NICHOLS v. COLVIN et al, No. 1:2014cv00536 - Document 23 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 08/05/2015; the Court RECOMMNEDS that Defendant's Motion to Dismiss Improper Parties (Docket Entry 6 ) be GRANTED an d that Plaintiff's "Motion to Amend Improper Party" be DENIED (Docket Entry 19 ). The Court RECOMMENDS further that the record be amended to reflect the Commissioner as the only defendant in this action. Additional ly, after a careful consideration of the evidence of record, the Court finds that the Commissioner's decision is not supported by substantial evidence. Accordingly, this Court RECOMMENDS that the Commissioner's decision finding no disability be REVERSED, and the matter be REMANDED to the Commissioner under sentence four of42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for further administrative action as set out above. To this extent, Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 17 ) should be GRANTED and Defendant's Motion for Judgment on the Pleadings (Docket Entry 21 ) be DENIED. To the extent that Plaintiff's Motion seeks an immediate award of benefits, it should also be DENIED. (Garland, Leah)
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NICHOLS v. COLVIN et al Doc. 23 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA JOHN WESLEY NICHOLS, ) ) ) ) ) ) ) ) ) Plaintiff, V CAROLYN W. COLVIN, Acting Commissioner of Social Security, et al., I:14CY536 ) ) ) Defendants. MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff,John Wesley Nichols, Social Security denying his claims secutity seeks review of a final decision of the Commissioner for social security disability benefits and income. The Cout has before it the certified of supplemental adminisuative record and cross-motions fot judgment. @ocket Entries 9, 1.7 and 2'1,.) Defendant has also filed a Motion to Dismiss Imptopet Parties @ocket Entty 6) and Plaintiff, in tutn, has also fìled a "Motion to mend Improper ParLy" (Docket Entry 19). I. PROCEDURAL HISTORY Plaintiff fìled applications for a period of disability, disability insurance benefìts, and supplemental security income in Noveml¡er of 201,0 alleging a disability onset date of October 1,5, 2010. Çr.22, 198-205.) The applications were denied initially and agarn upon teconsidetation. (Id. at 137 -42, 1,45-1,52.) Plaintiff then requested a hearing before ,\dministtative Law Judge (",\LJ"). (Id. at1,54.) At the November 8, 201,2 headng an were Dockets.Justia.com Plaintiff, his attorney, and a vocational expet the AIJ ("VE"). Qd. at 40-70.) On February 15,201,3, determined that Plaintiff was not disabled under the -dct. (d. at 22-34.) On Apdl 24, 2014 the ,{.ppeals Council denied Plaintiffs request for review, making the A{'s determination the Commissioner's final decision for purposes of review. Qd. at 1,1.-1,6.) II. STANDARD FOR REVIEW The scope of judicial teview of the Commissioner's final decision is specific and narrow. Smitl¡ u. Scbweiker, 795 F.2d 343, 345 (4th Cu. detetmining if there is substantial evidence decision. 42U.5.C. 907 tr $ 1986). Review is limited to in the record to support the Commissioner's a05G); Hanter a. Salliuan,993 tr.2d 31,34 (4th Cir. 1,992); Hay .2d 1,453, 1456 (4th Cir. 1 990). In reviewing for subst anlal evidence, u. Salliuan, the Court does not te-weigh conflicting evidence, make ctedibility detetminations, or substitute its judgment for that of the Commissioner. Craigu. Cltater,76F.3d 585, 589 (4th Cir. 1,996). The issue before the Court, thetefote, is not whethet Plaintiff is disabled but whethet the Commissioner's finding that he is not disabled is supported by substantial evidence and was teached based upon a col.rect application of the televant law. Id. The Court notes too that Plaintiff ptoceeding pro se in this matter, and pleadings. See it has therefore endeavored to liberally consffue is his Haines u. Kemer,404 U.S. 51,9,520-21, (1,972). III. THE ALJ'S DISCUSSION The AfJ followed the well-established five-step sequential analysis to ascertain whether the claimant is disabled, which is set fonh in 20 C.tr.R. u. Comm'r of Soc. Sec. Adnin., '1,74 SS 404.1520 and 41,6.920. See Albngbt F3d 473, 475 n.2 (4th Cir. 1999). Hete, the ALJ [rst 2 detetmined that Plaintiff had not engaged 201.0, the alleged onset date. (Id. at in substantial gainful activity since Octobet 24.) The -dLJ next found 