Deel v. Commissioner of Social Security

Filing 16

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 5/6/2015. (Bordwine, Robin)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
RICKY LEE DEEL,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant

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Civil Action No. 2:14cv00009
MEMORANDUM OPINION

By: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Ricky Lee Deel, (“Deel”), filed this action challenging the final
decision of the Commissioner of Social Security, (“Commissioner”), denying his
claims for disability insurance benefits, (“DIB”), and supplemental security
income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A.
§§ 423 and 1381 et seq. (West 2011 & West 2012). Jurisdiction of this court is
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This case is before the
undersigned magistrate judge upon transfer by consent of the parties pursuant to 28
U.S.C. § 636(c)(1).

The court’s review in this case is limited to determining if the factual
findings of the Commissioner are supported by substantial evidence and were
reached through application of the correct legal standards. See Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as
“evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642
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(4th Cir. 1966). “‘If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is “substantial evidence.”’” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).

The record shows that Deel protectively filed his applications for SSI and
DIB on December 14, 2010, alleging disability as of September 30, 2010, due to
slow learning, neck, shoulder and liver problems, attention deficit disorder, bipolar
disorder, nerves, depression, suicidal ideations, nausea, vomiting, body aches,
rashes, fatigue, insomnia, inability to focus and withdrawal. (Record, (“R.”), at
217-18, 225-28, 249, 253, 301, 320.) The claims were denied initially and upon
reconsideration. (R. at 68-80, 81-93, 96-109, 110-23, 134-36, 140, 142-44, 14547.) Deel then requested a hearing before an administrative law judge, (“ALJ”).
(R. at 148-49.) A hearing was held on December 10, 2012, at which Deel was
represented by a nonattorney representative. (R. at 31-67.)

By decision dated December 17, 2012, the ALJ denied Deel’s claims. (R. at
14-25.) The ALJ found that Deel met the disability insured status requirements of
the Act for DIB purposes through March 31, 2012. (R. at 16.) The ALJ found that
Deel had not engaged in substantial gainful activity since September 30, 2010, the
alleged onset date. (R. at 16.) The ALJ found that the medical evidence established
that Deel had severe impairments, namely chronic liver disease; bipolar disorder;
anxiety disorder; and learning disorder, but she found that Deel did not have an
impairment or combination of impairments that met or medically equaled one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 16-18.)
The ALJ found that Deel had the residual functional capacity to perform simple,

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routine, repetitive, unskilled medium work 1 and that Deel would do best in a work
environment that did not require a great deal of social interaction. 2 (R. at 18.) The
ALJ found that Deel had no past relevant work. (R. at 24.) Based on Deel’s age,
education, lack of work history and residual functional capacity and the testimony
of a vocational expert, the ALJ found that a significant number of jobs existed in
the national economy that Deel could perform, including jobs as a dishwasher, a
laundry laborer and a dining room attendant. (R. at 24-25.) Thus, the ALJ
concluded that Deel was not under a disability as defined by the Act and was not
eligible for DIB or SSI benefits. (R. at 25.) See 20 C.F.R. §§ 404.1520(g),
416.920(g) (2014).

After the ALJ issued her decision, Deel pursued his administrative appeals,
(R. at 10), but the Appeals Council denied his request for review. (R. at 1-4.) Deel
then filed this action seeking review of the ALJ’s unfavorable decision, which now
stands as the Commissioner’s final decision. See 20 C.F.R. §§ 404.981, 416.1481
(2014). This case is before this court on Deel’s motion for summary judgment filed
September 15, 2014, and the Commissioner’s motion for summary judgment filed
October 20, 2014.

1

Medium work involves lifting items weighing up to 50 pounds at a time with frequent
lifting or carrying of items weighing up to 25 pounds. If someone can perform medium work, he
also can perform light and sedentary work. See 20 C.F.R. §§ 404.1567(c), 416.967(c) (2014).
2

The ALJ placed a number of exertional limitations on Deel’s work-related abilities. (R.
at 18.) However, because Deel does not challenge the ALJ’s findings with regard to his physical
impairments, the undersigned will focus on the facts relevant to Deel’s alleged mental
impairments.
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II. Facts 3

Deel was born in 1985, (R. at 217, 225), which classifies him as a “younger
person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). He has a high school
education and attended special education classes. (R. at 254.) He also has training
in auto mechanics and as a heavy equipment operator. (R. at 254.) Deel has past
work experience as a construction laborer and a telemarketer. (R. at 254.) Deel
testified at his hearing that he previously had been awarded benefits based on
“nerves,” depression and bipolar disorder, but these were terminated in 2003 when
he was incarcerated. (R. at 36.) He stopped working in September 2010 due to
back, shoulder and neck pain, liver problems and fatigue. (R. at 37.) He stated
that he had been diagnosed with Hepatitis C. (R. at 37.) Deel testified that he had
seen a mental health counselor on several occasions, but he no longer was doing so
because his insurance would pay for only so many sessions. (R. at 38.) He stated
that he could not work because he had difficulty being around people, and he had
much difficulty sleeping due to his mind racing, despite taking Trazodone, which
only made him drowsy. (R. at 40, 43.) He stated that he had difficulty staying on
task. (R. at 42.) Deel testified that he did not like to do anything, but preferred to
stay at home. (R. at 43.) He stated that his wife did most of the cooking, cleaning
and grocery shopping. (R. at 44.)

Deel testified that he had suffered with psychological problems for as long
as he could remember, but it had worsened in the previous four to five years. (R.
3

The relevant time period for determining disability in this case is from September 30,
2010, the alleged onset date, through December 17, 2012, the date of the ALJ’s decision, for SSI
purposes, and through March 31, 2012, the date last insured, for DIB purposes. Also, as
previously stated, Deel challenges only the ALJ’s findings with regard to his mental
impairments. Thus, I will focus on the medical records pertinent thereto.
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at 46.) He stated that his father committed suicide when he was 14 years old and
that his older brother was killed only a couple of months later. (R. at 46.) He
testified that he spent time in foster homes and a boys’ home as a child, and he was
hospitalized three times as a child for psychiatric issues. (R. at 46-47.) He stated
that he experienced anxiety or panic and had nightmares about his father’s death at
least twice weekly. (R. at 50-51.) Deel testified that he would have difficulty using
a computer due to trouble spelling and reading, as well as shoulder pain. (R. at 52.)

