GARNER v. COLVIN, No. 1:2012cv01280 - Document 17 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE JOE L. WEBSTER on 2/18/2015, RECOMMENDS that the Commissioner's decision finding no disability be REVERSED, and the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the AIJ for further administrative action as set out above. To this extent, Plaintiff's Motion for Judgment Reversing the Commissioner (Docket Entry 11 ) should be GRANTED and and Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be DENIED. (Butler, Carol)
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GARNER v. COLVIN Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA ALEXIS V. GARNE,R ) ) ) ) ) ) ) Plaintiff, v C,A.ROLYN W. COLVIN, Acting Commissioner of Social Secutity, 1,:1,2CY1,280 ) ) ) ) Defendant. MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE TUDGE Plaintiff, Alexis V. Garnet, btought this action pursuant to section 1631(c)(3) of the Social Security Act (the "AcC'), as amended (42 U.S.C. $ 1383(c)(3)), to obtain review of. a îtnal decision of the Commissionet of Social Security denying het claim for Supplemental Secutity Income ("SSI") under Title XVI of the Act.1 The Court has before it the cenifìêd administtative record and ctoss-motions for judgment. I. PROCEDURAL HISTORY Plaintiff filed an application for SSI on Octobet 9, 2009, alleging ari onset date of February 12, 2005. Çr.62.) 2 The application was denied initially and agatn upon reconsidetation. (Id. at73;89.) Plaintiff then tequested and was provided a hearing before an Administtative LawJudge ("ALJ"). (Id. at111-13.) At the August 22,201,1 headng wete 1 Carolyn W. Colvin became the Acting Commissioner of Social Secudty on Febnrary 74, 2073. Putsuant to Rule 25(d) of the Fedetal Rules of Civil Procedute, Catolyn lØ. Colvin should be substituted for Michael J. Astue as Defendant in this suit. No further action need be taken to continue this suit by teason of the last sentence of section 205(9) of the Act,42 U.S.C. S 405@. 2 Transcrþt citations refer to the administrative record. Dockets.Justia.com Plaintiff, her attorney, her mother, and a vocational expert determined that Plaintiff was not disabled under the Act. ("\IE"). Qd. at (Id. at26.) The,{LJ 11-18.) On October 4,201.2 the Äppeals Council denied Plaintiffs request fot teview, making the A{'s detetmination the Commissioner's final decision fot putposes of review. (Id. at 1,-3.) II. FACTUAL BACKGROUND Plaintiff was 18 yeats old on date of application,had to communicate in English, and had no past televant a wotk. high school education, was able (Id. at 1.5.) III. STANDARD FOR REVIEW The Commissionet held that Plaintiff ws not under a disability within the meaning of the Act. The Court reviews Supplemental Secutity Income matters in accordance with 42 U.S.C. $ 405(9). 42 U.S.C. $ 1383(c)(3). Undet 42U.S.C. S 405(g), the scope of judicial teview of the Commissionet's final decision is specific and nattow. Srnitlt u. Schweiker,795 F.2d 343, 345 (4th Cir. 1986). This Coutt's teview of that decision is limited to determining whether thete is substantial evidence in the record to support the Commissionet's decision. 42U.5.C. $ a05G); Hønteru. Salliuan,993F,2d31,34 (4th Cir. 1,992);Hay 1,453,1,456 (4th Cit. u. Salliuan,907 F.2d 1990). Substantial evidence is "such televant evidence as a reasonable mind might accept as adequate to support a conclusion." Hanter, 993 tr.2d ^t 34 (citing Nchard¡onu.Perales,4O2U.S.389,401,(1,971)). It"consistsofmote thanamerescintilla""but may be somewhat less than a prepondetàrtce." 1/. (quoting Løws u. Celebreçe, 368 F.2d 640, 642 (4th Cir. 1966)). 2 The Commissioner must make fìndings HoJt,907 F.2d ^t of fact and resolve conflicts in the evidence. 