Gibson v. Commissioner of Social Security Administration

Filing 22

ORDER reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and remanding the action for further administrative proceedings. Signed by Magistrate Judge Shiva V. Hodges on 12/13/2016. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Vernanza C. Gibson,
Plaintiff,
vs.
Carolyn W. Colvin, Acting
Commissioner of Social Security
Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

C/A No.: 1:16-664-SVH

ORDER

This appeal from a denial of social security benefits is before the court for a final
order pursuant to 28 U.S.C. § 636(c), Local Civ. Rule 73.01(B) (D.S.C.), and the order of
the Honorable Bruce Howe Hendricks dated July 14, 2016, referring this matter for
disposition. [ECF No. 9]. The parties consented to the undersigned United States
Magistrate Judge’s disposition of this case, with any appeal directly to the Fourth Circuit
Court of Appeals. [ECF No. 8].
Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social Security Act
(“the Act”) to obtain judicial review of the final decision of the Commissioner of Social
Security (“Commissioner”) denying the claim for disability insurance benefits (“DIB”)
and Supplemental Security Income (“SSI”). The two issues before the court are whether
the Commissioner’s findings of fact are supported by substantial evidence and whether
she applied the proper legal standards. For the reasons that follow, the court reverses and
remands the Commissioner’s decision for further proceedings as set forth herein.

I.

Relevant Background
A.

Procedural History

On April 18, 2012, Plaintiff protectively filed applications for DIB and SSI in
which he alleged his disability began on January 1, 2009. Tr. at 98, 99, 237–43, and 244–
49. His applications were denied initially and upon reconsideration. Tr. at 142–46, 147–
51, 157–59, and 160–62. On April 17, 2014, Plaintiff had a hearing before Administrative
Law Judge (“ALJ”) Peggy McFadden-Elmore. Tr. at 30–61 (Hr’g Tr.). The ALJ issued
an unfavorable decision on October 29, 2014, finding that Plaintiff was not disabled
within the meaning of the Act. Tr. at 8–29. Subsequently, the Appeals Council denied
Plaintiff’s request for review, making the ALJ’s decision the final decision of the
Commissioner for purposes of judicial review. Tr. at 1–4. Thereafter, Plaintiff brought
this action seeking judicial review of the Commissioner’s decision in a complaint filed on
March 1, 2016. [ECF No. 1].
B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 47 years old at the time of the hearing. Tr. at 34. He was promoted to
the tenth grade, but did not complete it. Tr. at 36. His past relevant work (“PRW”) was as
a welder. Tr. at 37. He alleges he has been unable to work since January 1, 2009. Tr. at
237 and 244.
2.

Medical History

Plaintiff presented to the emergency room (“ER”) at Palmetto Health Baptist
(“PHB”) on August 1, 2009. Tr. at 335. He reported fleeting thoughts of suicide, but was
2

laughing and smiling. Id. Ricky A. Ladd, M.D. (“Dr. Ladd”), assessed alcohol
intoxication and depression and referred Plaintiff to the Lexington/Richland Alcohol and
Drug Abuse Council (“LRADAC”). Tr. at 336.
Plaintiff again presented to the ER at PHB on April 8, 2010, with symptoms of
pancreatitis. Tr. at 340. He indicated he continued to drink alcohol, despite a history of
pancreatitis. Id. Hubert D. Sammons, M.D. (“Dr. Sammons”), urged Plaintiff to stop
drinking and smoking cigarettes and prescribed Phenergan and Vicodin. Tr. at 341.
Plaintiff presented to the ER at Palmetto Health Richland (“PHR”) complaining of
left foot pain on June 11, 2010. Tr. at 343. Jeremy Ryan Smith, M.D. (“Dr. Smith”),
indicated Plaintiff had a history of coronary artery disease and myocardial infarction. Id.
He observed Plaintiff to have some tenderness over the third and fourth metatarsals of his
left foot. Tr. at 344. Dr. Smith assessed a chronic healing scar and advised Plaintiff to
follow up with his primary care doctor. Id.
On July 10, 2010, Plaintiff returned to PHR with worsening of the left foot wound.
Tr. at 351. He stated he felt like something was inside the wound and had “seen what had
appeared to be worms crawling out” of it. Id. Jeter P. Taylor, III, M.D. (“Dr. Taylor”),
observed the wound to have some mild erythema surrounding it and to have larvae within
it. Tr. at 352. Catherine L. Loflin, M.D. (“Dr. Loflin”), performed a shallow debridement
procedure. Tr. at 355–56. She indicated Plaintiff should change his wound dressings
twice a day and should use postoperative shoes, but would not require vascular follow up.
Tr. at 356.

3

Plaintiff was hospitalized at Morris Village Alcohol and Drug Addiction
Treatment Center (“Morris Village”) from August 31 through October 4, 2011. Tr. at
389. He indicated he had started drinking at the age of 12 and that his drinking had
become problematic at age 30. Id. He indicated he had a history of alcohol-related
seizures and had recently developed distortions of his face, mouth, and eyes. Id. Upon
discharge, Plaintiff was encouraged to attend Alcoholics Anonymous Meetings, to obtain
a sponsor, to seek individual or group therapy, to secure a group home, and to get a job
and practice responsible behaviors. Tr. at 402.
Plaintiff visited Pamela Carlton, Ph. D. (“Dr. Carlton”), for an adult psychological
evaluation on August 28, 2012. Tr. at 361–68. He reported symptoms of depression and
described a history of abuse and tragic deaths within his family. Tr. at 362. He denied
problems getting along with coworkers and supervisors. Tr. at 364. He stated he enjoyed
making people laugh, but had no friends and preferred to keep to himself. Id. After
interviewing claimant and assessing his intelligence quotient (“IQ”) on the Fourth Edition
of the Wechsler Adult Intelligence Scale (“WAIS-IV”) and his mathematical and reading
levels on the Fourth Edition of the Wide Range Achievement Test (“WRAT-4”), Dr.
Carlton concluded that he appeared to have mild difficulties handling typical ADLs;
would likely have difficulty concentrating and persisting at a task for more than an hour;
and would likely require assistance to handle funds.1 Tr. at 367. However, she noted
Plaintiff had no limitations in his ability to function in a socially-appropriate manner in a