Deel’s aunt, Sandra Coleman, also was present and testified at Deel’s
hearing. (R. at 53-60.) Coleman testified that she began taking care of Deel when
he was 14 after his father committed suicide. (R. at 53.) She stated that he began
receiving SSI benefits at that time. (R. at 60.) She stated that Deel was like her
own child. (R. at 54.) Coleman stated that she helped him through school, noting
that homework was “a struggle every night.” (R. at 54.) Coleman testified that she
made doctors’ appointments for Deel, she made sure that he kept them, and she got
progress reports from him. (R. at 54-55.) She stated that she attended these
appointments with him until he moved away the previous year. (R. at 54.)
Coleman testified that she did “everything” in relation to filing his disability
claims, noting that Deel never filled out any of his own paperwork. (R. at 57.) She
stated that he could not understand correspondence from the Social Security
Administration. (R. at 57.) Coleman testified that Deel had seen Tina Compton, a
nurse practitioner, off and on for his anxiety and bipolar disorder since 2003,
which was treated with medication. (R. at 59.) According to Coleman, her mother
gained custody of Deel in 2002. (R. at 60.)

Barbara Byers, a vocational expert, also was present and testified at Deel’s
hearing. (R. at 61-64.) She classified his past work as a construction laborer as
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heavy 4 and unskilled and as a telemarketer as sedentary5 and semi-skilled. (R. at
61.) Byers testified that a hypothetical individual of Deel’s age, education and past
work history who suffered from fatigue, limiting him to simple, repetitive, routine
medium work with no more than occasional climbing of ladders, scaffolds or ropes
and occasional balancing, frequent climbing of stairs and ramps, frequent stooping,
kneeling, crouching and crawling and who would do best with work not requiring a
great deal of social interaction, could not perform any of Deel’s past work. (R. at
61-62.) However, Byers testified that such an individual could perform other jobs
existing in significant numbers in the national economy, including jobs as a
dishwasher, a laundry laborer and a dining room attendant. (R. at 62.) Byers next
testified that the same hypothetical individual, but who could only occasionally
interact with co-workers and the public, also could perform the jobs enumerated.
(R. at 62-63.) Byers testified that if an individual were off task 10 to 15 percent of
the day as a result of requiring additional supervision and difficulty interacting
with co-workers and/or the public and also due to dealing with the usual stressors
in competitive work, he could not perform competitive work if such limitations
continued on a regular basis over time. (R. at 64.) Byers also testified that if an
individual were tardy or absent two days monthly, he could not sustain competitive
employment. (R. at 64.)

4

Heavy work involves lifting items weighing up to 100 pounds at a time with frequent
lifting or carrying of items weighing up to 50 pounds. If someone can perform heavy work, he
also can perform medium, light and sedentary work. See 20 C.F.R. §§ 404.1567(d), 416.967(d)
(2014).
5

Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying items like docket files, ledgers and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met. See 20 C.F.R. §§ 404.1567(a), 416.967(a)
(2014).
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In rendering her decision, the ALJ reviewed records from Wellmont Bristol
Regional Medical Center; Cumberland Mountain Community Services; Hurley
Family

Health

Center;

Clinch

Valley

Medical

Center;

Mountaineer

Gastroenterology; Tonya McFadden, Ph.D., a licensed psychologist; Buchanan
General Hospital; The Clinic; Carilion Clinic; New River Valley Community
Services; Academy Primary Care Associates; Stone Mountain Health Services;
The Center for Emotional Care;

and Tina Compton, F.N.P., a family nurse

practitioner. Deel’s attorney submitted additional medical records from B. Wayne
Lanthorn, Ph.D., a licensed clinical psychologist, to the Appeals Council. 6

The record shows that Deel was hospitalized for psychiatric treatment at
Wellmont Bristol Regional Medical Center, (“Wellmont”), as far back as February
2000 for approximately two weeks, and again just a week later for approximately
one week. (R. at 359-70.) On both occasions, Deel was hospitalized for attempted
suicide. (R. at 359-70.) He admitted stress and anxiety related to his father’s
suicide, his brother’s death and his removal from his stepmother’s care and
placement into a group home. (R. at 367.) Upon admission on February 24, 2000,
Deel was diagnosed with major depression, recurrent, severe, without psychotic
features; rule out dysthymia; rule out adjustment disorder with disturbance of
emotions and conduct; and his then-current Global Assessment of Functioning,
(“GAF”), 7 score was assessed at 30.8 (R. at 367-69.) He was prescribed
6

Since the Appeals Council considered and incorporated this additional evidence into the
record in reaching its decision, (R. at 1-4), this court also must take this evidence into account
when determining whether substantial evidence supports the ALJ’s findings. See Wilkins v.
Sec’y of Dep’t of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991).
7

The GAF scale ranges from zero to 100 and “[c]onsider[s] psychological, social, and
occupational functioning on a hypothetical continuum of mental health-illness.” DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS FOURTH EDITION, (“DSM-IV”), 32
(American Psychiatric Association 1994).
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medications, and counseling was initiated. (R. at 369.) Upon discharge on March
8, 2000, Deel was diagnosed with major depression, recurrent, severe without
psychotic features; differential diagnosis dysthymia; and a GAF score of 50. 9 (R.
at 364.) Deel was readmitted to Wellmont approximately one week later after
attempting suicide by overdosing on Risperdal after a difference of opinion
between him and the caseworker at his group home regarding his return home. (R.
at 361.) He was diagnosed with dysthymia; differential diagnosis of major
depression, recurrent, severe, without psychotic features; and a then-current GAF
score of 35.10 (R. at 363.) Deel again was treated with medications and counseling.
(R. at 363.) It was noted that Deel had intense group therapy, in which he
participated much more appropriately than his previous hospitalization. (R. at 360.)
Upon discharge on March 22, 2000, he was scheduled for continued counseling
and advised to continue care with a physician for continued medication
monitoring. (R. at 360.)