1.456 (citing King u. Calfano, 599 does not conduct a de novo review Schweiker,795 F.2d of the evidence 345. In reviewing for ^t F.2d 597 , 599 (4th Cir. 1979)). The Court not of the Commissioner's findings. substantial evidence, the Court does not unclertake to re-weigh conflicting evidence, to make crecìibility cleterminations, or to substitute its judgment for that of the Commissioner. Craig (citing differ HAt,907 tr.2d as ^t u. Chater, 7 6 tr.3d 585, 589 (4th Cir. 1,996) 1,456). "!(/hete conflicting evidence allows reasonable minds to to whether a claimant is disabled, the tesponsibility for that decision falls on the fCommissionet] (or the [Commissionet's] designate, the ALJ)." 1/. (quoting lØalker u. Bowen, will be reversed only if no the recotd as adequate to suppott the detetmination. See 834 F.2d 635, 640 (7th Cit. 1987)). The denial teasonable mind could ^ccept of benefìts Nchardson u. Perales,402 U.S. 389,401, (1,971). The issue before the Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's finding that Plaintiff is not disabled is suppotted by application of the televant substantial evidence and was teached based upon law. See a correct id.; Cofman u. Bowen, 829 tr.2d 51,4, 51,7 (4th Cit. 1,987). IV. THE ALJ'S DISCUSSION The Social Security Regulations defìne "disability" for the purpose of obtaining disability benefìts as the "inability medically determinable physical to do any substantial gainful activity by reason of any ot mental impairment3 which can be expected to tesult in 3 ,\ "physical or mental impairment" is an impairment resulting ftom"aÍtztomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical ard labotatory diagnostic techniques." 42 U.S.C. $ 1382c(a)(Ðq). -) death or which has lasted or c nbe expected to lst fot months." 20 C.F.R. S 416.905(a); see al¡o a continuous period of not less than 12 42U.S.C. $ 1382c(a)(3XA). To meet this defìnition, a claimant must have a severe impaitment which makes it impossible to do ptevious work or any other substantial gainful acttvitya that exists in the national economy. 20 C.F.R. 41,6.905(a); see also S 42U.5.C. $ 1382c(a)(3)(B). A. The Five-Step Sequential Analysis The Commissioner follows a five-step sequential analysis to ascertain whethet the claimant is disabled, which is set fotth in 20 C.F.R. S 416.920 . See Albrigþt u. Comm'r of Soc. Sec. Adrairu.,174tr.3d 473,475 n.2 (4th Clr.. 1,999). The ALJ must detetmine in sequence: (1) ìØhethet the claimant is engaged in substanlal gainful activity claimant is Ø wotking). If so, the claimant is (2.a., whether the not disabled and the inquiry ends. \Whether the claimant has a severe impairment. If not, then the claimant is not disabled and the inquiry ends. (3) lØhether the impairment meets or equals to medical criteria of 20 C.F.R., Patt 404, Subpart P, .t\ppendix L, which sets forth a list of impairments thatwanant finding of disability without considering vocational criteria. If so, the claimant a i¡ disabled and the inquiry is halted. (4) \)Øhether the impairment prevents the claimant wotk. If not, the claimant ftom petfotming past relevant is not disabled and the inquiry is halted. o "substantial gainful activity" is work that (1) involves performing significant or productive physical or mental duties, and Q) is done (or intended) for. pay or profit. 20 C.F.R. S 416.910. 4 (5) ìØhether the claimant is able to perform any othet wotk considedng both her residual functional capacitys and her vocational abilities. If so, the claimant is not disabled. 