Tallent v. Commissioner of Social Security Administration

Filing 31

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION adopting 23 Report and Recommendation, reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and remanding the matter for further proceedings. Signed by Honorable Donald C. Coggins, Jr. on 03/25/2019. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Brett Michael Tallent,

)
)
Plaintiff,
)
)
v.
)
)
Nancy Berryhill, Acting Commissioner of )
Social Security,
)
)
Defendant. )
________________________________ )

C/A No. 1:17-2066-DCC

OPINION AND ORDER

Plaintiff has brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial
review of the final decision of the Commissioner of Social Security (“Commissioner”)
denying his claims for Supplemental Security Income ("SSI"). In accordance with 28
U.S.C. § 636(b) and Local Civil Rule 73.02 (D.S.C.), this matter was referred to a United
States Magistrate Judge for pre-trial handling. On May 7, 2018, Magistrate Judge Shiva
V. Hodges issued a Report and Recommendation (“Report”), recommending that the
decision of the Commissioner be reversed and remanded. ECF No. 23. Plaintiff and the
Commissioner both filed Objections, and each party filed a Reply to the other's
Objections. ECF Nos. 25—28. For the reasons stated below, the Court adopts the Report
and incorporates it herein by reference.
The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976).
The Court is charged with making a de novo determination of only those portions of the
Report that have been specifically objected to, and the Court may accept, reject, or modify
the Report, in whole or in part. 28 U.S.C. § 636(b)(1).
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The role of the federal judiciary in the administrative scheme established by the
Social Security Act (“the Act”) is a limited one. Section 205(g) of the Act provides, “[t]he
findings of the Secretary as to any fact, if supported by substantial evidence, shall be
conclusive . . . .”

42 U.S.C. § 405(g).

“Substantial evidence has been defined

innumerable times as more than a scintilla, but less than preponderance.” Thomas v.
Celebreeze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes a de novo review
of the factual circumstances that substitutes the court’s findings for those of the
Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971). The court must uphold the
Commissioner’s decision as long as it was supported by substantial evidence and
reached through the application of the correct legal standard. Johnson v. Barnhart, 434
F.3d 650 (4th Cir. 2005). “From this it does not follow, however, that the findings of the
administrative agency are to be mechanically accepted. The statutorily granted right of
review contemplates more than an uncritical rubber stamping of the administrative
action.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). “[T]he courts must not
abdicate their responsibility to give careful scrutiny to the whole record to assure that
there is a sound foundation for the [Commissioner’s] findings, and that his conclusion is
rational.” Vitek, 438 F.2d at 1157–58.
BACKGROUND
Plaintiff was approved for SSI as a disabled child with an onset date of October 1,
2002, based on diagnoses of attention deficit hyperactivity disorder ("ADHD") and
borderline intellectual functioning.

On February 11, 2013, the Social Security

Administration determined that Plaintiff was no longer disabled under the rules for
determining disability in adults. This determination was upheld upon reconsideration on

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July 24, 2014, following a hearing before a state agency disability hearing officer. On
March 9, 2016, Plaintiff then had a hearing before an Administrative Law Judge ("ALJ").
The ALJ issued an unfavorable decision on September 28, 2016, finding that Plaintiff was
not disabled. The Appeals Council denied Plaintiff's request for review, making the
determination of the ALJ the final decision of the Commissioner.
DISCUSSION
The Magistrate Judge recommends the Court reverse and remand the
Commissioner's decision because the ALJ failed to adequately consider material
evidence when determining whether Plaintiff could establish a disability under Listing
12.05C. The Commissioner filed Objections, contending the Magistrate Judge reweighed
the evidence rather than viewing the case through the proper substantial evidence
standard of review. ECF No. 25. Plaintiff filed Objections, in which he agrees with the
Magistrate Judge's Report but seeks clarification that, upon remand, the ALJ should apply
the criteria of the Listings that were in effect prior to January 17, 2017.
I.

