ALAN N. BLOCH, District Judge.
AND NOW, this 30th day of March, 2017, upon consideration of Defendant's Motion for Summary Judgment (Doc. No. 10) filed in the above-captioned matter on June 2, 2016,
IT IS HEREBY ORDERED that said Motion is DENIED.
AND, further, upon consideration of Plaintiff's Motion for Summary Judgment (Doc. No. 8) filed in the above-captioned matter on April 19, 2016,
IT IS HEREBY ORDERED that said Motion is GRANTED IN PART and DENIED IN PART. Specifically, Plaintiff's Motion is granted to the extent that it seeks a remand to the Commissioner of Social Security ("Commissioner") for further evaluation as set forth below, and denied in all other respects. Accordingly, this matter is hereby remanded to the Commissioner for further evaluation under sentence four of 42 U.S.C. § 405(g) in light of this Order.
On January 18, 2013, Plaintiff Jodie Lynn Davis protectively filed a claim for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. (R. 156-59; 160-68). Specifically, Plaintiff claimed that she became disabled on May 13, 2010, due to depression, anxiety, a cognitive disorder, and asthma. (R. 160; 181). After being denied benefits initially, Plaintiff sought, and obtained, a hearing before an Administrative Law Judge ("ALJ"), which was held on August 4, 2014. (R. 32-79). In a decision dated September 19, 2014, the ALJ denied Plaintiff's request for benefits. (R. 11-27). On December 24, 2015, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (R. 1-3). Plaintiff filed a timely appeal with this Court, and the parties have filed cross-motions for summary judgment.
Judicial review of a social security case is based upon the pleadings and the transcript of the record.
"Substantial evidence" is defined as "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate'" to support a conclusion.
A disability is established when the claimant can demonstrate some medically determinable basis for an impairment that prevents him or her from engaging in any substantial gainful activity for a statutory twelve-month period.
The Social Security Administration ("SSA") has promulgated regulations incorporating a five-step sequential evaluation process for determining whether a claimant is under a disability as defined by the Act.
Step Four requires the ALJ to consider whether the claimant retains the residual functional capacity ("RFC") to perform his or her past relevant work,
At this stage, the burden of production shifts to the Commissioner, who must demonstrate that the claimant is capable of performing other available work in the national economy in order to deny a claim of disability.
In the present case, the ALJ applied the sequential evaluation process in reviewing Plaintiff's claim for benefits. At Step One, the ALJ found that Plaintiff had not been engaged in substantial gainful activity since January 18, 2013, her application date. (R. 13). The ALJ also found that Plaintiff met the second requirement of the process insofar as she had several severe impairments, specifically, borderline intellectual functioning, depression, anxiety, obesity, and asthma. (R. 13-14). After addressing whether Plaintiff's impairments met or medically equaled the criteria of several listings, including Listing 12.05, the ALJ concluded that Plaintiff's impairments did not meet any of the listings that would satisfy Step Three. (R. 14-17).
The ALJ next found that Plaintiff retains the RFC to perform medium work as defined in 20 C.F.R. § 416.967(c) except that the work should have no exposure to concentration of extremes of cold, heat, wetness, humidity and pulmonary irritants such as gasses, fumes, dust and odors; the work is limited to unskilled entry work that does not require handling money as a part of the job; the work should have a Language level as found in the DOT of not more than 3 or equivalent to no more than a 4th grade reading level; Plaintiff requires a stable work environment where the work place and the work process remain generally the same from day-to-day and where the job site is fixed; in addition, the supervisor would direct the employee's work activity so that the employee does not have to prioritize or use judgment to determine order; the decision-making consists of several concrete variables in or from standardized situations; there should be no precision work; and there should be no face-to-face contact with the public or work as a part of a team. (R. 17).
At Step Four, the ALJ found that Plaintiff had no past relevant work, so she proceeded to Step Five. (R. 25). The ALJ then used a vocational expert ("VE") to determine whether or not a significant number of jobs existed in the national economy that Plaintiff can perform. The VE testified that, based on Plaintiff's age, education, past relevant work experience, and RFC, Plaintiff could perform jobs that exist in significant numbers in the national economy, such as packer and sorter. (R. 26; 72-73). Accordingly, the ALJ found that Plaintiff has not been under a disability as defined by the Act since her application date of January 18, 2013. (R. 27).
