Deal v. Colvin

Filing 25

MEMORANDUM OPINION & ORDER directing that objection 3.A to the 22 Proposed Findings and Recommendation is sustained; the decision of the Commissioner is reversed; this action is remanded pursuant to sentence four of 42 U.S.C. § 405(g), whic h proceedings shall include a consideration and weighing of the adaptive functioning findings of Dr. Saar and their effect, if any, on the disability determination; and this civil action is dismissed and stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 9/30/2015. (cc: counsel of record; United States Magistrate Judge) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
DARRELL LEA DEAL,
Plaintiff,
v.

Civil Action No: 2:14-25071

CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
MEMORANDUM OPINION & ORDER
The plaintiff, Darrell Lea Deal, instituted this
action under 42 U.S.C. § 405(g) on June 13, 2014, seeking
judicial review of the Commissioner’s final decision denying his
application for disability insurance benefits.
By standing order this action was referred to the
Honorable Dwane L. Tinsley, United States Magistrate Judge, who
filed his Proposed Findings and Recommendation (“PF&R”) on
September 1, 2015.

The PF&R recommends that the court grant

judgment on the pleadings to the Commissioner, affirm the
Commissioner’s decision, and dismiss this case.
12, 2015, Mr. Deal filed his objections.
each under a de novo standard.

On September

The court will assess

28 U.S.C. § 636(b)(1)(C).

United States has not responded to the objections.

The

Mr. Deal raises multiple objections to the PF&R.

The

first two objections assert, inter alia, errors in the PF&R
respecting various dates and locations of materials in the
record.1

(Objec. at 1).

It is the case that the citations to

the record, and several dates, in the PF&R are incorrect.

Mr.

Deal does not assert, however, nor does it appear to be the
case, that these minor factual errors impair the analysis found
in the PF&R.

The objection is thus meritorious but immaterial.
I.

The third objection relates to the magistrate judge’s
statement that, “[a]s Claimant’s civil action focuses on the
assertion that the ALJ failed to determine that Claimant
satisfied the criteria for Listing 12.05C for intellectual
disability, this Court will address the sole allegation.” (PF&R
at 11).

Mr. Deal contends correctly that he, in actuality,

asserted “multiple errors” in the ALJ’s decision, not just one.
These “multiple errors” were asserted in Mr. Deal’s Brief in

1

For instance, on page 1 of the PF&R, it is stated that the
applications for disability insurance benefits were completed in
February of 2011, whereas the record indicates that they were
completed in April of 2011, R. at 51. Likewise, it is stated that
the onset date of Deal’s alleged disability was October 1, 2010,
PF&R at 1, whereas the record indicates that the alleged date of
onset was June 30, 2008, R. at 60. On page 2 of the PF&R, it is
stated that the ALJ decision denying benefits was dated February
14, 2013, whereas a review of the record shows that it was in fact
dated April 25, 2013, ALJ Decis. at 1.
2

Support, Dkt. No. 14 at 10-11, reproduced in subsections 3.A.
through 3.E. of the objections.

The court summarizes objection

3.A below:
Objection 3.A. -- The ALJ failed to explain the weight
given to the forensic evaluation of Timothy Saar, Ph.D,
and ignored testing demonstrating severe deficits in
adaptive function. Mr. Deal notes that while the ALJ
mentioned the IQ scores found in the Saar report, he
ignored the adaptive skills testing, which was the only
such testing in the record. Mr. Deal contends this was
the most important evidence in the record inasmuch as
the issue of adaptive skills was the foundational issue
in the case. Dr. Saar also found illiteracy [lack of
functional academic skills], very low scores in Managing
Home and Transportation, and a low score for Health and
Safety, which constitute at least three areas of current
lack of adaptive function.
(See Objecs. at 3).
Mr. Deal asserts that the ALJ failed to adequately
explain on the record the reasons for ignoring reports produced
by Dr. Saar, who performed a variety of IQ and similar tests on
Mr. Deal in 2012.

The ALJ found that Mr. Deal suffers from a

wide range of physical and mental problems.
35-36).

(See ALJ Decis. at

The ALJ concluded, however, that Mr. Deal’s various

impairments did not satisfy the requirements of any “listing” in
the Social Security regulations, including Listing 12.05.
In order to satisfy Listing 12.05C -- which defines
“mental disabilities” for purposes of determining eligibility

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for Social Security disability benefits -- a claimant must show
the following: (1) deficits in adaptive functioning that
manifested before age 22; (2) a valid verbal, performance, or
full scale IQ of 60 through 70; and (3) a physical or other
mental impairment imposing an additional and significant workrelated limitation of function.

See 20 C.F.R. pt. 40, subpt. P,

app. 1.
Mr. Deal is correct that the central dispute in this
action is his adaptive functioning, prong one of the three-prong
test.2

In concluding that Mr. Deal did not satisfy the adaptive

functioning prong, the ALJ relied on a report produced by Dr.
Larry J. Legg.

Dr. Legg concluded that a diagnosis of mental

retardation would be inappropriate for Mr. Deal, based upon his
work-history, educational record and lack of deficits in
adaptive behavior.
conclusion.

The ALJ appears to have adopted that

(See ALJ Decis. at 40).

Mr. Deal responds that Dr. Saar also opined on Mr.
Deal’s adaptive capacity but that the ALJ implicitly, and
inexplicably, failed to explain or even take account of Dr.
Saar’s report to that extent.

He thus requests remand.

