MICHAEL E. HEGARTY, Magistrate Judge.
Plaintiff Ronnica Bell appeals from the Social Security Administration ("SSA") Commissioner's final decision denying her application for disability insurance benefits ("DIB"), filed pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Jurisdiction is proper under 42 U.S.C. § 405(g). The parties have not requested oral argument, and the Court finds it would not materially assist the Court in its determination of this appeal. After consideration of the parties' briefs and the administrative record, the Court
Cynthia McKinzie protectively filed an application for benefits on behalf of her daughter ("Plaintiff"), who was age 16 at the time of application. [AR 52-60] Plaintiff, the age of majority at all times relevant to her appeal [see AR 2], now seeks judicial review of the Commissioner's decision denying the application for DIB benefits, which was filed on May 30, 2012, alleging a learning disability, with an onset date of September 1, 2005. [AR 116, 139] After the application was initially denied on November 1, 2012 [AR 52-60], an Administrative Law Judge ("ALJ") held a hearing on October 21, 2013, upon the Plaintiff's request [AR 35-51]. On October 30, 2013, the ALJ issued a written, unfavorable decision, finding Plaintiff had not been disabled from the alleged date of the onset of disability through the date the application was filed. [AR 16-34] On February 19, 2015, the SSA Appeals Council subsequently denied Plaintiff's administrative request for review of the ALJ's determination, making the SSA Commissioner's denial final for the purpose of judicial review. [AR 3-5] See 20 C.F.R. § 404.981. Plaintiff timely filed her Complaint with this Court seeking review of the Commissioner's final decision. [Docket #1]
Plaintiff was born on March 26, 1996, and was in elementary school on the alleged onset date, claiming a learning disability. [AR 22] Intelligence testing from 2008 indicated Plaintiff was functioning in the average range of intelligence. [AR 199-200] Plaintiff's educational records show she had an Individualized Education Program ("IEP") meeting at her school, Hinkley High School, on February 8, 2012, when she was 16 years old and in tenth grade. [AR 145] Plaintiff was then enrolled in a combination of general and special education classes. [AR 145-57, 165-85, 219-30] She struggled particularly in the area of math but was on track to graduate in May 2014 and wanted to become a nurse. [AR 148-50]
In a teacher questionnaire dated September 19, 2012, the Hinkley High School "staffing chair," Diane King, concluded Plaintiff was functioning at a level consistent with same-aged, unimpaired students in regular education in many ways, but that she had a slight to obvious degree of limitation in the domain of acquiring and using information. [AR 201-08] Plaintiff's IEP was evaluated again on January 31, 2013. [AR 219] She was left in the same educational placement, with a combination of general and special education problems, the latter of which to help her with math and with some reading and writing issues. [AR 221] The evaluators noted that Plaintiff's learning disability affected:
[AR 222]
On October 18, 2012, at the request of the SSA, Plaintiff underwent a consultative evaluation with Meredith Campbell, Psy.D. [AR 236] Dr. Campbell's report indicates Plaintiff told her that the main problem keeping her from succeeding is "difficulties with understanding and solving math problems." [AR 236] In eleventh grade at the time of the evaluation, Plaintiff noted she was taking special education classes in math and reading, but her favorite class was English, and she again said she wanted to become a nurse. [AR 237] On Dr. Campbell's testing, Plaintiff obtained a full-scale IQ score of 59; however, the doctor stated that the full-scale IQ score was not indicative of Plaintiff's general intellectual functioning and, instead, found more reliable her score of 65 on the general ability index. [AR 239-40] Specifically, Dr. Campbell noted:
[AR 239] Subtests indicated Plaintiff has a learning disability, in agreement with her previous diagnosis. [Id.] Dr. Campbell concluded Plaintiff would have "mild to moderate limitations being able to understand, remember, and carry out short simple instructions, and moderate to marked limitations" being able to deal with more complex instructions, which Plaintiff would handle better if given to her verbally. [AR 240] The doctor also noted Plaintiff "does appear to have good organized habits and knows when to ask for help," although Plaintiff also "exhibits frustration and mild depression" when she "notices her deficits." [AR 240]