1.5, that Plaintiff suffeted ftom the following severe impairments: leatning disability; botdetline intellectual functioning; drug addiction and alcoholism; and major depressive disorder with psychotic featutes. Qd.) At step three, the .LJ found that Plaintiff did not have an impairment impairments that meets ot medically equals one listed in Appendix step four, the ,\IJ 1. or combination of Qd. at 26.) Pdor to determined Plaintiffs RtrC based on the an evaluation of the evidence, including Plaintifls testìmony and the findings of teating and examining health cate ptoviders. (Id. at 28-32.) Based on the evidence as a whole, the ALJ detetmined that Plaintiff retained the RFC to work at all exettional levels, so long as he was limited to (1) no fast-paced wotk, (2) simple, routine, repetitive tasks, (3) with stable houts and locations. (Id. at28-29.) At the fouth step, the AIJ determined that Plaintiff was able to perform his past televant work as a funiture mover. (Id. at 32.) The ALJ also tendered an altetnative step fìve ûnding, determining that, given Plaintiffs age, education, work experience, and RFC, thete wete other jobs that Plaintiff could perform. (Id. at 32-33.) Consequently, the ALJ determined that Plaintiff was not disabled from the alleged onset date (Octobet 15, through the date of the decision (February 1,5,201,3). Qr. ß-3a.) IV. ANALYSIS PlaintifPs Motion fotJudgment on the Pleadings states, in its entirety: PlaintifPs Response to/objection of the Commissioner's decision or aspect to the recotd which counsel contends is effoneous. ^ny LJ, Emanuel C. Edwatds, who heard [PlaintifPs] case for a J 201.0) U.S. 103, 110-111 (2000). The SSA's tegulations implement this pdnciple: the headng is to be "conduct[ed] in an informal, nonadvers^ry manner." 20 C.F.R. 416.1400þ). Nonetheless, "[a]n individual is not disqualifìed [from judging because he has formed opinions about 71,0 ^ ca.se SS 404.900þ), a case], based on his or her participation in howevet, it." Bowens, F.2d at 1020. It is only when remarks "display a deep-seated favotitism or antagonism that would make fair judgment impossible" that bias may be established. Uteþt u. United States,510 U.S. 540, 555 (1,995).2 "Not establishing bias or pattiality, however, ate exptessions of impatience, dissatisfaction, annoyance, and even anger, that arc within the bounds of what impetfect men and women . . . sometimes display." Id. at 555-56. Accordingly, a plaintiff allegingALJ bias bears a"heavy burden" of ptoof. Sinþtonu.MarunCoøn[t^,i.C., 1,32F. S.tpp. 2d 407,411 flX/.D.N.C. 2001). ALJ's are entitled to the same "presumption of honesty and integrity" ^s are judges. Moris u. Ciry of Danuille,744 F.2d 1041,, 1,044 (4th Cir. 1984). -A.s such, prejudice or bias must be evident from the record and not based on speculation ot infetence. Huck¡ u. Coluin, No. 2:12-cv-76,201,3 \XT, 1810658, at x7 (Nl.D.lø.Va. pr. 3,2013) (citing Nauistarlnt'/Trar¿¡. Corþ. u. United Srates 8.P.A.,941. F.2d1,339,1360 (6th Cir.1991)). The undersigned has reviewed the headng ttansctipt in this case. (Tt. 40-70.) It contains no rematks or any conduct by the ,{LJ that would bias or prejudice Plaintif{ ot that somehow stymied the development of the evidentiary recotd. Any "exptessions of impatience, dissatisfaction, annoyance, [or] even aflgef," demonstrated by the ALJ dudng the evidentiary hearing wete "within the bounds of what impetfect men and women . . . sometimes 2 Anoth.r means of establishing bias is by showing that a judicial opinion derives ftom an extrajudicial source, but there is absolutely no indication that this occurred here. See I)tek1,510 U.S. at 555. 5 disability on February 15, 201.3, acted with bias, not based on actual doctor's recofiunendations and solely on the basis of the APPEAR-,\NCE of fPlaintiffl who cleady in the microphone stated he was mentally retarded, then openly stated, a big guy like you could push a lawn mower. The attorney he had would not let him use the bathtoom and was in gteat disttess to answer, he also was not in full understanding of what being ffumed in Obama meant, but only understand telling the ffuth with his hand on the bible of which is his religious ptefetence. Along with new document that were not allowed to be submitted from psychiatrists and physicians. (Docket E.rry 17 at 1,-2.) The Court interprets this as an allegatton that (1) Plaintiff did not receive a fatt and impartial hearing before the AIJ and Q) the Decision of the ALJ is not supported by substantial evidence, because it did not take proper account of his allegations his intellectual disability.l ,{.s explained below, of while PlaintifPs ftst atgument fails, his second is persuasive. A. The Record Does Not Demonstrate Judicial Bias. The dght to procedural due process applies to social security benefits detetminations, Nchardsoru u. Perales,402 essential element U.S. 389, 401.