Dearry v. Commissioner of Social Security

Filing 17

OPINION. Signed by Judge James P. Jones on 4/9/12. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
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CHRISTINA DEARRY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISONER OF
SOCIAL SECURITY
Defendant.

Case No. 2:11CV00027
OPINION
By: James P. Jones
United States District Judge

Roger W. Rutherford, Wolfe, Williams, Rutherford & Reynolds, Norton,
Virginia, for Plaintiff. Nora Koch, Acting Regional Chief Counsel, Region III,
Roxanne Andrews, Assistant Regional Counsel, Robert W. Kosman, Special
Assistant United States Attorney, Office of the General Counsel, Social Security
Administration, Philadelphia, Pennsylvania, for Defendant.

In this social security case, I affirm the final decision of the Commissioner.

I
Plaintiff Christina Dearry filed this claim challenging the final decision of
the Commissioner of Social Security (the “Commissioner”) denying her claim for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”)
pursuant to Titles II and XVI of the Social Security Act (the “Act”), 42 U.S.C.A.

§§ 401-433 (West 2011) and 1381-1383f (West 2003 and Supp. 2011).
Jurisdiction of this court exists under 42 U.S.C.A. §§ 405(g) and 1383(c)(3).
Dearry filed applications for DIB and SSI on February 13, 2007, alleging
disability beginning on October 1, 2006. The claims were denied initially and on
reconsideration. An administrative hearing was held before an administrative law
judge (“ALJ”) on December 17, 2008, at which Dearry, represented by counsel,
and a vocational expert testified. On March 31, 2009, the ALJ issued a written
decision, finding that Dearry had the residual functional capacity (“RFC”) to
perform light work with various limitations, was able to perform her past relevant
work as a companion, and was not disabled. The Social Security Administration’s
Appeals Council denied Dearry’s request for review on June 2, 2011, and the
ALJ’s decision became the final decision of the Commissioner. Dearry then filed
her Complaint in this court seeking judicial review.
The parties have filed cross motions for summary judgment which have been
briefed. The case is ripe for decision.

II
The only issue before the court on summary judgment is whether the ALJ
correctly assessed the evidence and applied the law in her determination that

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Dearry did not meet the listing requirements for mental retardation. The review of
the facts will be limited to those relevant to this determination.
Dearry attended school through the seventh grade. She was required to
repeat both first and sixth grades. Her grades were generally low and in the last
year of her schooling were Ds and Fs. She left school to get married.
Dearry can read and write and filled out the numerous disability application
forms herself. She initially alleged disability only for back problems, bipolar
disorder and left arm problems.
The issue of Dearry’s mental retardation apparently came to the surface
when a state agency examiner requested medical advice based on intellectual
testing in the record which indicated that Dearry had a verbal IQ score of 65, a
performance IQ score of 75, and a full scale IQ of 66, although the examiner stated
that Dearry had not made a great effort and opined that there was potential for a
higher score. 1 (R. at 251.)
A state agency psychologist, E. Hugh Tenison, Ph.D., reviewed Dearry’s file
and concluded that Dearry had estimated borderline intellectual functioning but
that the impairment was not severe enough to meet the listing requirements. He
did not find the 2003 intellectual testing scores to be valid, noting that effort had

1

This intellectual testing was apparently done in 2003 by Donna Abbot, M.A.
The report of the testing was in the record at least through the administrative hearing but
no longer appears in the record, although it is referenced in detail multiple times.
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been minimal. He opined that Dearry had moderate functional limitations in daily
activities, social functioning and concentration, persistence and pace and she had
suffered no episodes of decompensation. He also opined that she would be able to
perform simple, nonstressful work.
Joseph Leizer, Ph.D., a state agency psychologist, reviewed Dearry’s file.
He found that her mental impairments caused only a mild restriction in her daily
living activities, moderate functional limitations in social functioning and
concentration, persistence and pace, and she suffered from no episodes of
decompensation. Leizer also did not find the 2003 intellectual testing scores to be
valid, noting that the record indicated that her effort appeared to be marginal and
her score potentially could be higher. He stated “there is no substantiation [that]
… her 3/12/03 IQ scores were valid indicators of her intellectual functioning.” (R.
at 349.) He opined that she appeared to retain the mental capacity to perform
simple, unskilled, and nonstressful work.
At the administrative hearing, the ALJ noted that there was a possibility that
Dearry met the listing requirements for mental retardation, based on the 2003
intellectual testing scores. Dearry testified that she lives with her three children at
her former mother-in-law’s house. She stated that all three of her children are

