Johnson v. Commissioner of Social Security Administration

Filing 29

ORDER rejecting 23 Report and Recommendation, and reversing and remanding Commissioner's decision. Signed by Honorable David C Norton on March 27, 2017.(rweh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
DEBORAH JEAN JOHNSON,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
____________________________________)

No. 0:15-cv-4666-DCN
ORDER

This matter is before the court on United States Magistrate Judge Paige J.
Gossett’s Report and Recommendation (“R&R”) that this court affirm Acting
Commissioner of Social Security Nancy A. Berryhill’s (the “Commissioner”)
decision denying plaintiff Deborah Jean Johnson’s (“Johnson”) application for
disability insurance benefits (“DIB”) and social security insurance benefits (“SSI”).
For the reasons set forth below, the court rejects the R&R, and reverses and remands
the Commissioner’s decision.
I. BACKGROUND
A.

Procedural History

Johnson filed an application for SSI on July 27, 2012 and an application for
DIB on August 4, 2012. Tr. 12. In each application, Johnson alleged disability
beginning January 25, 2004 (the “alleged onset date”). Id. The Social Security
Administration denied Johnson’s claims initially and on reconsideration. Id. Johnson
requested a hearing before an administrative law judge (“ALJ”), and ALJ Thomas G.
Henderson held a hearing on June 4, 2014. Tr. 9–54. The ALJ issued a decision on

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June 26, 2014, finding that Johnson was not disabled under the Social Security Act
(the “Act”). Tr. 9–32. Johnson requested Appeals Council review of the ALJ’s
decision. The Appeals Council declined Johnson’s request, Tr. 1–4, rendering the
ALJ’s decision the final action of the Commissioner.
On November 19, 2015, Johnson filed this action seeking judicial review of
the ALJ’s decision. The magistrate judge issued the R&R on December 7, 2016,
recommending that this court affirm the ALJ’s decision. Johnson filed objections to
the R&R on December 20, 2016, and the Commissioner responded to Johnson’s
objections on December 30, 2016. The matter is now ripe for the court’s review.
B.

Medical History

Because Johnson’s medical history is not directly at issue here, the court
dispenses with a lengthy recitation thereof and instead notes a few relevant facts.
Johnson was born on September 27, 1965 and was 38 years old on the alleged onset
date. Tr. 24. She communicates in English and has an eighth grade education. Id.
C.

ALJ’s Decision

The ALJ employed the statutorily required five-step sequential evaluation
process to determine whether Johnson had been under a disability since the alleged
onset date. The ALJ first determined that Johnson had not engaged in substantial
gainful activity during the relevant period. Tr. 14. At step two, the ALJ found that
Johnson suffered from the following severe impairments: borderline intellectual
functioning, lumbar spondylosis, pancreatitis, and bilateral kidney stones. Id. At step
three, the ALJ determined that Johnson’s impairments did not meet or equal one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”).

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Tr. 15–19. Most notably, the ALJ determined that Johnson did not show “deficits in
adaptive functioning initially manifested during the developmental period,” as
required by Listing 12.05. Tr. 16–18. Before reaching the fourth step, the ALJ
determined that Johnson had the residual functional capacity (“RFC”) to perform:
“[l]ight work as defined in 20 C.F.R. 404.1567(b) and 416.976(b) except that she can
perform postural activities occasionally.” Tr. 19. Additionally, the ALJ determined
that Johnson’s RFC was “limited to occupations, which involve the performance of
simple, routine, repetitive tasks.” Id. At step four, the ALJ found that Johnson was
unable to perform her past relevant work, but based on her age, education, and RFC,
Johnson could perform certain jobs that existed in significant numbers in the national
economy. Therefore, the ALJ concluded that Johnson had not been under a disability
within the meaning of the Act since the alleged onset date.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
§ 636(b)(1). A party’s failure to object is accepted as agreement with the conclusions
of the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination rests with this court. Mathews v. Weber,
423 U.S. 261, 270–71 (1976).
Judicial review of the Commissioner’s final decision regarding disability
benefits “is limited to determining whether the findings of the [Commissioner] are
supported by substantial evidence and whether the correct law was applied.” Hays v.

