Blankenship v. Colvin, No. 3:2016cv00094 - 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 request that the Commissioner's decision be affirmed; REVERSING the final decision of th e Commissioner; REMANDING 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 1/11/2017. (cc: attys) (mkw)
Download PDF
<![CDATA[
Blankenship 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 MEGAN CH AN TEL BLAN KEN SH IP, Plain tiff, v. Cas e N o .: 3 :16 -cv-0 0 0 9 4 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 supplem ental security incom e (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This 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. I. Pro ce d u ral H is to ry Plaintiff, Megan Chantel Blankenship (hereinafter referred to as “Claim ant”), 1 Dockets.Justia.com com pleted an application for SSI on Septem ber 21, 20 12, alleging a disability onset date of J anuary 10 , 20 10 , due to “Peptic ulcer disease, add [Attention Deficit Disorder, “ADD”], adhd, [Attention Deficit Hyperactivity Disorder, “ADHD”], bipolar, asthm a, panic attack, clinical depression, back pain, m igraines, asthm a [and] arthritis.” (Tr. at 171, 20 8). The Social Security Adm inistration (“SSA”) denied the application initially and upon reconsideration. (Tr. at 91-96, 10 2-10 5). On April 16, 20 13, Claim ant filed a written request for an adm inistrative hearing, which was held on J une 6, 20 14 before the Honorable Paul Gaughen, Adm inistrative Law J udge (“ALJ ”). (Tr. at 29-64). By written decision dated August 19, 20 14, the ALJ determ ined that Claim ant was not entitled to benefits. (Tr. at 12-24). The ALJ ’s decision becam e the final decision of the Com m issioner on Novem ber 24, 20 15, when the Appeals Council denied Claim ant’s request for review. (Tr. at 1-3). On J anuary 6, 20 16, Claim ant tim ely brought 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 Transcript of the Proceedings on March 16, 20 16. (ECF Nos. 9, 10 ). Thereafter, the parties filed their briefs in support of judgm ent on the pleadings. (ECF Nos. 11, 12). Accordingly, this m atter is ready for resolution. II. Claim an t’s Backgro u n d Claim ant was 18 years old on the disability onset date and 21 years old at the tim e of the ALJ ’s decision. (Tr. at 34). She com pleted the tenth grade, (Tr. at 35, 20 9), and could read and write in English. (Tr. at 20 7). Claim ant’s past relevant work included short stints as a cashier at a fast food restaurant and a dietary aide in a nursing hom e. (Tr. at 23, 199). 2 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 of proving disability, defined as the “inability to engage in any substantial gainful activity by reason of any m edically determ inable impairm ent which 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. § 416.920 . The first step in the sequence is determ ining whether a claim ant is currently engaged in substantial gainful em ploym ent. Id. § 416.920 (b). If the claim ant is not, then the second step requires a determ ination of whether the claim ant suffers from a severe im pairm ent. Id. § 416.920 (c). If severe im pairm ent is present, the third inquiry is 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. § 416.920 (d). If the im pairm ent does, then the claim ant is found disabled and awarded benefits. However, if the im pairm ent does not, the adjudicator must 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. § 416.920 (e). After m aking this determ ination, the next step is to ascertain whether the claim ant’s im pairm ents prevent the perform ance of past relevant work. Id. § 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 of disability, and the burden shifts to the Com m issioner to dem onstrate, as the final step in the process, that the claim ant is able to perform other form s of substantial gainful activity, when considering the claim ant’s rem aining physical 3 and m ental capacities, age, education, and prior work experiences. Id. § 416.920 (g); see also McLain v. Schw eiker, 715 F.2d 866, 868-69 (4th Cir. 1983). 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 Social Security Adm inistration (“SSA”) “m ust follow a special technique” at every level in the adm inistrative process, including review by an ALJ . 20 C.F.R. § 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. If such im pairm ent exists, the ALJ docum ents the pertinent 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 20 C.F.R. § 416.920 a(c). Third, after rating the degree of functional lim itation from the claim ant’s im pairm ent(s), the ALJ determines the severity of the lim itation. 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. 20 C.F.R. § 416.920 a(d)(1). Fourth, if the claim ant’s im pairm ent is deem ed severe, the SSA com pares the m edical findings about the severe impairm ent and the rating and degree and functional lim itation to 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. 20 C.F.R. § 416.920 a(d)(2). Finally, if the SSA finds that the claim ant has a 4 severe m ental im pairm ent, which neither m eets nor equals a listed m ental disorder, the SSA assesses the claim ant’s residual function. 20 C.F.R. § 416.920 a(d)(3). The Regulation further specifies how the findings and conclusion reached in applying the technique m ust be docum ented at the ALJ and Appeals Council levels as follows: The decision m ust show the significant history, including exam ination and laboratory findings, the functional lim itations that were considered in reaching a conclusion about the severity of the m ental im pairm ent(s). The decision must include a specific finding as to the degree of lim itation in each functional areas described in paragraph (c) of this section. 20 C.F.R. § 416.920 a(e)(2). In this case, the ALJ determ ined that Claim ant satisfied the first inquiry because she had not engaged in substantial gainful activity since the date of her application for benefits. (Tr. at 14, Finding No. 1). Under the second inquiry, the ALJ found that Claim ant suffered from the severe im pairm ents of affective disorder; anxiety disorder, not otherwise specified (“NOS”); and asthm a. (Tr. at 14 Finding No. 2). At the third inquiry, the ALJ concluded that Claim ant’s im pairm ents did not m eet or equal the level of severity of any im pairm ent contained in the Listing. (Tr. at 14-16, Finding No. 3). Consequently, the ALJ determ ined that Claim ant had the RFC to: [P]erform light work as defined in 20 CFR 416.967(b) such that the claim ant would need a sit and stand alternating option, with an inability to keep up with fast-paced productions dem ands, such as rigid hourly quotas. She cannot work around unprotected heights, industrial equipm ent, tem perature extrem es, or extrem es of hum idity. The claim ant cannot clim b ladders or walk across uneven ground. She can stand or walk short distances for a total of 4 to 4 ½ hours, and 1 hour at a tim e, and the balance of an 8hour workday can be perform ed seated doing basic work activities. The claim ant’s capacity to work seated is not lim ited, as she can work an entire 8-hour workday seated. She can occasionally lift or carry 20 pounds during basic work activities and frequently handle and carry up to 10 pounds. The claim ant can occasionally perform postural adjustm ents, and pass around objects when work in a chair. She can only occasionally perform rapid and depth bending, squatting, and stooping. The claim ant can rem em ber prior learning, but is lim ited to learning sim ple instructions of no m ore than 3 to 5 4 steps. She needs a well-set routine, and works best with the presence of a supervisor. The claim ant cannot engage in higher-level social interaction, such as being a project leader, but can have routine and perfunctory social interaction with supervisors, coworkers, and the retail public. In addition, claim ant cannot work in a dangerous industrial setting. (Tr. at 16-22, Finding No. 4). Based upon the RFC assessm ent, the ALJ determ ined at the fourth step that Claim ant was unable to perform any past relevant work. (Tr. at 22-23, Finding No. 5). Under the fifth and final inquiry, the ALJ reviewed Claim ant’s past work experience, age, and education in com bination with her RFC to determ ine if she would be able to engage in substantial gainful activity. (Tr. at 23-24, Finding Nos. 6-9). The ALJ considered that (1) Claim ant was born in 1992 and was defined as a younger individual; (2) she had a lim ited education, but could com m unicate in English; and (3) transferability of job skills was not m aterial to the disability determ ination, because the MedicalVocational Rules supported a finding that the Claim ant is “not disabled,” regardless of her transferable job skills. (Tr. at 23, Finding Nos. 6-8). Given these factors, Claim ant’s RFC, and the testim ony of a vocational expert, the ALJ determ ined that Claim ant could perform jobs that existed in significant num bers in the national econom y. (Tr. at 23-24, Finding No. 9). In particular, Claim ant could