Lillebo v. Astrue

Filing 19

MEMORANDUM OPINION AND ORDER. It is therefore ORDERED that the decision of the Commissioner be, and it is hereby, REVERSED and REMANDED for further administrative proceedings consistent with this opinion. Signed by Judge Miguel A. Torres. (scf)

iN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

HAROLD LILLEBO,

§
§

Plaintiff,

§
§

v.

§

NO. EP-12-CV-330-MAT

§

CAROLYN W. COLVIN,
ACTiNG COMMISSIONER OF THE
SOCIAL SECURITY ADMiNISTRATION,'

§
§

§
§

Defendant.

§

MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. Plaintiff appeals

the decision of the Commissioner of the Social Security Administration (Commissioner) denying
his claim for supplemental security income (S SI) under Title XVI of the Social Security Act.

Jurisdiction is predicated upon 42 U.S.C.

§

405(g). Both parties having consented to trial on the

merits before a United States Magistrate Judge, the case was transferred to this Court for trial and
entry ofjudgment pursuant to 28 U.S.C.

§

636(c), and Appendix C of the Local Court Rules of the

Western District of Texas. For the reasons below, the Commissioner's decision is REVERSED and
REMANDED for further administrative proceedings.

Carolyn W. Colvin became Acting Commissioner of the Social Security Administration
on February 14, 2013. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure and the
last sentence of 42 U.S.C. § 405(g), she is substituted as the Defendant herein.
1

I. PROCEDURAL HISTORY

Plaintiff was born on July 10, 1984. (R. 171).2 On April 12, 2006, he filed an application
for SSI in which he alleged disability since January 1, 2008 due to right ear hearing loss, a speech

impairment, and a learning disability. (R. 171-173, 203). After his application was denied initially
and again upon reconsideration, Plaintiff requested a hearing. (R. 95-99, 105-108, 109-110). On

May 7, 2008, Plaintiff appeared with his attorney for a hearing before an Administrative Law Judge

("AU).

(R. 29-47). His application for benefits was denied by the AU' s written decision issued

on October 7, 2008. (R. 79-84).

On May 12, 2009, the Appeals Council vacated the decision and remanded the case for

consideration of treating source records and opinions. (R. 85-89).

Following a new administrative

hearing on June 9,2010, the AU issued an unfavorable decision on August 23,2010. (R. 14-23,4872). On June 22, 2012, the Appeals Council affirmed the

AU's decision to deny benefits, thereby

making it the final decision of the Commissioner. (R. 1-6). This appeal followed.
II. ISSUE PRESENTED

Plaintiff contends the AU's finding that his mental impairment does not meet or equal
Listing 12.05C is not supported by substantial evidence.

Reference to the record of administrative proceedings is designated by "(R. {page
number(s)])."
2

In his application, Plaintiff alleged disability since January 20, 2006. (R. 171). In his
disability report, he alleged disability since July 10, 1984. (R. 218). At the first administrative
hearing on May 7, 2008, the onset date was amended to January 1, 2008. (R. 33, 61).

2

III. DISCUSSION

A. Standard of Review

This Court's review of the Commissioner's decision is limited to a determination of whether
it is supported by substantial evidence on the record as a whole and whether the proper legal

standards were applied in evaluating the evidence. Myers v. Apfel, 238 F.3d 617, 619(5th Cir. 2001)

(citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994)). Substantial evidence is more than
a scintilla, but less than a preponderance, and is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). A
finding of "no substantial evidence" will be made only where there is a "conspicuous absence of
credible choices" or "no contrary medical evidence." Abs hire v. Bowen, 848 F.2d 638, 640 (5th Cir.
1988).

In determining whether there is substantial evidence to support the findings of the

Commissioner, the court must carefully examine the entire record, but may not reweigh the evidence
or try the issues de novo. Newton v. Apfel, 209 F.3d 448,452 (5th Cir. 2000); Haywood v. Sullivan,
888 F.2d 1463, 1466 (5th Cir. 1989). The court may not substitute its own judgment "even if the

evidence preponderates against the [Commissioner's] decision" because substantial evidence is less

than a preponderance. Harrell

v.