20 c.F.R. S 416.920. Hete, the AIJ ftst detetmined that Plaintiff had not engaged in substantial gainful activity since het application date of Octobet 2,2009. Gt. 11.) The ALJ next found in step two tht Plaintiff had the following severe impairments: otganic btain dysfunction, tesiduals ftom fiactures received in an ATV accident, attention deficit hyperactivity disorder, deptessive disotdet, posttraumatic stress disorder, and a visual dysfunction. (Id.) At a step three, the ALJ found that Plaintiff did not have animpzkment or combination of impairments listed in, ot medically equal to, one listed in ppendix sequence the ALJ detetmined that teached the 1. Qd. at12.) At the fourth step of the Plaintiff had no past televant wotk. Qd. at 15.) The ALJ fifth step of the sequence and concluded that there wete jobs in the nattonal economy which Piaintiff could petform consistent with her RFC, age, education, and work experience (Id. ^t 1.6.) B. Residual Functional Capacity Determination Prior to step four, the ALJ determined Plaintiffs RFC based on his evaluation of the evidence, including Plaintiffs testimony and the findings of treating and examining health care s "Residual functional capacity" ("RFC") is the most z clatmant can do in a work setting despite the physical and mental limitations of her impafument and any related symptom (e.g., pan). See 20 C.F.R. $ 416,945(a)(1); :ee also Hìnes u Barrubart,453 F.3d 559,562 (4th Cir. 2006). The RFC includes both a "physical exettional or strength limitation" that assesses the claimant's "abilty to do sedentary, light, medium, hearry, or very heavy work," as well as "nonexertional limitations (mental, sensoty or skin impairments)." Halla. Harris,658 F.2d 260,265 (4th Cir. 1981). 5 ptoviders. (Id. at 1,3-1,5.) Based on the evidence as a whole, the ALJ detetmined that Plaintiff retained the RFC to petform light work. Qd. at 1,3.) Flowever, Plaintiff was limited to occasional bending, stooping, kneeling, ctawling, and only occasional climbing with a sit/stand option that allows the clatmant to stand and stretch for L to 2 minutes at her work station. In addition, the claimant is limited to simple routine jobs that have a SVP [Specific Vocational Prepatation] of one or two, low stress type work that does not involve ptoduction pace, work deadlines, and whete the claimant can wotk at het own pace within a predictable schedule, involving no more than ftequent intetaction with supewisors, co-workers, ot the public. (Id. at 1,3-14.) C. Past Relevant Work The ALJ found in step fout that Plaintiff had no past relevant D. wotk. (Id. at 1,5.) Adjustment to Other Work The claimant bears the initial burden of proving the existence of a disability. 42 U.S.C. $ 1382c(a)(3XHXi); 20 C.F.R. S 41,6.202-03; Smith u, Califaruo,592F.2d 1,235, 1236 (4th Ctt. 1,979). The ALJ found that given het age, education, wotk expetience, and RFC, there wete jobs in the national economy that Plaintiff could petfotm, such as sock foldet, ticket stamper, and work-ticket distributor. (Tr. 16.) V. ANALYSIS Plaintiff argues that the ALJ erred by failing to consider all relevant evidence and failed to evaluate whether the Plaintiff met or equaled the requirements for an intellectual disability 6 set forth in 12.05C of the Listings.6 pocket Ent y 12 at 4.) Plaintiff contends that ALJ Rideout committed significant error by not even mentioning multiple IQ scotes on record which place Ms. Garnet in the mild range of mental tetardation. In Apdl of 2005,her verbal IQ was assessed at 65, her petfotmance IQ at 66 and het full scale IQ at 63. In Novembet of 2009, her verbal IQ was assessed at 69 and her full scale IQ was found to be 70. The ALJ did not even mention these scotes - he only noted a full scale IQ of 72 at a 201.0 evaluation. Only mentioning evidence which weighs in favor of his own decision tequires temand as the adjudicatot must consider evidence which weighs in favor of apptoval as well. He also did not even mention