Herman v. Astrue
Filing
23
ORDER granting 15 Motion to Reverse. Signed by Chief Judge Jeffrey L. Viken on 3/26/13. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JACKI HERMAN,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner, Social
Security Administration,
Defendant.
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CIV. 11-5091-JLV
ORDER REVERSING
DECISION OF THE
COMMISSIONER AND
REMANDING FOR
CALCULATION AND
AWARD OF BENEFITS
INTRODUCTION
On May 11, 2009, Jacki Herman applied for disability insurance
benefits (“DIB”). (Administrative Record, pp. 150-59).1 Plaintiff alleged a
disability onset date of May 1, 2004. (AR at p. 9). After denial of her
application, an Administrative Law Judge (“ALJ”) held an evidentiary
hearing on January 11, 2011. Id. at pp. 27-52. At the hearing, Ms.
Herman amended her onset date to October 15, 2007. Id. at pp. 29-30.
On March 28, 2011, the ALJ concluded Ms. Herman was not disabled and
denied her benefits.2 Id. at pp. 9-21. The Appeals Council denied plaintiff’s
1
The court will cite to information in the administrative record by
“AR, p. ____.”
2
The ALJ found Ms. Herman met the insured status requirement for
benefits through December 31, 2012. (AR at p. 11).
request for review. Id. at pp. 1-5. The decision of the ALJ became the final
decision of the Commissioner.3 Id. at p. 1.
Plaintiff timely filed her complaint appealing from the ALJ’s decision.
(Docket 1). Defendant denies plaintiff is entitled to benefits. (Docket 11).
The court issued a briefing schedule requiring the parties to file a joint
statement of material facts (“JSMF”). (Docket 13). If there were any
disputed facts, the parties were required to attach a separate joint
statement of disputed facts. Id. The parties filed their JSMF. (Docket 14).
Plaintiff then filed a motion for an order reversing the decision of the
Commissioner. (Docket 15). For the reasons stated below, plaintiff’s motion
to reverse the Commissioner’s decision is granted.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 14) is incorporated by reference. Further
recitation of salient facts is included in the discussion section of this order.
STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.
3
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Fed. R. Civ. P. 25(d), Ms. Colvin is
automatically substituted for Michael J. Astrue as the defendant in all pending
social security cases. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405(g).
2
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006). The court reviews the
Commissioner’s decision to determine if an error of law was committed.
Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).
“Substantial evidence is less than a preponderance, but is enough
that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir.
2006) (internal citation and quotation marks omitted). Substantial evidence
is evidence that a reasonable mind might accept as adequate to support the
Commissioner’s decision. Choate, 457 F.3d at 869 (quoting Ellis v.
Barnhart, 392 F.3d 988, 993 (8th Cir. 2005)). The review of a decision to
deny disability benefits is “more than an examination of the record for the
existence of substantial evidence in support of the Commissioner’s decision
. . . [the court must also] take into account whatever in the record fairly
detracts from that decision.” Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.
2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001)).
It is not the role of the court to re-weigh the evidence and, even if this
court would have decided the case differently, it cannot reverse the
Commissioner’s decision if that decision is supported by good reason and is
based on substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801
(8th Cir. 2005). A reviewing court may not reverse the Commissioner’s
decision “ ‘merely because substantial evidence would have supported an
3
opposite decision.’ ” Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54
F.3d 484, 486 (8th Cir. 1995)).
DISCUSSION
“Disability” is defined as the inability “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment [or combination of impairments] which can be expected to result
in death or which has lasted or can be expected to last for a continuous
period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A).
The Social Security Administration established a five-step sequential
evaluation process for determining whether an individual is disabled.4
20 CFR §§ 404.1520(a)(4). If the ALJ determines a claimant is not disabled
at any step of the process, the evaluation does not proceed to the next step
as the claimant is not disabled. Id. The five-step sequential evaluation
process is:
(1) whether the claimant is presently engaged in a “substantial
gainful activity”; (2) whether the claimant has a severe
impairment—one that significantly limits the claimant’s physical
or mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations (if so, the claimant
is disabled without regard to age, education, and work
experience); (4) whether the claimant has the residual functional
capacity to perform . . . past relevant work; and (5) if the claimant
cannot perform the past work, the burden shifts to the
4
The same five-step analysis determines eligibility for DIB benefits.
