Herreid v. Commissioner of Social Security
Filing
6
OPINION AND ORDER Granting 4 Plaintiff's Motion for Order Reversing the Commissioner's Decision and Denying 5 the Commissioner's Motion for Order Affirming the Commissioner's Decision and Remanding for Further Proceedings. Signed by Chief Judge Christina Reiss on 10/1/2015. (pac)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
MARGARET HERREID, GUARDIAN OF
TERESA M. HERREID,
Plaintiff,
v.
CAROLYN W. COL YIN,
Acting Commissioner of Social Security,
Defendant.
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2015 OCT -I PM 3: 15
Case No. 2:14-cv-255
OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR ORDER
REVERSING THE COMMISSIONER'S DECISION
AND DENYING THE COMMISSIONER'S MOTION FOR ORDER
AFFIRMING THE COMMISSIONER'S DECISION AND REMANDING FOR
FURTHER PROCEEDINGS
(Docs. 4 & 5)
Plaintiff Margaret Herreid, as guardian of Teresa M. Herreid ("Ms. Herreid"), is a
claimant for Supplemental Social Security Income ("SSI") and disabled adult child's
benefits. Pursuant to 42 U.S.C. § 405(g), she seeks a reversal and remand of a decision
by Defendant Carolyn W. Colvin, the Acting Commissioner of the Social Security
Administration (the "Commissioner"), denying Ms. Herreid benefits.
Plaintiff contends that Administrative Law Judge ("ALJ") Thomas Merrill erred
by: (1) finding that Ms. Herreid's depression was not a severe impairment; (2) concluding
that Ms. Herreid's impairments did not meet the criteria under Listing 12.05C; (3) failing
to consider whether Ms. Herreid's impairments met the criteria under Listing 12.05D;
and (4) evaluating Ms. Herreid's residual functional capacity ("RFC") without sufficient
consideration of the evidence. The Commissioner moves to affirm the decision.
Plaintiff is represented by James Torrisi, Esq. The Commissioner is represented
by Special Assistant United States Attorney Monika K. Crawford. The court took this
matter under advisement on June 10, 2015.
I.
Factual and Procedural Background.
Ms. Herreid is a twenty-five year old woman who resides with her father, Robert
Herreid, in Waterford, Vermont. Her mother died when she was eight years old.
Plaintiff alleges that Ms. Herreid became disabled on September 15, 2011, as a result of
cognitive impairments and an affective disorder. Ms. Herreid graduated from high school
at age twenty and has worked for a few weeks in a butcher's shop, a gift shop, and a yam
shop. She has also volunteered in a nursing home and at a library. Most of these work
settings involved her working with a relative, neighbor, or family friend.
A.
Cognitive Impairments.
On October 7 & 9, 2009, Paul Donahue, Ph.D. conducted an educational
assessment of Ms. Herreid. He administered a clinical interview, the Wechsler Individual
Achievement Test ("WIAT-II"), and a parent interview. Dr. Donahue noted that Ms.
Herreid enjoyed knitting, described herself as healthy, and "[ s]he reported having
adequate energy to get through the day." (AR 254.)
The WIAT-II measures several components of intelligence, including reading,
mathematics, writing, and oral language abilities. The mean score on the test is 100, with
a standard deviation of fifteen. Ms. Herreid's scores on the components of the WIAT-II
ranged from eighty-two in spelling, which places her in the twelfth percentile, to sixty-six
in listening comprehension, which places her in the first percentile. Her composite score
was seventy-one, which places her in the third percentile.
Dr. Donahue concluded: "The Wechsler Individual Achievement Test (WIAT-II)
yielded consistent results. All of the subscales were in single digits in terms of
percentiles, with the exception of Spelling at 12%. This is a profile of a student with
significant intellectual limitations, who requires significant modifications to be successful
in school." (AR 255.)
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From 2007 until 2010, Ms. Herreid participated in an Individualized Educational
Program ("IEP") while attending the St. Johnsbury Academy. Eleanor Donovan, a
special educator at the St. Johnsbury Academy, recorded that "[Ms. Herreid's] scores fell
in the very low to low end of low average in all academic areas." (AR 234.) Ms.
Herreid's teachers described her "as being very focused; independently completing tasks,
sharing thoughts more in large groups; a hard worker; persistent; reflective; seeking adult
assistance as needed; having more positive relationships with others; an eager learner;
using supports about her emotions and doing better with talking about her frustrations."
!d. Ms. Donovan described potential issues that Ms. Herreid would face in a work
environment as: "the inability to initiate tasks in the workplace, lack of confidence in her
abilities, very quiet, a little slow at tasks, sometimes makes random comments, and at
times, daydreams." !d. She predicted that Ms. Herreid "will do well on a job site
especially if some time is taken to show her how to do something. [Ms. Herreid] needs
constant supervision and prompts until she learns a task. [Ms. Herreid] needs clear
expectations and directions and then she will do well with just a few prompts." Id. The
IEP predicted that "[u]pon completion of high school, [Ms. Herreid] will find
employment in the geriatric services field" and "will complete any training requirements
to become a geriatric aide." (AR 239.) The IEP further anticipated that Ms. Herreid
would be able to live on her own.
From November 12, 2009 until December 18, 2009, Ms. Herreid received special
education in a small group environment in developmental math, written language,
reading, and language arts. From December 21, 2009 until June 4, 2010, she received
special education in a small group environment, including direct instruction in life
skills/transition skills and history. Ms. Herreid was "[i]nside [r]egular [c]lass 40-79%" of
the time. (AR 244.) She was permitted additional time to complete tasks, tested in small
group environments, and was allowed to use a calculator and a computer to assist her
with calculations and written responses. The IEP described her mathematics abilities as
"'substantially below proficient.'" (AR 248.) Overall, Ms. Herreid's "academic
assessment indicates that she is performing below the 15th percentile rank in all areas and
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will require specialized instruction that is not available in the general system of support."
(AR 250.)
B.
Mental Health Impairments.
For over four years, Ms. Herreid participated in a one hour therapy session with
Katherine Cote, LICSW every two weeks. 1 On September 12, 2011, Ms. Cote recorded
that Ms. Herreid "started therapy following a 9 month break. She was seen from 20092011 in high school for severe depression." (AR 405.) She noted that in addition to
sleep disturbances, Ms. Herreid was experiencing "PTSD flashbacks" related to "past
sexual abuse." (AR 405.) Ms. Cote observed that Ms. Herreid "appear[ed] very
depressed, no eye contact, flat affect, no interests" and that Ms. Herreid was "isolated at
school and [at] home" and needed to "[f]ocus on relationship skills." !d. Ms. Cote saw
Ms. Herreid again on September 29, 2011. During this session, Ms. Herreid "describ[ed]
the relationship in which she is being abused" and advised that she "does not want to end
[the] relationship but would like to have the ability to say no." !d.
In October of 2011, Ms. Cote noted that Ms. Herreid was taking a course with her
sister in childcare skills and felt "bad that [her] sister has to sit through 3 [hour] classes
with her." !d. She further noted that Ms. Herreid "did not pass tests for LPN training for
nursing homes." !d. Ms. Cote opined that Ms. Herreid's "depression exacerbated her
low mental functioning" and referred Ms. Herreid to her primary care physician, Sarah
Berrian, M.D., for the purpose of evaluating whether an antidepressant should be
prescribed. (AR 406.) In doing so, she asked that Dr. Berrian see Ms. Herreid earlier
than the scheduled appointment because Ms. Herreid had been expressing suicidal
thoughts as a result of recent stressors. On November 10, 2011, Ms. Cote observed that
Ms. Herreid "had a little more eye contact, but no change in affect." (AR 406.) She
noted that Ms. Herreid "feels hopeless about jobs." !d.