Bowen, 862 F.2d 471, 475 (5th Cir. 1988). Conflicts in the

evidence are for the Commissioner and not the courts to resolve. Speilman v. Shalala,

1

F.3d 357,

360 (5th Cir. 1993). If the Commissioner applied the proper legal standards and her findings are

supported by substantial evidence, they are conclusive and must be affirmed. Id. at 360.
B. Evaluation Process and Burden

of Proof

Disability is defined as the "inability to engage in substantial gainful activity by reason ofany

3

medically determinable physical or mental impairment which.

. .

has lasted or can be expected to

last for a continuous period of not less than 12 months." 42 U.S.C.

§

423(d)(1)(A). Disability

claims are evaluated according to a five-step sequential process: (1) whether the claimant is currently
engaged in substantial gainful activity; (2) whether the claimant has a severe medically determinable
physical or mental impairment or combination of impairments; (3) whether the claimant's

impairment or combination of impairments meets or equals the severity of an impairment listed in
20 c.F.R. Part 404, Subpart P, Appendix 1; (4) whether the impairment or combination of

impairments prevents the claimant from performing past relevant work; and, (5) whether the
impairment or combination of impairments prevents the claimant from doing any other work. 20
C.F.R.

§

4 16.920. A finding that a claimant is disabled or not disabled at any point in the process

is conclusive and terminates the analysis. Greenspan, 38 F.3d at 236.

The claimant bears the burden of proof on the first four steps of the sequential analysis.

Leggett v. Chater, 67 F.3d 558, 565 (5th Cir. 1995). Once this burden is met, the burden shifts to
the Commissioner to show that there is other substantial gainful employment available that the

claimant is capable of performing. Anderson

v.

Sullivan, 887 F.2d 630, 632 (5th Cir. 1989). The

Commissioner may meet this burden by the use of opinion testimony of vocational experts or by use

of administrative guidelines in the form of regulations. Rivers v. Schweiker, 684 F.2d 1144, 1155
(5th Cir. 1982). If the Commissioner adequately points to potential alternative employment, the

burden then shifts back to the claimant to prove that he is unable to perform the alternative work.
Id.
C. The

AU's Decision
In her written decision, the AU found Plaintiffhad not engaged in substantial gainful activity

4

since January 1, 2008, the amended onset date. (R. 16). At the next step, the AU determined

Plaintiff has severe impairments consisting of hearing loss and a mood disorder. Id. The AU
determined Plaintiff's impairments of seizure disorder, speech impediment, and asthma are nonsevere impairments. (R. 17). She further determined Plaintiff's borderline to low average 1Q5 is a
non-severe impairment. (R. 18).

At step three, the AU determined Plaintiff does not have an impairment or combination of

impairments that meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,

Appendix

1.

(R. 18-19). In making this determination, the AU specifically addressed the criteria

of Listings 12.04 (Affective Disorders) and 12.05 (Mental

Retardation)6

of 20 C.F.R. Part 404,

Subpart P, Appendix 1. With regard to listing 12.05C, the AU stated the criteria were not met

because Plaintiff "does 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. The [Plaintiff' SI additional impairments do not impose any additional or significant
work-related limitations." (R. 19).

Before reaching step four, the AU found Plaintiff retains the residual functional capacity7

("RFC") to perform a full range of work at all exertional levels with the following nonexertional
limitations: can work in an area with no more than moderate noise levels, and must avoid respiratory
The range of "borderline intellectual functioning" includes IQ scores within the range of
71 to 84. See Boyd v. Apfel, 239 F.3d 698, 702 n. 5 (5th Cir. 2001) (citing DSM-IV, p. 45).

Effective August 1, 2013, Listing 12.05 refers to "intellectual disability" rather than
"mental retardation." See Change in Terminology: "Mental Retardation" to "Intellectual
Disability," 78 Fed. Reg. 46,499 (Aug. 1, 2013). The substance of listing 12.05, including the
criteria, remains otherwise unchanged.
6

Residual functional capacity is defined in the regulations as "the most you can still do
despite your limitations." 20 C.F.R. § 4 16.945(a).

irritants, unprotected heights and hazardous moving machinery. The AU also found Plaintiff can

perform work requiring short, simple instructions, can make simple work-related decisions in an
environment with few changes and no public contact, and should work primarily with things rather

than with people. (R. 19).
The AU did not make a finding at step four because she found Plaintiff has no past relevant

work as defined in the regulations. The AU determined Plaintiff's past jobs do not constitute past

relevant work under 20 C.F.R.

