JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Dexter Xavier Taylor, Jr. ("plaintiff" or, in context, "claimant"), with assistance from his parents, challenges the final decision of defendant Commissioner of Social Security Andrew M. Saul ("Commissioner") denying his application for Supplemental Security Income ("SSI") on the grounds that he is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 21, 23. Both filed memoranda in support of their respective motions (D.E. 22, 24), and plaintiff filed a response (D.E. 27) to the Commissioner's motion. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 6 Feb. 2019 Text Ord. For the reasons set forth below, following careful consideration of the parties' arguments, the authorities they cite, other applicable law, and the evidence of record, it will be recommended that the Commissioner's motion be allowed, plaintiff's motion be denied, and the final decision of the Commissioner be affirmed.
Plaintiff, who was born in 1994, received SSI based on disability as a child. Transcript of Proceedings ("Tr.") 17; 27 ¶ 6. When he attained age 18, he was required to have his eligibility for these benefits redetermined under the rules for determining disability in adults. See 20 C.F.R. § 416.987
On 26 February 2013, plaintiff was found to be no longer disabled as of 25 January 2013. Tr. 17. This determination was upheld upon reconsideration, and a request for hearing was timely filed. Tr. 17. A prehearing conference was held on 22 February 2016. Tr. 560-82. On 7 July 2016, an administrative law judge ("ALJ") held a video hearing at which the witnesses were plaintiff, who was proceeding pro se; his mother; and a vocational expert. Tr. 505-59. In lieu of testifying at this hearing or a supplemental hearing, plaintiff's father submitted a written, post-hearing statement (Tr. 495-96) for consideration by the ALJ. Tr. 17. Other documents were also added to the record before the ALJ after the hearing. Tr. 17. The ALJ issued a decision denying plaintiff's claim on 6 January 2017. Tr. 17-28.
Plaintiff timely requested review by the Appeals Council. Tr. 501. The Appeals Council denied the request on 1 February 2018. Tr. 6. At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. § 416.1481. Plaintiff commenced this proceeding for judicial review on 3 April 2018, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). See In Forma Pauperis ("IFP") Mot. (D.E. 1); Order Allowing IFP Mot. (D.E. 3); Compl. (D.E. 4).
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 twelve months." 42 U.S.C. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "[A]n 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. § 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." Id. § 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:
20 C.F.R. § 416.920(a)(4). The first step is not used for redetermining disability at age 18. Id. § 416.987(b).
The burden of proof and production rests with the claimant during the first four steps of the analysis. Pass, 65 F.3d at 1203. The burden shifts to the Commissioner at the fifth step to show that alternative work is available for the claimant in the national economy. Id.
In the case of multiple impairments, the Regulations require that the ALJ "consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." 20 C.F.R. § 416.923. If a medically severe combination of impairments is found, the combined impact of those impairments will be considered throughout the disability determination process. Id.
Plaintiff was 21 years old on the date of the hearing and 22 on the date of issuance of the ALJ's decision. See, e.g., Tr. 27 ¶ 6. The ALJ found that plaintiff has at least a high school education (Tr. 27 ¶ 7) and no past relevant work (Tr. 27 ¶ 5).
At step two of the sequential analysis under 20 C.F.R. § 416.920(a)(4), the ALJ found that since 25 February 2013 plaintiff had the following severe impairments: Crohn's disease, attention deficit hyperactivity disorder ("ADHD"), expressive-receptive language disorder, and borderline intellectual functioning. Tr. 19 ¶ 2. At step three, the ALJ found that since 25 February 2013 plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of any of the Listings. Tr. 21 ¶ 3.
The ALJ next determined that since 25 February 2013 plaintiff had the RFC to perform a limited range of medium work:
Tr. 23 ¶ 4.
The ALJ found at step four that plaintiff had no past relevant work. Tr. 27 ¶ 5. At step five, the ALJ accepted the testimony of the vocational expert and found that since 25 February 2013 there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of dining room attendant, hospital cleaner, and store laborer. Tr. 27-28 ¶ 9. The ALJ accordingly concluded that plaintiff's disability ended on 25 February 2013 and he had not become disabled again since that date, implicitly, through the date of the decision, 6 January 2017. Tr. 28 ¶ 10.
