RHOME v. COLVIN

Filing 17

MEMORANDUM AND ORDER OF COURT granting 12 Plaintiff's Motion for Summary Judgment and denying 14 Defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is reversed and this case is remanded to the Commissioner for further proceedings. See Memorandum and Order for further details. Signed by Judge Gustave Diamond on 9/9/16. (gpr)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SCOTT LANE RHOME,
Plaintiff,

v.
CAROL YJ'J W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Civil Action No. 15-754

MEMORANDUM AND ORDER OF COURT
AND NOW, this

~~ of September, 2016, upon due consideration of the parties'

cross-motions for summary judgment relating to plaintiffs request for review of the decision of
the Commissioner of Social Security ("Commissioner") denying plaintiffs application for
supplemental security income ("SSI") under Title XVI of the Social Security Act ("Act"), IT IS
ORDERED that plaintiffs motion for summary judgment (Document No. 12) be, and the same
hereby is, granted, and the Commissioner's motion for summary jUdgment (Document No. 14) be,
and the same hereby is, denied. The Commissioner's decision dated February 18,2014, will be
reversed and this case will be remanded to the Commissioner for further proceedings consistent
with this opinion pursuant to sentence 4 of 42 U.S.C. §405(g).
When the 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 422,427
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(3d Cir. 1999) (citation omitted).

Despite the deference to administrative decisions required by the substantial evidence
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 an ALl'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)).
Plaintiff filed his pending application for SSI on May 10, 2010, alleging a disability onset
date ofSeptember 14,2008, due to a seizure disorder, depression, anger issues and back problems.
Plaintiff's application was denied initially. Following a hearing before an ALl, an unfavorable
decision was issued on lanuary 6, 2012. However, this decision subsequently was vacated by the
Appeals Council and plaintiff's case was remanded for further administrative proceedings.
On remand, a different ALl held a new hearing on December 4,2013, at which plaintiff,
represented by counsel, appeared and testified. On February 18,2014, the ALl issued a decision
finding that plaintiff is not disabled. On April 24, 2015, the Appeals Council denied review
making the ALl's February 18,2014, decision the final decision of the Commissioner.
Plaintiff was 23 years old at the time of the ALl's decision and is classified as a younger
person under the regulations. 20 C.F.R. §416.963(c). He has at least a high school education but
has no past relevant work experience and he has not engaged in any substantial gainful activity
since his alleged onset date or at any other time.
After reviewing plaintiff's medical records and hearing testimony from plaintiff, plaintiff's
father and a vocational expert at the hearing, the ALl concluded that plaintiff is not disabled within
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the meaning of the Act.

The ALJ found that although plaintiff has borderline intellectual

functioning, as well as a number of other physical and mental impairments I that satisfY the de
minimus standard for severity at step 2 of the sequential evaluation process,2 those impairments,

alone or in combination, do not meet or equal the criteria of any of the impairments listed at
Appendix 1 of20 C.F.R., Part 404, Subpart P.
The ALJ also found that plaintiff retains the residual functional capacity to perform a range
of work at the light exertionallevel but with numerous restrictions necessary to accommodate his
mental and physical impairments. 3 Taking into account these limiting effects, a vocational expert
identified numerous categories ofjobs which plaintiff can perform based upon his age, education,
work experience and residual functional capacity, including housekeeper/cleaner, marker, and
electrical accessories assembler. Relying on the vocational expert's testimony, the ALJ found that
plaintiff is capable of making an adjustment to jobs existing in significant numbers in the national
economy. Accordingly, the ALJ concluded that plaintiff is not disabled under the Act.
The Act defines "disability" as the inability to engage in substantial gainful activity by
reason of a physical or mental impairment which can be expected to last for a continuous period

Specifically, the ALJ found that plaintiff also has the following severe impainnents: seizure
disorder, kyphoscoliosis with a syrinx on the spinal cord, mood disorder/major depressive disorder,
cyclothymia, generalized anxiety disorder, personality disorder, and social phobia. (R. 16).
1