House v. Astrue, 500 F.3d 741, 742 n.1 (8th Cir. 2007).
4
Commissioner to prove there are other jobs in the national
economy the claimant can perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). The ALJ applied
the five-step sequential evaluation required by the Social Security
Administration regulations. (AR at pp. 10-11).
STEP ONE
At step one, the ALJ determined Ms. Herman had not been engaged in
substantial gainful activity since May 1, 2004.5 Id. at p. 23;
20 CFR §§ 404.1520(b) & 404.1572.
STEP TWO
At step two, the ALJ must decide whether the claimant has a
medically determinable impairment that is severe or a combination of
impairments that are severe. 20 CFR §§ 404.1520(c). The regulations
describe “severe impairment” in the negative. “An impairment or
combination of impairments is not severe if it does not significantly limit
your physical or mental ability to do basic work activities.” 20 CFR
§ 404.1521(a). Thus, a severe impairment is one which significantly limits a
claimant’s physical or mental ability to do basic work activities.
5
This date is an error. At the hearing Ms. Herman amended her onset date
to October 15, 2007. (AR at pp. 29-30). Ms. Herman was not engaged in
substantial gainful activity since October 15, 2007.
5
The ALJ found Ms. Herman had five severe impairments. (Docket 12
at ¶ 2.1). Ms. Herman’s severe impairments are: “borderline mental
functioning, depressive disorder, adjustment disorder with anxiety, lumbar
degenerative disc disease, and lumbar facet degenerative joint disease . . . .”
(Docket 14 at p. 13).
STEP THREE
At step three, the ALJ determines whether claimant’s impairment or
combination of impairments meets or medically equals the criteria of an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (“Appendix
1”). 20 CFR §§ 404.1520(d), 404.1525, and 404.1526. If a claimant’s
impairment or combination of impairments meets or medically equals the
criteria for one of the impairments listed and meets the duration
requirement of 20 CFR § 404.1509, claimant is considered disabled.
At step three, the ALJ found Ms. Herman did not meet or was not
medically equal to the requirements of any of the impairments in the Listing
of Impairments. (Docket 14 at pp. 13-14). Focusing on Listing 12.05, “the
ALJ found ‘the evidence clearly shows that [Herman] has subaverage general
intellectual functioning’ but that Herman had not proved that she had
‘deficits in adaptive functioning’ or that her subaverage general intellectual
functioning had existed prior to age 22.” Id. at p. 14. Plaintiff challenges
these findings. (Docket 15).
6
In analyzing the ALJ’s decision, the court must first focus on the
following preliminary question: Did Ms. Herman satisfy the requirements of
the introductory paragraph of Listing 12.05, Mental Disorders? The
introductory paragraph of Listing 12.05 states:
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.
Appendix 1, Listing 12.05. Stated another way, the elements which must be
proven are before age 22 does the evidence demonstrate that Ms. Herman
had (1) significant subaverage general intellectual functioning (2) with
deficits in adaptive functioning? “[T]he requirements in the introductory
paragraph are mandatory.” Maresh v. Barnhart, 438 F.3d 897, 899 (8th
Cir. 2006). However, the introductory paragraph does not require a “formal
diagnosis of mental retardation.” Id.
The ALJ concluded “the evidence does not show that [Ms. Herman’s]
borderline intellectual functioning existed prior to age 22 years old.” (AR at
p. 15). The ALJ based this conclusion on the following findings:
1.
Dr. Pelc testified that the medical evidence was
inconclusive and he noted that this was a point of
contention between the medical experts.
2.
[Ms. Herman] has given conflicting reports regarding
her academic performance . . . .
7
A.
During the extensive examination with
Dr. Arnio, she reported that she did well
in school and was never in special
education classes. . . . The claimant’s
mother confirmed these statements.
B.
[D]uring the less extensive examination
with Dr. Swenson [Ms. Herman] reported
significant problems in school, that she
had been retained during several grades,
and that she was in special education.
3.
[Ms. Herman’s] school records do not contain any
information regarding the claimant’s behavioral
issues in school.
4.
[Ms. Herman] earned very low grades, but there is no
evidence that she was . . . in special education.
5.
[S]ince the records only contain [Ms. Herman’s]
grades, there is no way to determine if [her] poor
grades were the result of a learning disability or a
lack of interest or effort in school.