§

4 16.965 because his earnings were below the threshold. (R. 22).

At step five, the AU relied on the testimony of a vocational expert (yE)8, to find Plaintiff is capable

of making a successful adjustment to other work that he can perform, including the representative
occupation of dishwasher. (R. 21-22). Based on the VE's testimony and using section 204.00 in the
Medical Vocational Guidelines as a framework, the AU determined that Plaintiff was not disabled
because he is capable of making a successful adjustment to other work that exists in significant

numbers in the national economy. (R. 22).
D. Analysis of Plaintiff's Claim

At the third step of the sequential evaluation, the AU determines whether the medical
evidence meets or equals the criteria of a listed impairment in Appendix
C.F.R.

§

1

of the regulations. 20

416.920(d). The determination of whether a claimant meets or equals the requirements of

any impairment in the Appendix

Commissioner. 20 C.F.R.

§

1

Listing of Impairments ("the Listings") is an issue reserved to the

416.927(d)(2). The Listings describe conditions and impairments that

At the hearing, the VE classified Plaintiff's past work experience in terms of exertional
level and skill level as follows: dishwasher- medium, unskilled; housekeeper- light, unskilled;
presser- light, unskilled. (R. 69). The VE further testified a hypothetical person with the same
age, education and RFC as the Plaintiff could perform the job of dishwasher which exists in
significant numbers in the regional and national economy. (R. 69-70).
r1

are sufficiently severe to prevent an individual from engaging in any gainful activity, not just

"substantial gainful activity," regardless of age, education or work experience. 20 C.F.R.

§

4 16.925(a); Sullivan v. Zebley, 493 U.S. 521, 532 (1990). Thus, Plaintiff is automatically entitled

to benefits if his impairment meets or equals the criteria of one of the listed impairments in

Appendix

ito Subpart P of Part 404.

20 C.F.R.

§

416.920(d).

Because the Listings were designed to operate as a presumption of disability that makes

further inquiry unnecessary, the medical criteria of the Listings are more restrictive than the statutory
disability standard. Sullivan, 493 U.S. at 532. The burden of proof rests with Plaintiff to provide

and identify medical signs and laboratory findings that support all criteria of a listed impairment.
Sullivan, 493 U.S. at 530; Selders v. Sullivan, 914 F.2d 614,619(5th Cir. 1990). The listings criteria
are "demanding and stringent." Falco

v.

Shalala, 27 F.3d 160,162 (5th Cir. 1994). A mere

diagnosis of a condition will not suffice. "For a claimant to show that his impairment matches a
listing, it must meet all of the specified criteria. An impairment that manifests only some of those

criteria, no matter how severely, does not qualify." Sullivan, 493 U.S. at 530.

At issue in this case is Listing 12.05 which addresses intellectual disability.

To be

presumptively disabled under this listing, Plaintiff must meet all of the following criteria:
12.05 Mental retardation: Mental retardation refers to significantly subaverage general

intellectual functioning with deficits in adaptive functioning initially manifested during the
developmental period, i.e., the evidence demonstrates or supports onset of the impairment before age
22.
The required level of severity for this disorder is met when the requirements in A, B, C, or
D are satisfied.

of 60 through 70 and a physical or other
imposing additional and significant work-related limitation offunction{.]
mental impairment
C. A valid verbal, performance, or full scale IQ

20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.05C (2008). To meet the requirements of this listing, the
7

claimant must satisfy the diagnostic description in the introductory paragraph as well as the specific
factors of subsection C. See Randall v. Astrue, 570 F.3d 651, 659-60 (5th Cir. 2009).
In the present case, the AU considered whether Plaintiff's mental impairments, singly or

in combination, met the criteria of Listings 12.04 and 12.05, and she specifically considered Listing
12.05C.