The record contains notes from counseling that Deel attended at Cumberland
Mountain Community Services, (“Cumberland Mountain”), from October 2, 2007,
through April 13, 2009. (R. at 372-400.) On October 2, 2007, Deel was referred
to Cumberland Mountain for the Adult Moral Reconation Therapy, (“MRT”),
Program by the Appalachian Detention Center, while incarcerated. (R. at 387-97.)

8

A GAF score of 21 to 30 indicates “[b]ehavior [that] is considerably influenced by
delusions or hallucinations OR serious impairment in communication or judgment … OR
inability to function in almost all areas. …” DSM-IV at 32.
9

A GAF score of 41 to 50 indicates “[s]erious symptoms … OR any serious impairment
in social, occupational, or school functioning. …” DSM-IV at 32.
10

A GAF score of 31 to 40 indicates “[s]ome impairment in reality testing or
communication … OR major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood. …” DSM-IV at 32.
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He admitted to a history of substance abuse, including Oxycontin, Lorcet and
Methadone. (R. at 389.) Deel was cooperative, but with a depressed mood,
appropriate affect, restless motor activity, goal-oriented thought form, moderate
insomnia, increased appetite, decreased energy level, mild irritability/anger;
moderate crying spells, no hallucinations or delusions, no then-current suicidal or
homicidal ideations, intact orientation, memory and concentration and good insight
and judgment. (R. at 395.) Deel was diagnosed with opioid abuse; sedative,
hypnotic or anxiolytic abuse; and alcohol abuse; and his then-current GAF score
was placed at 62. (R. at 372.) From October 15, 2007, through February 20, 2008,
treatment notes reflect that Deel’s orientation and thought processes were intact, he
had no paranoia/delusions, and his judgment and insight were fair. (R. at 373-75,
380-86.) Upon completion of the MRT program on February 20, 2008, his GAF
score was assessed at 70.11 (R. at 400.)

Deel was seen at Hurley Family Health Center from September 29, 2010,
through October 18, 2010, for various complaints. (R. at 405-13, 565-73.) On
October 18, 2010, Deel was oriented with a normal mood and affect. (R. at 406,
572.) He endorsed no depression or anxiety over this treatment period. (R. at 405,
408, 570, 573.) When Deel presented to the emergency department at Clinch
Valley Medical Center on October 19, 2010, due to elevated liver enzymes, he
endorsed no psychiatric symptoms, and on physical examination, Deel’s
psychiatric status was deemed normal. (R. at 419-20.)

11

A GAF score of 61 to 70 indicates “[s]ome mild symptoms … OR some difficulty in
social, occupational, or school functioning … but generally functioning pretty well, has some
meaningful interpersonal relationships.” DSM-IV at 32.
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Deel saw Tonya McFadden, Ph.D., a licensed psychologist, for a
consultative psychological evaluation at the request of the State Agency, on March
21, 2011. (R. at 439-45.) Deel reported previously receiving disability benefits,
which were discontinued due to incarceration for a probation violation. (R. at 439,
442.) He reported feeling depressed at least a few hours daily. (R. at 440.) He
reported sleeping only about three hours nightly, feeling “drained,” experiencing
mood changes, low self-esteem, feelings of inadequacy and periods of being
talkative, having racing thoughts and being more goal-directed. (R. at 440.) Deel
further reported feeling nervous and not liking to be around a lot of people. (R. at
440.) He reported a previous attention deficit disorder, (“ADD”), diagnosis and
continued difficulty sustaining attention and being easily distracted. (R. at 440.)
He also admitted to ongoing difficulties completing tasks, an inability to sit still,
losing things often and forgetfulness. (R. at 440.) Deel stated that he then-currently
lived with his grandmother and that his girlfriend stayed with him. (R. at 441.) He
stated that he watched television, worked on his vehicle and picked up around the
house. (R. at 441.) He further stated that he had regular contact with his aunt, who
lived across the street. (R. at 441.) Deel reported going to the store and eating out
at least once weekly. (R. at 441.)

Deel admitted to prior Oxycontin abuse and substance abuse treatment. (R.
at 441.) He stated that he was retained in the seventh grade, and he often was
disciplined due to misbehavior. (R. at 441.) Deel reported that he began psychiatric
treatment at the age of 14, when he was hospitalized and started on medications.
(R. at 442.) He further reported that he had been treated at Cumberland Mountain
and had been prescribed medications by his regular physician. (R. at 442.) Deel
stated that he was again hospitalized at Marion State Hospital at the age of 15 for

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five days. 12 (R. at 442.) He reported that he was not then-currently taking any
medications. (R. at 442.)

According to McFadden, Deel was pleasant and cooperative during the
evaluation, and his speech was relevant and coherent and delivered with normal
tone and rhythm. (R. at 443.) There was no evidence of distorted thought
processes, delusions or hallucinations, and no marked mood disturbance was
present. (R. at 443.) Deel’s affect was appropriate, and he denied suicidal or
homicidal ideation. (R. at 443.) He was alert and oriented, judgment was fair,
immediate memory was normative, recent and remote memory was intact, and
concentration was mildly impaired. (R. at 443.) McFadden administered the
Wechsler Adult Intelligence Scale – Fourth Edition, (“WAIS-IV”), on which Deel
obtained a verbal comprehension index score of 86, a perceptual reasoning index
score of 102, a working memory index score of 86, a processing speed index score
of 92 and a full-scale IQ score of 86. (R. at 443.) McFadden deemed these scores
valid because Deel appeared to put forth his best effort, he followed directions
without apparent difficulties, and there was no need to repeat directions. (R. at
444.) McFadden noted that these scores also were consistent with Deel’s reported
educational and vocational background. (R. at 444.) She diagnosed Deel with
bipolar disorder, not otherwise specified; anxiety disorder, not otherwise specified;
attention deficit/hyperactivity disorder, (“ADHD”), not otherwise specified; and
learning disability (provisional pending review of achievement testing); and she
placed his then-current GAF score at 55.13 (R. at 444-45.)She deemed his
prognosis as fair with sustained treatment. (R. at 445.) McFadden concluded that
12

There are no treatment records from Marion State Hospital contained in the record.