work as a m ail clerk, ticket seller, or racker/ pool hall attendant at the light unskilled level. Therefore, the ALJ concluded that Claim ant was not disabled as defined in the Social Security Act. (Tr. at 24, Finding No. 10 ). IV. Claim an t’s Ch alle n ge s to th e Co m m is s io n e r’s D e cis io n Claim ant raises three challenges to the Com m issioner’s decision. First, she argues that the ALJ erred at the third step of the sequential process by failing to find Claim ant disabled under listing 12.0 5C. (ECF No. 11 at 5-6). Claim ant points out that she received valid IQ scores below 70 and had an additional severe im pairm ent, yet the ALJ 6 disregarded that evidence when com paring Claim ant’s lim itations to those contained in the Listing. Second, Claim ant contends that the ALJ incorrectly weighed the m edical source statem ent of Claim ant’s treating psychiatrist, Dr. Nika Razavipour. (Id. at 6-8). Dr. Razavipour opined that Claim ant had m arked lim itations in her ability to interact with others, had m arked lim itations in responding appropriately to changes in the work setting, and would likely m iss five or m ore days of work each m onth due to psychological sym ptom s. However, the ALJ gave these opinions m inim al weight despite their consistency with other evidence of record and notwithstanding Dr. Razavipour’s status as a treating physician. (Id.). Lastly, Claim ant com plains that the ALJ failed to properly consider the VE’s opinion that Claim ant was unable to work when taking into account the lim itations found by Dr. Razavipour. (Id. at 8-9). In response, the Com m issioner asserts that substantial evidence supports the ALJ ’s decision; therefore, it should be affirm ed. With respect to Claim ant’s argum ent regarding listing 12.0 5C, the Com m issioner contends that even if Claim ant m et the severity criteria outlined in paragraph C, she did not m eet or equal the diagnostic description in the introductory paragraph of the listing. (ECF No. 12 at 10 -14). Consequently, the ALJ reached the correct conclusion at step three. In addition, the Com m issioner argues that the ALJ properly rejected Dr. Razavipour’s opinions, because they were unsubstantiated and unsupported by the other evidence of record. (Id. at 1417). Given the lack of proof to validate Dr. Razavipour’s opinions, the Com m issioner posits that the lim itations expressed by Dr. Razavipour did not require incorporation into the hypothetical questions posed to the VE. The Com m issioner suggests that the hypothetical questions contained all of the functional lim itations substantiated by the record. Accordingly, the ALJ properly relied upon the VE’s opinions regarding Claim ant’s 7 em ployability despite her im pairm ents. (Id. at 17). V. 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. In Blalock v. Richardson, the Fourth Circuit Court of Appeals 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.” 483 F.2d 773, 776 (4th Cir. 1972) (quoting Law s v. Celebrezze, 368 F.2d 640 , 642 (4th Cir. 1966)). Additionally, the Com m issioner, 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. 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). VI. Re le van t Me d ical Re co rd s The court has reviewed the Transcript of Proceedings in its entirety, including the 8 m edical records in evidence, and sum m arizes below Claim ant’s m edical treatm ent and evaluations to the extent that they are relevant to the issues in dispute. A. Me d ical Re co rd s On J anuary 6, 1999, at the age of six, Claim ant began treatm ent for behavioral issues at Marshall University School of Medicine, Departm ent of Pediatrics. (Tr. at 250 51). According to her m other, Claim ant was hyperactive and m issed too m any days of school due to illness. One week later, on J anuary 12, 1999, Claim ant saw Dr. J am es Lewis, of University Pediatrics, for a presum ptive diagnosis of ADHD. (Tr. at 322). Claim ant’ s m other inform ed Dr. Lewis that Claim ant had exhibited problem behavior for a num ber of years, which had worsened when she started kindergarten and m anifested in a lack of attention span and hyperactivity. Claim ant had been successfully treated with m edication in the past, but had recently stopped taking the m edication. Claim ant’s m other described Claim ant as having “fits” of scream ing, kicking, and “carrying on” when she did not get her way. More than once, she had hit a physically handicapped aunt and fought with her uncle. Claim ant’s teacher also reported that Claim ant was lagging behind the other children in her abilities and class work. (Id.). Dr. Lewis exam ined Claim ant, describing her as alert and cooperative. Dr. Lewis found Claim ant to have positive criteria for ADHD in all elem ents, including inattentiveness, hyperactivity, and im pulsivity, along with oppositional defiant behavior. Her tem peram ent likewise was positive for the first three elem ents: regularity, persistence, and sensory threshold. Connor’s questionnaires, which were com pleted by Claim ant’s parent and teachers, showed high positive results for hyperactivity, short attention span, and inattentiveness, with oppositional defiant aspects at hom e. Dr. Lewis felt Claim ant required a team evaluation and strongly suggested that her m other seek 9 m ental health services for Claim ant at Prestera Centers for Mental Health (“Prestera”). Claim ant returned to Dr. Lewis on February 9, 1999, with significant problem s at hom e, prim arily due to her behavior. (Tr. at 321). Claim ant’s teacher was also having issues with Claim ant’s attention span and concentration. According to Claim ant’s m other, Claim ant was not responding to behavior m odification techniques, describing prolonged tem per tantrum s. Dr. Lewis assessed Claim ant with probable ADHD with descriptions of oppositional defiant disorder, although he noted that Claim ant seem ed “pretty cooperative at this point.” (Id.). Dr. Lewis prescribed Ritalin and discussed with Claim ant’s m other the Prestera parenting program . Claim ant returned on March 2, 20 0 0 with com plaints by her m other and teacher that she had gotten worse. (Tr. at 320 ). At school, Claim ant did not listen to the teacher or follow directions. At hom e, she sm acked herself in the head and had scream ing fits when she did not get her way. Since her last visit, Claim ant’s m other reported Claim ant’s hyperactivity, m otor restlessness, im pulse control, frustration tolerance, and fam ily relations had gotten worse. There was no change in Claim ant ability to finish tasks, her peer relations, attention span, or distractibility. Regarding behavioral issues, on a scale of 0 to 9 with 9 being the m ost serious, Claim ant scored 9 on feeling sad and unhappy, prone to crying, and feeling anxious. She scored 8 for stom ach aches, 6 for decreased appetite and headaches, and 3 for prolonged staring or daydream ing. Claim ant was assessed with ADHD, headaches, and stom ach pain. Dr. Lewis included Adderall to Claim ant’s m edication regim en. (Id.). Over a year later, on May 7, 20 0 1, Claim ant returned to Dr. Lewis. (Tr. at 318-19). At this tim e, Claim ant was in the second grade and was being hom e-schooled due to her asthm a, illnesses, and long absences from school. Dr. Lewis docum ented that hom e10 schooling was not successful as Claim ant’s behavior had gotten worse. According to her m other, Claim ant would scream , hit, and throws things. Since her last visit in March 20 0 0 , Claim ant had continued to take Adderall with a good response, although the addition of Ritalin had not helped to ease her sym ptom s. Claim ant displayed problem s with attention span, hyperactivity, and im pulse control. Claim ant was assessed with ADHD, prim arily inattentive type, but with considerable behavioral problem s. Claim ant was prescribed Adderall 10 m illigram s to be taken in the m orning and early evening. In addition, Dr. Lewis discussed with Claim ant’s m other the urgent need to get Claim ant into counseling. Dr. Lewis noted that Claim ant’s m other had been given the Prestera contact inform ation a num ber of tim es in the past without her following up. At this visit, he stressed to her Claim ant’s need for counseling on behavior m odification, as well as psychological and academ ic testing. Dr. Lewis opined that hom e schooling was not a good option for Claim ant due to stresses at hom e and her problem with oppositional defiant behavior. (Id.). Claim ant returned to Dr. Lewis on J une 7, 20 0 1 doing very well with her m edication. (Tr. at 316-17). Claim ant’s m other told Dr. Lewis she was im pressed with her daughter’s im provem ent, especially in her self-esteem , relationships with friends, and im pulse control. Claim ant’s m other inform ed Dr. Lewis she was planning on hom eschooling Claim ant in the com ing school year. A child behavior checklist com pleted by Claim ant’s m other was positive only for attention deficits and aggressive behavior problem s. Claim ant was assessed with ADHD, com bined type, with a good response to m edication. In addition, Dr. Lewis felt som e of Claim ant’s oppositional defiant behavior issues were im proving with m edication. Claim ant’s Adderall was continued and her m other agreed to contact Prestera to arrange for counseling. 