Opinion
C/A No.: 1:17-cv-03316-MGL-SVH
12-28-2018
Rockzie Lorraine Gibson, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On April 28, 2014, Plaintiff filed applications for DIB and SSI in which she alleged her disability began on July 1, 2013. Tr. at 186-92, 193-98. Her applications were denied initially and upon reconsideration. Tr. at 86-87, 113-14, 117-21, 125-132. On September 13, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Jerry W. Peace. Tr. at 29-65 (Hr'g Tr.). The ALJ issued an unfavorable decision on November 14, 2016, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 12-28. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on December 8, 2017. [ECF No. 1].
The record does not provide an explanation for this gap in time. However, it does not impact the analysis in this case.
B. Plaintiff's Background, Medical History, and Educational History
1. Background
Plaintiff was 39 years old at the time of the hearing. Tr. at 38. She completed high school with a "Special Diploma." Tr. at 39. She previously worked as a fast food cook, but the ALJ did not consider it to be past relevant work ("PRW"). Tr. at 49. Plaintiff alleges she has been unable to work since July 1, 2013. Tr. at 186, 193.
2. Medical History
On May 6, 2013, Plaintiff presented to the Oconee Medical Center emergency department complaining of a headache. Tr. at 335-38. Plaintiff reported having experienced symptoms since 2004 and indicated the pain was aching and located on the top of her head. Id. She was diagnosed with an acute headache and discharged. Tr. at 337.
The medical records reveal two interim visits for issues unrelated to this case. Tr. at 343-46 (noting on March 19, 2013, Plaintiff presented to an emergency room for issues with her toe nails); Tr. at 338-42 (noting on April 26, 2013, Plaintiff presented to an emergency room for a spider bite).
On July 25, 2013, Plaintiff presented to Greg Hawkesworth, M.D. ("Dr. Hawkesworth"), at Fair Play Family Medicine for a refill of her medications for chronic pain, chronic headaches, heartburn, and adjustment disorder. Tr. at 297-300. Dr. Hawkesworth noted Plaintiff saw a different doctor over the prior year, but the office had stopped taking her Medicaid. Id. In addition, Plaintiff stated the medications he previously prescribed had worked better for her. Id. Plaintiff also reported Propranolol "help[ed] prevent her headaches" and she desired another prescription for it, as she had headaches two to three times a week. Tr. at 298. She indicated her lower back pain was chronic, but Tramadol helped. Id. Plaintiff stated she had not been on any medications for her adjustment disorder for eight months and was "doing well without them." Id. She also stated Prilosec worked well for her heartburn. Id. Dr. Hawkesworth noted Plaintiff was tender to palpation ("TTP") on her lumbar spine paraspinal muscles. Tr. at 299. Dr. Hawkesworth assessed low back pain, headache, adjustment disorder with mixed anxiety and depressed mood, and heartburn. Tr. at 297. He refilled Plaintiff's Tramadol and Imitrex and re-started Propranolol and Prilosec, and prescribed Sumatriptan. Id. He noted Plaintiff's adjustment disorder was "[d]oing well without medication. Expectant management at this time." Id.
On September 30, 2013, Plaintiff presented to Medi Urgent Care of Seneca complaining of a migraine headache lasting two to three days. Tr. at 307. Plaintiff reported associated nausea and vomiting. Id. The doctor assessed headache and nausea and administered Toradol and Phenergan injections. Id.
On October 3, 2013, Plaintiff returned to Dr. Hawkesworth for her migraines and chronic lower back pain. Tr. at 294-96. Plaintiff reported a severe headache had caused her to go to urgent care a few days prior and she received Phenergan and Toradol injections to resolve it. Tr. at 295. Plaintiff had started Propranolol for her frequent headache prophylaxis and Imitrex for her abortive therapy. Id. Plaintiff reported she used Propranolol for one month, but "did not notice a difference in her headaches, however, she claim[ed] she ha[d] only had one or [two] headaches since then." Id. Plaintiff also reported she was unable to fill her prescription for Imitrex due to the high cost. She stated her lower back pain had improved some, but had not resolved, and she indicated she was only taking medication to address the problem. Id. Dr. Hawkesworth assessed headache (migraine type) and lower back pain. Tr. at 294. He noted Plaintiff's headaches had only occurred "once or twice in the last [three] months." Id. He discontinued Propranolol, noted Plaintiff's insurance should cover Imitrex, wrote Plaintiff another prescription for it, and recommended she discuss the matter with her pharmacy. Id. He refilled Plaintiff's Tramadol, prescribed Meloxicam, and recommended a course of strengthening techniques for her back pain. Id.
In the interim, the medical records reveal a visit for a spider's bite. Tr. at 291-93.
On January 15, 2014, Plaintiff followed up with Dr. Hawkesworth regarding her headaches. Tr. at 288-90. Plaintiff reported experiencing muscle aches in her lower back and legs for two to three months "that were potentially exacerbated by sleeping on a love seat for that time period while visiting family in Florida." Tr. at 289. She complained of a slight sensation decrease in her right leg, but reported experiencing that symptom since a motor vehicle accident several years prior. Id. Plaintiff reported Mobic and Imitrex helped her headaches. Id. Dr. Hawkesworth examined Plaintiff and noted full range of motion ("ROM") in her lumbar spine and no tenderness in her lower extremities, but TTP of the lumbar spine paraspinal muscles and a sensation decrease in the lower portion of her right leg. Tr. at 290. The active problems included adjustment disorder, arthritis, cellulitis, headache, heartburn, and low back pain. Tr. at 289. Dr. Hawkesworth assessed myalgia, adjustment disorder with mixed anxiety and depression, and migraine headache. Tr. at 288. For Plaintiff's myalgia, Dr. Hawkesworth restarted Mobic, continued Tramadol, and instructed her to stretch, take warm showers and baths, avoid activities causing pain, and increase her fluid intake. Id. He ordered bloodwork regarding Plaintiff's adjustment disorder and noted her migraines were "managed" and "controlled" with Mobic and Imitrex, continuing her current regimen. Id.
The next day Plaintiff returned for a flu shot, and her lab results reflected normal limits. Tr. at 301-04.
On March 11, 2014, Plaintiff returned to Medi Urgent Care Center complaining of a headache. Tr. at 306. Plaintiff reported associated chills, nausea, and vomiting. Id. The doctor assessed headache and gave Plaintiff Toradol and Phenergan injections. Id.
On July 11, 2014, Robin L. Moody, Ph.D. ("Dr. Moody"), conducted a comprehensive clinical evaluation. Tr. at 309-14. Dr. Moody administered the Mini-Mental State Examination, Second Edition ("MMSE-2"), Wechsler Adult Intelligence Scale, Fourth Edition ("WAIS-IV"), Wide Range Achievement Test, Fourth Edition ("WRAT-4") and conducted a clinical interview. Tr. at 309. Dr. Moody noted Plaintiff was applying for disability due to a history of learning problems, special education, adjustment disorder with anxiety, depression, headaches, and nerve damage in her hands. Id.
Plaintiff described an accident in 2004 where she was thrown from the back of a pickup truck onto asphalt. Tr. at 310. She stated she was subsequently admitted to the hospital, and found to have sustained a brain injury in the right temporal area and a broken jaw. Id. She underwent surgery on her jaw and a metal plate was inserted. Id. Since that time, she experienced severe headaches about twice a week, nausea, and sensitivity to light and sound. Id. She reported sleeping for an average of four hours a night and admitted she had trouble sleeping, but did not know why. Id. She stated her appetite and energy level were normal and denied any suicidal or homicidal ideations or hallucinations or delusions. Id. Plaintiff was not the prescribed any psychotropic medication. Id. She received counseling once, in 2000, when her son was diagnosed with autism. Id.
Plaintiff said she attended self-contained special education classes and graduated high school with a certificate. Id. She stated her best subject was art, her worst subject was math, and she had difficulty learning to read. Id. Plaintiff reported receiving speech therapy in elementary and middle school and being suspended a few times for fighting and acting out in class. Tr. at 310-11. Plaintiff described a history of physical and sexual abuse. Id. Plaintiff stated she last worked as a cook at a Dairy Queen for more than four years until the restaurant closed in 2010. Tr. at 311. Plaintiff said she could not run the cash register, but learned to cook on the grill. Id. She also worked at McDonalds, Burger King, and other fast food establishments. Id. Plaintiff reported her legal history included a recent arrest for "a helpless person charge" due to an accusation that she left her son unattended at a Waffle House, but the charge was expunged. Tr. at 310.
Plaintiff denied any involvement in extracurricular activities and stated she spent her day taking care of her son, including bathing, dressing, and feeding him, and completing some chores. Id. Plaintiff had a driver's license, but stated she rarely drove and had to take the test four or five times before she passed. Id. She stated she could complete light chores, such as preparing her own meals, cooking on the stove, and shopping for groceries with the help of her father-in-law. Id. She said she had never managed her own funds, written a check, or had a bank account, but did use a food stamp card. Id. She stated she could bathe and dress herself without assistance and enjoyed fishing as a hobby. Id.