(R. 18-19).

schoolchild9

The AU noted in her opinion that Plaintiff had IQ testing done as a

in which he attained a verbal score of 70, a performance IQ of 70, and a full scale IQ

of 68 +1- 510 (R. 18). The AU further noted Plaintiff attained a score of 87 on a nonverbal IQ test"
Id. The AU stated Plaintiff was in special education classes at school because of auditory and

speech impairment. Id. The AU reported an educational diagnostician noted that Plaintiff's IQ
scores placed him in the low average range of intelligence. Id. Finally, the AU noted Plaintiff had

not undergone IQ testing as an adult. She concluded Plaintiff's mental impairment did not meet the

criteria of listing 1 2.05C because he "does 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. The [Plaintiff's] additional impairments do not impose any
additional or significant work-related limitations." (R. 19).

Plaintiffcontends he should have been found disabled under listing 12.05 C because his valid
IQ scores (verbal score of 70, performance score

of 70, and full scale score of 68

The record evidence shows Plaintiff was 9 years,
(R. 940-95 1).

3

+1- 5) are

within

months old at the time of testing.

Under the regulations, where the verbal, performance and full scale IQs are provided in
the Wechsler series, the Commissioner uses the lowest of the three in conjunction with Listing
12.05. 20 C.F.R. Ch. III, Pt. 404, Subpt. P, App.1, 12.00(D)(6)(c). Williams v. Comm 'r of Social
Security, 2014 WL 1330310, at *4 (M.D. La. 2014).
10

appears the AU was referring to Plaintiff's results on the Test of NonVerbal
Intelligence ("TONI"). (R. 948).

the required range, and his impairments of severe mood disorder and severe hearing loss impose

additional and significant work-related limitation of function as evidenced by the non-exertional
limitations included in the AU's RFC assessment (work requiring short, simple instructions; making
simple work-related decisions in an environment with few changes and no public contact; and,
working primarily with things rather than with people; working in an area with no more than
moderate noise levels; and, avoiding respiratory irritants, unprotected heights, and hazardous moving
machinery).'2

The Commissioner maintains the

AU's determination that Listing 12.05C was not met

turned on the fact that Plaintiff could not show he met the listing's IQ requirement. She contends
the AU properly discredited the IQ scores derived from testing when Plaintiff was 9 years old. The
Commissioner argues: (1) the regulations recognize IQ scores tend to stabilize at age 16, and scores
obtained between the ages of 7 and 16 should be considered current for only two years when the IQ
score is 40 or above; and, (2) Plaintiff's IQ scores were too remote in time, and therefore not a valid
reflection of his intellectual functioning for the adjudicated period at issue (January 1, 2008 through

August 23, 2010) when he was 23 to 26 years old. (Def's Brief, ECF No. 18, pp. 5-6). Relying on
Hamilton v. Shalala, 39 F.3d 319 (5th Cir. Oct. 17, 1994), the Commissioner contends that because

Plaintiff cannot show he meets Listing 12.05 C's IQ requirement, no further analysis of the other
listing criteria is needed.

Plaintiff argues the "initial requirements" of Listing 12.05 are satisfied because his IQ
scores are within the range of 60 to 70, and he was under the age of 22 at the initial onset of the
impairment. (P1's Brief, ECF No. 17 at p. 5). This argument misapprehends the requirements of
the introductory paragraph of Listing 12.05 which requires a showing of not only significantly
subaverage intellectual functioning, but also "deficits in adaptive behavior" manifested before
age 22. Randall, 570 F.3d at 659-60. In any event, there is no discussion in the AU's opinion of
the requirements of the introductory paragraph.
12

The Commissioner is correct that the AU may make factual determinations on the validity

of IQ scores and may discount an IQ score as invalid so long as there is substantial evidence in the
record to support the conclusion. Muse
decide not to fully credit them

v.

if there

Sullivan, 925 F.2d 785, 790 (5th Cir. 1991). She may

is evidence that shows they are unreliable, invalid, or

inconsistent with other evidence contained in the record. See Cole v. Barnhart, 69 F. App'x 658(5th
Cir. 2003); Jones

v.