11 Claim ant was seen again by Dr. Lewis on Novem ber 8, 20 0 1, and at that tim e, she was in the third grade attending public school. (Tr. at 314-15). Claim ant’s m other was concerned that Claim ant was becom ing discouraged as she was not passing m ost of her classes. Claim ant had been tested and was foun d to do fairly well with reading. Although her m ath scores were low, they were not low enough to require the school to provide special assistance. Claim ant’s m edication was effective in the m ornings; however, it was less so in the evening when Claim ant was trying to do her hom ework. When Claim ant becam e frustrated with her school work, she would hit herself in the head. Claim ant’s diagnoses rem ained unchanged, and Dr. Lewis noted that her current dosage of m edication was providing inadequate results. He increased the dosage to help control Claim ant’s im pulse problem s relating to her schoolwork. Dr. Lewis inform ed Claim ant’s m other that even if the change in m edication im proved her sym ptom s, Claim ant was still a candidate for psychological counseling. Dr. Lewis also stressed to Claim ant’s m other that she should request a Section 50 4 school plan for Claim ant, which provided educational benefits to children with ADHD. In Novem ber 20 0 1, both Claim ant’s m other and her third grade teacher com pleted a parent and teacher progress report for review by Dr. Lewis. Using a scale of 0 to 3 with 0 being never, 1 being occasionally, 2 being often, and 3 being very often, Claim ant’s m other scored Claim ant with a 3 in the categories of restless and overactive, excitable and im pulsive, failure to finish things, inattentive and easily distracted, tem per outbursts, fidgeting, disturbing other children, dem ands m ust be m et im m ediately or easily frustrated, cries often and easily, quick and drastic m ood changes, appetite loss, excitable and im pulsive and grates teeth. Conversely, Claim ant’s teacher scored her at 0 in all those categories with the exception of the category of fails to finish things, in which she scored 12 a 1. (Tr. at 254-56). Claim ant’s m other indicated that Claim ant’s m edication seem ed to wear off by the afternoon, and she was not perform ing as well academ ically since she had m oved to a new school. (Tr. at 314). Dr. Evans again discussed with Claim ant’s m other the need for psychological counseling and for a Section 50 4 school plan. (Id.). Claim ant returned to Dr. Lewis on March 7, 20 0 2 with continuing problem s involving schoolwork, especially m ath, and num erous absences from school due to illness and fam ily issues. (Tr. at 312-13). Claim ant had not been taking her m edication, and, although she had participated in som e counseling at Prestera in the past, she was no longer doing so. Claim ant did not have a Section 50 4 school plan in place, but her m other did have a m eeting scheduled with the school board. Claim ant’s m other reported that Claim ant’s problem s with finishing tasks, frustration tolerance, irritability, hyperactivity, attention span, distractibility, impulse control, self-esteem , insom nia, feelings of sadness and anxiety had gotten worse. Dr. Lewis prescribed Adderall XR thirty m illigram s, which he felt would aid Claim ant in im proving her schoolwork. (Id.). Throughout 20 0 2, Claim ant returned to Dr. Lewis with continued problem s at school. Claim ant displayed im pulsive behaviors, including lying, and was sad and anxious. She becam e angry throughout the school day and had trouble paying attention. Even so, her grades were generally good. Dr. Lewis reiterated that Claim ant would benefit from psychological counseling and a Section 50 4 academ ic plan. (Tr. at 30 8-11). On May 16, 20 0 2, Dr. Lewis com m ented that Claim ant was in the top reading group; however, Claim ant’s m other reported her attention span, frustration, self-esteem , and relationships with friends had gotten worse. (Tr. at 310 ). At this visit, Dr. Lewis recorded that Claim ant had a fairly good response to m edication and her worsening problem s were m ost likely due to the illness of her grandfather with its accom panying stress on the 13 fam ily. On Septem ber 24, 20 0 2, Claim ant was in the fourth grade and having a difficult year, telling lies at school and showing little response to her m edication. However, Claim ant had received an A in m ath and was on the honor roll. Her diagnosis rem ained unchanged. Dr. Lewis felt Claim ant’s problem s were m ore closely related to issues at hom e and prescribed Adderall 30 XR along with Tenex. He also referred Claim ant to Dr. Linz for counseling. (Tr. at 30 8). The following year, Claim ant continued to get good grades and m ade the honor roll. (Tr. at 30 4). In addition, she participated in several school activities, such as cheerleading, safety patrol, and fire patrol. Even so, Claim ant continued to have problem s at school with her behavior with other students and with adults. (Tr. at 30 4-0 6). Claim ant had been hitting other children and lying at school. She was scheduled to see Dr. Linz for evaluation of her behavior, but that did not occur. Claim ant’s teacher felt that whenever Claim ant was upset, she would m ake herself sick. Claim ant had lost her m edical card, so she was not taking the prescribed m edication. Claim ant reported headaches, anxiety, irritability, sleep issues, and occasional nightm ares. Her m other was m ost concerned with Claim ant’s m ood swings. Dr. Lewis restarted the m edication and referred Claim ant to Dr. Linz for counseling. On Septem ber 21, 20 0 4, Claim ant returned to Dr. Lewis’s office for follow-up. (Tr. at 30 0 -0 2). She was twelve years old and in the sixth grade. She was adjusting to m iddle school, but continued to have problem s at hom e. Dr. Lewis observed that he had not seen Claim ant in over a year, and she had been “off and on” her m edication for the past two m onths. Claim ant reportedly was “throwing fits, scream ing, throwing things and actually hitting herself” at hom e, with her worst issues involving attention span, distractibility, frustration tolerance, and irritability. In the past, Claim ant’s prescribed m edication 14 seem ed to help; especially, Adderall XR 30 and Tenex. At this visit, Dr. Lewis confirm ed that in addition to sporadic m edication compliance, Claim ant had not been receiving the recom m ended counseling. Claim ant was assessed with ADHD with inadequate treatm ent. Because Adderall XR 30 had proven beneficial in the past, Dr. Lewis prescribed it again for Claim ant. He also provided questionnaires to her parent and teachers for use in assisting him to m onitor and gauge Claim ant’s behaviors. As for her anxiety and depression, Dr. Lewis felt Claim ant m ight have m ood issues; however, he decided to reevaluate this after she had a chance to restart her m edication. To help with her m ood, Dr. Lewis added Rem eron to her m edication regim en. During this period, several of Claim ant’s teachers com pleted questionnaires supplied by University Pediatrics School Solution Center for review by Dr. Lewis. (Tr. at 323-46). Claim ant’s reading teacher found Claim ant’s overall academ ic perform ance and behavior as average. (Tr. at 323-25). The only issues she noted were that Claim ant occasionally failed to give attention to details, m ade careless m istakes in her schoolwork, had difficulty sustaining attention to tasks or activities, following through on instructions, and failed to finish her schoolwork. Claim ant occasionally appeared fearful, anxious or worried, self-conscious, easily em barrassed, and guilty. She blam ed herself for the problem s she encountered, and appeared sad, unhappy, or depressed. Claim ant had average relationships with her peers, and was average in following directions and in organizational skills; however, Claim ant had som ewhat of a problem with assignm ent com pletion. Claim ant’s physical education teacher and choir teacher also rated her with average overall academ ic and behavioral perform ance. (Tr. at 338-43). In contrast, Claim ant was failing science and language arts; was below average in academ ic perform ance in health and social studies; was below average in behavioral perform ance 15 in science; had difficulty paying attention; was described as disorganized; was argum entative and defiant at times; and was absent from school quite a lot. (Tr. at 32631, 335-337, 344-46). Claim ant’s social studies teacher noted this class included a “coteacher,” allowing Claim ant to get “m ore help.” Claim ant’s m ath teacher could not com plete the questionnaire at all as Claim ant had been “absent for several weeks” and, therefore, the teacher could not m ake a “fair assessm ent.” (Tr. at 