Listing 1,2.05C at Step 3 of the SEP despite its implication given the IQ scotes between 60 and 70. Not even attempting to analyze whether or not a Plaintiff meets a medically relevant listing constitutes ettot tequiring remand fot assessment of the relevant listing. (Id. at 4-5 (citattons omitted).) For the following reasons, the undetsigned agrees with Plaintiff and therefote, this matter should be temanded for futhet considetation by the Commissionet. A. The ALJ Erred In Failing to ConsiderAll Relevant Evidence in Determining Whether Plaintiff Met Listin g I2.05C. Plaintiff argues that the AIJ's failure to consider Listing 12.05C at Step 3 of the sequential analysis constitutes error. The Court agrees. A duty of an ALJ includes identi$ting "rele'vant listed impaitments," and "fcomparing] each of the listed criteria to the evidence of [a claimant's] symptoms." Cook u. Heckhr,783 tr.2d 1,168,1,173 (4th Cir. 1986). The duty to identì$r televant listed impairments is triggered when there is *ampIe evidence in 6 Although it is not entirely cleat as to whether Plaintiff makes two separate and distinct arguments on it appears that Plaintiffs teference to "relevant evidence" speaks directly to her IQ scores which atep^f^mount to meeting Listing 12.05C. Thus, the Court will address the IQ scores in Prong 2 under Listing 12.05C. appeal, 7 the record to support a determinaion'that the claimant's impairment meets ot equals one the listed impairments ." Ketcheru. of Apfel,68 F.Supp.2d 629,645 (D. Md. 1999) (quoting Cook,783 F.2d at 71,72); see, €.!., Martin u. Coluin, No. 1:11CV408, 201,4 lü'ry- 41.L4207, at *4 u. Coluin, No. 1:10CV901, 201,4WL 408753, at x4 (A{.D.N.C. al¡o Morgan u. Coluin, No. 7:13-CV-279-BO, 201.4 UlL 6473525, at *2 (44.D.N.C. Aug. 20, 2014); Drane Feb. 3, 201,4); see (E.D.N.C. Nov. 18, 201,4) ("The AIJ's failute to consider Listing 12.05C in this instance, where thete is obviously evidence that may support the listing, is clear ettor."). Step 3 of the sequential analysis requires the ALJ to determine whether PlaintifPs impairment(s) meets ot equals the medical criteria of 20 C.tr.R.,Part404, Subpart P, Appendix L, which sets forth a list of impairments thatwarnnt vocational criteria. 20 C.F.R. are set forth, as S a finding of disability without considering 416.920. Listing 12.05 is descdbed, and its applicable criteria follows: 12.05 Intellectual disability: Intellectual disability tefets to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested dudng the developmental period; i.e., the evidence demonsttates or supports onset of the impairment before age 22. The tequired level of severity for this disorder is met when the tequirements in A, B, C, ot D ate satisfied. C. A valid verbal, performance, or full scale IQ of 60 through 70 ar,d a physical ot other mental impairment imposing an additional and significant work-telated limitation of function; 20 C.F'.R. Pt.404, Subpt. P, App. 1, S 12.05 8 The Fourth Circuit has described the first showing under Listing 1,2.05-deficits in adaptive functioning initially manifested duting the developmental Hancotk u. period-as "Ptong L." Astrae,667 F.3d 470,473 (4th Cir. 201,2). The Ptong 1 diagnostic criteria for an intellectual disability includes two compo¡s¡¡s-dsficits in adaptive functioning and an onset before age 22-that both must be satisfied in otdet for the Lisung to apply. Id. at 475 (commenting that an ALJ's finding that neither component was satisfìed would be upheld if "fe]ither finding alone" was suppotted by substantial evidence). The Foutth Citcuit has also described the conjunctive paragraph C requirements-a valid verbal, performance, scale or full IQ of 60 thtough 70 and a physical or other mental impafument imposing an additional