On November 17, 2011, a nurse working with Dr. Berrian recorded that Ms.
Herreid "presents here with emotional distress. Has an [appointment] to establish care at
1
On February 15, 2013, Ms. Cote stated that she had treated Ms. Herreid for over five years.
Plaintiff submitted treatment records covering only two years.
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a later date, but was put in for emotional distress per [Katherine] Cote. Patient reports
trouble sleeping but would like to talk to Dr. Berrian about emotional distress." (AR
381.) Dr. Berrian then saw Ms. Herreid and screened her for a major depressive disorder
and suicidality. She noted that she was doing so in response to Ms. Cote's report that Ms.
Herreid "had voiced some suicidal thoughts[.]" (AR 383.) She further noted that she had
talked to Ms. Cote prior to the visit and that, at that time, Ms. Cote had been seeing Ms.
Herreid "for about 4 years." !d.
Dr. Berrian observed that Ms. Herreid was fully oriented and presented with a
"normal mood and affect" and was "shy but once she was more comfortable with [Dr.
Berrian] she had reasonable eye contact[.]" (AR 382.) Ms. Herreid reported no
significant weight loss or gain or loss of appetite, no psychomotor agitation or
retardation, and enjoyed "knitting and reading, crafts." (AR 381.) She, however, also
reported that she had a depressed mood "some of the time[;]" "difficulty getting to sleep,
then sleeps okay[;]" "mild fatigue" which "improves if she goes for a walk[;]"
"sometimes" has "impaired concentration or indecisiveness[;]" was hopeless "some of
the time[;]" and had recurrent thoughts of death or suicide "a little bit." (AR 381-82.)
Although Dr. Berrian recorded that Ms. Herreid reported "being sexually
abused[,]" (AR 383), she described Ms. Herreid's "[g]riefreaction[,]" (AR 392), as the
result of losing a relationship with one friend and the fear of losing another relationship
but noted she had some friends to talk to and "is comfortable talking with [Katherine]
Cote, her [counselor], and her grandmother[.]" (AR 382.) Dr. Berrian observed that Ms.
Herreid "also has some intellectual limitations[,]" was currently volunteering twice a
week where her sister works, and that the "difficulty finding work along with the recent
problems with relationships have been causing situational stress[.]" (AR 383.) She noted
that Ms. Herreid had "a few thoughts" about suicide but "nothing she thinks she would
act upon" and that she stated "if she feels she may harm herself she will call [Katherine]
Cote and if unable to reach her will call her grandmother." !d. Dr. Berrian diagnosed
Ms. Herreid with "depression, somewhat situational but also may be early in a major
depressive episode." (AR 382.) She prescribed Prozac as an antidepressant but noted
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that Ms. Herreid said she wanted to think about it and consult with her father and Ms.
Cote. Dr. Berrian printed out information regarding depression and antidepressants for
Ms. Herreid to take with her after the appointment.
On December 5, 2011, Ms. Cote saw Ms. Herreid and noted that her "affect [was]
still flat" and she was "very quiet and [her] body [was] slumped over" but her "eye
contact [was] improved." (AR 407.) She opined that Ms. Herreid's "[d]epression
overshadows [her] mental functioning" and that "[h]er low IQ limits her ability to use
cognitive skills to improve her emotional range." (AR 407.) That same month, Ms. Cote
noted Ms. Herreid reported that she was happy to have finished her childcare class and
was knitting gifts, that the "medication is helping, but [she] still reports some loneliness,"
and that Ms. Herreid had "poor eye contact, flat affect, [however] a few more smiles on
her face." !d. On January 5, 2012, Ms. Cote noted that Ms. Herreid presented with "little
eye contact, flat affect, slumped posture" and had received "no response from child care
center for jobs" and was currently volunteering at a nursing home. !d.
On January 6, 2012, Dr. Berrian saw Ms. Herreid for a physical evaluation. Dr.
Berrian noted that Ms. Herreid reported she had been "rape[d]" and suggested some
testing with regard to that event which was declined by Ms. Herreid who did not want to
discuss the details of the event. (AR 380.) Dr. Berrian's notes indicate: "I think her
understanding is a little limited. Will try and discuss further at the next visit. It may help
for her to have a sister with her at a future visit[.]" !d. She further noted that Ms. Herreid
reported that in the prior two weeks she had experienced several days of depression and
andedonia, but denied anxiety and unusual stress. With regard to Ms. Herreid's
"[s]ituational stress/depression" she noted that Ms. Herreid reported that she "feels she is
doing well with [Katherine] Cote." !d. Dr. Berrian observed that Ms. Herreid's mental
status was "intact recent and remote memory, judgment and insight[.]" Id. Several days
later, Ms. Cote saw Ms. Herreid and recorded that her affect was still flat, her eye contact
was intermittent, she exhibited slumped posture and that she "still feels hopeless about
future relationships and work opportunities." (AR 408.)
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On February 2, 2012, Ms. Cote again observed that Ms. Herreid had a flat affect,
intermittent eye contact, and slumped posture and that she reported an inability to sleep.
She noted that Ms. Herreid was depressed and "hopeless" and reported "suicidal
ideation" including that she "thinks about taking [a] bottle of aspirin." Id. At the time,
Ms. Herreid reported that she felt her online relationship was "hopeless" because her
boyfriend was a paraplegic who lived in Wisconsin. !d. Ms. Cote noted that "[ c]lient has
contracted for safety." Id.
On February 16, 2012, Ms. Herreid's father was present during her treatment
session with Ms. Cote. The appointment focused on Ms. Herreid's lack of job
opportunities and the severity of her depression. Her father agreed to make sure that Ms.
Herreid saw Dr. Berrian. Ms. Cote noted that Ms. Herreid "has even lower self-esteem
around authority figures" and that her "limited mental IQ is impairing her ability to assert
her power." (AR 409.) She observed that she "behaves more like an 8-10 [year] old
child with father" and is "even quieter and loses eye contact" in his presence. Id.
On February 24, 2012, Dr. Berrian completed a one-page Mental Status Report
which consisted of brief one word or partial sentence responses to thirteen criteria. She
described Ms. Herreid as "quiet" and observed that her affect was "somewhat flat" but
that her orientation, attention, and concentration were normal. (AR 377.) She did not
record Ms. Herreid's "reported mood," but noted that her memory was intact and her
energy level was normal. She recorded that although in the past Ms. Herreid had suicidal
ideation, she reported none currently. She further noted that Ms. Herreid had difficulty
falling asleep, but there were no reported changes in her appetite or weight. She
observed that although it "sounds like [Ms. Herreid] does okay with family," her ability
to relate was "difficult with strangers." Id. She indicated that Ms. Herreid would
continue to be followed by her mental health counselor Ms. Cote.
On March 1, 2012, Ms. Cote observed that Ms. Herreid was "having difficulty
with concentration. She has not been reading. Her loss of interest in all activities is a
symptom of the severity of her depression. She would like to have more friends." (AR
409.) At the time, Ms. Herreid exhibited poor eye contact and a slumped posture. She
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reported that she was quite isolated, had not been able to have any job interviews, and
was "volunteering at nursing homes." !d. Later that same month, Ms. Cote noted that
Ms. Herreid had "lost about 11 lbs." (AR 410.) She reported issues with sleep,
depressed mood, and distractibility and "some suicidal ideation." !d. She exhibited "a
little more eye contact, poor slumped posture, and tearfulness." !d. Ms. Cote again
opined that Ms. Herreid's "[d]epression ... increases her inability to use [her] mental
resources." !d. Approximately two weeks later, Ms. Cote reported that Ms. Herreid was
participating in online relationships that "are abusive for her" because she was lonely,
that she presented with a depressed mood and poor eye contact and that her "[ d]epression
is chronic and not likely to change." !d.