344-46). Shortly thereafter, on October 12, 20 0 4, Dr. Lewis wrote to Claim ant’s principal, advising him that Claim ant had a diagnosis of ADHD and requesting his assistance in form ulating a Section 50 4 school plan to help Claim ant with her educational needs. (Tr. at 252-53). In particular, Dr. Lewis suggested accom m odations, such as repeating and sim plifying instructions, providing a structured work environm ent, supplem enting verbal instructions with visual instructions, m odifying testing delivery, selecting m odified textbooks and workbooks, using tutors, utilizing positive and negative reinforcem ent, and providing supplem entary m aterials. (Id.). Claim ant returned to Dr. Lewis twice in 20 0 5. (Tr. at 294-99). On J anuary 27, 20 0 5, Claim ant com plained of having problem s at school. She was not participating in class and was failing health, although her grades were borderline in English and science classes. Dr. Lewis noted that Claim ant had a long history of em otional problem s. He had repeatedly referred her for counseling, but without m uch effect. Dr. Lewis was also concerned that no Section 50 4 academ ic plan had ever been put into place despite his letters to the school. Dr. Lewis observed that Claim ant had not had any educational testing. At hom e, where the m ost troubling behavior issues were occurring, Claim ant had “scream ing fits,” threw things, and was very difficult to control. Claim ant had gained a significant am ount of weight and continued to have sleep, behavioral, and m ood issues. 16 Dr. Lewis diagnosed Claim ant with ADHD com bined with inadequate response to treatm ent. He increased her Adderall dosage and decided to the request that Dr. Linz evaluate Claim ant for her disruptive behaviors to determ ine if the cause was adolescent adjustm ents versus anxiety/ depression versus bipolar disorder. (Tr. at 297). On October 6, 20 0 5, Claim ant reported continued struggles at m iddle school. She was having considerable difficulty adjusting to a new school and was failing her classes. Claim ant did not com plete her schoolwork, or turn it in on tim e. At hom e, her behavior had not improved either. Claim ant was being very defiant and disrespectful to her m other, and continued to throw “fits.” (Tr. at 294). She also had trouble sleeping. Dr. Lewis felt Claim ant’s m edications were not working as well as he had hoped. He was concerned with Claim ant’s depression and felt she needed regular counseling. He desisted Claim ant’s Clonidine prescription and gave her Rem eron for sleep. The following year, Claim ant saw Dr. Lewis twice; in J uly and August 20 0 6. (Tr. at 292-293). On J uly 4, 20 0 6, Dr. Lewis docum ented that Claim ant would be starting eighth grade in the fall, and although her grades were good, the m edication did not appear to be working given that Claim ant was “hateful, scream s, and stays depressed.” (Tr. at 293). She was seen at River Park Hospital earlier in the m onth for “cutting herself.” Dr. Lewis felt that Claim ant needed to see a psychologist. He added Zoloft to her m edication regim en. The following m onth, on August 22, Claim ant appeared happy and sm iling and reported she was not having trouble sleeping. Dr. Lewis observed that Zoloft was helping ease her sym ptom s. (Tr. at 292). Claim ant returned to Dr. Lewis three tim es in 20 0 7: February 16, May 3, and August 27. (Tr. at 283-91). In February, even though Claim ant was m aking the honor roll and participating in the school choir, she continued to have considerable problem s with 17 other students. In addition, Claim ant was upset with fam ily issues at hom e and reported that she felt like cutting herself. Dr. Lewis noted that Claim ant was not receiving counseling and her prescribed m edication seem ed to wear off. Dr. Lewis increased Claim ant’s afternoon dose of Adderall. As for her behavior, Dr. Lewis was skeptical that Claim ant’s issues were caused by bipolar disorder in light of her success at school and positive reaction to Adderall. Instead, he felt that she suffered from anxiety and depression. (Tr. at 289). Dr. Lewis again urged Claim ant to receive counseling, and advised her to go to the Em ergency Departm ent if she felt suicidal. On May 3, 20 0 7, Claim ant’s hyperactivity, attention span, im pulse control, fam ily and friend relationships had im proved, but her frustration tolerance was worse. (Tr. at 286). Dr. Lewis noted that Claim ant had been adm itted to River Park Hospital three m onths earlier for bipolar disorder. (Tr. at 284). Claim ant was experiencing depression and anxiety at school. She was seen by a social worker and started taking Zoloft; however, her m other discontinued the m edication, because as she did not think it was effective. Claim ant’s m other also stopped Claim ant’s afternoon dose of Adderall, indicating that the m edication interfered with Claim ant’s sleep. Dr. Lewis felt that 60 m illigram s of Adderall was appropriate and noted Claimant was doing “quite well” in school carrying a 3.1 grade average. He felt that Claim ant was “desperately in need of counseling,” so he gave her a referral. (Id.) Dr. Lewis suggested Claim ant m ight be able to take a test and m ove on to the ninth grade; however, Claim ant was not sure she wished to do that. On August 27, 20 0 7, Claim ant reported im provem ent in all categories of behavior. Her current m edication offered a good response with no side effects, and her m other reported that Claim ant had no school or behavior concerns. Claim ant indicated she really liked school and was anxious to start the new year. (Tr. at 282). 18 In February 20 0 8, Claim ant returned to Dr. Lewis for follow-up. She was 15 years old and in the eighth grade. (Tr. at 279). Her m other reported that Claim ant liked school and was showing good perform ance with hom ework and tests, although she did som etim es forget to study. (Tr. at 280 -81). Claim ant continued to be “m outhy” at hom e, but her teachers were com plim entary of her behavior in class. (Tr. at 281). By Septem ber 3, 20 0 8, Claim ant had progressed to the ninth grade. She was having som e side effects to her m edication and still displayed occasional angry outbursts, anger and agression. (Tr. at 276-78). Claim ant returned to Dr. Lewis once in 20 0 9. (Tr. at 272-75). On March 16, 20 0 9, Claim ant reported she did not like school. Her best subject was parenting and her worst subject was gym . She reported having “problem s” with her gym teacher. (Tr. at 272). Claim ant stated that she had no issues com pleting her assignm ents or studying, and her tests results were good. Dr. Lewis noted that Claim ant’s grade point average was 2.0 and she was having som e issues with her classes and her teachers. (Tr. at 272). Claim ant continued to com plain of frequent headaches. On exam ination, Claim ant was alert, and cooperative, with a euthym ic m ood and norm al affect. Dr. Lewis renewed Claim ant’s prescription for Adderall. (Tr. at 274). He opined that Claim ant’s academ ic and behavioral problem s were m anageable, and her ADHD was responding fairly to the current m edication. (Id.). On March 23, 20 10 , Claim ant returned to Dr. Lewis’s office for follow-up. (Tr. at 267-70 ). She reported liking school, stating that her best subjects were m ath and biology and her worst subject was Spanish. She claim ed to do well with hom ework, had fair study habits, and good organization. (Tr. at 267). Claim ant described her hom e situation to be good and “im proving,” and her m edication was effective. (Id.). Claim ant com plained of 19 severe headaches and m ood issues. On exam ination, Claim ant was alert with norm al affect, euthym ic m ood, and cooperative attitude. She was assessed with headache; ADHD, com bined type; and oppositional defiant disorder of childhood. Dr. Lewis opined that Claim ant’s academic and behavioral problem s were m anageable and her ADHD dem onstrated excellent response to the current prescribed m edication. (Tr. at 269). Claim ant returned to Dr. Lewis on October 5, 20 10 . (Tr. at 264-66). At this visit, Claim ant reported that her m edication, even though effective, caused her to feel “com pletely drained” and she had “no energy.” (Tr. at 265). Claim ant also told Dr. Lewis when she took her m edication, it m ade her very angry and left her in a bad m ood. She had frequent trouble sleeping and had occasional im pulse control issues, frustration tolerance, irritability, stress, daydream s, and headaches. However, Claim ant denied having problem s with hyperactivity or attention span. (Tr. at 264-65). By this tim e, Claim ant was in the eleventh grade and m aking “pretty good” grades. (Tr. at 265). Dr. Lewis decreased Claim ant’s Adderall dose to XR 50 m illigram s and advised her to return in four m onths. (Tr. at 266). On October 30 , 20 13, Claim ant was seen by Cheryl Hinshaw at Prestera for a m ental health assessm ent. (Tr. at 451-58, 466-75, 50 3-8). Claim ant inform ed Ms. Hinshaw that during the application process for a m edical card, Claim ant was advised she had “really bad depression” and was referred to Prestera for an evaluation. (Tr. at 453). Claim ant stated that Dr. Lewis, her fam ily doctor, diagnosed her with ADD and ADHD at age 7, and with bipolar disorder and clinical depression at age 13. Dr. Lewis had prescribed for Claim ant “the highest dose of Adderall you can get” and Zoloft; however, according to Claim ant, she lost her m edical card at age 18 so she stopped taking the m edication. 