and significant work-related limitation of function-as "Prong 2" and "Prong 3." Id. at 473. Hete, in his decision, the ALJ evaluated Plaintiffls claim that her impairments met the requirements of any ìisted impairment: The state agency consultants determined that the claimant's impafuments did not meet ot equaled [sic] the cÅteria of any of the listed impairments. No tteating ot examining physician has mentioned findings that the claimant's condition either met or was medically equal in sevetity any [sic] of the of the listed impairment þic]. After cateful revieq the Administtative Law Judge finds that the claimant does not have impairments that meet ot equal the requitements of any section of ppendix 1. Qr.12.) The Commissionet contends that Plaintiff does not have valid IQ scores ot deficits in adaptive functioning. (Docket Entty 1,4 at the 5-7,) Moteovet, the Commissionet AIJ noted that neither her physicians nor stated ^geîcy impairments met ot equaled a listing section. (Id.; see also Tr. 9 asserts that physicians concluded that het 12.) Howevet, thete is ample evidence that the AIJ should have consideted whether Plaintiffs impafuments met Listing 12.05C. Undet Ptong 1, there is evidence to show that Plaintiff may have deficits in adaptive functioningthatmanifested befote she tutned expressly defìne 'defìcits 22. \)7hile Ptong 1 of Listing 1,2.05C "does not in adaptive functioning' . 'fa]daptive activities' are descdbed elsewhere in the fMental Disotdets] Listing . . . as 'cleaning, shopping, cooking, taking public transpottation, paying bills, maintaining a tesidence, c tiîg ^ppropri^tely and hygiene, using telephones and ditectoties, and using a post offìce."' fot yout gtooming Hawle1u. AstraqNo. 1,:09CY246,2012WL 1268475, at x5 G\4.D.N.C. Apr. 1,6,201,2) (citing Blancas u. Astrwe,690 F. Srrpp. 2d 464,476 CX/.D. Tex. 2010) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, SS 12.05, 12.00(CX1))); accord Hageru. Attrue,No. 2:09CV1357,201,1,WL1299509, at x2 (S.D.W.Ya.Mar. 31,201.1) (unpublished).2 This "includefs] limitations in areas such as communication, seif-cate, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, wotk, leisute, health, and safety. 21,8 (4th Clr. 2012) (citìng Arkins case law shows that the issue u. Jacl<soru u. Astrue, 467 tr. App'x 214, Virginia,536 U.S. 304,309 n. 3 (2002)). To this extent, of whethet a claimantmanifested deficits in adaptive functioning during the developmental petiod is a fact-specifìc inquiry with few bright-line rules. Salmons u. A$ruq No. 5:10CV195-RLV,201,2WL 1.854485, at *5 See, e.g., CX/.D.N.C. May 23,201,2) 7 Though Listing 12.05 does not specifically define "adaptitve functioning," SSA regulations provide that "[t]he definition of [mental retardation] . . . in [the] listings is consistent with, if not identical to, the of [mental retatdation] used by the leading professional organizations." Technical Revisions to Medical Crtteria fot Determinations of Disability, 67 Fed. Reg, 20,018-01.,at20,022 (Apr. 24, 2002). Because "the SS,{, declined to adopt any one of [these] specific de{initions . . . the inttoductory par.agraph of Listing 12.05 can be met if the individual is found to have, intet aha, deficits in adaptive functioning as defined by any of the four professional orgarrjzattons," Durden u. Aslrue, 586 F. Supp. 2d 828,834 (S.D. Tex. 2008). definitions 10 (collecting cases). Additional case law suggests that literacy is also an impottant factor in determining whethet a clzimant has deficits in adaptive functioning. See Lackel a. U.S. Dtþ't of Heath dz HamaruSeras.,890 F'.2d 666,668-69 (4th Cir. 1989); Salm0ns,201,2WL 1884485, at*7;Hohsclaw u, Astrue, No. 1:10CY1.99,201,1, WL 6935499, at *4 flX/.D.N,C, Dec. 30, 201.1); Nuers