Commissioner's Objections
To establish disability under Listing 12.05, an individual must show significantly

subaverage general intellectual functioning with deficits in adaptive functioning that
initially manifested prior to age 22 and meet the severity requirements in either paragraph
A, B, C, or D. 20 C.F.R., Pt. 404, Subpt. P, App'x 1 § 12.05 (effective May 24, 2016 to
September 28, 2016). Paragraph C requires that a claimant demonstrate 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. Id. § 12.05C.
"Once it is established that the claimant's IQ falls within the range required by § 12.05C,

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the inquiry is whether the claimant suffers from any additional physical or mental
impairment significantly limiting work-related functions." Id..; Kennedy v. Heckler, 739
F.2d 168, 172 (4th Cir. 1984). "An impairment which imposes an additional and significant
work-related limitation of function is any impairment which is defined as severe." Odom
v. Colvin, No. 1:14-576-JMC, 2015 WL 3560685, at *4 (D.S.C. June 5, 2015) (citation
omitted).
Here, Dr. Joseph Hammond administered the Wechsler Adult Intelligence Scale –
Fourth Edition in January 2013. Plaintiff's Full-Scale IQ score was 70. The ALJ, however,
noted that Plaintiff's other "IQ scores have consistently been above Listing level, albeit
modestly so, since childhood, apart from his lone . . . score of 70 in January 2013, which
is at the upper boundary of the Listing level."1 ECF No. 12-2 at 23. Therefore, in order
to meet the Listing, there must have been evidence that Plaintiff suffered from "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'x 1 § 12.05C. As to this issue, the Report
outlines the ALJ's findings but notes that the ALJ neglected to address evidence of
Plaintiff's deficits in adaptive functioning as manifested in his academic functioning, such
as his placement in special education classes.
The Commissioner's objections outline, in detail, the evidence that supports the
ALJ's finding that Plaintiff did not suffer from deficits in adaptive functioning. That,
however, misses the point of the Report's recommendation, which focuses on the
evidence that the ALJ did not address. The ALJ has a duty to analyze all relevant

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The Court expresses some concern with the ALJ's commentary on Plaintiff's IQ scores.
The Listing requires only one score within the range, which Plaintiff clearly has.
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evidence and to explain the weight given to that evidence. When an ALJ fails to do so,
the Court on judicial review cannot meaningfully determine whether substantial evidence
supports the ALJ's finding.

Accordingly, the Court overrules the Commissioner's

Objections and adopts and incorporates the Report's well-reasoned analysis.
II.

Plaintiff's Objections
Plaintiff filed Objections to the Report "solely to the extent [the Report] does not

explicitly state that, upon remand, the ALJ should apply the criteria of the Listings that
were in effect prior to January 17, 2017." ECF No. 26 at 1. As Plaintiff notes, Listing
12.05(c) 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). The regulation at issue states, in a footnote, "[i]f a court reverses our final
decision and remands a case for further administrative proceedings after the effective
date of these final rules, we will apply these final rules to the entire period at issue in the
decision we make after the court's remand."

81 Fed. Reg. 66138 n.1. Nonetheless,

Plaintiff contends the revisions to Listing 12.05 "alter a claimant's substantive rights, and
as such, the Social Security Administration does not have the authority to apply the
revised listings retroactively." ECF No. 26 at 3. While the Court understands Plaintiff's
concern, it would be premature to decide this issue at this juncture. The application of
the relevant Listings is a matter for the Commissioner to determine, and Plaintiff is free to
raise any challenges on that issue on remand. See Davis v. Colvin, No. 16-112, 2017
WL 1198381, at *3 n.2 (W.D. Pa. March 30, 2017) ("Listing 12.05 was revised significantly
effective January 17, 2017. However, this Court will review the ALJ's decision using the
rules in effect at the time the decision was issued. On remand, it is presumed the ALJ

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will use the revised listing for the entire period at issue but will leave that decision to the
Commissioner." (internal citations omitted)). Accordingly, Plaintiff's Objections are
overruled without prejudice to his right to raise the issue on remand.
CONCLUSION
For the reasons set forth above, the Court ADOPTS the Report. Accordingly, the
Commissioner's decision is REVERSED and the Court remands this matter to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
March 25, 2019
Spartanburg, South Carolina

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