PIPER v. BERRYHILL
Filing
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OPINION and ORDER granting 9 Motion for Summary Judgment; denying 11 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 3/13/19. (sps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DENISE MAE PIPER,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.
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Civil Action No. 2:18-93
AMBROSE, Senior District Judge
OPINION
and
ORDER OF COURT
SYNOPSIS
Pending before the Court are Cross-Motions for Summary Judgment. [ECF Nos. 9 and
11]. Both parties have filed Briefs in Support of their Motions. [ECF Nos. 10 and 12]. After
careful consideration of the submissions of the parties, and based on my Opinion set forth below,
Defendant’s Motion [ECF No. 11] is denied and Plaintiff’s Motion [ECF No. 9] is granted.
I. BACKGROUND
Plaintiff has brought this action for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying her application for Supplemental Security Income
(“SSI”) under Title XVI of the Social Security Act (the “Act”). Plaintiff applied for SSI on or about
1 Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017, and is
automatically substituted as the Defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
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December 20, 2013. [ECF No. 7-7 (Ex. B1D)].
In her application, she alleged that she was
disabled due to osteoarthritis, left knee impairment, carpal tunnel syndrome, depression, anxiety,
and right foot impairment, and that she had been unable to work since August 1, 2013. [ECF No.
7-8 (Ex. B2E)].
Administrative Law Judge (“ALJ”) Christian Bareford held a hearing on June 16,
2016, at which Plaintiff was represented by counsel. [ECF No. 7-3, at 48-79]. Plaintiff appeared
at the hearing and testified on her own behalf. Id. A vocational expert also was present at the
hearing and testified. Id. at 73-76. In a decision dated October 12, 2016, the ALJ found that
Plaintiff could perform her past relevant work as a housekeeper, and, therefore, that Plaintiff was
not disabled under the Act. [ECF No. 7-2, at 32-41]. On, November 20, 2017, the Appeals
Council denied Plaintiff’s request for review.
Id. at 1-5.
Having exhausted all of her
administrative remedies, Plaintiff filed this action.
The parties have filed Cross-Motions for Summary Judgment. [ECF Nos. 9 and 11].
The issues are now ripe for my review.
II.
A.
LEGAL ANALYSIS
STANDARD OF REVIEW
The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner’s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Substantial evidence has been defined as “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.” Ventura v. Shalala, 55 F.3d
900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Determining
whether substantial evidence exists is “not merely a quantitative exercise.” Gilliland v. Heckler,
786 F.2d 178, 183 (3d Cir. 1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
“A single piece of evidence will not satisfy the substantiality test if the secretary ignores, or fails
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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).”
Id.
The Commissioner’s findings of fact, if supported by substantial
evidence, are conclusive. 42 U.S.C. § 405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d
Cir. 1979). A district court cannot conduct a de novo review of the Commissioner’s decision or reweigh the evidence of record. Palmer v. Apfel, 995 F. Supp. 549, 552 (E.D. Pa. 1998). Where
the ALJ's findings of fact are supported by substantial evidence, a court is bound by those
findings, even if the court would have decided the factual inquiry differently. Hartranft v. Apfel,
181 F.3d 358, 360 (3d Cir. 1999). To determine whether a finding is supported by substantial
evidence, the district court must review the record as a whole. See 5 U.S.C. § 706.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot
engage in substantial gainful activity because of a 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 at least 12 months. 42 U.S.C. § 1382(a)(3)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use when
evaluating the disabled status of each claimant. 20 C.F.R. § 416.920. The ALJ must determine:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the
claimant has a severe impairment; (3) if the claimant has a severe impairment, whether it meets
or equals the criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1; (4) if the impairment does not
satisfy one of the impairment listings, whether the claimant’s impairments prevent her from
performing her past relevant work; and (5) if the claimant is incapable of performing her past
relevant work, whether she can perform any other work which exists in the national economy, in
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light of her age, education, work experience and residual functional capacity.
20 C.F.R. §
416.920. The claimant carries the initial burden of demonstrating by medical evidence that she
is unable to return to his previous employment (steps 1-4). Dobrowolsky, 606 F.2d at 406.
Once the claimant meets this burden, the burden of proof shifts to the Commissioner to show that
the claimant can engage in alternative substantial gainful activity (step 5). Id.
