BUTLER v. COLVIN
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OPINION granting 8 plaintiff's Motion for Summary Judgment and denying 10 defendant's Motion for Summary Judgment. The case is remanded to the Acting Commissioner of Social Security for further proceedings consistent with the court's Opinion. See Opinion for further details. Signed by Judge Gustave Diamond on 9/29/15. (kw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID ALLEN BUTLER,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
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Civil Action No. 14-573
OPINION
AND NOW, this
;?q~fSePtember, 2015, upon consideration ofthe parties' cross-
motions for summary judgment pursuant to plaintiffs request for review of the decision of the
Acting Commissioner of Social Security ("Acting Commissioner") denying his applications for
disability insurance benefits ("DIB") and supplemental security income ("SSI") under Title II and
Title XVI, respectively, ofthe Social Security Act ("Act"), IT IS ORDERED that plaintiffs motion
for summary judgment (Document No.8) be, and the same hereby is, granted, and the Acting
Commissioner's motion for summary judgment (Document No. 10) be, and the same hereby is,
denied. Pursuant to sentence 4 of 42 U.S.C. §405(g), the case will be remanded to the Acting
Commissioner for further proceedings consistent with this Opinion.
When the Acting Commissioner determines that a claimant is not "disabled" within the
meaning of the Act, the findings leading to such a conclusion must be based upon substantial
evidence. "Substantial evidence has been defined as 'more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.'" Plummer v. Apfel, 186 F.3d
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422, 427 (3d Cir. 1999) (citation omitted).
Despite the deference to administrative decisions required by this standard, reviewing courts
"'retain a responsibility to scrutinize the entire record and to reverse or remand if the
[Commissioner's] decision is not supported by substantial evidence. '" Morales v. Apfel, 225 F.3d
310,317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d 968,970 (3d Cir. 1981». In
evaluating whether substantial evidence supports anALJ's findings, '''leniency [should] be shown
in establishing the claimant's disability, and ... the [Commissioner's] responsibility to rebut it
[should] be strictly construed .... ", Reefer v. Barnhart, 326 F.3d 376,379 (3d Cir. 2003) (quoting
Dobrowolsky v. Califano, 606 F.2d 403,407 (3d Cir. 1979». These well-established principles
dictate that the court remand this case to the Acting Commissioner for further proceedings at step
3 of the sequential evaluation process.
Plaintiff filed his applications for DIB and SSI on February 1, 2012, alleging disability
beginning on January 1, 2011, due to depression, anxiety, high blood pressure and learning
difficulty. Plaintiff's applications were denied. At plaintiff's request, an ALJ held a hearing on
November 20, 2012, at which plaintiff appeared and testified while represented by counsel. On
December 7, 2012, the ALJ issued a decision finding that plaintiff is not disabled. The Appeals
Council denied plaintiff's request forreview on February 28,2014, making the ALJ's decision the
final decision of the Commissioner. The instant action followed.
Plaintiff, who has a high school education, was 43 years old on his alleged onset date of
disability and is classified as a younger individual under the regulations. 20 C.F.R. §§404.1563(c),
416. 963(c). Plaintiff has past relevant work experience as a construction laborer and electrician's
helper, but he has not engaged in substantial gainful activity at any time since his alleged onset
date.
After reviewing plaintiff's medical records and hearing testimony from plaintiff and a
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vocational expert at the hearing, the ALl concluded that plaintiffis not disabled within the meaning
of the Act. Although the medical evidence established that plaintiff suffers from the severe
impairments ofhypertension, gastroesophageal reflux disease, major depressive disorder/dysthymic
disorder/mood disorder, generalized anxiety disorder/panic disorder/post traumatic stress disorder,
intermittent explosive disorder/explosive personality disorder, borderline intellectual functioning
and schizoaffective disorder, those impairments, alone or in combination, do not meet or equal the
criteria ofany ofthe listed impairments set forth in Appendix 1 of20 C.F .R., Subpart P, Regulation
No.4 ("Appendix 1").
The ALl found that plaintiff retains the residual functional capacity to perform medium
work with a number ofadditional non-exertionallimitations. Plaintiffis limited to performing one
to two step tasks that are simple, routine and repetitive and involve only simple work-related
decisions and few, ifany, work place changes. In addition, plaintiffis restricted to only occasional
interaction with the public and co-workers (with no tandem tasks) and only occasional supervision
(collectively, the "RFC Finding").
Based upon testimony by a vocational expert, the ALl concluded that plaintiffs vocational
factors and residual functional capacity do not permit him to perform his past relevant work.
However, the ALl found that plaintiff is capable ofperforming other work that exists in significant
numbers in the national economy, such as a dishwasher, grounds worker and stock clerk.
