Miller v. Colvin

Filing 13

MEMORANDUM OPINION granting Plaintiff's 11 motion for judgment on the pleadings, to the extent that it requests remand, denying Defendant's 12 motion for judgment on the pleadings, reversing the final decision of the Commissioner, reman ding this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion, and dismissing this action from the docket of the Court. Signed by Magistrate Judge Cheryl A. Eifert on 1/6/2017. (cc: attys) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
SCOTT ANTHONY MILLER,
Plaintiff,
v.

Case No.: 3:15-cv-15503

CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

MEMORANDUM OPINION
This is an action seeking review of the decision of the Commissioner of the Social
Security Administration (hereinafter the “Commissioner”) denying Plaintiff’s
application for disability insurance benefits (“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 13811383f. The case is presently before the court on the parties’ motions for judgment on the
pleadings as articulated in their briefs. (ECF Nos. 11, 12). Both parties have consented in
writing to a decision by the United States Magistrate Judge. (ECF Nos. 7, 8). The court
has fully considered the evidence and the arguments of counsel. For the reasons that
follow, the court FINDS that the decision of the Commissioner is not supported by
substantial evidence, and therefore should be REVERSED and REMANDED,
pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with
this opinion.

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I.

Procedural History
In July 2012, Plaintiff Scott Anthony Miller (“Claimant”) completed applications

for DIB and SSI alleging a disability onset date of July 1, 2010 due to “Problems with
back, neck and shoulders, learning disability.” (Tr. at 188, 212). The Social Security
Administration (“SSA”) denied the applications initially and upon reconsideration. (Tr.
at 101-10, 114-27). Claimant filed a request for a hearing, which was held on April 7, 2014
before the Honorable Toby J. Buel, Sr., Administrative Law Judge (“ALJ”). (Tr. at 2771). By written decision dated May 13, 2014, the ALJ determined that Claimant was not
entitled to benefits. (Tr. at 11-21). The ALJ’s decision became the final decision of the
Commissioner on October 9, 2015 when the Appeals Council denied Claimant’s request
for review. (Tr. at 1-6).
On November 24, 2015, Claimant filed the present civil action seeking judicial
review of the administrative decision pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The
Commissioner filed an Answer and a Transcript of the Proceedings on January 27, 2016.
(ECF Nos. 9,10). Thereafter, the parties filed their briefs in support of judgment on the
pleadings. (ECF Nos. 11, 12). The time period for the filing of a reply has expired.
Accordingly, this matter is fully briefed and ready for disposition.
II.

Claimant’s Background
Claimant was 38 years old at the time of his alleged onset of disability and 43

years old at the time of the ALJ’s decision. (Tr. at 20, 188). He completed the 12th grade
in special education classes and communicates in English. (Tr. at 33, 212, 321). Claimant
previously worked as a golf course landscaper. (Tr. at 34-35, 213).
III.

Summary of ALJ’s Findings
Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the burden
2