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 and benefits awarded him or, alternatively, that this case should be remanded for a new hearing on the grounds that the ALJ erred by not determining him to satisfy Listings 12.05B and C for intellectual disability,
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. § 416.925(a). Therefore, if a claimant's impairments meet a listing, that fact alone establishes that the claimant is disabled. Id. § 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. Ruling 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. § 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. § 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 12.05 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; 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 addition to the diagnostic description, to satisfy Listing 12.05 a claimant must satisfy the criteria set forth in at least one of four paragraphs relating to the severity of the intellectual disability. Paragraph B requires a "valid verbal, performance, or full scale IQ of 59 or less." Listing 12.05B. To satisfy Listing 12.05C, a claimant must demonstrate both 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 limitation of function." Listing 12.05C.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. § 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. § 416.927(c); Nicholson v. Comm'r of Soc. Sec. Admin., 600 F.Supp.2d 740, 752 (N.D.W. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
The Regulations provide that opinions of treating physicians and psychologists on the nature and severity of impairments are to be accorded controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. § 416.927(c)(2); see Craig, 76 F.3d at 590; Ward v. Chater, 924 F.Supp. 53, 55-56 (W.D. Va. 1996); Soc. Sec. Ruling 96-2p, 1996 WL 374188 (2 July 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In this circumstance, the Regulations prescribe factors to be considered in determining the weight to be ascribed, including the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, and any specialization of the opining source. 20 C.F.R. § 416.927(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. § 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. 6 Mar. 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
The factors used to determine the weight to be accorded the opinions of physicians and psychologists (and other "acceptable medical sources") not given controlling weight also apply to the opinions of providers who are deemed to be at a different professional level (or so-called "other sources"). See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *2, 4 (9 Aug. 2006); see also 20 C.F.R. § 416.913(d) (partial listing of "other sources"). As with opinions from physicians and psychologists, the ALJ must explain the weight given opinions of other sources and the reasons for the weight given. See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *6; Napier, 2013 WL 1856469, at *2. The fact that an opinion is from an acceptable medical source may justify giving that opinion greater weight than an opinion from a source that is not an acceptable medical source, although circumstances can justify giving opinions of sources that are not acceptable sources greater weight. Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *5.
The same basic standards that govern evaluation of the opinions of treating medical sources not given controlling weight and explanation of the weight given such opinions apply to the evaluation of opinions of examining, but nontreating sources, and nonexamining sources. See 20 C.F.R. § 416.927(c), (e); Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. 12 Mar. 2015), rep. & recomm. adopted, 2015 WL 1810173, at *1 (21 Apr. 2015); Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. 1 May 2013). More weight is generally given to the opinions of a treating source than to the opinions of a nontreating examining source and to the opinions of an examining source than to the opinions of a nonexamining source. See 20 C.F.R. § 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a nontreating examining source or a nonexamining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a nontreating examining physician than to those of a treating physician); Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *3 (2 July 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on the ultimate issue of disability and other issues reserved to the Commissioner are not entitled to any special weight based on their source. See 20 C.F.R. § 416.927(d); Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *2, 5 (2 July 1996). But these opinions must still be evaluated and accorded appropriate weight. See Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
In his decision, the ALJ does not expressly address Listing 12.05. However, his general finding that since 25 February 2013 plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings necessarily encompasses Listing 12.05. In particular, applicable to Listing 12.05 is the ALJ's general finding that "[n]o treating, examining, or non-examining medical source has opined or otherwise found the claimant to have an impairment or combination of impairments that meets or medically equals any listed impairment." Tr. 21 ¶ 3.
Plaintiff contends that the ALJ erred, in part, by not expressly discussing Listing 12.05. While the court agrees that the ALJ should have done so, the error was harmless because the ALJ's decision makes clear the basis for his determination that plaintiff did not satisfy Listings 12.05B and C. See, e.g., Garner v. Astrue, 436 F.App'x 224, 226 n* (4th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396, 409 (2009)); Satterwhite v. Colvin, No. 5:14-cv-01152-JMC, 2015 WL 5054559, at *7 (D.S.C. 25 Aug. 2015) (upholding the ALJ's implicit rejection of plaintiff's IQ tests as invalid for purposes of Listing 12.05C due to her level of adaptive functioning based on ALJ's consideration of evidence other than the IQ tests). Specifically, the ALJ's decision makes apparent his determination that plaintiff did not meet the "deficits in adaptive functioning" requirement in the diagnostic description in Listing 12.05 and the IQ requirements in paragraphs B and C. Listing 12.05. Notably, because all criteria of a listing must be satisfied in order to satisfy the listing, the failure to satisfy the diagnostic description alone precludes satisfaction of both Listings 12.05B and C, and the failure to satisfy the IQ requirements of each independently precludes their respective satisfaction. See Sullivan, 493 U.S. at 530-31.
As to adaptive functioning, the ALJ found:
Tr. 21 ¶ 2.
The ALJ elaborated on plaintiff's activities elsewhere in his decision. For example, he stated:
Tr. 22 ¶ 3; 23 ¶ 4. The ALJ also observed that plaintiff "admitted he did not consistently take prescribed ADHD medication, which his father reported he needed to function (Ex. 20F/2)." Tr. 25 ¶ 4; see 20 C.F.R. § 416.930(b) ("If you do not follow the prescribed treatment without a good reason, we will not find you disabled....").