Dr. Moody noted Plaintiff was slow to respond to questions, had flat affect, and seemed anxious. Tr. at 312. Plaintiff's thought processes were concrete and her attitude was cooperative. Id. However, Plaintiff's memory and concentration were poor and her judgment and insight were limited. Id.
On the MMSE-2 exam, Plaintiff scored 19/30. Id. She could: identify all three items for immediate and delayed recall; identify the year, season, month, date, county, and city; identify two objects, but not repeat a phrase; identify three geometric shapes; read and follow a command; and write a sentence, but not draw conjoining pentagons. Id. Plaintiff could not recall the day of the week, state, building or floor or correctly answer any items for serial 7s. Id. Dr. Moody noted the results of the assessment appeared valid and Plaintiff showed "adequate effort" during testing. Id.
On the WAIS-IV, Plaintiff's scores indicated she was very deficient in verbal comprehension, working memory, processing speed, and full scale IQ and deficient in perceptual reasoning. Id. Plaintiff's full-scale IQ score was 58, verbal comprehension was 63, working memory was 55, processing speed was 65, and perceptual reasoning was 71. Tr. at 312. Again, Dr. Moody opined the results of the test appeared to be valid due to Plaintiff's "good effort." Id.
On the WRAT-4 test, Plaintiff scored 38 in word reading, 24 in sentence comprehension, 25 in spelling, 22 in math computation, and 134 in reading composite. Tr. at 313. These scores reflected Plaintiff's skills for effective learning, communication, and thinking ranged from very deficient to less than the fifth grade. Tr. at 313. Dr. Moody noted the "[r]esults of this assessment appear[ed] valid." Id.
Dr. Moody stated Plaintiff's ability to maintain attention and concentration was within the extremely low range and a weakness when compared to her nonverbal abilities. Tr. at 313. Plaintiff's ability to process routine visual information without making errors was within the extremely low range and only better than one percent of individuals in her age group. Id. Plaintiff's general ability was within the extremely low range. Id. Dr. Moody noted Plaintiff's performance on the achievement test was consistent with her IQ scores and all subtest scores were within the extremely low range. Tr. at 313-14. She concluded, overall, Plaintiff's cognitive functioning was within the extremely low range. Tr. at 314. Dr. Moody stated Plaintiff's past work experience had been limited by her ability to comprehend and her academic limitations. Id. She noted Plaintiff had never lived independently, never managed her own bills or money, drove only when necessary and failed the test at least four times before passing it, and seemed to have limited coping skills when confronted with conflict. Id. Dr. Moody noted "[b]ecause of these adaptive functioning deficits and her extremely low cognitive ability a diagnosis of Intellectual Disability is suggested." Id.
Dr. Moody's clinical functional assessment noted:
ADLs: [Plaintiff] can complete light chores and prepare her own meals. She can care for her child without assistance. She can drive a car but only does so rarely. She has never lived independently. She has never paid the household bills. She has been unable to learn how to use her laptop tablet and claims she cannot navigate the internet.Id. Dr. Moody diagnosed mild intellectual disability. Id.
Social Functioning: [Plaintiff] has a stable relationship with her father in law and son. She is estranged from her siblings and has a bad relationship with her mother whom she blames for her past sexual abuse. She seems to have limited coping skills when conflict occurs.
Concentration, Pace and Persistence: [Plaintiff's] concentration, pace and persistence are poor. She cannot carry out simple instructions.
Management of Funds: [Plaintiff] cannot manage her own funds. She did not appear to exaggerate symptoms.
On July 18, 2014, Xanthia Harkness, Ph.D. ("Dr. Harkness"), a state agency psychologist consultant completed a Psychiatric Review Technique ("PRT") assessment. Tr. at 69-73, 79-83. She evaluated Plaintiff's records under Listings 12.02 (organic mental disorders), 12.04 (affective disorders), and 12.08 (personality disorders). She noted Plaintiff had moderate restrictions in activities of daily living ("ADLs"), mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace, but no episodes of decompensation. Id. Dr. Harkness reviewed the results of Dr. Moody's consultative examination. Tr. at 70. Dr. Harkness noted Plaintiff had "trouble understanding some of the question[s]" and "evidence of low educational skills in her spelling," but "could provide general information" and "fill out appropriate answers to questions." Id. Dr. Harkness also noted Plaintiff's statements were
partially credible since the obtained scores at the [consultative examination] w[ith] Dr. Moody are not considered valid in light of prior adult IQs and her higher ability to [function] independently in a number of daily tasks at present. The [full scale] [score of] 58 is not consistent with the ability [to] drive, serve as the primary caretaker for her toddler, cook, and do [household] chores. She has also earned SGA as a cook in fast food. Per total [medical evidence in the record ("MER")], [Plaintiff] has at least [borderline intellectual functioning ("BIF")] with a possible [history] of [learning disability] in addition. She has a [history] of [diagnosis] w[ith] [personality disorder] and [adjustment] disorder. . . . Some consideration is given to the evidence from the [consultative examination] w[ith] Dr. Moody, but the Cog[native] scores and conclusions from this provider are not given great weight due to lack of support in the total MER for the cog[native] level opined. [Plaintiff] has a severe mental impairment that would not preclude the ability to carry out at least simple, unskilled tasks.Tr. at 70. Dr. Harkness provided, "She is able to understand and remember short and simple instructions. She could not understand and remember detailed instructions." Tr. at 73.
Also, on July 18, 2014, Dale Van Slooten, M.D., a state agency physician consultant opined Plaintiff had no severe physical impairments, an opinion with which William Crosby, M.D. concurred, on October 22, 2014, upon reconsideration. Tr. at 78-79, 93, 105.
On September 22, 2014, Silvie Kendall, Ph.D. ("Dr. Kendall"), a state agency psychologist consultant, completed a PRT assessment on reconsideration. Tr. at 94-98; Tr. at 106-10. Dr. Kendall reviewed the evidence in the file and Dr. Harkness' rationale. Tr. at 95. She noted,
Moody scores not considered valid, [history of] denials w[ith] IQ scores in BIF range. In 2003, narrative entry shows Wais-R 70s; Pers[onality] [disorder.] At [consultative examination], reportedly did not know day of week, state, building or floor but this is not [consistent with] ADLs, SGA [history] or medical [history]. On [telephone call], [Plaintiff] was able to follow conversation, provide dates, confirm addresses [and] provide medication info[rmation]."Id. Dr. Kendall concurred with Dr. Harkness' rating. Id.
As discussed below, the undersigned notes Plaintiff objected (prior to and during the hearing) to the references of the alleged 2000 or 2003 consultative examinations, as made by the state agency psychologist consultants, unless the reports and scores were provided in the record for review. Tr. at 32-33, 271. The ALJ acknowledged during the hearing that he did not have these reports or scores for review, Plaintiff withdrew her objections to the exhibits containing Dr. Harkness and Dr. Kendall's assessments, and, subsequently, the ALJ did not mention the alleged prior consultative examinations within his decision. Tr. at 12-28, 32-33.
On May 17, 2015, Plaintiff presented to Medi Urgent Care of Seneca complaining of a headache. Tr. at 353. Plaintiff reported associated symptoms of nausea and vomiting. Id. She was given Toradol and Phenergan. Id.
The medical records reveal four visits for unrelated issues prior to this date. Tr. at 330-34 (noting Plaintiff presented to an emergency room for foot pain from a puncture wound on September 9, 2014); Tr. at 355-56 (noting Plaintiff presented to an emergency room for "a bump on her neck" on December 14, 2014, and December 19, 2014); Tr. at 354 (noting Plaintiff presented to the emergency room for "arm pit spots (redness)/sore" on March 3, 2015).
On June 5, 2015, Plaintiff returned to Medi Urgent Care of Seneca complaining of a headache since that morning. Tr. at 352. She reported experiencing nausea and stated she "ha[d] migraines every few months." Id. The doctor diagnosed migraine, gave Plaintiff Toradol and Phenergan injections, and instructed her to follow up with her primary care doctor. Id.
In the interim, the medical records reveal visits for unrelated issues. Tr. at 351 (noting Plaintiff presented to an emergency room for eye pain and the doctor assessed conjunctivitis on June 19, 2015); Tr. at 326-29 (noting Plaintiff presented to an emergency room for ear pain on July 21, 2015).