Ms. Cote's observations of Ms. Herreid in subsequent sessions remain relatively
unchanged. She noted that Ms. Herreid was quiet and exhibited poor eye contact, a
depressed mood, and poor posture. During three visits in May 2012, she reported that
Ms. Herreid had "some tearfulness" in addition to a flat affect; little eye contact; and
poor, slumped posture. (AR 412.) On May 31, 2012, she noted that Ms. Herreid suffered
from "[ c]hronic depression with limited resources." !d.
On July 20, 2012, Dr. Berrian saw Ms. Herreid again for a follow-up "for mood"
and for "depression." (AR 385.) She noted that Ms. Herreid was "[l]eaming impaired[,]"
was "hoping to maybe eventually get at least some part-time work" and that "[ s]he does
have some mental disability, and so may not be able to hold down a 40-hour a week job."
(AR 386.) She observed that although Ms. Herreid "feels she is doing okay" "[i]t sounds
like she does have some mood fluctuations[.]" (AR 385.) She noted that Ms. Herreid
sees Ms. Cote every two weeks and feels comfortable talking with her about things and
was "[o]pening up with talking with [Dr. Berrian] a little bit more." (AR 386.) She
discussed Ms. Herreid's past history of rape and its impact on her current relationship and
noted that she "seems happy that she does have a relationship" and concluded that Ms.
Herreid was currently "doing well" and would "continue with the counseling with
[Katherine] Cote." !d.
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On July 12 and 26, 2012, Ms. Cote had a treatment session with Ms. Herreid who
reported that she "had [a] difficult time" with a family member and "[had] isolated
herself," and is "still tearful[.]" (AR 414.) Ms. Cote observed that Ms. Herreid exhibited
"stooped posture," and "limited eye contact." !d. She opined that Ms. Herreid was
experiencing "[c]hronic depression exacerbated by low IQ" and was "unable to use
cognitive skills to reduce depressive affect." !d. In August of2012, Ms. Cote again
observed that Ms. Herreid exhibited poor eye contact, flat affect, and poor posture. She
noted that she was "crying in session[.]" (AR 415.) In September and November of
2012, Ms. Cote observed that although Ms. Herreid continued to have a flat affect and
poor eye contact, to have sleep and mood disturbances, and was "[ s]till losing weight[,]"
she was less depressed. (AR 418.) On November 19, 2012, Ms. Cote noted that Ms.
Herreid was tearful with poor eye contact and her assessment was "[d]epression chronic,
anhedonia, suicidal ideation continues." !d.
In December of2012 until February 25, 2013, Ms. Cote recorded Ms. Herreid
continued to lose weight, had a poor appetite, exhibited low self-esteem, poor posture,
poor eye contact, and was tearful. She assessed Ms. Herreid with "[c]hronic depression"
and "limited mental coping" and noted that she was "unable to protect herself from
abusive or dominant people[.]" (AR 421.)
C.
Ms. Herreid's Work History.
For several years, Ms. Herreid received vocational services from the Vermont
Agency of Human Services, including support from Jeff Dudley, a vocational
rehabilitation counselor. On October 28, 2011, Mr. Dudley noted that Ms. Herreid was
"volunteering with her sister at a local Health and Rehabilitation facility roughly 10 hours
a week [and he] believes that she is working at capacity volunteering with support." (AR
· 370.) He opined that Ms. Herreid could not "manage too much stimulation and needs to
be in environments that are concrete and predictable to work independently and if she is
to increase her capacity for independent employment she will need the assistance of
supported employment services to secure and maintain employment." !d. He noted that
she struggled to regulate her emotions and could be easily overwhelmed and that she also
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"struggles with cognitive delays, and significantly delayed processing[] impact[s] her in
such a way that she needs a support structure to facilitate her daily existence." !d.
On February 6, 2012, in a second letter, Mr. Dudley noted that Ms. Herreid was
being "taken care of by her father and older brothers and sisters" and "that it is all she can
do to navigate day to day needs with the support of her family." (AR 375.) He opined
that Ms. Herreid "requires hand over hand, or close one on one support to learn new skills
and requires an extended period of time to master them." !d. He concluded that "if she is
to work she will need the assistance of long term supported employment services to
secure and maintain employment." !d.
In support of his daughter's application for disability benefits, Mr. Herreid stated
that his daughter had "some surprising abilities" and did not require "one on one, 24/7
supervision." (AR 339.) He noted she can "handle being on her own at home" and can
make simple meals for herself, do basic household chores, and "amuse herself reading,
knitting, watching movies, using Facebook and her phone, writing letters." !d. She
makes earrings, hats, and scarfs and "is unrealistic about the worth of these things to
other people." !d. He predicted that "[ m]aybe if she was coached ruthlessly, she could
get more skilled, but [she] is satisfied making the same things over and over that are
obviously not skillfully made." !d.
Mr. Herreid further observed that his daughter "is not very good at reading people.
She takes things at face value. She can be overconfident of her ability to handle new
situations .... She doesn't understand the impression she's making. She won't know that
someone is mocking her unless told or if it's blatant." !d. He noted that she needed help
with transportation and that her "understanding of appropriate ways to dress and
appropriate ways of spending money are very/much dependent on who she's spending
time with[,]" and that she "enjoys the company of people she met at school who have
similar abilities and disabilities" and "tends to go along with their plans, for good or
bad." !d. Although he did not believe his daughter would actively participate in "drugs,
drinking, sex, stealing, vandalism, etc.," he predicted she "would not be skilled at
stopping such things or getting away from them." !d.
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Mr. Herreid opined that his daughter "can't compete in the job market" because
"[s]he would have to be supervised and be given detailed instructions for each small task,
at least until she's very familiar with it." !d. Vocational services was not able to place
her in any employment despite her attendance at training sessions. He described her past
work experiences as "internships at school: helping in the kitchen of the St. Johnsbury
House, stocking shelves at Natural Provisions, helping in a mentoring program for
elementary school children, volunteering at day care centers and nursing homes." !d. He
also noted that during one summer she worked two half days per week for a friend who
owns a day care business, a few half days per week for a neighbor as a companion for an
elderly lady, and several days at a friend's father's butcher's shop packing meat.
D.
Ms. Herreid's Testimony.
On March 13, 2013, at a hearing before ALJ Merrill, Ms. Herreid explained that
she does not drive because her "reaction time is slow[.]" (AR 29.) She has a checking
account, but she does not keep a running balance and "ask[ s] at the bank what, how much
[she has]." (AR 32.) She has "trouble with ... math and stuff." (AR 28.)
Ms. Herreid testified that she spent two hours per week volunteering. She reduced
her hours at the nursing home from ten hours per week to two hours per week because
she "felt like [the] dates were too close together" and she would "get bored or [feel] it
was like too much work for that day[.]" (AR 36.) She previously spent fifteen hours per
week as a companion for an elderly woman, during which she went for walks with the
woman and hung clothes to dry. She worked for eight hours per week at a day care
center, caring for children aged two to three years old, but she was told that she had
trouble observing the children. She sealed and stickered meat at a butcher shop, but
found it "kind of fast paced some of the time[,]" which could cause her to "get stressed
out." (AR 35.) She volunteered at a library, but had to receive assistance in returning
movies to the shelves. She testified that at home, she sweeps, does laundry, washes
dishes, and prepares simple meals. As a source of income, Ms. Herreid's father gives her
an allowance of $160 per month.
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Ms. Herreid expressed that she felt isolated and depressed since graduating from
high school. She has been "trying to apply [to] places or talk to people, think of ideas
that [she] could do for work." (AR 38.) Approximately once per week, she has a bad
day, which she copes with by listening to music or watching comedies. She reported that
changes in plans, such as when a person breaks plans to spend time with her, bother her.