of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). A
disability is defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Social Security Regulations establish a five step sequential evaluation process
for the adjudication of disability claims. If an individual is found “not disabled” at any
step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). First, the ALJ determines whether a claimant is
currently engaged in substantial gainful employment. Id. §§ 404.1520(b), 416.920(b).
Second, if the claimant is not gainfully employed, then the inquiry is whether the
claimant suffers from a severe impairment. Id. §§ 404.1520(c), 416.920(c). Third, if the
claimant suffers from a severe impairment, the ALJ determines whether this
impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of
the Administrative Regulations No. 4 (the “Listing”). Id. §§ 404.1520(d), 416.920(d). If
the impairment does meet or equal a listed impairment, then the claimant is found
disabled and awarded benefits.
However, if the impairment does not meet or equal a listed impairment, the
adjudicator must determine the claimant’s residual functional capacity (“RFC”), which
is the measure of the claimant’s ability to engage in substantial gainful activity despite
the limitations of his or her impairments. Id. §§ 404.1520(e), 416.920(e). In the fourth
step, the ALJ ascertains whether the claimant’s impairments prevent the performance
of past relevant work. Id. §§ 404.1520(f), 416.920(f). If the impairments do prevent the
performance of past relevant work, then the claimant has established a prima facie case
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of disability and the burden shifts to the Commissioner to prove the final step. McLain
v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). Under the fifth and final inquiry, the
Commissioner must demonstrate that the claimant is able to perform other forms of
substantial gainful activity, while taking into account the claimant’s remaining physical
and mental capacities, age, education, and prior work experiences. 20 C.F.R. §§
404.1520(g), 416.920(g); see also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992).
The Commissioner must establish two things: (1) that the claimant, considering his or
her age, education, skills, work experience, and physical shortcomings has the capacity
to perform an alternative job, and (2) that this specific job exists in significant numbers
in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
When a claimant alleges a mental impairment, the ALJ “must follow a special
technique” to assess disability. 20 C.F.R. §§ 404.1520a, 416.920a. First, the ALJ
evaluates the claimant’s pertinent signs, symptoms, and laboratory results to determine
whether the claimant has a medically determinable mental impairment. Id. §§
404.1520a(b), 416.920a(b). If such impairment exists, the ALJ documents the findings.
Second, the ALJ rates and documents the degree of functional limitation resulting from
the impairment according to criteria specified in the regulations. Id. §§ 404.1520a(c),
416.920a(c). Third, after rating the degree of functional limitation from the claimant’s
impairment(s), the ALJ determines the severity of the limitation. Id. §§ 404.1520a(d),
416.920a(d). A rating of “none” or “mild” in the first three functional areas (activities of
daily living, social functioning, and concentration, persistence or pace) and “none” in
the fourth (episodes of decompensation) will result in a finding that the impairment is
not severe unless the evidence indicates that there is more than minimal limitation in
the claimant’s ability to do basic work activities. Id. §§ 404.1520a(d)(1), 416.920a(d)(1).
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Fourth, if the claimant’s impairment is deemed severe, the ALJ compares the medical
findings about the severe impairment and the degree of functional limitation against the
criteria of the appropriate listed mental disorder to determine if the severe impairment
meets or is equal to a listed mental disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2).
Finally, if the ALJ finds that the claimant has a severe mental impairment that neither
meets nor equals a listed mental disorder, then the ALJ assesses the claimant’s residual
functional capacity. 20 C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3).
In this case, the ALJ determined as a preliminary matter that Claimant met the
insured status requirements of the Social Security Act through December 31, 2015. (Tr.
at 13, Finding No. 1). The ALJ acknowledged that Claimant satisfied the first inquiry
because he had not engaged in substantial gainful activity since July 1, 2010, the alleged
disability onset date. (Id., Finding No. 2). Under the second inquiry, the ALJ found that
Claimant suffered from severe impairments of sprains/strains, all types, and borderline
intellectual functioning. (Tr. at 13-14, Finding No. 3). Under the third inquiry, the ALJ
concluded that Claimant’s impairments, either individually or in combination, did not
meet or medically equal any of the listed impairments. (Tr. at 14-15, Finding No. 4).
Therefore, the ALJ determined that Claimant had the RFC to:
[P]erform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except he is limited to lifting and/or carrying 20 pounds occasionally and
ten pounds frequently; standing and/or walking six hours out of an eighthour workday; sitting six hours out of an eight-hour workday; and
pushing/pulling to the weight limitations noted herein (Exhibit 5A). He
should only lift with the right shoulder on an occasional basis. He should
avoid concentrated exposure to extreme cold or heat, and hazards (moving
machinery, unprotected heights, etc.). He can maintain concentration and
attention for two-hours at a time.
(Tr. at 16-19, Finding No. 5). At the fourth step of the analysis, the ALJ determined that
Claimant was unable to perform any past relevant work. (Tr. at 20, Finding No. 6).
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Consequently, the ALJ considered Claimant’s past work experience, age, and education
in combination with his RFC to determine if he would be able to engage in substantial
gainful activity. (Tr. at 20-21, Finding Nos. 7-10). The ALJ considered that (1) Claimant
was born in 1971 and was defined as a younger individual on the alleged disability onset
date; (2) he had at least a high school education and could communicate in English; and
(3) transferability of job skills was not material to the ALJ’s disability determination
because Claimant’s past relevant work was unskilled. (Tr. at 20, Finding Nos. 7-9).
Taking into account all of these factors, and Claimant’s RFC, and relying upon the
opinion testimony of a vocational expert (“VE”), the ALJ determined that Claimant
could perform jobs that existed in significant numbers in the national economy. (Tr. at
20-21, Finding No. 10). At the light level, he could work as an edging machine feeder,
bakery racker, or rover;1 and at the sedentary level, Claimant could work as a
grader/sorter, bench worker, and motor polarizer. (Tr. at 20-21). Therefore, the ALJ
concluded that Claimant was not disabled as defined in the Social Security Act from July
1, 2010 through the date of the decision. (Tr. at 21, Finding No. 11).
IV.