1

Information in Dr. Carlton’s report that is relevant to Plaintiff’s IQ score and adaptive
functioning are set forth in detail below.
4

work setting. Id. She assessed alcohol dependence in remission; cognitive disorder, not
otherwise specified (“NOS”); and post-traumatic stress disorder (“PTSD”). Id.
Plaintiff presented to Damon Daniels, M.D. (“Dr. Daniels”), for a consultative
examination on August 30, 2012. Tr. at 370–73. He reported having sustained a heart
attack nine years earlier. Tr. at 370. He endorsed progressive shortness of breath and
chest pain with exertion. Id. He reported a history of chronic abdominal pain and
pancreatitis. Id. He endorsed a history of alcohol abuse, but indicated he had been clean
since his hospitalization at Morris Village, aside from a brief relapse. Id. He reported
tremors and cramps in his feet. Tr. at 371. He stated he smoked half a pack of cigarettes
daily and had last consumed alcohol six months earlier. Id. Plaintiff weighed 136 pounds
and was 5’ 11 ½” tall. Id. He had 1+ pitting edema in his bilateral lower extremities. Id.
He moved from the chair to the exam table without difficulty, but was unable to tandem
or heel-to-toe walk and had difficulty squatting. Id. He had normal range of motion in his
cervical spine, lumbar spine, shoulders, elbows, wrists, knees, hips, and ankles. Tr. at
372. He had 4/5 grip strength and intact fine and gross manipulation bilaterally. Id. He
had 4/5 strength in the proximal and distal muscle groups of his upper extremities and 3/5
strength in the proximal and distal muscle groups of his lower extremities. Id. He had
diminished sensation to light touch and pinprick on the dorsal and plantar surfaces of his
bilateral feet. Id. He scored 22 of out 30 points on the Mini-Mental State Exam
(“MMSE”) and demonstrated deficits in attention, calculation, recall, and language. Id.
Dr. Daniels assessed coronary artery disease, alcohol abuse, chronic pancreatitis, memory

5

loss, and alcoholic neuropathy. Id. He stated Plaintiff’s “primary issues are that of his
balance and gait.” Tr. at 373.
On September 4, 2012, Jody Lenrow, Psy. D. (“Dr. Lenrow”), completed a
psychiatric review technique form (“PRTF”). Tr. at 67–71. She considered Listings 12.02
for organic mental disorders, 12.04 for affective disorders, 12.06 for anxiety-related
disorders, and 12.09 for substance addiction disorders and determined that Plaintiff had
moderate restriction of activities of daily living (“ADLs”), mild difficulties in
maintaining social functioning, and moderate difficulties in maintaining concentration,
persistence, or pace. Tr. at 67–68. Dr. Lenrow wrote the following:
CL has long hx of alcohol dependence as well as PTSD, BIF2/cognitive d/o
NOS, and hx of mood px associated w alcohol. He reports he is no longer
consuming alcohol. CE notes IQ scores ranging 65–74 with consistent achv
scores. Functionally, he has a long work hx, including welder, landscaper,
and meat cutter/stocker. He has no px socially, mild to moderate px with
ADL’s, but some moderate px with CP&P. He retains the ability to perform
simple repetitive work related tasks.
Tr. at 69. She also indicated she found Plaintiff’s statements about his impairments and
functional limitations to be partially credible because his unusual answers during the
consultative examination raised the possibility that he might not have been putting forth
adequate effort. Tr. at 70. She cited Plaintiff’s work history and daily activities and
concluded that he was likely “functioning at the BIF level” and would likely have
problems with written instructions and keeping up pace with his coworkers. Tr. at 70–71.
However, she concluded Plaintiff was capable of performing simple, repetitive tasks. Tr.
at 71. She found that Plaintiff was moderately limited with respect to the following

2

“BIF” is the abbreviation for “borderline intellectual functioning.”
6

mental abilities: to understand and remember detailed instructions; to carry out detailed
instructions; to maintain attention and concentration for extended periods; to perform
activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances; to sustain an ordinary routine without special supervision; to
complete a normal workday and workweek without interruptions from psychologicallybased symptoms; to perform at a consistent pace without an unreasonable number and
length of rest periods; to respond appropriately to changes in the work setting; and to set
realistic goals or make plans independently of others. Tr. at 73–75. Timothy Laskis, Ph.
D. (“Dr. Laskis”), indicated the same degree of limitation and restrictions in a PRTF and
mental RFC evaluation on February 21, 2013. Tr. at 106–08 and 113–15.
Plaintiff presented to the ER at Providence Hospital on September 10, 2012, with
a complaint of left foot pain. Tr. at 375. Cale Michael Davis, M.D. (“Dr. Davis”),
observed Plaintiff to have soft tissue tenderness and erythema in his left foot. Tr. at 378.
He diagnosed early cellulitis and prescribed an antibiotic. Id.
On September 26, 2012, state agency consultant Lindsey Crumlin, M.D. (“Dr.
Crumlin”), reviewed the evidence and assessed Plaintiff’s physical residual functional
capacity (“RFC”). Tr. at 72–73. She indicated Plaintiff was capable of performing work
with the following limitations: occasionally lift and/or carry 20 pounds; frequently lift
and/or carry 10 pounds; stand and/or walk about six hours in an eight-hour workday; sit
for a total of about six hours in an eight-hour workday; occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl; and never climb ladders, ropes, or

