WILLIAM T. LAWRENCE, District Judge.
Plaintiff Thomas E. Burton requests judicial review of the final decision of the Defendant, Nancy A. Berryhill, Acting Commissioner of the Social Security Administration ("Commissioner"), denying Burton's applications for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act") and Supplemental Security Income ("SSI") under Title XVI of the Act. The Court, having reviewed the record and the briefs of the parties, rules as follows.
Disability is defined as "the inability to engage in any substantial gainful activity by reason of a medically determinable mental or physical impairment which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of at least twelve months." 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must demonstrate that his physical or mental limitations prevent him from doing not only his previous work, but any other kind of gainful employment which exists in the national economy, considering his age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five-step sequential analysis. At step one, if the claimant is engaged in substantial gainful activity, he is not disabled, despite his medical condition and other factors. 20 C.F.R. § 404.1520(b).
In reviewing the ALJ's decision, the ALJ's findings of fact are conclusive and must be upheld by this court "so long as substantial evidence supports them and no error of law occurred." Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," id., and this Court may not reweigh the evidence or substitute its judgment for that of the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). In order to be affirmed, the ALJ must articulate his analysis of the evidence in his decision; while he "is not required to address every piece of evidence or testimony presented," he must "provide an accurate and logical bridge between the evidence and [his] conclusion that a claimant is not disabled." Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). "If a decision lacks evidentiary support or is so poorly articulated as to prevent meaningful review, a remand is required." Id. (citation omitted).
Burton first applied for DIB in August 2009, alleging that he had been disabled since August 24, 2009. After his application was denied initially and on reconsideration, Burton requested and was granted a hearing in front of an ALJ. On May 17, 2011, Mr. Burton appeared without counsel at an administrative hearing before ALJ John D. McNamee-Alemany. The hearing was continued so that Burton could obtain a representative. On October 4, 2011, Burton appeared with counsel and testified at an administrative hearing before ALJ JoAnn L. Anderson. Robert Lessne testified as a vocational expert. On October 28, 2011, ALJ Anderson decided that Mr. Burton was not disabled. The Appeals Council denied Burton's request for review. Burton appealed to this Court, and in March 2014, this Court reversed and remanded the Commissioner's final decision.
In December 2012, Burton reapplied for DIB and applied for SSI. He alleged that he had been disabled since October 29, 2011—the day after ALJ Anderson's decision. On July 26, 2014, the Appeals Council remanded Burton's 2009 claims to an ALJ for readjudication pursuant to the Court's March 2014 disposition. The Appeals Council also ordered the ALJ on remand to consolidate Mr. Burton's 2012 applications with his earlier applications. On March 5, 2015, Burton appeared with counsel and testified at an administrative hearing before ALJ James R. Norris. In addition, Darius Ghazi, M.D., testified as an orthopedist medical expert; Jack Thomas, Ph.D., testified as a psychological medical expert; and Gail Franklin testified as a vocational expert. The ALJ issued his decision denying Burton's claim on April 8, 2015. After the Appeals Council denied his request for review, Burton filed this timely appeal.
Burton was born on August 1, 1968, and was 41 years old on the alleged disability onset date. He is a high school graduate and is able to communicate in English, but he is illiterate.
At step one, the ALJ found that Burton had not engaged in substantial gainful activity since his August 24, 2009 alleged onset date. At step two, the ALJ determined that Burton had a "severe combination of impairments that includes cervical and lumbar degenerative disease, knee arthritis, residual left carpal tunnel syndrome, residuals from a left thumb laceration, myofascial pain syndrome, diabetes, high blood pressure, sleep disorder, obesity, and headaches as well as depression, anxiety and mild intellectual disability." R. at 563. The ALJ found that Burton did not have an impairment or combination of impairments that met or medically equaled the severity of any of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526).
At step four, the ALJ found that Burton had the residual functional capacity ("RFC") to perform
R. at 566. Given this RFC, the ALJ determined that Burton was unable to perform any of his past relevant work. At step five, the ALJ relied on Medical-Vocational Guidelines (Grid) Rule 202.20 as a framework with vocational-expert testimony to decide that Burton was not disabled. The ALJ found that Burton could perform two occupations in specified instances: housekeeper (DOT #323.687-014) and laundry worker (DOT #302.685-010). Accordingly, the ALJ concluded that Burton was not disabled as defined by the Act.
The relevant medical evidence of record is aptly set forth in Burton's brief (Dkt. No. 15) and need not be recited here. Specific facts are set forth in the discussion section below where relevant.
In his brief in support of his complaint, Burton advances two arguments: (1) the ALJ failed to comply with SSR 00-4p; and (2) the ALJ committed error when he concluded that Burton did not meet or equal Listing 12.05(C).
Burton argues that the ALJ erred because he failed to ask the vocational expert ("VE") whether her testimony in response to Burton's attorney's hypothetical question was consistent with the DOT. The ALJ first asked two hypothetical questions, and Burton acknowledges that the ALJ did fulfill his affirmative responsibility
R. at 610-11.
Both of these hypotheticals assumed a person who had a high school education. Burton's attorney then posed his own question that assumed the ALJ's first question but added an inability to read or write. The VE answered as follows:
R. at 612. As such, when the attorney's hypothetical included the additional limitation that the hypothetical individual could not read or write, the VE removed the plastics packager position as one that the individual could perform. Ultimately, the ALJ determined that Burton cannot read or write. He found that Burton could work as a housekeeper and as a laundry worker.