-402 (1.971), and an "impartial decision maket is an of due process," Bowensu. u. N.C. Dtp't of Hamaa Res.,71,0 tr.2d 1015, 1.020 (4th Ck.1983) (quoting Goldbergu. Ke/þ,397 U.S. 254,271. (1970). Because "Social Secudty proceedings ate inquisitodal rather than adversatial," the ALJ has a "drty to investigate facts and develop the arguments both for and against granting benefits." Sirn¡ t Effective u. the Apfel, 530 September 3,201.3, the Agency replaced the term "mental retardation" in Listing 1,2.05C with "intellectual disability" since the former term "has negative connotations, has become offensive to many people, and often results in misunderstandings about the nature of the disotdet and those who have it." Change InTerminology: 'MentalRetardation" to'TntellectaalDisabilitl'] 78 Fed.Reg. 46,499 (,{,ug. 1, 201,3). Unless quoting anothet source or authority, the coutt uses t-he updated term hete and recognizes that this change does not alter any of the arguments made by either parq. 4 display" and do not establish bias. Liteky,510 U.S. at 555-56. dditionally, despite his assertion to the coîtra;ry, nothing in the transctipt suggests that Plaintiff was prevented from excusing himself to the restroom. As for PlaintifPs assertion that the could push a lawn mowet, it does not establish I) insisted that he bias. At one point in the hearing, the ALJ gave Plaintiff a few examples of "simple" work in tesponse to Plaintiffs statement that he completely disabled because he "ain't got the brain." (Tr. 47.) was However, the ALJ's statement that thete were simple jobs, like cutting grass and shoveling snow, was not impropet. (Id.) Plaintiff was also represented by an attorney Plaintiff without at the headng, who questioned interuption. (Tr. 53-59.) In short, Plaintiff has failed to meet his burden in demonstrating bias in this matter. B. The AIJ's 12.05C Analysis Is Plaintiffs argument that the ALJ's Not Susceptible to Judicial Review. assessment of his allegations of intellectual disability is not suppoted by substantial evidence is more persuasive. This is because, strength of PlaintifPs atgument, it is uncleat whethet the ALJ propedy in analyztngthe assessed whether Plaintiff failed to meet or equal the tequirements for anintellectual disability set forth in of the Listings. (Docket E.ttty '12 at 5.) That üsting is described, and its applicable critetia are set forth, as follows: L2.05 Intellectual disability: Intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested dudng the developmental period; i.e., the evidence demonstrates or supports onset of the impairment befote age 22. The required level of sevetity for this disorder is met when the requitements in A, B, C, or D arc satisfìed. 6 1.2.5C 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; 20 C.F.R. Pt.404, Subpt. P, pp. 1, S 12.05. Where, as here, the paragraph C severity cÅteÅa descdbed the fìrst showing-deficits developmental pedod-as "Prong ^te at issue, the Fourth Circuit has in adaptive functioning initially manifested during the 1." Hancock u. Astrze, 667 F.3d 470, 473 (4th Cit. 201,2) The Ptong 1 diagnostic criteria for anintellectual disability includes two compons¡¡s-dsfiçf¡g in adaptive functioning and an onset before age 22-that must both be satisfied in otdet fot the Listing to apply. Id. at 475 (commenting that an .,{,LJ's finding that neithet comporient was satisfied would be upheld if "[e]ithet finding alone" was suppoted by substantial evidence). The Fourth Circuit has also descdbed the conjunctive p^rz;gra;ph C tequfuements-a valid vetbal, performance, or full scale IQ of 60 through 70 md a physical ot othet mental impairment imposing an additional and significant wotk-telated limitation of function-as "Ptong 2" and "Prong 3." Id. at 473 Here, in his decision, the ALJ evaluated Plaintiffs chim that he met this listing and concluded as follows No tteating or examining physician mentioned findings equivalent in severity to the criterta of any listed impairment. The severity of the claimant's mental impafuments, considered singly and in combination, do not meet ot medically equal the ctitetia of listingf]. . .12.05. 