JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Thaddius A. Watkins ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying his applications for a period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on the grounds that he is not disabled.
Plaintiff filed applications for DIB and SSI on 19 July 2012, alleging in both applications a disability onset date of 14 July 2012. Transcript of Proceedings ("Tr.") 159. These applications were denied initially and upon reconsideration, and a request for hearing was timely filed. Tr. 159. On 14 January 2015, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff and a vocational expert ("VE") testified. Tr. 175-97. In a written decision dated 13 February 2015, the ALJ found that plaintiff was not disabled and therefore not entitled to DIB or SSI. Tr. 159-69. Plaintiff timely requested review by the Appeals Council. Tr. 154-55. On 14 May 2016, the Appeals Council denied admission of additional evidence submitted by plaintiff (Tr. 2, 8-137, 145-53) and denied the request for review (Tr. 1). At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. On 1 July 2016, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI). See Mot. for Leave to Proceed In Forma Pauperis ("IFP") (D.E. 2); Am. IFP Mot. (D.E. 7); Ord. Granting Am. IFP Mot. (D.E. 9); Compl. (D.E. 10).
The Social Security Act ("Act") defines disability 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); see id. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); see id. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
Plaintiff was 28 years old on the alleged onset date of disability and 30 years old on the date of the hearing. See, e.g., Tr. 167 ¶ 7; 179. The ALJ found that plaintiff is illiterate. Tr. 167 ¶ 8. Adopting the testimony of the VE (see Tr. 190), the ALJ also found that plaintiff had past relevant work as a construction worker (Tr. 167 ¶ 6).
The ALJ found that plaintiff met the insured status requirements under the Act through 31 December 2014. Tr. 161 ¶ 1. Applying the five-step analysis of 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ then found at step one that plaintiff had not engaged in substantial gainful activity since the alleged disability onset date. Tr. 161 ¶ 2. At step two, the ALJ found that plaintiff has the following medically determinable impairments that are severe within the meaning of the Regulations: multiple sclerosis, functional illiteracy, borderline intellectual functioning, and major depression. Tr. 161 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings, including Listing 12.05C for intellectual disability. Tr. 162 ¶ 4.
The ALJ next determined that plaintiff had the RFC to perform a limited range of light work:
Tr. 164 ¶ 5.
Based on her determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unable to perform his past relevant work. Tr. 167 ¶ 6. At step five, the ALJ accepted the testimony of the VE and found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of paper finishing machine operator (DOT #649.686-022), leather coater/hand finisher (DOT #584.687-010), and paper shredder (DOT #530.686-018). Tr. 167-68 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged disability onset date, 14 July 2012, through the date of the decision, 13 February 2015. Tr. 168 ¶ 11.
Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
Plaintiff contends that the ALJ's decision should be reversed or, alternatively, that this case should be remanded for a new hearing on the grounds that the ALJ erred by failing to properly evaluate whether plaintiff meets Listing 12.05C, and to identify and obtain a reasonable explanation for a conflict between the testimony of the VE and the DOT. The court will address each contention in turn.
The Listings consist of impairments, organized by major body systems, that are deemed sufficiently severe to prevent a person from doing any gainful activity. 20 C.F.R. §§ 404.1525(a), 416.925(a). Therefore, if a claimant's impairments meet a listing, that fact alone establishes that the claimant is disabled. Id. §§ 404.1520(d), 416.920(d). An impairment meets a listing if it satisfies all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Soc. Sec. R. 83-19, 1983 WL 31248, at *2 (1983). The burden of demonstrating that an impairment meets a listing rests on the claimant. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
Even if an impairment does not meet the listing criteria, it can still be deemed to satisfy the listing if the impairment medically equals the criteria. 20 C.F.R. §§ 404.1525(c)(5), 416.925(c)(5). To establish such medical equivalence, a claimant must present medical findings equal in severity to all the criteria for that listing. Sullivan, 493 U.S. at 531; 20 C.F.R. §§ 404.1526(a), 416.926(a). "A claimant cannot qualify for benefits under the `equivalence' step by showing that the overall functional impact of his unlisted impairment or combination of impairments is as severe as that of a listed impairment." Sullivan, 493 U.S. at 531.