7

scaffolds. Id. Darla Mullaney, M.D. (“Dr. Mullaney”), assessed the same physical RFC
on February 21, 2013. Tr. at 111–13.
Plaintiff presented to Kim E. Davis, D.O. (“Dr. Davis”), to establish care on
October 29, 2012. Tr. at 415–22. He complained of a wound on his left foot that had
failed to heal, bilateral foot numbness, chest pain, shortness of breath, dyspnea on
exertion, orthopnea, and vitiligo. Tr. at 416. Dr. Davis debrided and cleaned a sixcentimeter wound to Plaintiff’s left foot and referred him for a deep debridement
procedure. Tr. at 419. She prescribed Coreg and instructed Plaintiff to obtain it through
Well Vista. Tr. at 420.
On November 5, 2012, Plaintiff underwent surgical wound exploration and
excision of a two-centimeter left foot abscess. Tr. at 409. He followed up with Dr. Davis
on November 21, 2012. Tr. at 423. He reported his left foot wound was feeling much
better. Id. He complained of paresthesias in his bilateral distal toes. Tr. at 424. Dr. Davis
debrided some necrotic tissue at the base of Plaintiff’s wound. Tr. at 425. She refilled
Plaintiff’s prescription for Doxycycline for two more weeks and instructed him to
continue using wet-to-dry dressings. Tr. at 423. She noted Plaintiff had not started Coreg
because he had neglected to apply for Well Vista. Tr. at 424. She referred Plaintiff to a
cardiologist to address his complaints of chest pain, shortness of breath, orthopnea, and
dyspnea on exertion. Id.
On November 29, 2012, Plaintiff reported having sustained a fall and injured his
left side on the prior day. Tr. at 429. Dr. Davis noted that Plaintiff had not been taking his
antibiotic medication, despite the fact that it was available for free at Publix and was not
8

taking Coreg because he had not completed the paperwork for Well Vista. Tr. at 429 and
430. Plaintiff informed Dr. Davis that he was not taking aspirin because his family
members would not lend him a dollar to purchase it. Tr. at 430. Dr. Davis debrided
Plaintiff’s left foot wound and changed his dressing. Tr. at 431. She noted Plaintiff’s
sensation was diminished to pinprick in his bilateral distal toes. Id.
Plaintiff followed up with Dr. Davis on January 16, 2013. Tr. at 434. He reported
he was unable to obtain his prescribed medications and indicated Doxycycline was no
longer free at Publix. Id. However, Dr. Davis noted that Plaintiff filled his prescription
for Percocet and continued to drink alcohol. Id. Plaintiff complained of paresthesias in his
bilateral feet. Id. Dr. Davis observed Plaintiff’s left foot wound to be “[m]uch improved
over previous.” Tr. at 436.
Plaintiff presented to the ER at Providence Hospital on April 8, 2014, complaining
of abdominal pain, nausea, and vomiting. Tr. at 447. He stated he developed symptoms
after having consumed alcohol four days earlier. Tr. at 450. Joshua Philip Baird, M.D.
(“Dr. Baird”), diagnosed acute pancreatitis. Tr. at 453. Georges T. Postic, M.D. (“Dr.
Postic”), discovered a gastric mass, but indicated it was likely benign. Tr. at 456.
C.

The Administrative Proceedings
1.

The Administrative Hearing
a.

Plaintiff’s Testimony

At the hearing on April 17, 2014, Plaintiff testified he worked as a welder at CMC
Steel Fabricators. Tr. at 37. He indicated the work was placed in front of him and he
operated the welding equipment. Tr. at 47. He stated he left the job because the plant shut
9

down. Tr. at 37. He denied having worked or collected unemployment benefits since
January 1, 2009. Id.
Plaintiff testified that he had recently been hospitalized for pancreatitis. Tr. at 41.
He described his pancreatitis as causing pain and cramping and indicated his symptoms
occurred nearly every other day and were exacerbated by bending down. Tr. at 49. He
endorsed pain in his feet and his back. Tr. at 45. He endorsed problems with
concentrating and completing tasks. Tr. at 46. He stated his mind often wandered. Id. He
indicated he experienced hallucinations approximately twice a month. Tr. at 47. He stated
his right hand was shaky. Tr. at 47–48. He indicated he had numbness and sharp pain in
his bilateral feet. Tr. at 48. He testified he had sustained some falls and had blackouts or
fainting spells two to three times per month. Tr. at 48 and 50.
Plaintiff testified that his driver’s test had been administered orally. Tr. at 49. He
denied having the ability to read the questions on the driver’s examination. Id. He
indicated he could perform some simple math, but would likely fail a math test. Tr. at 51.
Plaintiff mentioned taking Nitroglycerin and aspirin and later stated he was taking
Lisinopril and Prilosec. Tr. at 40. He stated he had difficulty obtaining his medications
because he had no transportation. Tr. at 42.
Plaintiff estimated he was able to walk 30 yards and stand for 15 to 20 minutes at
a time. Tr. at 45. He indicated he had difficulty sitting for more than 25 to 30 minutes. Id.
Plaintiff testified that he had stopped drinking for approximately three months
after having been discharged from Morris Village in October 2011. Tr. at 38–39. He
stated he had a relapse during a friend’s birthday party and continued to drink for two to
10

three days. Tr. at 39. He indicated he had last consumed alcohol a month to a month-anda-half earlier. Id.
Plaintiff testified he lived in a mobile home with his two adult nephews. Tr. at 35
and 42. He denied doing household chores and indicated his sister sometimes came over
to check on him and to do his laundry and other chores. Tr. at 43. He stated another sister
drove him to the grocery store every other month. Tr. at 44. He testified he attended
church twice a month. Tr. at 44–45. He testified he watched television during a typical
day and sometimes walked two doors down to his sister’s trailer. Tr. at 43. He indicated
he smoked eight to 10 cigarettes per day. Tr. at 37. He indicated his driver’s license had
been suspended seven or eight years earlier because he was convicted of driving under
the influence (“DUI”). Tr. at 36. He stated he traveled by bus to his attorney’s office and
rode with his attorney to the hearing. Id.
b.