The ALJ held a hearing on October 21, 2013, at which her attorney had the opportunity to question her. [AR 35-51] The attorney acknowledged that the entirety of Plaintiff's claim is based on her educational records. [AR 38-39] Plaintiff testified she attends Hinkley High School and takes classes at Pickens Technical College in the field of nursing. [AR 40-41] She testified she is good at English but struggles with math and has "a low-C average." [AR 41-43] The ALJ asked a variety of questions about Plaintiff's academic and social engagement at school. [AR 37-47] Plaintiff testified that she gets along well with students other students, has friends, has not gotten in trouble, handles transportation (walking or taking the bus) to and from school, helps with chores, and dresses and cares for herself. [AR 42-46]
In response to her attorney's questions, Plaintiff said she is shy and "stays to [herself] a lot," although she goes to the movies every other weekend with friends. [AR47-48] She noted she sometimes needs extra help from her teachers on assignments, saying "I may need the teacher to go over it with me a couple of more times." [AR 48] The attorney asked her about English class, where Plaintiff said she reads alongside a teacher: "[T]he teacher may read it to me, or ask me to like, read a paragraph, and yeah. He just reads along with me." [AR 49] The teacher then would ask Plaintiff questions about what she just read. [Id.] Plaintiff said she usually is able to answer those questions, but "most of the time" has to "go back in the text to find the answer." [Id.] Plaintiff also testified she has trouble understanding vocabulary. [AR 49] The ALJ followed up with a few final questions, asking Plaintiff what she likes to do at home, to which the Plaintiff replied: "I may get on the computer, do research or, you know, I may finish up my homework." She said she has a laptop and texts people. [AR 50] No experts testified at the hearing. [AR 35-51]
The ALJ issued an unfavorable decision on November 14, 2013. [AR 29-45]
SSA defines disability for persons under the age of 18 as "a medically determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations, and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(C)(I). Excluded from coverage is "any individual under the age of 18 who engages in substantial gainful activity." 42 U.S.C. § 1382c(a)(3)(C)(ii). Social Security Regulations provide a three-step, sequential process to evaluate a claim for Child's SSI Benefits pursuant to Title XVI of the SSA. See 20 C.F.R. § 416.924. First, the ALJ considers whether the child is engaged in substantial gainful activity. 20 C.F.R. § 416.924(b). Second, the ALJ considers whether the child has a medically determinable impairment that is severe, defined as an impairment that causes "more than minimal functional limitations." Id. § 416.924(c). Finally, if the ALJ finds a severe impairment, he or she must then consider whether the impairment medically or functionally equals a disability listed in the regulatory Listing of Impairments. Id. § 416.924(c)-(d).
A child's impairment "causes marked and severe functional limitations if it meets or medically equals the severity of a set of criteria for an impairment in the Listings of Impairments. Id. at § 416.924(d). A child's impairment functionally equals an impairment if it is "of listing-level severity . . . i.e. it must result in `marked' limitations in two domains of functioning or an `extreme' limitation in one domain." Id. § 416.926a(b)(1). If an impairment is found to qualify as medically or functionally equivalent to a listed disability, and if the 12-month durational requirement is satisfied, the child will be deemed disabled. 20 C.F.R. § 416.924(d)(1); see also Briggs ex rel. Briggs v. Massanari, 248 F.3d 1235, 1237-38 (10th Cir. 2001).
Analysis of functionality considers how a child functions in six area, called "domains," and described as "broad areas of functioning intended to capture all of what a child can or cannot do." 20 C.F.R. § 416.926a(b)(1). Those domains are as follows:
20 C.F.R. § 416.926a(b)(1). An ALJ makes a finding of disability if the limitation is "marked," defined as when the impairment "interferes seriously with [the claimant's] ability to independently initiate, sustain, or complete activities." 20 C.F.R. § 416.926a(e)(2)(I).