On August 28, 2015, Plaintiff began treatment at Rosa Clark Medical Clinic, with her main complaint of migraine headaches. Tr. at 315-18. Plaintiff reported a history of anxiety, migraines, allergic rhinitis, and lower back pain. Tr. at 315. She stated she had not taken medication for any of these conditions in one year and requested to re-start medications. Id. Plaintiff reported fatigue and muscle cramps occurring one to two times per month, but denied attempting any new treatments. Id. She reported worsening pain to her hands, wrists, and ankles over the prior year. Id. She indicated she had experienced migraines since she was a teenager and reported associated symptoms of photophobia, phonophobia, nausea, and vomiting. Id. She stated she experienced migraines two to three times per week and identified her triggers as loud noise and chocolate. Id. Plaintiff reported experiencing daily mild anxiety, worsened by stress. Id. She denied suicidal and homicidal ideations and requested to re-start Alprazolam. Id. Veronica Schofield, a nurse practitioner, examined Plaintiff. Id. She prescribed Topamax for Plaintiff's migraines and Hydroxyzine for her anxiety, recommended mental health counseling, referred her to a gynecologist for an exam, and ordered bloodwork. Tr. at 318.
On April 4, 2016, Plaintiff presented to Medi Urgent Care of Seneca complaining of ear pain and facial pressure. Tr. at 350. She reported having experienced a headache and indicated she took Imitrex and Topamax prior to her arrival. Id. The doctor administered Rocephin and Toradol. Id.
On April 14, 2016, Plaintiff returned to Rosa Clark Medical Clinic for medication review. Tr. at 319-20. Plaintiff reported her medications were not helping, and they were adjusted to Epinephrine, Loratadine, Propranolol, Promethazine, Nortriptyline, and Miloxacin. Id.
On April 27, 2016, Plaintiff presented to Medi Urgent Care of Seneca complaining of headache, nausea, and vomiting. Tr. at 349. Plaintiff also reported fatigue and weakness. Id. The doctor diagnosed headache and nausea and administered Toradol and Phenergan injections. Id.
On April 28, 2016, Plaintiff presented to the Oconee Memorial Hospital emergency room complaining of headache and nausea. Tr. at 322-23. Plaintiff reported severe, throbbing pain in the right eye and right temple. Tr. at 323. She stated this headache was similar to previous headache episodes and her symptoms were aggravated by lights. Id. Plaintiff was given Dilaudid and Compazine and reported a significant and satisfactory reduction in pain. Tr. at 324. She was discharged with a diagnosis of acute headache and prescriptions for Compazine and Dilaudid. Id. She was instructed to follow up with a private physician as soon as possible. Tr. at 325.
On May 21, 2016, Plaintiff presented to Medi Urgent Care of Seneca complaining of headache and nausea. Tr. at 348. The doctor treated her nausea with Phenergan and administered medication for her headache. Id.
3. Educational History
A scholastic record from Mainland High School in Florida showed Plaintiff was enrolled in various courses, including language therapy, and exceptional student education—designated for children "who ha[ve] been properly classified, in accordance with rules established by the commissioner, as 'educable mentally handicapped,' 'trainable mentally handicapped,' 'hearing impaired,' 'specific learning disabled,' 'physically or language impaired,' or 'emotionally handicapped'"—and received a "Special Diploma," which is awarded at graduation to students with disabilities. Tr. at 210-15. Plaintiff's grades ranged from "A" to "F." Id.
See Bureau of Exceptional Education and Student Services, Division of Public Schools, Florida Department of Education, available at www.fldoe.org/core/fileparse.php/7674/urlt/0064541-ese2011.pdf; see also https://www.flrules.org/gateway/ruleNo.asp?id=6A-1.09961; accord http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=Graduation&URL=Ch0232/Sec247.HTM. A court may take judicial notice of factual information located in postings on government websites. See Phillips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (stating a court may "take judicial notice of matters of public record").
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on September 13, 2016, Plaintiff testified she lived in a double-wide mobile home with her husband, their four-year-old son, and Terry Simmons ("Terry"), an unrelated male who appeared to fulfill a grandparent role for the son and provide assistance to Plaintiff. Tr. at 37-59. Plaintiff testified she was 39 years old, five feet and two inches, and ninety pounds at the time of the hearing, having lost thirty pounds due to stress. Tr. at 38-39.
Plaintiff explained she graduated high school with a certificate and was unable to read, write, or perform math well. Tr. at 39. She had obtained a driver's license and owned a vehicle, but testified she took the test at least four times, only drove during the day, and needed assistance with directions or she got lost. Tr. at 39-40, 54.
Plaintiff testified she fell off a truck in 2004 and sustained an injury that required jaw surgery with titanium plates, as well as a brain injury. Tr. at 54. Plaintiff also testified Dr. Ratwil, an ear, nose, and throat specialist, performed the surgery. Tr. at 54. Plaintiff explained her back and right arm hurt since the accident. Tr. at 54-55.
At the hearing, Plaintiff's attorney mentioned her attempt to retrieve the medical records for this incident and requested additional time to submit the records upon their receipt. Tr. at 31. However, the only evidence submitted reflects a return to work note, indicating Plaintiff saw a doctor on November 7, 2004, she would be able to return to work on November 17, 2004, and she should be excused "from any missed court" due to her injuries. Tr. at 358.
Plaintiff testified she last worked as a cook at a Dairy Queen for four years and collected unemployment after it closed in 2010. Tr. at 40, 49-50. She testified she looked for work at other fast food restaurants and ceased her search in 2011. Tr. at 40-41. When the ALJ inquired how Plaintiff paid her bills, she explained her husband received a check for disability (due to poor circulation in his legs), such that he paid "for everything at the house" and their son received a check (based on her husband's disability) that she used to purchase his necessities with Terry. Tr. at 41-42. Plaintiff testified she received food stamps, but no other assistance. Tr. at 42. She also testified she never had a checkbook and closed her savings account "because it got too complicated." Tr. at 53.
When the ALJ asked for the reasons Plaintiff was unable to work, she stated it was "due to [her] headaches," "a learning disability," "bipolar," and "flashbacks of what happened to [her] as a child." Tr. at 42. Plaintiff's attorney later clarified she also suffered from depression and anxiety due to her childhood experiences, and explained she would "freeze up" and have a panic attack when around "new things, new settings, [and] new people." Tr. at 59. However, she asserted the Rosa Clark facility would not "put [her] on nothing." Id. Plaintiff explained she was in pain approximately one to six hours daily due to her lower back and hip pain from a prior accident. Tr. at 43. She explained if she did not lie in front of an air conditioner, then she did not have an issue with her back. Id. Plaintiff testified the Rosa Clark facility would not treat these symptoms or a knot on her head. Tr. at 44. Plaintiff also testified she went to the Rosa Clark facility for treatment for her headaches, but the treatment did not provide relief, her medications were no longer effective, and they made her drowsy or upset her stomach. Tr. at 48.
The record reveals Plaintiff stated she was sexually abused as a child, removed from her mother's care, placed in foster homes between ages three and eleven, and returned to her father's care thereafter. Tr. at 52-53.
Plaintiff testified her headaches caused her to have blurred vision, nausea, and vomiting, lasted between half a day to three days, occurred two to three days per week, ranged between 7/10 to 10/10 in pain levels, and required her to lie down in a dark room until they stopped or to visit the emergency room. Tr. at 55-56, 58. Plaintiff explained Terry took care of her son when she had a headache and at times someone would get a "Goody relief headache shot" from the store for her. Tr. at 56-58. Plaintiff explained she had two other children, ages 17 and 18, but they had been adopted by others. Tr. at 57. In addition, she acknowledged she had been in jail previously because she failed to pay child support, as she forgot to pay it due to trouble with her memory. Tr. at 57.
Plaintiff testified she could stand for at least thirty minutes or walk two hours without taking a break and used a cane "to make it easier" at times, but she could not sit "long at all." Tr. at 44-45. She could lift up to fifteen pounds and squat, but it hurt her back and she needed to sit in a chair before bending over. Tr. at 45. Plaintiff explained she had trouble with her knees during the cold season and her hands would "stove up," but she had no issues with her shoulders. Tr. at 45-46. She had trouble breathing when it was hot outside, but used an inhaler. Tr. at 46.
Plaintiff testified she had an outside dog that Terry, her son, or she took care of. Tr. at 46. She was able to bathe or dress herself, as long as she sat down. Id. Plaintiff did "[v]ery little" cooking, meal preparation, laundry, or cleaning around the house (performing no vacuuming or mopping), but she did pick up after her son. Tr. at 46-47, 53. Plaintiff explained Terry cleaned the house and cooked. Tr. at 47. Plaintiff testified she did not do any yard work. Tr. at 46. Plaintiff acknowledged she shopped with Terry, but testified she socialized and went out to eat "very little," did not attend church, go to movies, or use a computer. Tr. at 47. She also acknowledged she had a cell phone with access to the internet and a Facebook account. Tr. at 47-48. Plaintiff testified, on a typical day, she spent time with her son and fished, read, and watched television. Tr. at 49.
