Miller v. Colvin, No. 3:2015cv15503 - Document 13 (S.D.W. Va. 2017)
Court Description: MEMORANDUM OPINION granting Plaintiff's 11 motion for judgment on the pleadings, to the extent that it requests remand, denying Defendant's 12 motion for judgment on the pleadings, reversing the final decision of the Commissioner, reman ding this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion, and dismissing this action from the docket of the Court. Signed by Magistrate Judge Cheryl A. Eifert on 1/6/2017. (cc: attys) (mkw)
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Miller v. Colvin Doc. 13 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION SCOTT AN TH ON Y MILLER, Plain tiff, v. Cas e N o .: 3 :15-cv-1550 3 CAROLYN W . COLVIN , Actin g Co m m is s io n e r o f th e So cial Se cu rity Ad m in is tratio n , D e fe n d an t. MEMORAN D U M OPIN ION This is an action seeking review of the decision of the Com m issioner of the Social Security Adm inistration (hereinafter the “Com m issioner”) denying Plaintiff’s application for disability insurance benefits (“DIB”) and supplem ental security incom e (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 40 1-433, 13811383f. The case is presently before the court on the parties’ m otions for judgm ent on the pleadings as articulated in their briefs. (ECF Nos. 11, 12). Both parties have consented in writing to a decision by the United States Magistrate J udge. (ECF Nos. 7, 8). The court has fully considered the evidence and the argum ents of counsel. For the reasons that follow, the court FIN D S that the decision of the Com m issioner is not supported by substantial evidence, and therefore should be REVERSED and REMAN D ED , pursuant to sentence four of 42 U.S.C. § 40 5(g), for further proceedings consistent with this opinion. 1 Dockets.Justia.com I. Pro ce d u ral H is to ry In J uly 20 12, Plaintiff Scott Anthony Miller (“Claim ant”) com pleted applications for DIB and SSI alleging a disability onset date of J uly 1, 20 10 due to “Problem s with back, neck and shoulders, learning disability.” (Tr. at 188, 212). The Social Security Adm inistration (“SSA”) denied the applications initially and upon reconsideration. (Tr. at 10 1-10 , 114-27). Claim ant filed a request for a hearing, which was held on April 7, 20 14 before the Honorable Toby J . Buel, Sr., Adm inistrative Law J udge (“ALJ ”). (Tr. at 2771). By written decision dated May 13, 20 14, the ALJ determ ined that Claim ant was not entitled to benefits. (Tr. at 11-21). The ALJ ’s decision becam e the final decision of the Com m issioner on October 9, 20 15 when the Appeals Council denied Claim ant’s request for review. (Tr. at 1-6). On Novem ber 24, 20 15, Claim ant filed the present civil action seeking judicial review of the adm inistrative decision pursuant to 42 U.S.C. § 40 5(g). (ECF No. 2). The Com m issioner filed an Answer and a Transcript of the Proceedings on J anuary 27, 20 16. (ECF Nos. 9,10 ). Thereafter, the parties filed their briefs in support of judgm ent on the pleadings. (ECF Nos. 11, 12). The tim e period for the filing of a reply has expired. Accordingly, this m atter is fully briefed and ready for disposition. II. Claim an t’s Backgro u n d Claim ant was 38 years old at the tim e of his alleged onset of disability and 43 years old at the tim e of the ALJ ’s decision. (Tr. at 20 , 188). He com pleted the 12th grade in special education classes and com m unicates in English. (Tr. at 33, 212, 321). Claim ant previously worked as a golf course landscaper. (Tr. at 34-35, 213). III. Su m m ary o f ALJ’s Fin d in gs Under 42 U.S.C. § 423(d)(5), a claim ant seeking disability benefits has the burden 2 of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any m edically determ inable physical or m ental im pairm ent 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 m onths.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations establish a five step sequential evaluation process for the adjudication of disability claim s. If an individual is found “not disabled” at any step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §§ 40 4.1520 (a)(4), 416.920 (a)(4). First, the ALJ determ ines whether a claim ant is currently engaged in substantial gainful em ploym ent. Id. §§ 40 4.1520 (b), 416.920 (b). Second, if the claim ant is not gainfully em ployed, then the inquiry is whether the claim ant suffers from a severe im pairm ent. Id. §§ 40 4.1520 (c), 416.920 (c). Third, if the claim ant suffers from a severe im pairm ent, the ALJ determ ines whether this im pairm ent m eets or equals any of the im pairm ents listed in Appendix 1 to Subpart P of the Adm inistrative Regulations No. 4 (the “Listing”). Id. §§ 40 4.1520 (d), 416.920 (d). If the im pairm ent does m eet or equal a listed im pairm ent, then the claim ant is found disabled and awarded benefits. However, if the im pairm ent does not m eet or equal a listed im pairm ent, the adjudicator m ust determ ine the claim ant’s residual functional capacity (“RFC”), which is the m easure of the claim ant’s ability to engage in substantial gainful activity despite the lim itations of his or her im pairm ents. Id. §§ 40 4.1520 (e), 416.920 (e). In the fourth step, the ALJ ascertains whether the claim ant’s im pairm ents prevent the perform ance of past relevant work. Id. §§ 40 4.1520 (f), 416.920 (f). If the im pairm ents do prevent the perform ance of past relevant work, then the claim ant has established a prim a facie case 3 of disability and the burden shifts to the Com m issioner to prove the final step. McLain v. Schw eiker, 715 F.2d 866, 868-69 (4th Cir. 1983). Under the fifth and final inquiry, the Com m issioner m ust dem onstrate that the claim ant is able to perform other form s of substantial gainful activity, while taking into account the claim ant’s rem aining physical and m ental capacities, age, education, and prior work experiences. 