Claimant’s Challenge to the Commissioner’s Decision
Claimant presents several challenges to the Commissioner’s decision. First,

Claimant argues that the ALJ erred in finding that Claimant did not meet Listing 12.05C
without first obtaining an additional psychological evaluation to resolve his inconsistent
IQ scores. (ECF No.

11 at 5-6). Second, Claimant alleges that the ALJ erred in

disregarding the VE’s testimony that Claimant was incapable of substantial gainful
activity if his impairments required him to take at least one extra break during the
At the hearing held on April 7, 2014, the vocational expert referred to this job as a “groover, DOT
692.686-042.” (Tr. at 69).

1

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workday. (Id. at 6-7). Finally, Claimant argues that the ALJ improperly disregarded the
consultative examiner’s finding that he had markedly deficient persistence, as well as
the VE’s testimony that he would be incapable of substantial gainful activity if he had
markedly deficient persistence. (Id. at 7).
In response to Claimant’s arguments, the Commissioner states that Claimant has
not proven that he is disabled under the Act, has not produced evidence that he meets
or equals the requirements of Listing 12.05C, and has not demonstrated that he needed
an additional break during the workday. (ECF No. 12 at 10-17).
V.

Relevant Medical Records
The court has reviewed the transcript of proceedings in its entirety, including the

treatment records and evaluations in evidence, and confines the following summary to
those entries most relevant to the issues in dispute.
On March 28, 1979, Claimant was referred for a psychological evaluation based
on the observations of his first grade teacher that Claimant could only work on a one-toone basis and had “no memory for numbers or letters.” (Tr. at 315-16). He was described
as restless and unable to attend to the task at hand; his class work was described as
“terrible with many errors when left to work independently.” (Tr. at 315). Claimant was
administered several tests by psychologist Diane C. Mufson, M.A., Department of
Psychological Services, Cabell County Public Schools, and the results were confirmed by
licensed counseling psychologist Michael J. Hughes, Ed.D. (Tr. at 315-16). On the
Wechsler Intelligence Scale for Children-Revised (“WISC-R”), Claimant’s full scale IQ
score was 74, verbal IQ score was 75, and performance IQ score was 77. (Tr. at 315).
These results placed him at the borderline of the Department of Mental Retardation’s
(“DMR”) lowest end of average ability ranges. Id. Claimant’s results on the Bender
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Gestalt test, which measured perceptual ability, revealed that Claimant performed
approximately two years below his age. (Id.). On the Wide Range Achievement Test
(“WRAT”), which measured academic skills, Claimant received reading scores of
kindergarten .7, spelling 1.o, and arithmetic 1.2, which indicated that he was at a grade
equivalence less than his actual placement, with the greatest discrepancy in the area of
reading. (Tr. at 316). The results of the evaluation indicated a need for additional
learning disorder screening and educational evaluation, as well as consideration of DMR
placement unless the learning disorder screening revealed specific areas that could best
be remedied in a learning disorder classroom. (Id.).
While still in the Cabell County School System, Claimant was re-evaluated on
December 11, 1985 for the purpose of compliance with Public Law 94-142. (Tr. at 31718). Claimant scored within the educable mentally impaired range of intellectual ability
on the WISC-R. (Tr. at 319). The Bender-Gestalt results suggested a level of visual motor
coordination commensurate with Claimant’s overall intellectual ability. (Id.). Claimant
scored a verbal IQ of 67, performance IQ of 77 and an overall full scale IQ of 70. (Tr. at
320). The administering psychologist found that Claimant easily interacted with him
and was personable. (Tr. at 321). Claimant’s performance abilities were found to be
better developed than his verbal abilities, albeit not significantly. (Id.). Tests results also
indicated that Claimant had a history of behavioral problems at school. (Id.). Based on
the results and available information, behavior management strategies were
recommended, along with continued instruction in the program for educable mentally
impaired students. (Id.).
Claimant was re-evaluated again on November 18, 1988 by Kenneth R. Mobley,
M.A., and Psychologist William Given, West Virginia Division of Rehabilitation Services,
8

