LANSDOWNE v. ASTRUE, No. 2:2011cv00487 - Document 15 (W.D. Pa. 2012)
Court Description: MEMORANDUM JUDGMENT ORDER granting 11 Plaintiff's Motion for Summary Judgment and denying 13 Defendant's Motion for Summary Judgment. The decision of the Commissioner dated 3/2/09 is reversed and this case is remanded to the Commissioner for further proceedings consistent with this opinion pursuant to sentence 4 of U.S.C. Section 405(g). SEE MEMORANDUM JUDGMENT ORDER FOR FURTHER DETAILS. Signed by Judge Gustave Diamond on 9/17/12. (gpr)
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LANSDOWNE v. ASTRUE Doc. 15 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JASON AARON LANSDOWNE, Plaintiff, v. Civil Action No. 11-487 MICHAEL J. ASTRUE , COMMISSIONER OF SOCIAL SECURITY, Defendant. MEMORANDUM JUDGMENT ORDER AND NOW, this / 7~ay of September, 2012, upon due consideration of the parties' cross-motions for summary judgment pursuant to plaintiff's request for review of the decision of the Commissioner plaintiff I S of Social ("Commissioner" ) Security denying applications for disability insurance benefits and supplemental security income under II Titles respectively, of the Social Security Act ("Act"), and XVI, IT IS ORDERED that plaintiff's motion for summary judgment (Document No. 11) be, and the same hereby is, granted, and the Commissioner's motion for summary judgment denied. (Document No. 13) be, and the same hereby is, The Commissioner's decision dated March 2, 2009, will be reversed and this case will be remanded to the Commissioner for further proceedings consistent with this opinion pursuant to sentence 4 of 42 U.S.C. §405(g). When the ~A072 Commissioner determines that a claimant is not "disabled" within the meaning of the Act, the findings leading to (Rev. 8/82) Dockets.Justia.com such a conclusion must "Substantial scintilla. evidence be based upon has substantial been defined as 'more evidence. than a mere It means such relevant evidence as a reasonable mind might accept as adequate. '" (3d Cir. 1999) Plummer v. Apfel, 186 F.3d 422, 427 (citation omitted) . Despite the deference to administrative decisions required by this standard, reviewing courts \\, retain a responsibility to scrutinize the entire record and to reverse or remand if the [Commissioner's] evidence. '" decision is not supported by substantial Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000), quoting, Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). evaluating findings, whether substantial \\ \ leniency [should] claimant's disabi to rebut it evidence be shown supports in an In ALJ's establishing the ty, and ... the [Commissioner's] responsibility [should] be strictly construed. , II Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003), quoting, Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979). These well- established principles require that this case be remanded for further proceedings because the ALJ's analysis at step 3 of the sequential evaluation process is lacking. Plaintiff filed his pending applications 1 for benefits on December 21, 2007, alleging a disability onset date of January 31, 2006, due to a learning disorder, anxiety and depression. 1 For purposes of plaintiff's Title II application, the ALJ found that plaintiff met the disability insured status requirements of the Act on his alleged onset date and has acquired sufficient quarters of coverage to remain insured only through December 31, 2010. ~A072 (Rev. 8182) - 2 Plaintiff's applications were denied initially. At plaintiff's request, 2008, an ALJ held a hearing on November 26, plaintiff, represented by counsel, at which appeared and testified. On March 2, 2009, the ALJ issued a decision finding that plaintiff is not disabled. On February 9, review the making ALJ's 2011, decision the Appeals Council denied the final decision of the Commissioner. Plaintiff was 32 years old at the time of the ALJ's decision and is classified as a younger person under the regulations. C.F.R. §404.1563(c) and 416.963(c). 20 He has at least a high school education and has past relevant work experience as a parking lot attendant, bagger and stocker, but he has not engaged in any substantial gainful activity since his alleged onset date. After reviewing plaintiff's medical records and hearing testimony from plaintiff and a vocational expert at the hearing, the ALJ concluded that plaintiff is not disabled within the meaning of the Act. The ALJ found that although the medical evidence that establishes plaintiff impairments of low back pain, borderline intellectual suffers from the severe a history of plantar fasciitis, functioning, anxiety, depression and compulsive lying, those impairments, alone or in combination, do not meet or equal the criteria of any of the impairments listed at Appendix 1 of 20 C.F.R., Part 404, Subpart P. The ALJ found that plaintiff retains the residual functional capacity to perform a range of medium work but with numerous restrictions recognizing the limiting effects of his impairments. 