E.
Functional Assessments.
On September 15, 2011, Kathleen Filkins, M.A., a licensed school psychologist,
evaluated Ms. Herreid and prepared a psychological report in anticipation of her
application for disability benefits. Ms. Filkins noted that Ms. Herreid graduated from
high school, "is generally healthy and does not have any medical conditions that are
interfering in her [ability] to work." (AR 359.) Ms. Herreid reported "having some
depression and anxiety and feelings of isolation since she left high school[,]" which Ms.
Filkins attributed "to her adjusting to a new life outside of high school." ld.
Ms. Filkins noted that Ms. Herreid had not worked for one year. She also briefly
described Ms. Herreid's work at the butcher shop, and her ability to care for pets, perform
household chores, and make simple meals. Consistent with other reports, she reported
that Ms. Herreid is unable to manage her finances. She noted that Ms. Herreid "was alert
and responsive and cooperative throughout the evaluation." (AR 361.) She was dressed
appropriately and maintained normal eye contact. She was articulate and was able to
directly respond to questions. Ms. Filkins opined that Ms. Herreid had no problems with
memory and her thought "processes appeared to be intact and goal directed, and she has
plans for her future." !d.
Ms. Filkins conducted several tests to evaluate Ms. Herreid's mental functioning.
Ms. Herreid scored a twenty-one out of thirty on the mini-mental status exam. According
to Ms. Filkins, twenty-three is the cut off for cognitive impairment, and Ms. Herreid's
score falls within the range of mild impairment.
Ms. Filkins further evaluated Ms. Herreid using the Wechsler Adult Intelligence
Scale ("WAIS-IV"). Like the WIAT-11, the WAIS-IV has a mean score of 100 and a
standard deviation of fifteen. Ms. Herreid received the following scores: eighty-three on
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verbal comprehension, which places her in the thirteenth percentile; seventy-three on
perceptual reasoning, which places her in the fourth percentile; seventy-one on working
memory, which places her in the third percentile; and sixty-five on processing speed,
which places her in the first percentile. Ms. Herreid's overall score was seventy, which
places her in the second percentile and in the borderline range for intellectual functioning.
Ms. Filkins also evaluated Ms. Herreid using the Adaptive Behavior Assessment
System ("ABAS-11"), which "measures skills that are important to every day life." (AR
364.) The ABAS-11 has a mean score of 100 with a standard deviation often. Ms.
Herreid's composite score on the test was eighty-four, which places her in the fourteenth
percentile and in the below average range. Ms. Herreid's component scores for
conceptual, social, and practical abilities fell within the average to below-average range.
Ms. Filkins noted that Ms. Herreid may "experience little or no difficulty keeping
up with her peers in situations that require verbal skills." (AR 362.) However, she
observed that Ms. Herried exhibited "general weakness in attention, concentration,
mental control, and short-term auditory memory [that] may impede [her] performance in
a variety of academic areas" and that her "ability in processing simple or routine visual
material without making errors is in the extremely low range when compared to her
peers." (AR 363-64.)
Ms. Filkins described Ms. Herreid as having "significant cognitive delays and
learning problems" that "have been evident since birth" and noted that "she received IEP
services all throughout when she was in school." (AR 366.) She observed that "Ms.
Herreid is reporting some mild sadness and feelings of depression related to not having
any money and not being able to find a job" and she "would like very much to be
independent and to be able to have a job and her own money." !d.
Ms. Filkins noted that Ms. Herreid manifested concurrent deficits in at least 2 of
eleven identified areas of adaptive functioning and that there were four areas of deficits
consisting of"deficits in self-care, use of community [resources], health and safety, and
functional academics." (AR 367.) She opined that Ms. Herreid "may have difficulty
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living independently due to these limitations" but "would most likely be able to perform
some sort of work activities where she might have contact with the public." Jd.
Ms. Filkins's "provisional diagnosis" concluded that Ms. Herreid had an
"[a]djustment disorder with mixed anxiety and depressed mood" and "[m]ild mental
retardation" and "[ s]ignificant occupational difficulties due to inability to find work and
cognitive limitations." Id. She opined that Ms. Herreid was likely to be eligible for
"supported employment through vocational rehabilitation and possibly she will be able to
find work with the help of her case manager at Vocational Rehabilitation Services." (AR
366.)
On October 20, 2011, William Farrell, Ph.D., a non-examining state agency
psychological consultant, completed a "Disability Determination Explanation." (AR 58.)
He noted that Plaintiff filed for disability benefits on behalf of Ms. Herreid for
"[l]eaming disabilities" and "[l]eaming impairments[.]" !d. He determined that Ms.
Herreid has a "[ s]evere" impairment from borderline intellectual functioning and a nonsevere impairment from an affective disorder. (AR 61.) He found Ms. Herreid's
condition would impose mild restrictions on daily living, mild difficulties in maintaining
social functioning, and moderate difficulty in maintaining concentration, persistence, or
pace.
Dr. Farrell further found that Ms. Herreid is not significantly limited in her ability
to remember locations, work procedures, and simple instructions. She is markedly
limited in her ability to remember and understand detailed instructions. She is not
significantly limited in her ability to follow simple instructions, but she is markedly
limited in her ability to follow detailed instructions. She is not significantly limited in her
ability to concentrate for extended periods of time, work with others, and make simple
work-related decisions. She is moderately limited in her ability to sustain a routine
without special supervision and to complete a normal workday and workweek. She
requires extra supervision when starting a novel task. She is also moderately limited in
her ability to respond to changes in the work setting and to set realistic goals.
14
Dr. Farrell observed that although Ms. Herreid has a learning impairment, she can
"think, speak, and care for [her] own needs[,]" and "get along with others, do [her]
everyday activities and follow simple instructions." (AR 66.) He also found that Ms.
Herreid had mixed anxiety and depressed mood that are not severe. He concluded that,
although Ms. Herreid has some limitations on her ability to perform work, her "condition
is not severe enough to keep [her] from working." !d.
On February 22, 2012, Joseph Patalano, Ph.D., another non-examining state
agency psychological consultant, conducted a second evaluation upon Ms. Herreid's
request for reconsideration. Dr. Patalano's evaluation was similar to Dr. Farrell's and he
concluded that Ms. Herreid's condition "results in some limitations in [her] ability to
perform work related activities but does not prevent [her] from working." (AR 85.)
Ms. Cote completed several questionnaires, in which she recorded that Ms.
Herreid suffers from mental retardation, severe depression, bipolar disorder, and posttraumatic stress disorder. Ms. Cote stated that Ms. Herreid manifests symptoms of these
conditions including: loss of interest; weight changes; sleep disturbance; decreased
energy; feelings of guilt or worthlessness; difficulty concentrating; thoughts of suicide;
flight of ideas; inflated self-esteem; easy distractibility; and involvement in risky
activities.
Ms. Cote opined that Ms. Herreid has marked restrictions in activities of daily
living, marked difficulties in social functioning and concentration, and can expect
decompensation episodes four times per year. She anticipated that Ms. Herreid would
miss more than four days of work per month due to fatigue, depression, and frustration.
She rated Ms. Herreid's restrictions on ability to perform daily living activities,
difficulties in maintaining social functioning, and d'eficiencies in concentration,
\
persistence, or pace as extreme. Similarly, she noted extreme impairment in Ms.
Herreid's ability to make occupational adjustments, performance adjustments, and
personal-social adjustments.
15
F.
The ALJ's Application of the Five-Step, Sequential Evaluation Process.