20 C.F.R. §§ 40 4.1520 (g), 416.920 (g); see also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). The Com m issioner m ust establish two things: (1) that the claim ant, considering his or her age, education, skills, work experience, and physical shortcom ings has the capacity to perform an alternative job, and (2) that this specific job exists in significant num bers in the national econom y. McLam ore v. W einberger, 538 F.2d 572, 574 (4th Cir. 1976). When a claim ant alleges a m ental im pairm ent, the ALJ “m ust follow a special technique” to assess disability. 20 C.F.R. §§ 40 4.1520 a, 416.920 a. First, the ALJ evaluates the claim ant’s pertinent signs, sym ptom s, and laboratory results to determ ine whether the claim ant has a m edically determ inable m ental im pairm ent. Id. §§ 40 4.1520 a(b), 416.920 a(b). If such im pairm ent exists, the ALJ docum ents the findings. Second, the ALJ rates and docum ents the degree of functional lim itation resulting from the im pairm ent according to criteria specified in the regulations. Id. §§ 40 4.1520 a(c), 416.920 a(c). Third, after rating the degree of functional lim itation from the claim ant’s im pairm ent(s), the ALJ determ ines the severity of the lim itation. Id. §§ 40 4.1520 a(d), 416.920 a(d). A rating of “none” or “m ild” in the first three functional areas (activities of daily living, social functioning, and concentration, persistence or pace) and “none” in the fourth (episodes of decom pensation) will result in a finding that the im pairm ent is not severe unless the evidence indicates that there is m ore than m inim al lim itation in the claim ant’s ability to do basic work activities. Id. §§ 40 4.1520 a(d)(1), 416.920 a(d)(1). 4 Fourth, if the claim ant’s im pairm ent is deem ed severe, the ALJ com pares the m edical findings about the severe im pairm ent and the degree of functional lim itation against the criteria of the appropriate listed m ental disorder to determ ine if the severe im pairm ent m eets or is equal to a listed m ental disorder. Id. §§ 40 4.1520 a(d)(2), 416.920 a(d)(2). Finally, if the ALJ finds that the claim ant has a severe m ental im pairm ent that neither m eets nor equals a listed m ental disorder, then the ALJ assesses the claim ant’s residual functional capacity. 20 C.F.R. §§ 40 4.1520 a(d)(3), 416.920 a(d)(3). In this case, the ALJ determ ined as a prelim inary m atter that Claim ant m et the insured status requirem ents of the Social Security Act through Decem ber 31, 20 15. (Tr. at 13, Finding No. 1). The ALJ acknowledged that Claim ant satisfied the first inquiry because he had not engaged in substantial gainful activity since J uly 1, 20 10 , the alleged disability onset date. (Id., Finding No. 2). Under the second inquiry, the ALJ found that Claim ant suffered from severe im pairm ents of sprains/ strains, all types, and borderline intellectual functioning. (Tr. at 13-14, Finding No. 3). Under the third inquiry, the ALJ concluded that Claim ant’s im pairm ents, either individually or in com bination, did not m eet or m edically equal any of the listed im pairm ents. (Tr. at 14-15, Finding No. 4). Therefore, the ALJ determ ined that Claim ant had the RFC to: [P]erform light work as defined in 20 CFR 40 4.1567(b) and 416.967(b) except he is lim ited to lifting and/ or carrying 20 pounds occasionally and ten pounds frequently; standing and/ or walking six hours out of an eighthour workday; sitting six hours out of an eight-hour workday; and pushing/ pulling to the weight lim itations noted herein (Exhibit 5A). He should only lift with the right shoulder on an occasional basis. He should avoid concentrated exposure to extrem e cold or heat, and hazards (m oving m achinery, unprotected heights, etc.). He can m aintain concentration and attention for two-hours at a tim e. (Tr. at 16-19, Finding No. 5). At the fourth step of the analysis, the ALJ determ ined that Claim ant was unable to perform any past relevant work. (Tr. at 20 , Finding No. 6). 