Id. The conclusion of the ALJ is not supported by the substantial weight of
the evidence. Choate, 457 F.3d at 869; Cox, 471 F.3d at 906.
During the administrative hearing, Ms. Herman testified:
Q
[H]ow far did you go in school?
A
To the ninth grade, first quarter of the ninth grade.
Q
How old were you when you dropped out?
A
17.
Q
Do you know what grades you had to do over?
A
I remember third grade. I know I was back a couple
years when I went to junior high.
8
Q
When you went to school, were you ever in classes for
special ed, as opposed to the regular classes?
A
Yes.
Q
Do you know what grade that would have been? Or
grades?
A
I would say probably—from probably fifth all the way up
to eighth grade.
(AR at pp. 44-45).
The ALJ questioned Ms. Herman further about her educational
background:
Q
Do you remember what school you went to?
A
I went to—in my younger grade schools, I went to Horace Mann.
Q
It that here in Rapid City?
A
Yes.
Q
And where did you go to the junior high or middle school?
A
I went to Jefferson School.
Q
Is that also here?
A
Yes. And then the high school, I went to Douglas . . . Douglas
Junior High. Douglas High School.
Id. at p. 47. Ms. Herman’s attorney identified Jefferson as a “special
school.” Id. The ALJ then asked:
Q
What kind of special school?
A
Special education.
9
Q
Oh, is it?
A
Yes.
Id. at p. 48. The ALJ then agreed to obtain Ms. Herman’s “testing scores
and grade scores.” Id. “I’m going to ask our staff to get grade records and
any testing scores that were—that may be available from Douglas, Jefferson,
and Horace Mann Schools here in Rapid City. I was unaware that there was
a special school, like Jefferson, and that is evidence of some sort that these
problems existed prior to age 22, I think.”6 Id. at p. 51. Ms. Herman then
volunteered “I went to South Canyon School, too, and they had their special
education there, you know, in my younger days.” Id.
Ms. Herman’s “very low grades” recorded in the school records
indicate while a sixth grader at South Canyon Elementary School she
attended 79 of 89 days. (Docket 14 at p. 2). In the classes of reading and
phonetics, arithmetic, English and literature, social studies, and science her
grades were “F.” Id. The other grades shown on that report card for the
first and second nine weeks of the school year were: “S” [satisfactory] in
writing and art; “B.S.” [below satisfactory or grade “B” and “satisfactory”] in
physical education and health; and a “B” and “C” in vocal music. (AR at p.
6
The school records were obtained after the hearing. (AR at p. 15). Because
the schools’ document retention policy requires them only to keep records for
five years, the record consists of six pages. Id.; see also Exhibit 26E, AR at pp.
338-43.
10
342). Ms. Herman’s “deportment” for both sessions was “S.” Id. The report
card indicates Ms. Herman was “[t]ransferred to Robb. Sp. Ed. Date
74/2/4.”7 Id.
While at Jefferson Junior High, Ms. Herman’s grades were “F” in
reading and phonetics, arithmetic, English and literature, social studies,
science, and spelling. (AR at 340). Her grades in art and “spelling in other
written work” were “S”; while her grades in physical education were “C” and
music were “C” and “B.” Id. Ms. Herman’s “deportment” was “S.” Id.
Ms. Herman transferred from Jefferson Junior High School8 in Rapid
City to the Douglas School System on August 23, 1997. (Docket 14 at pp.
2-3). At the time of her transfer to Douglas High School, the record
indicated she would be entering the ninth grade. Id. at 339. The last page
of her school record reflects Ms. Herman withdrew from Douglas High
School on October 5, 1977. Id. at p. 338. At the time of withdrawal, Ms.
Herman had “NC” [no credit] in all of her classes. Id.
7
The court informally inquired of counsel whether “Robb. Sp. Ed.” refers to
“Robbinsdale Special Education” or to some other “Sp. Ed.” program. (Docket
21-1). The Commissioner’s response was “[she] cannot stipulate to any facts
that cannot be clearly discerned from the record. Beyond what is contained in
the record, the Commissioner does not have any knowledge of the facts
surrounding Plaintiff’s education.” (Docket 21 at p. 4).
8
The court made a similar informal inquiry of counsel whether Jefferson
Junior High School was the special education school for the Rapid City District
in 1977. (Docket 21-1). The Commissioner gave the same response. (Docket
21 at p. 4).