u. Attrae, No. 8:10-cv-314-RMG,201.1,WL2581447,*4 (D.S.C.June28,201,1). Similarly, whether the claimant has ever lived independently 1.884485, at*7 , with Hohclaw,201,1, is a televant inquþ. Compare Salmons,201,2 VlL WL 6935499, at x5. ,{nothet guiding factor is whether the claimant has ever provided care for othets, or whether she herself is dependent on othets for care. Compare Salmon:,201,2WL 1884485, at x7 (noting claimant was heavily dependent on his mother and was not responsible for the care or supervision of others) aad Holßclaw, 201,1, WL 6935499, at *4-5 (noting claimant had nevet lived independently and tequired a patent's help) with Hancoc/<, 667 F.3d at 47 5-7 6 (afftming denial of benefìts where the claimantman ged the household and cared for her three young grandchildren), and Caldwella. Astrue, No. 1:09cv233,201.1WL 4945959, at *3 CX/.D.N.C. Oct. 1.8,201.1) (claimant assisted in the carc of elderly parent). School records and past academic performance also are important indicatots of deficits in adaptive functioning prior See to age 22. Salmons,201,2WL 1884485, at *7 ("[F]unctional academic skills is the primary measute deficits of adaptive functioning before age 22."); Nuers, 201,1, WL 2581,447, at of *3 (noting claimant classifìed as special needs at school, had repeated evaluations in elementary school with IQ scores all in the 50s, and dtopped out of school in the ninth grade); ¡ee al¡o Corgers 1,1 u. Astrue, No. 4:11-CV-00037-D,201,2WL 3282329, at x8 $une 29,201.2), adoþted in 2012\ü/L 3283285 @,.D.N.C. ,\ug. 10, 2012) (discussing the claimant's school history).8 Additionally, work history, while it cannot preclude benefits whete the Listing 1,2.05C cnteria are otherwise met, Lackey 890 F.2d at 669, can be relevant in determining whethet claimant manifested deficits 475-76 (concluding the adaptive functioning in adaptive functioning ptiot to age 22. Høncock, 667 tr3d a at AIJ's finding that the claimant did not manifest requisite deficit in to be suppotted by substantial evidence where the A{ among m^îy other factors, that the claimant had wotked several jobs); Hart¡ u. considered, Astrue,20L2 WL 529982, at *6 n. 3 (D.S.C . Jan. 30, 201,2) (distinguishing Lackel because the ALJ used the claimant's work history as only one factor to suppott his finding of no significant deficits in adaptive functioning and because the claimant in Hart¡ did not otherwise meet the Listing 12.05C ctiterion of a valid IfL IQ score within the range of 60-70), adoþted and incorþorated in 2012 529980 (D.S.C. Feb.17, 2012). Finally, the tasks a claimarris able to undettake, although not determinative, have been consideted in this analysis. 5:08-CV-421-FL,2009 WL 1,675958, ú x6 p,.D.N.C. See gerceralþ Rødford u. Astrue, No. June 10, 2009) (finding that the claimant's ability to perform ceftain tasks was not inconsistent with mild mental retardation); Íee, e.g., Hancock, 667 F .3d àt 47 6 & n. 3 (afftming ALJ's considetation of the claimant's ability to petfotm tasks such as shopping, paying bills, and making change); Salru0rus, 201,2 WL 1884485, at *7 (discussing claimant's inability to do household chotes, cook, and drive). Here, the Commissionet points out some 8 of Plaintifls abilities based upon her Although Conlers was add¡essing Listing 12.058, the adaptive functioning analysis in that case is instructive even when the issue is whethet the Listing 1,2.05C crtteria met. ^te 12 Function Repott and testimony. (Docket Entry 14 at 6-7; see also Tr. 31-33,37-38,205-09.) However, the administrative tecotd also includes evidence of PlaintifÎs inability to correctly perfotm many household chotes. (Tt. 38, medications 50.) Plaintiff needs assistance in taking (Tt. 44, 51..) Although Plaintiff completed