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disabled and receive benefits.2

She testified that she handles her children’s

banking accounts and withdraws money to provide for their living expenses and
care. She testified that she has a valid driver’s license and passed the written test
on her first try. She drives and takes her children to doctors’ appointments. She
testified that she could read some of the words in the newspaper but had some
difficulty with the big words.
Dearry also testified that she had last worked as a companion to her disabled
brother-in-law, providing him meals and accompanying him when he left the
house. She stopped working for him because he became verbally abusive. She
stated that she would like to return to work and would accept a job that was not too
stressful.
The vocational expert testified that her companion job was classified as
unskilled, light work.

The ALJ asked the vocational expert to consider a

hypothetical individual of Dearry’s background and limitations with the RFC
determined by the ALJ. The vocational expert testified that such an individual
could perform Dearry’s past relevant work as a companion. The ALJ ultimately
decided to send Dearry for another round of intellectual testing, given the
questionable nature of the 2003 scores.

2

As the ALJ noted, the evidence indicates that only two of Dearry’s children are
disabled and receiving benefits.
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On January 21, 2009, Wayne B. Lanthorn, Ph.D., conducted a psychological
evaluation of Dearry at the request of the Commissioner. Dr. Lanthorn performed
intellectual testing, which yielded a verbal IQ score of 66, a performance IQ of 81,
and a full scale IQ of 70. These scores placed her in the borderline range of
current intellectual functioning. Dr. Lanthorn noted that statistically, these scores
were “comparatively identical” to those she had obtained in the 2003 testing. (R.
at 700.) He stated that Dearry was well motivated and these scores were valid and
reflected her current degree of functioning. Dr. Lanthorn stated that Dearry was
functioning in the borderline range intellectually, has a relatively good short-term
memory, has a fairly active daily activity schedule and provides care for two minor
children. He further noted she does a wide variety of household tasks, goes to the
grocery store, socializes with family members, and has a valid driver’s license. He
found that her communication skills were good. Ultimately, he concluded that
Dearry is capable of functioning in a 40-hour per week job “within the limitations
of her overall level of intellectual functioning and limited reading skills.” (R. at
702.)
In her decision, the ALJ found that Dearry had the severe impairments of
low back pain, GERD, headaches, depression and borderline intellectual
functioning. She further found that Dearry did not meet the listing requirements
for mental retardation. In so finding, she concluded that Dearry was mildly
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restricted in activities of daily living and social functioning and was moderately
limited in concentration, persistence, and pace. She further found that Dearry had
not had any episodes of decompensation. The ALJ also specifically found that
Dearry did not have a valid verbal, performance or full scale IQ of 60 through 70.
She declined to give significant weight to Dr. Lanthorn’s test results. She stated:
Claimant has only a fourth grade reading ability, and achieved a
performance IQ of 81. She was in special education classes and did
not complete high school and the discrepancy between her
performance IQ and the other scores is more indicative of a learning
disability and/or difficulty reading than it is indicative [of] IQ scores
of 70 or below.
(R. at 21.)

The ALJ thus concluded that Dearry did not meet the listing

requirements for mental retardation.
Dearry argues that this conclusion is not supported by substantial evidence.
For the following reasons, I disagree.

III
The plaintiff bears the burden of proving that she is under a disability.
Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). The standard for
disability is strict.

The plaintiff must show that her “physical or mental

impairment or impairments are of such severity that [she] is not only unable to do
[her] previous work but cannot, considering [her] age, education, and work