To satisfy Listing 12.05C for intellectual disability,
Adaptive functioning "refers to how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting." DSM-IV-TR 42. Areas in which deficits in adaptive functioning may exist include "communication, self-care, home living, social/inter-personal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety." Jackson v. Astrue, 467 F. App'x 214, 218 (4th Cir. 2012) (citing Atkins v. Virginia, 536 U.S. 304, 309 n.3 (2002) and reciting areas of adaptive functioning listed in DSM-IV-TR 49). By specifying "deficits" in adaptive functioning, the diagnostic description requires that there be at least two. Listing 12.05 (emphasis added); see Hightower v. Colvin, Civ. Act. No. 1:14-cv-02761-RBH, 2015 WL 5008713, at *7 (D.S.C. 20 Aug. 2015). This requirement is consistent with the definition of mental retardation in the DSM-IV-TR, which requires deficits or impairments in "at least two" of the foregoing areas. DSM-IV-TR 49.
In order to meet Listing 12.05C, in addition to satisfying the diagnostic description requirement, a claimant must meet the two requirements relating to the severity of the intellectual disability in Paragraph C. Specifically, a claimant must demonstrate both a "valid verbal, performance, or full scale IQ of 60 through 70" (i.e., "the IQ requirement") and "a physical or other mental impairment imposing an additional and significant work-related limitation of function" (i.e., "the additional impairment requirement"). Listing 12.05C.
The ALJ's finding regarding Listing 12.05C reads as follows:
Tr. 163 ¶ 4. The exhibit cited by the ALJ is the 12 September 2012 consultative examination of plaintiff performed by psychologist Reuben J. Silver, Ph.D. (Tr. 464-66).
The ALJ summarized Dr. Silver's report as follows:
Tr. 166 ¶ 5. The ALJ gave Dr. Silver's opinions significant weight: "The undersigned has given this assessment significant weight, as it is consistent with the remaining evidence of record and with the above [RFC]." Tr. 166 ¶ 5.
Plaintiff contends that the ALJ erred, in part, by not finding that plaintiff met the IQ requirement of Listing 12.05C based on the verbal IQ score of 68 Dr. Silver obtained for plaintiff. See Tr. 465. Dr. Silver's report, however, makes clear that he did not consider that score to be a valid indicator of plaintiff's intellectual capacity. Instead, as the ALJ's summary of Dr. Silver's report indicates, Dr. Silver found plaintiff to be functioning at the borderline level, but in some areas at close to average. By citing Dr. Silver's report immediately after his Listing 12.05C finding and attributing "significant weight" to Dr. Silver's assessment, the ALJ was clearly adopting Dr. Silver's opinion regarding the validity of the verbal score of 68.
The ALJ's rejection of the verbal score of 68 was proper. "[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." Hancock v. Asture, 667 F.3d 470, 474 (4th Cir. 2012). An ALJ may reject such an IQ score if there is sufficient evidence contradicting it. Id. at 475. Here, such evidence includes Dr. Silver's report. See id. (upholding ALJ's rejection of an IQ score based, in part, on notes of a treating physician).
In addition, there is "the extent of the claimant's daily activities," which the ALJ cited as a basis for rejecting plaintiff's allegations of disability. Tr. 167 ¶ 5; see Hancock, 667 F.3d at 475 (upholding ALJ's rejection of an IQ score based, in part, on the claimant's actual functioning). The ALJ described these activities as follows:
Tr. 162 ¶ 4.
Notably, in applying the Paragraph D criteria of Listing 12.05,
In support of his contention regarding plaintiff's verbal IQ score of 68, plaintiff cites to Leftwich v. Colvin, No. 1:13CV00414, 2016 WL 126753, at *8 (M.D.N.C. 11 Jan. 2016), mem. op. & recomm. adopted, J. (D.E. 18) (16 Feb. 2016). That case, however, in inapposite. There, the court found it error for the ALJ to have relied on a report by a consulting psychologist or psychiatrist finding the claimant to be at the borderline functioning level based on an IQ score that was not the lowest among the scores obtained. 2016 WL 126753, at *8. Here, however, Dr. Silver did not base his diagnosis on a particular score, but on consideration of all the scores and additional information. See Tr. 465-66.
Further, the examiner in Leftwich there found the scores obtained to be valid. 2016 WL 126753, at *5. Dr. Silver made no such finding. Indeed, to the contrary, his report impeaches the score of 68 obtained. See Tr. 465-66.
Plaintiff also challenges the ALJ's apparent determination that he failed to satisfy the additional limitation requirement of Listing 12.05C. The Commissioner concedes that plaintiff does meet this requirement. The issue is moot, however, because, as discussed, to meet Listing 12.05C a claimant must meet all three criteria of the listing—the diagnostic description requirement, IQ requirement, and additional limitation requirement. Therefore, the ALJ's proper determination that plaintiff did not meet the IQ requirement precludes him from meeting the listing irrespective of whether plaintiff meets the additional limitation requirement. Accordingly, even if the ALJ is deemed to have erred with respect to the additional limitation requirement,
The court concludes that plaintiff's challenge to the ALJ's determination on Listing 12.05C fails. The court accordingly rejects it.