for the purpose of determining his eligibility for rehabilitation services and vocational
counseling. (Tr. at 312-14). He was 16.9 years old and in the 11th grade. (Tr. at 312). On
the Wechsler Adult Intelligence Scale-Revised (“WAIS-R”), Claimant scored a verbal IQ
of 73, a performance IQ of 76 and a full scale IQ of 74. (Tr. at 312). These scores placed
Claimant in the borderline range of intellectual functioning. (Tr. at 313). The WRAT-R
test used to evaluate academic skills revealed that Claimant’s reading recognition and
reading comprehension fell far below average. (Id.). The examiners felt the test results
were an adequate representation of Claimant’s level of functioning. (Tr. at 312).
At the time of this evaluation, Claimant was enrolled in the building and
maintenance curriculum at the Cabell County Vocational Technical Center. Claimant
informed the examiners that he did not like the curriculum; however, it was determined
that training options for Claimant were limited due to his low level of ability and
impaired academic skills. (Tr. at 314). The examiners opined that Claimant would be
best suited to programs that involved oral instructions and direct hands-on experience;
however, once Claimant learned basic job skills, he would most likely require very little
supervision on the job site. (Id.).
Many years later, on October 17, 2012, Claimant underwent psychological testing
as an adult in connection with his present applications for Social Security benefits. (Tr.
at 281-85). Lisa Tate, M.A., completed a Mental Status Examination and observed that
although Claimant demonstrated some articulation errors, his speech production was
easy to understand. (Tr. at 281). Claimant reported that he graduated from high school
in 1990, but stated that he had a lifelong learning disability and was enrolled in special
education classes. (Tr. at 282). He stated that he repeated the fifth grade, but was then
promoted directly to the seventh grade. (Id.). He also stated that he required assistance
9

in reading his mail and that his wife managed the household finances. (Id.).
On examination, Claimant was oriented to person, place, time, and date. (Tr. at
283). His thought processes and content were within normal limits, his insight was fair,
but his judgment was markedly deficient based upon his response to the “finding the
letter” question. (Id.). Claimant’s immediate and remote memory were within normal
limits; however, his recent memory was deemed mildly deficient as he could only recall
two out of four words after a thirty-minute lapse. (Id.). Claimant’s concentration and
psychomotor behavior were normal. (Id.).
Ms. Tate administered the WAIS-IV test, which revealed a full scale IQ of 51;
however, Ms. Tate opined that the results were invalid due to Claimant’s apparent
disinterest in testing, his tendency to give up easily on tasks, his slow work pace, his need
for constant encouragement, and the lack of satisfactory rapport between Claimant and
the tester. (Tr. at 284). On the WRAT-4 test, Claimant received a score of 56 in reading
and 55 for spelling and math. (Id.). These scores were likewise deemed invalid for the
same reasons. (Id.).
Claimant described that he spent a typical day sitting and watching television.
(Id.). He showered and washed dishes once a week and grocery shopped once a month.
His only reported hobby was watching football games on television. (Id.). Ms. Tate found
Claimant’s social functioning to be mildly deficient based upon his interaction with staff
during the evaluation. (Tr. at 285). Claimant’s concentration and pace were within
normal limits; however, his persistence was markedly deficient based on clinical
observation. (Id.). Due to the invalid IQ scores, Ms. Tate was unable to reach a diagnostic
impression. (Tr. at 284).
On November 15, 2012, Jim Capage, Ph.D., completed a Case Analysis after
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reviewing Ms. Tate’s report. (Tr. at 75-76). Dr. Capage noted that Claimant alleged a
learning disability and reported that he could not read or write; however, during Ms.
Tate’s evaluation, Claimant did not appear to show any effort, which caused Ms. Tate to
consider his test scores invalid. (Tr. at 76). Given Claimant’s failure to cooperate in his
consultative examination, Dr. Capage found Claimant’s credibility to be “suspect.” (Id.).
Ultimately, Dr. Capage found that the evidence was insufficient to adjudicate the claim.
(Id.). The above findings were affirmed by Timothy Saar, Ph.D., on January 14, 2013.
(Tr. at 85-86). Dr. Saar completed a Case Analysis and found no new allegations, no new
treatment, and no new sources. He reiterated that there was insufficient evidence to
adjudicate the claim. (Id.).
VI.

