CONQUEST v. BERRYHILL

Filing 15

OPINION and ORDER denying 10 Motion for Summary Judgment; granting 13 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 1/28/19. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DARRYL CONQUEST,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 17-158

AMBROSE, Senior District Judge

OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 10 and
13). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 11 and 14). After
careful consideration of the submissions of the parties, and based on my Opinion set forth below,
I am denying Plaintiff’s Motion for Summary Judgment (ECF No. 10) and granting Defendant’s
Motion for Summary Judgment. (ECF No. 14).
I. BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social
Security denying his applications for disability insurance benefits and supplemental security
insurance benefits pursuant to the Social Security Act. Plaintiff filed his applications alleging he
had been disabled since July 1, 2009.

(ECF No. 8-8, pp. 9, 11).

On October 15, 2015,

Administrative Law Judge (“ALJ”), Suzanne Krolikowski, held a hearing. (ECF No. 8-3).

On

April 21, 2016, the ALJ found that Plaintiff was not disabled under the Social Security Act. (ECF
No. 8-2, pp. 15-27).

1Nancy

A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.

After exhausting all administrative remedies thereafter, Plaintiff filed this action. The
parties have filed Cross-Motions for Summary Judgment. (ECF Nos. 10 and 13). The issues are
now ripe for review.
II. LEGAL ANALYSIS
A. 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). Additionally,
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 re-weigh 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, however, 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. §423(d)(1)(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.

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20 C.F.R. §404.1520(a).

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., appx. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant’s impairments
prevent him from performing his past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he can perform 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. §404.1520.

The claimant carries the initial burden of demonstrating by medical

evidence that he 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.

Step 3 - Listing 12.05(C)

Plaintiff argues that the ALJ erred in failing to find that Plaintiff meets the requirements of
Listing 12.05(C). (ECF No. 10, pp. 18-19). In step three of the analysis, 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, Appx. 1. Jesurum v. v. Secretary of Health and Human Services, 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. Commissioner, 220 F.3d 112,
119 (3d Cir. 2000).
At issue in this case is Listing 12.05(C) (intellectual disability). See, 20 C.F.R. pt. 404,
subpt. P, app. 1 §12.05. Listing 12.05 – Intellectual Disability provides, in relevant part:
Intellectual disability refers to significantly subaverage general intellectual function

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with deficits in adaptive functioning initially manifested during 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.
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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 or function;
20 C.F.R. pt. 404, subpt. P., app. 1 §12.05(C). Thus, to satisfy Part C, Plaintiff must have: 1)
significantly subaverage intellectual functioning with deficits in adaptive functioning initially
manifested during developmental period (i.e., before age 22); 2) a valid verbal, performance, or
full scale IQ of 60 through 70, and 3) a physical or other mental impairment imposing an additional
and significant work-related limitation or function. 20 C.F.R. pt. 404, subpt. P., app. 1 §12.05C.
To be found presumptively disabled, a plaintiff must meet all of the criteria of a Listing. 20 CFR
§§404.1525(c)(3), 416.925(c)(3). An impairment that meets only some of the criteria, “no matter
how severely, does not qualify” for a per se disability determination. Sullivan v. Zebley, 493 U.S.
521, 530 (1990).
Plaintiff asserts that his lowest valid IQ score is 66 and the ALJ improperly rejected the
same. (ECF No. 11, pp. 9-12). “An ALJ may reject IQ scores that are inconsistent with the
record as long as the basis for doing so is adequately explained. Yurek v. Colvin, 2014 WL
4078592, at *9 (M.D.Pa. Aug.18, 2014) (citing Schmidt v. Commissioner of Social Security, 2013
WL 1386881 at *1 (W.D.Pa. April 4, 2013). See also Markle v. Barnhart, 324 F.3d 182, 187 (3d
Cir.2003) (it is not required to accept a claimant's IQ scores and [an ALJ] may reject scores that
are inconsistent with the record).”

Jones v. Colvin, No. 1:14-CV-00282, 2015 WL 3646313, at

*6 (W.D. Pa. June 10, 2015). According to the Program Operations Manual System (POMS),
“IQ scores tend to stabilize by the age of 16. Regardless of the claimant’s age at adjudication,

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reliable IQ testing obtained at age 16 or older is valid to support the IQ findings required under
listing 12.05” POMSDI 24515.020(c)(5)(a).
As noted by the ALJ in this case, there are two competing valid full scale IQs of 77 and 66
since the time Plaintiff attained the age of 16. (ECF No. 9-2, p. 19). As a result, the ALJ was
required to weigh this evidence in light of all of the other evidence of record in this case. The
ALJ did just that explaining in detail her basis for the same.
In terms of the requirements in paragraph C, they are not met because the claimant
does not have a valid verbal, performance and, 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 claimant’s high school transcripts include
a prior 1981 psychological evaluation and testing on the Wechsler Intelligence
Scale for Children – revised (WISC-rev) on which he obtained a FSIQ of 79 (Ex.
11F/2). In 1984, at age 17, the claimant was administered the Wechsler-Adult
Intelligence Scale-revised (WAIS-rev) and obtained a full scale IQ of 77, generally
consistent with the earlier testing (Ex. 11F/3). He had earlier WISC testing in 1979
and obtained a FSIQ of 89 (Ex. 11F/19). The undersigned finds the recent
consultative examiner’s testing results at Exhibit 14F, including a full scale IQ of
66, are not consistent with the earlier IQ testing scores, the claimant’s semi-skilled
work history, his reported activities of daily living, and his abilities and testimony at
the hearing. During the interview, the examiner found observed (sic) that the
claimant was cooperative and his manner of relating and social skills were found
to be adequate (Ex. 14F). Similarly, at the hearing, the claimant was friendly,
articulate and able to provide an extensive medical, family, and educational
background beginning in childhood. He expressed extremely good insight into his
medical conditions and history. His hearing testimony and other evidence of
record does not support the testing results indicating a full scale IQ of 66, in the
deficient category of mildly impaired intellectual disability, and therefore the
undersigned does not find the WAIS-IV testing results at Exhibit 14F a valid
indication of the claimant’s abilities.
(ECF No. 8-2, p. 19). In other words, the ALJ rejected the full scale IQ of 66 as inconsistent with
other full scale IQ scores, Plaintiff’s work history, his activities of daily living and his abilities and
testimony at the hearing. Id.

Based on a review of the record, I find there is substantial

evidence to support the ALJ’s findings in this regard. (ECF No. 8-2, pp. 15-27). Consequently,
remand on this basis is not warranted.2

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Plaintiff also suggests that the ALJ erred in failing to assess whether Plaintiff had deficits in adaptive
functions manifesting before the age of 22. (ECF No. 11, pp. 12-14). As I stated previously, to be found

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An appropriate order shall follow.

presumptively disabled, a plaintiff must meet all of the criteria of a Listing. 20 CFR §§404.1525(c)(3),
416.925(c)(3). An impairment that meets only some of the criteria, “no matter how severely, does not
qualify” for a per se disability determination. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Since the
ALJ found that Plaintiff failed to meet one of the criteria of 12.05(C), I find the ALJ did not err in failing to
discuss whether Plaintiff had deficits in adaptive functioning manifesting before the age of 22.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DARRYL CONQUEST,
Plaintiff,
-vsNANCY A. BERRYHILL,3
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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)
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Civil Action No. 17-158

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 28th day of January, 2019, it is ordered that Plaintiff’s Motion for
Summary Judgment (ECF No. 10) is denied and Defendant’s Motion for Summary Judgment
(ECF No. 13) is granted.

BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

3Nancy

A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.