7 Tuming back to listing L2.05, the requirements tn pangraph A are met when thete is mental tncapacir¡ evidenced by dependence upon others fot petsonal needs (e.g., toileting, eating, dtessing or bathing) and inability to follow dfuections, such that the use of standatdized measures of intellectual functioning is ptecluded. In this case, these requirements are not met because the claimant has undergone testing for standardtzed measures of intellectual functioning and has not repoted problems with petsonal care or personal needs (Exhibit 7f). A.s for the "paragraph B" criteria, they are not met because the claimant does not have a valid vetbal performance, or full scale IQ of 59 ot less. In -Àpdl 20'11,, Dt. Jake E. Ricketson, Psy.D., a consultative examiner, noted that the clatrnanthad a full-scale IQ finds that"paragraph score of 65. '\ccordingly, the undersigned B" of 12.05 is not met. Finally, the "paragraph C" cntena of listing 1,2.05 are not met because the claimant does not have a significantly subaverage intellectual functioning with deficits in adaptive behavior initially manifested dudng the developmental period þefore age 22); a valid vetbal performance; or full scale IQ of 60 thtough 70; and a physical or other mental impairment imposing additional and signifìcant wotk-telated limitation of function. In the present case, elemerúary standardized test records teveal the claimant's cognitive ability in his developmental pedod, priot to the age of twenty-two (Exhibit 1E). His national percentiles achievement included f^flge of 4 percent to 53 percent; a wide r^nge that ^ would indicate a learning disability, but not mild mental tetardation (Exhibit 1E, pp. 2-10). Qr.26-27.) From this, it is evident that the .\LJ did not meaningfully address all three prongs of 1,2.05c,but rather apparently only focused on Prong 1, deficits in adaptive functioning ptiot to the age of 22. Yet, it is impotant to note that while the,\LJ did not explicitly address Prongs 8 2 and 3, they do indeed appeaLr met here, because Plaintiff demonstrated a verbal comptehension perfotmance of 68 and a full scale IQ of 65 (Prong 2) and an additional and significant work-telated limitation features (Ptong of function, major depressive disorder with psychotic 3).3 Qr. 362.) Consequently, the question of whether the ALJ's Prong analysis is susceptible to judicial review and 1 suppoted by substantial evidence is critical to the outcome of his claim. I. Deficits in Adaptive Functioning Prior to the Age of 22 While Prong 1 of Listing 12.05C "does not expressly define 'defìcits in adaptive functioning' . . .'lz]daptive activities' are desctibed elsewhere in the fMental Disotders] Listing . . . as 'cleaning, shopping, cooking, taking public transportation, paying bills, maintaiting tesidence, caring apptopriately directories, and using a post *5 (1\4.D.N.C. Àpt. '1.6, for your groo-i.g and hygiene, using telephones offìce."' Hawle1 2012) (citing Blanca¡ 201,0) (quoting 20 C.F.R. u. u. and Astrae, No. 1:09CV246,201.2WL 126847 5, at Astrwe,690 F. S..pp. 2d 464,476 $V.D. Tex. Pt.404, Subpt. P, App. 1, SS 12.05 and12.00(CXt)); Astrwe, No.2:09CV1357,201,1,WL1299509, a accord Hageru. atx2 (S.D.W.Va. Mar.31,201,1) (unpublished).a ' The undersigned tecognizes that an ALJ may discount an IQ score for avane\r of reasons. Hancock, 667 F.3d at 474-75. Here, it is not clear whether the ALJ intended to discount Plaintiffs IQ results. On temand, the .{LJ may specifrcally address the issue of the vaìidity of Plaintiff s IQ test results. a Though Listing 12.05 does not specifically define "adaptive functioning," SSA. regulations provide that "[t]he definition of [intellectual disability] . . . in [the] listings is consistent with, if not identical to, the definitions of [intellectual disabiliry] used by the leading professional organizzttons." Technical Reuisions to Medi¿'al Cinriaþr Determinations of Disabi/it1t, 67 Fed. Reg. 20,018-01, at 20,022 (Apr. 24, 2002). Because "the SSA declined to adopt any one of [these] specific definitions . . . the intoductory paragraph of Listing 12.05 can be met if the individual is found to have, 'rnter aha, deficits in adaptive functioning as defined by any of the four professional otganizations." Darden u. Astrae,586 F. Srrpp. 