'l'.%A072 (Rev, 8182) - 3 Specifically, plaintiff must avoid dangerous machinery, and is limited to simple, routine, repetitive tasks, not involving a fast pace or more than few workplace changes, and involving only simple decisions in a low-stress environment with these occasional (R.53). interactions with co-workers and supervisors. Taking into account only limiting effects, a vocational expert identified numerous categories of jobs which plaintiff can perform based residual washer. upon functional his age, education, work experience and including dryer attendant and capacity, Relying on the vocational expert's testimony, the ALJ found that, although plaintiff cannot perform his past relevant work, he is capable of making an adjustment to jobs existing in significant numbers in the national economy. Accordingly, the ALJ concluded that plaintiff is not disabled under the Act. The Act defines "disabilityll as the inability to engage in substantial gainful activity by reason of a physical or mental impairment which can be expected to last for a continuous period of at least twelve 1382c(a) (3) (A). months. 42 U.S.C. §§423 (d) (1) (A) and The impairment or impairments must be so severe that the claimant "is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy II 42 U.S.C. §§423 (d) (2) (A) and §1382c (a) (3) (B) . The Commissioner has promulgated regulations incorporating a five-step sequential evaluation process for determining whether a 'llt.A072 (Rev. 8/82) - 4 claimant is under a disability.2 416.920. If the claimant is found disabled or not disabled at any C.F.R. 20 step, the claim need not be reviewed further. §§404.1S20 and Id.; see Barnhart v. Thomas, 124 S.Ct. 376 (2003). In this case, plaintiff challenges the ALJ's step 3 finding that he does impairments, that Specifically, establishes not have meets plaintiff that retardation at he §12. 05 an or impairment, medically alleges in fact that meets or combination equals the any evidence the listing of listing. of record for mental under either paragraph B or C of that listing and that the ALJ erroneously found that plaintiff also had to meet the introductory criteria to Listing 12.05. Although the court agrees with the ALJ that plaintiff was required to meet the introductory criteria of Listing 12.05, because the court finds that the utilized ALJ in introductory did not adequately determining criteria, that this explain plaintiff case will the does be methodology he not meet remanded to those the Commissioner for further proceedings. 2 The ALJ must determine: (I) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether he has a severe impairment; (3) if so, whether his impairment meets or equals the criteria listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) if not, whether the claimant's impairment prevents him from performing his past-relevant work; and, (5) if so, whether the claimant can perform any other work which exists in the national economy, in light of his age, education, work experience, and residual functional capacity. 20 C.F.R. §§404.1520 and 416.920; Newell v. Commissioner of Social Security, 347 F.3d 541, 545 (3d Cir. 2003). In addition, when there is evidence of a mental impairment that allegedly prevents a claimant from working, the Commissioner must follow the procedure for evaluating mental impairments set forth in the regulations. Plummer, 186 F.2d at 432; 20 C.F.R. §§404.1520a and 416.920a. ~A072 (Rev. 8182) - 5 - At step 3, impairment matches, impairments. 220 the ALJ must determine whether the claimant's F.3d or is equivalent to, one of the listed Burnett v. Commissioner of Social Security Admin., 112, 119 (3d Cir. 2000). The listings describe impairments that prevent an adult, regardless of age, education or work experience, from performing any gainful activity. 20 C.F.R. §416.925{a) i Knepp v. Apfel, 204 F.3d 78, 85 (3d Cir. 2000). the impairment is equivalent to a listed impairment, claimant] necessary. is per se disabled and no further "If then [the analysis is Burnett, 220 F.3d at 119. II The burden is on the ALJ to identify the relevant listed impairment in the federal claimant's impairment. Id. regulations that at 120 n.2. compares with the The ALJ must II fully develop the record and explain his findings at step 3, including an analysis of whether and why [the claimant's] ... impairments ... are or are not equivalent in severity to one of the listed impairments. II The criteria for meeting Listing 12.05 are as follows: 12.05. Mental retardation: Mental retardation 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. 