Accordingly, the ALl found that plaintiff is not disabled within the meaning of the Act.
The Act defines "disability" as the inability to engage in substantial gainful activity by
reason of a physical or mental impairment that can be expected to last for a continuous period of
at leasttwelvemonths. 42 U.S.c. §§423(d)(1)(A), 1382c(a)(3)(A). The impairment or impairments
must be so severe that the claimant "is not only unable to do his previous work but cannot,
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considering his age, education and work experience, engage in any other kind ofsubstantial gainful
work which exists in the national economy ...." 42 U.S.c. §§423(d)(2)(A), 1382c(a)(3)(B).
The Social Security Regulations specifY a five-step sequential evaluation process for
determining whether a claimant is disabled. The ALl must assess: (l) whether the claimant
currently is engaged in substantial gainful activity; (2) if not, whether he has a severe impairment;
(3) if so, whether his impairment meets or equals the criteria listed in Appendix 1; (4) if not,
whether the claimant's impairment prevents him from performing his past relevant work; and (5)
if so, whether the claimant can perform any other work that exists in the national economy, in light
of his age, education, work experience and residual functional capacity.l
20 C.F.R.
§§404.1520(a)(4),416.920(a)(4). If the claimant is found disabled or not disabled at any step,
further inquiry is unnecessary. Id.
In this case, plaintiff challenges the ALl's findings at steps 3 and 5 of the sequential
evaluation process. Plaintiff argues that the ALl erred at step 3 by finding that he does not meet
listing 12.05C for mental retardation. Plaintiff also argues that the ALl's step 5 finding is not
supported by substantial evidence because the ALl did not properly weigh certain medical opinions
and the RFC Finding and hypothetical question to the vocational expert did not account for all of
plaintiff s claimed limitations. Although plaintiff s step 5 argument is without merit, we conclude
that the ALl's step 3 analysis is incomplete for the reasons explained below.
Plaintiff first challenges the ALl's findings at step 3 of the sequential evaluation process.
At step 3, the ALl must determine whether the claimant's impairment meets or equals one of the
listed impairments. Burnett v. Commissioner of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir.
1 Residual functional capacity is defined as that which an individual still is able to do despite the
limitations caused by his impairments. 20 C.F.R. §§404.l545(a)( 1), 416.945(a)(1). In assessing a
claimant's residual functional capacity, the ALl is required to consider the claimant's ability to meet the
physical, mental, sensory and other requirements of work. 20 C.F.R. §§404.l545(a)( 4), 416.945(a)( 4).
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2000). The listings describe impainnents that prevent an individual, regardless of age, education
or work experience, from perfonning any gainful activity. 20 C.F.R. §§404.1525(a), 416.925(a);
Knepp v. Apfel, 204 F.3d 78, 85 (3d Cir. 2000).
Plaintiff claims that the ALJ erred by finding that he does not meet listing 12.05C for mental
retardation, now referred to as intellectual disability.2 That listing provides, in relevant part, as
follows:
12.05. Intellectual disability: Intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., the evidence demonstrates
or supports onset of the impainnent before age 22.
The required level of severity for this disorder is met when the requirements in A,
B, C, or D are satisfied.
***
C. A valid verbal, perfonnance, or full scale IQ of60 through 70 and a physical or
other mental impainnent 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).
The United States Court of Appeals for the Third Circuit has held that in order to meet the
requirements of § 12.05C, a claimant "must i) have a valid verbal, perfonnance or full scale IQ of
60 through 70, ii) have a physical or other mental impainnent imposing additional and significant
work-related limitations of function, and iii) show that the mental retardation was initially
manifested during the developmental period (before age 22)." Markle v. Barnhart, 324 F.3d 182,
187 (3d Cir. 2003); see also Illig v. Commissioner of Soc. Sec., 570 Fed. Appx. 262,265 (3d Cir.
2014).
2 Although listing 12.05 was revised in 2013 and now refers to "intellectual disability" rather than
"mental retardation," the substance of the listing has not changed. See Change in Terminology: "Mental
Retardation" to "Intellectual Disability," 78 Fed. Reg. 46,499 (Aug. 1,2013).
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Here, the ALJ found that plaintiff did not meet listing 12.05C because plaintiff did not
establish that he suffered from deficits in adaptive functioning prior to age 22. (R. 17). The ALJ
based this finding on the following: although plaintiff claims he was in special education classes,
he graduated from high school with a rank of 120 out of 185 students; there was no information
regarding the services plaintiff received when he was in school or whether any intelligence testing
was performed; plaintiff suffered a number of head injuries because ofhis involvement in fist fights
and sports; he used drugs and alcohol during his teenage years; and he obtained employment
following high school. (R. 16-17). Because the ALJ concluded that plaintiff did not meet the
threshold criterion oflisting 12.05C, he did not analyze whether plaintiff met the other requirements
of that listing.