2d828,834 (S.D. Tex. 2008). 9 Beyond this, in Hancock u. Astrae, the Fourth Circuit Coutt of Äppeals provided a valuable standard of compadson fot assessing an ALJ's findings tegatding Ptong 1's adaptive functioning tequirement. In Hancoc,ë, claimant failed to carry the butden the Fourth Citcuit upheld the ALJ's finding that the of showing defi.cits in adaptive functioning whete the claimant had: (1) "the ability to shop, pay bills, and make change," (2) "takes care of three small gtandchildreî at a level of carc that satisfìes the Depatment of Social Services," (3) "does the majonty of het household's chores, including cooking and baking," (4) "is attending school to obtain a GED," and (5) "does puzzles for entertinment." Id. at476.s Additional case law shows that the issue of whether a clatmant manifested deficits in adaptive functioning duting the developmental pedod is a fact-specific inquity with few bdght-line rules. See, e.!., Salmons u. Astrae, No. 5:10CV195-RLV,201.2 ì7L 1884485, at x5 flX/.D.N.C. Muy 23,201.2) (collecting cases). Case law suggests further that litetacy is also an impottant factor. Cir. 1989); See Lackel a. U.S. Dtp't of Heath dz Hørnan Seras.,890 F.2d 666, 668-69 (4th Salmons, 201,2 Vtry, 1884485, at *7; Holt¡claw 6935499, at x4 CX/.D.N.C. Dec. 30, 201,1); Nuers 2581447, *4 P.S.C. June 28, 201,1). independendy is a relevant inquiry. u. u. Astrae, No. 1:1.0CV199, 201,1, VlL Attruq No. 8:10-cv-314-RMG,20'1,1 WL Similady, whether the claimant has ever lived Conpare Salmonq 201.2WL 1884485, at x7 with Holtsclaw, 201,1,WL 6935499, at*5 '{.nother g.trding factor is whether the claimant has evet ptovided care for others, ot 5 Although the Fouth Circuit found these characteristics sufficient to support a hnding of an absence of deficits in adaptive functioning, the Fourth Circuit did not intimate that those (or comparable) capabiJities constituted the minimum necessary to uphold such a determination. at476 & n. 3. 10 See Hancock,667 F.3d whethet he himself is dependent on othets for care. Compare Salm0ns,201.2\XlL 1884485, at x7 (noting claknantwas heavily dependent on his mother and was not responsible fot the cate or supervision of others) and Holtsdaw, 201.1. WL 6935499, at x4-5 (noting claimant had nevet lived independently and requked a parcnt's help) witlt Hancock,667 tr.3d ^t 475-76 (affirming denial of benefìts whete the claimant managed the household and cated for her thtee young gtandchildren) and Caldwellu.Astrae,No. 1:09cv233,2011 SfL 4945959, at*3 CX/.D.N.C. Oct. 1.8, 201.1) (claimant assisted performance See ^re in the care of eldedy parent). School tecords and past academic also important indicators of defìcits in adaptive functioning ptior to age 22. Salmons,201,2WL 1884485, at *7 ("[Flunctional academic skills is the primary measute deficits of adaptive functioning befote age 22."); Nuert, 201,1, WL of 2581.447, at x3 (noting claimant classifìed as special needs at school, had tepeated evaluations in elementary school with IQ scores all in the 50s, and dropped out of school in the ninth grade); A:true, No. 4:11-CV-00037-D,2012tüvT,3282329, at x8 Sune 29,201,2), see al¡o Conlers adopted u. in 2012\WL 3283285 (E.D.N.C. ug. 10, 201,2) (discussing the claimant's school history).6 Àdditionaliy, work historf, while it cannot pteclude benefits where the Listing 12.05C ctiteria are otherwise met, Løckey 890 tr.2d ^t 669, can be relevant in determining whether claimant manifested deficits in adaptive functioning pdor 475-76 (concluding adaptive functioning to age 22. a Hancock, 667 tr.3d at IJ's finding that the claknant did not manifest requisite deficit in to be supported by substantial evidence where the ALJ among many othet factots, that the claimant had wotked several jobs); Hart¡ 6 u. consideted, Astrae, No Although Conlers was addressing Listing 1,2,058, the adaptive functioning analysis in that case is instructive even when the issue is whethet the Listing 12.05C critena are met. 1.1 0:10-1893-CMC-PJG, 20'12 WL 529982, at x6 n. 3 Q).S.C. Jun. 30, 201.2) (distinguishing Luckel because the LJ used the claimant's work history as only one factor to suppott his finding of no significant deficits in adaptive functioning and because the claimantÁ Harts dtd not otherwise meet the Listing 12.05C ctitetion of adoptecl ancl innrporated a valid IQ score within the tange of 60-70), ìn 2012WL 529980 @.S.C. Feb.17, 201,2). Finally, the tasks a clatmant is able to undertake, although not determinative, have been consideted in this analysis. See generalþRadfordu.Attrwq No. 5:08-CV-421.