This Court's review is limited to whether the final decision is supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Williamson v. Barnhart, 350 F.3d 1097, 1098 (10th Cir. 2003); see also White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Thus, the function of the Court's review is "to determine whether the findings of fact . . . are based upon substantial evidence and inferences reasonably drawn therefrom. If they are so supported, they are conclusive upon the reviewing court and may not be disturbed." Trujillo v. Richardson, 429 F.2d 1149, 1150 (10th Cir. 1970); see also Bradley v. Califano, 573 F.2d 28, 31 (10th Cir. 1978). "Substantial evidence is more than a scintilla, but less than a preponderance; it is such evidence that a reasonable mind might accept to support the conclusion." Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Court may not re-weigh the evidence nor substitute its judgment for that of the ALJ. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (citing Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)). However, reversal may be appropriate when the ALJ either applies an incorrect legal standard or fails to demonstrate reliance on the correct legal standards. See Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996).
At Step One of the three-step sequential evaluation for children, the ALJ first found Plaintiff had not engaged in substantial gainful activity at any time relevant to the ALJ's decision. [AR 22] At Step Two, the ALJ determined Plaintiff has one severe impairment: a learning disability. [Id.] At Step Three, the ALJ concluded: "Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 416.924, 416.925 and 416.926)." [AR 22] The ALJ then analyzed whether Plaintiff has an impairment or combination of impairments that functionally equals the Listings of Impairments, finding she does not. [Id.]
In arriving at this decision, the ALJ reviewed the six functional domains, noting that she "has considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." [Id.] She indicated that in considering Plaintiff's symptoms, she followed the required two-step process: (1) determining whether there is an underlying medically determinable impairment that can be shown by medically acceptable clinical and laboratory diagnostic techniques and reasonably expect to produce Plaintiff's symptoms; and (2) evaluating the intensity, persistence, and limiting effects of those symptoms to determine the extent to which they limit the ability to do basic work activities. [Id.] When symptoms are not supported by objective medical evidence, the ALJ wrote that she must make a finding on the credibility of the statements based on a review of the entire case record. [AR 23]
The ALJ noted she gave probative weight to the testimony of Plaintiff's mother and the information provided on the initial DIB application, completed by the mother, as both were "generally consistent with the evidence of record." [Id.] However, the mother's testimony was not considered an acceptable medical source as, pursuant to the SSR, she was not medically trained and did not see Plaintiff in any professional capacity. [Id. (citing 20 C.F.R. § 404.1513(d), 20 C.F.R. § 404.913(d), and SSR 06-3p)] The ALJ took note of the mother's opinions as follows:
[AR 23] The ALJ then reviewed Plaintiff's testimony at the hearing, summarizing as follows:
[Id.] The ALJ then concluded that after having considered the evidence of record, she found Plaintiff's learning disability could reasonably be expected to produce the alleged symptoms; however, she did not find the statements regarding the intensity, persistence, and limited effects of those symptoms to be credible based on a review of the record. [Id.]
Next, the ALJ reviewed the record, starting with Plaintiff's IEP evaluation report from Aurora Public Schools, quoting special education teacher Diane King's summary in the report:
[AR 23-24] The ALJ gave this and one other IEP report probative weight "as they are generally consistent with the evidence of record." [AR 25] However, the ALJ gave little weight to a statement on one IEP that indicated Plaintiff's "academic deficits may impact her ability to train in a competitive setting without accommodations," as the ALJ found that portion of the IEP did not definitely identify any specific limitations regarding the six domains of functioning. [Id.]
The ALJ gave great weight to two reports King completed in September 2012 regarding Plaintiff's abilities. [AR 24] The first, a Speech and Language Questionnaire, said there were no concerns regarding Plaintiff's language abilities, indicating Plaintiff could follow single and multi-step instructions. [Id.] The second, a Teacher Questionnaire, said Plaintiff had a seventh-grade reading level, a fifth-grade math level, and a sixth-grade written language level. [Id.] In the latter document, the ALJ wrote of King's opinion that Plaintiff had slight to obvious problems with acquiring and using information, but she had no problems in any of the other of the domains of functionality. [Id. (discussing the domains described above and used in 20 C.F. R. § 416.926a(b)(1)]
The ALJ also gave great weight to the only medical evidence in Plaintiff's record, that of Dr. Campbell, whose analysis the ALJ summarized as follows:
[AR 25] The ALJ noted that Dr. Campbell based her opinion on her own objective findings and observations. [Id.]