Social Security Ruling 00-4p requires that an ALJ inquire about and resolve in his decision conflicts between a VE's testimony and the DOT:
Soc. Sec. R. 00-4p, 2000 WL 1898704, at *2, 4 (4 Dec. 2000).
As noted, the VE testified that plaintiff could perform jobs in the occupations of paper finishing machine operator (DOT #649.686-022), leather coater/hand finisher (DOT #584.687-010), and paper shredder (DOT #530.686-018). Tr. 168 ¶ 10. The hypothetical that elicited this testimony included the limitation that the individual was "functionally illiterate." Tr. 191. The Regulations define "illiteracy" as follows:
Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.
20 C.F.R. §§ 404.1564(b)(1), 416.964(b)(1). This limitation in the hypothetical was consistent with the ALJ's inclusion in her RFC determination of the specification that plaintiff is functionally illiterate. Tr. 164 ¶ 5 ("As the claimant is functionally illiterate. . . ."). The ALJ had previously found functional illiteracy to be a severe impairment of plaintiff's. Tr. 161 ¶ 3. The ALJ asked the VE whether his testimony was consistent with the DOT, and she stated that it was. Tr. 192.
Plaintiff argues that the VE's testimony was actually not consistent with the DOT. His argument is based on the fact that each of the occupations the VE found the hypothetical individual capable of performing has a language development level of 1. This level includes the reading abilities to: "Recognize meaning of 2,500 (two- or three-syllable) words. Read at rate of 95-120 words per minute. Compare similarities and differences between words and between series of numbers." DOT, app. C, § III, "01 Language Development, Reading." Thus, the limitation of functional illiteracy purportedly conflicts with the langauge development level required for the occupations the VE found the hypothetical individual capable of performing. No such conflict was, of course, indentified during the hearing or explained in the ALJ's decision.
Plaintiff's contention is baseless. One reason is that the "DOT lists maximum requirements of occupations as generally performed." Soc. Sec. R. 00-4p, 2000 WL 1898704, at *3. Thus, language development level 1 encompasses illiteracy up to the specified abilities in word meaning recognition, reading rate, and making comparisons. Common sense dictates this conclusion. Language development level 1 is the lowest language development level. Plaintiff's interpretation that language development level 1 requires reading at the ability levels specified would mean that no jobs would be available to illiterate individuals.
Indeed, the Regulations expressly recognize that jobs are available to illiterate individuals:
20 C.F.R. pt. 404, subpt. P, app. 2, Medical-Vocational Guidelines,
Further, each of the occupations identified by the VE has a specific vocational preparation ("SVP") level of 1. SVP refers to "the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation." DOT, app. C, § II, "Specific Vocational Preparation (SVP)." SVP level 1 requires a "[s]hort demonstration only." Id. That SVP level is consistent with illiteracy.
The tasks comprising each of the occupations as described in the DOT definitions are also consistent with illiteracy. For the occupation of paper finishing machine operator, the tasks are: "Feeds preformed bodies of paper cups into machine that automatically inserts plugs into lower ends to form bottoms, rolls tops to finish edges of cups, and ejects completed cups." DOT #649.686-022. For leather coater/hand finisher, the tasks are: "Spreads premixed solutions, such as dope, grease, or lacquer, on leather, using applicator, to finish or waterproof leather. Positions coated leather on conveyor belt to move leather through drying oven." DOT #584.687-010. And for paper shredder, the tasks are: "Feeds waste paper into machine that cuts paper into small pieces for use as building insulation. Fills sack with cut paper." DOT #530.686-018.
The court concludes that the VE's testimony was consistent with the DOT. It accordingly rejects plaintiff's contention of an alleged inconsistency and therefore failure by the ALJ to resolve an inconsistency.
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's motion (D.E. 23) for judgment on the pleadings be ALLOWED, plaintiff's motion (D.E. 21) for judgment on the pleadings be DENIED, and the Commissioner's final decision be AFFIRMED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 15 August 2017 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
Any response to objections shall be filed withSO ORDERED. in 14 days after the filing of objections.
This 1st day of August 2017.
Listing 12.05C & D (formatting altered from original). Effective 3 September 2013, the Social Security Administration substituted the term "intellectual disability" for the term "mental retardation" in the Regulations, including the Listings. See 78 Fed. Reg. 46,499-01, 2013 WL 3936340 (Soc. Sec. Admin. 1 Aug. 2013).