-FL,2009 WL 1,675958, at *6 @,.D.N.C.June 10, 2009) (finding that the claimant's ability to petform cettain tasks was not inconsistent with mild mental retardalon); rce, e.g., Hancock,667 F.3d at 47 6 & n. 3 (affirming AIJ's considetation of the claimant's ability to perform tasks such as shopping, paying bills, and making change); Salmons,201,2WL 1884485, at *7 (discussing claimant's inability to do household chotes, cook, and ddve). II. The ALJ's 12.05C Analysis Is Not Susceptible In this case, the to Judicial Review. ALJ's 1,2.05C assessmeflt, particulady of Prong it is impossible to review for 1, was so truncated that substantial evidence. The ALJ's entire analysis of Prong 1 amounts to no more than a statement that Plaintiffs standardtzed test scores demonstrate that he is not mildly mentally retarded. As demonstrated and fast rule regarding a Prong 1 analysis and it in Section I above, thete is not a hatd essentially turns on the totality of the many ckcumstances and factors described above. In concluding that remand for furthet inquiry is proper here, the undetsigned notes the following. First, while Plaintiff scoted in the fifty-third petcentile in spelling, this in and of itself is 1.2 insufficientto prior to age analyze the record relevant to the status 22. Çr 228.) In fact, PlaintifPs of Plaintiffs eady adaptive functioning standardized test scores wete quite poor. For example, in 1981, Plaintiffs vocabulary and comprehension were, tespectively, in the thiteenth and twenty-thi-rd percentiles nationally, leaving him in the eighteenth percentile overall nal.onally in reading and placing him slightly below a founh gtade equivalency level despite being in sixth gtade. ft 228.) His language mechanics and expression were, respectively, in the eighth and fifth percentiles nationally, leaving him in the fìfth petcentile overall nationally in language, and placing him at a second gtade equivalency level despite being in sixth grade. (Id.) His mathematczl subcategories (which are illegible) left him in the thirty-seventh percentile and eighteenth petcentile nationally, placing him at the fouth gtade equivalency level despite being in the sixth grade. (Id.) Overall, he was found to be in the thi-td percentile nationally for "Total Reading," the nvelfth percentile nationally fot spelling, the fourteenth percentile nationally for "TotalLanguage," the twentieth petcentile nationally for "Total Mathematics," and the ninth petcentile nationally for "TotalBattery." (Id.) Then, in ninth grade, when Plaintiff was seventeen years old, he was in the eighteenth percentile nationally for "Total Reading" (a sixth gtade equivalency); the fourth percentile nationally for "spellin{' (a third gtade equivalency), the third percentile nationally fot "Total Langtage" (a third grade equivalency), the seventh percentile nationally fot "Total Mathematics" (a fifth grade equivalency) and the sixth petcentile fot "Total Battery" (a fouth grade equivalency).7 (Id.) The ALJ's truncated assessment of the record on this issue is t Pluintiff-as born February 1.3, L968, so in the Sprirg of 1985 during Plaintiffs ninth grade year when this test was given, he would have been sev;äteen yeats old. Qt' 44,228-229.) simply too vague to petmit judicial teview. Moreover, the undersigned agrees with the case law ftom other courts in the Fouth Circuit that have concluded that remand is proper under similat citcumstances. See, e.!., I-øne a. Astrwe, No. 2:11-CV-33-FL, 20"1.2 WL 3241,1,02, x4 (E.D.N.C. JuIy 12,2002) (rejecting,\LJ's conclusion that national percentile "scotes of 23rd, 24th, 41st and 43rdpetcentiles" and "grade equivalent scores [ ] pdmatily in the late 3rd gtade or early 4th grade levels, compared to his status as a 5th grader" did "not reflect mental retardation") adoþted @ 201.2 WT- 3332413 @,.D.N.C. Aug. 7, 201.2); Holtsclaw, 2011, VL 6935499, atx4 (concluding that remand was proper, in patt because "[a]lthough