13

A GAF score of 51 to 60 indicates “[m]oderate symptoms … OR moderate difficulty in
social, occupational, or school functioning. …” DSM-IV at 32.
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Deel would have some difficulties with repetitive and simple tasks that may
require additional supervision and that it was likely he would have difficulties
attempting detailed and complex tasks. (R. at 445.) She further concluded that Deel
may have difficulties interacting with co-workers and with the public and that he
was likely to have difficulties dealing with the usual stressors encountered in
competitive work. (R. at 445.)

Patricia Bruner, Ph.D., a state agency psychologist, completed a Psychiatric
Review Technique form, (“PRTF”), on April 12, 2011, in connection with Deel’s
initial claim denial. (R. at 73-74.) Bruner found that Deel was moderately restricted
in his activities of daily living, experienced moderate difficulties in maintaining
social functioning and in maintaining concentration, persistence or pace and had
experienced no repeated episodes of decompensation of extended duration. (R. at
74.) Bruner also completed a Mental Residual Functional Capacity Assessment,
finding that Deel was moderately limited in his ability to carry out detailed
instructions, to maintain attention and concentration for extended periods, to
perform activities within a schedule, maintain regular attendance and be punctual
within customary tolerances, to sustain an ordinary routine without special
supervision, to work in coordination with or in proximity to others without being
distracted by them, to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods,

to interact

appropriately with the general public, to accept instructions and respond
appropriately to criticism from supervisors, to get along with co-workers or peers
without distracting them or exhibiting behavioral extremes, to respond
appropriately to changes in the work setting and to set realistic goals or make plans
independently of others. (R. at 76-78.) She found that Deel was markedly limited
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in his ability to understand and remember detailed instructions. (R. at 77.) It was
concluded that, despite a diagnosed mental disorder, Deel retained the ability to
remember, understand and communicate with others, and while his condition
prevented him from performing some types of work activity, the evidence showed
that he had the ability to perform a wide range of routine work. (R. at 80.) Another
PRTF was completed by Jo McClain, PC, another state agency source, on August
22, 2011, in connection with the reconsideration of Deel’s claims. (R. at 101-02.)
McClain’s findings echoed those of Bruner. (R. at 102.) McClain also completed a
Mental Residual Functional Capacity Assessment, again making the same findings
as Bruner. (R. at 105-06.) It was concluded that, despite some difficulty learning
detailed and complex information, Deel retained the ability to learn many new
things and perform a wide variety of tasks, and, while he was upset about his
conditions, they had not affected his ability to understand, remember and cooperate
with others or perform normal daily activities. (R. at 108.)

On August 13, 2011, Deel saw Dr. David Boone, D.O., for a consultative
physical examination, at the request of the State Agency. (R. at 458-63.) Dr. Boone
noted Deel’s past diagnosis of bipolar disorder and further stated that he had been
off of all medications for the previous two years. (R. at 459.) Deel denied suicidal
or homidical ideation, and he stated he mostly kept to himself. (R. at 459.) He
stated that he had a temper and quickly became annoyed with people. (R. at 459.)
However, he stated that he was not a violent person, so he simply withdrew instead
of acting on his emotions. (R. at 459.) Deel reported that he was able to drive,
could shower and bathe and helped out with household chores. (R. at 459.) Deel
endorsed nervousness, anhedonia and depression. (R. at 460.) His mood and affect
were appropriate, he had a linear thought process, was able to maintain eye contact
throughout the exam and was able to follow complex directions appropriately
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without the need for multiple cues. (R. at 460.) Among other things, Dr. Boone
diagnosed a subjective history of psychiatric disorders; and a subjective history of
ADD, suboptimally controlled off medication; as well as his other psychiatric
illnesses, but he subjectively appeared improved due to being in a better marriage.
(R. at 462.)

Deel saw Tina Compton, FNP, on September 16, 2011, at which time she
noted that he had not been seen since 2007. (R. at 581.) In a review of systems,
Deel endorsed anxiety, bipolar disorder and irritability. (R. at 581.) He was
diagnosed with anxiety and depression, among other things, and Compton
prescribed Zoloft and fluoxetine. (R. at 581.) Deel saw Compton on October 13
and December 3, 2011, with complaints of anxiety and depression. (R. at 579-80.)
Deel reported that Zoloft made him more depressed, and Compton prescribed
Cymbalta on December 3, 2011. (R. at 579-80.) She noted that Deel needed a
referral to mental health services. (R. at 579.)

Deel began seeing Dr. Raymond Pate, D.O., at Academy Primary Care
Associates, (“Academy”), on December 20, 2011. (R. at 559-61.) At that time,
Deel’s main complaint was depression, which had been associated with suicidal
thoughts. (R. at 560.) He denied making a plan, and he denied having weapons at
home. (R. at 560.) Deel endorsed depression, anxiety and suicidal ideation for the
previous six months. (R. at 560.) He was able to articulate well with normal
speech/language, rate, volume and coherence, he displayed good eye contact, and
his mood was euthymic with a full affect. (R. at 561.) Dr. Pate diagnosed
depressive disorder, recurrent, in partial remission, and he prescribed Cymbalta.
(R. at 561.)

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Deel saw Molly Sharp, PA-C, at The Center for Emotional Care, for initial
intake on October 18, 2012. (R. at 574-78.) Deel reported that he felt down and
tired all the time and that Wellbutrin made him feel like a “zombie.” (R. at 574.)
He stated that Adderal had kept him more alert and focused in the past. (R. at
574.) He reported increased energy and difficulty with racing thoughts a couple of
nights weekly, as well as constant worry. (R. at 574.) His mood was depressed
and overwhelmed. (R. at 574.) Deel reported a poor appetite and anxiety. (R. at
574.) Deel’s eye contact was fair, he was fidgety with his hands, impulse control
appeared fair, speech was coherent and fluent, his mood was dysthymic with
congruent affect, thought process was linear, and insight, judgment and reliability
were fair. (R. at 576-77.) Deel denied suicidal or homicidal intent, plan or gestures,
as well as depersonalization/derealization. (R. at 577.) He was alert and fully
oriented, and his fund of knowledge was deemed average based on his vocabulary.
(R. at 577.) Test scores were as follows: Beck Depression Inventory: 23; Mood
Disorder Questionnaire: 5; #2 no; #3 moderate problem; Beck Anxiety Inventory:
mild; and Michigan Alcohol Screening Test: no. (R. at 577.) Sharp diagnosed
depressive disorder, not elsewhere classified; anxiety state, unspecified; persistent
disorder of initiating or maintaining sleep; rule out bipolar I disorder, most recent
episode (or current) depressed, unspecified; history of opiate dependence in
remission; and ADD and bipolar disorder, by report. (R. at 578.) His then-current
GAF score was assessed at 45 to 50. (R. at 578.) Deel was continued on
Wellbutrin, he was prescribed Trazodone, and he was encouraged to see an
outpatient counselor. (R. at 577.)