11
These school records disclose Ms. Herman’s academic class grades
were not only “very low” as reported by the ALJ but, in reality, she failed
every academic class. This supports Ms. Herman’s testimony as to why she
was required to repeat the earlier grades. “Satisfactory” results in physical
education, music and art, and deportment show she was engaged and was
making an effort to succeed.
Dr. Greg Swenson, a Ph.D. psychologist, performed a psychological
evaluation of Ms. Herman on January 5, 2006. (Docket 14 at p. 3). Ms.
Herman reported she “disliked school and struggled academically. [She]
believes she was retained in the third and fourth grade . . . [and] qualified
for special education services.” Id. Ms. Herman told Dr. Swenson she quit
attending school in ninth grade because she was pregnant. Id. Dr.
Swenson reported Ms. “Herman’s full scale IQ at 65, or equivalent to the
first percentile.” Id. at p. 4. Dr. Swenson concluded “ ‘since [Ms. Herman]
indicated a history of difficulty with academic work and retention in several
grades in school, as well as qualification for special education services, it is
reasonable to conclude [her] intellectual limitations are developmental in
origin.’ ” Id. at pp. 4-5.
In February of 2010, Dr. Swenson stated Ms. Herman’s 2006 testing
results of reading and mathematical abilities at or below the fourth grade
level were consistent with the educational struggles she reported while in
12
school. Id. at pp. 8-9. Dr. Swenson reconfirmed Ms. “Herman’s January
2006 IQ test scores were valid.” Id. at p. 9. Dr. Swenson concluded Ms.
Herman “has significantly sub-average intellectual functioning with deficits
in adaptive functioning, that have manifested themselves throughout her
development, and prior to the age of 22 . . . .” Id. at p. 9.
Dr. Robert Arnio, a Ph.D. psychologist, evaluated Ms. Herman in late
2006. Id. at p. 3. Ms. Herman’s mother told Dr. Arnio that her daughter
was never enrolled in special education classes in high school.9 Id.
According to Ms. Herman’s mother, her daughter “liked math and was
getting a grade of C when she left school [and] was passing her classes in
high school when she was forced to leave because of her pregnancy.” Id.
After testing, Dr. Arnio reported Ms. Herman had a “full scale IQ of 66.” Id.
at p. 6. He was concerned about the accuracy of the results, questioning
whether Ms. Herman “actually tried to answer questions honestly and
accurately during the examination.” Id. at p. 19.
In December of 2009, Dr. Dewey Ertz, an Ed.D. psychologist,
evaluated Ms. Herman. Id. at p. 4. Ms. Herman told Dr. Ertz she attended
elementary school in Rapid City and ninth grade in Box Elder (Douglas High
School). Id. She was a “slow learner and that she received services through
9
There is no evidence Dr. Arnio inquired about Ms. Herman’s educational
status in either elementary or middle school.
13
an alternative school setting.” Id. Among other diagnoses, Dr. Ertz
concluded Ms. Herman had “mild mental retardation by history.” Id. at
p. 7.
The greater weight of the evidence shows Ms. Herman was more likely
than not in special education classes during her developmental years. The
fact Ms. Herman and her mother gave contradictory statements to Dr. Arnio
does not overcome the clarity of the school records.
A consulting expert, Dr. Pelc, a Ph.D. psychologist, testified at the
administrative hearing. (AR at p. 30). After considering the testing
performed [by Dr. Swenson and Dr. Arnio], Dr. Pelc testified “I’m frankly . . .
inclined to say that [Ms. Herman’s] IQ is validly below 70 . . . . Swenson’s
test score was 65, Arnio’s was 66. . . . I think that’s a clear interpretation
that can be made from these data.” Id. at pp. 34-35.
The ALJ summarized Dr. Pelc’s testimony regarding Ms. Herman’s IQ.
“Dr. Pelc testified that FSIQ of 65 is probably accurate.” Id. at p. 19. The
ALJ “afforded significant weight to the medical opinions of Dr. Pelc . . . .” Id.
The ALJ concluded there was no “other evidence in the record that suggests
[Ms. Herman] has not completed assessment testing to the full–extent of her
abilities[],” as suggested by Dr. Arnio. Id. The ALJ gave Ms. Herman “the
benefit of the doubt . . . and finds that the IQ assessments are accurate.”