Plaintiff explained she had headaches while she worked at Dairy Queen as a cook, but the employer allowed her to leave as long as her shift was covered. Tr. at 50-51, 54. She previously worked for Dollar General in 2007 as a stocker and cashier for a period of time, but was "let go." Tr. at 52.
b. Vocational Expert's Testimony
Vocational Expert ("VE") Kathleen Robbins testified at the hearing. Tr. at 60-64. The ALJ informed the VE there was no PRW. Tr. at 60. The ALJ described a hypothetical individual of Plaintiff's vocational profile who was limited to simple, routine, and repetitive tasks performed in a work environment free of fast-paced production requirements, involving only simple work-related decisions with few, if any, workplace changes, and limited to learning simple vocational tasks and completing them at an adequate pace with persistence in a vocational setting. Tr. at 60-61. The individual could also perform simple tasks for two-hour blocks of time with normal rest breaks during an eight-hour workday. Tr. at 61. The ALJ asked whether there were any jobs in the economy that the hypothetical person could perform. Id. The VE identified three unskilled positions: cashier, Dictionary of Occupational Titles ("DOT") number 211.462-010, with a light exertional level and Specific Vocational Preparation ("SVP") of 2; sales attendant, DOT number 299.677-010, with light exertion and SVP of 2; and a food prep worker, DOT number 319.677-014, with medium exertion and SVP of 2. Tr. at 61. The VE testified there were 754,100 jobs, 210,400 jobs, and 65,700 jobs available, respectively. Id.
The ALJ posed a second hypothetical, with an individual of the same age, education, work experience, skill set, and limitations as the first, but who would be limited to occasional exposure to environmental irritants, such as fumes, odors, dusts and gases, and would be limited to no exposure to unprotected heights. Tr. at 61. The VE testified the individual would still be able to perform the positions of cashier and sales attendant, but also perform work as an unskilled worker in retail, DOT number 209.587-034, with a light exertional level, SVP of 2, and 282,400 jobs available. Tr. at 61.
The ALJ posed a third hypothetical with the same limitations as the second, but, in addition, the individual would be off task twenty percent or more of the workday due to borderline intellectual functioning. Tr. at 62. The VE testified it would be an excessive amount of time lost from work and the individual would not be able to complete tasks in a timely manner, such that she would not be able to be competitively employed in full-time work. Id.
Plaintiff's attorney inquired whether an individual of Plaintiff's age, education, and work experience (along with an intellectual disability and migraines) who missed work at least four days per month would be precluded from working. Tr. at 62. The VE testified the excessive amount of time missed from work would not meet time and attendance standards for "competitive entry level full-time employment." Tr. at 63. Plaintiff's attorney also posed a hypothetical individual of her profile who was unable to carry out even simple work instructions on a sustained basis due to her intellectual disability. Id. The VE confirmed such an individual would not be able to be competitively employed. Id. Finally, Plaintiff's counsel inquired whether it constituted substantial gainful activity if the employer was accommodating the individual to allow her to leave work at least four days a month due to headaches. Id. The VE confirmed it would not constitute work. Id.
2. The ALJ's Findings
In his decision dated November 14, 2016, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2015.
2. The claimant has not engaged in substantial gainful activity since July 1, 2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: borderline intellectual functioning and migraine headaches (20 CFR 404.1520(c) and 416.920(c)).Tr. at 17-23. II. Discussion
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: she can have occasional exposure to environmental irritants such as fumes, odors, dusts and gases; no exposure to unprotected heights (both because of headaches); work is limited to simple, routine, and repetitive tasks; performed in a work environment free of fast-paced production requirements; involving only simple, work-related decisions; and with few, if any, work place changes; capable of learning simple vocational tasks and completing them at an adequate pace with persistence in a vocational setting; the individual can perform simple tasks for two-hour blocks of time with normal rest breaks during an eight-hour workday.
6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on August 27, 1977, and was 35 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from July 1, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ summarily concluded her level of intellectual functioning did not meet or equal the listed impairment for Intellectual Disability provided in Listing 12.05 and failed to discuss any aspects of the Listing; and
2) the ALJ failed to properly evaluate her mental impairment and its effect on her working abilities pursuant to 20 C.F.R. § 404.1520a(d)(3).
The undersigned notes Plaintiff's brief references a third argument in her statement of the issues, but her brief fails to discuss it further and it appears to be subsumed in her second argument. [ECF No. 13 at 2 ("Did the Commissioner err by ignoring the testimony of the vocational expert at the hearing that there was no work that [Plaintiff] could perform upon consideration of all of her impairments?")].
The Commissioner counters substantial evidence supports the ALJ's findings and the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
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).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if the Commissioner can find claimant disabled or not disabled at any step, the Commissioner may make a determination and not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. §§ 404.1526, 416.926; see Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish the impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's PRW to make a finding at the fourth step, she may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. §§ 404.1520(a), (b), (f), 416.920(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence the claimant can perform alternative work and such work exists in the national economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner . . . made after a hearing to which [s]he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try [these cases] de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (citation omitted); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). "In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ]." Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). "If the reviewing court has no way of evaluating the basis for the ALJ's decision, then 'the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'" Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
B. Analysis
1. Listing 12.05
Plaintiff argues she meets Listing 12.05(B) or (C) regarding intellectual disability and the ALJ improperly failed to consider this Listing, despite its applicability and her requests. [ECF No. 13 at 15-18]. Plaintiff points to her IQ scores by the state agency consultative examiner, Dr. Moody, the ALJ's finding that her migraine headaches were a severe impairment, and her lack of adaptive functioning exhibited by her inability to perform skilled work, maintain a household without assistance, receive a standard high school diploma, and cope with her traumatic childhood. Id.
The Commissioner responds the ALJ appropriately analyzed Plaintiff's mental impairment under Listing 12.02 (regarding organic brain disorders) and the state agency psychologist consultants, Dr. Harkness and Dr. Kendall, opined her scores with Dr. Moody was not valid due to her prior IQ scores within the borderline intellectual functioning range and her daily activities. [ECF No. 14 at 11-13]. The Commissioner further asserts, "even if arguendo the ALJ should have specifically mentioned Listing 12.05, any such error is harmless because Plaintiff could not meet all of the requirements of that listing." Id. at 13-16.
Plaintiff replies the Commissioner improperly relies upon the non-examining state agency psychologists and their reliance on IQ scores, allegedly obtained in 2000 and 2003, that are not provided in the record, rather than the state agency psychologist consultant's complete examination performed in 2014. [ECF No. 15 at 1-3].
The undersigned notes the ALJ's decision did not mention these scores.
"When there is 'ample evidence in the record to support a determination' that the claimant's impairment meets or equals one of the listed impairments, the ALJ must identify 'the relevant listed impairments' and compare 'each of the listed criteria to the evidence of [the claimant's] symptoms.'" Ezzell v. Berryhill, 688 F. App'x 199, 200 (4th Cir. 2017) (quoting Cook v. Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986)); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (noting that "full explanation by the ALJ is particularly important" when "there is probative evidence strongly suggesting that [the claimant] meets or equals" a Listing).
At the time of the ALJ's decision, Listing 12.05 stated, in relevant part,
12.05 Intellectual disability: Intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.20 C.F.R. Pt. 404, Subpart P, App'x 1, § 12.05.
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.
. . .
B. A valid verbal, performance, or full scale IQ of 59 or less;
OR
C. 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 12.05(C) was amended as of January 17, 2017, pursuant to the final rule on Revised Medical Criteria for Evaluating Mental Disorders, in which the Social Security Administration states, "We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions. If a court reverses our final decision and remands a case for further administrative proceedings after the effective date of these final rules, we will apply these final rules to the entire period at issue in the decision we make after the court's remand." 81 Fed. Reg. 66138, 2016 WL 5341732 n.1 (Sept. 26, 2016).
Thus, to meet the required level of severity for a finding of disability under Listing 12.05, the claimant must meet the definition of intellectual disability set forth in the introductory paragraph plus the requirements in either part A, B, C, or D. 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, § 12.05. In Hancock v. Astrue, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") set forth a test requiring three prongs to be met in order to satisfy Listing 12.05(C):
Listing 12.05 requires a showing of "deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22" ("Prong 1"). Listing 12.05 also requires the satisfaction of one of four additional requirements identified as Requirements A-D. At issue in this case was Requirement C, which requires "[a] valid verbal, performance, or full scale IQ of 60 through 70" ("Prong 2"), as well as "a physical or other mental impairment imposing an additional and significant work-related limitation of function" ("Prong 3").667 F.3d 470, 473 (4th Cir. 2012).
In this case, Plaintiff argued in her pre-hearing brief to the ALJ and during the hearing that she met Listing 12.05(C). Tr. at 35-36, 282-83. At step two, the ALJ found Plaintiff had two severe impairments: borderline intellectual functioning and migraine headaches. Tr. at 17. At step three, the ALJ only evaluated whether the severity of Plaintiff's mental impairments met or medically equaled Listings 12.02 and 12.04 and he did not reference Listing 12.05. Tr. at 18. In connection with Listings 12.02 and 12.04, the ALJ considered the "B" and "C" criteria for evaluating mental impairments. Id. Intellectual disability, however, requires a substantively different analysis for subsections (B) and (C), which the ALJ's opinion does not contain. See generally 20 C.F.R. Pt. 404, Subpt. P, App'x. 1 § 12.00.