the subjects cannot be discerned, on achievement testing in 8th grade she appeats to have scored in the 5th, 15th, 7th and 11th petcentile overall, while in 9th gtade, she scored in the 6th, 57th, 17th,7th and 10th overall"). Second, while it is uue that there is no specific finding by any doctot on the tecotd that Plaintiff meets Listing 12.05C, there are a number of points in the record suggesting that Plaintiff may indeed suffer from at least mild mental tetardation. For example, a consulting examinet, Dr. Jake E. retardation, provisional" Ricketson, Psy.D., diagnosed Plaintiff as having Çr "Mild mental 361) and Dr. Thomas Graham ftom Daymark Recovery Services repeatedly diagnosed Plaintiff with "probable mild mental retatdation" (Tt. 462,467,469.) Though the,{IJ mentioned both doctors in his Decision he did not specifically address these diagnoses. Çt31,-32.) Consequently, it is uncleat whether the ALJ failed to consider these diagnoses ot instead whether he tacitly rejected them in whole or in part. Third, there are other factors that the ALJ may have failed to take into considetation in 1,4 his truncated Prong 1 analysis. Plaintiff was in special education classes (with mixed results) (It. 59, 224-25,227,293),8 appears to have failed at least the seventh gtade (id. at224-25), and dropped out of school (or was perhaps expelled) in ninth gtade at the age of 17 Qr. 44,224-25, 221 ,265). There are also references in the record to PlaintifPs spotty employment record (Tr. 48-54,248), his homelessness (Ir. 61,334), and a seven yeat period of incatceration for arson Qr. 46,206-08,302). The LJ did not mention any of these factots-or, for that matter, any factors beyond Plaintiffs standardtzed test 5çs¡ss-in his 12.05C analysis. \X/hile there is no per se obligation for an AIJ to mention all of these factors, it is the obligation of the ALJ to chart a logical path between his factual fìndings and legal conclusions so that this Coutt can undertake a review fot substantial evidence.e Foutth, given the LJ's failures at step three of the sequential evaluation, the undetsigned cannot conclude that the LJ's detetmination that Plaintiff did not "have ^n impairment or combination of impairments that meets ot medically equals the sevedty of one of the listed impairments in 20 CFR Part 404, Subpart P, Ä.ppendix 1" (Tr. at 26) rs supported t The record contains a letter from the Randolph County Schools Exceptional Chldren Department statìng that "the Exceptional Children records for this student were purged and desttoyed in compliance with Noth Catolina state guidelines. Therefore, no EC tecotds exist for this individual." Çt293.) o The undersþed is well-awar e that an .LJ's omission in one part of a legal analysis may be rendered hatrnless where the analysis omitted was conducted elsewhere in the Decision. See Masdo u. Coluin, 780 F.3d 632, 639 (4th Cir. 2015) (concluding "the ALJ's error would be harmless if he properþ analyzed credibility elsewhere"). However, that doctrine does not call fot a different outcome hete. Here, the ALJ noted in his 12.05D analysis that Plaintiff cleaned the house (2.a., vacuumed, washed dishes, and took out the trash), attended church, went out to eat, watched television, and visited family members. Qr. 26-27.) The ALJ also noted in his 1,2.051. analysis that Plaintiff did not report needing help in ateas such as toileting, eating, dressing, or bathing. (d. at 28.) Nevettheless, these findings do not constitute a sufFrcient 12.05C, Prong 1 analysis in this case, especially given the ÀLJ's failure to meaningfully engage with the record on Plaintif8s perfotmance in school, which is a considerable omission not rectified elsewhere in the Decision. 