Id. The ALJ concluded “the medical evidence shows that her full scale IQ
14
falls in the borderline intellectual functioning range . . . .” Id. at p. 18
(adopting Dr. Pelc’s testimony and Dr. Swenson’s report (Exhibit 5F/3, AR
at p. 382) (Ms. Herman’s “Full Scale IQ 65”)).
However, the ALJ failed to properly consider an important part of Dr.
Pelc’s testimony, particularly in light of the fact Ms. Herman’s school
records were not available at the time of the psychologist’s examination of
the record. Without access to Ms. Herman’s educational records, Dr. Pelc
testified “I believe, a couple of grades while she was still in elementary
school, which if true—and I didn’t find an educational record—but if true,
would certainly be indicative of problems with adaptive functioning prior to
the age of 22.” (AR at p. 34) (emphasis added). “Dr. Arnio says that the
educational history is not accurately reported. Dr. Swenson says it is. And
I don’t have a record to be able to resolve that. . . . [comparing Dr. Arnio’s
and Dr. Swenson’s other test results] . . . . Those are certainly scores that
are relatively consistent and often seen with persons who have significantly
sub-average intellectual ability.” Id. pp. 34-35 (emphasis added). Ms.
Herman’s educational record verifies her academic failure. Dr. Pelc’s
testimony should not be ignored or discounted by the ALJ. Dr. Pelc’s
testimony confirms if the education record supports Ms. Herman’s
testimony that she had to repeat “a couple of grades while she was still in
15
elementary school . . . [that] would certainly be indicative of problems with
adaptive functioning prior to age 22.” Id. at p. 34 (emphasis added).
The ALJ rejected Ms. Herman’s argument “that it should be presumed
her current IQ represents [her] IQ prior to the age of 23.” (AR at p. 15). The
ALJ reached this conclusion by distinguishing Muncy v. Apfel, 247 F.3d 728
(8th Cir. 2001). The ALJ recognized “[t]he Court in Muncy found that the
initial IQ scores were accurate because absent evidence of a change in a
person’s intellectual functioning, his or her IQ is assumed to remain the
same through out his or her life.” (AR at pp. 15-16) (referencing Muncy, 247
F.3d at 734). Distinguishing Ms. Herman’s record from Muncy, the ALJ
declared Ms. Herman “has not previously been determined to be disabled
and there are no conflicting full scale IQ scores. Therefore, the undersigned
has to make the initial determination of whether there is sufficient evidence
to find that [Ms. Herman’s] condition [IQ score] existed prior to the age of
23. The undersigned finds that this burden has not been satisfied.” (AR at
p. 16). The ALJ erred as a matter of law. Smith, 982 F.2d at 311.
Even though a person’s IQ score is determined “after the
developmental period, . . . ‘a person’s IQ is presumed to remain stable over
time in the absence of any evidence of a change in a claimant’s intellectual
functioning.’ ” Maresh, 438 F.3d at 900 (citing Muncy, 247 F.3d at 734;
also referencing 65 Fed. Reg. 50,753 (2000) (“explaining that the regulations
16
‘permit us to use judgment, based on current evidence, to infer when the
impairment began.’ ”) (emphasis added in Maresh). See also Christner v.
Astrue, 498 F.3d 790, 793 (8th Cir. 2007) (“there is some circumstantial
evidence to support the fact that Christner’s deficiency [full scale IQ of 58]
manifested before age twenty-two . . . . Here, like Maresh, there was
evidence of manifestation before age twenty-two, including Christner’s lowgrade dropout and participation in prior special education classes.”);
Douglas v. Astrue, 341 F. App’x 257, 258-59 (8th Cir. 2009) (“We conclude
that the additional evidence Douglas submitted undermines the ALJ’s
conclusion that Douglas had not shown the required deficiencies in adaptive
functioning prior to age 22.”) (referencing Maresh, 438 F.3d at 900 (claimant
proved mental retardation manifested itself before age 22 when he struggled
in special education classes through ninth grade and then dropped out of
school) and Muncy, 247 F.3d at 734 (IQ is presumed to remain stable over
time absent evidence of change in intellectual functioning)).
There is no evidence in the record to suggest Ms. Herman’s
intellectual function diminished between her grade school years and her IQ
scores in 2006. “Mental retardation is not normally a condition that
improves as an affected person ages.” Christner, 498 F.3d at 794 (quoting
Muncy, 247 F.3d at 734).