At step two, an impainnent is "severe" if it "significantly limits your physical or mental ability
to do basic work activities." 20 C.F.R. §416.920(c). The step two inquiry is ade minimus screening device
and, if the evidence presents more than a slight abnonnality, the step two requirement of severity is met.
Newell v. Commissioner of Social Security, 347 F.3d 541, 546 (3d Cir. 2003).
2

Specifically, the ALJ found that plaintiff can perfonn light work that "requires no climbing
ladders, ropes or scaffolds; avoids all hazards such as dangerous moving machinery and unprotected
heights; is limited to simple, routine, and repetitive tasks perfonned in a low stress job, defined as having
only occasional decision making required, occasional changes in the work setting and no strict production
quotas; requires no interaction with the general public and minimal interaction with co-workers and
supervisors; and involves work that requires working with things rather than people." (R. 18).
3

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of at least twelve months. 42 U.S.c. § 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, considering his
age, education and work experience, engage in any other kind of substantial gainful work which
exists in the national economy .... " 42 U.S.c. §1382c(a)(3)(B).
The Commissioner has promulgated regulations incorporating a five-step sequential
evaluation process for determining whether a claimant is under a disability.4 20 C.F .R. §416.920.
Ifthe claimant is found disabled or not disabled at any step, the claim need not be reviewed further.
Id.; see Barnhart v. Thomas, 124 S.Ct. 376 (2003).
In this case, plaintifrs only challenge is to the ALl's step 3 findingS that his severe
impairment of borderline intellectual functioning does not meet or equal the listing for intellectual
disability at § 12.05C. 6 Because the ALJ did not adequately explain the methodology he utilized

4 The ALJ must detennine: (1) whether the claimant is currently engaged in substantial gainful
activity; (2) if not, whether he has a severe im painnent; (3) if so, whether his impainnent meets or equals
the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) if not, whether the claimant's
impainnent prevents him from perfonning his past-relevant work; and, (5) if so, whether the claimant can
perfonn any other work which exists in the national economy, in light of his age, education, work
experience, and residual functional capacity. 20 C.F.R. §416.920; Newell v. Commissioner of Social
Security, 347 F.3d 541, 545 (3d Cir. 2003). In addition, when there is evidence ofa mental impainnentthat
allegedly prevents a claimant from working, the Commissioner must follow the procedure for evaluating
mental impainnents set forth in the regulations. Plummer, 186 F.2d at 432; 20 C.F.R. §416.920a.

5 At step 3, the ALJ must detennine whether the claimant's impainnent matches, or is equivalent
to, one of the listed impainnents. Burnett v. Commissioner of Social Security Admin., 220 F.3d 112, 119
(3d Cir. 2000). The listings describe impainnents that prevent an adult, regardless of age, education or
work experience, from perfonning any gainful activity. 20 C.F.R. §416.925(a); Knepp v. Apfel, 204 F.3d
78,85 (3d Cir. 2000). "Ifthe impainnent is equivalent to a listed impainnent, then [the claimant] is per se
disabled and no further analysis is necessary." Burnett, 220 F.3d at 119. The ALJ must "fully develop the
record and explain his findings at step 3, including an analysis of whether and why [the claimant's] ...
impainnents ... are or are not equivalent in severity to one ofthe listed impainnents." Burnett, 220 F.3d
at 119.
6 Listing 12.05 was revised in 2013 and now refers to "intellectual disability" rather than "mental
retardation." See Change in Tenninology: "Mental Retardation" to "Intellectual Disability," 78 Fed. Reg.
46499-01 (Aug. 1,2013). The substance of the listing, however, has not changed. Illig v. Commissioner
of Social Security, 570 Fed. Appx. 262, 265 n. 7 (3d Cir. 2014).
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in determining that plaintiff does not meet the introductory criteria of Listing 12.05, this case will
be remanded to the Commissioner for further proceedings.
Listing 12.05 provides in pertinent part:
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 impairment 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, performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional and significant work-related
limitation of function
20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.05.
Here, the ALl found that plaintiff does not meet Listing 12.05 because he failed to establish
"significantly subaverage general intellectual functioning with deficits in adaptive functioning
initially manifested" prior to age 22, as required under the introductory paragraph of that listing.?
(R. 17-18). In making this finding, the ALl identified a number of factors in the record which led
him to conclude that plaintiffs "demonstrated abilities in adolescence clearly indicate an inherent
level of intellectual functioning that falls within the low average or borderline range, as opposed
to any clear or obvious 'listing-level' mental retardation." (R. 18).
These factors included, inter alia, that: plaintiff graduated from high school; he is able to
read, write, and do simple math; he put together a successful power point presentation for his senior
project; and, he had vocational training in business and obtained a business certificate. In addition,