high school, the record teflects academic limitations (including a 504 plan) Plaintiff underwent after the ATV incident. Gt. 39, 21.5-18,222,224-25,229,233-38.) Additionally, Plaintiff engaged in unskilled wotked dudng a shott pedod, but was ultimately tetminated ftom het ¡ob fot ptoviding the incottect dates fot her vacation. (t. on het own (Tt. 33-34, 40.) \X/hile the ALJ indicated several times that Plaintiff has lived 1,3-'1,4), the tecotd suggests otherwise. Other than abdef attempt to l-ive with her sistet, it appears that Plaintiff has lived with her parents for her entire life. Qr. 29-30,39, 49-50.) Plaintiff no longet drives because of her frequent accidents as a tesult of poor pedphetal vision. Gr. 30-31, 51.-52.) Additionally, the ALJ "accept[s] the fact that the fPlaintiff] has ptoblems with het memory and her ability to recall and follow instructions because of het cognitive disorder . . . ." (Tr. 15.) All of this is not to say thatPlaintiff have deficits in adaptive functioning which manifested before age 22. However, it does does ptovide ample evidence under Prong 1 such to ttigger an analysis under Listing 1,2.05C. Ptong 2 under Listing 12.05C is satisfied when a claimant has 70. a valid IQ score of 60 to 20 C.F.R. Pt.404, Subpt. P, App. 1, S 12.05C. Plaintiff argues that the ALJ failed to consider all of the IQ Test scores in the record, two of which are in the range of 60 and70.e n The ìTechslet Adult [¡¡slligence Scale provides verbal, performance, and full scale IQ scores, and the SSA uses the lowest of the thtee scotes when analyznglisting 1,2.05.20 C.F.R. Part 404, Subpart P, App.1, $ 12.00D(6)(c); ne also Rainry u. Heckler,770 F.2d 408,41,0 (4th Cir. 1985). 13 (t 273,348, 650.) In the Fouth Circuit, an N,J is permitted to weigh conflicting IQ test tesults. Hancock, 667 F.3d at 474 (citing Murþ@ u. Bowen,810 F.2d 433, 437 (4th After weighing the validity of an IQ test, the ALJ has the discretion to teject Cir. 1987). a test's validity.to Id, Although the ALJ does not discuss Listing 12.05C in his analysis, he does mention one of the test scores in his Step 2 anaiysis. The ALJ found that Plaintiff had "bordedine intellect [sic] function" based on "a full-scale Scale-IV." [t. IQ score of 72 on the 'V7eschlet Adult Intelligence 1,2,650.) The AIJ mentions only Plaintiffs March 2010 test in making this detetmination. (d.; see id. at 11-16 (fultns to mention any other record includes evidence of thtee separate IQ IQ test)). However, the tests for Plaintiff: the March 2010 test; a Novembet 2009 test, in which Plaintiff scoted 69 for vetbal IQ, and 70 for full-scale IQ; and IQ, and 63 for Qr.1,2,273,348.) The ALJ failed to mention the 2005 and2009IQ tests in his an April 2005 test, in which she scored 65 lor vetbal IQ, 66 for perfotmance full-scale IQ. decision. Defendant argues that alI thtee consultantsll and therefore (Docket Entry 14 at the,{IJ's 3-4.) This IQ tests weîe consideted by the state agency failure to weigh the tests explicitly was harmless. argument misunderstands the role of the state agency consultants. The ALJ is tequired to balance conflicting evidence and make 10 The Commissioner argues that a detetmination of Plaintiffs IQ scores do not reflect life-long functioning in the range of 60-70. pocket Ettry 14 at 5-6.) Such a conclusion would have the Coutt, not the LJ, deterrnine the validity of Plaintiffs IQ scores. The discretion of invalidating IQ scores is left to the LJ, Hancock, 667 F.3d at 474. rr The Court notes that that the state agency physicians did not explicitly considet Listing 12.05C. (SeeTr 67-68, 83.) 