17
The ALJ concluded “the record does not show that [Ms. Herman] has
deficits in adaptive functioning. This is most clearly evidenced in the
statements provided by [her] former employers . . . .” (AR at p. 13). The
introductory paragraph of Listing 12.05 requires the ALJ to make the
determination of “deficits in adaptive functioning” before the age of 22.
(Appendix 1, Listing 12.05). Whether Ms. Herman developed skills in
adaptive functioning in her late twenties or forties does not focus on the
requirements of Listing 12.05. “According to the Commissioner, the
introductory paragraph of the Listing [12.05] requires that the deficits in
adaptive functioning are initially manifested before age 22. . . . This court
agrees with the Commissioner . . . . [u]nder the plain language of the
regulations, a claimant must demonstrate or support onset of the
impairment before age 22.” Maresh, 438 F.3d at 899.
The ALJ rejected Dr. Swenson’s opinion, suggesting Dr. Swenson
reported Ms. Herman may be mentally retarded under South Dakota law,
which is “not consistent with the standards required by the Social Security
Administration to meet listing 12.05 . . . .” (AR at p. 14). This is a
misstatement of Dr. Swenson’s report and his ultimate opinion.
There is no mention of South Dakota law in Dr. Swenson’s report,
rather he stated:
18
In determining the diagnosis of mild mental retardation, my
primary criteria consisted of the description of mild mental
retardation contained in the DSM-IV10 and quoted in part:
“Mild mental retardation: . . . as a group, people with
this level of mental retardation typically develop
social and communication skills during the preschool years, have minimal impairment in sensory
motor areas, and are often not distinguishable from
children without mental retardation until a later age.
By their late teens, they acquire academic skills up to
approximately the sixth-grade level. During their
adult years they usually achieve social and vocational
skills for minimum self-support but may need
supervision, guidance, and assistance, especially
when under unusual social or economic stress. With
appropriate supports, individuals with mild mental
retardation can usually live successfully in the
community, either independently or in supervised
settings.”
(AR at p. 350). Dr. Swenson concluded, “[t]o summarize, I believe Jacki
Herman has significantly sub-average intellectual functioning with deficits
in adaptive functioning, that have manifested themselves throughout her
development, and prior to the age of 22 . . . .” Id. at p. 351.
Dr. Pelc did not challenge Dr. Swenson’s diagnosis or his ultimate
opinion.
[M]y own conclusion . . . is that this lady probably has mild
mental retardation. And she maximizes the functionality, based
on, you know, some sustained effort, and also, it looks like from
what Swenson describes around her job history, she had some
support . . . they support people into a competitive, low skilled job
situation or unskilled job situation, and they provide a lot of
10
Diagnostic and Statistical Manual of Mental Disorders, 4th Ed.
19
support so that person can effectively stay in that situation, kind
of repetitively doing the same thing.11
(AR at p. 36).
The court finds the substantial weight of the evidence is contrary to
the findings of the ALJ.12 The review of a decision to deny disability benefits
“is more than an examination of the record for the existence of substantial
evidence in support of the Commissioner’s decision . . . [the court must also]
take into account whatever in the record fairly detracts from that decision.”
Reed, 399 F.3d at 920 (internal quotation marks and citation omitted).
The court finds prior to age 22 Ms. Herman’s IQ was 65 and she
suffered with significant subaverage general intellectual functioning with
deficits in adaptive functioning. The court finds Ms. Herman satisfies the
introductory paragraph of Listing 12.05.
The next question is whether the record supports a finding Ms.
Herman meets any of the four paragraphs of Listing 12.05. The two
paragraphs relevant to Ms. Herman are:
11
Ms. Herman “had a job coach who helped her get started when she first
started working at the Black Hills Workshop.” (Docket 14 at p. 2).
12
Dr. Arnio did not perform a formalized assessment of Ms. Herman to
determine if a diagnosis of mental retardation was appropriate. (AR at p. 14).
A non-examining, consulting psychologist, Dr. Berkowitz, arrived at the same
conclusion. Id. Dr. Berkowitz premised his opinion on rejecting Ms. Herman's
IQ “in the 60s[.]” (AR at p. 377). A consulting expert’s opinion based on
findings contrary to medical evidence cannot be given any weight.