Vocational Expert Testimony

Vocational Expert (“VE”) Robert E. Brabham, Sr., Ph. D., reviewed the record
and testified at the hearing. Tr. at 52. The VE categorized Plaintiff’s PRW as a tack
welder, Dictionary of Occupational Titles (“DOT”) number 810.684-010, as heavy with a
specific vocational preparation (“SVP”) of five. Tr. at 53. The ALJ described a
hypothetical individual of Plaintiff’s vocational profile who could lift or carry 20 pounds
occasionally and 10 pounds frequently; could stand and/or walk for about six hours in an
eight-hour workday; could not use his left lower extremity to operate foot controls; could
never climb ladders, ropes, or scaffolds; could occasionally climb ramps and stairs,
balance, stoop, kneel, crouch, and crawl; should avoid concentrated exposure to hazards;
11

was limited to unskilled work that required little or no written instructions or math skills;
and was likely to miss three or more days per month because of alcohol abuse. Tr. at 54.
The VE testified that the hypothetical individual would be unable to perform Plaintiff’s
PRW or any other work. Tr. at 54–55.
For a second hypothetical question, the ALJ described an individual of Plaintiff’s
vocational profile who could lift or carry 20 pounds occasionally and 10 pounds
frequently; stand and/or walk for about six hours in an eight-hour workday; sit for about
six hours in an eight-hour workday; should not use his left foot to operate foot controls;
should never climb ladders, ropes, or scaffolds; should occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl; should avoid concentrated exposure to
hazards; and would be limited to jobs with little to no written instructions or math. Tr. at
55. The VE testified the individual would be unable to perform Plaintiff’s PRW, but
could perform light work with an SVP of two as an assembler, DOT number 739.687078, with 9,000 positions in South Carolina and 360,000 positions in the national
economy, and a packager, DOT number 753.687-038, with 10,000 positions in South
Carolina and 400,000 positions in the national economy. Tr. at 56–57.
For a third hypothetical question, the VE described an individual of Plaintiff’s
vocational profile who could lift or carry 10 pounds occasionally and less than 10 pounds
frequently; could stand or walk for at least two hours in an eight-hour workday; could sit
for about six hours in an eight-hour workday; should avoid use of foot controls with the
left lower extremity; should never climb ladders, ropes, or scaffolds; could occasionally
climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; should avoid
12

concentrated exposure to hazards; and was limited to unskilled work that required little to
no written instructions or math skills. Tr. at 57. The VE testified the individual would be
unable to perform Plaintiff’s PRW, but could perform sedentary jobs with an SVP of two
as an assembler, DOT number 739.687-086, with 2,000 jobs in South Carolina and
80,000 jobs nationally, and a hand packer, DOT number 589.687-015, with 5,000
positions in South Carolina and 200,000 positions in the national economy. Tr. at 57–58.
For a fourth hypothetical question, the ALJ asked the VE to consider an individual
of Plaintiff’s vocational profile who was limited as stated in Plaintiff’s testimony. Tr. at
58. The VE testified the individual would be unable to maintain employment. Tr. at 58–
59.
Plaintiff’s attorney asked the VE to consider an individual of Plaintiff’s vocational
profile who had mild restriction of ADLs as a result of his mental problems. Tr. at 59. He
asked the VE if the individual could perform any jobs in the economy. Id. The VE
indicated that if the individual were unable to do things even around his own home and
could not go places to do things, he would be unable to work. Id.
Plaintiff’s attorney asked the VE to assume the individual had difficulty persisting
at tasks for at least an hour. Tr. at 59–60. The VE stated an individual would be expected
to persist at any activity for a two hour period before taking a break. Tr. at 60. He
indicated the individual could not perform jobs if he could not persist at tasks for an hour.
Id.

13

2.

The ALJ’s Findings

In his decision dated October 29, 2014, the ALJ made the following findings of
fact and conclusions of law:
1.
2.

3.

4.

5.

6.
7.
8.
9.

10.

11.

The claimant met the insured status requirements of the Social Security Act
through September 30, 2010.
The claimant has not engaged in substantial gainful activity since January
1, 2009, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq.,
416.920(b), and 416.971 et seq.).
The claimant has the following severe impairments: peripheral neuropathy,
borderline intellectual functioning, post-traumatic stress disorder, history of
coronary artery disease, alcohol induced seizures and current alcohol abuse
(20 CFR 404.1520(c) and 416.920(c)).
The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)).
After careful consideration of the entire record, I find that, based on all of
the impairments, including the substance use disorder, the claimant has the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except that the claimant cannot use controls
with his left lower extremity, he cannot climb ladders, ropes or scaffolds,
and he can only occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, or crawl. He must avoid concentrated exposure to hazards. The
claimant can perform unskilled work requiring little to no written
instructions or math skills. He is likely to miss 3 or more days of work per
month due to alcohol abuse and alcohol blackouts.
The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
The claimant was born on May 25, 1966 and was a younger individual age
18–49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
The claimant has a limited education and is able to communicate in English
(20 CFR 404.1564 and 416.964).
The claimant’s acquired job skills do not transfer to other occupations
within the residual functional capacity defined above (20 CFR 404.1568
and 416.968).
Considering the claimant’s age, education, work experience, and residual
functional capacity based on all of the impairments, including the substance
use disorder, there are no jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1560(c),
404.1566, 416.960(c), and 416.966).
If the claimant stopped the substance use, the remaining limitations would
cause more than minimal impact on the claimant’s ability to perform basic
14

12.