Scope of Review
The issue before this Court is whether the final decision of the Commissioner

denying Claimant’s application for benefits is supported by substantial evidence. The
Fourth Circuit has defined substantial evidence 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. If there is evidence to
justify a refusal to direct a verdict were the case before a jury, then there is
“substantial evidence.”
Blalock, 483 F.2d at 776 (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966)). Additionally, the administrative law judge, not the court, is charged with
resolving conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
The Court will not re-weigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Id. Instead, the Court’s duty is
limited in scope; it must adhere to its “traditional function” and “scrutinize the record
as a whole to determine whether the conclusions reached are rational.” Oppenheim v.
11

Finch, 495 F.2d 396, 397 (4th Cir. 1974). Thus, the ultimate question for the Court is not
whether the Claimant is disabled, but whether the decision of the Commissioner that the
Claimant is not disabled is well-grounded in the evidence, bearing in mind that “[w]here
conflicting evidence allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the [Commissioner].” Walker v.
Bowen, 834 F.2d 635, 640 (7th Cir. 1987).
VII.

Analysis
A. The ALJ’s Analysis of Claimant’s IQ Under Listing 12.05C
In his first challenge to the Commissioner’s decision, Claimant argues that his

combination of physical and mental impairments satisfy Listing 12.05C. (ECF No. 11 at
5). Claimant contends that substantial evidence before the ALJ supported a step three
finding in his favor; therefore, contradictory evidence in the record should have been
more thoroughly considered and reconciled by the ALJ. Specifically, Claimant asserts
that the ALJ should have ordered an additional psychological examination to resolve
inconsistencies in his IQ scores; particularly, as the ALJ made his step three
determination based largely upon those scores. (Id. at 6).
A claimant should be found disabled at the third step of the sequential evaluation
process when his or her impairments meet or medically equal an impairment included
in the Listing. The Listing describes “for each of the major body systems, impairments
which are considered severe enough to prevent a person from doing any gainful activity.”
See 20 C.F.R. § 404.1525. The Listing is intended to identify those individuals whose
mental or physical impairments are so severe that they would likely be found disabled
regardless of their vocational background; consequently, the criteria defining the listed
impairments is set at a higher level of severity than that required to meet the statutory
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definition of disability. Sullivan v. Zebley, 493 U.S. 521, 532, 110 S.Ct. 885, 107 L.Ed.2d
967 (1990). Because disability is presumed with a listed impairment, “[f]or a claimant
to show that his impairment matches a [listed impairment], it must meet all of the
specified medical criteria.” Id. at 530. The claimant bears the burden of production and
proof at this step of the disability determination process. Grant v. Schweiker, 699 F.2d
189, 191 (4th Cir. 1983).
Section 12.00 of the Listing pertains to mental disorders, which are arranged in
nine diagnostic categories, including listing 12.05 for intellectual disability (formerly
mental retardation). 20 C.F.R. Pt. 404, Subpt. P, App’x 1 § 12.00. According to the
regulations:
The structure of the listing for intellectual disability (12.05) is different
from that of the other mental disorders listings. 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 [a claimant’s] impairment satisfies the diagnostic description in the
introductory paragraph and any one of the four sets of criteria, [the SSA]
will find that [the] impairment meets the listing.
Id. Thus, to qualify for disability under listing 12.05C, Claimant must establish that he
has an intellectual impairment that satisfies both the diagnostic description and the
severity criteria outlined in paragraph C. The diagnostic description of intellectual
disability, sometimes called the first prong of the listing, is “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.” 20 C.F.R. Part 404, Subpart P, App’x 1 § 12.05. The
severity criteria contained in paragraph C, which constitutes the second prong of the
listing, is: “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
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limitation of function.” Id. at § 12.05C.
In the introduction to Section 12.00, the SSA explains that “[s]tandardized
intelligence test results are essential to the adjudication of all cases of intellectual
disability that are not covered under the provisions of 12.05A.” 20 C.F.R. Part 404,
Subpart P, App’x 1 § 12.00. However, “since the results of intelligence tests are only part
of the overall assessment, the narrative report that accompanies the test results should
comment on whether the IQ scores are considered valid and consistent with the
developmental history and the degree of functional limitation.” Id. Furthermore, when
“considering the validity of a test result, [the ALJ] should note and resolve any
discrepancies between formal test results and the individual's customary behavior and
daily activities.” Id. In general, the results obtained by a licensed psychologist following
administration of accepted intelligence tests are entitled to considerable weight in
Social Security cases, but the ALJ is not required to accept such scores. See Clark v.
Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998); see also Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1988); Foster v. Heckler,
780 F.2d 1125, 1130 (4th Cir. 1986). The ALJ may reject IQ scores if they are
inconsistent with other substantial evidence in the record, such as conflicting
professional opinions, or other evidence indicating that the claimant historically
achieved higher scores or has more advanced functional capacities than would be
expected from someone with a below-average IQ. Clark, 141 F.3d at 1255; see also
Hancock v. Astrue, 667 F.3d 470, 474 (4th Cir. 2012) (“[A]n ALJ has the discretion to
assess the validity of an IQ test result and is not required to accept it even if it is the only
such result in the record.”). Indeed, IQ test results must be examined “to assure
consistency with daily activities and behavior.” Popp v. Heckler, 779 F.2d 1497, 1499
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(11th Cir. 1986). The question is “whether the decision to disregard the scores as
unreliable is supported by substantial evidence from the record as a whole.” Pogue v.
Astrue, 692 F. Supp.2d. 1088 (E.D. Mo. 2010).
Here, the ALJ considered the severity of Claimant’s intellectual impairment at
steps two and three of the sequential evaluation. The ALJ referenced the psychological
testing administered to Claimant in 1988 when he was 16.9 years old and in the 11th
grade. (Tr. at 13). The test results confirmed that Claimant was functioning in the
borderline intellectual range, with a verbal IQ score of 73, a performance IQ score of 76,
and a full scale IQ score of 74. (Tr. at 313). The ALJ noted that the results of the 1988
testing were consistent with a prior IQ test performed in 1979, which reflected a verbal
IQ score of 75, a performance IQ score of 77, and a full scale IQ score of 74. (Tr. at 13,
315). The ALJ acknowledged that the IQ scores from Claimant’s October 2012 testing
administered by consultative examiner, Lisa Tate, were markedly lower than Claimant’s
previous scores, but emphasized that Ms. Tate rejected the results as invalid. (Tr. at 13).
Consequently, the ALJ found at step two that, notwithstanding Claimant’s 2012 scores,
he was functioning “at least in the borderline range.” (Tr. at 13-14).
At step three of the process, the ALJ compared the evidence regarding Claimant’s
intellectual functioning with the criteria of Listing 12.05 and explained why Claimant
did not meet the severity criteria outlined in any of the four paragraphs of the listing.
Specifically, with respect to paragraph C, the ALJ stated that Claimant did not have “a
valid verbal, performance, or full scale IQ of 60 through 70 and a physical or mental
impairment imposing an additional and significant work-related limitation of function.”
(Tr. at 14). The ALJ again cited to Claimant’s psychological testing from 1988, indicating
that the IQ scores obtained at that time were considered valid “although limited by his
15