Deel returned to Academy on December 27, 2011, and January 10, 2012.
(R. at 553-54, 557-58.) He continued to complain of depression and anxiety. (R. at
553, 557.) On December 27, 2011, his Cymbalta dosage was reduced due to
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nausea and vomiting, and he was prescribed Wellbutrin. (R. at 557-58.) Deel
denied suicidal ideation over this period. (R. at 553, 557.) On January 10, 2012,
Deel’s thought content was normal, and he could perform basic computations and
apply abstract reasoning. (R. at 554.) He was fully oriented. (R. at 554.) Dr. Pate
diagnosed depressive disorder, recurrent, in partial remission, and he continued
Deel on Cymbalta and Wellbutrin. (R. at 554.)

Deel received mental health treatment at New River Valley Community
Services, (“New River Valley”), from February 7, 2012, through May 1, 2012. (R.
at 505-25.) At the initial assessment on February 7, 2012, Deel rated his anxiety as
a 6/10 and his depression as a 5-7/10. (R. at 517.) He denied then-current suicidal
ideations, but noted that this was easily triggered by relational conflict with his
wife. (R. at 517.) Deel reported thinking of plans usually involving a gun, to which
he had no access. (R. at 517.) He denied homicidal ideations and hallucinations.
(R. at 517.) Deel reported feeling alone and “left out,” irritable, withdrawing,
anhedonia, lack of motivation, suicidal ideation, unstable mood and losing control
when angered or hurt. (R. at 517.) He noted depressive symptoms that lasted for
numerous weeks at a time, and he reported compulsions, such as needing things to
be in their proper places and doing things in a specific pattern, behaviors over
which he had no control and was unable to ignore. (R. at 517.) Lisa Buonomano,
MS, MSW, noted that Deel was able to maintain eye contact, he had a blunted
affect and appeared slightly nervous. (R. at 517.) He was alert and oriented with no
delusions or paranoia. (R. at 517.) Deel reported several past suicide attempts, two
psychiatric hospitalizations and a history of substance abuse. (R. at 517.) After this
initial assessment, Buonomano diagnosed Deel with major depressive disorder,
recurrent; generalized anxiety disorder; and obsessive compulsive disorder; and
she placed his then-current GAF score at 50. (R. at 518-19.) Deel continued to see
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Buonomano through March 1, 2012. (R. at 514-16.) Over this time, he denied
suicidal ideation. (R. at 514, 516.) He did report paranoid symptoms, including
needing to lock the doors because he was afraid people would “get [him]” or kill
him. (R. at 516.) On March 1, 2012, Deel reported manic symptoms, including
restlessness, decreased sleep, increased energy, increased anxiety and pressured
speech. (R. at 514.) Buonomano found that Deel met the criteria for bipolar II
disorder. (R. at 514.) She encouraged him to continue with additional services. (R.
at 514.)

On March 8, 2012, Deel returned to Academy, reporting that he had
completed counseling with New River Valley and was waiting for psychiatry for
an assessment for possible bipolar disorder. (R. at 551.) He reported that
Wellbutrin no longer helped, but denied suicidal ideation and planning. (R. at 551.)
Mental status examination revealed that Deel was able to articulate well with
normal speech/language, rate, volume and coherence, he was fully oriented, his
mood was euthymic, and his affect was full. (R. at 552.) He was diagnosed with
depressive disorder, not elsewhere classified, and Dr. Peter L. Reynolds, M.D.,
noted that Deel needed to see a psychiatrist as planned for possible bipolar
disorder. (R. at 552.) Deel was instructed to continue Cymbalta, and his dosage of
Wellbutrin was increased. (R. at 552.)

On March 7, 2012, Buonomano diagnosed Deel with bipolar II disorder;
generalized anxiety disorder; and obsessive compulsive disorder; and she placed
his then-current GAF score at 50. (R. at 519.) Deel returned to New River Valley
on April 11, 2012, inquiring about the requested referral to a psychiatrist, noting
that he was unable to receive the necessary Hepatitis treatment without approval
from a psychiatrist. (R. at 512.) Buonomano assured Deel that she would check
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into the referral, but advised that the waiting list appeared to be longer than usual.
(R. at 512.) She also reminded Deel that he must follow up with additional
services, and requested that an intake appointment be scheduled. (R. at 512.)

When Deel saw Dr. Marrieth Rubio, M.D., with Carilion Clinic –
Gastroenterology, on March 28, 2012, he noted that he was taking Cymbalta and
Wellbutrin. (R. at 494-99.) However, a review of symptoms was negative for
depression, suicidal ideas, hallucinations, memory loss and substance abuse. (R. at
495-96.) Deel did endorse insomnia, but it was noted that he was not anxious or
nervous. (R. at 496.) Upon physical examination, he was fully oriented and in no
acute distress, and his mood, memory, affect and judgment were deemed normal.
(R. at 496.) Deel was diagnosed with Hepatitis C, chronic; elevated LFTs; and
depression. (R. at 496, 499.) Dr. Rubio noted that Deel had an appointment for a
counselor, and he had been asked to request clearance for treatment for the
Hepatitis C. (R. at 497.)

Deel saw Dr. Holli Waller, D.O., at Academy, on April 17 and April 25,
2012, for follow-up and medication adjustments. (R. at 545-50.) Deel complained
of continued depression, anxiety, inability to concentrate, mood changes and
insomnia. (R. at 546, 548.) He denied suicidal ideation or planning. (R. at 546,
549.) On April 17, 2012, Dr. Waller restarted Deel on Wellbutrin. (R. at 549.) On
April 25, 2012, Deel’s mood and affect were anxious, and Dr. Waller diagnosed
bipolar I disorder, most recent episode manic, severe. (R. at 546.) Dr. Waller
doubled Deel’s Wellbutrin dosage and prescribed Vistaril for insomnia. (R. at
546.) He still was awaiting a psychiatry appointment. (R. at 546.)

