Opinion
Civil Action No. 2:13-cv-371
03-10-2014
LATRICIA HODGES. Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
Judge Mark R. Hornak
MEMORANDUM OPINION
Mark R. Hornak, United States District Judge
Plaintiff Latricia Hodges ("Ms. Hodges") brought this action pursuant to 42 U.S.C. § 1383(c), for judicial review of the final determination of the Commissioner of Social Security ("Commissioner"), who denied her application for supplemental security income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1381-1383(f).
I. BACKGROUND AND FACTS
Ms. Hodges was born on October 8, 1991. ECF No. 7-2 at 29. She graduated high school and has completed some coursework at the Community College of Allegheny County. Id. at 31-32. She has never been formally employed. Id at 32.
Ms. Hodges alleges disability as of January 8, 2010 due to various mental impairments, including oppositional defiant disorder ("ODD"), attention deficit hyperactivity disorder ("ADHD"), pervasive developmental disorder ("PDD"), anxiety disorder, arithmetic disorder, and autism. Id. at 19, 36. The record reflects that she has not engaged in substantial gainful work activity since alleging disability in January 2010. Ms. Hodges initially filed an application for SSI on January 8, 2010, in which she claimed total disability since November 1, 1994. Id. at 14. The State Agency denied her claims on May 27, 2010. Id. An administrative hearing was held on July 5, 2011 before Administrative Law Judge Michael Colligan ("ALJ"). Id. Ms. Hodges was represented by counsel and testified at the hearing. Id. Her mother, Montique Davis, testified by telephone. Id. at 14. Karen Krull, an impartial vocational expert ("VE"), also testified at the hearing. Id.
As Ms. Hodges acknowledges in her brief, although she alleges that her disability onset date is November 1, 1994, SSI benefits may not be paid for any period preceding the first month following the date on which an application is filed or, if later, the first month following the date all conditions for eligibility are met. 20 C.F.R. § 416.501. Therefore, the relevant disability date for this case is January 8, 2010, the date Ms. Hodges filed her initial claim for SSI benefits.
On August 16, 2011, the ALJ rendered a decision unfavorable to Ms. Hodges in which the ALJ found that she was not under a disability within the meaning of the Act from January 8, 2010 through the date of the decision. Id. at 20-21. The ALJ's decision became the final decision of the Commissioner on January 31, 2013, when the Appeals Council denied Plaintiff's request to review the decision of the ALJ. Id. at 2-4.
On March 15, 2013, Plaintiff filed her Complaint in this Court, seeking judicial review of the decision of the ALJ. ECF No. 3. The parties have filed Motions for Summary Judgment, ECF Nos. 12 and 14, and respective Briefs in Support, ECF Nos. 13 and 15. Ms. Hodges has filed a response to the Commissioner's Motion for Summary Judgment. ECF No. 16. She raises one ground for review -that the ALJ erred in failing to find that she was disabled per se, because her mental impairments met or equaled a Listed Impairment, namely Listing 12.05(C), which relates to intellectual disability. Ms. Hodges contends that because the ALJ erred in not finding her disabled per se, the Court should reverse the Commissioner's decision and grant her an award of SSI benefits. The Commissioner argues that the ALJ's decision was supported by substantial evidence, and therefore the Court should grant its Motion for Summary Judgment. The Court concludes that the ALJ's decision as to Listing 12.05(C) was not supported by substantial evidence. Because the ALJ made an error of law in finding that Ms. Hodges failed to meet one of the criterion contained in Listing 12.05(C), and the administrative record of the case has not been fully developed as to each of the Listing 12.05(C) criteria, the Court grants Ms. Hodges' Motion for Summary Judgment to the extent that it will remand the case to the ALJ for further development of the record in accordance with this Opinion.