Because the ALJ concluded that plaintiff did not meet the introductory criteria of Listing 12.05,
he did not analyze whether any of the requirements in provisions A through 0 of that listing are satisfied,
other than to recognize 2011 IQ scores falling above the ranges noted in provisions B through D.
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the ALJ noted that his conclusion is supported by the diagnosis ofthe consultative examiner, who
diagnosed plaintiff with borderline intellectual functioning rather than mental retardation. (R. 18).
As an initial matter, in order for a claimant's impairment to meet a listing, it must satisfy
all ofthe specified criteria ofthe listing at issue. Sullivan v. Zebley, 493 U.S. 521,530 (1990); 20
C.F.R. 416.925(d). Accordingly, this court consistently has held that, in addition to the criteria of
at least one of the A through D provisions, a claimant also must meet the introductory criteria of
Listing 12.05. See, e.g., Grates v. Colvin, 2016 WL 1117612 (W.D.Pa., March 21, 2016);
Lansdowne v. Astrue, 2012 WL 4069363 (W.D.Pa., Sept. 17,2012); Grunden v. Astrue, 2011 WL
4565502 (W.D. Pa., Sept. 29, 2011). This conclusion is in full accord with both the Regulations
themselves and the case law of this circuit. 8
Having concluded that plaintiff was required to meet the introductory criteria of Listing
12.05, the court must next consider whether the ALJ's finding that plaintiff does not meet those
criteria is supported by substantial evidence. Because the court cannot meaningfully determine the
ALJ's basis for finding that plaintiff does not meet the requirement of deficits in adaptive
functioning before age 22, this court must conclude that the ALJ's finding is not supported by
substantial evidence, and will remand this case to the ALJ for additional evaluation. See Jones v.