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; ~A072 (Rev. 8182) - 6 * * * 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. . . . I 20 C.F.R. Pt. 404 1 Subpt. P, App. 11 §12.05(emphasis added). Here the ALJ found that plaintiff does not meet Listing I 12.05 because he "has failed to prove the existence of deficits in adaptive functioning prior to attaining age 2211. making this finding that l 51). ll the ALJ noted that there is "no indication and he identified a record including number of other factors I that he "has compiled a quite satisfactory work history since at least 1997,11 driver's license l plays cards, communicates establish functioning the ALJ "significantly with deficits concluded that that he has a via e-mail public transportation and can calculate bus fare. evidence, in the in ter alia, that plaintiff completed high school I through special education classes l uses (R. 51). From plaintiff to intellectual sub-average general in functioning adaptive failed initially manifested during the developmental period (before age 22) required under the introductory paragraph of Listing 12.05. 51) In [plaintiff/s] major motor and language milestones were not attained this (R. II as (R. .3 3 Because the ALJ concluded that plaintiff did not meet the criteria of the introductory paragraph to Listing 12.05 1 he did not analyze whether the paragraph B or C criteria of that listing are satisfied. ~A072 (Rev. 8/82) - 7 As an initial matter, the court will address plaintiff's argument that the ALJ erroneously concluded that Listing 12.05 requires him to prove the existence of deficits in adaptive functioning as set forth in the introductory paragraph to that listing. Instead, plaintiff's position is that all he has to show to meet Listing 12.05 is that he meets either the B or C criteria of that Listing and that his mental retardation manifested itself before age 22. The court disagrees because plaintiff cannot show "mental retardation" general intellectual functioning", the without showing "significantly subaverage functioning with very definition of deficits "mental in adaptive retardation" in Listing 12.05. Plaintiff's counsel has raised this identical argument to this court before, most recently in Grunden v. Astrue, 4565502 (W.D. Pa., Sept. 29, 2011). 2011 WL Therein, this court rejected the argument and concluded that, in addition to the criteria of at least one of the A through D paragraphs, a claimant must also meet the introductory showing of functioning criteria of "significantly with deficits Listing 12.05 subaverage in adaptive which general requires a intellectual functioning initially manifested during the developmental period, i. e., ... onset of the impairment before age 22." This conclusion is in full accord with both the Regulations themselves and the case law of this circuit. As noted in Grunden, in order for a claimant's impairment to meet a listing, it must satisfy all of the specified criteria of the listing at issue. Sullivan v. '-AQ 72 (Rev. &1&2) - 8 Zebley, 493 U.S. 521, 530 (1990) i listing, 20 C.F.R. [a 416.925(d) ("To claimant] impairment(s) must meet have of satisfies the a all that the requirement requirements medically the of a determinable criteria of the meet the listing. ") . Moreover, introductory criteria to that §12. 05 plaintiff must clearly and unequivocally is stated in the explanatory notes to the mental disorder listings: Listing 12.05 contains an introductory paragraph with the diagnostic description for mental retardation. It also contains four sets of criteria (paragraphs A through D). If [a claimant's] impairment satisfies the diagnostic description in the introductory paragraph and anyone of the four sets of criteria, we will find that [the claimant's] impairment meets the listing. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00A. (emphasis added) . The United States Court of Appeals for the Third Circuit likewise has held on several occasions that a claimant must satisfy the requirements of the introductory paragraph of Listing 12.05. See, 2003) (" [a] s Gist v. is demonstrating true the Barnhart, in regard specific 67 Fed. Appx. 78, to listing, any 12.05 requirements claimant must show proof of a of 81 (3d Cir. before Listing 12. 