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Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is “more than a
mere scintilla of evidence but may be somewhat less than a preponderance.” Id.
(internal citations omitted). “[I]t is not within the province of a reviewing court to
determine the weight of the evidence, nor is it the court’s function to substitute its
judgment for that of the [Commissioner] if his decision is supported by substantial
evidence.” Id. Where conflicting evidence “allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that decision falls on the [ALJ],”
not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)
(internal citation omitted). However, “[a] factual finding by the ALJ is not binding if
it was reached by means of an improper standard or misapplication of the law.”
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)
III. DISCUSSION
Johnson objects to the R&R’s conclusion that the ALJ properly determined
that her mental impairments did not meet the criteria set out in former Listing
12.05C.1
Listing 12.05C provides, in relevant part:
[Intellectual Disability]: [Intellectual disability] refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e.,
1

Listing 12.05C was deleted from the Listings as of January 17, 2017,
pursuant to the final rule on Revised Medical Criteria for Evaluating Mental
Disorders, 81 Fed. Reg. 66138 (Sept. 26, 2016). However, because 81 Fed. Reg.
66138-01 clearly states that the Social Security Administration does not intend for the
court to apply the revised Listings retroactively in evaluating final agency decisions
rendered prior to January 17, 2017, the court will analyze this case as if Listing
12.05C were still in effect. See Revised Medical Criteria for Evaluating Mental
Disorders, 81 Fed. Reg. 66138 n.1 (Sept. 26, 2016) (“We expect that Federal courts
will review our final decisions using the rules that were in effect at the time we issued
the decisions.”).
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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 I.Q. of 60 through 70 and
a physical or other mental impairment imposing an additional and
significant work-related limitation of function . . . .
Rothrock v. Colvin, 2016 WL 1175189, at *4 (M.D.N.C. Mar. 23, 2016).2 Thus,
Listing 12.05C may be broken up into three prongs, requiring a claimant to show:
(1) “deficits in adaptive functioning initially manifested during the developmental
period”; (2) “[a] valid verbal, performance, or full scale I.Q. of 60 through 70”; and
(3) “a physical or other mental impairment imposing an additional and significant
work-related limitation of function.” Hancock v. Astrue, 667 F.3d 470, 473 (4th Cir.
2012) (quoting Listing 12.05C).
The ALJ acknowledged that Johnson satisfied the latter two prongs of Listing
12.05C, Tr. 16, but determined that Johnson “failed to demonstrate deficits in
adaptive functioning.” Tr. 18. Johnson argues that the ALJ based his decision on
mischaracterized, misinterpreted, and misstated facts. Pl.’s Objections 3. The issue
before the court is whether the ALJ’s adaptive functioning assessment was supported
by substantial evidence.
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“Effective September 3, 2013, the Social Security Administration replaced
the term ‘mental retardation’ with ‘intellectual disability’ in the Listings.” Rothrock,
2016 WL 1175189, at *4 n.5. Nevertheless, some courts have continued to use the
term “mental retardation” to reflect the language of the Listing at the time of the
ALJ’s decision. Id. (“Because the underlying administrative proceedings concluded
and this judicial action commenced before that regulatory change, this
Recommendation utilizes the prior nomenclature.”). This change in terminology had
already gone into effect at the time the ALJ issued its decision in this case—June 26,
2014. Therefore, the court utilizes the term “intellectual disability.”
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“‘[A]daptive functioning’ refers to the individual’s progress in acquiring
mental, academic, social and personal skills as compared with other unimpaired
individuals of his/her same age . . . .’” Weatherford v. Colvin, No. 6:13-cv-1885,
2014 WL 3881056, at *9 (D.S.C. Aug. 5, 2014) (alterations in original) (quoting
POMS § Dl 24515.056(D)(2), https://secure.ssa.gov/apps10/poms.nsf/lnx/
0424515056). “Deficits in adaptive functioning can include limitations in areas such
as communication, self-care, home living, social/interpersonal skills, use of
community resources, self-direction, functional academic skills, work, leisure, health,
and safety.” Jackson v. Astrue, 467 F. App’x 214, 218 (4th Cir. 2012) (quoting
Atkins v. Virginia, 536 U.S. 304, 309 n. 3 (2002)).
The ALJ analyzed Johnson’s adaptive functioning by discussing each of the
above-listed functional areas, and concluded that,
the claimant has failed to demonstrate deficits in adaptive functioning,
as she was not enrolled in special education classes in school, she had
a lengthy employment history, and managed her own finances. She
was able to raise her children as a single parent, drive, shop, and seek
health care when needed.
Tr. 17–18.
The court has reviewed the evidence the ALJ cited in support of his analysis,
and finds that the ALJ’s conclusion rests in part on a misapprehension and
misapplication of various facts. The court begins with the ALJ’s analysis of
Johnson’s “functional academic skills.” In assessing this factor, the ALJ
acknowledged that Johnson quit school in eighth grade,3 but placed more weight on
3