The undersigned notes Plaintiff also argued she met Listing 12.05(B), which requires a "valid verbal, performance, or full scale IQ of 59 or less," and, according to Dr. Moody's examination, Plaintiff's full scale IQ was 58. The analysis of whether Plaintiff meets this Listing or not is subsumed by whether the ALJ adequately address the validity of Dr. Moody's assessment and Plaintiff's other scores, which is addressed below, and additional evaluation is not necessary in light of the undersigned's recommendation.
"The ALJ did make findings with respect to Plaintiff's impairment in several functional categories when he considered the 'B' criteria in connection with listings 12.02 and 12.04. However, the absence of an impairment severe enough to meet the 'B' criteria does not preclude the claimant from meeting Listing 12.05(C). The 'B' criteria are also contained at paragraph D of listing 12.05, and a claimant who satisfies the 'B' criteria will therefore also qualify for listing 12.05(D). See 20 C.F.R., Pt. 404, Subpt. P, App'x 1 §§ 12.00, 12.05. Consequently, if a claimant were required to meet the 'B' criteria in order to satisfy the diagnostic description's requirements for adaptive deficits, paragraphs A, B, and C of listing 12.05 would all be superfluous." McClellan v. Astrue, 804 F. Supp. 2d 678, 694 n.12 (E.D. Tenn. 2011).
"An ALJ is not required to explicitly identify and discuss every possible listing; rather, he is compelled to provide a coherent basis for his Step Three determination, particularly where the 'medical record includes a fair amount of evidence' that a claimant's impairment meets a disability listing." Ezzell, 688 F. App'x at 200 (quoting Radford, 734 F.3d at 295). Thus, the undersigned will evaluate whether a fair amount of evidence supports Plaintiff's assertion that she met Listing 12.05(C), such that the ALJ should have identified and considered it within his decision.
a. Prong 1 - Deficits in Adaptive Functioning
First, Listing 12.05(C) requires "subaverage general intellectual functioning with deficits in adaptive functioning initially manifested" before age 22. 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, § 12.05. "Deficits in adaptive functioning can include limitations in areas such as communication, self-care, home living, social/interpersonal 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)). In Weedon v. Astrue, No. 0:11-2971-DCN-PJG, 2013 WL 1315311, at *5-6 (D.S.C. Jan. 31, 2013), adopted by 2013 WL 1315206 (D.S.C. Mar. 28, 2013), this court identified the following factors that courts interpreting Listing 12.05 have deemed important for ALJs to consider in determining whether an individual has deficits in adaptive functioning: the individual's actual IQ score; the individual's diagnosis; whether the individual is illiterate; whether the individual has ever lived independently; whether the individual has ever provided care for others or whether she is dependent on others for care; school records and past academic performance; work history; and the tasks the individual is able to undertake. See Smith v. Berryhill, No. CV 1:17-1887-JMC-SVH, 2018 WL 2344540, at *15 (D.S.C. Mar. 23, 2018), adopted by 2018 WL 2332074 (D.S.C. May 22, 2018); see also 20 C.F.R. part 404, Subpt. P, Appendix 1, § 12.00(C)(1)-(3). "[C]ase law shows that the issue of whether a claimant manifested deficit in adaptive functioning during the developmental period is a fact-specific inquiry with few bright-line rules." Stanfield v. Berryhill, No. 2:17-CV-00362-TMC-MGB, 2018 WL 3687971, at *6 (D.S.C. July 18, 2018), adopted by 2018 WL 3660114 (D.S.C. Aug. 2, 2018) (citations omitted).
In this case, the ALJ never explicitly considered whether Plaintiff suffered from deficits in adaptive functioning, rather he summarily concluded she had borderline intellectual functioning and this permeated the rest of his decision. At most, the ALJ noted during his RFC assessment:
While [Plaintiff] reported she was in special education (Exhibit 1E/2), she notes her class rank being 90/319. She also indicated she received a "special" diploma described as a certificate. In spite of her borderline intellectual functioning, [Plaintiff] worked off and on for a number of years. She has never been fired from a job, and [s]he only left the Dairy Queen because it closed. In spite of her borderline intellectual functioning, [Plaintiff] cares for her
four-year-old son which can be quite demanding physically and emotionally. She testified she enjoys fishing, watching TV and reading things to her son she can understand. All of these activities suggest greater functioning than [Plaintiff] alleges.Tr. at 21. However, the fact that a claimant "is able to work, raise a family, and otherwise live successfully in the community does not necessarily preclude a finding of mild mental retardation where other deficits in adaptive functioning are present." Washington v. Berryhill, No. CV 6:16-3392-PMD-KFM, 2018 WL 472860, at *7 (D.S.C. 2018), adopted by 2018 WL 461754 (D.S.C. Jan. 18, 2018) (quotations and citations omitted).
Effective September 3, 2013, the Social Security Administration amended Listing 12.05 by replacing the words "mental retardation" with "intellectual disability." See 78 Fed. Reg. 46,499-01, available at 2013 WL 3936340.
Here, Plaintiff only engaged in unskilled work, primarily as a fast food cook, at a rate the ALJ did not consider to qualify as PRW later in his decision. Tr. at 22; Stanfield v. Berryhill, No. 2:17-CV-00362-TMC-MGB, 2018 WL 3687971, at *8 n.8 (D.S.C. July 18, 2018), adopted by 2018 WL 3660114 (D.S.C. Aug. 2, 2018) (distinguishing the case from Hancock because that plaintiff's prior jobs were semi-skilled); Murphy v. Bowen, 810 F.2d 433, 438 (4th Cir. 1987) ("When a claimant for benefits satisfies the disability listings, benefits are due notwithstanding any prior efforts of the claimant to work despite the handicap. The relevance of Cauthen to a section 12.05(C) [intellectual disability] claim is, therefore, highly questionable.").
In addition, the ALJ's decision failed to recognize Plaintiff's testimony that she gave her first two children up for adoption or her report to Dr. Moody that she received a "helpless person" charge regarding her third child and received assistance from Terry in taking care of the toddler. Tr. at 38-39, 41-42, 47, 56-58, 310. Stanfield, 2018 WL 3687971, at *8 n.8, adopted by 2018 WL 3660114 (D.S.C. Aug. 2, 2018) (distinguishing the case from Hancock because that plaintiff was able to take care of three children to the social services' satisfaction).
Furthermore, the ALJ failed to recognize the limited extent of Plaintiff's activities. In considering other potentially-applicable listings, the ALJ found Plaintiff had no restriction in ADLS, mild difficulties in social functioning and moderate difficulties in maintaining concentration, persistence, or pace. Tr. at 18. The ALJ also summarized opinion evidence from Dr. Kendall, a state agency psychologist consultant, indicating Plaintiff had moderate restrictions of daily activities, mild difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace. Tr. at 22. Yet, the ALJ failed to reconcile or explain how he found no restriction in Plaintiff's ADLs, but Dr. Kendall's opinion, on which he relied for some support, recognized there were moderate restrictions.
The undersigned notes Dr. Harkness provided her opinion during the initial consideration of Plaintiff's mental impairments and the ALJ failed to acknowledge this opinion. See 20 C.F.R. §§ 404.1527, 416.927 (stating the ALJ will consider every medical opinion in the record). However, the undersigned notes Dr. Kendall concurred with Dr. Harkness and incorporated her opinion, such that any error in this regard would be harmless.
Moreover, the ALJ stated Plaintiff was "able to perform most normal activities if she chooses to do so," such as "[s]he indicated she can do some laundry, cook, clean, straighten the house and pick up toys." Tr. at 18. Yet, when the ALJ inquired whether Plaintiff did these things during the hearing, her response was she did "very little" cooking, meal preparation, laundry, or cleaning around the house, and Terry did these household chores. Tr. at 46-47, 53. When the ALJ inquired what type of cleaning she did, she stated, "I straighten up everything that [my son] has messed up like picking up toys. But as far as pushing a vacuum or mopping the floors, I don't do that." Tr. at 47. In addition, Plaintiff testified she had a driver's license, but took the test at least four times before passing it, only drove during the day, and needed someone to drive with her so she did not get lost. Tr. at 39-40, 54. Furthermore, Plaintiff never lived independently and Terry assisted her in various ways, including shopping. Tr. at 40-42, 47, 314. See Stanfield, 2018 WL 3687971, at *8 n.8 (noting, in Hancock, the plaintiff did the majority of the household chores, including cooking).
The ALJ also failed to consider and address evidence as to Plaintiff's adaptive functioning prior to age 22. In discussing Plaintiff's academic skills, the ALJ noted "[w]hile [Plaintiff] reported she was in special education (Exhibit 1E/2), she notes her class rank being 90/319. She also indicated she received a 'special' diploma described as a certificate." Tr. at 21. First, the ALJ ignores the discussion during the hearing regarding Plaintiff's rank and the uncertainty of how they accommodated for a student with disabilities. Tr. at 36-37.
