Alves v. Colvin
Filing
15
ORDER granting 10 Motion to Reverse Decision of the Commissioner; denying 12 Motion to Affirm the Decision of the Commissioner; adopting 13 Report and Recommendations. So Ordered by Chief Judge William E. Smith on 11/5/2015. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
DEANNA ALVES,
)
)
Plaintiff,
)
)
v.
)
C.A. No. 14-229 S
)
CAROLYN W. COLVIN,
)
COMMISSIONER OF THE SOCIAL
)
SECRUITY ADMINISTRATION,
)
)
Defendant.
)
___________________________________)
ORDER
WILLIAM E. SMITH, Chief Judge.
On April 22, 2015, United States Magistrate Judge Lincoln D.
Almond issued a Report and Recommendation (“R&R”) in the abovecaptioned matter (ECF No. 13) recommending that the Commissioner’s
Motion for an Order Affirming the Decision of the Commissioner
(ECF No. 12) (“Def.’s Mot.”) be DENIED; that Plaintiff’s Motion to
Reverse Without or, Alternatively, With Remand for a Rehearing the
Commissioner’s Final Decision (ECF No. 10) (“Pl.’s Mot.”) be
GRANTED;
and
that
this
matter
be
REMANDED
for
further
administrative proceedings consistent with the recommendations in
the R&R.
Defendant filed an objection to the R&R (ECF No. 14)
(“Def.’s Obj.”).
This Court hereby accepts, pursuant to 28 U.S.C. § 636(b)(1),
the
R&R,
with
the
following
clarification:
on
remand,
the
Administrative Law Judge (“ALJ”) should first determine whether
Plaintiff meets the definition of “mental retardation” in the
introductory paragraph of Listing 12.05 of the Commissioner’s
Listing of Impairments; namely, whether she has shown “deficits in
adaptive functioning initially manifested during the developmental
period.”
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (“Listing
12.05”).
If the ALJ finds that Plaintiff meets this threshold
definition,
recommended,
the
ALJ
consider
should
then,
whether
as
Magistrate
Plaintiff
meets
Judge
the
Almond
severity
criteria of Listing 12.05(C) due to her Post-Traumatic Stress
Disorder (“PTSD”). 1
Listing 12.05 provides the criteria for “Mental retardation”: 2
Mental retardation 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.
Thus, Listing 12.05 “contains two parts: (1) an introductory
paragraph that describes mental retardation in terms of subaverage
1
The relevant facts, procedural background, and analysis are
fully set forth in the R&R. The Court limits its discussion to
and presents only those facts pertinent to Defendant’s Objection.
2
Listing 12.05 was recently amended to change the name of
the
category
from
“mental
retardation”
to
“intellectual
disability,” but the substantive requirements to meet the Listing
have not changed.
2
intellectual
functioning
and
deficits
in
adaptive
functioning
manifest before age 22; and (2) subparagraphs specifying the
required level of severity.”
Libby v. Astrue, 473 F. App’x 8, 8-
9 (1st Cir. 2012) (“Libby I”).
To be considered disabled pursuant
to Listing 12.05, Plaintiff must meet both the requirements of the
introductory paragraph and the requisite level of severity in one
of the subparagraphs.
Id. at 8.
The ALJ found that Plaintiff was not disabled because she
failed
to
meet
the
severity
requirements
of
any
of
the
subparagraphs of Listing 12.05; however, he did not specifically
address whether Plaintiff met the threshold requirement of the
introductory
paragraph.
(See
Tr.
22-24.)
Consequently,
in
reviewing the ALJ’s decision, Magistrate Judge Almond focused on
the severity criteria rather than the introductory paragraph. With
respect to subparagraph C of Listing 12.05, Magistrate Judge Almond
found that the ALJ failed to properly consider Plaintiff’s PTSD in
determining that Plaintiff did not have an “other mental impairment
imposing an additional and significant work-related limitation of
function.” 3
The R&R notes that the ALJ relied on records that pre-
dated the incident from which Plaintiff developed PTSD, and gave
3
Listing 12.05(C) is satisfied where there is “[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(C).
3
minimal weight to the assessments that noted Plaintiff’s worsening
condition after this incident because they were supposedly not
consistent
with
the
record.
(See
R&R
17-18,
ECF
No.
13.)
Accordingly, the R&R recommends that the matter be remanded for
further consideration of Plaintiff’s PTSD.