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Deel attended an orientation appointment with Karen Kreutzberg, MS, MTBC, at New River Valley, on April 23, 2012. (R. at 509.) He denied suicidal or
homicidal ideation, plan or intent, and he was scheduled for intake with Vicki
Wells, LPC, a licensed professional counselor, on May 1, 2012. (R. at 509.) When
Deel saw Wells on May 1, 2012, he reported anxiety over an upcoming legal
hearing. (R. at 506-07.) Deel reported mood swings, irritability, self-isolation,
sadness and tearfulness, anxiety, racing thoughts, insomnia, surging energy
preventing rest, varying appetite resulting in frequent weight changes and feeling
overwhelmed. (R. at 506.) He denied suicidal or homicidal ideations. (R. at 506.)
Deel’s affect was highly anxious throughout the intake, but thought content was
devoid of any suicidal or homicidal ideation. (R. at 507.) No hallucinations or
delusional constructs were noted, and his thought process overall was clear and
linear without any evidence of a formal thought disorder. (R. at 507.) Deel’s
speech overall was normal in rate, tone and volume, and he was oriented to person,
place, time and situation. (R. at 507.) A needs assessment revealed Deel’s desire
to remain on the agency psych list. (R. at 507.) Wells diagnosed Deel with bipolar
II disorder; generalized anxiety disorder; and obsessive compulsive disorder; and
she placed his then-current GAF score at 56. (R. at 505.)

Deel returned to Dr. Waller from May 10 through August 24, 2012. (R. at
527-44.) Over this time, Deel complained of insomnia, depression and anxiety,
among other things. (R. at 540-41, 543-44.) He denied suicidal ideation. (R. at 541,
543.) Deel reported that no medications had helped his insomnia. (R. at 543.) On
May 10, 2012, Deel was fully oriented with an appropriate mood and affect, and he
demonstrated appropriate insight and judgment. (R. at 544.) On June 6, 2012, Deel
reported that Vistaril did not help him sleep, but that he was doing “ok” on
Wellbutrin. (R. at 540.) He was again fully oriented with an appropriate mood and
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affect. (R. at 541.) Dr. Waller diagnosed bipolar I disorder, most recent episode
manic, severe, and she continued Deel on Wellbutrin. (R. at 541.)

She also

prescribed Flexeril. (R. at 541.) On August 3, 2012, Deel’s mood and affect were
full range. (R. at 531.) On August 24, 2012, Deel reported that he remained on a
waiting list to see a psychiatrist. (R. at 527.) Dr. Waller diagnosed bipolar disorder,
unspecified, and referred Deel to the Center for Emotional Care. (R. at 528.)

Deel saw B. Wayne Lanthorn, Ph.D., a licensed clinical psychologist, for a
consultative psychological evaluation, at the request of counsel, on March 1, 2013.
(R. at 597-607.) Academic records indicated that he used special education
services throughout his schooling and was retained in the eighth grade. (R. at 599.)
Lanthorn noted the testing scores obtained by McFadden in March 2011, as well as
her diagnoses of Deel. (R. at 601.) Deel reported that he did not feel like doing
anything and mostly “[sat] around the house.” (R. at 601.) He indicated that his
wife performed most of the laundry, cooking, cleaning and shopping. (R. at 601.)
Deel stated that he no longer attended church, he socialized with his wife and
children, and he watched television, but rarely read. (R. at 601.)

On mental status evaluation, Deel’s speech was clear and intelligible, he
made adequate eye contact, and rapport was readily established and maintained.
(R. at 602.) He appeared highly anxious and tense throughout the examination, and
he was “very fidgety.” (R. at 602.) Nonetheless, Deel was able to persist at testing
tasks and concentrate, at least, adequately. (R. at 602.) Deel exhibited no signs of
ongoing psychotic processes or any evidence of delusional thinking, and he denied
hallucinations. (R. at 602.) He stated that being around crowds caused him anxiety.
(R. at 602.) Deel reported that he first became depressed when his father died. (R.
at 602.) He stated that he was psychiatrically hospitalized at the age of 14, and that
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he had attempted suicide five times, the last of which was in 2009. (R. at 602.)
Deel reported that he had attempted to shoot himself, but was stopped from doing
so. (R. at 602.) He stated that his anti-depressant medication “kind of help[ed],”
but he rated his then-current depression at 7/10. (R. at 602.) He reported preferring
to be alone most of the time, even withdrawing from his wife. (R. at 602.) Deel
admitted often being irritable and grouchy, being difficult to be around and having
rapid mood swings. (R. at 602.) He acknowledged some suicidal ideation, without
plan or intent. (R. at 602.) With regard to symptoms of possible mania, Deel
reported that he had periods of time where he could not sit still and was restless,
becoming agitated and hyperactive. (R. at 603.) He denied episodes of an elevated
or inflated degree of self-esteem or grandiose thinking or of becoming overtalkative. (R. at 603.) He acknowledged racing thoughts at times, in which he went
over and over things. (R. at 603.) Deel further reported often feeling anxious, on
edge and jittery at times. (R. at 603.) He admitted having panic attacks, in which he
had difficulty breathing. (R. at 603.) Deel stated that his ability to focus his
attention was not particularly good, but stated that he got “bored real easily.” (R.
at 603.) He reported that he was forgetful sometimes and that he was quite
organized, and everything needed to be “just a certain way.” (R. at 603.) Lanthorn
noted that Deel was anxious, but did not appear to be overactive in his chair or
fidgety in any major way. (R. at 603.)