The ALJ then analyzed each of the six domains of function, concluding as follows:
[AR 25-30 (general SSR language for each domain omitted)]
Thus, the ALJ concluded Plaintiff "has not been disabled since May 30, 2012, the date the application was filed." [AR 31] Plaintiff sought review of the ALJ's decision by the Appeals Council on November 2, 2013 [AR 15], which was denied on February 19, 2015 [AR 3-6]. Plaintiff filed her Complaint in this matter on April 20, 2015. [Docket #1]
On appeal, Plaintiff asserts the ALJ erred in (1) failing to find Plaintiff's mental impairment met or equaled the severity of the relevant listing; (2) not basing her opinions about the six domains on substantial evidence; and (3) not making findings of fact based on substantial evidence regarding Plaintiff's ability to acquire and use information. Opening Brief, docket #20 at 2.
Plaintiff argues her full-scale IQ scale of 59 on the Wechsler Adult Intelligence Scale test administered by Dr. Campbell conclusively shows Plaintiff is disabled. Id. at 16-18. She thus asserts the ALJ was obligated to find Plaintiff's mental impairment met the listing of 20 C.F.R. 404, Subpt. P, App. 1, § 112.05 ("Listing 112.05"). Id. at 17. Furthermore, Plaintiff points out that the ALJ made no findings specifically regarding §112.05C, nor did she explain her reasons for not applying it. Id. at 18. Defendant counters that an IQ score standing alone is insufficient basis on which to award benefits, as Plaintiff had to first meet the diagnostic description of the listing to demonstrate per se disability. Response, docket #21 at 6. Defendant further argues that any error by the ALJ in not providing analysis regarding the IQ scores is harmless, as "the evidence in this case overwhelming establishes that [Plaintiff] did not meet or medically equal the requirements of Listing 112.05C."
SSA's Listings of Impairments contains sections specifically related to children and intellectual disabilities. 20 C.F.R. 404, Subpt. P, App. 1, §112.05. The relevant section, Listing 112.05, reads as follows:
Id. A claimant must also meet the preamble definition regarding mental disorders generally. Id. § 112.00. There, the Regulations provide subsections A-F, defining the requisite severity of the disability, which the Court reproduces at length (omitting portions specific to age groups not relevant to Plaintiff) to explain the unique handling of a case involving a child:
112.00 Mental Disorders
Id.
Here, the ALJ found Plaintiff has a "severe" learning disability and concluded Plaintiff's impairment did not meet or medically equal the requirements of a listing impairment, noting she considered Listings 112.02 and 112.05.
Defendant concedes the ALJ did not specifically discuss Plaintiff's IQ score of 59 yet argues this is harmless error, because "the evidence in this case overwhelmingly establishes that [Plaintiff] did not meet or medically equal the requirements" in the Listings. Response, docket #21 at 5-6. Defendant specifically asserts that the diagnostic description of Listing 112.00 requires evidence of intellectual disability characterized by "significant subaverage general intellectual functioning with deficits in adaptive functioning," with subsections A-F defining the requisite severity, and Listing 112.05C requiring a valid IQ score of 59 or less. Id. at 6. Because the ALJ explained that she was not persuaded by the evidence of record and found Plaintiff did not generally meet the Listings, Defendant essentially asserts the ALJ's opinion is thorough enough despite its lack of analysis regarding the IQ score. Id.
Defendant further correctly points out that there was a wide discrepancy in the results of Plaintiff's IQ test, administered by Dr. Campbell in 2012. Even Dr. Campbell indicated some distrust of the numbers, stating that the full-scale IQ score of 59 could not "be interpreted as a unitary ability," because there was a large difference between the sub-test scores. [AR 239] Dr. Campbell thus concluded that Plaintiff's general ability index of 65 was a better indicator of her overall functioning that the lower full-scale score of 59. [Id.] Defendant concludes that "[t]hese comments by Dr. Campbell significantly undercut [Plaintiff's] claim that she must be found disabled because of a single test score." Response at 7.