Though it is not entirely clear, the court assumes the ALJ was citing
Johnson’s decision to quit school in eighth grade as evidence that she exhibited
deficits in academic functioning. To the extent the ALJ somehow believed that this
evidence supported his finding that she did not exhibit such deficits, he was simply
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the fact that the record did not corroborate Johnson’s testimony that she was enrolled
in special education classes. Tr. 17. The ALJ based this finding on records produced
by Dorchester County School District Two, which indicated that the district had “no
special [education] records on file.” Tr. 195–98. It is notable the district did not
actually produce any of Johnson’s school records, despite the fact that the original
records request was for “all records.” Id. Though the court finds the ALJ’s reliance
on this evidence to be somewhat curious, it does not decide whether it was proper for
the ALJ to discredit Johnson’s testimony that she was enrolled in special education
classes. Instead, the court decides that even if Johnson was never enrolled in special
education classes, this fact does not justify the ALJ’s failure to discuss or explain the
weight given to other evidence of Johnson’s academic deficits. Courts have treated a
claimant’s enrollment in special education classes as one of many possible indicators
of academic deficits, along with reading and math skills, a history of failing classes
and grade levels, limited academic achievement, and I.Q. scores. See Salmons v.
Astrue, 2012 WL 1884485, at *7 (W.D.N.C. May 23, 2012) (finding deficits in
claimant’s functional academic skills based on claimant’s enrollment in special
education classes, claimant’s “difficulty reading and writing,” “basic math” skills,
low grades, and low I.Q. scores); Rivers, 2011 WL 2581447, at *3 (finding deficits in
claimant’s functional academic skill based on claimant’s status as a special needs
student, low I.Q. scores, failure go beyond 9th grade, low grades, and “functional
illiteracy”). Because courts have recognized that deficits in academic skill can

mistaken. See Rivers v. Astrue, No. 8:10-cv-00314, 2011 WL 2581447, at *3 (D.S.C.
June 28, 2011) (citing the fact that the “[p]laintiff dropped out of school in the ninth
grade” in finding that the plaintiff demonstrated deficits in his academic functioning).
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manifest themselves in different ways, it does not make sense to use the absence of
one possible manifestation to discount evidence of other manifestations. Put
differently, the fact that the claimant may not have attended special education classes
cannot be treated as dispositive of the issue when the record contains other evidence
of deficits in academic skill.
Here, the record showed that Johnson did not progress beyond the eighth
grade and did not earn a GED. Tr. 17, 24. Johnson testified that she had already
failed eighth grade twice at the time she dropped out of school. Tr. 49. There is also
evidence that Johnson reads and performs arithmetic at a third grade level, and spells
at a second grade level.4 Tr. 288. Indeed, Dr. James Way (“Dr. Way”), who
administered the tests that provided these results noted that Johnson’s reading,
spelling, and arithmetic test results demonstrated “very limited academic skills.”5 Id.
Finally, it is undisputed that Johnson received a verbal I.Q. score of 62, a
performance I.Q. score of 68, and a full scale I.Q. score of 62 in December 9, 2004.6
Id. Thus, there is a great deal of evidence that Johnson did manifest deficiencies in
her academic skills. The ALJ did not even mention most of this evidence and never
explained why he discounted any of it.
4