Lanthorn administered the Wechsler Adult Intelligence Scale – Fourth
Edition, (“WAIS-IV”), on which Deel obtained a full-scale IQ score of 61, placing
him in the extremely low range of intellectual functioning. (R. at 603.) Lanthorn
contrasted this score with the one obtained in 2011, which was 25 points higher
overall. (R. at 604.) Deel earned a verbal comprehension scale index of 70, placing
him in the borderline range, a perceptual reasoning index score of 71, placing him
-21-

in the borderline range, a working memory index score of 71, placing him in the
borderline range, and a processing speed index score of 61, placing him in the
extremely low range. (R. at 604.) However, Lanthorn opined that Deel gave a less
than full effort on the test, which was dramatically illustrated on the processing
speed index score,14 and he further opined that Deel quite probably was
functioning in the borderline to low average range intellectually. (R. at 604.)
Lanthorn also administered the Minnesota Multiphasic Personality Inventory – 2,
(“MMPI-2”). (R. at 605.) He stated that Deel appeared to have responded in a
random or unselected manner to items toward the end of the test, and other validity
scales indicated that his profile must be interpreted with caution because it may
well be invalid for a variety of reasons, including an inability to understand the test
or testing items, which seemed unlikely, or a distortion due to exaggeration of the
severity of psychopathology. (R. at 605.) Testing indicated that Deel may be
experiencing moderate levels of emotional distress characterized by dysphoria and
anehdonia, and he also may have anxiety, depression and become easily agitated.
(R. at 606.)

Lanthorn diagnosed Deel with major depressive disorder, recurrent,
moderate; generalized anxiety disorder; opioid dependence in sustained full
remission; rule out somatization disorder, not otherwise specified; rule out bipolar
disorder, not otherwise specified (by history); personality disorder, not otherwise
specified; and borderline intellectual functioning; and he placed his then-current
GAF score at 61. (R. at 606-07.) He deemed Deel’s allegations of psychologically
disabling conditions to be partially credible. (R. at 607.) He recommended that
Deel strongly consider seeking outpatient psychotherapeutic and psychiatric
14

Lanthorn stated that on this test, Deel scored almost as low as could possibly be scored
on two pencil and paper tasks, on which he appeared to work very slowly. (R. at 603.)
-22-

intervention. (R. at 607.) Lanthorn concluded that Deel was capable of
understanding simple tasks in the workplace, but routine, complicated tasks would
present mild to great limitations. (R. at 607.) He found that Deel would be mildly
to moderately limited in his ability to interact with the general public, with
supervisors and with co-workers and that he would be mildly limited in his ability
to deal with change and the requirements of the workplace. (R. at 607.) Lanthorn
found that Deel would be mildly limited in his ability to sustain concentration and
persist at tasks. (R. at 607.)

Lanthorn also completed a Work Capacity Evaluation (Mental), finding that
Deel was slightly 15 limited in his abilities to make simple work-related decisions,
to be aware of normal hazards and take appropriate precautions and to travel in
unfamiliar places or use public transportation. (R. at 608-10.) He found that Deel
was moderately 16 limited in his abilities to remember locations and work-like
procedures, to sustain an ordinary routine without special supervision, to work in
coordination with or in proximity to others without being distracted by them, to
interact appropriately with the general public, to accept instructions and respond
appropriately to criticism from supervisors, to get along with co-workers or peers
without distracting them or exhibiting behavioral extremes, to maintain socially
appropriate behavior and to adhere to basic standards of neatness and cleanliness
and to set realistic goals or make plans independently of others. (R. at 608-10.)

15

The evaluation defines a slight limitation as “[s]ome mild limitation in this area, but
generally functions pretty well.” (R. at 608.)
16

The evaluation defines a moderate limitation as “[m]ore than slight but less than
marked.” (R. at 608.)
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Lanthorn found that Deel was markedly17 limited in his abilities to understand,
remember and carry out detailed instructions, to maintain attention and
concentration for extended periods and to respond appropriately to changes in the
work setting. (R. at 608, 610.) Lanthorn found that Deel was between moderately
and markedly limited in his ability to perform activities within a schedule, maintain
regular attendance and be punctual within customary tolerances. (R. at 609.)
Lanthorn based these limitations on the diagnoses he imposed on Deel. (R. at 608.)
Lanthorn stated that it was “unclear” as to the earliest date these limitations could
have been present, and he rated Deel’s prognosis as fair. (R. at 610.)

III. Analysis

The Commissioner uses a five-step process in evaluating DIB and SSI
claims. See 20 C.F.R. §§ 404.1520, 416.920 (2014). See also Heckler v. Campbell,
461 U.S. 458, 460-62 (1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981).
This process requires the Commissioner to consider, in order, whether a claimant
1) is working; 2) has a severe impairment; 3) has an impairment that meets or
equals the requirements of a listed impairment; 4) can return to his past relevant
work; and 5) if not, whether he can perform other work. See 20 C.F.R. §§
404.1520, 416.920. If the Commissioner finds conclusively that a claimant is or is
not disabled at any point in this process, review does not proceed to the next step.
See 20 C.F.R. §§ 404.1520(a), 416.920(a) (2014).

Under this analysis, a claimant has the initial burden of showing that he is
unable to return to his past relevant work because of his impairments. Once the
17

The evaluation defines a marked limitation as “[s]erious limitations in this area. The
ability to function is this are[a] is severely limited but not precluded.” (R. at 608.)
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claimant establishes a prima facie case of disability, the burden shifts to the
Commissioner. To satisfy this burden, the Commissioner must then establish that
the claimant has the residual functional capacity, considering the claimant’s age,
education, work experience and impairments, to perform alternative jobs that exist
in the national economy. See 42 U.S.C.A. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B)
(West 2011 & West 2012); McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983); Hall, 658 F.2d at 264-65; Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.
1980).

The ALJ found that Deel had the residual functional capacity to perform
simple, routine, repetitive, unskilled medium work that did not require a great deal
of social interaction. (R. at 18.) In his brief, Deel argues that the ALJ erred by
finding that his mental impairments did not meet the criteria for § 12.05C, the
listing for intellectual disability. (Plaintiff’s Brief In Support Of Motion For
Summary Judgment, (“Plaintiff’s Brief”), at 9-12.) Deel also argues that the
evidence submitted to the Appeals Council warrants a remand pursuant to sentence
six. (Plaintiff’s Brief at 12-15.) For the reasons that follow, I find that substantial
evidence exists to support the ALJ’s finding that Deel’s mental impairments did
not meet the criteria for § 12.05C. Deel does not challenge the ALJ’s findings with
regard to his physical residual functional capacity.