5 Consequently, the ALJ considered Claim ant’s past work experience, age, and education in com bination with his RFC to determ ine if he would be able to engage in substantial gainful activity. (Tr. at 20 -21, Finding Nos. 7-10 ). The ALJ considered that (1) Claim ant was born in 1971 and was defined as a younger individual on the alleged disability onset date; (2) he had at least a high school education and could com m unicate in English; and (3) transferability of job skills was not m aterial to the ALJ ’s disability determ ination because Claim ant’s past relevant work was unskilled. (Tr. at 20 , Finding Nos. 7-9). Taking into account all of these factors, and Claim ant’s RFC, and relying upon the opinion testim ony of a vocational expert (“VE”), the ALJ determ ined that Claim ant could perform jobs that existed in significant num bers in the national econom y. (Tr. at 20 -21, Finding No. 10 ). At the light level, he could work as an edging m achine feeder, bakery racker, or rover;1 and at the sedentary level, Claim ant could work as a grader/ sorter, bench worker, and m otor polarizer. (Tr. at 20 -21). Therefore, the ALJ concluded that Claim ant was not disabled as defined in the Social Security Act from J uly 1, 20 10 through the date of the decision. (Tr. at 21, Finding No. 11). IV. Claim an t’s Ch alle n ge to th e Co m m is s io n e r’s D e cis io n Claim ant presents several challenges to the Com m issioner’s decision. First, Claim ant argues that the ALJ erred in finding that Claim ant did not m eet Listing 12.0 5C without first obtaining an additional psychological evaluation to resolve his inconsistent IQ scores. (ECF No. 11 at 5-6). Second, Claim ant alleges that the ALJ erred in disregarding the VE’s testim ony that Claim ant was incapable of substantial gainful activity if his im pairm ents required him to take at least one extra break during the 1 At the hearing held on April 7, 20 14, the vocational expert referred to this job as a “groover, DOT 692.686-0 42.” (Tr. at 69). 6 workday. (Id. at 6-7). Finally, Claim ant argues that the ALJ im properly disregarded the consultative exam iner’s finding that he had m arkedly deficient persistence, as well as the VE’s testim ony that he would be incapable of substantial gainful activity if he had m arkedly deficient persistence. (Id. at 7). In response to Claim ant’s argum ents, the Com m issioner states that Claim ant has not proven that he is disabled under the Act, has not produced evidence that he m eets or equals the requirem ents of Listing 12.0 5C, and has not dem onstrated that he needed an additional break during the workday. (ECF No. 12 at 10 -17). V. Re le van t Me d ical Re co rd s The court has reviewed the transcript of proceedings in its entirety, including the treatm ent records and evaluations in evidence, and confines the following sum m ary to those entries m ost relevant to the issues in dispute. On March 28, 1979, Claim ant was referred for a psychological evaluation based on the observations of his first grade teacher that Claim ant could only work on a one-toone basis and had “no m em ory for num bers or letters.” (Tr. at 315-16). He was described as restless and unable to attend to the task at hand; his class work was described as “terrible with m any errors when left to work independently.” (Tr. at 315). Claim ant was adm inistered several tests by psychologist Diane C. Mufson, M.A., Departm ent of Psychological Services, Cabell County Public Schools, and the results were confirm ed by licensed counseling psychologist Michael J . Hughes, Ed.D. (Tr. at 315-16). On the Wechsler Intelligence Scale for Children-Revised (“WISC-R”), Claim ant’s full scale IQ score was 74, verbal IQ score was 75, and perform ance IQ score was 77. (Tr. at 315). These results placed him at the borderline of the Departm ent of Mental Retardation’s (“DMR”) lowest end of average ability ranges. Id. Claim ant’s results on the Bender 7 Gestalt test, which m easured perceptual ability, revealed that Claim ant perform ed approxim ately two years below his age. (Id.). On the Wide Range Achievem ent Test (“WRAT”), which m easured academ ic skills, Claim ant received reading scores of kindergarten .7, spelling 1.o, and arithm etic 1.2, which indicated that he was at a grade equivalence less than his actual placem ent, with the greatest discrepancy in the area of reading. (Tr. at 316). The results of the evaluation indicated a need for additional learning disorder screening and educational evaluation, as well as consideration of DMR placem ent unless the learning disorder screening revealed specific areas that could best be rem edied in a learning disorder classroom . (Id.). While still in the Cabell County School System , Claim ant was re-evaluated on Decem ber 11, 1985 for the purpose of com pliance with Public Law 94-142. (Tr. at 31718). Claim ant scored within the educable m entally im paired range of intellectual ability on the WISC-R. (Tr. at 319). The Bender-Gestalt results suggested a level of visual m otor coordination com m ensurate with Claim ant’s overall intellectual ability. (Id.). Claim ant scored a verbal IQ of 67, perform ance IQ of 77 and an overall full scale IQ of 70 . (Tr. at 320 ). The adm inistering psychologist found that Claim ant easily interacted with him and was personable. (Tr. at 321). Claim ant’s perform ance abilities were found to be better developed than his verbal abilities, albeit not significantly. (Id.). Tests results also indicated that Claim ant had a history of behavioral problem s at school. (Id.). Based on the results and available inform ation, behavior m anagem ent strategies were recom m ended, along with continued instruction in the program for educable m entally im paired students. (Id.). Claim ant was re-evaluated again on Novem ber 18, 1988 by Kenneth R. Mobley, M.A., and Psychologist William Given, West Virginia