II. STANDARD OF REVIEW
The Act limits judicial review of disability claims to the Commissioner's final decision. 42 U.S.C. §§ 405(g), 1383(c)(3). If the Commissioner's finding is supported by substantial evidence, it is conclusive and must be affirmed by the Court. 42 U.S.C. § 405(g); Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). The United States Supreme Court has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389 (1971), It consists of more than a scintilla of evidence, but less than a preponderance. Thomas v. Comm'r of Soc. Sec., 625 F.3d 798 (3d Cir. 2010).
Courts have consistently addressed the issue of a claimant's disability in terms of meeting a single disability standard under the Act. See Burns v. Barnhart, 312 F.3d 113, 119 n. 1 (3d Cir. 2002) ("This test [whether a person is disabled for purposes of qualifying for SSI] is the same as that for determining whether a person is disabled for purposes of receiving social security disability benefits [DIB]. Compare 20 C.F.R. § 416.920 with § 404.1520."); Morales v. Apfel, 225 F.3d 310, 315-16 (3d Cir. 2000) (stating claimants' burden of proving disability is the same for both DIB and SSI).
When resolving the issue of whether an adult claimant is or is not disabled, the Commissioner utilizes a five-step sequential evaluation. 20 C.F.R. §§ 404.1520,416.920. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is working, (2) has a severe impairment, (3) has an impairment that meets or equals the requirements of a Listed Impairment, (4) can return to his or her past relevant work, and (5) if not, whether he or she can perform other work. See 42 U.S.C. § 404.1520; Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 545-46 (3d Cir. 2003) (quoting Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 118-19 (3d Cir. 2000)).
To qualify for disability benefits under the Act, a claimant must demonstrate that there is some "medically determinable basis for an impairment that prevents him or her from engaging in any substantial gainful activity for a statutory twelve-month period." Fargnoli v. Massanari, 247 F.3d 34, 38-39 (3d Cir. 2001) (internal citation omitted); 42 U.S.C. § 423 (d)(1) (1982). This may be done in two ways:
(1) by introducing medical evidence that the claimant is disabled per se because he or she suffers from one or more of a number of serious impairments delineated in 20 C.F.R. Pt. 404, subpt. P, app. 1. See Heckler v. Campbell, 461 U.S. 458 (1983); Newell, 347 F.3d at 545-46; Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004); or,
(2) in the event that claimant suffers from a less severe impairment, by demonstrating that he or she is nevertheless unable to engage in "any other kind of substantial gainful work which exists in the national economy . . . ." Campbell, 461 U.S. at 461 (citing 42 U.S.C. § 423 (d)(2)(A)).
In order to prove disability under the second method, a claimant must first demonstrate the existence of a medically determinable disability that precludes her from returning to her former job. Newell, 347 F.3d at 545-46; Jones, 364 F.3d at 503. Once the claimant shows she is unable to resume her previous employment, the burden shifts to the Commissioner to prove that, given claimant's mental or physical limitations, age, education and work experience, she is able to perform substantial gainful activity in jobs available in the national economy. Rutherford, 399 F.3d at 551; Newell, 347 F.3d at 546; Jones, 364 F.3d at 503; Burns, 312 F.3d 113, 119 (3d Cir. 2002).
Where a claimant has multiple impairments which may not individually reach the level of severity necessary to qualify any one such impairment for Listed Impairment status, the Commissioner nevertheless must consider all of the impairments in combination to determine whether, collectively, they meet or equal the severity of a Listed Impairment. Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 502 (3d Cir. 2009); 42 U.S.C. § 423(d)(2)(C) ("in determining an individual's eligibility for benefits, the Secretary shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity").