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experience, engage in any other kind of substantial gainful work which exists in
the national economy . . . .” 42 U.S.C.A. §§ 423(d)(2)(A); 1382c(a)(3)(B).
In assessing disability claims, the Commissioner applies a five-step
sequential evaluation process. The Commissioner considers whether the claimant:
(1) has worked during the alleged period of disability; (2) has a severe impairment;
(3) has a condition that meets or equals the severity of a listed impairment; (4)
could return to her past relevant work; and (5) if not, whether she could perform
other work present in the national economy. See 20 C.F.R. §§ 404.1520(a)(4);
416.920(a)(4) (2011). If it is determined at any point in the five-step analysis that
the claimant is not disabled, the inquiry immediately ceases. Id. The fourth and
fifth steps of the inquiry require an assessment of the claimant’s RFC, which is
then compared with the physical and mental demands of the claimant’s past
relevant work and of other work present in the national economy. Id.; Johnson v.
Barnhart, 434 F.3d 650, 653-54 (4th Cir. 2005).
In accordance with the Act, I must uphold the Commissioner’s findings if
substantial evidence supports them and the findings were reached through
application of the correct legal standard. Craig v. Chater, 76 F.3d 585, 589 (4th
Cir. 1996). Substantial evidence means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971) (quotation marks and citation omitted). Substantial
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evidence is “more than a mere scintilla of evidence but may be somewhat less than
a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). It is the
role of the ALJ to resolve evidentiary conflicts, including inconsistencies in the
evidence. Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976). It is
not the role of this court to substitute its judgment for that of the Commissioner.
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
Dearry argues that the ALJ’s determination that her intellectual impairment
does not reach the level of a listed impairment under the regulations lacks
substantial evidentiary support. She argues that the ALJ erred in discounting the
results of Dr. Lanthorn’s intellectual testing and that had the ALJ properly
considered the IQ scores, the ALJ would have found that she was disabled.
The mental retardation listing states:
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.
20 C.F.R. Pt. 404. Subpt. P, App’x 1 § 12.05 (2011). Dearry’s challenges the
ALJ’s decision that her impairment does not meet the requirements in Subpart C:
C. A valid verbal, performance, or full scale IQ of 60 through 70 and
a physical or other mental impairment imposing an additional and
significant work-related limitation of function[.]
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Id.
Dearry is correct in arguing that the ALJ’s conclusion that the results of Dr.
Lanthorn’s IQ testing were invalid was not supported by substantial evidence. See
McLain v. Schweiker, 715 F.2d 866, 869 (4th Cir. 1983) (“Objective medical facts
and the opinions and diagnoses of the treating and examining doctors constitute a
major part of the proof to be considered in a disability case and may not be
discounted by the ALJ.”); see also Mitchell v. Schweiker, 699 F.2d 185, 187-88
(4th Cir. 1983) (reversing ALJ’s decision disregarding physician’s opinion because
ALJ did not cite sufficient evidence).
The ALJ discounted Dearry’s IQ scores based only on her own assessment
that Dearry’s impairment was “more indicative of a learning disability and/or
difficulty reading.” (R. at 21.) This assessment has no support in the record. Dr.
Lanthorn’s tests represented the only valid scores of Dearry’s intellectual
functioning in the record.3 Dr. Lanthorn stated that Dearry was well motivated in
taking the tests and opined that the scores were valid. Further, the scores comport

3

As Dr. Lanthorn noted, Dearry’s scores on his tests were statistically
“comparatively identical” to those she scored in 2003. (R. at 700.) Dearry argues that
the disappearance of the 2003 testing from the record should further invalidate the ALJ’s
conclusion. However, the evidence of those tests does appear in the record through
repeated and consistent reference by the various reviewers. Further, the validity of those
tests was always a significant question. Finally, as discussed below, the fact that
Dearry’s IQ scores fell within the range dictated by § 12.05(C) does not ultimately
change the conclusion that her impairment does not meet the listing level.
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with all of the other evidence of Dearry’s intellectual functioning in the record, in
that they indicate she functions in the borderline intellectual range and has so
functioned for all of her life. Both state agency psychologists so opined and there
is no evidence in the record contradicting this conclusion. The ALJ’s analysis was
simply wrong.
The fact that Dearry’s IQ scores fall within the range prescribed by §
12.05(C) does not establish that she meets the listing requirement for mental
retardation. In fact, the overall evidence of the record indicates that Dearry does
not meet the threshold requirement for mental retardation set out in the
introductory paragraph to § 12.05.