13.

14.
15.

16.

17.

work activities; therefore, the claimant would continue to have a severe
impairment or combination of impairments.
If the claimant stopped the substance use, the claimant would not have an
impairment or combination of impairments that meets or medically equals
any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d) and 416.920(d)).
If the claimant stopped the substance use, the claimant would have the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except that the claimant could not use his left
lower extremity for foot controls, he could not climb ladders, ropes, or
scaffolds, and he could only occasionally climb ramps and stairs, balance,
stoop, kneel, crouch, or crawl. He would have to avoid concentrated
exposure to hazards. The claimant could perform unskilled work requiring
little to no written instructions or math skills.
If the claimant stopped the substance use, the claimant would continue to
be unable to perform past relevant work (20 CFR 404.1565 and 416.965).
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).
If the claimant stopped the substance use, considering the claimant’s age,
education, work experience, and residual functional capacity, there would
be a significant number of jobs in the national economy that the claimant
could perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).
The substance use disorder is a contributing factor material to the
determination of disability because the claimant would not be disabled if he
stopped the substance use (20 CFR 404.1520(g), 404.1535, 416.920(g) and
416.935). Because the substance use disorder is a contributing factor
material to the determination of disability, the claimant has not been
disabled within the meaning of the Social Security Act at any time from the
alleged onset date through the date of this decision.

Tr. at 13–24.
II.

Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1)

the ALJ erred in failing to find that Plaintiff met the requirements for a
finding of disability under Listing 12.05C; and

2)

the ALJ did not adequately consider the effects of Plaintiff’s peripheral
neuropathy in evaluating his credibility and RFC.
15

The Commissioner counters that substantial evidence supports the ALJ’s findings
and that the ALJ committed no legal error in her decision.
A.

Legal Framework
1.

The Commissioner’s Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured
for benefits, who are not of retirement age, who properly apply, and who are under a
“disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
the inability to engage in any substantial gainful activity by reason of any
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
at least 12 consecutive months.
42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations
promulgated under the Act have reduced the statutory definition of disability to a series
of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983)
(discussing considerations and noting “need for efficiency” in considering disability
claims). An examiner must consider the following: (1) whether the claimant is engaged
in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that
impairment meets or equals an impairment included in the Listings;3 (4) whether such

3

The Commissioner’s regulations include an extensive list of impairments (“the
Listings” or “Listed impairments”) the Agency considers disabling without the need to
assess whether there are any jobs a claimant could do. The Agency considers the Listed
impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to
prevent all gainful activity. 20 C.F.R. §§ 404.1525 and 416.925. If the medical evidence
shows a claimant meets or equals all criteria of any of the Listed impairments for at least
one year, he will be found disabled without further assessment. 20 C.F.R. §§
16

impairment prevents claimant from performing PRW;4 and (5) whether the impairment
prevents him from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520 and
416.920. These considerations are sometimes referred to as the “five steps” of the
Commissioner’s disability analysis. If a decision regarding disability may be made at any
step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4)
(providing that if Commissioner can find claimant disabled or not disabled at a step,
Commissioner makes determination and does not go on to the next step).
A claimant is not disabled within the meaning of the Act if he can return to PRW
as it is customarily performed in the economy or as the claimant actually performed the
work. See 20 C.F.R. Subpart P, § 404.1520(a), (b) and 416.920(a), (b); Social Security
Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability
to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing
the inability to return to PRW, the burden shifts to the Commissioner to come forward
with evidence that claimant can perform alternative work and that such work exists in the
regional economy. To satisfy that burden, the Commissioner may obtain testimony from
a VE demonstrating the existence of jobs available in the national economy that claimant
404.1520(a)(4)(iii) and 416.920(a)(4)(iii). To meet or equal one of these Listings, the
claimant must establish that his impairments match several specific criteria or are “at
least equal in severity and duration to [those] criteria.” 20 C.F.R. §§ 404.1526 and
416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S.
137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling
at Step 3).
4
In the event the examiner does not find a claimant disabled at the third step and does not
have sufficient information about the claimant’s past relevant work to make a finding at
the fourth step, he may proceed to the fifth step of the sequential evaluation process
pursuant to 20 C.F.R. §§ 404.1520(h) and 416.920(h).
17

can perform despite the existence of impairments that prevent the return to PRW. Walls v.
Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden,
the claimant must then establish that he is unable to perform other work. Hall v. Harris,
658 F.2d 260, 264–65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146
n.5 (1987) (regarding burdens of proof).
2.

The Court’s Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the
Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The
scope of that federal court review is narrowly-tailored to determine whether the findings
of the Commissioner are supported by substantial evidence and whether the
Commissioner applied the proper legal standard in evaluating the claimant’s case. See
Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court’s function is not to “try these cases de novo or resolve mere conflicts in
the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157–58 (4th Cir. 1971); see Pyles v.
Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345
(4th Cir. 1986)). Rather, the court must uphold the Commissioner’s decision if it is
supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S.
at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must
carefully scrutinize the entire record to assure there is a sound foundation for the
Commissioner’s findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157–
18

58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is
substantial evidence to support the decision of the Commissioner, that decision must be
affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483
F.2d 773, 775 (4th Cir. 1972).
B.