20
C.
A valid verbal, performance, or full scale IQ of 60
through 70 and a physical or other mental
impairment imposing an additional and significant
work-related limitation of function;
Or
D.
A valid verbal, performance, or full scale IQ of 60
through 70, resulting in at least two of the following:
1.
Marked restriction of activities of daily
living; or
2.
Marked difficulties in maintaining social
functioning; or
3.
Marked difficulties in maintaining
concentration, persistence, or pace; or
4.
Repeated episodes of decompensation,
each of extended duration.
Listing 12.05 of Appendix 1.
The ALJ concluded Ms. Herman did not satisfy the paragraph D
criteria of Listing 12.05. (AR at p. 13). “Because [Ms. Herman’s] mental
impairments do not cause at least two ‘marked’ limitations or one ‘marked’
limitation and ‘repeated’ episodes of decompensation, each of extended
duration, the . . . ‘paragraph D’ criteria of listing 12.05 . . . are not
satisfied.” (AR at p. 13). Ms. Herman does not challenge this conclusion.
“[T]o meet Listing 12.05C, a claimant must show: (1) a valid verbal,
performance, or full scale IQ of 60 through 70; (2) an onset of the
impairment before age 22; and (3) a physical or other mental impairment
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imposing an additional and significant work-related limitation of function.”
Maresh, 438 F.3d at 899. The court has already found Ms. Herman’s prior
to age 22 full scale IQ was 65. The only remaining issue is whether Ms.
Herman has “a physical or other mental impairment imposing an additional
and significant work-related limitation of function.” Id.
“The third requirement of Listing 12.05C is that the claimant has a
physical or other mental impairment imposing an additional and significant
work-related limitation of function, i.e., a ‘more than slight or minimal’ effect
on the ability to perform work.” Id. at 900. The ALJ found Ms. Herman had
severe physical impairments of “lumbar degenerative disc disease, and
lumbar facet degenerative joint disease . . . .” (AR at p. 12). As the ALJ
noted, a severe impairment “is defined as an impairment or combination of
impairments that significantly limits (has more than a minimal effect on) an
individual’s ability to perform basic work activities.” Id. Ms. Herman
“meets Listing 12.05C.” Maresh, 438 F.3d at 901 (referencing Shontos v.
Barnhart, 328 F.3d 418, 427 (8th Cir. 2003) (reversing denial of benefits
because substantial evidence showed that claimant met Listing 12.05C).
The Commissioner argues Ms. Herman’s mental retardation does not
preclude her from working, because “she was at times performing
substantial gainful activity . . . .” (Docket 16 at p. 15). “However, [t]he issue
is not whether the claimant can perform gainful activity; rather, it is
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whether [she] has a[n] ... impairment, other than [her] . . . mental
impairment, which provides significant work-related limited function—in
other words, whether the second prong of § 12.05(C) is met.’ ” Maresh, 438
F.3d 897, 901 (8th Cir. 2006) (citing Sird v. Chater, 105 F.3d 401, 403 (8th
Cir. 1997) (reversing ALJ’s denial of benefits for a claimant who met Listing
12.05C)).
An individual who satisfies the introductory paragraph and one of the
subparagraphs of Listing 12.05 is presumed disabled without proceeding to
the next step. 20 CFR § 416.920(a)(4)(iii) (“At the third step, we also
consider the medical severity of your impairment(s). If you have an
impairment(s) that meets or equals one of our listings in appendix 1 to
subpart P of part 404 of this chapter and meets the duration requirement,
we will find that you are disabled.”). See also Christner, 498 F.3d at 793 (“A
claimant who is found to be mentally retarded under this listing is
presumed disabled at step three without further inquiry.”); Jones v.
Barnhart, 335 F.3d 697, 699 (8th Cir. 2003) (“If the claimant wins at the
third step (a listed impairment), she must be held disabled, and the case is
over.”).
The court finds Ms. Herman meets the requirements of Listing 12.05C
and is entitled to benefits.
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ORDER
In accord with the above decision, it is hereby
ORDERED that plaintiff's motion (Docket 15) is granted and the
decision of the Commissioner of March 28, 2011, is reversed and the case is
remanded to the Commissioner for the purpose of calculating and awarding
benefits to the plaintiff Jacki Herman.
Dated March 26, 2012.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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