In this case, the ALJ determined that Plaintiff was not disabled within the meaning of the Act at the fifth step of the sequential evaluation process. ECF No. 7-2 at 20-21. The ALJ concluded that while Ms. Hodges did have a number of severe impairments - ADHD, PDD, anxiety disorder, and arithmetic disorder - she did not have an impairment or combination of impairments that "met or medically equaled" a Listed Impairment during the relevant period. Id. at 16. In his findings, the ALJ explicitly considered the criteria of listings 12.02 (organic mental disorders), 12.05 (intellectual disability), 12.06 (anxiety related disorders), and 12.10 (autistic disorder and other pervasive developmental disorders). Id. at 17-18. The ALJ then found that Ms. Hodges retained the RFC to perform a full range of work at all exertional levels, with several non-exertional limitations: a low-stress work environment, no more than simple, routine, repetitive tasks, and no more than minimal contact with the public and co-workers. Id at 18. Based upon the testimony of the VE and because Ms. Hodges had no relevant work history, the ALJ next concluded that jobs existed in significant numbers in the national economy that an individual with Ms. Hodges' age, education, work experience, and RFC could perform - including motel cleaner, janitor, sorter, and grader. Id. at 20. Accordingly, the ALJ found Ms. Hodges was not disabled within the meaning of the Act. Id. at 20-21.
III. DISCUSSION
As set forth in the Act and applicable case law, this Court may not undertake a de novo review of the Commissioner's decision or re-weigh the evidence of record. Monsour Med. Ctr. v. Heckler, 806F.2d 1185, 1190 (3d Cir. 1986), cert. denied., 482 U.S. 905 (1987). The Court must only review the findings and conclusions of the ALJ to determine whether they are supported by substantial evidence. 42 U.S.C. § 405(g); Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999).
At step three, the claimant bears the burden of presenting medical evidence to show that her impairment matches a listing or is equal in severity to a listed impairment, Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 120 n.2 (3d Cir. 2000) (citing Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992)). The Supreme Court has defined this burden:
For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify. For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is "equivalent" to a listed impairment, he must present medical findings equal in severity in all the criteria for the one most similar listed impairment. A claimant cannot qualify for benefits under the "equivalence" step by showing that the overall functional impact of his unlisted impairment or combination of impairments is as severe as that of a listed impairment.Sullivan v. Zebley, 493 U.S. 521, 530-32 (1990).
Because Ms. Hodges only asks that this Court review the ALJ's decision as to Listing 12.05(C), the Court will constrain its analysis to that issue. Warren G. v. Cumberland Cty. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999) (an issue is waived if not raised in a party's opening brief). Listing 12.05 begins with a paragraph providing the diagnostic description for intellectual disability - "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period, i.e., the evidence demonstrates or supports onset of the impairment before age 22." 20 C.F.R. pt. 404, subpt. P, app.l, § 12.05. The Listing then sets forth four series of criteria, labeled A through D. Id. If a claimant produces evidence satisfying any one of those sets of criteria, the ALJ should conclude that she is disabled per se, as she satisfies a Listed Impairment. Id. Listing 12.05(C) provides that the required level of severity for an intellectual disability is met when the claimant has a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function. Id.
The Third Circuit has developed a three-prong test for whether a claimant meets the requirements of Listing 12.05(C), A claimant must; i) have a valid verbal, performance, or full scale IQ of 60 through 70, ii) have a physical or other mental impairment imposing additional and significant work-related limitations of function, and iii) pursuant to the introductory paragraph of Listing 12.05, show that her intellectual disability was initially manifested during the developmental period (prior to age 22). Markle v. Barnhart, 324 F.3d 182, 187 (3d Cir. 2003).
In his decision, the ALJ wrote:
[T]he "paragraph C" criteria of listing 12.05 are not met because the claimant does not have a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function. Although the claimant earned a performance IQ of 70, she does not have a physical or other mental impairment imposing an additional and significant work-related limitation of function.ECF No. 7-2 at 18. Ms. Hodges argues that the ALJ erred as a matter of law in finding that she did not meet the second criterion of Listing 12.05(C). The Court agrees. The ALJ determined that Ms. Hodges did not have a physical or other mental impairment imposing an additional and significant work-related limitation of function. However, in Markle, the Third Circuit quoted the Social Security Administration ("SSA") in clarifying that it has always intended the "other impairment" language in the second criterion to equate to a "severe impairment" as defined in § § 404.1520(c) and 416.920(c) - in other words, any severe impairment identified at step two of the ALJ's analysis. 324 F.3d at 188 (quoting Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50746, 50772 (Aug. 21, 2000)). See also Velardo, 2009 WL 229777, at *7. At step two, the ALJ found that Ms. Hodges had four significant impairments - ADHD, PDD, anxiety disorder, and arithmetic disorder. He then inconsistently concluded at step three that Ms. Hodges had no physical or mental impairment imposing an additional and significant work-related limitation of function. Based on the standard set by the SSA and adopted in Markle, the ALJ erred as a matter of law by rejecting as sufficient to meet the second criterion in Listing 12.05(C) the impairments he found to be severe at step two.