15 by substantial evidence. Nor can the undetsigned fìnd that such erot is harmless because the Social Security regulations state that if a person's impairments meet or equal a Listing, he is disabled under the regulations and would be entitled tequired. Ve¡t 201,4) u. Coluin, to benefits with no futthet analysis No. 5:13CV00067, 201.4 W 4656207, ú x2J (E.D. Va. Sept. 16, ("The mete fact that anALJ propedy found a claimant capable of past wotk at step four or of other work at step five does not render an error at step three hatmless; otherwise) step three ertors would never be tevetsible alone, which is cieatþ not the case."). Accotdingly, the undetsigned concludes that temand is propet. None of this is to say that Plaintiff is necessadly disabled under 12.05C, ot disabled at all. Nevertheless, upon remand the ALJ should take into considetation the evidence televant to 1,2.05C and chart a logical path benveen his fac¡nl findings and legal conclusions. Finally, at this time the undersigned declines considetation of any additional issues Plaintiff intended to raise in his pleadings. Hancoc,ë u. Bamhart,206F. S.rpp. 2d757 ,763-64 n.3 (W.D. Ya.2002) (on remand, the ALJ's prior decision as no pteclusive effect, as it is vacated and the new headng is conducted de novo). V. PlaintifPs "Motion to Amend Imptoper Party" s noted, Defendant has also filed a Motion to Dismiss Impropet Patties. (Docket Entry 6.) Defendant requests that this Court dismiss the claims against the imptopetly named Defendants: the Social Security ,\dministration and Judge Frededck A. Johnson. (Docket Etrtry 7 at 1.) Defendant's Motion should be granted. Courts have consistently interpteted 1,6 42 U.S.C. $ a05(g)-the govetning statue as to this issus-¡e mearì that in cases seeking judicial review under this statute, the only proper defendant is the Commissioner.l0 Plaintiffls "Motion to,\mend Imptoper Patly," however, should be denied. (Docket Entry 19.) Plaintiff wants to substitute Judge Johnson-who does not appear to have any telation to PlaintifPs applications for þsnsfi1s-for the ALJ that rendered his decision in this case, Emanuel C. Edwards. Flowevet, as explained, the only propet defendant here is the Commissionet. Consequendy, this Motion should be denied. VI. CONCLUSION In light of the above, the Court RECOMMNEDS that Defendant's Motion to Dismiss Improper Parties (Docket E.rtty 6) be GRANTED and that Plaintifls "Motion to Amend Improper Party" be DENIED pocket Entry 19). The Coutt RECOMMENDS further that the record be amended to teflect the Commissionet as the only defendant in this acüon. 10 Astrwe,455 F. App'" 745, 146 (3d Cir. 201,1) (no imptopet substitution of the Commissioner of Social Security as defendant instead of SSA); IYomack u. Comm'r of Dtpl of Med. Assistance Seras., 67 Fed. App'" 847 ,848 (4th Cir. 2003) ("[the plaintiffs] claim against the [defendant] \A/as correctly dismissed because claims arising under $ a05(g) must be brought against the Commissioner, not of the state, such as fDefendant], which is ptotected by Eleventh ^r7 ^nm A.mendment immunity)'); Bell u. CommT of Soc. Sec., No. 1:13-cv-347 GSA, 201,3 WL 1,623806, at *4 See e.g., Berltea u. (E.D. Cal. A.pr. 15, 201.3) (relyngon20 C.F.R. çr422.21,0(d) and concluding that the Commissioner of Social Security is the proper defendant, not the "Office of Disability Adjudication and Review"); If,/illians u. N.Y. Søn DepT of Soc. Sera., No. 1:07-CV-815, 2007 WL2180382, *1 (W.D. Mich. Sept. 18, 2007) ftolding that to the extent the claim was brought undet S 405G), the plaintiff "fails to state a claim because the Commissioner of Social Security is the proper defendant in such an action"); Vøn Baren a. Soc. Sec. Admin., NO. 5-06-2029 FCD GGH PS, 2006 WL 3348608, at*2 (E.D. Cal. Nov. 17, 2006) ('Plaintiff has not named the proper defendant. The party named, Social Security, is protected by sovereign immunity. The proper defendant is Jo '\nne Barnhatt, Commissioner of Social Security."); Keesing u. Apfe[ 124 F. Snpp. 2d 134, 135 (I'{.D.N.Y. 2000) (stating the only propet defendant in a $ a05þ) action is the Commissioner of Social Security). 17 .,\dditionally, after a carcful consideration of the evidence oF tecord, the Court finds that the Commissioner's decision is not supported by substantial evidence. Accordingly, this Court RECOMMENDS that the Commissioner's decision finding no disability be REVERSED, and the matter be REMANDED to the Commissioner undet sentence four of 42U.5.C. $ a05@. The Commissioner should be directed to temand the mattet to the A{ for futher administative action as set out above. To this extent, Plaintiffls Motion for Judgment on the Pleadings pocket E.ttty 17) should be GRANTED and Defendant's Motion forJudgment on the Pleadings (Docket Entry 21) be DENIED. To the extent that Plaintiffls Motion seeks an immediate award of benefits, it should also be J DENIED. Webstet States Magistrate Judge otth Carolina ,\ugust 201,5 18
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