As an initial matter, the ALl's analysis of whether plaintiffs condition satisfies the
requirements of listing 12.05C is incomplete because the court cannot meaningfully determine the
ALl's basis for concluding that plaintiff did not suffer from deficits in adaptive functioning prior
to age 22. See Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (requiring the ALJ to
sufficiently explain his findings to permit meaningful review).
As explained in Logan v. Astrue, 2008 WL 4279820 (W.D. Pa. Sept. 16, 2008), the
Regulations do not define "deficits in adaptive functioning", nor do they identify guidelines by
which to assess the existence or severity of a claimant's alleged deficits. Id. at *8. Likewise, there
is no Third Circuit case that addresses this issue. Id. However, the Social Security Administration
("SSA") issued a regulation entitled Technical Revisions to Medical Criteria for Determinations
of Disability, 67 Fed. Reg. 20018-01 (April 24, 2002), which provides guidance on the matter. The
SSA recognized that each of the four leading professional mental health organizations defines
intellectual disability, or adaptive functioning, in a slightly different manner. Logan, 2008 WL
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4279820, at *8. The SSA clarified that it did not seek to endorse the methodology of one
professional organization over another, and would allow use of any of the measurement methods
endorsed by one ofthe professional organizations. Id. According to the SSA, to assess a claimant's
alleged intellectual disability to determine if deficits in adaptive functioning exist, an ALl should
consult either the American Psychiatric Association's DSM-V, the standard set forth by the
American Association on Intellectual and Developmental Disabilities or the criteria of the other
major mental health organizations. Id.
In this case, it is not clear from the ALl's decision which standard or criteria, ifany, he used
to assess whether plaintiff had deficits in adaptive functioning prior to age 22. The ALl noted that
plaintiff suffered a number ofhead injuries and he used drugs and alcohol during his teenage years,
which could have contributed to his learning difficulty, yet he graduated from high school and
subsequently obtained employment. (R. 16, 17). However, absent from the ALl's discussion is any
explanation ofthe standard or criteria he employed in determining that plaintiff did not have deficits
in adaptive functioning. Accordingly, remand is required so the ALl can explain what standard or
criteria he used in evaluating whether plaintiff suffered from deficits in adaptive functioning and
complete his analysis. See Dignall v. Colvin, 2015 WL 853679, at *5 (W.D Pa. Feb. 26,2015)
(finding remand necessary where ALl failed to sufficiently identify any standard or factors he
considered in determining whether the plaintiff had deficits in adaptive functioning); Thomas v.
Colvin, 2014 WL 584048, at * 10 (W.O. Pa. Feb. 14,2014) (finding remand appropriate where ALl
failed to explain the standard he utilized in concluding that the plaintiff did not have deficits in
adaptive functioning); Grunden v. Astrue, 2011 WL 4565502, at *5 (W.O. Pa. Sept. 29, 2011)
(finding remand required where ALl failed to indicate the standard he used to evaluate whether the
plaintiff had deficits in adaptive functioning).
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If the ALJ determines that plaintiff suffered from deficits in adaptive functioning prior to
age 22, he must continue to evaluate whether the other requirements oflisting 12.05C are met. The
ALJ did not specifically address in his decision whether plaintiff s IQ scores satisfy the requirement
of a valid verbal, performance, or full scale IQ of60 through 70. 3 In this case, plaintiff achieved
the following results on the Weschler Adult Intelligence Scale - IV ("WAIS- IV") testing
administered by consultative psychological examiner Dr. Julie Uran: Verbal Comprehension Index
of 80; Perceptual Reasoning Index of 82; Working Memory Index of 71; Processing Speed Index
of 65; and Full Scale IQ of 71. (R. 309). Plaintiff argues that his Processing Speed Index score of
65 satisfies listing 12.05C because it falls in the 60 to 70 range. The ALJ acknowledged that the
WAIS-IV includes modifications in the terminology used in scoring,4 but did not make a specific
finding whether plaintiffs Processing Speed Index score of 65 satisfies the IQ score requirement
set forth in listing 12.05C. (R. 13, 17). As stated, this issue must be addressed on remand if the
ALJ finds deficits in adaptive functioning were present. s
3To satisfY the requirement of listing 12.05C that the claimant must have a valid verbal,
performance or full scale IQ of60 through 70, the Regulations only require that one of those IQ scores be
in the 60 through 70 range. See § 12.00D.6.c. (" ... where verbal, performance, and full scale IQs are
provided in the Weschler series, we use the lowest of these in conjunction with 12.05 "); see also Markle,
324 F.3d at 186 (recognizing that the lowest of these three IQ scores is to be utilized in making a
determination under § 12.05C).