Division of Rehabilitation Services, 8 for the purpose of determ ining his eligibility for rehabilitation services and vocational counseling. (Tr. at 312-14). He was 16.9 years old and in the 11th grade. (Tr. at 312). On the Wechsler Adult Intelligence Scale-Revised (“WAIS-R”), Claim ant scored a verbal IQ of 73, a perform ance IQ of 76 and a full scale IQ of 74. (Tr. at 312). These scores placed Claim ant in the borderline range of intellectual functioning. (Tr. at 313). The WRAT-R test used to evaluate academ ic skills revealed that Claim ant’s reading recognition and reading com prehension fell far below average. (Id.). The exam iners felt the test results were an adequate representation of Claim ant’s level of functioning. (Tr. at 312). At the tim e of this evaluation, Claim ant was enrolled in the building and m aintenance curriculum at the Cabell County Vocational Technical Center. Claim ant inform ed the exam iners that he did not like the curriculum ; however, it was determ ined that training options for Claim ant were lim ited due to his low level of ability and im paired academ ic skills. (Tr. at 314). The exam iners opined that Claim ant would be best suited to program s that involved oral instructions and direct hands-on experience; however, once Claim ant learned basic job skills, he would m ost likely require very little supervision on the job site. (Id.). Many years later, on October 17, 20 12, Claimant underwent psychological testing as an adult in connection with his present applications for Social Security benefits. (Tr. at 281-85). Lisa Tate, M.A., com pleted a Mental Status Exam ination and observed that although Claim ant dem onstrated som e articulation errors, his speech production was easy to understand. (Tr. at 281). Claim ant reported that he graduated from high school in 1990 , but stated that he had a lifelong learning disability and was enrolled in special education classes. (Tr. at 282). He stated that he repeated the fifth grade, but was then prom oted directly to the seventh grade. (Id.). He also stated that he required assistance 9 in reading his m ail and that his wife m anaged the household finances. (Id.). On exam ination, Claim ant was oriented to person, place, tim e, and date. (Tr. at 283). His thought processes and content were within norm al lim its, his insight was fair, but his judgm ent was m arkedly deficient based upon his response to the “finding the letter” question. (Id.). Claim ant’s im m ediate and rem ote m em ory were within norm al lim its; however, his recent m em ory was deem ed m ildly deficient as he could only recall two out of four words after a thirty-m inute lapse. (Id.). Claim ant’s concentration and psychom otor behavior were norm al. (Id.). Ms. Tate adm inistered the WAIS-IV test, which revealed a full scale IQ of 51; however, Ms. Tate opined that the results were invalid due to Claim ant’s apparent disinterest in testing, his tendency to give up easily on tasks, his slow work pace, his need for constant encouragem ent, and the lack of satisfactory rapport between Claim ant and the tester. (Tr. at 284). On the WRAT-4 test, Claim ant received a score of 56 in reading and 55 for spelling and m ath. (Id.). These scores were likewise deem ed invalid for the sam e reasons. (Id.). Claim ant described that he spent a typical day sitting and watching television. (Id.). He showered and washed dishes once a week and grocery shopped once a m onth. His only reported hobby was watching football gam es on television. (Id.). Ms. Tate found Claim ant’s social functioning to be m ildly deficient based upon his interaction with staff during the evaluation. (Tr. at 285). Claim ant’s concentration and pace were within norm al lim its; however, his persistence was m arkedly deficient based on clinical observation. (Id.). Due to the invalid IQ scores, Ms. Tate was unable to reach a diagnostic im pression. (Tr. at 284). On Novem ber 15, 20 12, J im Capage, Ph.D., com pleted a Case Analysis after 10 reviewing Ms. Tate’s report. (Tr. at 75-76). Dr. Capage noted that Claim ant alleged a learning disability and reported that he could not read or write; however, during Ms. Tate’s evaluation, Claim ant did not appear to show any effort, which caused Ms. Tate to consider his test scores invalid. (Tr. at 76). Given Claim ant’s failure to cooperate in his consultative exam ination, Dr. Capage found Claim ant’s credibility to be “suspect.” (Id.). Ultim ately, Dr. Capage found that the evidence was insufficient to adjudicate the claim . (Id.). The above findings were affirm ed by Tim othy Saar, Ph.D., on J anuary 14, 20 13. (Tr. at 85-86). Dr. Saar com pleted a Case Analysis and found no new allegations, no new treatm ent, and no new sources. He reiterated that there was insufficient evidence to adjudicate the claim . (Id.). VI. Sco p e o f Re vie w The issue before this Court is whether the final decision of the Com m issioner denying Claim ant’s application for benefits is supported by substantial evidence. The Fourth Circuit has defined substantial evidence as: evidence which a reasoning m ind would accept as sufficient to support a particular conclusion. It consists of m ore than a m ere scintilla of evidence but m ay be som ewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” Blalock, 