2

The

Mr. Deal satisfies the second and third prongs based on Dr.
Saar’s report, as the ALJ acknowledged. (See ALJ Decis. at 35, 37,
40, 38-41).
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magistrate judge appears to have analyzed the contention, noting
Mr. Deal “is mistaken because the ALJ did consider and discuss
the results of Dr. Saar’s evaluation [on pages 39 and 40 of the
administrative record].”

(PF&R at 16).
II.

The court reviews de novo those portions of the
magistrate judge’s PF&R to which objections have been timely
filed.

See 28 U.S.C. § 636(b)(1)(B); see also Orpiano v.

Johnson, 687 F.2d 44, 47 (4th Cir. 1982); 20 C.F.R. §§
416.927(e)(1), 4-4.1527(e)(1) (ultimate decision regarding
disability determination rests with the Commissioner of Social
Security).

The standard of review is very deferential to the

Commissioner: “Under the Social Security Act, [a reviewing
court] must uphold the factual findings of the [ALJ] if they are
supported by substantial evidence and were reached through
application of the correct legal standard.”

Johnson v.

Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); see also Oppenheim
v. Finch, 495 F.2d 396, 397 (4th Cir. 1974) (the court is
obligated to scrutinize the record as a whole to determine
whether the conclusions reached are supported by substantial
evidence).

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Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971).

It is more than “a mere scintilla,” but less than a
preponderance.
1996).

Smith v. Chater, 99 F.3d 635, 638 (4th Cir.

Nevertheless, “[i]n reviewing for substantial evidence,

[a district court does] not undertake to reweigh conflicting
evidence, make credibility determinations, or substitute [its]
judgment for that of the ALJ.”

Johnson, 434 F.3d at 653.

It is the duty of the ALJ to resolve any conflicts or
inconsistencies in the evidence.

See Hays v. Sullivan, 907 F.2d

1453, 1456 (4th Cir. 1990); Thomas v. Celebreeze, 331 F.2d 541
(4th Cir. 1964).

However, the ALJ must explicitly indicate on

the record “the weight given to all relevant evidence.”
v. Schweiker, 724 F.3d 231, 233 (4th Cir. 1984).

Gordon

In cases where

the ALJ fails to do so, courts have understandably remanded for
further proceedings.

See, e.g., Murphy v. Bowen, 810 F.2d 433,

437-38 (4th Cir. 1987) (remand where ALJ accepted one doctor’s
testimony over that of another with “little or no indication
. . . [or] explanation” why); Milburn Colliery Co. v. Hicks, 138
F.3d 524533-34 (4th Cir. 1998) (same); Rainey v. Heckley, 770
F.23d 408, 410 (4th Cir. 1985) (same); Peabody Coal v. Lowis,
708 F/2d 260, 275 (7th Cir. 1983) (similar); cf. Hancock v.

6

Astrue, 667 F.3d 470, 476 (4th Cir. 2012) (ALJ affirmed where
she weighed conflicting evidence carefully and explained on the
record); Turner v. Brown, 856 F.2d 695, 699 (4th Cir. 1988)
(same).
With respect to objection 3.A -- the treatment of, and
weight accorded to, Dr. Saar’s report -- the ALJ did not fulfill
his obligation to consider the evidence, resolve conflicts, and
apply the relevant legal standards.

See Doss v. Dir., Office of

Workers’ Comp. Programs, 53 F.3d 654, 658 (4th Cir. 1995).
The ALJ acknowledged Dr. Saar’s report in concluding
that Mr. Deal satisfied the IQ prong in Listing 12.05. (See ALJ
Decis. at 40).

This indicates the ALJ credited at least some

portion of Dr. Saar’s findings.

The ALJ entirely neglected,

however, to mention the quite important portions of Dr. Saar’s
report concerning Mr. Deal’s adaptive functioning, despite the
fact that Dr. Saar’s report conflicts in significant degree with
the report compiled by Dr. Legg.

(See ALJ Decis. at 40-41).

Specifically, Dr. Saar opines that Mr. Deal’s
“adaptive functioning is at the minimum standard score” in
several areas, performing at the lowest levels measured.

To be

sure, Dr. Saar also found that Deal scored only “low,” and even
“average” in some areas, but this mixed evidence is nowhere
discussed in the ALJ’s decision.

In comparison, Dr. Legg, upon
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whom the ALJ chose to rely for unknown reasons, concluded that
Mr. Deal showed much better adaptive functioning than found by
Dr. Saar.

(See ALJ Decis. at 40).

There is no explanation why

Dr. Saar’s adaptive functioning findings were insufficient.
Inasmuch as the determination of adaptive functioning
was critical to the determination of disability, objection 3.A
is meritorious and the ALJ consequently erred.
accordingly, required to address the matter.

Remand is,

The court thus

need not reach the remaining objections or grounds for error, as
such grounds (of which 3.B., 3.C., and 3.D. also relate to
adaptive functioning), may be presented, if warranted, on
remand.
IV.
For the foregoing reasons, the court ORDERS as
follows:
1.

That objection 3.A to the PF&R be, and hereby is,
sustained;

2.

That the decision of the Commissioner be, and hereby
is, reversed;

3.

That this action be, and hereby is, remanded pursuant
to sentence four of 42 U.S.C. § 405(g), which
8

proceedings shall include a consideration and weighing
of the adaptive functioning findings of Dr. Saar and
their effect, if any, on the disability determination;
and
4.

That this civil action be, and hereby is, dismissed
and stricken from the docket.
The Clerk is directed to forward copies of this

written opinion and order to all counsel of record and the
United States Magistrate Judge.
DATED: September 30, 2015

John T. Copenhaver, Jr.
United States District Judge

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