low levels of ability and impaired academic skills.” (Tr. at 15). The ALJ once again
rejected the lower scores returned in 2012, reiterating that although the scores were 65
and below, Ms. Tate found the results to be invalid based on a number of factors,
including Claimant’s disinterest in testing, his slow pace and tendency to give up easily,
and the lack of a satisfactory rapport between Claimant and his tester. (Tr. at 14).
Having reviewed the evidence and the ALJ’s discussion, the undersigned finds no
error in the ALJ’s step three assessment of Claimant’s intellectual functioning. As shown
above, the ALJ acknowledged the inconsistency in Claimant’s IQ scores, reconciled the
differences, and clearly articulated his rationale for rejecting the lower scores. Moreover,
the ALJ’s determination that Claimant could not satisfy the second prong of Listing
12.05C is supported by substantial evidence.
On two occasions, Claimant had IQ scores that were 70 or below. First, in 1985,
when Claimant was approximately fourteen years old, his verbal IQ score was 67, his
performance IQ score was 77, and his full scale IQ was 70. (Tr. at 320). Second, in
October 2012, he received scores ranging from 50 to 65 on the five scales of the WAISIV. (Tr. at 283). However, neither set of scores was valid under the Listing. With respect
to the 1985 scores, Claimant’s young age made the scores reliable for only a limited
period of time. As stated in the regulations, IQ testing results tend to stabilize by the age
of 16; consequently, test results that measure 40 or above and are obtained before the
age of 16 (between ages 7 and 16) are valid indicators of an individual’s intellectual
functioning for only two years. 20 C.F.R. pt 404, subpt. P, App. 1, § 112.00(D)(10).
Therefore, Claimant’s 1985 results were only valid through 1987. In 1988, after Claimant
had turned 16 years of age, he was retested, and this time all of his scores were above 70.
Moreover, these scores were consistent with Claimant’s earlier testing in 1979, casting
16