Indeed, the ALJ appears to have credited such evidence in his assessment of
Johnson’s communication skills, noting that her “reading level is at the 2nd to 3rd
grade level.” Tr. 17.
5
The court is aware that the ALJ gave “limited weight” to Dr. Way’s opinions
that Johnson was unable to function at her full potential and was incapable of
managing her funds. Tr. 22. However, it does not appear that the ALJ gave limited
weight to Dr. Way’s assertion that Johnson’s test results showed “very limited
academic skills,” and even if he did, it would not disturb the court’s conclusion, as the
test results speak for themselves.
6
In the absence of any evidence of a change in the claimant’s intellectual
functioning, the law assumes that the claimant’s IQ has remained relatively constant.
Luckey v. U.S. Dep’t of Heath & Human Servs., 890 F.2d 666, 668 (4th Cir. 1989).
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The ALJ’s assessment of Johnson’s self-care and home living skills is also
problematic. The ALJ found that Johnson exhibited grooming, feeding, and
independent living skills because she “takes her medications independently,” “cares
for her own hygiene,” “independently raised twins as a single parent,” and “helps her
disabled parents.” Tr. 17. However, the latter two of these findings are lacking in
evidentiary support. The ALJ mentions the fact that Johnson raised her children as a
single parent twice. Tr. 17, 18. Johnson does not dispute that she raised her children
without their father, but the evidence indicates that she has “resided with her parents
all her life.” Tr. 286. By highlighting the fact that Johnson raised her children
“independently” or as a “single parent,” the ALJ’s decision clearly suggests that
Johnson raised the children without any significant help from others. This is the only
reason why Johnson’s single parent status would be relevant. Perhaps it is unduly
speculative to assume that Johnson’s parents helped her raise her children, just
because Johnson has lived with her parents her entire life. But it was equally, if not
more, speculative for the ALJ to assume that Johnson raised her children
“independently,” just because she did not raise them with their father. The court has
searched the exhibits cited by the ALJ in connection with this finding and cannot see
any evidence of how Johnson’s children were raised. Thus, the court concludes that
the ALJ’s finding that Johnson raised her children “independently” is not supported
by the record.
The ALJ’s finding that Johnson “helps her disabled parents” is even more
deficient. The ALJ cites an August 9, 2012 Function Report for this proposition, Tr.
17 (citing Tr. 205), but the Function Report directly contradicts the ALJ’s analysis.

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The Function Report contains the question: “Do you take care of anyone else such as
a wife/husband, children, grandchildren, parents, friend, other?” Tr. 205 (emphasis
added). Johnson unambiguously checked the answer “no.” Id. The Function Report
does not contain any other information that would suggest Johnson cares for her
parents. It is possible that the ALJ intended to cite Johnson’s hearing testimony,
where she was asked whether she “help[ed] [her] parents out during the day,” to
which she responded that she “just [] kind of pick[s] up” by “trying to clean up a
little bit around the house. That’s it.” Tr. 36. As an initial matter, this answer
indicates that Johnson is, at most, marginally helpful around the house and provides
very little support for the ALJ’s conclusion that Johnson demonstrated adequate selfcare and home living skills. More importantly, the ALJ’s statement that Johnson
“helps her disabled parents” appears to suggest that she acts in some sort of
caretaking capacity. This is clearly not supported by the record. If the ALJ simply
wished to convey that Johnson had the ability to “clean up a little bit around the
house,” Tr. 36, he should have phrased that finding more clearly. Because the ALJ
does not actually cite any evidence that supports his finding that Johnson “helps her
disabled parents,” and that finding appears to be a somewhat misleading evaluation of
Johnson’s testimony, the court finds that it is cannot form the basis of the ALJ’s
decision.
The R&R dismisses Johnson’s objections by characterizing them as an
invitation to simply reweigh the evidence. R&R at 18. The magistrate judge
correctly notes that “[t]he fact that Johnson can point to other evidence that supports
her position does not render the ALJ’s decision unsupported [by substantial