The ALJ's decision as to the first prong of Listing 12.05(C) is also problematic. Ms. Hodges did indeed receive a performance IQ of 70 - as the result of a Wechsler Preschool and Primary Scale of Intelligence IQ test administered to her in 1996, when she was 4 years old. ECF No. 7-7 at 3. In April 2010, Dr. Steven Pacella evaluated Ms. Hodges using the third edition of the Wechsler Adult Intelligence Scale ("WAIS-III"), ECF No, 7-8. Ms. Hodges earned a verbal IQ of 84, a performance IQ of 73, and a full scale IQ of 77, none of which would qualify her for disability under Listing 12.05(C). Id. at 25. The ALJ omitted these results completely from his decision. While a single IQ score within the 60-70 range is sufficient to satisfy the first prong of the Listing 12.05(C) criteria, Burns v. Barnhart, 312 F.3d 113, 125, n.6 (3d Cir. 2006), the Listing explicitly states that the IQ test in question must be a valid one.
The ALJ did not make any explicit findings as to the validity of the nearly two decade old IQ test, Ms. Hodges argues that because he mentioned the performance IQ score in his decision, the ALJ adopted the test as valid. Listing 12.05 contains no temporal limit on the validity of IQ tests, but the SSA has acknowledged that the medical community considers test results obtained at a young age to be less reliable and valid than test results obtained at an older age. Miller v. Astrue, 2011 WL 2580516, at *6 (W.D. Pa. June 28, 2011). Accordingly, in the corresponding Listings for children under age 18, the SSA provides that IQ results obtained at age 16 or older should be viewed as a valid indication of the child's current status, whereas IQ test results obtained before age 7 are current for 2 years if the tested IQ is less than 40 and for one year if greater than 40. 20 C.F.R. Pt. 404, subpt. P, app. 1, § 112.00(D)(10). The Defendant argues that on this basis, the Court should uphold the ALJ's decision.
In Miller, the court collected cases applying Listing 112.00(D)(10) to a review of the requirements of Listing 12.05C and held that the ALJ did not err in determining that the claimant was not disabled under Listing 12.05C pursuant to IQ test results from when the claimant was 19 years old. 2011 WL 2580516, at *6. The ALJ failed to address the validity of IQ test scores taken when the claimant was 8 years old that fell within the 60-70 range, but the court concluded that under Listing 112.00(D)(10), those scores were only valid for 2 years, "well before Plaintiff's application for benefits." Id. See also Phillips v. Astrue, 2012 WL 443003), at *6 (W.D. Pa. Feb. 10,2012) ("A plain reading of [Listing 12.05(C)] implies that a claimant must provide proof of the continuous presence of mental retardation. Objective testing must confirm mental retardation at a time prior to a claimant having reached the age of twenty-two, and continuing until the point at which a claimant sought disability benefits.")