483 F.2d at 776 (quoting Law s v. Celebrezze, 368 F.2d 640 , 642 (4th Cir. 1966)). Additionally, the adm inistrative law judge, not the court, is charged with resolving conflicts in the evidence. Hay s v. Sullivan, 90 7 F.2d 1453, 1456 (4th Cir. 1990 ). The Court will not re-weigh conflicting evidence, m ake credibility determ inations, or substitute its judgm ent for that of the Com m issioner. Id. Instead, the Court’s duty is lim ited in scope; it m ust adhere to its “traditional function” and “scrutinize the record as a whole to determ ine whether the conclusions reached are rational.” Oppenheim v. 11 Finch, 495 F.2d 396, 397 (4th Cir. 1974). Thus, the ultim ate question for the Court is not whether the Claim ant is disabled, but whether the decision of the Com m issioner that the Claim ant is not disabled is well-grounded in the evidence, bearing in m ind that “[w]here conflicting evidence allows reasonable m inds to differ as to whether a claim ant is disabled, the responsibility for that decision falls on the [Com m issioner].” W alker v. Bow en, 834 F.2d 635, 640 (7th Cir. 1987). VII. An alys is A. Th e ALJ’s An alys is o f Claim an t’s IQ U n d e r Lis tin g 12 .0 5C In his first challenge to the Com m issioner’s decision, Claim ant argues that his com bination of physical and m ental im pairm ents satisfy Listing 12.0 5C. (ECF No. 11 at 5). Claim ant contends that substantial evidence before the ALJ supported a step three finding in his favor; therefore, contradictory evidence in the record should have been m ore thoroughly considered and reconciled by the ALJ . Specifically, Claim ant asserts that the ALJ should have ordered an additional psychological exam ination to resolve inconsistencies in his IQ scores; particularly, as the ALJ m ade his step three determ ination based largely upon those scores. (Id. at 6). A claim ant should be found disabled at the third step of the sequential evaluation process when his or her im pairm ents m eet or m edically equal an im pairm ent included in the Listing. The Listing describes “for each of the m ajor body system s, im pairm ents which are considered severe enough to prevent a person from doing any gainful activity.” See 20 C.F.R. § 40 4.1525. The Listing is intended to identify those individuals whose m ental or physical im pairm ents are so severe that they would likely be found disabled regardless of their vocational background; consequently, the criteria defining the listed im pairm ents is set at a higher level of severity than that required to m eet the statutory 12 definition of disability. Sullivan v. Zebley , 493 U.S. 521, 532, 110 S.Ct. 885, 10 7 L.Ed.2d 967 (1990 ). Because disability is presum ed with a listed impairm ent, “[f]or a claim ant to show that his im pairm ent m atches a [listed im pairm ent], it m ust m eet all of the specified medical criteria.” Id. at 530 . The claim ant bears the burden of production and proof at this step of the disability determ ination process. Grant v. Schw eiker, 699 F.2d 189, 191 (4th Cir. 1983). Section 12.0 0 of the Listing pertains to m ental disorders, which are arranged in nine diagnostic categories, including listing 12.0 5 for intellectual disability (form erly m ental retardation). 20 C.F.R. Pt. 40 4, Subpt. P, App’x 1 § 12.0 0 . According to the regulations: The structure of the listing for intellectual disability (12.0 5) is different from that of the other m ental disorders listings. Listing 12.0 5 contains an introductory paragraph with the diagnostic description for m ental retardation. It also contains four sets of criteria (paragraphs A through D). If [a claim ant’s] im pairm ent satisfies the diagnostic description in the introductory paragraph and any one of the four sets of criteria, [the SSA] will find that [the] im pairm ent m eets the listing. Id. Thus, to qualify for disability under listing 12.0 5C, Claim ant m ust establish that he has an intellectual im pairm ent that satisfies both the diagnostic description and the severity criteria outlined in paragraph C. The diagnostic description of intellectual disability, som etim es called the first prong of the listing, is “significantly subaverage general intellectual functioning with deficits in adaptive functioning initially m anifested during the developm ental period, i.e., the evidence dem onstrates or supports onset of the im pairm ent before age 22.” 20 C.F.R. Part 40 4, Subpart P, App’x 1 § 12.0 5. The severity criteria contained in paragraph C, which constitutes the second prong of the listing, is: “A valid verbal, perform ance, or full scale IQ of 60 through 70 and a physical or other m ental im pairm ent im posing an additional and significant work-related 13 lim itation of function.” Id. at § 12.0 5C. In the introduction to Section 12.0 0 , the SSA explains that “[s]tandardized intelligence test results are essential to the adjudication of all cases of intellectual disability that are not covered under the provisions of 12.0 5A.” 20 C.F.R. Part 40 4, Subpart P, App’x 1 § 12.0 0 . However, “since the results of intelligence tests are only part of the overall assessm ent, the narrative report that accom panies the test results should com m ent on whether the IQ scores are considered