Analysis
1.

Listing 12.05C

Plaintiff argues the ALJ erred in failing to find he was disabled under part C of
Listing 12.05. [ECF No. 13 at 2]. He maintains that two IQ tests of record showed him to
have an IQ between 60 and 70 and that the ALJ did not explain her decision to give the
IQ scores little weight. Id. at 2–3. He contends he had other severe impairments that
included peripheral neuropathy and PTSD and was limited to performing work at the
light exertional level. Id. at 2. He argues he had deficits in adaptive functioning, as
required for a finding of disability under part C of Listing 12.05. Id. at 2 and 4–5.
The Commissioner argues Plaintiff failed to prove that he had deficits in adaptive
functioning that manifested during the developmental period. [ECF No. 14 at 18]. She
maintains the ALJ properly considered Plaintiff’s work history as a welder and his skills
as a landscaper, farmer, and carpenter in concluding that he lacked deficits in adaptive
functioning. Id. at 1. She contends the court has repeatedly upheld ALJs’ findings that
claimants lacked deficits in adaptive functioning where the claimants had histories of
semiskilled and skilled work. Id. at 18–19. She argues the ALJ also considered Plaintiff’s
other activities in determining that he did not have deficits in adaptive functioning. Id. at

19

19–20. She further maintains the ALJ properly found Plaintiff’s IQ scores to be invalid
because they were inconsistent with the evidence of his functioning. Id. at 20–21.
Plaintiff argues that the Commissioner has attempted to explain the ALJ’s
conclusions regarding consideration of his IQ and deficits in adaptive functioning, but
that the court should reject the Commissioner’s post hoc rationalization because the ALJ
failed to provide such explanation. [ECF 19 at 2–9].
An ALJ “must fully analyze whether a claimant’s impairment meets or equals a
‘Listing’ where there is factual support that a listing could be met.” Huntington v. Apfel,
101 F. Supp. 2d 384, 390 (D. Md. 2000), citing Cook v. Heckler, 783 F.2d 1168, 1172
(4th Cir. 1986) (remanded, in part, because of ALJ’s failure to specifically identify
relevant Listing and compare each of the Listed criteria to the evidence of the claimant’s
symptoms). “The ALJ’s analysis must reflect a comparison of the symptoms, signs, and
laboratory findings concerning the impairment, including any resulting functional
limitations, with the corresponding criteria set forth in the relevant listing.” Id. “In order
to meet a Listing, every element of the listing must be satisfied.” Id., citing Sullivan v.
Zebley, 493 U.S 521, 531 (1990).
To establish disability under paragraph C of Listing 12.05, a claimant must prove
“deficits in adaptive functioning generally,” a “deficiency” that “manifested itself before
the age of 22,” 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.” Hancock v. Astrue, 667 F.3d 470, 473 (4th Cir. 2012); 20 C.F.R.,
Pt. 404, Subpart P, App’x 1, § 12.05C.
20

“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), citing Atkins, 536 U.S. 304,
309 n.3 (2002). The Supreme Court has held that intellectual disability is characterized
by “significant limitations” in at least two of the areas of adaptive functioning in
conjunction with significantly subaverage general intellectual functioning. Atkins, 536
U.S. at 309 n.3. In Weedon v. Astrue, No. 0:11-2971-DCN-PJG, 2013 WL 1315311, at
*5–6 (D.S.C. Jan. 31, 2013), adopted by 2013 WL 1315206 (D.S.C. Mar. 28, 2013), the
court identified the following factors that other courts have deemed important for ALJs to
consider in determining whether an individual has deficits in adaptive functioning under
Listing 12.05: the individual’s actual IQ score; the individual’s diagnosis; whether the
individual is illiterate; whether the individual has ever lived independently; whether the
individual has ever provided care for others or whether he is dependent on others for
care; school records and past academic performance; work history; and the tasks the
individual is able to undertake.
“Once it is established that the claimant’s IQ falls within the range required by §
12.05C, the inquiry is whether the claimant suffers from any additional physical or
mental impairment significantly limiting work-related functions.” Kennedy v. Heckler,
739 F.2d 168, 172 (4th Cir. 1984); 20 C.F.R., Pt. 404, Subpart. P, App’x 1, § 12.05C.
The court has considered only the ALJ’s explanation of her finding that Plaintiff’s
impairments were not disabling under Listing 12.05C and has rejected the
21

Commissioner’s explanations that were not set forth by the ALJ. See Hall v. Colvin, No.
8:13-2509-BHH-JDA, 2015 WL 366930, at *11 (D.S.C. Jan. 15, 2015); Cassidy v.
Colvin, No. 1:13-821-JFA-SVH, 2014 WL 1094379, at *7 n.4 (D.S.C. Mar. 18, 2014),
citing Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir. 2003) (“[G]eneral
principles of administrative law preclude the Commissioner’s lawyers from advancing
grounds in support of the agency’s decision that were not given by the ALJ.”). The ALJ
concluded that Plaintiff’s impairments did not meet or medically equal the requirements
of Listing 12.05. Tr. at 14. She determined Plaintiff did not meet the paragraph C criteria
under the Listing because he did not 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.” Tr. at 15–16 and 21. She stated she “gave
little weight to the full-scale IQ score of 65 that the claimant obtained during the
psychological consultative examination.” Tr. at 16 and 21. She concluded that Plaintiff
“clearly has significant adaptive functioning abilities” and cited Exhibits 19E and 7F. Tr.
at 16.
The court finds the ALJ erred in evaluating whether Plaintiff’s impairments met
the requirements for a finding of disability under Listing 12.05C. The record contains
evidence that arguably suggests Plaintiff met the Listing in the form of IQ test results
between 60 and 70; a showing of academic deficits during the developmental period;
dependency on others for care; inability to perform some basic tasks; and additional
impairments that significantly reduced his work-related functions. Therefore, the ALJ
was required to compare the signs and symptoms of Plaintiff’s impairment and functional
22