In the April 23, 2013 decision, ALJ Merrill followed the five-step, sequential
process 2 and determined that Ms. Herreid was not entitled to child's insurance benefits or
SSI benefits because she is not disabled. At step one, he noted that Ms. Herreid had not
attained the age of twenty-two years old at the time of the alleged onset of disability and
had not engaged in substantial gainful activity.
At step two, the ALJ determined that Ms. Herreid had a severe impairment of
borderline intellectual functioning. He noted that Ms. Filkins determined that Ms.
Herreid had a full scale IQ of seventy and that she diagnosed Ms. Herreid with mild
mental retardation, which is consistent with Ms. Herreid's academic record. He found
that Ms. Herreid "has had some symptoms and signs of depression. However, ... this
medically determinable impairment does not have more than minimal effect on her ability
to perform basic work function" and therefore is not severe. (AR 15.) He noted that Ms.
Herreid was receiving counseling from Ms. Cote and that from October 2011 until March
2011, Ms. Herreid complained of being "socially isolated in the context ofhaving
completed high school without having a job." Id. He acknowledged that Ms. Herreid
had a history of being molested and, at times, was described as having poor eye contact
and a flat affect, but concluded that Ms. Cote's opinion that Ms. Herreid suffered from
severe depression was contradicted by Dr. Berrian who noted Ms. Herreid was able to
maintain reasonable eye contact, with a normal mood and affect, and reported being
depressed only "some of the time" with mild fatigue that improved if she went for a walk.
2
The Social Security Administration regulations outline the five-step, sequential
evaluation process used to determine whether a claimant is disabled: (1) whether
the claimant is currently engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment or combination of impairments; (3) whether the
impairment meets or equals the severity ofthe specified impairments in the
Listing of Impairments; (4) based on a "residual functional capacity" assessment,
whether the claimant can perform any of his or her past relevant work despite the
impairment; and (5) whether there are significant numbers of jobs in the national
economy that the claimant can perform given the claimant's residual functional
capacity, age, education, and work experience.
Mcintyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
16
!d. The ALJ noted that Dr. Berrian attributed Ms. Herreid's symptoms to issues with
friends, and that although she diagnosed Ms. Herreid with situational depression for
which she recommended medication, Ms. Herreid declined treatment and, approximately
six weeks later, reported only several days of depression over the prior two weeks.
Observing that "[i]t is clear that the descriptions of the claimant's symptoms and
clinical signs regarding a mood disorder contrast quite significantly between Licensed
Counselor Cote and Dr. Berrien[,]" the ALJ rejected Ms. Cote's opinions, noting that she
was not an acceptable medical source within the meaning of the Social Security Act.
3
(AR 16.) He noted that he did not "fully reject her opinion" solely on his basis, but also
because her description of the limitations on Ms. Herreid's activities differed with Ms.
Herreid's self- report and with Dr. Berrian's "clinical observations[.]" He ultimately
accorded Ms. Cote's opinions "little weight" and found Ms. Herreid has only mild
impairments in performing daily living activities. !d.
The ALJ afforded "great weight" to the opinion of Dr. Farrell because it was
"quite consistent" with the observations made by Dr. Berrian regarding Ms. Herreid's
self-reported daily activities. !d. He found that Ms. Herreid has moderate impairments in
her ability to maintain attention, concentration and pace with one episode of
decompensation of extended duration, but only mild impairments with daily living and
social functioning. The ALJ concluded the Ms. Herreid's depression was not a severe
impairment.
At step three, the ALJ determined that Ms. Herreid's borderline intellectual
functioning is not equivalent to a listed impairment. He found that although she has a full
3
Acceptable medical sources include licensed physicians, licensed or certified psychologists,
licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. 20
C.F.R. § 404.1513(a). "In addition to evidence from the acceptable medical sources ... [the
Social Security Administration] may also use evidence from other sources to show the severity
of [a claimant's] impairment(s) and how it affects [the claimant's] ability to work." 20 C.F.R.
§ 404.1513(d). "While an 'other source' opinion is not entitled to any special weight, the
assessment should still be given some weight, especially when there is a treatment relationship
with the claimant." Zenzel v. Astrue, 993 F. Supp. 2d 146, 155 (N.D.N.Y. 2012); see also Talley
v. Astrue, 400 F. App'x 167, 169 (9th Cir. 2010) (reversing where "[t]he ALJ did not provide
sufficient reasons to discredit [a therapist's] testimony").
17
scale IQ of seventy, "she does not have another physical or mental impairment that
imposes additional and significant work-related limitations." (AR 17.) The ALJ did not
specify under what subsections of Listing 12.05 he considered Ms. Herreid's impairment.
At step four, the ALJ found that Ms. Herreid
has the residual functional capacity to perform a full range of work at all
exertionallevels but with the following nonexertionallimitations: she is
limited to 1-3-step low stress tasks. She can persist at such tasks for 2-hour
blocks of time. She requires extra supervisory input with novel tasks. She
can handle changes in routine, be aware of hazards and she can travel, but
she may need help planning and goal setting.
!d. In making this determination, the ALJ considered Ms. Herreid's symptoms as well as
her ability to do volunteer work, chores at home, and occasional work at a butcher's shop.
He found "no medical evidence establishing that the claimant is unable to tolerate work
activity that is full-time." (AR 18.) In making this decision, he accorded "great weight"
to the opinions of Dr. Farrell and Dr. Patalano, !d.
During the March 13, 2013 hearing, the ALJ also heard testimony from a
vocational expert. He asked the vocational expert a series of hypothetical questions that
included limitations consistent with Ms. Herreid's education and borderline intellectual
functioning. The vocational expert testified that a person with those limitations could
perform several jobs, including: a cashier with 400,000 jobs nationally and 3,000 jobs
regionally; a ticketer with 300,000 jobs nationally and 3,000 jobs regionally; a
dishwasher with 190,000 jobs nationally and 1,500 jobs regionally; a bagger with
125,000 jobs nationally and 450 jobs regionally, and a power screwdriver operator with
57,000 jobs nationally and 260 jobs regionally. He defined the region as including
Vermont and New Hampshire.
The ALJ asked the vocational expert a hypothetical question regarding whether
there were significant jobs for a claimant who had extreme limitations in attention,
concentration, pace, responding to work situations, relating to coworkers, responding to
supervisors, responding to changes, and dealing with work stress. The vocational expert
responded that a claimant with those limitations could not be competitively employed. In
18
response to a different hypothetical, the vocational expert stated that a claimant who
needed a job coach might be employable, but he could not offer a reliable estimate of
how many jobs would be available for such a person. The vocational expert testified that
"all jobs in the unskilled job base require working at a steady pace so that alone could
preclude employment in the occupations [he] cited." (AR 45.)
At step five, the ALJ determined that Ms. Herreid could work full-time as a
cashier, ticketer, dishwasher, bagger, and power screwdriver operator. He found that
these jobs existed in significant numbers and therefore concluded Ms. Herreid was not
disabled.
II.
Conclusions of Law and Analysis.
A.
Standard of Review.
The court "conduct[ s] a plenary review of the administrative record to determine if
there is substantial evidence, considering the record as a whole, to support the
Commissioner's decision and if the correct legal standards have been applied." Mcintyre,
758 F.3d at 149 (internal quotation marks omitted). "Substantial evidence is evidence
that amounts to more than a mere scintilla, and has been defined as such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." !d.
(internal quotation marks omitted). The substantial evidence standard is "a very
deferential standard of review-even more so than the 'clearly erroneous' standard."
Brault v. Soc. Sec. Admin., Comm 'r, 683 F.3d 443, 448 (2d Cir. 2012). The court "do[es]
not substitute [its] judgment for the agency's or determine de novo whether [the claimant]
is disabled[.]" Cage v. Comm 'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (citation
and internal quotation marks omitted). The court therefore "set[s] aside" an ALJ's
decision "only where it is based upon legal error or is not supported by substantial
evidence." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (internal quotation marks
omitted).