20 Claim ant described that whenever one of her m ental health issues was exacerbated, then all of her m ental health issues increased, causing her to be depressed and isolate herself from others. Claim ant reported that the depression typically lasted for one to two days and would slowly im prove. Claim ant reported flare ups caused her to be irritable and agitated; som etim e she could not stay still and would get easily distracted. (Tr. at 454). Claim ant was adm itted to River Park Hospital at age 12 because her m other could not control her and she was cutting herself. Claim ant was rem oved from school in the eleventh grade as she was being bullied. Claim ant worked as a kitchen aid in a nursing hom e for a m onth and a half, but was fired for serving peanut butter sandwiches on a ward where a patient had a peanut allergy. On exam ination, Claim ant appeared socially withdrawn and overwhelm ed in coping ability; however, she was oriented to tim e, place, person and situation with an appropriate affect. She dem onstrated norm al thought content, m otor activity and appropriate eye contact. (Tr. at 455-56). Claim ant was getting inadequate sleep, which m ade her restless. Her appetite was good and she had no hom icidal or suicidal ideations. Claim ant was assessed with episodic m ood disorder, NOS, rule out bipolar disorder; depressive disorder; and hyperkinetic syndrom e, NOS. (Tr. at 457). Claim ant received a GAF score of 55.1 Claim ant returned to Prestera on Novem ber 7, 20 13, for a counseling session with 1 The Global Assessm ent of Functioning (“GAF”) Scale is a 10 0 -point scale that rates “psychological, social, and occupational functioning on a hypothetical continuum of m ental health-illness,” but “do[es] not include im pairm ent in functioning due to physical (or environm ental) lim itations.” Diagnostic Statistical Manual of Mental Disorders (“DSM”), Am eric. Psych. Assoc, 32 (4th Ed. 20 0 2) (“DSM-IV”). In the past, this tool was regularly used by m ental health professionals; however, in the DSM-5, the GAF scale was abandoned, in part due to its “conceptual lack of clarity” and its “questionable psychom etrics in routine practice.” DSM5 at p. 16. Am eric. Psych. Assoc, 32 (5th Ed. 20 13). GAF scores between 51 and 60 indicate “[m ]oderate sym ptom s (e.g., flat affect and circum stantial speech, occasional panic attacks) OR m oderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” DSM-IV at 32. 21 J essica Hewitt, M.Ed. (Tr. at 459). Claim ant appeared alert and fully oriented and reported m ood swings, decreased energy and m otivation, sadness, self-isolation, and sleep issues. Claim ant described an extrem ely dysfunctional fam ily life, which had existed for m any years and caused her great stress. Claim ant was advised to continue counseling sessions. A few days later, on Novem ber 25, Claim ant returned to Prestera for an assessm ent by an attending psychiatrist, Nika Razavipour, M.D. (Tr. at 461-65). Claim ant com plained of m ood swings, along with a lack of focus; being unable to sit still; counting m oney repeatedly; having a hand washing and hair brushing ritual; and not sleeping well. On exam ination, Claim ant appeared alert, cooperative, calm , and fully oriented. Her m otor activity was within norm al lim its, as was her speech and eye contact. Claim ant dem onstrated an appropriate affect and euthym ic m ood. Claim ant’s im m ediate, rem ote, and recent m em ory was intact, as was her insight and judgm ent. Dr. Razavipour assessed Claim ant with episodic m ood disorder, NOS, and hyperkinetic syndrom e based on Claim ant’s reported history of ADD and ADHD. Claim ant received a GAF score of 55. Dr. Razavipour rated Claim ant’s prognosis as good. He provided her with a prescription for Zoloft, ordered lab tests, and advised Claim ant to continue counseling with Ms. Hewitt. Claim ant returned for counseling on J anuary 8, 20 14 and February 7, 20 14. (Tr. at 460 , 510 -11). Claim ant continued to have fam ily issues which caused her stress. On February 7, Claim ant appeared alert and fully oriented. She told Ms. Hewitt her m ood had been “ok” until she injured her knee and had to get an MRI. Although Claim ant continued to have fam ily issues, she reported she did “feel better.” (Tr. at 460 ). Dr. Razavipour evaluated Claimant on March 14, 20 14. (Tr. at 490 -93). She appeared cooperative and calm with norm al eye contact and m otor activity. Claim ant’s 22 m ood was euthym ic and her affect appropriate. Claim ant dem onstrated goal directed thought processes along with appropriate thought content. Claim ant was assessed with episodic m ood disorder, with the need to rule out depression as well as bipolar disorder, and hyperkinetic syndrom e by history. Claim ant retained a GAF score of 55. Dr. Razavipour prescribed Zoloft, 25 m illigram s, and ordered from Dr. Lewis, Claim ant’s prior psychiatric testing results for ADD and/ or bipolar disorder. Claim ant returned to Dr. Razavipour on May 2, 20 14. Claim ant reported she was getting along better with her m other although she continued to feel depressed. (Tr. at 494-97). She told Dr. Razavipour that her m ood in the past used to “be real bad” and her “flipping out” at work caused her to get fired twice. Her exam ination rem ained unchanged from her visit in March as did her assessm ent and GAF score. Dr. Razavipour increased her Zoloft dosage to 50 m illigram s. On May 5, 20 14, Claim ant attended a counseling session with Ms. Hewitt. Claim ant reported her m other and grandfather had recent health problem s in addition to her friend who had term inal cancer and who had requested Claim ant take over the care of her special needs one-year-old upon her death. (Tr. at 50 2). Claim ant felt very stressed about her situation and m used she was not sure if she could handle a baby at this point in her life. She did tell Ms. Hewitt she was getting a tattoo that day which would m ake her “happy.” Claim ant returned to Dr. Razavipour on May 12, 20 14 reporting she was constantly upset and had to “get out and go for walks” to try and stave off being upset. (Tr. at 49850 1). Claim ant told Dr. Razavipour she had never before felt this bad. In addition, she was taking care of her m other who had previously had a stroke and suffered seizures. Claim ant’s exam ination results, assessm ent, and GAF score rem ained unchanged. In addition to Zoloft, Dr. Razavipour prescribed Lam ictal, advising Claim ant to return in one 23 m onth. Claim ant underwent counseling with Ms. Hewitt two days later on May 14, 20 14. (Tr. at 476-85). Ms. Hewitt noted Claim ant presented with m ild sym ptom s of depression, distractibility, im pulsivity, and poor concentration; while Claim ant showed m oderate sym ptom s of apathy, change in sleep patterns, and withdrawal. (Tr. at 480 -81). Upon exam ination, Claim ant’s appearance, sociability, speech, thought content and recall m em ory were all within norm al lim its. Her affect was appropriate and she was found fully oriented; however, her coping skills appeared to be deficient. Ms. Hewitt observed that Claim ant had not participated in any self-help groups within the past m onth. Claim ant received a diagnosis of m ood disorder, NOS. At this visit, Ms. Hewitt noted they were awaiting prior treatm ent records from Claim ant’s fam ily physician in order to rule out possible diagnosis of ADHD and bipolar disorder. (Tr. at 476-77). B. Co n s u lt a t iv e As s e s s m e n t s a n d Ot h e r Op in io n s On October 9, 20 12, Brian P. Bailey, M.A., perform ed a consultative psychological evaluation of Claim ant at the request of the West Virginia Social Security Disability Determ ination Section (“DDS”). (Tr. at 382-86). His assessm ent included a client interview, m ental status exam ination, and the adm inistration of the Wechsler Adult Intelligence Scale-IV (“WAIS-IV”) and the Wide Range Achievem ent Test-4 (“WRAT-4”). During the interview, Claim ant advised that she was applying for Social Security benefits due to “peptic ulcer disease, asthm a, back pain, m igraines, arthritis, ADD, ADHD, bipolar disorder, panic attacks, and clinical depression.” (Tr. at 382). Claim ant told Mr. Bailey that she was born and raised in Huntington, West Virginia and had been living with her step-grandfather until she and her m other could get an apartm ent together. Claim ant had never been m arried and had no children. 