limitations with the criteria set forth in the Listing. See Cook, 783 F.2d at 1172;
Huntington, 101 F. Supp. 2d at 390. Although the ALJ purported to consider the criteria
under Listing 12.05C, she did not adequately address the conflicting evidence or evaluate
all of the relevant criteria in concluding that Plaintiff was not disabled.
Exhibit 19E contains school records from Richland County District One that
reflect Plaintiff to have been retained in the sixth grade; to have received primarily Ds
and Fs in his academic courses; to have been enrolled in “basic” and “practical” courses;
and to have scored significantly below average on standardized tests. Tr. at 319–26.
Plaintiff’s academic records show an assessed verbal IQ of 61, nonverbal IQ of 63, and
full scale IQ of 60 in October 1975.5 Tr. at 323. The records do not indicate Plaintiff was
enrolled in special education classes. Tr. at 319–26.
Dr. Carlton’s evaluation appears at Exhibit 7F. Tr. at 361–68. She indicated she
considered the results of testing to be valid. Tr. at 361 and 366. During the interview,
Plaintiff stated he currently lived with a nephew, but had moved from house-to-house
over the prior 15-year period. Tr. at 361. He indicated he was removed from school in the
eleventh grade, but could not confirm whether he was enrolled in regular classes on a
basic level or special education classes. Tr. at 363. He reported performing a welding job,
after acquiring on-the-job training. Id. He stated he had previously enjoyed landscaping
and farming work. Id. He indicated that he typically prepared his coffee each morning,
but sometimes asked his nephew to prepare it. Tr. at 364. He stated he spent most of his
days watching television at his home or his sister’s home and sitting on the porch. Id. He
5

Plaintiff was born on May 25, 1966, and was nine years old at the time of the IQ
assessment. Tr. at 237.
23

denied performing household chores, aside from keeping his bathroom clean and placing
his clothes in a hamper. Id. He indicated he could prepare a bowl of cereal and could
sometimes fry an egg. Id. He denied driving and indicated his sister purchased groceries
for him. Id. He was able to calculate change from a purchase. Id. Dr. Carlton indicated
Plaintiff understood and followed directions and maintained good focus with one-on-one
attention for two-and-a-half hours. Tr. at 365. Although Plaintiff was “persistent to the
end,” he “struggled to provide correct answers on the Sentence Comprehension test.” Tr.
at 366. He obtained a full scale IQ score of 65, a verbal comprehension score of 68, a
perceptual reasoning score of 73, a working memory score of 66, and a processing speed
score of 74 on the WAIS-IV. Id. His scores on the WRAT-4 showed him to engage in
word reading at a high third grade level, in sentence comprehension at a high fifth grade
level, and in math computation at a high second grade level. Tr. at 367. Dr. Carlton noted
that results of the WRAT-4 and WAIS-IV were comparable among subtests. Id. She
stated Plaintiff’s scores were consistent with his poor level of self-sufficiency and his
vocational background, except for his last job as a welder. Id.
The ALJ did not adequately consider whether Plaintiff had a valid IQ score
between 60 and 70. Despite referencing the school records as providing support for her
finding that Plaintiff’s impairments did not meet Listing 12.05C (Tr. at 16), the ALJ erred
in failing to evaluate the IQ scores that appeared in the records. See Odom v. Colvin, No.
1:14-576-JMC, 2015 WL 3560685, at *4 (D.S.C. Jun. 5, 2015) (finding the ALJ erred in
failing to weigh an IQ test in the plaintiff’s school records), citing Gordon v. Schweiker,

24

725 F.2d 231 (4th Cir. 1984) (providing that an ALJ must explicitly state “the weight
given to all relevant evidence”).
The Commissioner argues that the Fourth Circuit’s holding in Hancock provides
support for the ALJ’s decision to invalidate the scores Dr. Carlton assessed. [ECF No. 14
at 21]. In Hancock, 667 F.3d at 474, the court held that “an ALJ has the discretion to
assess the validity of an IQ test result and is not required to accept it even if it is the only
such result in the record.” The court acknowledged “certain failures of the test examiner”
to “attest to the validity of the test results or opine that Hancock gave her best efforts.”
See Hancock, 667 F.3d at 474. However, these failures were not present in the instant
case. Dr. Carlton attested to the validity of the scores she assessed and indicated Plaintiff
gave his best effort. Tr. at 361, 366, and 367.
It appears the ALJ rejected the scores Dr. Carlton assessed because she did not
find them to be consistent with Plaintiff’s adaptive functioning. See Tr. at 16 and 21. She
indicated Plaintiff “clearly has a significantly higher adaptive functioning as he has
significant work history as well as some landscaping and farming for several years.” Tr.
at 16. She found that he had no deficit in functional academic skills because it was
“unclear whether he was actually in special education.” Tr. at 16.
The ALJ’s decision does not reflect that she weighed all the evidence that
pertained to Plaintiff’s adaptive functioning abilities. See Atkins, 536 U.S. at 309 n.3;
Jackson, 467 F. App’x at 218; Weedon, 2013 WL 1315311, at *5–6. The ALJ considered
only Plaintiff’s academic and work histories in concluding that he lacked deficits in
adaptive functioning. See Tr. at 16. However, the record suggested that Plaintiff had
25