Barnhart, 2007 WL 628768, at *8 (W.D. Tex. Feb. 21, 2007). "However,

because AU's [sic] are not physicians, they may not hastily reject I.Q. scores." Carr v. Astrue, 2008
WL 4326344, at *4 (N.D. Miss. Sept. 22, 2008) (reversing and remanding where AU provided no

discussion regarding the validity of claimant's IQ
In this case, the exact basis for the

scores))3

AU' s determination that Plaintiff's mental impairment

did not meet Listing 12.05 C is unclear, and as a result, subject to several interpretations. It is not

clear if the AU found the Listing was not met because she rejected the IQ scores, and if so, which
scores were rejected and for what reason(s), or if she determined the Listing was not met solely

because, as she stated, "[t]he [Plaintiff's] additional impairments do not impose any additional or

significant work-related limitations," (R. 19), or if she found neither prong of Listing 12.05 C was
met. Additionally, as stated earlier, in order to meet the requirements ofListing 12.05 C, the claimant

must satisfy the diagnostic description in the introductory paragraph and the specific factors of

Significantly, consultative mental examiner Randall Rattan, Ph.D. recommended reevaluation of Plaintiff's intellectual function on the basis of his previous [Wechsler Intelligence
Scale for Children] results yielding a full scale IQ of 68. (R. 649). Dr. Randall further opined,
"Reliance on a measure of non-verbal performance such as the now obsolete TONI, as the basis
for a non-finding of possible mild mental retardation, would be considered spurious clinical
reasoning. An examination of function using the [Wecshler Adult intelligence Scale] appears
indicated." Id.
13

10

subsection C. See Randall, 570 F.3d at 659-60.' The AU did not make any express findings as to

whether Plaintiff had the requisite deficits in adaptive functioning to satisfy the introductory
paragraph of listing 12.05 C.

Although not challenged by Plaintiff in this appeal, the Court notes the AU determined

Plaintiff retains the RFC to perform work at all exertional levels (with the aforementioned nonexertional limitations) which includes performing very heavy work, i.e. lifting objects weighing more

than 100 pounds at a time with frequent lifting or canying of objects weighing 50 pounds or more.
20 C.F.R.

§

4 16.967 (e). his finding appears inconsistent with the record evidence which shows

Plaintiff is of small stature, standing about 5 feet tall and weighing about 90 pounds, and is "frail"
in appearance. (R. 625, 647, 680).
The AU's decision must stand or fall with the reasons set forth in the decision, as adopted
by the Commissioner. Newton, 206 F.3d at 455. In this case, the Court cannot discern with certainty

the evidentiary basis for the AU's determination that Plaintifrs mental impairment does not meet

Listing 12.05C. The Commissioner, and not the Court, resolves evidentiary conflicts. Newton, 209
F.3d at 452. The task of this Court is to determine if there is substantial evidence in the record as
a whole which supports the

AU's decision. Chambliss, 269 F.3d 520, 523 (5th Cir. 2001) (citing

The Fifth Circuit has not yet specifically addressed whether a step two finding that an
impairment is severe is the equivalent of the "significant work-related limitation of function"
requirement of the second part of subsection C of Listing 12.05. However, the introduction to
Listing 12.00 ("Mental Disorders") indicates this is the true standard. Morris v. Colvin, 2014
WL 1415004, at *6 (M.D. La. April 11,2014) (citing Henderson v. Astrue, 2008 WL 269450
(N.D. Tex. Jan. 30, 2008); Cargill v. Colvin, 2013 WL 5526620 (N.D. Tex. Sept. 30, 2013)).
Moreover, several Circuits have held that this requirement is satisfied when the additional
impairment is "severe" under step two of the sequential evaluation. Nieves v. Sec 'y of Health
and Human Servs., 775 F.2d 12, 14 (1st Cir. 1985); Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th
Cir. 1997); Edwards by Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985).
14

11

Greenspan, 38

F.3d at 240). As sufficient doubt has been cast as to whether substantial evidence

supports the AU's decision, the Court finds this case should be remanded so the Commissioner can
evaluate whether Plaintiff's mental impairment met or equaled Listing 12.05 C during the relevant
period.
CONCLUSION
It is therefore ORDERED that the decision of the Commissioner be, and it is hereby,

REVERSED and REMANDED for further administrative proceedings consistent with this opinion.
SIGNED and ENTERED this

day of September, 2015.

N'IIGUEL AORRES

UNITED STATES MAGISTRATE JUDGE

12