Second, upon inspection, Plaintiff's high school transcript itself reflects she received a "Special Diploma (Option One)" and indicates a withdrawal code of "W07" from Mainland High School in Florida during 1997. Tr. at 210-211. According to the Florida Department of Education, this type of diploma is awarded to a student upon high school graduation who has "been properly identified as educable mentally handicapped, trainable mentally handicapped, hearing impaired, specific learning disabled, emotionally handicapped, physically impaired, or language impaired." See www.fldoe.org/core/fileparse.php/7574/urlt/0101201-0405student.pdf at pages 118-19. "Effective with the 1994-95 school year, school boards [could] award Special Diplomas based on two (2) options. Option one [included] procedures for determining and certifying mastery of student performance standards for exceptional students as prescribed in Rule 6A-1.0996(3)-(10), FAC." Id. The Florida Administrative Code and Administrative Register reveal Rule 6A-1.09961 (formerly 6-1.0996) reflects this rule governs "Graduation Requirements for Certain Students with Disabilities." Moreover, Plaintiff's various courses reflect she took exceptional student courses, noted by descriptions such as "ESE." Tr. at 210-15. Furthermore, even Dr. Kendall's opinion reflected Plaintiff "has evidence of low educational skills in her spelling." Tr. at 107. Plaintiff confirmed in her testimony that she was unable to read, write, spell, add or subtract well, and the school records themselves contain additional information beyond poor grades. Tr. at 39, 210-15. In addition, although not acknowledged by the ALJ in his decision, Janet Denise Thompson, a friend, provided a statement and noted that Plaintiff had trouble with spelling, reading, and writing and that she attended ESE classes in school. Tr. at 268-69. In short, the record clearly "includes a fair amount of evidence" that Plaintiff possibly had limitations in adaptive functioning, including functional academic skills that manifested before age 22 and were not fully considered by the ALJ. Radford, 734 F.3d at 295.
See https://www.flrules.org/gateway/ruleNo.asp?id=6A-1.09961; see also http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=Graduation&URL=Ch0232/Sec247.HTM (reflecting, under Title XVI, Chapter 232 (232.247), "The 1997 Florida Statutes" provided high school graduation for exceptional students "who ha[ve] been properly classified" to "be awarded a special diploma in a form prescribed by the commissioner").
"In Florida, children with disabilities who need specially designed instruction and related services are called exceptional students. The special help they are given at school is called exceptional student education (ESE). The purpose of ESE is to help each child with a disability progress in school and prepare for life after school. ESE services include specially designed instruction to meet the unique needs of the child. ESE services may also include technology devices, therapy, special transportation, or other supports." Bureau of Exceptional Education and Student Services, Division of Public Schools, Florida Department of Education, available at www.fldoe.org/core/fileparse.php/7674/urlt/0064541-ese2011.pdf.
The Commissioner, citing various cases, argues the ALJ was not required to consider intellectual disability at step three because the ALJ found Plaintiff suffered from intellectual borderline functioning, as opined by the state agency consultants, at step two and that exceeds the intellectual disability standard required in Prong 1 of Listing 12.05(C). [ECF No. 14 at 14-15].
First, "a conclusory step two finding of borderline intellectual functioning does not excuse the ALJ from considering the extent of Plaintiff's mental impairments at subsequent steps." McClellan v. Astrue, 804 F. Supp. 2d 678, 690 (E.D. Tenn. 2011). Even the cases cited by the Commissioner in support of the distinction between borderline intellectual functioning and intellectual disability specifically consider whether the claimant meets Listing 12.05. See, e.g., Henry v. Colvin, No. 3:13-CV-357-DJN, 2014 WL 856358, at *8 (E.D. Va. Mar. 4, 2014), aff'd, 585 F. App'x 135 (4th Cir. 2014) ("However, the ALJ did not solely rely upon the term borderline intellectual functioning for finding that Plaintiff failed to establish that he met the requirements of listing § 12.05(C) and, instead, took into account all of the criteria required by listing § 12.05(C)."); accord Guiton v. Astrue, 2012 WL 1267856, at *4 (M.D.N.C. Apr. 16, 2012), subsequently aff'd sub nom. Guiton v. Colvin, 546 F. App'x 137 (4th Cir. 2013) (noting the psychologist who administered the IQ test opined Plaintiff's pre-morbid intellectual abilities were most likely in the borderline range "outside the range for mental retardation and Listing 12.05C," but adding the record also supported the ALJ's decision that he failed to meet Prong 1 due to lack of deficiencies in adaptive functioning).
Furthermore, in considering this contention, the undersigned notes the ALJ did not address Listing 12.05 at all. In contrast, each case cited by the Commissioner for support involved the ALJ relying on various evidence while evaluating Listing 12.05.
Moreover, the ALJ did not specifically reference a borderline intellectual functioning diagnosis. At most, the ALJ he states Plaintiff "worked in the past with borderline intellectual functioning" or takes care of her son "[i]n spite of her borderline intellectual functioning" after he found it to be a severe impairment. Tr. at 17, 21-22. Notably, the references made by the state agency consultants to prior consultative examinations in 2000 and 2003, allegedly reflecting borderline intellectual functioning scores, were not included in the ALJ's decision. The undersigned notes Plaintiff objected to their reference (before and during the hearing) unless they were provided in the record, the ALJ stated during the hearing that he did "not have the consultative examinations performed by Dr. Cannon in 2000 or Dr. Cole in 2003," and Plaintiff's attorney withdrew her objection to the exhibits containing Dr. Harkness and Dr. Kendall's assessments on the basis the ALJ did not have the scores or reports for review. Tr. at 32-33; Tr. at 271.
Even the state agency consultants did not provide the actual scores of these alleged consultative examinations conducted over ten years prior. Tr. at 69-73, 79-83, 94-98, 106-10 (noting "Prior CE's indicate at least BIF. 12/14/00 CE w Dr. Cannon - All WAIS scores in BIF range and DX Pers. Dis. 2003 exam with Dr. Cole, DX BIF, Per Dis Mixed"). The closest score provided is Dr. Kendall's notation, "In 2003, narrative entry shows Wais-R 70s." Tr. at 107. The undersigned notes "[intellectual disability] is characterized by an IQ level of 50-55 to approximately 70, and borderline intellectual functioning is characterized by slightly higher IQ scores in the 71-84 range. Ingram v. Berryhill, 2017 WL 4230586, at *3 (D.S.C. Sept. 25, 2017) (citing Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR")); Henry v. Colvin, 2014 WL 856358, at *7 (E.D. Va. Mar. 4, 2014), aff'd, 585 F. App'x 135 (4th Cir. 2014) ("While a full scale IQ of 70 may allow for a diagnosis of [intellectual disability], such a diagnosis depends upon Plaintiff exhibiting significant deficits in adaptive behavior." (citing DSM-IV-TR)).
Moreover, the Commissioner's argument that a diagnosis of borderline intellectual functioning rules out Listing 12.05(C) ignores the fact that the mental impairment listings promulgated by the Social Security Administration ("SSA") do not directly track the Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV-TR"), which mental health providers utilize in practice. Of note, in revising the listings in 2002, the Commissioner rejected a proposal that the DSM-IV-TR's definition be used for Listing 12.05. 67 Fed. Reg. 20018-01, at *20,022, 2002 WL 661740 (explaining the professional organizations differ on "the method of measuring the required deficits in adaptive functioning"). Thus, the issue for disability purposes is whether a plaintiff meets the specific criteria set out in Listing 12.05(C), not whether she meets—or fails to meet—the diagnostic criteria set out elsewhere. Furthermore, DSM-IV-TR explains that the difference between intellectual disability and borderline intellectual functioning "is more dependent upon adaptive functioning than numerical scores." Ingram v. Berryhill, No. CV 6:16-745-TMC, 2017 WL 4230586, at *5 (D.S.C. Sept. 25, 2017), appeal dismissed 2018 WL 2221880 (4th Cir. Feb. 14, 2018) (citing DSM-IV-TR).
Here, there appears to be significant errors or oversight regarding the evidence in the record of Plaintiff's adaptive functioning that supports the ALJ was required to thoroughly analyze whether her impairment met Listing 12.05. That is not to say the ALJ was required to find Plaintiff met Listing 12.05, but he should have reconciled the evidence and formed an ultimate conclusion regarding deficits in her adaptive functioning. In light of these errors, and the other evidence in the record indicating Plaintiff may have deficits in adaptive functioning, the undersigned recommends the case be remanded for further consideration by the ALJ of whether Plaintiff meets Prong 1 of Listing 12.05(C).
b. Prong 2 - Valid Score of 60 through 70
With respect to Listing 12.05(C)'s requirement that one have a valid verbal, performance, or full scale IQ score between 60 and 70, Plaintiff was determined to have a verbal comprehension score of 63 and a full scale IQ score of 58 during a consultative examination on July 11, 2014. The Commissioner argues Plaintiff is unable to provide a valid verbal, performance, or full scale IQ score to satisfy Prong 2 because the ALJ noted the full scale IQ score was invalid, as it was inconsistent with "the way [Plaintiff] had functioned in everyday life." [ECF No. 14 at 15-16]; Tr. at 22.