valid and consistent with the developm ental history and the degree of functional lim itation.” Id. Furtherm ore, when “considering the validity of a test result, [the ALJ ] should note and resolve any discrepancies between form al test results and the individual's custom ary behavior and daily activities.” Id. In general, the results obtained by a licensed psychologist following adm inistration of accepted intelligence tests are entitled to considerable weight in Social Security cases, but the ALJ is not required to accept such scores. See Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998); see also Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffm an v. Bow en, 829 F.2d 514, 517 (4th Cir. 1988); Foster v. Heckler, 780 F.2d 1125, 1130 (4th Cir. 1986). The ALJ m ay reject IQ scores if they are inconsistent with other substantial evidence in the record, such as conflicting professional opinions, or other evidence indicating that the claim ant historically achieved higher scores or has m ore advanced functional capacities than would be expected from som eone with a below-average IQ. Clark, 141 F.3d at 1255; see also Hancock v. Astrue, 667 F.3d 470 , 474 (4th Cir. 20 12) (“[A]n 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.”). Indeed, IQ test results m ust be exam ined “to assure consistency with daily activities and behavior.” Popp v. Heckler, 779 F.2d 1497, 1499 14 (11th Cir. 1986). The question is “whether the decision to disregard the scores as unreliable is supported by substantial evidence from the record as a whole.” Pogue v . Astrue, 692 F. Supp.2d. 10 88 (E.D. Mo. 20 10 ). Here, the ALJ considered the severity of Claim ant’s intellectual im pairm ent at steps two and three of the sequential evaluation. The ALJ referenced the psychological testing adm inistered to Claim ant in 1988 when he was 16.9 years old and in the 11th grade. (Tr. at 13). The test results confirm ed that Claim ant was functioning in the borderline intellectual range, with a verbal IQ score of 73, a perform ance IQ score of 76, and a full scale IQ score of 74. (Tr. at 313). The ALJ noted that the results of the 1988 testing were consistent with a prior IQ test perform ed in 1979, which reflected a verbal IQ score of 75, a perform ance IQ score of 77, and a full scale IQ score of 74. (Tr. at 13, 315). The ALJ acknowledged that the IQ scores from Claim ant’s October 20 12 testing adm inistered by consultative exam iner, Lisa Tate, were m arkedly lower than Claim ant’s previous scores, but em phasized that Ms. Tate rejected the results as invalid. (Tr. at 13). Consequently, the ALJ found at step two that, notwithstanding Claim ant’s 20 12 scores, he was functioning “at least in the borderline range.” (Tr. at 13-14). At step three of the process, the ALJ com pared the evidence regarding Claim ant’s intellectual functioning with the criteria of Listing 12.0 5 and explained why Claim ant did not m eet the severity criteria outlined in any of the four paragraphs of the listing. Specifically, with respect to paragraph C, the ALJ stated that Claim ant did not have “a valid verbal, perform ance, or full scale IQ of 60 through 70 and a physical or m ental im pairm ent im posing an additional and significant work-related lim itation of function.” (Tr. at 14). The ALJ again cited to Claim ant’s psychological testing from 1988, indicating that the IQ scores obtained at that tim e were considered valid “although lim ited by his 15 low levels of ability and im paired academ ic skills.” (Tr. at 15). The ALJ once again rejected the lower scores returned in 20 12, reiterating that although the scores were 65 and below, Ms. Tate found the results to be invalid based on a num ber of factors, including Claim ant’s disinterest in testing, his slow pace and tendency to give up easily, and the lack of a satisfactory rapport between Claim ant and his tester. (Tr. at 14). Having reviewed the evidence and the ALJ ’s discussion, the undersigned finds no error in the ALJ ’s step three assessm ent of Claim ant’s intellectual functioning. As shown above, the ALJ acknowledged the inconsistency in Claim ant’s IQ scores, reconciled the differences, and clearly articulated his rationale for rejecting the lower scores. Moreover, the ALJ ’s determ ination that Claim ant could not satisfy the second prong of Listing 12.0 5C is supported by substantial evidence. On two occasions, Claim ant had IQ scores that were 70 or below. First, in 1985, when Claim ant was approxim ately fourteen years old, his verbal IQ score was 67, his perform ance IQ score was 77, and his full scale IQ was 70 . (Tr. at 320 ). Second, in October 20 12, he received scores ranging from 50 to 65 on the five scales of the WAISIV. (Tr. at 283). However, neither set of scores was valid under the Listing. With respect to the 1985 scores, Claim ant’s young age m ade the scores reliable for only a lim ited period of tim e. As stated in the regulations, IQ testing results tend to stabilize by the age of 16; consequently, test results that m easure 40 or above and are obtained before the age of 16 (between ages 7 and 16) are valid indicators of an individual’s intellectual functioning for only two years. 