A district court, after reviewing the entire record, may affirm, modify, or reverse the
decision with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745
F.2d 210, 221 (3d Cir. 1984).
B.
Listing 12.05 – Intellectual Disability
At step two of the analysis, the ALJ found that Plaintiff had severe impairments, including
osteoarthritis, borderline intellectual functioning, and depression. [ECF No. 7-2, at 34]. At step
three of the analysis, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. Id. at 35-36. In particular, the ALJ found that Plaintiff’s
osteoarthritis did not meet any of the listings set forth at 1.02A or 1.03; and that Plaintiff’s mental
impairments did not meet or medically equal the criteria of Listings 12.02 (organic mental
disorders) and 12.04 (affective disorders). Id. The ALJ further found that Plaintiff had the
residual functional capacity (“RFC”) to perform light work, except that she is limited to simple and
routine tasks. Id. at 36-40. The ALJ ultimately concluded that Plaintiff was able to perform her
past relevant work as a housekeeper, and, therefore, that she was not disabled. Id. at 40-41.
Plaintiff argues that the ALJ erred in determining that Plaintiff’s borderline intellectual
functioning was a severe impairment, but then failing to analyze that impairment under Listing
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12.05 at step 3 of the analysis. [ECF No. 10 at 15-16]. After careful consideration, I agree that
remand is necessary on this issue.
In step three of the analysis set forth above, the ALJ must determine if the claimant’s
impairment meets or is equal to one of the impairments listed in 20 C.F.R., Pt. 404, Subpt. P, App.
1. Jesurum v. Sec’y of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995). An applicant
is per se disabled if the impairment is equivalent to a listed impairment and, thus, no further
analysis is necessary. Burnett v. Comm’r, 220 F.3d 112, 119 (3d Cir. 2000). The Court of
Appeals for the Third Circuit has held that:
Putting the responsibility on the ALJ to identify the relevant listed impairment(s) is
consistent with the nature of Social Security disability proceedings which are
“inquisitorial rather than adversarial” and in which “[i]t is the ALJ’s duty to
investigate the facts and develop the arguments both for and against granting
benefits.”
Burnett, 220 F.3d at 120, n.2 (quoting Sims v. Apfel, 530 U.S. 103 (2000)). Further, the ALJ
must provide an explanation of his reasoning at step three in order for courts to engage in
meaningful judicial review.
See Burnett, 220 F.3d at 119-20 (holding that an ALJ’s bare
conclusory statement that an impairment did not match, or was not equivalent to, a listed
impairment was insufficient).
Subsequent decisions have clarified, however, that the ALJ’s
failure to cite a specific Listing at step three is not fatal provided that the ALJ’s development of
the record and explanation of findings permit meaningful review of the step-three conclusion.
See Jones v. Barnhart, 364 F.3d 501, 503-05 (3d Cir. 2004); Lopez v. Comm’r of Soc. Sec., 270
F. App’x 119, 121-22 (3d Cir. 2008).
In this case, Plaintiff argues that the ALJ failed to evaluate appropriately whether she had
a condition that met or equaled Listing 12.05C. See 20 C.F.R. pt. 404, subpt. P, app.1 § 12.05.
The applicable version of Listing 12.05 – Intellectual Disability provides, in relevant part:
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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 (2016).
As the above language indicates, an
impairment meets this Listing when the requirements of both the introductory paragraph and
paragraphs A, B, C or D of the Listing are satisfied. See id.; see also id. § 12.00A (stating in
reference to Listing 12.05 that “[i]f your impairment satisfies the diagnostic description in the
introductory paragraph and any one of the four sets of criteria, we will find that your impairment
meets the listing” (emphasis added)); Cortes v. Comm’r of Soc. Sec., 255 F. App’x 646, 651 (3d
Cir. 2007); Gist v. Barnhart, 67 F. App’x 78, 81 (3d Cir. 2003).
Here, there is evidence that Plaintiff met the first prong of 12.05C, a valid, verbal,
performance, or full-scale IQ of 60-70.
Specifically, intellectual testing completed by state
agency consultant, T. David Newman, Ph.D., in June 2014 showed, inter alia, that Plaintiff had a
full-scale IQ score of 70 and a verbal comprehension index of 66. [ECF No. 7-12 (Ex. B11F)].