deficits in other areas of adaptive functioning. See Tr. at 361 (reporting he lived with his
nephews, but had “spent 15 years going from house to house”), 364 (indicating his
nephew performed household chores and his sister shopped for his groceries), 365–67
(showing good effort, but poor test performance), and 372 (noting Plaintiff scored 22 out
of 30 points on the MMSE and had some deficits in attention, calculation, recall, and
language).
The ALJ’s conclusion that Plaintiff lacked deficits in functional academic skills
was not supported by substantial evidence. The ALJ cited evidence that suggested
Plaintiff might have such deficits. See Tr. at 15 (noting that Dr. Daniels observed Plaintiff
to score 22 out of 30 on the MMSE and that Dr. Carlton assessed him to score extremely
low in the working memory index and in the borderline range in the processing speed
index and to be performing math on a high second grade level) and 16 (stating that
Plaintiff repeated the sixth grade and earned poor grades in school). However, she
perfunctorily concluded that Plaintiff lacked deficits in functional academic skills
because his school records were “unclear” as to whether he was enrolled in special
education classes. Tr. at 16.
The ALJ did not resolve the conflicting evidence regarding Plaintiff’s PRW as a
welder. The Commissioner correctly asserts that this court has traditionally upheld ALJs’
findings that plaintiffs lacked deficits in adaptive functioning where the plaintiffs were
able to perform skilled and semiskilled work. See Hightower v. Colvin, No. 1:14-2761RBH, 2015 WL 5008713, at *7 (D.S.C. Aug. 20, 2015); Weatherford v. Colvin, No. 6:131885-RMG, 2014 WL 3881056, at *10 (D.S.C. Aug. 5, 2014); Weedon, 2013 WL
26

1315311, at *7; Sims v. Colvin, No. 6:12-3332-DCN, 2014 WL 793065, at *11 (D.S.C.
Feb. 24, 2014). However, the record contains conflicting information on whether
Plaintiff’s work as a welder was skilled or unskilled. The VE who testified at the hearing
categorized Plaintiff’s PRW as a tack welder, DOT number 810.684-010, and indicated
the work was skilled with an SVP of five. Tr. at 53. However, VE J. Adger Brown, Jr.,
MA, CDMS (“Mr. Brown”),6 classified Plaintiff’s PRW as that of a structural steel
welder, DOT number 819.684-010, and indicated the work was unskilled with an SVP of
two. Tr. at 331. The ALJ concluded that Plaintiff’s PRW included a job as a tack
welder/gas welder (DOT number 810.684-010), with an SVP of five, as identified by the
VE at the hearing. See Tr. at 18. However, she neither identified the conflict between the
VE’s testimony and Dr. Brown’s report, nor explained how she resolved the conflict in
favor of the VE’s opinion. Thus, substantial evidence did not support the ALJ’s reliance
on Plaintiff’s PRW to find he lacked deficits in adaptive functioning.
Finally, the court notes that the parties do not dispute whether Plaintiff had an
additional physical or mental impairment that significantly limited his work-related
functions. The ALJ’s finding that that Plaintiff’s severe impairments included peripheral
neuropathy, PTSD, and a history of coronary artery disease (Tr. at 14) and that he was
limited to light work with additional limitations (Tr. at 21) appears to satisfy this
requirement of the Listing.

6

On March 17, 2014, Mr. Brown prepared a report and provided a vocational opinion
that was based on a clinical interview, Plaintiff’s school records, treatment records from
Morris Village, records from Providence Internal Medicine, records from Palmetto
Health Baptist Hospital, a psychological consultation with Dr. Carlton, and a medical
consultation with Dr. Daniels. Tr. at 329.
27

Therefore, the court considers remand appropriate in light of the ALJ’s failure to
address and resolve evidence that arguably suggested Plaintiff met the requirements for a
finding of disability under Listing 12.05C.
2.

Additional Allegations of Error

Plaintiff argues the ALJ did not consider the effects of neuropathy and did not
comply with the provisions of SSRs 96-7p, 96-8p, and 16-3p in assessing his credibility
and his RFC. [ECF No. 13 at 5–13]. The Commissioner maintains the ALJ appropriately
evaluated Plaintiff’s credibility and RFC and cited sufficient evidence to support her
conclusions. [ECF No. 14 at 23–32]. Because the court finds the ALJ’s failure to properly
evaluate Plaintiff’s impairments at step three to be a sufficient basis for remand, the court
declines to address Plaintiff’s additional allegations of error. However, if the ALJ finds
that Plaintiff does not meet Listing 12.05C on remand and proceeds to steps four and
five, she should evaluate Plaintiff’s credibility and RFC in accordance with SSRs 96-8p
and 16-3p.7
III.

Conclusion
The court’s function is not to substitute its own judgment for that of the ALJ, but

to determine whether the ALJ’s decision is supported as a matter of fact and law. Based
on the foregoing, the court cannot determine that the Commissioner’s decision is
supported by substantial evidence. Therefore, the undersigned reverses and remands this

7

The Social Security Administration recently published SSR 16-3p, 2016 WL 1119029
(2016), which supersedes SSR 96-7p, eliminates use of the term “credibility,” and
clarifies that subjective symptom evaluation is not an examination of an individual’s
character. Although SSR 16-3p eliminates the assessment of credibility, it requires
evaluation of most of the same factors to be considered under SSR 96-7p.
28

matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. §
405(g).
IT IS SO ORDERED.

December 13, 2016
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

29