05C, a 'deficit in adaptive functioning' with an initial onset prior to age 22.") of Social Security, 255 Fed. Appx. 646, i Cortes v. Commissioner 651 (3d Cir. 2007) (to meet the listing for mental retardation, the claimant must prove, inter alia, "subaverage general intellectual functioning with deficits in adaptive functioning" manifesting before age 22).4 4 As in Grunden, plaintiff's counsel relies on Markle v. Barnhart, 324 F.3d 182 (3d Cir. 2003), wherein it was held that in order to meet 'IloA072 (Rev. 8/82) - 9 Accordingly, this court reiterates its previous holding in Grunden that, pursuant to the Regulations and case law, in order to meet Listing 12.05, a claimant must meet both the introductory criteria to that listing requiring "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested [before age 22]" and the criteria of one of paragraphs A through D. Having concluded that the ALJ was correct in requiring plaintiff to meet the introductory criteria of Listing 12.05, the court must next consider whether the ALJ's finding that plaintiff does not meet that criteria is supported by substantial evidence. As in Grunden, because the court cannot meaningfully determine the ALJ's basis for concluding that plaintiff does not meet the requirement of deficits in adaptive functioning prior to age 22, the requirements of §12.05C, a claimant "must i) have a valid verbal, performance or full scale 1Q of 60 through 70, ii) have a physical or other mental impairment imposing additional and significant work-related limitations of function, and iii) show that the mental retardation was initially manifested during the developmental period (before age 22) ." 1d. at 187. Although not specifically mentioning the need to establish "deficits in adaptive functioning," Markle did expressly hold that a claimant must show "mental retardation" manifested before age 22, and Listing 12.05 explicitly states that "mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning." Accordingly, it is this court's interpretation that Markle is wholly consistent with the subsequent decisions in Gist and Cortes, as well as with the clear and unequivocal pronouncement made in the explanatory notes to the mental disorder listings in 12.00A. Moreover, to the extent plaintiff suggests that this court held to the contrary in Airgood v. Astrue, 2010 WL 170404 (W.D. Pa. Jan. 13, 2010) and Miller v. Barnhart, CV 04-660 (W.D. Pa., August 22, 2005), this suggestion is inaccurate, since whether the claimants had deficits in adaptive functioning was not the issue before the court in either of those cases. Morever, in the court specifically directed the ALJ on remand to evaluate the evidence and to determine whether the plaintiff had significantly subaverage general intellectual functioning manifesting itself before the age of 22 as required to meet the introductory criteria to Listing 12.05. "AO 72 (Rev. &/82) - 10 this case must be remanded to the ALJ for additional evaluation. See Jones v. Barnhart, 364 F.3d SOl, 505 (3d Cir. 2004) (requiring the ALJ to sufficiently explain his findings to permit meaningful review) . The Regulations do not define "deficits of adaptive functioning", nor do they identify guidelines by which to assess the existence or severity of a claimant's alleged deficits. v. Astrue, 2008 WL 4279820 at *8 Fischer) . Nor is there addresses this issue. any Logan (W.D. Pa. Sept. 16, 2008) (D.J. case law in this circuit that However, as Judge Fischer aptly noted in Logan, the Social Security Administration ("SSA") has issued a regulation entitled "Technical Revisions to Medical Criteria for Determinations of Disability", 67 FR 20018-01 (April 24, 2002), to provide guidance on the matter. In that regulation, the SSA explained why it had chosen to draft the capsule definition of mental retardation in Listing 12.05, i.e., functioning manifested "significantly with deficits [before age 22]. subaverage in II adaptive Logan, general intellectual functioning 2008 WL 4279820, initially at *8. Rather than merely adopt the definition of mental retardation found in the American Psychiatric Association's ("APA") Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV"), the SSA considered the different definitions utilized by each of the major professional organizations in the United States that deal with mental retardation, including the APA and the American Association on Mental Retardation (\\AAMR" ) ~A072 (Rev. 8/82) - 11 (now known as the American Association on Intellectual and Developmental Disabilities). These various definitions all Id. require significant deficits in intellectual functioning, but differ as to the age of onset and the method of functioning. The measuring the required deficits in adaptive Id. SSA clarified that it did not seek to endorse the methodology of one professional organization over another, and would allow use of any of the measurement methods endorsed by one of the professional organizations. According to the SSA, to assess a claimant's alleged mental retardation to determine if deficits in adaptive functioning exist, an ALJ should consult either the APA's DSM-IV, the standard set forth by the AAMR or the criteria of the other major professional organizations that deal with mental retardation. Id. In this case, it is not clear from the ALJ's decision which organization's functioning, standard if any, for measuring deficits in adaptive he consulted in concluding that plaintiff does not have "deficits in adaptive functioning." Although the ALJ set forth a number