doubt on the reliability of the 1985 scores.
Likewise, it was appropriate for the ALJ to reject the 2012 scores. Not only were
the scores deemed invalid by the psychologist who administered the test, but the results
were entirely inconsistent with Claimant’s 1988 scores and the level of functioning
displayed by Claimant. As stated by the Fourth Circuit, “the Secretary's regulation
‘expressly define[s] mental retardation as denoting ‘a lifelong condition.’” Branham v.
Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985). Therefore, “in the absence of any evidence
of a change in a claimant's intelligence functioning, it must be assumed that the
claimant’s IQ had remained relatively constant.” Luckey v. U.S. Dep't of Health &
Human Servs., 890 F.2d 666, 668 (4th Cir. 1989) (citing Branham, 775 F.2d at 1274).
There was no evidence that Claimant suffered trauma, illness, or any other event that
would explain a precipitous drop in his intellectual functioning from the level measured
at age 16.9. Therefore, the ALJ appropriately rejected Claimant’s 2012 IQ scores. (Tr. at
13-14).
Further, it was proper for the ALJ not to order a second consultative examination
given that the record contained valid IQ scores that were obtained after Claimant’s
sixteenth birthday. Claimant’s 1988 scores were all above 70 and were found by the ALJ
to be consistent with other evidence regarding Claimant’s educational background, past
work history, daily activities, and level of functioning. (Tr. at 19, 312-14). In addition,
the psychologists from the West Virginia Division of Rehabilitation, who were evaluating
Claimant’s need for services and vocational counseling, concluded that Claimant’s
intellectual functioning was at the borderline range. They added that despite having
academic skills “significantly below his level of ability,” Claimant was capable of learning
basic job duties and, after learning them, would require little supervision on the job site.
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(Tr. at 314).
Thus, the ALJ relied on valid IQ scores in accordance with the applicable
regulations when he determined that Claimant’s IQ did not fall between 60 and 70 as
required by Listing 12.05C. Consequently, there was no compelling reason for the ALJ
to order a second consultative examination. See Pollard v. Comm'r of Soc. Sec., No. 1:10CV-714, 2012 WL 95426, at *5 (S.D. Ohio Jan. 12, 2012) (“In this case, there existed
substantial evidence in the record to determine that Plaintiff did not meet the threshold
diagnosis of mental retardation and therefore could not satisfy the criteria of Listings
12.05(B) or 12.05(C). As detailed above, the record does not contain any opinion
evidence suggesting that Plaintiff suffers from mental retardation nor does it contain
evidence of significantly subaverage intellectual functioning. Accordingly, the ALJ was
under no duty to order additional intelligence testing.”) (citing Hayes v. Comm'r of Soc.
Sec., 357 F. App'x 672, 675 (6th Cir. 2009)). In sum, the court finds that the ALJ clearly
articulated his analysis of Claimant’s IQ scores and properly concluded that Claimant’s
intellectual impairment did not meet Listing 12.05C.
B. The ALJ’s Analysis of Claimant’s Persistence and Judgment
Claimant’s second and third challenges to the Commissioner’s decision involve
the ALJ’s decision to disregard testimony by the VE that Claimant would be incapable
of maintaining substantial gainful employment if he required an extra break during the
work day, or had markedly deficient persistence. (ECF No. 11 at 6-7). Claimant points to
findings made by Ms. Tate during the consultative examination establishing Claimant’s
markedly deficient judgment and persistence. In light of these findings, Claimant argues
that “it is reasonable to assume that [he] would need at least one (1) extra break, and
probably more, during the workday.” (Id. at 7).
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In his written decision, the ALJ found that Claimant had moderate difficulty with
concentration, persistence, or pace. (Tr. at 15). To explain this finding, the ALJ noted
that Claimant “enjoys watching football on television, a 60-minute program, and keeps
track of the game off and on” and also “watches television throughout the day, whatever
is on at the time.” (Id.). In assessing Claimant’s RFC, the ALJ again referenced that
Claimant “could sit and watch a football game that runs 60 minutes or longer.” (Id. at
16). Therefore, the ALJ determined that Claimant could maintain concentration and
attention for two hours at a time. (Id. at 19).
When questioning the VE, the ALJ described a hypothetical individual that was
able to “maintain attention and concentration for two hour increments.” (Tr. at 68).
Assuming that level of attention and concentration, the VE testified that the hypothetical
individual could perform work found in significant numbers in the national economy.
(Id. at 68-69). The VE’s opinion changed to the negative, however, if the individual also
required an extra break during the work day. (Id. at 69). In addition, when Claimant’s