8
The requirement that plaintiff must meet the introductory criteria to § 12.05 clearly and
unequivocally is stated in the explanatory notes to the mental disorder listings. 20 C.F.R. Pt. 404, Subpt.
P, App. I, § 12.00A (if claimant's impairment satisfies diagnostic description in introductory paragraph
and anyone of the four sets of criteria in A through D, the impairment meets Listing 12.05). The United
States Court of Appeals for the Third Circuit likewise has indicated that a claimant must satisfy the
requirements of the introductory paragraph of Listing 12.05. See Gist v. Barnhart, 67 Fed. Appx. 78, 81
(3d Cir. 2003)("[a]s 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. "); Cortes v. Commissioner of Social Security, 255 Fed. Appx. 646, 651 (3d Cir. 2007) (to
meet the Listing 12.05, the claimant must prove, inter alia, "subaverage general intellectual functioning
with deficits in adaptive functioning" manifesting before age 22). See also Illig, 570 Fed. Appx. at 266 n.
9 ("We will assume without deciding that showing deficits in adaptive functioning is a fourth requirement
of Listing 12.05C").
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Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (requiring the ALl to sufficiently explain his findings
to pennit meaningful review).
The Regulations do not define "deficits of adaptive functioning," nor do they identify
guidelines by which to assess the existence or severity of a claimant's alleged deficits. Logan v.
Astrue, 2008 WL 4279820 at *8 (W.D. Pa., Sept. 16, 2008)(D.J. Fischer). However, the Social
Security Administration ("SSA") has issued a regulation entitled "Technical Revisions to Medical
Criteria for Detenninations of Disability" , 67 FR 20018-01 (April 24, 2002), to provide guidance
on the matter.
In that regulation, the SSA recognized that each of the four leading professional mental
health organizations in the United States that deal with intellectual disabilities defines "deficits in
adaptive functioning" in a slightly different manner. Logan, 2008 WL 4279820, at *8. These
various definitions all require significant deficits in intellectual functioning, but differ as to the age
of onset and the method of measuring the required deficits in adaptive functioning. Id. 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 of the
professional organizations. Id. In order to assess a claimant's alleged intellectual disability to
detennine ifdeficits in adaptive functioning exist, the regulation directs that an ALl should consult
either the American Psychiatric Association's DSM-V, the standard set forth by the American
Association onIntellectual and Developmental Disabilities or the criteria ofthe other major mental
health organizations. Id.
In this case, it is not clear from the ALl's decision which organization's standard for
measuring deficits in adaptive functioning, ifany, he consulted in concluding that plaintiff does not
have "deficits in adaptive functioning." Although the ALl set forth a number of factors which he
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considered in support of his conclusion, the court nevertheless is left to guess as to which standard
the ALl employed in his analysis.
Because the ALl's assessment of whether plaintiff has "deficits in adaptive functioning"
fails to comply with the SSA's regulatory directive to identify the standard he used to determine
that plaintiff does not meet the introductory criteria to Listing 12.05, he failed to sufficiently
explain his findings to permit meaningful review. Accordingly, the ALl's step 3 finding is
incomplete and remand is required for reconsideration of whether plaintiff has established deficits
in adaptive functioning prior to age 22. On remand, the ALJ must identify and apply one of the
four standards of measurement used by one ofthe authorized professional organizations in making
this determination and must explain his rationale for whether or not plaintiffmeets the introductory
criteria of 12.05 under the chosen standard.
Should the ALJ determine on remand that plaintiff has established the requisite deficits in
adaptive functioning before age 22 under one of the approved standards, he must then consider
whether plaintiff meets the criteria ofparagraph C ofListing 12.05.9 As already noted, the ALJ did
not evaluate whether plaintiff meets the criteria of 12.05C in this case because he found that
plaintiff does not meet the introductory criteria. (R. 18). Although the ALJ did reference
intelligence testing in 2011 resulting in scores that were above the range noted in Listing 12.05C,
there also is evidence in the record of other IQ testing which resulted in scores falling within that
requisite range. (R. 581; 584; 587).

9 In order to meet Listing 12.05C, a claimant must 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. The Regulations only require that one ofthe three IQ scores be in the
60 through 70 range. § 12.00D.6.c; Markle, 324 F.3d at 186. Moreover, under the regulations, the second
prong of 12.05C is satisfied by a finding that the "other" impairment is "severe" within the meaning of step
2 ofthe sequential evaluation process. See Markle, 324 F .3d at 186; 20 C.F .R. §416.920( c); 65 Fed. Reg.
50746,50772 (August 21, 2000).
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While it is true that an ALl is not required to accept a claimant's IQ scores and may reject
scores that are inconsistent with the record, Markle, 324 F.3d at 186, neither may "[a]n ALl ...
reject IQ scores based on personal observations of the claimant and speculative inferences drawn
from the record." Morales, 225 F .3d at 318. Thus, if the ALl should determine on remand that
plaintiff has met the introductory criteria of Listing 12.05, he also specifically must consider the
requirements of 12.05C and determine the validity ofthe IQ scores set forth in the record, and must
explain his reasons for rejecting any score he may deem invalid.
For the foregoing reasons, plaintiffs motion for summary judgment will be granted, the
Commissioner's motion for summary judgment will be denied, and this case will be remanded to
the Commissioner for further proceedings consistent with this opinion.

/~~
Gustave Diamond
United States District Judge

cc:

H. Brian Peck, Esq.
The Crossroads Law Firm
198 Canterbury Road
McMurray, PA 15317
Colin Callahan

Assistant U.S. Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 152] 9

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