20 C.F.R. pt 40 4, subpt. P, App. 1, § 112.0 0 (D)(10 ). Therefore, Claim ant’s 1985 results were only valid through 1987. In 1988, after Claim ant had turned 16 years of age, he was retested, and this tim e all of his scores were above 70 . Moreover, these scores were consistent with Claim ant’s earlier testing in 1979, casting 16 doubt on the reliability of the 1985 scores. Likewise, it was appropriate for the ALJ to reject the 20 12 scores. Not only were the scores deem ed invalid by the psychologist who adm inistered the test, but the results were entirely inconsistent with Claim ant’s 1988 scores and the level of functioning displayed by Claim ant. As stated by the Fourth Circuit, “the Secretary's regulation ‘expressly define[s] m ental retardation as denoting ‘a lifelong condition.’” Branham v. Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985). Therefore, “in the absence of any evidence of a change in a claim ant's intelligence functioning, it m ust be assum ed that the claim ant’s IQ had rem ained relatively constant.” Luckey v. U.S. Dep't of Health & Hum an Servs., 890 F.2d 666, 668 (4th Cir. 1989) (citing Branham , 775 F.2d at 1274). There was no evidence that Claim ant suffered traum a, illness, or any other event that would explain a precipitous drop in his intellectual functioning from the level m easured at age 16.9. Therefore, the ALJ appropriately rejected Claim ant’s 20 12 IQ scores. (Tr. at 13-14). Further, it was proper for the ALJ not to order a second consultative exam ination given that the record contained valid IQ scores that were obtained after Claim ant’s sixteenth birthday. Claim ant’s 1988 scores were all above 70 and were found by the ALJ to be consistent with other evidence regarding Claim ant’s educational background, past work history, daily activities, and level of functioning. (Tr. at 19, 312-14). In addition, the psychologists from the West Virginia Division of Rehabilitation, who were evaluating Claim ant’s need for services and vocational counseling, concluded that Claim ant’s intellectual functioning was at the borderline range. They added that despite having academ ic skills “significantly below his level of ability,” Claim ant was capable of learning basic job duties and, after learning them , would require little supervision on the job site. 17 (Tr. at 314). Thus, the ALJ relied on valid IQ scores in accordance with the applicable regulations when he determ ined that Claim ant’s IQ did not fall between 60 and 70 as required by Listing 12.0 5C. Consequently, there was no com pelling reason for the ALJ to order a second consultative exam ination. See Pollard v. Com m 'r of Soc. Sec., No. 1:10 CV-714, 20 12 WL 95426, at *5 (S.D. Ohio J an. 12, 20 12) (“In this case, there existed substantial evidence in the record to determ ine that Plaintiff did not m eet the threshold diagnosis of m ental retardation and therefore could not satisfy the criteria of Listings 12.0 5(B) or 12.0 5(C). As detailed above, the record does not contain any opinion evidence suggesting that Plaintiff suffers from m ental retardation nor does it contain evidence of significantly subaverage intellectual functioning. Accordingly, the ALJ was under no duty to order additional intelligence testing.”) (citing Hay es v. Com m 'r of Soc. Sec., 357 F. App'x 672, 675 (6th Cir. 20 0 9)). In sum , the court finds that the ALJ clearly articulated his analysis of Claim ant’s IQ scores and properly concluded that Claim ant’s intellectual im pairm ent did not m eet Listing 12.0 5C. B. Th e ALJ’s An alys is o f Claim an t’s Pe rs is te n ce an d Ju d gm e n t Claim ant’s second and third challenges to the Com m issioner’s decision involve the ALJ ’s decision to disregard testim ony by the VE that Claim ant would be incapable of m aintaining substantial gainful em ploym ent if he required an extra break during the work day, or had m arkedly deficient persistence. (ECF No. 11 at 6-7). Claim ant points to findings m ade by Ms. Tate during the consultative exam ination establishing Claim ant’s m arkedly deficient judgm ent and persistence. In light of these findings, Claim ant argues that “it is reasonable to assum e that [he] would need at least one (1) extra break, and probably m ore, during the workday.” (Id. at 7). 18 In his written decision, the ALJ found that Claim ant had m oderate difficulty with concentration, persistence, or pace. (Tr. at 15). To explain this finding, the ALJ noted that Claim ant “enjoys watching football on television, a 60 -m inute program , and keeps track of the gam e off and on” and also “watches television throughout the day, whatever is on at the tim e.” (Id.). In assessing Claim ant’s RFC, the ALJ again referenced that Claim ant “could sit and watch a football gam e that runs 60 m inutes or longer.” (Id. at 16). Therefore, the ALJ determ ined that Claim ant could m aintain concentration and attention for two hours at a tim e. (Id. at 19). When questioning the VE, the ALJ described a hypothetical individual that was able to “m aintain attention and concentration for two hour increm ents.” (Tr. at 68). Assum ing that level of attention and concentration, the VE testified that the hypothetical individual could perform work found in significant num bers in the national econom y. (Id. at 68-69). The VE’s opinion changed to the