The evidence cited by the ALJ in support of his determination that plaintiff's adaptive functioning was at a higher level than that of intellectual disability constitutes substantial evidence supporting the determination.
As indicated, the ALJ's decision also makes apparent his determination that plaintiff did not satisfy the IQ requirements in paragraphs B and C of Listing 12.05. This determination is shown by the ALJ's rejection of plaintiff's IQ scores as providing a valid current measure of his intellectual ability and his adoption of organic brain disorder, instead, as a basis for mental deficiencies exhibited by plaintiff.
The ALJ explained his rejection of plaintiff's IQ scores prior to age 18 on the basis of their remoteness in time and other considerations:
Tr. 19-20 ¶ 2. The court finds that the reasons provided by the ALJ for not crediting these childhood IQ scores in the instant proceeding are based on proper legal standards and supported by substantial evidence, including the evidence he cites. See, e.g., Listing 112D.10 (providing that "IQ test results must also be sufficiently current for accurate assessment under 112.05," "[g]enerally, the results of IQ tests tend to stabilize by the age of 16," and "IQ test results obtained between ages 7 and 16 should be considered current ... for 2 years when the IQ is 40 or above").
The ALJ also addressed the IQ scores in the 4 January 2013 report by Elizabeth B. Saylors, LPA ("LPA Saylors" or "Ms. Saylors") (Tr. 370-73) based on her psychological evaluation of plaintiff in November and December 2012 when he was 18. As the ALJ noted, LPA Saylors' report suggests that plaintiff's mental deficiencies were not grounded in intellectual disability, but rather in a language disorder, the presence of which a subsequent evaluation by a language therapist confirmed:
Tr. 20 ¶ 2; see also Tr. 25 ¶ 4 (summarizing speech and language evaluation). While the ALJ did not formally assign weight to this portion of LPA Saylors' evaluation, his decision makes clear his reliance on it.
The ALJ gave "no weight" to the diagnosis of plaintiff with mild mental retardation by consulting examiner Jerome B. Albert, Ph.D. in his 13 February 2013 evaluation of plaintiff, who was then 18. See Tr. 384-86. The ALJ gave multiple reasons for his determination, including plaintiff's level of adaptive functioning as previously reviewed:
Tr. 20 ¶ 2; see also Tr. 25 ¶ 4 (summarizing a portion of the foregoing analysis).
The court finds that the reasons provided by the ALJ for giving no weight to Dr. Albert's diagnosis of mild mental retardation are based on proper legal standards and supported by substantial evidence, including the evidence he cites.
As indicated, these reasons include reasons cited by the ALJ for crediting the assessments by Dr. Farrell and Dr. Wilson. The ALJ later acknowledged that he gave "considerable weight" to their assessments, which he accurately observed were "generally compatible with the overall performance of ... work involving [SRRTs]." Tr. 25 ¶ 4. Contrary to plaintiff's contention, the fact that Dr. Farrell and Dr. Wilson did not examine plaintiff did not bar the ALJ from giving their assessments the weight he did. See Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *3.
The assessments by Dr. Farrell and Dr. Wilson consisted of both a mental RFC assessment and a psychiatric review technique form, which Dr. Farrell completed on 21 February 2013 (Tr. 387-90; 391-404) and Dr. Wilson on 27 March 2013 (Tr. 419-22; 405-18). Dr. Farrell found that plaintiff had the organic mental disorder of expressive and receptive language disorder (Tr. 392); did not have mild mental retardation (i.e., "clmt not MMR") (Tr. 403; see also Tr. 395); and "appears capable of performing simple, routine tasks" (Tr. 389). Similarly, Dr. Wilson found that plaintiff had the organic mental disorders of both expressive and receptive language disorder and ADHD (Tr. 406), making no diagnosis of intellectual disability (Tr. 409); and had sufficient capacity in memory, concentration, persistence, social interaction, and adaptive functioning to perform SRRTs (Tr. 421).
Again, the ALJ's determination that plaintiff did not satisfy the "deficits in adaptive functioning" requirement in the diagnostic description alone precludes plaintiff's satisfaction of Listings 12.05B and C. Listing 12.05. Likewise, the ALJ's determination that plaintiff did not satisfy the IQ requirement of paragraphs B and C independently precludes satisfaction of Listings 12.05B and C, respectively.
In sum, not only does the ALJ's decision make clear his determination that plaintiff did not satisfy Listings 12.05B and C on multiple grounds, but that determination is a proper one.
One specific determination by the ALJ that plaintiff asks the court to revisit is his evaluation of the GAF scores
Tr. 26 ¶ 4. The court finds that the ALJ's evaluation of LPA Saylors' and Dr. Albert's GAF scores is based on proper legal standards and supported by substantial evidence.