4The WAIS-IV, which was released in 2008, is composed of 10 core subtests and five supplemental
subtests, with the 10 core subtests comprising the Full Scale IQ. With the WAIS-IV, the verbal and
performance subscales from previous versions were removed and replaced by the following index scores:
Verbal Comprehension Index; Perceptual Reasoning Index; Working Memory Index; and Processing Speed
Index.
5The AU did not address whether plaintiff has a physical or other mental impairment imposing
an additional and significant work-related limitation of function as required by listing 12.05C. However,
the Third Circuit has held that the finding of a severe impairment establishes that the claimant has a
physical or other mental impairment imposing an additional and significant work-related limitation of
function under listing 12.05C. See Markle, 324 F.3d at 188. Therefore, the AU's finding in this case that
plaintiff has numerous severe physical and mental impairments, which caused functional limitations that
were accounted for in the RFC Finding, (R. 13, 17), satisfies the requirement of a physical or other mental
impairment imposing an additional and significant work-related limitation of function.
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Thus, because the ALJ did not fully address whether the requirements oflisting 12.05C were
met, the case will be remanded so that the ALJ may complete his analysis.
Plaintiff next argues that the ALJ's step 5 finding is not supported by substantial evidence. 6
According to plaintiff, the ALJ did not properly weigh certain medical opinions and the RFC
Finding and hypothetical question to the vocational expert did not account for all of his claimed
limitations.
Plaintiff first asserts that the ALJ did not properly weigh the opinions issued by his treating
psychiatrist, Dr. Patricia Jarrett, and Dr. Robert Eisler, a psychiatrist who evaluated him one time
at his counsel's suggestion. Contrary to plaintiff s position, the ALJ correctly determined that each
of their opinions was entitled to little weight. (R. 28).
Dr. Jarrett stated on an employability assessment form for the Pennsy lvania Department of
Public Welfare that plaintiff was temporarily disabled for less than twelve months. (R. 363).
Whether plaintiff was considered to be disabled for purposes of receiving state welfare benefits is
irrelevant because another agency's determination regarding disability is not binding on the Acting
Commissioner. See 20 C.F.R. §§404.1504, 416.904. As the ALJ correctly observed, Dr. Jarrett's
conclusory opinion of temporary disability on the state welfare form was unsupported and
unexplained and it conflicted with subsequent treatment records. (R. 28).
The ALJ also properly evaluated and weighed Dr. Eisler's opinion. After examining
plaintiff only once, Dr. Eisler concluded that he had marked or extreme mental limitations, which
would preclude full time work. (R. 369,370-71). As the ALJ explained in detail, Dr. Eisler's
opinion was based on representations by plaintiff that the ALJ determined were not entirely credible
6 At step 5, the Acting Commissioner must show that there are other jobs that exist in significant
numbers in the national economy which the claimant can perfonn consistent with his age, education, past
work experience and residual functional capacity. 20 C.F .R. §§404.1520(g)(1), 416.920(g)(1).
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and it was inconsistent with the record as a whole. (R. 23-27). After reviewing the record, we
conclude that the ALl correctly granted little weight to Dr. Eisler's opinion. (R.28).
Plaintiff s final argument - that the RFC Finding and hypothetical question to the vocational
expert did not account for all of his claimed limitations - also is without merit. The ALl's RFC
Finding accommodated all of plaintiffs mental functional limitations supported by the evidence,
as did the hypothetical question, which included all ofthe factors that were incorporated in the RFC
Finding. See Chrupcala v. Heckler, 829 F.2d 1269,1276 (3d Cir. 1987) (recognizing that an ALl's
hypothetical to a vocational expert must reflect all of the claimant's impairments and limitations
supported by the medical evidence). The additional limitations which plaintiff claims should have
been incorporated in the RFC Finding and hypothetical are either based on plaintiffs own
subjective complaints, which the ALl properly found were not entirely credible, or based upon Dr.
Eisler's opinion, which the ALl correctly decided was entitled to little weight. Thus, the RFC
Finding was supported by substantial evidence and the ALl appropriately relied upon the
hypothetical question posed to the vocational expert.
For the foregoing reasons, plaintiffs motion for summary judgment will be granted, the
Acting Commissioner's motion for summary judgment will be denied, and this case will be
remanded to the Acting Commissioner for further proceedings consistent with this Opinion.
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Gustave Diamond
United States District ludge
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cc:
Christine M. Nebel, Esq.
220 South Main Street
Suite D
Butler, PA 16001
Paul Kovac
Assistant U.S. Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
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