14 disability, not the consultants. See Ha1s,907 F.2d^t1,456. In doing so, the ALJ discuss relevant evidence that weighs against his ,ALJ did not do this decision. See it required to Marph1,810 F.2d at 438. The here. Consequently, the undetsigned cannot detetmine whethet the ,tLJ's decision was suppotted by substantial evidence because it is impossible to tell rvhat weight, 7 34 if F .3 d any, was given 288, 29 5 (4th to the -A.ptil 2005 and November 2009 IQ tests. Cir. 201,3); Coo k, 7 83 F .2d ^t 1,1,7 .lee Radford u. Coluin, 3. Last, there also is evidence implicating Prong 3 undet Listing 12.05C. To quali$' as a "significant work-related limitation" under Prong impairment "need not be disabling in and of itself." 3, the tequired Branþam u. Heckler, physical TT ot mental 5 tr.2d 1271., 1.273 (4th Cir. 1985). This requirement is therefore met when the ALJ has found that a claimant has other severe 1,36425, at impairments. Luckey 890 F'.2d at669;Watson,No. CBD-1,1-2491,201,3WL *8 (D.Md. Jan. 9,201,3);20 C.F.R. pt. 404, Subpart P, App. 1, S 12.004 (descdbing "significantly limits" as, "i.e., is a'seveÍe'impafument(s), as defined in [$ 416.920(c)). Hete, at step two, the ALJ has already found that Plaintiff had sevete impairments, including "otganic btain dysfunction, tesiduals ftom ftactutes teceived in an ATV accident, attention deficit hyperactivity disorder, a depressive disorder, posttraur::rattc stress disordet, and a visual dysfunction," that may satisfy Ptong 3 of the 1,2.05C analysis. Gr. 11-1,2.) Thetefore, as to Ptong 3, the recotd shows sufficient evidence wattanting an analysis by the AIJ Plaintiff met the requirements fot listing under as to whethet 1,2.05C. In light of the evidence, the ALJ ered in failing to considet listing 12.05C. Thus, "remand is apptoptiate whete an N,J fails to discuss relevant evidence that weighs against his 15 decision." Iuel u. Barnhart,393 F.Supp .2d 387 ,390 (E.D.N.C. 2005) Qiting Marpþt 81.0 F.2d at 438); ue aln Radford,734 tr.3d ^t 295 ("fl]nsufficent legal analysis makes it impossible fot a reviewing coutt to evaluate whethet substantial evidence supports the ALJ's findings."); Cook, 783 F.2d ^t 1173 ("tX/ithout . . . explanaton, it is simply impossible to tell whether there was substantial evidence to support the detetmination."); Hines u. Bowen, 872 tr.2d 56, 59 (4th Cir. 1989) (tequiring explicit indication by the ALJ as to the weight given to each piece of televant evidence). None of this necessarily means that Plaintiff is disabled under the Act and the undersigned expresses no opinion on that matter. It is not for this Cout to weigh the competing evidence and determine whethet the Plaintiff qualifies fot listing undet 12.05C. See Craìg7 6 F.3d at 589. Nevetheless, for the foregoing teasons, the undetsigned concludes that the proper course here is to remand this matter for further administrative proceedings. VI. CONCLUSION After a careful consideration of the evidence of tecord, the Coun fìnds that the Commissioner's decision is not supponed by sufficient legal analysis such that the Court cn detetmine whether the decision is suppoted by substantial evidence. Further, the A{ failed to consider Listing 12.05C when there was ample evidence to trigger such an analysis. Accotdingly, this Coutt RECOMMENDS that the Commissioner's decision finding no disability be REVERSED, and the matter be R-EMANDED to the Commissioner undet sentence four matter to the of 42 U.S.C. $ a05G). The Commissionet should be directed to temand the r{{ for furthet administrative action as set out above. To this extent, Plaintiffs Motion fotJudgment Revetsing the Commissioner (Docket E.ttty 11) should be GRANTED 16 and Defendant's Motion fotJudgment on the Pleadings (Docket Er,ry 13) be L. United Dutham, North Carchna February 78,201,4 't7 Magistrate Judge DENIED
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