Plaintiff's primary challenge
While Plaintiff's argument that the ALJ did not set forth adequate reasons for rejecting the validity of the IQ score assessed by Dr. Groves has merit, the Court does not agree that the record is sufficient to establish that ipso facto she met Listing 12.05 as it existed at the time of the ALJ's decision, as the ALJ also determined that Plaintiff did not meet the introductory criteria of that listing, which required "deficits in adaptive functioning initially manifested . . . before age 22." However, because the ALJ did not adequately explain the methodology she utilized in determining that Plaintiff did not meet the introductory criteria of the pre-revision Listing 12.05, this Court cannot determine whether that finding is supported by substantial evidence, and this case will be remanded to the Commissioner for further analysis.
At the time of the ALJ's decision, Listing 12.05 provided in pertinent part:
20 C.F.R., Pt. 404, Subpt. P, Appx. 1, § 12.05.
In this case, the record shows that at age 28, Plaintiff was administered a Wechsler Adult Intelligence Scale — Fourth Edition IQ test by Dr. Groves in August of 2011, which reflected a Verbal Comprehension score of 78, a Perceptual Reasoning score of 73 and a Full Scale IQ score of 67. (R. 252). If valid, Plaintiff's Full Scale IQ score of 67 would have satisfied the criteria of Listing 12.05C in effect at the time of the ALJ's decision.
While acknowledging that Plaintiff's Full Scale IQ score of 67 was "extremely low" and that it placed her in the range of mild mental retardation, the ALJ nevertheless rejected that score because the "weight of the evidence indicates . . . that plaintiff functions in the borderline intellectual functioning range." (R. 14). In rejecting the validity of the score, the ALJ relied on numerous factors, including that the Full Scale IQ score of 67 is inconsistent with the results of prior intelligence testing revealing a Full Scale IQ score of 84 in May of 1988 and a Binet testing IQ score of 75 assessed in 1989; that Plaintiff was able to graduate from high school with special education assistance; that her treating psychiatrist, Dr. Shirley John, described Plaintiff as being of "average" intelligence; and, that the "totality of the evidence" indicates that Plaintiff is independent in her personal care and her daily activities and that she engages in regular social activities. (R. 14-15).
In arriving at a determination of whether an IQ score is valid, the ALJ is to consider the entire record before her.
Here, as in
Here, in her narrative report Dr. Groves explicitly found the IQ results to be "valid" and "reflective of [Plaintiff's] current level of functioning." (R. 252). She reported that Plaintiff's Full Scale IQ score of 67 places her in the 1st percentile of adults of her age and indicates "a present overall ability that was in the Extremely Low range of intellectual functioning." (
Although the ALJ briefly alluded to the fact that Dr. Groves considered Plaintiff's scores to be valid, she brushed that opinion aside as being against the weight of the evidence for the reasons set forth above. However, as just discussed, the Full Scale IQ score of 67 is consistent with the other subtest results of Dr. Groves' evaluation and the record contains no other contemporaneous opinion from any psychologist or other medical expert contradicting the IQ results or indicating a higher current level of intellectual functioning.
With no medical opinion evidence to support it, the ALJ's conclusion that Plaintiff "functions in the borderline intellectual functioning range" appears to be based on nothing more than speculative inferences drawn from the record. However, this is not a situation where the psychologist conducting the test questioned the validity of the results or diagnosed Plaintiff with borderline intellectual functioning.
In rejecting the validity of the Full Scale IQ score of 67 assessed by Dr. Groves when Plaintiff was 28, the ALJ also pointed to the inconsistency of that result with the childhood IQ scores assessed when Plaintiff was 5 and 6 years old, as well as her graduation from high school through special education classes. However, rather than being a basis to reject the validity of Plaintiff's current IQ scores, the childhood IQ scores and her scholastic record more aptly should have been considered in determining whether Plaintiff's current deficits in adaptive functioning manifested prior to age 22, which brings the Court to the issue necessitating remand in this case.