Johnson v. Berryhill, No. 6:16-2669-RMG-KFM, 2017 WL 1653248, at *6 (D.S.C. Apr. 13, 2017) ("The terms 'Verbal IQ' and 'Performance IQ' from the WAIS-III were replaced with 'Verbal Comprehension' and 'Perceptual Reasoning' in the WAIS-IV. Verbal Comprehension and Perceptual Reasoning should be substituted for Verbal IQ and Performance IQ, respectively.") (citations omitted).
The Commissioner notes the state agency consultants found Plaintiff's scores to be invalid. [ECF No. 14 at 15-16]; Tr. at 106-07. However, the ALJ's decision in this case omitted any reference to the verbal comprehension score of 63, and instead referenced only Plaintiff's full-scale IQ score of 58. Tr. at 21, 22. Yet, under the Listing, "[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, we use the lowest of these in conjunction with 12.05." 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.00(D)(6)(c). Thus, in this case, the ALJ focused upon the lowest score and did not make a determination that the verbal comprehension score of 63 was unreliable, invalid, or should not be considered; indeed, as noted above, the ALJ did not mention that score at all. However, it is this score that falls within the requisite range—60 to 70—to fulfill Listing 12.05(C), whereas Plaintiff's full scale IQ score of 58, if valid, would allow her to fall under the score—less than 59—required by Listing 12.05(B).
"The regulations provide that '[s]ince the results of intelligence tests are only part of the overall assessment, the narrative report that accompanies the test results should comment on whether the IQ scores are considered valid and consistent with the developmental history and the degree of functional limitation.'" Washington v. Berryhill, No. CV 6:16-3392-PMD-KFM, 2018 WL 472860, at *6 (D.S.C. 2018), adopted by 2018 WL 461754 (D.S.C. Jan. 18, 2018) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(D)(6)(a) (2015)). Dr. Moody attested the "[r]esults of this administration of WAIS-IV are believed to be valid given [Plaintiff's] good effort" and stated she "showed adequate effort during testing." Tr. at 312. In addition, Plaintiff's academic records reflect she received language therapy and took exceptional student courses. Tr. at 211. Thus, there is evidence in the record of a possible valid, verbal IQ score of 60 through 70.
In his decision, the ALJ noted Plaintiff's full scale IQ score of 58 and later stated,
Little weight is given to Dr. Moody's assessment (Exhibit 3F), as it is not supported by the medical evidence or the way [Plaintiff] has functioned in everyday life. [Plaintiff's] IQ score assessed by Dr. Moody is not consistent with [Plaintiff's] ability to drive, serve as primary caretaker for her four-year-old son, cook, and do household chores. [Plaintiff] has worked in the past with borderline intellectual functioning, and [it] does not preclude at least simple, unskilled tasks . . . .Tr. at 22. As discussed above, the ALJ failed to note the limited extent of the activities that he used to find Plaintiff's score of 58 was inconsistent with her ADLs, such as Plaintiff had to take the driver's license examination at least four times before passing it, only drove during the day, and still needed assistance with directions when driving; she received assistance from Terry in taking care of her son and only "straightened up" messes made by her son as Terry performed the majority of the household chores; and she only performed unskilled work that was not even considered to be PRW according to the ALJ's decision. In addition, the ALJ failed to acknowledge Plaintiff's verbal comprehension score of 63, which is relevant to Listing 12.05(C), not (B). Tr. at 312.
In light of Plaintiff's IQ scores, possibly significant limitations of functional academic skills or ADLs that were not fully addressed, and factual support for a finding of communication deficits, it appears the ALJ should be required to thoroughly analyze whether Plaintiff met Prong 2. Cook, 783 F.2d at 1172-73. The ALJ should reconcile the evidence and address Plaintiff's ability to communicate, along with other evidence regarding the extent of her adaptive functioning, before determining whether her scores or Dr. Moody's assessment are invalid. Smith v. Berryhill, No. CV 1:17-1887-JMC-SVH, 2018 WL 2344540, at *15 (D.S.C. Mar. 23, 2018), adopted by 2018 WL 2332074 (D.S.C. May 22, 2018) (noting, although the "ALJ provided a well-reasoned explanation for his conclusion that [the plaintiff] lacked the requisite deficits in adaptive functioning in most functional areas," the case warranted remand due to the ALJ's failure to reconcile the plaintiff's verbal comprehension score reflecting communication deficits with his ultimate conclusion regarding deficits in adaptive functioning).
c. Prong 3 - Additional Significant Impairment
With respect to Listing 12.05(C)'s requirement that the claimant suffer from another impairment "imposing an additional and significant work-related limitation of function," the Listing provides that "the degree of functional limitation the additional impairment(s) imposes" will be analyzed to "determine if it significantly limits [the] physical or mental ability to do basic work activities, i.e., is a 'severe' impairment(s), as defined in §§ 404.1520(c) and 416.920(c)." 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.00A. The Commissioner does not present an argument regarding Prong 3.
Here, the ALJ found Plaintiff suffered from two severe impairments at step two of the sequential analysis—borderline intellectual functioning and migraine headaches—pursuant to 20 C.F.R. §§ 404.1520(c) and 416.920(c). Tr. at 17. In particular, he stated, these impairments "would have significantly interfered with [Plaintiff's] ability to do basic work-related activity." Id. Thus, there is evidence in the record that Plaintiff had "an additional and significant work-related limitation of function" to meet Prong 3 because the ALJ found her migraine headaches were a severe impairment.
d. Recent Case Law
After evaluating these three prongs, the undersigned notes this district was recently faced with a similar issue in Coe v. Berryhill, No. 2:16-CV-03118-TLW, 2018 WL 1443950, (D.S.C. Mar. 23, 2018).
In Coe, the ALJ had failed to analyze whether the plaintiff met the requirements of Listing 12.05. The magistrate judge pointed to the Fourth Circuit's decision in Hancock that a plaintiff was required to meet all three prongs in Listing 12.05(C) and "an 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, 667 F.3d at 474. Then, the magistrate judge noted "[w]hile the ALJ did not explicitly discuss Listing 12.05 in his decision, the ALJ was quite clear . . . that he concluded the Plaintiff had the severe impairment of 'borderline intellectual functioning'" and "[a] diagnosis of borderline intellectual functioning is 'mutually exclusive of [intellectual disability]." [Case No. 2:16-cv-03118; ECF No. 18] (quoting Jordan v. Comm'r of Soc. Sec., 470 F. App'x 766, 768-69 (11th Cir. 2012)). The magistrate judge recommended, due to "the ALJ's rejection of Plaintiff's IQ score, and the conclusion that Plaintiff has the severe impairment of borderline intellectual functioning," the decision be affirmed, as, "[w]ithout a valid IQ test that falls within the range set forth in Listing 12.05, Plaintiff simply cannot meet that listing." Id. The district court noted the "well-analyzed" report, but rejected the recommendation and, instead, reversed and remanded the case, finding it was "appropriate to require additional analysis by the ALJ so that a conclusion can be reached regarding whether substantial evidence supports the decision." Id. at 2. The district court noted the magistrate judge acknowledged it would "have been better had the ALJ explicitly analyzed listing 12.05" and stated
in the cases cited by the Report . . . the ALJ did perform a listing 12.05 analysis . . . [and the cases] address only whether the ALJ properly evaluated the evidence in support of its listed impairment decision. Case law has not been cited in which the ALJ failed to perform a 12.05 listing impairment analysis. Thus, the cited cases do not provide guidance as to when an ALJ is required to perform a listed impairment analysis.Coe, 2018 WL 1443950, at *2 (referencing Henderson v. Colvin, 643 F. App'x. 273 (4th Cir. 2016); Hancock v. Astrue, 667 F.3d 470 (4th Cir. 2012)). The district court found that, rather than the court attempting to determine whether the plaintiff met the listing, "the better approach is for this case to be remanded so that the ALJ can make a determination as to (i) whether listing 12.05 applies to Plaintiff's claim, and then, if so, (ii) conduct a listing 12.05 analysis." Id. at 2; accord Kline v. Berryhill, No. 2:17-CV-00244-TLW-MGB, 2018 WL 2422044, at *3 (D.S.C. May 3, 2018), adopted by 2018 WL 2416782 (D.S.C. May 29, 2018).
Likewise, as stated previously, the undersigned notes that the cases cited by the Commissioner in support of affirming the ALJ's decision involve decisions wherein the ALJ addressed Listing 12.05 and the courts evaluated whether that analysis was sufficient, not the situation here wherein the ALJ completely failed to acknowledge the Listing. See, e.g., Guiton v. Colvin, 546 F. App'x 137, 141 (4th Cir. 2013) (We have considered Guiton's first two arguments and, for the reasons stated by the magistrate judge and adopted by the district court, find them to be without merit. . . . As the magistrate judge explained, "the ALJ thoroughly analyzed the testimony and available evidence, and reasonably concluded that Guiton [] failed to meet the requirements of Listing 12.05C . . . .").