attorney asked the VE to assume that the hypothetical individual was “markedly
deficient in their [sic] persistence skills,” the VE testified that the hypothetical individual
would not be able to work. (Tr. at 70). Accordingly, when evaluating the ALJ’s decision,
key considerations include (1) whether the ALJ’s finding of a moderate, rather than
marked, deficit in persistence is supported by substantial evidence and (2) whether the
limitation in concentration and attention contained in the RFC finding adequately
accounts for Claimant’s reduced persistence.
While the ALJ provided some rationale for his finding that Claimant had only a
moderate limitation in persistence, the explanation given—that Claimant watched
television throughout the day and kept track of football games “off and on” that lasted
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60 minutes or longer—is so lacking in analysis that it is perplexing. Moreover,
Claimant’s ability to watch a 60-minute television program does not provide a clear
nexus to the ALJ’s determination that Claimant could maintain concentration and
attention for two hours at a time. See, e.g., Burrow v. Colvin, No. 1:15CV163, 2016 WL
1258840, at *5 (M.D.N.C. Mar. 28, 2016) (“There should be “a logical bridge[ ] between
the ALJ’s conclusion that Plaintiff suffered moderate concentration deficits” and the
limitations in the RFC.”) (citations omitted). Indeed, even assuming that Claimant paid
attention to the television “off and on” and for 60-minute programs, the ALJ never
explained how that ability translated into the capacity to maintain concentration and
attention, uninterrupted, for two-hour increments. Thus, the ALJ’s observations
regarding Claimant’s ability to watch television do not clearly reconcile with or provide
sufficient support for his finding that Claimant had moderately deficient persistence,
which could be functionally addressed by limiting the requisite periods of concentration
and attention to two-hour increments.
Furthermore, and very importantly, the ALJ did not distinguish, discount, reject,
or even mention Ms. Tate’s findings that Claimant had markedly deficient judgment and
persistence. (Tr. at 283, 285). Due the ALJ’s lack of explanation, the court is left to
speculate whether the ALJ considered Ms. Tate’s findings, and, if the ALJ rejected them,
why he did so. As previously stated, the ALJ discussed Claimant’s “significant lack of
effort” during the consultative examination and repeatedly referenced Ms. Tate’s
opinion that Claimant’s intellectual functioning test results were invalid. (Tr. at 13, 14,
18-19). However, the ALJ does not provide any discussion or explanation for rejecting
Ms. Tate’s other opinions. Ms. Tate raised doubts only about the validity of Claimant’s
IQ test results, not about her other clinical observations and findings. While the ALJ
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may have discounted Ms. Tate’s opinion that Claimant had markedly deficient judgment
and persistence based on Claimant’s lack of effort during testing, or for other reasons,
the ALJ never supplied a reason in his decision. As the ALJ failed to sufficiently
articulate his analysis, the court is precluded from meaningfully reviewing whether the
RFC finding and subsequent determination regarding Claimant’s ability to work are
supported by substantial evidence.
“Judicial review of a final decision regarding disability benefits under the Social
Security Act, 42 U.S.C. §§ 301 et seq. (the “Act”), is limited to determining whether the
findings of the Secretary are supported by substantial evidence and whether the correct
law was applied.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “Ultimately, it
is the duty of the administrative law judge reviewing a case, and not the responsibility
of the courts, to make findings of fact and to resolve conflicts in the evidence. Id. The
court cannot re-weigh the evidence and provide the analysis that the ALJ should have
performed in the first instance. See Fox v. Colvin, 632 F. App’x 750, 754 (4th Cir. 2015).
Therefore, this action must be remanded to the Commissioner for further analysis and
explanation regarding Claimant’s judgment and persistence and its effect on his ability
to engage in substantial gainful activity.
VIII. Conclusion
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision is not supported by substantial evidence. Therefore, the Court
will GRANT Plaintiff’s motion for judgment on the pleadings, to the extent that it
requests remand, (ECF No. 11); DENY Defendant’s motion for judgment on the
pleadings, (ECF No. 12); REVERSE the final decision of the Commissioner; REMAND
this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative
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proceedings consistent with this opinion; and DISMISS this action from the docket of
the Court. A Judgment Order will be entered accordingly.
The Clerk of this Court is directed to transmit copies of this Memorandum
Opinion to counsel of record.
ENTERED: January 6, 2017

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