Defendant’s Objection argues that Magistrate Judge Almond
“failed to acknowledge the additional requirements of Listing
12.05’s introductory paragraph, and to address the Commissioner’s
argument that the record did not support a finding that Plaintiff
met those additional requirements.”
(Def.’s Obj. 2, ECF No. 14.)
According to Defendant, Plaintiff does not meet the requirements
of Listing 12.05’s introductory paragraph because she has failed
to show any “deficits in adaptive functioning initially manifested
during the developmental period.”
(Id.)
As noted above, it is not clear from the ALJ’s decision
whether he considered the threshold question of whether or not
Plaintiff has shown “deficits in adaptive functioning initially
manifested during the developmental period.”
(See Tr. 22-24.)
This Court does not agree with Defendant that there is a clear
“absence
of
functioning
period.’”
been
the
requisite
initially
evidence
manifested
of
during
(Def.’s Obj. 3, ECF No. 14.)
diagnosed
with
“mild
mental
4
‘deficits
the
in
adaptive
developmental
Plaintiff has repeatedly
retardation”
and
received
extensive special education services throughout her youth.
R&R 10-15, ECF No. 13.)
(See
That said, as Defendant notes:
Plaintiff by her own admission can take care of her
personal needs, care for a pet, do some housework and
cooking, drive, shop, see friends and play sports with
them, watch television, [] use a computer[,] . . . plan
a menu and purchase the necessary food items for it,
complete a job application independently, and baby-sit.
(Def.’s Mot. 15, ECF No. 12.)
Courts have found that a similar
level of functioning does not meet the criteria of Listing 12.05.
(Id.); see Stanley v. Colvin, Civil Action No. 11-10027-DJC, 2014
WL 1281451, at *17 (D. Mass. Mar. 28, 2014) (no deficits in
adaptive functioning where the plaintiff was able to “keep and
attend medical appointments[,] . . . obtain her driver’s license[,]
. . . alternate[] with her aunt in cleaning, cooking and taking
care of their apartment[,] . . . sometimes communicate[] with
friends by cell phone and [] occasionally accompany them out for
lunch or coffee”); Libby v. Astrue, No. 2:10-cv-292-JAW, 2011 WL
2940738, at *11 (D. Me. July 19, 2011)(“Libby II”), report and
recommendation adopted, 2011 WL 3715087 (D. Me. Aug. 24, 2011),
aff’d, 473 F. App’x 8 (1st Cir. 2012) (no deficits in adaptive
functioning where the plaintiff “obtained a driver’s license,
.
. . drove regularly[,] . . . was able to perform household
activities of daily living such as cooking, cleaning, helping take
care of her disabled husband, and occasionally babysitting her
grandchildren[,] . . . engaged in leisure/social activities[,] .
5
. . [and] took care of two cats, a bird, and fish”).
Nonetheless,
“the presence of certain, relative adaptive abilities does not
rule out the presence of deficits in other areas of adaptive
functioning.”
Richardson v. Soc. Sec. Admin. Comm’r, No. 1:10-
cv-00313-JAW, 2011 WL 3273140, at *9 (D. Me. July 29, 2011), report
and recommendation adopted, 2011 WL 3664357 (D. Me. Aug. 18, 2011)
(remanding for further consideration where the ALJ based her
finding that the plaintiff lacked deficits in adaptive functioning
on “a subset of relative adaptive abilities” without considering
“the other side of the ledger”).
Here, this Court finds that “the evidence as a whole does not
compel a conclusion that the plaintiff failed to meet the capsule
definition of Listing 12.05. However, it permits that conclusion.”
Libby II, 2011 WL 2940738, at *12.
Thus, this Court will not
“substitute its judgment for” that of the ALJ, id., and remands
this matter for further consideration; if the ALJ finds that
Plaintiff
meets
the
criteria
of
Listing
12.05’s
introductory
paragraph, the ALJ must then evaluate whether Plaintiff’s PTSD is
a “mental impairment imposing an additional and significant workrelated limitation of function” pursuant to Listing 12.05(C),
consistent with the R&R.
For
these
reasons,
the
R&R
is
hereby
ADOPTED
with
the
clarification outlined in this Order; the Commissioner’s Motion
for an Order Affirming the Decision of the Commissioner is DENIED;
6
Plaintiff’s Motion to Reverse Without or, Alternatively, With
Remand
for
a
Rehearing
the
Commissioner’s
Final
Decision
is
GRANTED; and this matter be REMANDED for further administrative
proceedings consistent with this Order and the R&R.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: November 5, 2015
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