The introduction to section 12.00 Mental

Disorders states:
Listing 12.05 contains an introductory paragraph with the diagnostic
description for mental retardation. It also contains four sets of criteria
(paragraphs A through D). If your impairment satisfies the diagnostic
description in the introductory paragraph and any one of the four sets
of criteria, we will find that your impairment meets the listing.
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00 (2011) (emphasis added). The plain
language of the regulation provides that to satisfy the listing requirements, an
impairment must meet both the introductory requirement and the additional
requirements outlined in the particular sections. It is clearly established law in the
Fourth Circuit that the introductory paragraph to § 12.05 states mandatory
requirements. Luckey v. U.S. Dep’t of Health & Human Servs., 890 F.2d 666, 668
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(4th Cir. 1989) (“In dispute are the issues of whether Luckey’s low IQ manifested
itself in deficits in his adaptive behavior before age 22 and whether he has a
physical or mental impairment imposing additional and significant work-related
limitation of function.”); Goelling v. Astrue, No. 7:09cv00225, 2010 WL 3733538,
at *3 (W.D. Va. Aug. 30, 2010) (finding that the court did not need to reach the
question of whether the subsections of § 12.05 were satisfied because the claimant
had not met the requirement of the introductory paragraph); Moon v. Astrue, No.
6:08cv40016, 2009 WL 430434, at *7 (W.D. Va. Feb. 20, 2009) (finding that
claimant must prove deficits in adaptive functioning as well as requirements of
subpart C), accepted by 2009 WL 650390, at *1 (W.D. Va. Mar. 11, 2009);
Thomas v. Astrue, No. 1:07cv00022, 2008 WL 2169015, at *14 (W.D. Va. May
23, 2008) (finding that claimant must prove requirements of the introductory
paragraph as well as requirements of subpart C).
Thus, to meet the listing requirement of § 12.05, Dearry had to prove that
“she has had deficits in adaptive functioning that began during childhood and also
demonstrate that she meets the IQ requirement and has a physical or other mental
impairment imposing an additional and significant work-related limitation of
function.” Thomas, 2008 WL 2169015, at *14. The key question in this case is
whether the evidence shows that Dearry has had deficits in adaptive functioning
manifesting before the age of 22. Adaptive functioning refers to more than simply
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an IQ score or grades in school. “Adaptive functioning refers to how effectively
individuals cope with common life demands and how well they meet the standards
of personal independence expected of someone in their particular age group,
sociocultural background, and community setting.”

Am. Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders 42 (4th Ed. 1994).
It is true that, in the absence of evidence that Dearry’s IQ had changed, it
may be assumed that her scores have remained relatively constant throughout her
life, including before she turned 22. Luckey, 890 F.2d at 668. However, her IQ
score, in the context of all of the evidence, is not enough to prove that she has had
deficits in adaptive functioning indicative of mental retardation. See Moon, 2009
WL 430434, at *7-8. The evidence in this case strongly supports the conclusion
that Dearry copes with common life demands and meets the standards of personal
independence very well. As the ALJ thoroughly discussed, Dearry takes care of
her three children, manages the benefits of her disabled children, works around the
house, shops, and socializes with family members. There is no evidence she is
unable to maintain financial independence as she has done so in the past and at
present. She can read and write relatively well, as evidenced by her completion of
the multiple forms required in the process of applying for DIB and SSI. She
passed the written driver’s test and holds a valid driver’s license. She has held jobs
in the past and indicated that she wished to do so again. Dr. Lanthorn found that
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she had a relatively good short-term memory and communication skills. All of the
psychologists who reviewed Dearry’s case, including Dr. Lanthorn, found that she
was capable of working at unskilled, nonstressful jobs. The substantial evidence
supports the conclusion that Dearry does not suffer from deficits in adaptive
functioning such that she meets the listing requirements of § 12.05 4

IV
For the foregoing reasons, the plaintiff’s Motion for Summary Judgment will
be denied, and the defendant’s Motion for Summary Judgment will be granted. A
final judgment will be entered affirming the Commissioner’s final decision
denying benefits.
DATED: April 9, 2012
/s/ James P. Jones
United States District Judge

4

It is true that the evidence shows that Dearry was not successful in school. But
that lack of academic success does not equate with inability to function in life. Dearry
did not leave school because of her academic failure; she left to get married. She can
read and write, run a household, and maintain financial independence. Her low grades
and problems in school comport with a diagnosis of borderline intellectual functioning
and do not require a finding of mental retardation.
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