This hesitancy to perform the ALJ's analysis is in accord with recent Fourth Circuit precedent, as well. In Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656 (4th Cir. 2017), the plaintiff argued below that "the ALJ failed to analyze whether her impairments met the requirements of Listing 12.05 . . . at step three of the sequential evaluation process" and objected "to the magistrate judge's post-hoc application of such Listing," but the district court noted "[i]t is undisputed that the ALJ considered the plaintiff's impairments in light of Listing 12.02, related to borderline intellectual functioning. Id. § 12.02." Patterson v. Colvin, No. 2:14-763-BHH, 2015 WL 5616196, at *3 (D.S.C. Sept. 24, 2015), rev'd sub nom. Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656 (4th Cir. 2017). The district court adopted the magistrate judge's report and recommendation that the plaintiff did not have deficits in adaptive functioning, so she was unable to satisfy Prong 1, noting
[a]s to whether the ALJ's failure to expressly recite Listing 12.05 and its elements is fatal, courts, as the magistrate judge recognized (R & R at 13 n. 3), have routinely held that it is not, proceeding to consider whether the elements of the Listing have been effectively considered. The magistrate judge's conclusion that '[w]hile the ALJ did not specifically assess the Plaintiff under Listing 12.05, the ALJ did find that the Plaintiff's impairment did not fall under any of the Listings' was not error.Id. However, the Fourth Circuit reversed the district court, noting
Based on the findings of [the doctor], the ALJ concluded that Patterson had the severe mental impairment of borderline intellectual functioning, but also found that this impairment did not meet or equal a listed impairment. In so deciding, the ALJ noted other evidence that is admittedly pertinent to his conclusions, but he did not address conflicting evidence, or explain away contrary findings of other doctors in a comprehensive manner. Looking at the ALJ's decision, the most we can say is that he appears to have at least partially examined the correct evidence, and began the correct evaluation.
We cannot affirm the ALJ's evaluation of Patterson's mental impairment because his decision did not explain how he weighed all relevant evidence: he did not rate Patterson's four areas of functional limitation listed in § 404.1520a(c)(3) according to the prescribed scale, nor did he explain how he reached his conclusions about the severity of the mental impairment. 20 C.F.R. §§ 404.1520a(c), 404.1520a(d). For example, on this record, the IQ score is a red flag that the ALJ should have analyzed in greater depth before summarily concluding that Patterson's condition met none of the listed impairments. Likewise, because we cannot review the ALJ's mental-impairment evaluation, we cannot say that he properly assessed Patterson's RFC. 20 C.F.R. § 404.1520a(c)(3); Mascio [v. Colvin], 780 F.3d [632,] 637 [4th Cir. 2015]. And because we cannot gauge the propriety of the ALJ's RFC assessment, we cannot say that substantial evidence supports the ALJ's denial of benefits. See Meyer, 662 F.3d at 707; Mascio, 780 F.3d at 636. Harmonizing conflicting evidence and bolstering inconclusive findings requires credibility determinations that we cannot make; these exercises fall outside our scope of review. See Mascio, 780 F.3d at 637-40.Patterson, 846 F.3d at 662-63. In particular, the Fourth Circuit noted, "[w]e cannot fill in the blanks for the ALJ in the first instance" and the ALJ's failure to show his work "rendered his decision unreviewable." Id. (citations omitted). In a case similar to the issue at hand, a North Carolina District Court concluded:
Put simply, "[t]he ALJ's lack of explanation requires remand." Id. at 640. Normally, our opinion would end here, and we would not go beyond ordering the ALJ to apply the [special techniqueregulation that it failed to observe. Here, however, in the interest of judicial efficiency, we direct the ALJ to provide a more detailed explanation of any evaluation of applicable Listings, including Listing 12.05 . . . .
Ultimately, Defendant asks this Court to assume that the ALJ considered Listing 12.05C, even though it was not mentioned or addressed, to assume that in considering the Listing the ALJ considered and rejected Plaintiff's Verbal IQ score of 66, even though it was not mentioned or addressed, and to assume that the ALJ's decision to give significant weight to the consultative examiner who diagnosed Plaintiff with borderline intellectual functioning based on an overall IQ score necessarily means that the ALJ concluded that Plaintiff did not have deficits in adaptive functioning manifested before age 22. It is not the Court's role to engage in such conjecture, and this Court cannot assume or create a rationale that the ALJ did not provide. Moreover, the Court cannot find that the ALJ's failure to analyze Listing 12.05C is harmless. As set out above, there is a fair amount of evidence that would support the potential application of Listing 12.05C. That is not to say that the application of Listing 12.05C is without question here, but there is at least conflicting evidence, and "insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings." Radford, 734 F.3d at 295. The ALJ's failure to address Listing 12.05C is thus more than a "technical error," and is instead a situation where "the ALJ's failure to adequately explain his reasoning precludes this Court . . . from undertaking a 'meaningful review.'" Id., 734 F.3d at 296. Therefore, the appropriate course is to remand the case to the ALJ for further proceedings.Ollice v. Colvin, No. 1:15-CV-927, 2016 WL 7046807, at *7 (M.D.N.C. Dec. 2, 2016). The undersigned agrees with this rationale, as, here, the record reflects Plaintiff could possibly meet all three prongs required by the Fourth Circuit in Hancock for Listing 12.05(C), but the ALJ failed to address this Listing to allow for meaningful review, despite Plaintiff's numerous assertions before and during the hearing that she met it.
As stated by the Fourth Circuit, "Just as it is not our province to 'reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ],' Hancock, 667 F.3d at 472 (alteration in original), it is also not our province—nor the province of the district court—to engage in these exercises in the first instance." Radford, 734 F.3d at 296. In light of Plaintiff's IQ scores, additional severe impairment, and possible deficits in adaptive functioning reflected in the record, the ALJ should be required to thoroughly analyze whether Plaintiff's impairment met Listing 12.05. The undersigned stresses she does not take a position on the merits of Plaintiff's applications for benefits, but agrees with the Fourth Circuit that "the dispute here arises from a problem that has become all too common among administrative decisions challenged in this court—a problem decision makers could avoid by following the admonition they have no doubt heard since their grade-school math classes: Show your work." Patterson, 846 F.3d at 663. "The ALJ did not do so here, and this error render[s] his decision unreviewable." Id.
The ALJ may find Plaintiff does not meet Listing 12.05, but he should be required to reconcile the evidence and form an ultimate conclusion on it. Based upon the foregoing, the undersigned finds the ALJ's failure to consider Listing 12.05 makes it impossible to tell whether there was substantial evidence to support the determination Plaintiff did not meet a listing. In light of the recent case law in the Fourth Circuit, the undersigned recommends the appropriate course is to remand the case to the ALJ for evaluation of Listing 12.05 and further proceedings.
2. Additional Allegations of Error
Because the RFC assessment is to be based on all the relevant evidence in the case record (20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1)) and the undersigned has recommended the court find that some of the relevant evidence was not adequately considered or explained, the undersigned declines to address Plaintiff's additional allegations of error. III. Conclusion and Recommendation
Although not raised by either party, in an effort of judicial efficiency, the undersigned notes the ALJ accepted the VE's testimony providing Plaintiff could perform work as a cashier, sales attendant, and marker, but two of these positions require a higher reasoning level than the RFC allows and result in an apparent conflict between the VE's testimony and the DOT. Compare Tr. at 19, 23 (limiting Plaintiff to simple instructions and capable of performing these positions), with 1991 WL 671840 (stating a cashier position requires a reasoning level of three), 1991 WL 672643 (stating a sales attendant position requires same) and Keller v. Berryhill, No. 17-2248, 2018 WL 6264813, at *4 (4th Cir. Nov. 29, 2018) ("[A]n apparent conflict exists between a limitation to short and simple instructions and Reasoning Development Level 3 occupations."). Thus, the ALJ may not have been able to rely upon the VE's testimony regarding these positions without clarification of the possible conflicts. Pearson v. Colvin, 810 F.3d 204, 209-10 (4th Cir. 2015) ("An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on this testimony rather than the [DOT]."). Moreover, the final position provided—a marker or retail worker—needs a reasoning level of two, which requires the ability to carry out "detailed instructions." See 1991 WL 671802. However, the ALJ failed to explain or account for the fact that every opinion in the record agreed Plaintiff could not carry out detailed instructions. See, e.g., Tr. at 83 (providing Dr. Harkness' opinion "[Plaintiff] is able to carry out very short and simple instructions, but could not carry out detailed instructions"); 98 (providing Dr. Kendall's opinion stating same); 314 (providing Dr. Moody's opinion stating "[Plaintiff] cannot carry out simple instructions"). The undersigned notes the ALJ may wish to address this issue on remand as well.
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. December 28, 2018
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).