"The claimant has the general burden of proving that he or she has a disability
within the meaning of the Act, and bears the burden of proving his or her case at steps
one through four of the sequential five-step framework established in the [Social Security
19
Administration] regulations." Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013).
"[W]hile it is true that the Commissioner bears the burden at step five, the ALJ, unlike a
judge in a trial, must ... affirmatively develop the record in light of the essentially nonadversarial nature of a benefits proceeding." Butts v. Barnhart, 3 88 F .3d 3 77, 3 86 (2d
Cir. 2004), as amended on reh'g in part, 416 F.3d 101 (2d Cir. 2005) (internal quotation
marks omitted).
B.
Whether the ALJ Erred in His Analysis of Listing 12.05C.
Plaintiff argues that the ALJ erred in his analysis of Listing 12.05C because he
failed to properly consider Ms. Herreid's depression and adaptive deficits as the
additional severe impairment required for that listing. In its first prong, Listing 12.05C
requires a diagnosis of mild mental retardation before age twenty-two and a valid verbal
full scale of 60-70. In its second prong, it requires a physical or mental impairment that
imposes an additional and significant work-related limitation of function. See Castillo v.
Barnhart, 2002 WL 31255158, at *10 (S.D.N.Y. Oct. 8, 2002) (quoting 20 C.P.R. pt.
404, subpt. P, app. 1, § 12.05C) ("Listing 12.05C requires '[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."').
Although the ALJ acknowledged that Ms. Herreid had been diagnosed with mild
mental retardation before she was twenty-two years old, he proceeded on the basis of her
having borderline intellectual functioning. 4 Generally, individuals with mild mental
retardation have full scale IQ scores between sixty and seventy. See Reed v. Colvin, 779
4
Mild mental retardation describes an IQ of 50-55 to approximately 70. There is a
measurement error of approximately 5 points in assessing IQ, although this may
vary from instrument to instrument. Thus, it is possible to diagnose Mental
Retardation in individuals with IQs between 70 and 75 who exhibit significant
deficits in adaptive behavior. Conversely, Mental Retardation would not be
diagnosed in an individual with an IQ lower than 70 if there are no significant
deficits or impairments in adaptive functioning. Differentiating Mild Mental
Retardation from Borderline Intellectual Functioning requires careful
consideration of all available information.
Bouton v. Astrue, 2008 WL 627469, at *6 (D. Kan. Mar. 4, 2008) (citing Diagnostic and
Statistical Manual of Mental Disorders 41-42, 48-49 (4th ed., text revision 2000)).
20
F .3d 725, 725 (8th Cir. 20 15). In contrast, "[b]orderline intellectual functioning is
diagnosed in individuals who have an IQ score in the range of 71 to 84." Hulsey v.
Astrue, 622 F.3d 917, 920 n.3 (8th Cir. 2010). Using these scales, Ms. Herreid's IQ falls
at the top of the range for mild mental retardation and at the bottom of the range for
borderline intellectual functioning. For purposes of the ALJ's analysis, the court agrees
with the Commissioner that the difference between the two categories is not material
because the ALJ's conclusion turned not on Ms. Herreid's IQ and how it should be
characterized, but on her alleged lack of another severe impairment.
The ALJ found Ms. Herreid's depression was not an impairment that imposes
additional and significant work-related limitations "for the reasons set forth above" which
consisted of his analysis of Ms. Cote's opinions as compared to those of Dr. Berrian
which he deemed to be in "quite significant[]" contrast. (AR 16.) He then determined
that Dr. Berrian's opinions were "quite consistent" with those of non-examining State
Agency psychologist Dr. Farrell and "with the claimant's daily activities." !d.
In evaluating Ms. Cote's opinions as a non-medical treating source, the ALJ was
required to consider how long Ms. Cote knew Ms. Herreid, the frequency of their visits,
the consistency of her opinions with other evidence, the degree to which she offers
evidence to support her opinions, the quality of the "explanation ... [she] provides for
[her] opinion[s]," her expertise, and any other factors that tend to support or refute her
opinions. 20 C.P.R.§ 404.1527(c); SSR 06-03P, 2006 WL 2329939, *4-5 (Aug. 9,
2006); see also Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) ("The ALJ is
required to consider the factors set out in 20 C.P.R. § 404.1527(c)(2)-(6)[,]" "the ALJ
may discount testimony from [non-acceptable medical sources] if the ALJ gives reasons
germane to each witness for doing so.") (internal quotation marks omitted). The ALJ was
required to consider these factors, even if he did not address each of them explicitly. See
LaRue v. Colvin, 2013 WL 5637712, at *5 (D. Colo. Oct. 15, 2013) ("The ALJ explicitly
addressed only one ofthe relevant factors under 20 C.P.R.§ 404.1527(c), namely,
consistency with other substantial evidence in the record. Although the ALJ was not
required to discuss each factor, she was required to consider them.") (citation omitted).
21
The court first addresses the alleged "significant contrast" between the opinions of
Dr. Berrian and those of Ms. Cote. Dr. Berrian saw Ms. Herreid approximately three
times between November 2011 until July 20, 2012 and did so, at least on one occasion,
after Ms. Cote asked her to evaluate Ms. Herreid for suicidality. After speaking with Ms.
Cote before the visit, Dr. Berrian diagnosed Ms. Herreid with depression and noted that it
could be the onset of a major depressive disorder. She identified stressors for Ms.
Herreid which included a past history of rape, an inability to find employment, difficult
relations outside the family, and the loss of relationships. Dr. Berrian observed that Ms.
Herreid exhibited at least some symptoms of depression and had a history of suicidal
ideation. Dr. Berrian concluded Ms. Herreid's condition was sufficiently serious to
warrant a prescription for an antidepressant which Ms. Herreid was reluctant to take
without first discussing it with Ms. Cote and her father. See Parker-Grose v. Astrue, 462
F. App'x 16, 17-18 (2d Cir. 2012) (reversing and holding that "[t]he ALJ's finding that
[claimant's] depression is nonsevere is not supported by substantial evidence" where
reviewing psychologist twice noted claimant was experiencing depression, where
claimant's GAF 5 score reflected "moderate symptoms" including "moderate difficulty in
school, work, [and] social functioning," where claimant was prescribed antidepressants,
and where claimant "met with a therapist for at least some period of time"). Far from
rejecting Ms. Cote's opinions as inconsistent, Dr. Berrian consistently relied on and
deferred to Ms. Cote as Ms. Herreid's primary mental health treatment provider.
5
The GAF measures a person's ability to function.
The GAF is a scale ranging from zero to 100, used to rate social, occupational and
psychological functioning on a hypothetical continuum of mental health. A GAF
score may help an ALJ assess mental residual functional capacity, but it is not raw
medical data. The GAF score is a subjective determination that represents the
clinician's judgment ofthe individual's overall level of functioning .... Under
the GAF scale, people with GAF scores of 41 to 50 have serious symptoms ... or
any serious impairment in social, occupational or school functioning (e.g., .. .
unable to keep a job). . . . By contrast, a GAF score of 51 to 60 indicates only
moderate difficulty in functioning.
Carolyn A. Kubitschek & Jon C. Dubin, Soc. Sec. Disability Law & Procedure in Fed. Ct. § 5:30
(20 15) (internal quotation marks and footnotes omitted).