of factors which he considered in support of his conclusion, ~, that plaintiff completed high school through special education classes, that he "has compiled a quite satisfactory work history since at least 1997, driver's public license, plays transportation nevertheless is left cards, and to can guess communicates calculate as employed in his analysis. ~A072 (Rev. 8/82) - 12 to bus which II via that he has a e-mail, fare, the standard uses court the ALJ Thus, because the ALJ's assessment of whether plaintiff has "deficits in adaptive functioning" fails to comply with the SSA's directive in Technical Determinations of Revisions Disability, to Medical remand is Criteria required for for reconsideration of whether plaintiff has established deficits in adaptive functioning prior to age 22. On remand, the ALJ must identify and apply one of the four standards of measurement used by one of the professional organizations in making this determination and must explain his rationale for whether or not plaintiff meets the introductory criteria of 12.05 under the chosen standard. Should the ALJ determine that plaintiff has established the requisite deficits in adaptive functioning before age 22 under one of the approved standards, he must then consider whether plaintiff meets the criteria of either paragraph B or C of Listing 12.05. As already noted, the ALJ did not analyze whether plaintiff meets the criteria of either Listing 12. 05B or 12. 05C in this case because he found that plaintiff does not meet the introductory criteria. Plaintiff contends that he meets Listing 12.05B 5 because the record contains evidence of a May 1992 performance IQ of 49, when 5 In order to meet Listing 12.05B, plaintiff need only show a valid verbal, performance or full scale IQ of 59 or less. The Regulations only require that one of those IQ scores be 59 or less. See §12. aaD. 6 . c. (\\ ... where verbal, performance, and full scale IQs are provided ... we use the lowest of these in conjunction with 12. 05") i see also Markle, 324 F.3d at 186 (recognizing that the lowest of three IQ scores is to be utilized in making a determination under §12.05). ~A072 (Rev. 8/82) - 13 plaintiff was 15 years old. (R. 154i 167-68). He also asserts that he meets Listing 12.05C 6 because the record also contains a more recent IQ test which resulted in a performance IQ score of 65 (R. 153) and his other severe impairments of low back pain, a history of plantar fasciitis, anxiety, depression and compulsive lying impose additional and significant work-related limitations of function. While the record does plaintiff may meet the contain criteria of IQ scores suggesting one or both of that 12. 05B or 12.05C, the ALJ did point out in his decision that a consulting psychologist had "noted the discrepancy between claimant's IQ scores and had commented that unusual profile." [he] two of the presented an (R.51.). It is unclear from this statement if the ALJ was rejecting the validity of one or both of the IQ scores relevant to Listing 12.05B and 12.05C. While it is true that an ALJ is not required to accept a claimant's IQ scores and may reject scores that are inconsistent with the record, Markle, 324 F.3d at 186, neither may "[a]n ALJ ... reject IQ scores based on personal observations of the claimant and speculative inferences drawn from the record. 1I In order to meet Listing 12.05C plaintiff must have 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. Again, the Regulations only require that one of the three IQ scores be in the 60 through 70 range. See §12.00D.6.cj Markle, 324 F.3d at 186. Moreover, under the regulations, the second prong of 12.05C is satisfied by a finding that the "other" impairment is "severe" within the meaning of step 2 of the sequential evaluation process. See Markle, 324 F.3d at 186; 20 C.F.R. §§404.1520(c) and 416.920(C)i 65 Fed. Reg. 50746, 50772 (August 21, 2000) . ~A072 (Rev. 8182) - 14 Morales, 225 F.3d at 318. Thus, if the ALJ should determine on remand that plaintiff has met the introductory criteria of Listing 12.05, he also specifically must consider the requirements of both 12.05B and 12.05C and determine the validity of the IQ scores set forth in the record, and must explain his reasons for rejecting any score he may deem invalid. For the foregoing reasons, plaintiff's motion for summary judgment will be granted, the Commissioner's motion for summary judgment will be denied, and this case will be remanded to the Commissioner for further proceedings consistent wi th this opinion. ~~~ Gustave Diamond United States District Judge cc: Karl E. Osterhout, Esq. Lindsay Fulton Osterhout, Esq. 521 Cedar Way Suite 200 Oakmont, PA 15139 Albert Schollaert Assistant U.S. Attorney 700 Grant Street Suite 4000 Pittsburgh, PA 15219 "AO 72 (Rev. 8/82) - 15
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