify and apply one of the four standards of
measurement used by one of the professional organizations would
require remand (citations omitted)) and Thomas, 2014 WL 1584048,
at *11 (finding that SSA regulations require the ALJ to
articulate which standard or guideline he or she utilizes from
one of the four major professional organizations in determining
whether a claimant has deficits in adaptive functioning).
In any event, regardless of whether the ALJ was required to
articulate a particular standard from one of the four major
professional organizations in making his assessment, the Court
finds that he failed to sufficiently identify a specific
standard or list of factors that he considered in determining
that Plaintiff did not have deficits in adaptive functioning
severe enough to meet Listing 12.05C.

The closest the ALJ came

to articulating a standard was in stating that he “reviewed
[Plaintiff’s] reports regarding her independent functionality.”
(R. 27).

However, this amounted to little more than exchanging

the word “adaptive” with “independent,” and is simply
insufficient to establish what the ALJ considered to be the
13

criteria for determining whether Plaintiff suffered from the
requisite deficits in adaptive functioning.

Likewise, although,

as noted, the ALJ discussed several factors in his analysis, he
did not explain the particular significance of those factors,
nor did he specifically explain why the ability to perform these
activities demonstrated a lack of deficits in adaptive
functioning.

Further, the ALJ did not address Plaintiff’s

abilities in regard to these activities in relation to the
common person or in relation to community standards, despite
Plaintiff’s claims that she needs assistance to perform most or
all of these activities.
The Court is sympathetic to the current situation in which
ALJs find themselves when attempting to analyze Listing 12.05.
The SSA, rather than defining the concept of “deficits in
adaptive functioning” for purposes of this analysis, has instead
chosen specifically to refrain from defining the term or
providing a specific standard for determining whether such
deficits exist.

In place of the guidance that a uniform

definition and standard would provide to ALJs, the SSA chose to
endorse a procedure whereby each ALJ must pick and choose among
several different standards, apparently acknowledging that the
standards will not be quite the same for every applicant.

Given

the SSA’s own position that ALJs are to choose and define the
standard under which to analyze a claimant’s adaptive
14

functioning, the Court will remand here for the ALJ to more
fully articulate the standard he is using in making this
finding.

Again, the Court is not necessarily holding that he

must choose the criteria of one of the four leading professional
mental health organizations, but rather that he must at least
set forth a standard clear enough for judicial review.
Accordingly, the ALJ’s analysis of the requirements of
Listing 12.05C is insufficient to fairly ascertain whether the
evidence could have shown that Plaintiff’s intellectual
impairments meet that listing.2

While the record may ultimately

provide a basis for finding that Plaintiff’s intellectual
disability does not meet the listing in question, there is
enough evidence from the record to necessitate a more focused
analysis as to the application of Listing 12.05C.

To the

extent, though, that Plaintiff asks this Court to find, at this
point, that she plainly meets Listing 12.05C, and that the ALJ’s
decision should be reversed and that she should be awarded
benefits, the Court cannot find that substantial evidence in the
record as a whole indicates that Plaintiff has met the listing,
or that she is disabled and entitled to benefits.

See

2
The Court notes that, although the ALJ questioned the validity of the
results of the tests administered by Dr. Hillin and stated that the scores
were suspect, based on Dr. Hillin’s comments that Plaintiff’s effort at
testing had been “only fair” and that she “tended to give up easily,” he did
not explicitly reject the scores. To the contrary, he acknowledged that
Plaintiff’s full scale IQ score of 69 and verbal IQ score of 70 satisfy the
12.05C IQ score requirement. (R. 28). Since the ALJ did not base his
finding in regard to Listing 12.05C on this ground, the Court makes no
finding as to the validity of the tests.

15

Podedworny v. Harris, 745 F.2d 210, 221-22 (3d Cir. 1984).
Since the record is, at best, ambiguous as to whether Plaintiff
can establish that she meets the requirements of Listing 12.05C
and, in particular, whether she has the required deficits in
adaptive functioning, the Court leaves the initial analysis of
this issue to the ALJ.

See Fargnoli v. Massanari, 247 F.3d 34,

44 n.7 (3d Cir. 2001) (noting that “‘[t]he grounds upon which an
administrative order must be judged are those upon which the
record discloses that its action was based’” (quoting SEC v.
Chenery Corp., 318 U.S. 80, 87 (1943))).

Indeed, the Court

expresses no opinion as to whether the ALJ’s ultimate
determination regarding Plaintiff’s impairments could be
supported by the record.

It is, instead, the need for further

explanation that mandates the remand on this issue.
Because the Court is remanding the case on this ground, it
does not reach the other issues raised by Plaintiff, which relate
primarily to the weight afforded by the ALJ to various pieces of
evidence in the record.

On remand, the ALJ should consider

Plaintiff’s concerns in weighing the evidence.

The Court does,

however, emphasize that, Plaintiff’s concerns notwithstanding,
the ALJ is required to consider the GAF scores assessed by the
various health care providers in making his findings.

The fact

that GAF scores have been abandoned in the DSM-V does not change
this, as they remain part of the medical record in this case.
16

As the Third Circuit Court of Appeals has explained, GAF
scores “are used by mental health clinicians and doctors to rate
the social, occupational and psychological functioning of
adults.”

Irizarry v. Barnhart, 233 Fed. Appx. 189, 190 n.1 (3d

Cir. 2007).

The GAF score system does raise some problems when

used in the social security context because the scores do not
directly correlate to a determination of whether an individual
is or is not disabled under the Act:
The GAF scale, which is described in the DSM-III-R
(and the DSM-IV), is the scale used in the multiaxial
evaluation system endorsed by the American Psychiatric
Association. It does not have a direct correlation to
the severity requirements in our mental disorders
listings.
65 Fed. Reg. 50746-01 (Aug. 21, 2000).

Therefore, while a GAF

score can assist an ALJ in understanding the limitations
contained in the opinions of medical professionals, the actual
number itself often does little to describe the specific
functional limitations caused by the claimant’s impairments.
See Howard, 276 F.3d at 241 (“While a GAF score may be of
considerable help to the ALJ in formulating the RFC, it is not
essential to the RFC’s accuracy.”).

Nonetheless, a GAF score is

evidence that an ALJ should consider in determining a claimant’s
impairments and limitations in setting forth the claimant’s RFC
and in fashioning a hypothetical question to the VE.

See

Wiggers v. Astrue, 2010 WL 1904015, at *8 (W.D. Pa. May 10,

17

2010) (quoting Watson v. Astrue, 2009 WL 678717, at *5 (E.D. Pa.
Mar. 13, 2009)).
The ALJ at no point in the decision at issue found that any
of Plaintiff’s GAF scores definitively established the ability
or inability on her part to perform any activities.

Rather, he

considered them as part of a longitudinal review of the medical
record as a whole, as he was required to do.

Indeed, he

discussed at great length how he relied on the scores in
formulating Plaintiff’s RFC and the hypothetical to the VE.
34).

(R.

Therefore, while, on remand, the ALJ should ensure that

the scores not be given any undue weight, that does not appear
to be what has happened here.
V.

Conclusion
In short, the record simply does not permit the Court to

determine whether substantial evidence exists to support the
ALJ’s determination at Step Three that Plaintiff does not meet a
listing, and, accordingly, the Court finds that substantial
evidence does not support the ALJ’s decision in this case.

The

Court hereby remands this case to the ALJ for reconsideration
consistent with this Order.
s/Alan N. Bloch
United States District Judge
ecf:

Counsel of record
18