Plaintiff also challenges the ALJ's attribution of "partial weight" to the oral testimony of plaintiff's mother and written statement of his father. See Tr. 26 ¶ 4. The ALJ accurately summarized the testimony and statement by plaintiff's parents as follows:
Tr. 24 ¶ 4.
The ALJ later explained his attribution of "partial weight" to plaintiff's mother's testimony and father's statement:
Tr. 26-27 ¶ 4. The court finds that the ALJ's assessment is based on proper legal standards and supported by substantial evidence. See, e.g., 20 C.F.R. §§ 416.913(d)(4), 416.927(f), 416.929(a), (c)(3); Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *6-7 (16 Mar. 2016). Plaintiff's challenge to it is therefore meritless.
The court concludes that plaintiff's challenge to the ALJ's determination on Listings 12.05B and C fails. The court accordingly rejects it.
A hypothetical question is proper if it adequately reflects a claimant's RFC for which the ALJ had sufficient evidence. Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005); Baker v. Astrue, No. SAG-10-145, 2012 WL 12751, at *4 (D. Md. 3 Jan. 2012) (rejecting plaintiff's objections to the ALJ's hypothetical to the vocational expert where "the hypothetical presented to the [vocational expert] was supported by substantial evidence and adequately included all the limitations that were deemed credible by the ALJ"). Testimony by a vocational expert based on an incomplete hypothetical may not constitute substantial evidence supporting the ALJ's step-five determination. See Lyles v. Colvin, Civ. Act. No. 1:14-2042-RMG, 2015 WL 1931398, at *15 (D.S.C. 7 Apr. 2015) (citing Swaim v. Califano, 599 F.2d 1309, 1312 (4th Cir. 1979)), rep. & recomm. adopted, 2015 WL 1931398, at *1 (28 Apr. 2015).
The hypothetical to the vocational expert eliciting the testimony upon which the ALJ relied at step five of the sequential analysis reads:
Tr. 552-53.
The hypothetical accurately tracks the ALJ's RFC determination which, again, reads:
Tr. 23 ¶ 4.
Plaintiff contends that this hypothetical was improper, in part, on the apparent grounds that it did not reference plaintiff's ADHD or "Mild Intellectual Disability ability to stay on track." Pl.'s Support. Mem. 10. But the function of a hypothetical is to set out a claimant's pertinent abilities and limitations as found in the RFC determination. This can be accomplished—and ordinarily is—without reciting the impairments underlying the limitations. Moreover here, as previously discussed, the ALJ properly determined that plaintiff does not have an intellectual disability.
Plaintiff also argues that the ALJ failed to explain how plaintiff's mental impairments are accommodated by limitations in the RFC and thereby in the hypothetical. The court finds, though, that the ALJ did explain his accommodation of plaintiff's mental impairments in the RFC. For example, after noting that he restricted plaintiff from climbing ladders, rope, and scaffolds and exposure to work place hazards because of plaintiff's alleged dizziness from ADHD medication, the ALJ stated:
Tr. 25-26 ¶ 4.
The court also finds that substantial evidence supports the mental limitations that the ALJ included in the RFC and thereby that the record does not compel more severe limitations. This evidence includes that reviewed in the foregoing analysis of the ALJ's determination on Listing 12.05. Notable among other evidence, the ALJ found that besides speech therapy "[t]he record does not show the claimant participating in any other special services/therapy related to his mental impairments." Tr. 25 ¶ 4. Citing office visits by plaintiff with providers treating his gastrointestinal problems, the ALJ found that "observations by medical providers reflect the claimant having a normal ability to communicate, being alert and oriented, and having a normal mood and appropriate affect (see e.g. Ex. 4F)." Tr. 25 ¶ 4. Thus, the ALJ noted that notwithstanding plaintiff's language and other mental disorders he was able to communicate adequately and otherwise comport himself in a normal manner in the medical office setting. The mental limitations in the hypothetical are therefore based on an RFC having the support of substantial evidence of record.
Plaintiff further argues that when the ALJ posed to the vocational expert an alternative hypothetical adding mental limitations to those included in the hypothetical upon which the ALJ relied, the vocational expert testified that no jobs would be available to plaintiff. It is true that in response to the alternative hypothetical the vocational expert testified that no jobs would be available to plaintiff. But the alternative hypothetical went well beyond simply adding limitations to the hypothetical upon which the ALJ relied and essentially posited that the hypothetical person was disabled by specifying that he could not engage in substantial gainful activity. It read:
Tr. 554. The court therefore finds plaintiff's argument on this alternative hypothetical feckless.
The court concludes that plaintiff's challenge to the ALJ's hypothetical to the vocational expert is meritless. It accordingly rejects the challenge.
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 21 August 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his 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 within 14 days after the filing of objections.
Listings 12.05B, C (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).
Tr. 25 ¶ 4.
DSM-IV-TR 34 (formatting altered from original).