24 Claim ant reported having been diagnosed with ADD and ADHD at age seven for which she received m edications that were was on ly slightly effective. She described a long history of difficulties with task persistence and of being easily distracted, although she denied any problem s with organization, stating that she som etim es spent one to two hours a day “keeping her things organized.” (Tr. at 383). Claim ant reported having occasional panic attacks, frequent anxiety, and m ood lability involving irritability and tem per issues. Claim ant indicated that her sleep pattern were restless with frequent initial insom nia. In addition, Claim ant reported recurrent depression, som etim es two m onths in duration, loss of interest and bouts of anhedonia. Claim ant stated that she had been diagnosed with bipolar disorder, without prom inent sym ptom s of m ania. She felt guilt over past fam ily relationships and had difficulty m aking decisions. When asked about her educational history, Claim ant reported having been held back in the seventh grade and receiving rem edial services related to m ath and possibly other subjects. (Tr. at 384). She believed she received average grades, however. Claim ant had disciplinary problem s due to excessive talking and ultim ately quit school in the eleventh grade. While in school, she had m inim al participation in extracurricular activities. Claim ant adm itted that her em ploym ent history was lim ited. She first becam e em ployed at age eighteen, working in a fast food restaurant. She was fired approxim ately one m onth after starting, because she could not com prehend her job responsibilities and becam e “frustrated too easily.” (Id.). She subsequently worked in the kitchen at an assisted living facility preparing food and washing dishes. However, she was fired from that job for sim ilar reasons. Claim ant reported that she “wasn’t up to pace.” (Tr. at 382, 384). 25 Mr. Bailey next adm inistered the WAIS-IV and the WRAT-4. On the WAIS-IV, Claim ant scored a 74 in verbal com prehension, 67 in perceptual reasoning, 69 in working m em ory, 81 in processing speed, with a full scale IQ m easuring 67. Mr. Bailey found the test results to be valid, as both internal and external factors indicated validity. In addition, the results were consistent with Claim ant’s academ ic and vocational history. (Tr. at 384). The WRAT-4 results were 89 for word reading, 85 for sentence com prehension, 10 0 in spelling, 75 in m ath com putation, and 85 in reading composite. (Tr. at 384-85). Mr. Bailey found these results were likewise valid. Claim ant appeared to have no problem com prehending or com plying with directions and no signs of sensory or psychom otor deficits. Mr. Bailey perform ed a m ental status exam ination, noting that Claim ant was cooperative and showed no signs of disruptive behavior or prom inent social discom fort. Claim ant was quite talkative during the interview, but exhibited m inim al hum or. Mr. Bailey felt rapport was adequately established during the evaluation. Claim ant was fully oriented and m ildly anxious. Her affect was congruent with her m ood, reflecting a norm al range of expression. Claim ant had norm al thought content with circum stantial thought process. She exhibited fair insight along with average judgm ent. Claim ant’s im m ediate and rem ote m em ory was within norm al lim its and her recent m em ory appeared m oderately deficient based on recall of words after a five-m inute delay. Claim ant’s persistence and pace were also m ildly deficient; however, her concentration was m oderately deficient based upon the standard score on the digit span task. (Tr. at 385). When asked about her daily activities and social functioning, Claim ant reported m inim al interest or involvem ent in social interaction. (Id.). She explained that she could not “find anybody I can get along with.” (Id.). Mr. Bailey observed that Claim ant had a 26 long history of interpersonal difficulties and/ or estrangem ent from others. Claim ant described a typical day for Mr. Bailey. She stated that she arose at noon or 1:0 0 p.m ., took care of her personal needs, occasionally went out or took naps in the afternoon, and spent evenings at hom e. Claim ant reported little participation in housekeeping, indicating that she vacuum ed once per m onth, occasionally m ade a salad, and som etim es went to the grocery store to m ake sm all purchases for her step-grandfather. Mr. Bailey assessed Claim ant with m ajor depressive disorder, recurrent, m oderate; anxiety disorder, NOS, with panic attacks; and m ild m ental retardation. (Id.). Mr. Bailey explained that Claim ant’s diagnosis of m ild m ental retardation was based upon valid IQ scores in the range of m ental retardation and Claim ant’s history of adaptive deficits involving academ ics, vocational functioning, self-care, hom e living, social/ interpersonal skills, use of com m unity resources, and self-direction. (Tr. at 386). He added that Claim ant had exhibited intellectual and adaptive deficits since her developm ental years. Mr. Bailey opined that Claim ant had a guarded prognosis, and given to her intellectual deficits, would require assistance in m anaging any benefits she m ight receive. (Tr. at 38586). On October 26, 20 12, Drew C. Apgar, J .D., D.O., perform ed an evaluation at the request of the DDS. (Tr. at 387-99). Claim ant reported m ultiple m edical problem s including a left knee injury sustained three days prior to this evaluation, asthm a and seasonal allergies, history of depression, bipolar disorder, ADHD, OCD, a learning disability, chronic back pain, headaches, and peptic ulcer disease. (Tr. at 388). On exam ination, Dr. Apgar found som e decreased m uscle strength in the lower left extrem ity related to a recent injury. Claim ant’s gait was unsteady, antalgic, deliberate and not fully weight-bearing and she required the use of crutches to am bulate. Claim ant reported 27 feeling depressed which had been going on for years; although during the exam ination, she was observed to be friendly, cooperative and forthcom ing. Based upon his exam ination, Dr. Apgar opined that Claim ant would have som e issues with standing, walking, traveling, lifting, carrying, pushing, and pulling along with a possibility of som e difficulty sitting. However, he found Claim ant had no problem s with handling objects with her dom inant hand, hearing or speaking. He further found the outlined lim itations m ight be related her the recent injury to her left leg. Consequently, Dr. Apgar felt that a future reassessm ent in several weeks to two m onths would help determ ine the expected duration of the lim itations he detected at this exam ination. He further opined absent her recent leg injury, Claim ant had no conspicuous functional lim itations. Dr. Apgar noted Claim ant gave considerable unsatisfactory effort and he therefore viewed the test results as unreliable. Claim ant’s m ental status was deem ed essentially norm al. Claim ant showed her understanding, long and short term m em ory were intact. Claim ant m aintained concentration and focus throughout the exam ination and she was able to show appropriate interaction and adaptation throughout the exam ination. Dr. Apgar opined Claim ant would be capable of m anaging any benefits she m ight be awarded. (Tr. at 391-99). On Novem ber 28, 20 12, J ohn Todd, Ph.D., com pleted a Psychiatric Review Technique. (Tr. at 70 -71). Dr. Todd reviewed the record under listings 12.0 4 (affective disorder) and 12.0 5 (m ental retardation). Claim ant was found to have m ild lim itations in m aintaining social functioning and m oderate lim itations in m aintaining activities of daily living as well as m aintaining concentration, persistence and pace. Dr. Todd found no evidence of episodes of decom pensation or the presence of the paragraph “C” criteria. Claim ant was deem ed to be m ostly credible with no psychiatric treatm ent or m edications. 