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evidence].” Id. It is axiomatic that the court cannot reweigh the evidence on appeal.
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (“[I]t is not within the province
of a reviewing court to determine the weight of the evidence, nor is it the court’s
function to substitute its judgment for that of the [Commissioner] if his decision is
supported by substantial evidence.”). However, the court concludes that the problems
with the ALJ’s analysis go well beyond his weighing of the evidence.
“The Commissioner has the duty to set forth and analyze in his decision all
relevant evidence and to explain the weight given to all probative evidence.”
Solesbee v. Astrue, No. 2:10-cv-1882, 2011 WL 5101531, at *2 (D.S.C. Oct. 25,
2011). This duty is necessary to ensure that the court is able to conduct a meaningful
review of the ALJ’s decision. See DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir.
1983) (recognizing that “judicial review of an administrative decision is impossible
without an adequate explanation of that decision by the administrator.”); Alexander v.
Astrue, No. 4:08-cv-3384, 2010 WL 1254945, at *5 (D.S.C. Mar. 23, 2010) (“If the
ALJ does not analyze all the evidence and fully explain the weight he has given to
obviously probative exhibits, to say that his decision is supported by substantial
evidence approaches an abdication of the court’s duty to scrutinize the record as a
whole to determine the conclusions reached are rational.”). The touchstone for
determining what evidence must be addressed is whether the evidence is so material
that failing to address it would prevent the court from determining if the ALJ’s
decision was supported by substantial evidence. Seabolt v. Barnhart, 481 F. Supp. 2d
538, 548 (D.S.C. 2007) (“The ALJ is not required to discuss every piece of evidence,

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but if he does not mention material evidence, the court cannot say his determination
was supported by substantial evidence.”).
The ALJ’s analysis of Johnson’s functional academic skills was obviously
flawed in this regard. As explained above, the ALJ completely ignored significant
evidence of Johnson’s academic shortcomings. While the ALJ did acknowledge that
Johnson quit school in eighth grade, he still failed to explain why he did not credit
such evidence. Because the ALJ failed to conduct a thorough review of the evidence,
the court cannot say that his conclusion that Johnson failed to establish deficits in her
functional academic skills was supported by substantial evidence.
The ALJ’s analysis of Johnson’s self-care and home living skills was also
flawed to the extent he relied on his finding that Johnson “independently raised twins
as a single mother” and “helped her disabled parents.” Tr. 17. These findings lacked
evidentiary support and formed an important part of the ALJ’s analysis. In fact, the
ALJ specifically mentioned Johnson’s ability to raise her children in his summary of
her adaptive functioning. Tr. 18. There may well be evidence in the record that
would support the ALJ’s conclusion, but the evidence cited in the ALJ’s decision is
not sufficient. The court is not empowered to salvage the ALJ’s decision with posthoc rationalizations. N.H. ex rel. Eure v. Colvin, 2013 WL 6410378, at *2 (E.D.N.C.
Dec. 9, 2013). To the extent the ALJ failed to explain his decision, the court cannot
explain it for him. Therefore, remand for further consideration is appropriate.
On remand, the ALJ should reevaluate the record and provide a more
thorough discussion of Johnson’s adaptive functions, taking particular care to explain
the weight given to evidence that weighs against the ALJ’s conclusion. The ALJ

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should also consider Johnson’s remaining objections. In particular, the ALJ should
consider how the evidentiary issues discussed in this decision might impact the
weight given to the medical opinion evidence.
IV. CONCLUSION
Based on the foregoing, the court REJECTS the magistrate judge’s R&R,
REVERSES the Commissioner’s decision, and REMANDS the case for further
administrative proceedings.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 27, 2017
Charleston, South Carolina

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