22
Ms. Cote's treating relationship with Ms. Herreid was extensive and spanned over
four years of twice monthly visits consisting of an hour each. Because of the nature,
duration, and extent of the treatment relationship, Ms. Cote was able to note variations in
Ms. Herreid's mood, affect, and coping skills. Her treatment notes, albeit only covering
two years and occasionally illegible, are relatively detailed and reflect concrete, objective
observations of symptoms of a depressive or mood disorder spanning well over a twelve
month period. Ms. Cote repeatedly opined that Ms. Herreid suffered from "[ c]hronic
depression" (AR 412, 414, 419, 421) that was exacerbated by "[h]er limited IQ [which]
limits her ability to use cognitive skills to improve her emotional range." (AR 407.) This
opinion was not inconsistent with Dr. Berrian's conclusion that Ms. Herreid suffered
from depression that required ongoing treatment. Ms. Cote's observations were also
consistent with testing performed by Ms. Filkins, who is an acceptable medical source,
and who provisionally diagnosed Ms. Herreid with an "[a]djustment disorder with mixed
anxiety and depressed mood." (AR 367.)
The ALJ's rejection of Ms. Cote's opinions because they allegedly significantly
differed from those of Dr. Berrian was thus not supported by substantial evidence in the
record. The ALJ further erred in failing to adequately address the nature of Ms. Cote's
treating relationship with Ms. Herreid, the quality of her explanations, and their
consistency with other evidence in the record before according Ms. Cote's opinions little
weight or rejecting them entirely.
Correspondingly, the ALJ failed to adequately explain why he accorded little
weight to Ms. Cote's responses to questionnaires noting marked restrictions in Ms.
Herreid's daily living activities and social functioning, and extreme impairment in
concentration, persistence, pace and social and extreme impairment in her ability to make
occupational, performance, and personal-social adjustments. Dr. Berrian rendered only
cursory opinions on these topics, noting that Ms. Herreid had difficulty with strangers,
struggled to find employment, had relationship issues, and was unlikely to be able to
work full-time. Dr. Cote's more detailed opinions directed to specific social, daily living,
23
and work related deficits were thus not inconsistent with Dr. Berrian's more limited
observations. Ms. Cote's opinions were also consistent with other evidence in the record.
According to Ms. Filkins, Ms. Herreid had a number of "deficits in self-care, use
of community [resources], health and safety, and functional academics." Jd. Ms. Filkins
described Ms. Herreid as having "significant cognitive delays and learning problems"
that "have been evident since birth" and noted that "she received IEP services all
throughout when she was in school." (AR 366.) Ms. Filkins concluded that Ms.
Herreid's challenges would likely make it difficult for her to live independently and
would require "supported employment through vocational rehabilitation" and predicted
that Ms. Herreid would "possibly" be able to find work with the help of her vocational
case manager. !d.
Mr. Dudley, who had worked as Ms. Herreid's vocational case manager, was less
optimistic. He opined that Ms. Herreid's "struggles with cognitive delays, and
significantly delayed processing, impact her in such a way that she needs a support
structure to facilitate her daily existence." (AR 370.) He noted that she is taken care of
by her father and her older brothers and sisters and "that is all she can do to navigate day
to day needs with the support of her family." (AR 375.) Mr. Dudley opined that Ms.
Herreid's volunteer work at the time, which consisted of working with her sister ten
hours a week at a nursing home, reflected her "working at capacity." (AR 370.) He
observed that Ms. Herreid "requires hand over hand, or close one on one support to learn
new skills and requires an extended period of time to master them." (AR 375.) He
further noted that Ms. Herreid is unable to "manage stimulation and needs to be in
environments that are concrete, consistent, and predictable to function independently"
and that [i]f she is to work she will need the assistance of a long term supported
employment services to secure and maintain employment. !d.
Ms. Herreid's academic records similarly reveal "[a]daptive behavior scores from
2006 testing indicat[ing] that [she] ha[ s] some areas of significant need including
Economic Activity and Socialization" and that her "social behaviors were largely
inappropriate and her emotional/behavioral development was either delayed or impaired
24
[to] some degree." (AR 234.) Mr. Herreid described his daughter's adaptive challenges,
her flawed judgment (which included an overestimation of her abilities), and her inability
to conduct her own affairs, and obtain and maintain employment. 6 Ms. Cote's opinions
were thus consistent with evidence provided by others who had either examined Ms.
Herreid, lived with her, or worked with her closely.
In concluding that Ms. Herreid's depression and adaptive deficits were not a
severe impairment, the ALJ appeared to have discounted their collective impact and
imposed more than a de minimis standard. To qualify as a disability, a claimant must
experience a severe impairment for not less than twelve months. 20 C.P.R.
§ 404.1505(a). In evaluating the severity of a mental impairment, the Commissioner
considers the degree oflimitation in: "[a]ctivities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation." 20 C.P.R.
§ 404.1520a( c )(3 ). "An impairment or combination of impairments is not severe if it
does not significantly limit [a claimant's] physical or mental ability to do basic work
activities." !d. § 404.1521(a). The purpose ofthis requirement is to avoid "de minimis"
impairments, which "is intended only to screen out the very weakest cases." Mcintyre,
758 P.3d at 151. The Second Circuit has cited with approval Justice O'Conner's
description of this standard as eliminating "[ o]nly those claimants with slight
abnormalities that do not significantly limit any 'basic work activity."' Dixon v. Shalala,
54 P.3d 1019, 1030 (2d Cir. 1995) (quoting Bowen v. Yuckert, 482 U.S. 137, 158 (1987)
(O'Connor, J., concurring)). "Basic work activities" is defined to "mean the abilities and
aptitudes necessary to do most jobs[.]" 20 C.P.R. § 404.1521(b).
In evaluating whether Ms. Herreid had another impairment that "significantly
limit[ed]" her ability to "engage in any basic work activity," Dixon, 54 P.3d at 1022, the
ALJ was therefore required to impose a standard "intended to screen out the very weakest
cases." Mcintyre, 758 P.3d at 151; see Dixon, 54 P.3d at 1030 (holding that the "severity
6
The ALJ appeared to have relied heavily on Ms. Herreid's self-reported daily activities
(without determining the reliability of her self-report) and on her father's description ofher
ability to perform household chores, prepare simple meals, and her limited work with family
members or neighbors in supportive settings.
25
regulation" is "valid only if applied to screen out de minimis claims[.]"). His imposition
of a more rigorous standard may have contributed to his conclusion that Listing 12.05C
was not satisfied because Ms. Herreid did not have another severe impairment. The
ALJ's decision must therefore be REVERSED and REMANDED for a redetermination
of steps 2 and 3.
C.
Whether the ALJ Erred in Failing to Consider Listing 12.05D.
Plaintiff contends that the ALJ erred in failing to consider whether Ms. Herreid's
affective disorder met or equaled the criteria for a disability under Listing 12.05D. The
Commissioner argues that "the ALJ did not err in not expressly discussing Listing
12.05(D), as it clearly was not met." (Doc. 5 at 23.)
Pursuant to Listing 12.05D, a person with a full scale IQ between sixty and
seventy is disabled if the person has two of the following conditions: "1. Marked
restriction of activities of daily living; or 2. Marked difficulties in maintaining social
function; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration." "The ALJ must
rate the first three functional areas on a five-point scale-' [n ]one, mild, moderate,
marked, and extreme."' Carpenter v. Astrue, 537 F.3d 1264, 1268-69 (lOth Cir. 2008)
(quoting 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4)). The ALJ "must rate the fourth
functional area on a four-point number scale-' [n ]one, one or two, three, four or more."'
!d. (quoting 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4)).
In this case, the ALJ did not consider Listing 12.05D and thus did not explicitly
address whether Ms. Herreid satisfied two or more of the conditions thereunder. He
nonetheless found Ms. Herreid has "moderately impaired ability to maintain attention,
concentration, and pace with 1 episode of decompensation of extended duration" and
noted that "she has no more than mildly impaired ability to perform activities of daily
living and to maintain social functioning." !d. The ALJ based these conclusions on Ms.