28 Dr. Todd did not have any of Claim ant’s school records to review, but he noted Claim ant quit school in the eleventh grade and received rem edial services for m ath, but m ade average grades when in school. He also observed that Claim ant had com pleted the form s for the evaluation on her own and dem onstrated good spelling and writing that was inconsistent with the IQ scores showing m ild m ental retardation. Claim ant was able to perform personal care, m ake sim ple m eals, do laundry, walk, shop, pay her bills and watch television; however, she required rem inders to take her m edication. Dr. Todd also com pleted a Mental Residual Functional Capacity Evaluation. (Tr. at 73-75). He opined that Claim ant was not significantly lim ited in her ability to rem em ber locations and work-like procedures or understand and rem em ber very short and sim ple instructions; however, she was m oderately lim ited in her ability to understand and rem em ber detailed instructions. Dr. Todd concluded that Claim ant was capable of perform ing sim ple, routine repetitive 2-3 step tasks with sim ple explanations and directions. (Tr. at 74). She was not significantly lim ited in her ability to carry out very short, sim ple instructions; perform activities within a schedule; m aintain regular attendance; be punctual within custom ary tolerances; sustain an ordinary routine without special supervision; and m ake sim ple work-related decisions. However, Claim ant was m oderately lim ited in her ability to carry out detailed instructions; m aintain attention and concentration for extended periods; work in coordination with or in proxim ity to others without being distracted by them ; and com plete a norm al workday and workweek without interruptions from psychologically based sym ptom s; and perform at a consistent pace without an unreasonable num ber and length of rest periods. Dr. Todd supported his findings with respect to Claim ant’s deficits in concentration and persistence by noting she required short, sim ple tasks in an environm ent with few distractions. Dr. Todd also found 29 that Claim ant was not significantly lim ited in her ability to be aware of norm al hazards and take appropriate precautions, travel in unfam iliar places, or use public transportation; however, Claim ant was m oderately lim ited in her ability to respond appropriately to changes in the work setting, and set realistic goals or m ake plans independently of others. He based this conclusion on Claim ant’s need for a set routine with few changes. (Tr. at 75). On February 7, 20 13, Philip E. Com er, Ph.D., reviewed Dr. Todd’s findings and found no new m edical records indicating m ore significant m ental or em otional lim itations than identified by Dr. Todd. Therefore, Dr. Com er affirm ed the Mental Residual Functional Capacity Evaluation as written. (Tr. at 86-88). On J une 6, 20 14, Nika Razavipour, M.D., com pleted a Mental Status Statem ent of Ability to do Work-Related Activities (Mental). (Tr. at 515-18). He diagnosed Claim ant with m ood disorder, NOS, rule out bipolar disorder and depression; and ADHD, NOS. He described her m ental im pairm ent and sym ptom s as severe, and indicated that Claim ant’s GAF score was 50 .2 Dr. Razavipour found Claim ant had m arked lim itation in carrying out com plex instructions, m aking judgm ents on com plex work-related decisions, interacting appropriately with the public, supervisors and co-workers, responding appropriately to usual work situations and a change in the routine of a work setting. As to sym ptom s, Claim ant had m arked sym ptom s in im pulse control, m ood disturbance, difficulty in thinking or concentrating, persistent disturbances in m ood or affect, easily distracted and sleep disturbances. Dr. Razavipour felt the outlined sym ptom s would cause Claim ant to m iss work five or m ore days a m onth. Dr. Razavipour did not answer the question on the form as to whether Claim ant could m anage benefits in her own interest. 2 A GAF score of 41-50 indicates serious sym ptom s (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious im pairm ent in social, occupational, or school functioning (e.g. no friends, unable to keep a job). On the GAF scale, a higher score indicates a less severe im pairment. 30 VII. D is cu s s io n Claim ant’s first challenge to the Com m issioner’s decision focuses on the ALJ ’s step three determ ination. Claim ant contends that her im pairm ents, in com bination, m et the severity criteria of listing 12.0 5C. Nevertheless, the ALJ failed to consider the evidence supporting a disability finding and, instead, rejected it without good reason. Having reviewed the evidence and the ALJ ’s written decision, the undersigned agrees that the ALJ ’s step three analysis is lacking such that rem and is required. See Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 20 13) (“A necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ 's ruling.”). Although the ALJ ’s determ ination m ay prove to be correct upon further review, the ALJ did not consider listing 12.0 5C or provide any focused analysis of that listing, despite significant evidence triggering the need for such an analysis. In her brief, the Com m issioner urges the court to exam ine the evidence, arguing that Claim ant is unable to establish the first prong of listing 12.0 5C; therefore, rem and is unnecessary. However, as the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) em phasized in Fox v. Colvin, it is not “the province of the district court [] to engage in these [fact-finding] exercises in the first instance.” Id., 632 F.App’x 750 , 754 (4th Cir. 20 15) (quoting Radford, 734 F.3d at 296). To the contrary, the ALJ should have com pleted the analysis that the Com m issioner now asks the court to perform . Consequently, this case m ust be rem anded to the Com m issioner for a proper consideration of listing 12.0 5C. At the second step of the disability determ ination process, the ALJ found that Claim ant had the severe m ental im pairm ents of affective disorder and anxiety disorder, NOS. (Tr. at 14). However, despite Claim ant’s valid IQ scores below 70 , the ALJ did not find Claim ant to have a severe intellectual disability, nor did the ALJ provide any 31 discussion regarding Claim ant’s m edically determ inable im pairm ent of m ild m ental retardation, established by diagnosis and testing, or the severity of that condition. (Id.). The ALJ com pounded this error at the next step of the process when he considered listings 12.0 4 and 12.0 6, but failed to compare the evidence of Claim ant’s intellectual disability to the criteria of listing 12.0 5. (Tr. at 15-16). Notably, the Com m issioner does not argue that the ALJ had no duty to consider listing 12.0 5. Indeed, the Com m issioner concedes that Claim ant m et two out of three prongs of that listing. Instead, the Com m issioner contends that Claim ant clearly does not m eet the first prong of the listing; thereby, obviating the need to rem and the decision for further proceedings. At the third step of the sequential evaluation process, “an ALJ must fully analyze whether a claim ant's im pairm ent m eets or equals a ‘Listing’ where there is factual support that a listing could be m et. … The ALJ 's analysis m ust reflect a com parison of the sym ptom s, signs, and laboratory findings concerning the im pairm ent, including any resulting functional lim itations, with the corresponding criteria set forth in the relevant listing.” Huntington v. Apfel, 10 1 F. Supp. 2d 384, 390 – 91 (D. Md. 20 0 0 ) (citations om itted); see, also, Beckm an v. Apfel, No. WMN-99-3696, 20 0 0 WL 1916316, at *9 (D. Md. Dec. 15, 20 0 0 ) (“In cases where this is ‘am ple factual support in the record’ for a particular listing, the ALJ m ust provide a full analysis to determ ine whether the claim ant’s im pairm ent m eets or equals the listing.”) (citation om itted). 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 32 at a higher level of severity than that required to m eet the statutory definition of disability. Sullivan v. Zebley , 493 U.S. 521, 532 (1990 ). Because disability is presum ed with a listed im pairm 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 m edical 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, including listing 12.0 5— Intellectual Disability (form erly Mental 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 mental 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 claimant’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. As such, to qualify for disability under listing 12.0 5C, a claim ant m ust establish that she 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 constitute the second and third prongs of the listing, are: “A valid verbal, perform ance, or full scale IQ of 60 through 70 an d a physical or other m ental im pairm ent im posing an additional and significant work-related lim itation of function.” Id. at § 12.0 5C. 33 Here, as the Com m issioner acknowledges, Claim ant produced evidence sufficient to trigger a com parison of her im pairm ents against the criteria of listing 12.0 5C. First, Claim ant subm itted valid IQ scores between 60 and 70 . When tested in 20 12, Claim ant obtained scores on the WAIS-IV of 67 in perceptual reasoning, 69 in working m em ory, and received a full-scale IQ score of 67. The scores were determ ined to be valid by Brian Bailey, M.A., the psychologist adm inistering the test, on the basis that both internal and external factors indicated validity, and the results were consistent with Claim ant’s academ ic and vocational history. (Tr. at 384). Next, Claim ant produced undisputed evidence of a separate physical or m ental im pairm ent im posing a significant work-related functional lim itation. The ALJ found that Claim ant had several severe im pairm ents, which prevented her from perform ing past relevant work. According to the Fourth Circuit, if a claim ant has an additional im pairm ent that qualifies as “severe,” then that im pairment should also be considered as im posing a significant work-related lim itation under listing 12.0 5C. Luckey v. U.S. Dep’t