The Court agrees with Defendant that while Dr. Campbell explained this discrepancy in scores in her report, the ALJ did not. The ALJ in fact did not mention the scores at all, noting only as follows:
[AR 25] While the ALJ's opinion may have intended to incorporate Dr. Campbell's analysis of the discrepancy between Plaintiff's scores, the ALJ's failure to specifically address the scores and their relation to the Regulations is error. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (even though an ALJ is not required to discuss every piece of evidence, it must be clear that the ALJ considered all of the evidence). "[I]n addition to discussing the evidence supporting [her] decision, the ALJ also must discuss the uncontroverted evidence [she] chooses not to rely upon, as well as significantly probative evidence [she] rejects." Id. at 1010. Importantly, Listing 112.00D9 specifically provides that "[i]n cases where more than one IQ is customarily derived from the test administered, e.g., where verbal, performance, and full-scale IQs are provided in the Wechsler series, the lowest of these is used in conjunction with Listing 112.05." 20 C.F.R. 404, Subpt. P, App. 1, §112.00. Thus, the lowest IQ score — clearly significantly probative evidence — needed to be discussed in this case.
Further, while the ALJ here did in passing mention Listing 112.02 and 112.05, the language appeared only in a boilerplate section of the opinion, not tied to anything specific to the analysis of this case. [AR 22] Boilerplate language, unconnected to any evidence in the record, will not suffice to support an ALJ's conclusion. Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004). The ALJ failed to discuss the Listings and the important interplay between Listing 112.05C and 112.00's A-F language, which is error as that analysis goes to the heart of this case.
Having found the ALJ erred, the Court, according to Plaintiff, should simply award benefits based on Listing 112.05C's IQ score of 59, which Plaintiff meets. However, the Court agrees with Defendant that Listing 112.05 does not provide a per se award of benefits to a claimant without that claimant also meeting one of the severity prongs. See Montano v. Astrue, No. 11-cv-02303-WJM, 2012 WL 6701804, at *2 (D. Colo. Dec. 26, 2012); see also King v. Astrue, No. 10-cv-01530-LTB, 2011 WL 3471015, at *4 (D. Colo. Aug. 8, 2011) (to meet listing requirements, the plaintiff "had to show that her impairment met or equaled the capsule definition of mental retardation; that he had a valid IQ score of 70 or below; and that he had another severe impairment.").
Thus, the Court must remand the case for further analysis by the ALJ, which must include specific discussion of the IQ scores and their discrepancy, as well as an analysis of the severity prongs.
The Court "address[es] only so much of Plaintiff's arguments as are sufficient to require reversal." See Cross v. Colvin, 25 F.Supp.3d 1345, 2014 WL 969688, at *2 n.1 (D. Colo. 2014). The Court expresses no opinion as to the Plaintiff's remaining arguments and neither party should take the Court's silence as implied approval or disapproval of the arguments. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) ("We will not reach the remaining issues raised by appellant because they may be affected by the [ALJ's] treatment of the case on remand."). The Court also does not suggest a result that should be reached on remand; rather, the Court encourages parties and the ALJ to consider fully and anew the evidence and all issues raised. See Kepler v. Chater, 68 F.3d 387, 391-92 (10th Cir. 1995) ("We do not dictate any result [by remanding the case]. Our remand simply assures that the correct legal standards are invoked in reaching a decision based on the facts of the case.") (citations and quotation marks omitted).
In sum, the Court concludes the ALJ in this case erred by failing to analyze probative record evidence of Plaintiff's IQ scores and by not explaining her reasoning for rejecting the score related to Listing 112.05C. The Court thus finds the final decision is not supported by substantial evidence in the record as a whole. Therefore, the ALJ decision that Plaintiff Ronnica Bell was not disabled is