As stated above, the court’s function in this case is limited to determining
whether substantial evidence exists in the record to support the ALJ’s findings.
This court must not weigh the evidence, as this court lacks authority to substitute
its judgment for that of the Commissioner, provided her decision is supported by
substantial evidence. See Hays, 907 F.2d at 1456. In determining whether
substantial evidence supports the Commissioner’s decision, the court also must
-25-

consider whether the ALJ analyzed all of the relevant evidence and whether the
ALJ sufficiently explained her findings and her rationale in crediting evidence.
See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Listing § 12.05, the listing for intellectual disability, 18 states that intellectual
disability 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. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (2014). Here, Deel argues
that his impairments meet the required level of severity of this disorder by meeting
the criteria set forth in § 12.05C.19 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.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C (2014). Therefore,
alongside the two requirements in § 12.05C, the introductory paragraph of § 12.05
creates an additional element required to meet the listing for intellectual disability,
creating a three-part test for the listing. See Smith v. Barnhart, 2005 WL 823751,
at *14 (W.D. Va. Apr. 8, 2005) (citing Barnes v. Barnhart, 2004 WL 2681465, at
*4 (10th Cir. 2004)). Additionally, the introductory paragraph makes clear that
intellectual disability is a lifelong, not an acquired, disability. See Smith, 2005 WL
823751, at *14. Thus, to qualify as disabled under this listing, a claimant must
demonstrate that he has had deficits in adaptive functioning that began during
18

Effective August 1, 2013, the Social Security Administration promulgated a final rule
substituting the term “mental retardation” with “intellectual disability.” See Change in
Terminology: “Mental Retardation” to “Intellectual Disability,” 78 Fed. Reg. 46,499 (Aug. 1,
2013). The substance of the listing, including the criteria, remains unchanged.
19

A claimant may establish the requisite level of severity for the listing for intellectual
disability when the requirements in § 12.05A, B, C or D are satisfied. See 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.05.
-26-

childhood and also demonstrate that he meets the IQ requirement and has a
physical or other mental impairment imposing an additional and significant workrelated limitation of function. See Smith, 2005 WL 823751, at *14; see also 20
C.F.R. §§ 404.1525(c)(3), 416.925(c)(3) (2014).

With regard to the IQ prong, Deel argues that in September 2003, when he
was 18 years old, he was administered the Wechsler Adult Intelligence Scale –
Third Edition, (“WAIS-III”), on which he received a verbal IQ score of 77, a
performance IQ score of 68 and a full-scale IQ score of 70. While the record does
not contain the actual test results or any accompanying psychological report, these
scores are referenced in a March 30, 2004, Disability Hearing Officer’s Decision.
(R. at 127.) It appears that Deel’s child’s benefits had been terminated based on
age, and this hearing was held to determine whether he met the adult disability
standards. The disability hearing officer concluded that Deel suffered from mild
mental retardation, as evidenced by the performance IQ score of 68. (R. at 127.)
This decision stated: “The claimant has mild mental retardation with significant
anxiety and depression. It is concluded that the claimant meets adult listing §
12.05C.” (R. at 129.) In a Summary of Evidence attached to the decision listing the
evidence considered by the disability hearing officer, there are three medical
records dated September 2003, including a PRTF, a mental residual functional
capacity assessment and a consultative examination by B. Wayne Lanthorn. (R. at
132.) The hearing officer did not specify which records contained the relied-upon
intelligence testing.

In her decision, the ALJ stated that she was rejecting these prior IQ scores
because the report of the mental exam and IQ testing was not in evidence before
her and because the hearing officer’s decision did not state whether the IQ scores
-27-

were considered valid. (R. at 18.) The ALJ further stated that a comparison of these
prior scores to more recent testing raised questions as to their validity and might be
an underestimate of Deel’s intellectual functioning. (R. at 18.) In particular, the
ALJ emphasized that in 2011 Deel achieved a full-scale IQ score of 86, which was
deemed valid by the testing administrator, psychologist McFadden, as it was
consistent with Deel’s vocational background and educational history. (R. at 18.)
The ALJ further emphasized that Deel’s work as a mechanic, while not substantial
gainful activity, additionally suggested that his higher IQ score was more accurate.
(R. at 18.)

Faced with this apparent conflict in IQ scores, the state agency ordered a
consultative psychological evaluation with additional IQ testing. Psychologist
Lanthorn performed intelligence testing on Deel in March 2013, which yielded the
following results: verbal comprehension scale index score of 70; perceptual
reasoning index score of 71; working memory index score of 71; processing speed
index score of 61; and full-scale IQ score of 61. (R. at 603-04.) Lanthorn opined,
however, that Deel gave less than full effort on the test and that Deel probably was
functioning in the borderline to low average range intellectually. (R. at 604.) In
fact, Lanthorn stated that Deel appeared to have responded in a random manner
toward the end of the tests.

Thus, the only psychological evidence of valid IQ test scores contained in
the record support the ALJ’s finding that Deel failed to establish the existence of a
valid IQ score between 60 and 70 prior to age 22. For this reason, I conclude that
substantial evidence supports the ALJ’s finding that Deel’s impairments did not
satisfy the requirements of § 12.05C.

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Deel also argues that consultative psychological examination evidence from
Lanthorn, which was presented for the first time to the Appeals Council, warrants
remand pursuant to sentence six of 42 U.S.C. § 405(g). I find that this argument
simply is misplaced. Pursuant to sentence six, “The court … may at any time order
additional evidence to be taken before the Commissioner … but only upon a
showing that there is new evidence which is material and that there is good cause
for the failure to incorporate such evidence into the record in a prior proceeding.
…” 42 U.S.C.A. § 405(g) (2014). Here, the records from psychologist Lanthorn’s
consultative examination of Deel were submitted to the Appeals Council and were
incorporated into the record. Therefore, sentence six is inapplicable.

Based on the above reasoning, I conclude that substantial evidence supports
the ALJ’s finding that Deel’s impairments did not satisfy the requirements of §
12.05C. An appropriate order and judgment will be entered.

DATED:

May 6, 2015.

Pamela Meade Sargent

/s/
UNITED STATES MAGISTRATE JUDGE

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