In order for a claimant's impairment to meet a listing, it must satisfy
In her decision, in addition to rejecting the validity of Plaintiff's current IQ score, the ALJ also found that Plaintiff did not meet the introductory criteria of prior Listing 12.05 requiring "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period." (R. 15). In making this determination, the ALJ relied extensively on the assessment by the state agency psychologist, who found that Plaintiff does not meet the capsule definition because "she is able to cook, to care for her person independently, she can go out on her own and she can shop." (R. 85). The ALJ, with little additional analysis, gave this opinion substantial weight and concluded that Plaintiff did not meet the preface to Listing 12.05. (R. 15). Because the Court cannot meaningfully determine the ALJ's basis for finding that Plaintiff did not meet the requirement of having deficits in adaptive functioning manifested before age 22, this Court must conclude that the ALJ's finding is not supported by substantial evidence, and will remand this case to the ALJ for additional evaluation.
The regulations in effect at the time the ALJ issued her decision did not define "deficits of adaptive functioning," nor did they identify guidelines by which to assess the existence or severity of a claimant's alleged deficits.
In this case, it does not appear from the ALJ's decision that she consulted any organization's standard for measuring deficits in adaptive functioning in concluding that Plaintiff does not meet that criterion. In fact, the ALJ simply adopted the conclusory opinion of the state agency psychologist without any further analysis. Because the ALJ's assessment of whether Plaintiff has "deficits in adaptive functioning" fails to comply with the SSA's regulatory directive, effective at the time, to identify the standard she used to determine that Plaintiff does not meet the introductory criterion to Listing 12.05, she failed to sufficiently explain her findings to permit meaningful review. Accordingly, the ALJ's Step 3 finding is incomplete and remand is required for reconsideration of whether Plaintiff has established deficits in adaptive functioning and whether such deficits manifested prior to age 22. While the Court takes no position as to whether, on remand, Plaintiff should be found to have met Listing 12.05, it does find a more focused analysis as to the application of Listing 12.05C is required in this case.
Because the record does not permit the Court to determine whether substantial evidence exists to support the ALJ's determination at Step Three that Plaintiff does not meet Listing 12.05, the Court finds that substantial evidence does not support the ALJ's decision in this case. The Court hereby remands this case to the ALJ for reconsideration consistent with this Order.
SSR 02-1p recognizes that obesity is a medically determinable impairment and that "the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately." 2002 WL 34686281, at *1 (Sept. 12, 2002). Accordingly, the ruling instructs the ALJ "to consider the effects of obesity not only under the listings but also when assessing a claim at other steps of the sequential evaluation process, including when assessing an individual's residual functional capacity."
The ALJ in this case expressly found obesity to be a severe impairment, addressed it at Step 3, acknowledged the applicability of SSR 02-1p, and indicated that she considered Plaintiff's weight in her decision. (R. 14; 22). Plaintiff does not specify in what way obesity would affect her residual functional capacity beyond the limitations the ALJ found and points to no evidence in the record supporting any additional functional limitations. Moreover, the ALJ relied on the medical evidence from Plaintiff's treating physicians as the basis for her RFC, and none of those sources suggested any further limitations in Plaintiff's ability to work based on her weight, although they obviously were aware of her obesity.
The standard for intellectual disability set forth by the American Association of Mental Retardation (now the American Association on Intellectual and Developmental Disabilities) includes "significant limitations in intellectual functioning and in adaptive behavior as expressed in conceptual (i.e., receptive and expressive language, reading and writing, money concepts, and self-direction); social (i.e., interpersonal, responsibility, self-esteem, gullibility, naiveté, follows rules, obeys laws, and avoids victimization); and practical adaptive skills (i.e., personal activities of daily living such as eating, dressing, mobility and toileting; instrumental activities of daily living such as preparing meals, taking medication, using the telephone, managing money, using transportation, and doing housekeeping activities; maintaining a safe environment, and occupational skills)."