The record also supports that Plaintiff met the second prong of 12.05C. Applicable case law
holds that a finding of an additional “severe impairment” as defined in 20 C.F.R. § 416.920(c),
establishes “a physical or other mental impairment imposing an additional and significant workrelated limitation of function” within the meaning of Listing 12.05C. Gist, 67 F. App’x at 82 n.2;
Markle v. Barnhart, 324 F.3d 182, 188 (3d Cir. 2003). In step two, the ALJ found two severe
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impairments, osteoarthritis and depression, in addition to borderline intellectual functioning.
[ECF No. 7-2, at 34]. Plaintiff also points to record evidence that arguably could demonstrate the
onset of her impairment before age 22 as required by the introductory paragraph. For example,
Dr. Newman’s testing indicated she reads at a second-grade level; she dropped out of school in
seventh grade at age 15; her sister indicated that she had problems with comprehension while in
school; and there is no evidence of a traumatic brain injury or any other event pointing to a decline
in her intellectual functioning over time. See ECF No. 10, at 15 n.4; Exs. B7F, B11F.
Because it is undisputed that the ALJ did not expressly address Listing 12.05 or intellectual
disability in his step three analysis, the issue is whether his decision, read as a whole,
nevertheless illustrates that he considered the appropriate factors in reaching his conclusion that
Plaintiff did not meet the requirements of any listing, including Listing 12.05.
After careful
consideration, I find that it does not. As an initial matter, although the failure to cite a specific
listing is not dispositive, the fact that the ALJ explicitly cited and discussed the listings relevant to
Plaintiff’s osteoarthritis and Listings 12.02 and 12.04 related to her mental impairments lends
credence to Plaintiff’s argument that the ALJ never contemplated listing 12.05 in connection with
her borderline intellectual functioning, either at step three or elsewhere in his analysis. Indeed,
nothing in the ALJ’s decision, read as a whole, suggests that the ALJ addressed any of the
pertinent 12.05 factors. For example, although the ALJ discusses Plaintiff’s IQ scores in other
contexts, those analyses (Listings 12.02, 12.04, and the RFC analysis) are not analogous to the
12.05C requirements. Moreover, the ALJ’s opinion never challenges Plaintiff’s IQ scores as
invalid. Thus, nothing in the opinion casts doubts on the scores’ validity as applied to 12.05C.
Likewise, the opinion never mentions, let alone discusses, “deficits in adaptive functioning” or
whether Plaintiff’s impairment manifested itself prior to age 22. Although the evidence in no way
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requires a finding that Plaintiff’s borderline intellectual functioning satisfied the requirements of
Listing 12.05C, the ALJ’s failure to discuss Plaintiff’s impairment in the context of this listing
precludes meaningful judicial review and requires remand on this issue.
Defendant’s arguments to the contrary are unpersuasive. Defendant’s primary argument
is that, viewing the ALJ’s decision as a whole, Plaintiff “has not, and cannot,” demonstrate that
she has the requisite deficits in adaptive functioning to satisfy Listing 12.05’s introductory
language. [ECF No. 12, at 12-16]. 2 Defendant proceeds to identify other findings throughout
the ALJ’s decision that she contends show that Plaintiff cannot meet the “deficits in adaptive
functioning” prong. See id. The sections of the opinion to which Defendant cites, however,
relate to the ALJ’s analysis of Plaintiff’s RFC and of the severity of Plaintiff’s mental impairments
under the B criteria of Listings 12.02 and 12.04. Without speculating, there is no way I can garner
from the decision that the ALJ intended to address the criteria applicable to Listing 12.05C, and
Defendant has not satisfactorily explained how the analyses would be analogous to the 12.05
requirements. See, e.g., Yurek v. Colvin, Civil Action No. 1:13-cv-1571, 2014 WL 4078592, at
*10 (M.D. Pa. Aug. 18, 2014) (rejecting a similar argument by the Commissioner). Because the
ALJ did not conduct the requisite analysis either explicitly or implicitly, and, thus, did not rely on
the reasoning urged by Defendant, it is improper for me to consider such arguments here. See
Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001) (confirming that the review of an
administrative order must be judged on those bases set forth and disclosed in that order; to
consider post hoc rationalizations not listed by the ALJ runs contrary to law).
Defendant concedes that Plaintiff has a full-scale IQ score of 70 and that the ALJ found she had other
severe physical or mental impairments. [ECF No. 12, at 14].