Burton argues that the ALJ's failure to specifically ask the VE whether her testimony in response to Burton's attorney's hypothetical question was consistent with the DOT was harmful reversible error. The Court disagrees. While an ALJ is required to obtain a reasonable explanation for an apparent conflict if the VE's testimony appears to conflict with the DOT, here no apparent conflict exists. The VE acknowledged that the DOT's lowest General Educational Development ("GED") language level is 1, and the attorney's hypothetical included an assumption that the hypothetical claimant was illiterate. The VE eliminated one possible job after the attorney's hypothetical question included the illiteracy restriction. Because there was no apparent inconsistency, the ALJ was not required to obtain any explanation. As such, no error occurred.
Burton argues that the ALJ erred by finding that Burton did not meet Listing 12.05(C), or at least by failing to adequately articulate his reasoning with regard to that issue. The Court agrees. The ALJ did not expressly address Listing 12.05(C) in his opinion, although that Listing was discussed at the hearing.
As the claimant, Burton "has the burden of showing that his impairments meet a listing, and he must show that his impairments satisfy all of the various criteria specified in the listing." Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006). Listing 12.05(C), in relevant part, states the following:
20 C.F.R. § 404, Subpt. P, App. 1, 12.05.
Further, the Code of Federal Regulations states that "[t]he structure of the listing for intellectual disability (12.05) is different from that of the other mental disorder listings," as it "contains an introductory paragraph with the diagnostic description for intellectual disability [and] . . . four set of criteria (paragraphs A through D). If . . . [the claimant's] impairment satisf[ies] the diagnostic description in the introductory paragraph and any one of the four sets of criteria, we will find that your impairment meets the listing." Id. Hence, a claimant must first satisfy Listing 12.05(C)'s prerequisite of "subaverage general intellectual functioning and deficits in adaptive function initially manifested during the developmental period . . .," and then satisfy one of the four criteria showing severity. Id.; see also Novy v. Astrue, 497 F.3d 708, 710 (7th Cir. 2007) (stating that "the key term in the introductory paragraph of section 12.05 of the regulation . . . is `deficits in adaptive functioning.'"). In short, to meet Listing 12.05(C), a claimant must show: (1) significantly subaverage intellectual functioning with deficits in adaptive functioning prior to age twenty-two; (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 work-related limitation of function. Novy v. Astrue, 497 F.3d 708, 709 (7th Cir. 2007).
The ALJ found that Burton suffered from severe impairments not related to his low intellectual functioning, thus meeting that portion of 12.05(C) requiring "a physical or other mental impairment imposing an additional and significant work-related limitation of function." The ALJ's step two analysis identified as severe Burton's combination of impairments that includes cervical and lumbar degenerative disease, knee arthritis, residual left carpal tunnel syndrome, residuals from a left thumb laceration, myofascial pain syndrome, diabetes, high blood pressure, sleep disorder, obesity, and headaches as well as depression, anxiety and mild intellectual disability. As "severe," these impairments by definition are ones that "significantly limit [ ] [Burton's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c).
Burton had two sets of IQ scores to consider when analyzing the second prong of Listing 12.05(C)—whether the claimant has a valid verbal, performance, or full scale IQ of 60 through 70. As laid out by the ALJ's decision:
R. at 572. Dr. Christopher diagnosed Burton with borderline intellectual functioning.
Dr. Amy Meyer conducted a consultative examination on January 7, 2013, and her report indicated that "no symptoms of mental retardation are present." R. at 572. Dr. Dawn Doup conducted a consultative examination on September 8, 2014, and diagnosed Burton with mild intellectual disability. The ALJ's decision found that Dr. Meyers' and Dr. Doup's assessments were entitled to considerable weight.
The ALJ provided the following analysis of the testimony of Dr. Jack Thomas, the pschological expert:
R. at 573-74.
The second prong of Listing 12.05(C) is satisfied if just one of the three types of IQ scores (verbal, performance, or full scale) falls within the range. The ALJ did not expressly find Burton's school testing invalid. As such, even though the ALJ discounted the scores obtained by Dr. Christopher's testing, Burton's school record verbal IQ of 69 satisfies the second requirement of Listing 12.05(C). As such, the finding that Burton did not have a valid IQ within the range of Listing 12.05(C) is not supported by substantial evidence.
Burton's low IQ score and additional impairments, however, are not enough by themselves to meet Listing 12.05(C). He must also demonstrate significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; that is, an onset of the impairment before age twenty-two. See Novy, 497 F.3d at 709.
The Seventh Circuit has stated that the term "deficits in adaptive functioning" in Listing 12.05C means an "inability to cope with the challenges of ordinary everyday life." Id. at 710 (citation omitted). While the ALJ discusses Burton's activities of daily living at the time of the hearing, he fails to address evidence of adaptive functioning that initially manifested before Burton was twenty-two. As such, the ALJ's step three finding was deficient. Burton met his burden of submitting evidence that reasonably raises the question of whether Listing 12.05 applies, and the ALJ was accordingly obligated to analyze that Listing. See Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006) ("[A]n ALJ should mention the specific listings he is considering and his failure to do so, if combined with a `perfunctory analysis,' may require a remand."). Remand is therefore required for the ALJ to properly assess whether Burton's symptoms meet or equal Listing 12.05.
For the reasons set forth above, the decision of the Commissioner is
SSR 00-4p.