Ms. Hodges correctly points out that under the Supreme Court's decision in SEC v. Chenery Corp., 318 U.S. 80, 87 (1943), which requires a reviewing court to limit its consideration to what is plain on the face of an administrative decision, because nothing in the ALJ's decision indicates that Ms. Hodges' 1996 IQ scores are invalid due to her age at the time, this Court may not uphold his decision based on the rationale that they are in fact invalid. The Court considers Judge Standish's opinion in Velardo v. Astrue, 2009 WL 229777 (W.D. Pa. Jan. 29,2009), instructive as to this case. In Velardo, the claimant produced two sets of IQ test scores - one set taken from a test administered to him in 1990 when he was 14 years old that met the first criterion in Listing 12.05(C), the other from a WAIS-III test given to him in 2004 when he was 28 years old that failed to satisfy that requirement. Id. at *1, *5. The ALJ made no express finding as to the validity of the 1990 IQ scores, but found that the claimant did not meet the Listing 12.05(C) criteria and was not disabled under the Act. Id. at *9. The Commissioner made an argument nearly identical to the one the Commissioner makes here as to the applicability of the language contained in Listing 112.00(D)(10). Id. at *12. The Court rejected that argument as prohibited from its consideration by Chenery. Id. Instead, the Court remanded the case due to similar "internally inconsistent conclusions" the ALJ reached as to the severity of the claimant's other physical and mental impairments at steps two and three, and so that the ALJ could clarify his reasoning on the validity of the claimant's IQ scores. Id. at *15.
The Court considers it prudent to chart a course similar to the one navigated by Judge Standish in Velardo. The language in the ALJ's decision concerning Ms. Hodges' IQ test results is unclear and does not include an express finding that the 1996 IQ test results remain valid. The remainder of the record fails to elucidate matters - notably, the school psychologist who administered the 1996 IQ test described Ms. Hodges' IQ performance as "in the borderline range of intellectual ability," ECF No. 7-7 at 4, and an IQ test nearly twenty years more current, which the ALJ failed to address at all, provides no basis for a satisfaction of Listing 12.05(C). Therefore, the Court will remand this case due to the error of law committed in finding that Ms. Hodges did not meet the second criterion of Listing 12.05(C), and for further development of the record and clarification as to the validity of Ms. Hodges' IQ scores and her satisfaction of the first criterion of Listing 12.05(C).
CONCLUSION
This Court, after reviewing the final decision of the Commissioner, may affirm, modify, or reverse that decision with or without a remand to the Commissioner for a rehearing under 42 U.S.C. § 405(g). Newell v. Comm'r of Soc. Sec., 347 F.3d 541, 549 (3d Cir. 2003). However, the Court may only award benefits "when the administrative record of the case has been fully developed and when substantial evidence on the record as a whole indicates that the plaintiff is disabled and entitled to benefits." Podedworney v. Harris, 745 F.2d 210, 222 (3d Cir. 1984). While the Court concludes that pursuant to the ALJ's findings he should have determined that Ms. Hodges met the second criterion, for the reasons stated in this Opinion, it cannot conclude that she unequivocally met the first. This case is therefore not so clear that the Court can justifiably award benefits to Ms. Hodges. Instead, the Court will deny her Motion for Summary Judgment to the extent that she seeks an award of benefits and grant it to the extent that she seeks remand, and will remand the case so that the ALJ may further develop the record and clarify in particular the validity of Ms. Hodges' respective IQ scores. The Commissioner's Motion for Summary Judgment will accordingly be denied.
Because Ms. Hodges was under the age of 22 when she filed her claim, any manifestation of intellectual disability would satisfy the third criterion. The Court therefore leaves that determination to the ALJ in accordance with his findings on remand as to the first two criteria.
The Court notes that it did not consider the additional evidence submitted by Ms. Hodges to the Appeals Council, ECF No. 7-10, as that evidence was not present before the ALJ. See Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001) (Where the ALJ's decision is the final determination of the Commissioner, records presented for the first time at the Appeals Council level may only be considered upon a showing that they contain new evidence which is material, and that there is good cause for the failure to incorporate such evidence into the record in the prior proceeding). However, because the Court is remanding this cause to the ALJ for a rehearing pursuant to the fourth sentence of 42 U.S.C. § 405(g), Ms. Hodges will have an opportunity to present new evidence to the ALJ.
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An appropriate Order follows.
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Mark R. Hornak
United States District Judge
cc: All counsel of record