Herreid's self-reported activities, his rejection of Ms. Cote's opinions, and the "great
weight" he accorded Dr. Farrell's opinions. Although he also referred to the "clinical
observations" made by Dr. Berrian, Dr. Berrian evaluated Ms. Herreid's functioning in
26
only two of the four functional areas. The ALJ did not reference evidence from Mr.
Dudley, Ms. Filkins, or Ms. Herreid's academic records which specifically addressed
these functional areas.
Based upon the ALJ's decision, the court cannot determine the conclusions he
would have reached had he considered Listing 12.05D. Evidence in the record reflects
that Ms. Herreid's ability to live independently is in question, her social functioning is
clearly impaired, and her ability to maintain pace, persistence, and concentration are
undisputedly impaired. A remand so that the ALJ may analyze Listing 12.05D and
determine whether it applies is therefore warranted. See Audler v. Astrue, 501 F.3d 446,
448 (5th Cir. 2007) (reversing where "[t]he ALJ did not identify the listed impairment for
which [the claimant's] symptoms fail to qualify, nor did she provide any explanation as
to how she reached the conclusion that [the claimant's] symptoms are insufficiently
severe to meet any listed impairment").
The court therefore REMANDS for a determination of whether Ms. Herreid's
impairments meet or equal the criteria in Listing 12.05D in accordance with 20 C.F.R.
§§ 404.1520a(c)(4); 416.920a(c)(4).
D.
Whether the ALJ Erred in Assessing Ms. Herreid's RFC.
Because the court has determined that a remand is necessary for other reasons, the
court only briefly addresses Plaintiffs challenges to the ALJ's determination of Ms.
Herreid's RFC. When assessing a claimant's mental abilities, the ALJ evaluates:
the nature and extent of [the claimant's] mental limitations and restrictions
and then determine[s] [the claimant's] residual functional capacity for work
activity on a regular and continuing basis. A limited ability to carry out
certain mental activities, such as limitations in understanding,
remembering, and carrying out instructions, and in responding
appropriately to supervision, co-workers, and work pressures in a work
setting, may reduce [the claimant's] ability to do past work and other work.
20 C.F .R. § 404.1545( c). "[M]ental impairments of lesser severity" require "a detailed
assessment of the individual's capacity to perform and sustain mental activities which are
critical to work performance." SSR 85-16, 1985 WL 56855, * 1 (Jan. 1, 1985).
27
The ALJ accorded "great weight" to the opinions of Dr. Farrell and Dr. Patalano,
both non-examining reviewing state agency psychologists in determining Ms. Herreid's
RFC. Generally, these sources do not constitute substantial evidence. See Schisler v.
Sullivan, 3 F.3d 563, 570 (2d Cir. 1993) ("The opinions of non-examining medical
personnel cannot, in themselves and in most situations, constitute substantial evidence to
override the opinion of a treating source."). The ALJ's further conclusion that Dr.
Farrell's and Dr. Patalano's opinions are consistent with Dr. Berrian's opinions does not
acknowledge that Dr. Berrian made only cursory observations regarding Ms. Herreid's
ability to work and noted that Ms. Herreid had "some mental disability, and so may not
be able to hold down a 40-hour a week job." (AR 386.) The ALJ thus erred in finding
that "there is no medical evidence establishing that claimant is unable to tolerate work
activity that is full-time." (AR 18.)
Mr. Dudley also opined that part-time volunteer work in a supportive setting with
a family member reflected Ms. Herreid's maximum work capacity. Ms. Herreid's past
work history, as documented by her father, supported this conclusion. The ALJ did not
address Mr. Dudley's opinions or Ms. Herreid's observations in his RFC analysis. The
court therefore cannot determine whether he rejected this evidence as unreliable or
unpersuasive or both.
Two additional issues warrant further exploration on remand: full-time versus
part-time work and competitive versus supportive work environment. RFC is an
assessment of an individual's ability to do sustained work-related physical and mental
activities in a work setting on a regular and continuing basis. "A 'regular and continuing
basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 968P, 1996 WL 374184, *1 (July 2, 1996). However, the Second Circuit has "decline[ d] to
create a per se rule prohibiting an ALJ from considering part-time positions." Brault,
683 F.3d at 450 n.6. 7 On remand, the ALJ must decide whether Ms. Herreid's RFC
determination can be based solely on the ability to perform part-time work.
7
Other circuits have recognized that the ability to perform part-time work may be relevant in
determining whether a claimant is disabled. See, e.g., Liskowitz v. Astrue, 559 F.3d 736, 745
28
Similarly, whether Ms. Herreid requires a special work environment presents an
additional area for consideration. Dr. Farrell, Ms. Filkins, and Mr. Dudley all opined that
Ms. Herreid may require a supportive work environment or a job coach. The vocational
expert was unable to opine regarding whether there are jobs available that satisfy this
requirement. On remand, the ALJ should consider whether Ms. Herreid will require a job
coach or similar support in order to work in a competitive environment or whether she
will require a special work environment in order to maintain the steady pace required for
unskilled employment.
E.
Whether Plaintiff is Entitled to a Remand only for a Calculation of
Benefits.
Plaintiff seeks a reversal of the Commissioner's decision and a remand only for a
calculation of benefits, arguing that no other outcome is supported by the record. See
Rosa, 168 F .3d at 83 ("[W]here th[ e] Court has had no apparent basis to conclude that a
more complete record might support the Commissioner's decision, [iChas] opted simply
to remand for a calculation of benefits."). Although it is a close question in this case,
were the court to remand solely for a calculation of benefits, it would be improperly
supplanting its judgment for that of the Commissioner because it would need to supply
explanations as well as conclusions. See Cage, 692 F.3d at 122 (noting the court "do[es]
not substitute [its own] judgment for the agency's").
Here, adequate consideration of all of the evidence in the record, consideration of
an additional listing, and the application ofthe proper legal standard to determine
whether Ms. Herreid's additional impairments are severe may produce a different
outcome. It may also impact the ALJ's determination of Ms. Herreid's RFC and a
vocational expert's opinions regarding available jobs. In such circumstances, a remand is
the appropriate response. See Wells v. Colvin, 727 F.3d 1061, 1071 (lOth Cir. 2013)
(7th Cir. 2009) ("[T]o say that the ALJ may deny benefits only if she finds the claimant capable
of some form of full-time work is quite different from saying that only full-time jobs can
constitute significant work in the national economy."); Kelley v. Apfel, 185 F.3d 1211, 1215
(11th Cir. 1999) ("[I]t is not necessary for [the court] to confront the issue of whether part-time
work, as opposed to full-time work, will prevent a claimant from being found disabled at Step
Five ofthe sequential analysis.").
29
(remanding "for further proceedings concerning the effect of [the claimant's] medically
determinable mental impairments on her RFC, and for further analysis at steps four and
five, including any further hearing the ALJ deems necessary, in his discretion").
CONCLUSION
For the reasons stated above, the court GRANTS Plaintiffs motion for an order
reversing the Commissioner's decision (Doc. 4), DENIES Plaintiffs request for a remand
for a calculation of benefits, and DENIES the Commissioner's motion for an order
affirming the Commissioner's decision (Doc. 5). Plaintiffs claim for SSI and disabled
child's benefits is hereby REMANDED for a redetermination (which may include a
rehearing and the development of additional evidence) of steps two through five of the
five-step, sequential process.
SO ORDERED.
.f)-Dated at Burlington, in the District ofVermont, this I day of October, 2015.
Chri ma Reiss, Chief Judge
United States District Court
30
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