negative, however, if the individual also required an extra break during the work day. (Id. at 69). In addition, when Claim ant’s attorney asked the VE to assum e that the hypothetical individual was “m arkedly deficient in their [sic] persistence skills,” the VE testified that the hypothetical individual would not be able to work. (Tr. at 70 ). Accordingly, when evaluating the ALJ ’s decision, key considerations include (1) whether the ALJ ’s finding of a m oderate, rather than m arked, deficit in persistence is supported by substantial evidence and (2) whether the lim itation in concentration and attention contained in the RFC finding adequately accounts for Claim ant’s reduced persistence. While the ALJ provided som e rationale for his finding that Claim ant had only a m oderate lim itation in persistence, the explanation given—that Claim ant watched television throughout the day and kept track of football gam es “off and on” that lasted 19 60 m inutes or longer—is so lacking in analysis that it is perplexing. Moreover, Claim ant’s ability to watch a 60 -m inute television program does not provide a clear nexus to the ALJ ’s determ ination that Claim ant could m aintain concentration and attention for two hours at a tim e. See, e.g., Burrow v. Colvin, No. 1:15CV163, 20 16 WL 1258840 , at *5 (M.D.N.C. Mar. 28, 20 16) (“There should be “a logical bridge[ ] between the ALJ ’s conclusion that Plaintiff suffered m oderate concentration deficits” and the lim itations in the RFC.”) (citations om itted). Indeed, even assum ing that Claim ant paid attention to the television “off and on” and for 60 -m inute program s, the ALJ never explained how that ability translated into the capacity to m aintain concentration and attention, uninterrupted, for tw o-hour increm ents. Thus, the ALJ ’s observations regarding Claim ant’s ability to watch television do not clearly reconcile with or provide sufficient support for his finding that Claim ant had m oderately deficient persistence, which could be functionally addressed by lim iting the requisite periods of concentration and attention to two-hour increments. Furtherm ore, and very im portantly, the ALJ did not distinguish, discount, reject, or even m ention Ms. Tate’s findings that Claim ant had m arkedly deficient judgm ent and persistence. (Tr. at 283, 285). Due the ALJ ’s lack of explanation, the court is left to speculate whether the ALJ considered Ms. Tate’s findings, and, if the ALJ rejected them , why he did so. As previously stated, the ALJ discussed Claim ant’s “significant lack of effort” during the consultative exam ination and repeatedly referenced Ms. Tate’s opinion that Claim ant’s intellectual functioning test results were invalid. (Tr. at 13, 14, 18-19). However, the ALJ does not provide any discussion or explanation for rejecting Ms. Tate’s other opinions. Ms. Tate raised doubts only about the validity of Claim ant’s IQ test results, not about her other clinical observations and findings. While the ALJ 20 m ay have discounted Ms. Tate’s opinion that Claim ant had m arkedly deficient judgm ent and persistence based on Claim ant’s lack of effort during testing, or for other reasons, the ALJ never supplied a reason in his decision. As the ALJ failed to sufficiently articulate his analysis, the court is precluded from m eaningfully reviewing whether the RFC finding and subsequent determ ination regarding Claim ant’s ability to work are supported by substantial evidence. “J udicial review of a final decision regarding disability benefits under the Social Security Act, 42 U.S.C. §§ 30 1 et seq. (the “Act”), is lim ited to determ ining whether the findings of the Secretary are supported by substantial evidence and whether the correct law was applied.” Hay s v. Sullivan, 90 7 F.2d 1453, 1456 (4th Cir. 1990 ). “Ultim ately, it is the duty of the adm inistrative law judge reviewing a case, and not the responsibility of the courts, to m ake findings of fact and to resolve conflicts in the evidence. Id. The court cannot re-weigh the evidence and provide the analysis that the ALJ should have perform ed in the first instance. See Fox v. Colvin, 632 F. App’x 750 , 754 (4th Cir. 20 15). Therefore, this action m ust be rem anded to the Com m issioner for further analysis and explanation regarding Claim ant’s judgm ent and persistence and its effect on his ability to engage in substantial gainful activity. VIII. Co n clu s io n After a careful consideration of the evidence of record, the Court finds that the Com m issioner’s decision is not supported by substantial evidence. Therefore, the Court will GRAN T Plaintiff’s m otion for judgm ent on the pleadings, to the extent that it requests rem and, (ECF No. 11); D EN Y Defendant’s m otion for judgm ent on the pleadings, (ECF No. 12); REVERSE the final decision of the Com m issioner; REMAN D this m atter pursuant to sentence four of 42 U.S.C. § 40 5(g) for further adm inistrative 21 proceedings consistent with this opinion; and D ISMISS this action from the docket of the Court. A J udgm ent Order will be entered accordingly. The Clerk of this Court is directed to transm it copies of this Mem orandum Opinion to counsel of record. EN TERED : J anuary 6, 20 17 22
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