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In short, although the ALJ’s step three analysis considered whether Plaintiff’s mental
impairments met the criteria of Listings 12.02 and 12.04, the ALJ never mentioned or discussed
Listing 12.05 despite finding Plaintiff’s borderline intellectual functioning to be a severe
impairment. This omission is especially glaring in light of the fact that the ALJ clearly was aware
of Plaintiff’s IQ scores and even discussed those scores in evaluating the “B” criteria of Listings
12.02 and 12.04 as well as in his RFC analysis. [ECF No. 7-2 at 35, 38-39]. The ALJ’s failure
to discuss Listing 12.05 when Plaintiff’s intellectual functioning is at issue prohibits me in this case
from conducting a proper and meaningful review. Consequently, remand is warranted for a full
and proper analysis of Listing 12.05.
C.
RFC Finding – Past Relevant Work
Plaintiff disagrees with the ALJ’s finding that she retained the RFC to perform her past job
as a housekeeper. [ECF No. 7-2, at 36-41]. Primarily, Plaintiff contends that the ALJ erred in
giving great weight to the opinion of state agency consultant, Dr. Rosenberg, while ignoring Dr.
Rosenberg’s finding that Plaintiff requires the use of a cane to ambulate. [ECF No. 10, at 17-20
(citing Ex. B10F at 426)]. Although, in the medical source statement to which Plaintiff cites, Dr.
Rosenberg appears to have checked a box indicating Plaintiff requires a cane, Defendant cites
significant contrary evidence, including indications elsewhere in Dr. Rosenberg’s own report and
medical source statement that Plaintiff does not need a cane; as well as Plaintiff’s own testimony
and reports that she has never required the use of a cane. See ECF No. 12, at 18 and Exhibits
cited therein. Because whether or not Plaintiff requires a cane may affect her ability to perform
her past work as a housekeeper, the ALJ on remand should clarify his findings as to Dr.
Rosenberg’s opinion as well as Plaintiff’s use of a cane. If the ALJ finds that Plaintiff requires
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the use of a cane, he also must re-evaluate whether she can perform her past work as a
housekeeper and/or other work that exists in the economy. 3
III.
CONCLUSION
Under the Social Security regulations, a federal district court reviewing the decision of the
Commissioner denying benefits has three options.
It may affirm the decision, reverse the
decision and award benefits directly to a claimant, or remand the matter to the Commissioner for
further consideration. 42 U.S.C. § 405(g) (sentence four). In light of an objective review of all
evidence contained in the record, I find that the ALJ’s decision is not supported by substantial
evidence because, in discussing the Listings, the ALJ failed to adequately address Listing 12.05
as set forth more fully herein. The case therefore is remanded for further consideration in light
of this Opinion. In remanding on the points herein, I make no findings as to whether Plaintiff is
or is not disabled. I simply find that I cannot properly evaluate the ALJ’s opinion on the record
before me. For these and all of the above reasons, Plaintiff’s Motion for Summary Judgment is
granted to the extent set forth herein, and Defendant’s Motion for Summary Judgment is denied.
An appropriate Order follows.
Plaintiff also argues that the ALJ erred in evaluating the opinion evidence from state agency consultant,
Chantal Deines, as to Plaintiff’s mental health impairments. [ECF No. 10, at 19-20]. Because I am
already remanding this case for further proceedings, it is unnecessary to address Plaintiff’s contentions in
this regard. If such deficiencies exist, the ALJ will address them on remand.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DENISE MAE PIPER,
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Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.
Civil Action No. 2:18-93
AMBROSE, Senior District Judge
ORDER OF COURT
AND NOW, this 13th day of March, 2019, after careful consideration of the submissions of
the parties and for the reasons set forth in the Opinion accompanying this Order, it is ordered that
Plaintiff’s Motion for Summary Judgment [ECF No. 9] is GRANTED to the extent that Plaintiff
seeks remand for further consideration, and the matter is REMANDED to the Commissioner for
further proceedings consistent with the Opinion attached hereto.
Defendant’s Motion for
Summary Judgment [ECF No. 11] is DENIED.
BY THE COURT:
/s/ Donetta W. Ambrose
Donetta W. Ambrose
U.S. Senior District Judge
1 Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017, and is
automatically substituted as the Defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
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