of Health & Hum an Servs., 890 F.2d 666, 669 (4th Cir. 1989). Sim ilarly, if a claim ant is precluded from perform ing past relevant work, she has established a work-related lim itation of function which m eets the requirem ents of § 12.0 5C. Branham v. Heckler, 775 F.2d 1271, 1273 (4th Cir. 1985). As the Fourth Circuit explains in these cases, “the additional lim itation ‘need not be disabling in and of itself.’” Luckey , 890 F.2d at 669 (quoting Branham , 775 F.2d at 1273). With respect to the rem aining prong of the listing—prong one: the diagnostic definition—there can be no dispute that any adaptive deficit displayed by Claim ant m anifested during her developm ental period given that Claim ant was 21 years old at the tim e of the ALJ ’s decision. Consequently, the question is whether Claim ant’s alleged 34 adaptive deficits rose to the level of severity required to m eet or equal the listing. “‘[A]daptive functioning’ refers to the individual's progress in acquiring m ental, academ ic, social and personal skills as com pared with other unim paired individuals of his/ her sam e age ....” Heaton v. Colvin, No. CV 0 :15-1150 -TLW-PJ G, 20 16 WL 510 9191, at *4 (D.S.C. Apr. 21, 20 16), report and recom m endation adopted, No. 0 :15-CV-1150 TLW, 20 16 WL 4993399 (D.S.C. Sept. 19, 20 16) (quoting the Program Operations Manual System (“POMS”) § DI 24515.0 56(D)(2)). “Deficits in adaptive functioning can include lim itations in areas such as com m unication, self-care, hom e living, social/ interpersonal skills, use of com m unity resources, self-direction, functional academ ic skills, work, leisure, health, and safety.” Jackson v. Astrue, 467 F.App’x 214, 218 (citing Atkins v. Virginia, 536 U.S. 30 4, 30 9 n. 3 (20 0 2)). While intellectual functioning is m easured by standardized IQ testing, “[a]daptive functioning refers to how effectively an individual copes with com m on life dem ands and how well [she] m eets the standards of personal independence expected of som eone in [her] particular age group, sociocultural background, and com m unity setting.” See Salm ons v. Astrue, 5:10 -cv-195-RLV, 20 12 WL 1884485, at *2 (W.D.N.C. May 23, 20 12) (quoting Caldw ell v. Astrue, 20 11 WL 4945959, *3 (W.D.N.C. October 18, 20 11)). Although listing 12.0 5C requires “‘deficits' in adaptive functioning, it does not specify what degree of deficit is required (m ild versus significant, for exam ple), whether deficits m ust exist in one, two, or m ore categories of adaptive functioning, or what m ethodology should be used to m easure deficits in adaptive functioning.” Blancas v. Astrue, 690 F.Supp.2d 464, 477 (W.D.Tex.20 10 ) (citing Barnes v. Barnhart, 116 Fed.Appx. 934, 939 (10 th Cir.20 0 4)). Instead, “[w]hether a claim ant's alleged deficits satisfy prong one is a fact-specific inquiry and m ust be determ ined on a case-by-case 35 basis.” Goble v. Colvin, No. 7:15-CV-0 0 0 49-RN, 20 16 WL 3198246, at *5 (E.D.N.C. J une 8, 20 16) (citing Richardson v. Colvin, No. 8:12-cv-0 350 7, 20 14 WL 7930 69, at *11 (D.S.C. Feb. 25, 20 14)). Thus, the weight given by the ALJ to each discrete piece of evidence reflecting Claim ant’s adaptive functioning is key to the step three analysis of listing 12.0 5. See Salm ons, 20 12 WL 1884485, at *7; also Norris v. Astrue, No. 7:0 7-CV-184-FL, 20 0 8 WL 4911794, *3 (E.D.N.C. Nov. 14, 20 0 8) (holding that a diagnosis of m ental retardation is possible with IQ scores between 70 and 75 if there are significant deficits in adaptive behavior; however, the diagnosis m ay not be supported even with IQ scores below 70 if there are no significant deficits). In that regard, Claim ant supplied evidence of longstanding learning and behavioral difficulties dating back to elem entary school, which prom pted her m other to seek m edical care for Claim ant. Claim ant’s pediatrician, Dr. Lewis, repeatedly recom m ended to Claim ant’s teachers and principals that they im plem ent a Section 50 4 educational plan to address Claim ant’s academ ic and attention deficits. Furtherm ore, Claim ant reportedly required special education assistance with som e of her classroom work, was held back in the seventh grade, and dropped out of school in the 11th grade, with a grade point average of 1.2. (Tr. at 37). Claim ant never obtained a GED and was unable to pass the test for a driver’s license. See Rivers v. Astrue, No. 8:10 -cv-0 0 314RMG, 20 11 WL 2581447, *3 (D.S.C. J un. 28, 20 11) (holding that substantial evidence of deficits of adaptive functioning were dem onstrated where the claim ant required a special needs classification at school, was repeatedly evaluated during her early years of education, was described as “inattentive with m arked aggressiveness and speech defect,” and dropped out of school). While poor grades and special educational courses alone do not establish the diagnosis of m ental retardation, Henry v. Colvin, No. 3:13-cv-357, 20 14 36 WL 856358, at *10 (E.D.Va. Mar. 4, 20 14), difficulties in school can be a key indicator of early deficits in adaptive functioning. Salm ons, 20 12 WL 1884485, at *7 (“[F]unctional academ ic skill is the prim ary m easure of deficits in adaptive functioning before age 22.”). In addition to her academ ic deficiencies, Claim ant had never lived alone and depended upon her extended fam ily to clean, shop, cook, and care for her. Id. at *4. Claim ant’s psychological treatm ent records docum ented social and interpersonal deficiencies and an inability to m aintain em ploym ent. Luckey , 890 F.2d at 669 (holding that work history, while not dispositive, was relevant to the determ ination of whether a claim ant had significant deficits of adaptive functioning). Notwithstanding the above-stated evidence, the court recognizes that there is conflicting evidence regarding the level of Claim ant’s general intellectual functioning and the severity of her deficits in adaptive functioning. For that very reason, the ALJ should have identified the evidence pertinent to listing 12.0 5C, analyzed it, determ ined the im portance of each piece of conflicting evidence, and resolved the conflicts. Hancock, 667 F.3d at 476. The ALJ then had the duty to provide a reasonable explanation for why Claim ant’s im pairm ents did or did not m eet or equal the requirements of listing 12.0 5C. A review of the written decision dem onstrates that the ALJ wholly failed to conduct a 12.0 5C analysis. Indeed, the ALJ never even m entioned the specific results of Claim ant’s IQ testing or addressed their validity. He also never explicitly discussed the severity level of Claim ant’s deficits in adaptive functioning based upon all of the relevant evidence. The ALJ ’s decision to reject Mr. Bailey’s opinions during the assessm ent of Claim ant’s RFC sim ply did not overcom e the ALJ ’s failure to consider listing 12.0 5C at the third step of the process. See, e.g., Leslie v. Colvin, No. 2:15-CV-0 286-VEH, 20 16 WL 390 6430 , at *4– 8 (N.D. Ala. J uly 19, 20 16) (“Though [the ALJ ] later gives little weight to Dr. Saxon's 37 opinions …, that discounting is in regard to the RFC analysis in step four, not as applied to the I.Q. test. … The fact that evidence potentially exists in the record that could sustain a decision to reject Mr. Leslie's I.Q. result is not sufficient if the evidence is never discussed by the ALJ .”) Therefore, for the foregoing reasons, the undersigned finds that the written decision does not reflect a clear and thorough analysis at step three of the disability determ ination process; specifically, as to the issue of whether Claim ant’s im pairm ents m et or equaled listing 12.0 5C. For that reason, the undersigned concludes that the Com m issioner’s decision is not supported by substantial evidence and m ust be reversed and rem anded for consideration of Claim ant’s im pairm ents under listing 12.0 5C. Given that the Com m issioner’s decision will be reversed and remanded on this ground, the court need not address Claim ant’s other challenges. However, in the course of analyzing the severity of Claim ant’s intellectual disability, the Com m issioner should reconsider all evidence, including the m edical source opinions, relevant to Claim ant’s general intellectual functioning and deficits in adaptive functioning. 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 GRAN TS Plaintiff’s m otion for judgm ent on the pleadings, to the extent that it requests rem and, (ECF No. 11); D EN IES Defendant’s request that the Com m issioner’s decision be affirm ed, (ECF No. 12); REVERSES the final decision of the Com m issioner; REMAN D S this m atter pursuant to sentence four of 42 U.S.C. § 40 5(g) for further adm inistrative proceedings consistent with this opinion; and D ISMISSES this action from the docket of the Court. A J udgm ent Order shall be entered accordingly. 38 The Clerk of this Court is directed to transm it copies of this Mem orandum Opinion to counsel of record. EN TERED : J anuary 11, 20 17 39
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
