Opinion
Case No. 8:17-cv-01435-RMG-JDA
08-13-2018
Derrick Gilliard, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claims for disability insurance benefits ("DIB") and supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
On November 26, 2012, Plaintiff filed applications for DIB [R. 243-249; see R. 20] and SSI [R. 250-256; see R. 20], alleging a disability onset date of December 16, 2011 [R. 243, 250]. The claims were denied initially [R. 68-95] and upon reconsideration [R. 101-136] by the Social Security Administration ("the Administration"). Plaintiff filed a request for hearing before an administrative law judge ("ALJ"), and on December 30, 2014, ALJ Peggy McFadden-Elmore conducted a de novo hearing on Plaintiff's claims. [R. 41-67.]
On January 30, 2015, the ALJ issued her decision, finding Plaintiff not disabled. [R. 20-39.] At Step 1, the ALJ determined that Plaintiff met the insured status requirements of the Social Security Act ("the Act") through March 31, 2013, and that he had not engaged in substantial gainful activity since December 16, 2011, the alleged onset date. [R. 24, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: status post concussion/cerebral trauma; headaches; degenerative disc disease; osteoarthritis; borderline intellectual functioning; and major depression, single episode, mild. [R. 24, Finding 3.] The ALJ also noted Plaintiff had non-severe impairments of rheumatoid arthritis and a history of alcohol abuse. [R. 24.] The ALJ noted that Plaintiff testified to having limited use of his left hand, but that there were no deficits noted in the record and it was unclear whether this symptom was related to a medically determinable impairment. [Id.]
At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). [R. 24-25, Finding 4.] Before addressing Step 4, the ALJ determined Plaintiff had the following residual functional capacity ("RFC"):
the claimant has the [RFC] to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c). Specifically, the claimant can lift and carry up to 50 pounds occasionally and 25 pounds frequently, sit for 6 hours in an 8-hour day, and stand and/or walk for 6 hours in an 8-hour day. The claimant can frequently climb ladders, ropes and scaffolds. The claimant is limited to unskilled work, generally defined as requiring only simple, routine and repetitive tasks. The claimant cannot have any interaction with the general public. He cannot have team-type interaction with coworkers, but he can have incidental contact with the public and coworkers.[R. 27, Finding 5.]
At Step 4, the ALJ determined that Plaintiff was unable to perform his past relevant work as a heavy equipment operator, a mechanic, a construction laborer, a forklift operator, or warehouse worker. [R. 32-33, Finding 6.] However, upon considering Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ found that there were jobs that exist in significant numbers in the national economy that Plaintiff could perform. [R. 33, Finding 10.] Thus, on that basis, the ALJ determined that Plaintiff had not been under a disability as defined by the Act from December 16, 2011, through the date of the decision. [R. 34, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council declined. [R. 1-8.] Plaintiff filed the instant action for judicial review on June 2, 2017. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and contains legal errors warranting the reversal and remand of the case. [See Doc.15.] Specifically, Plaintiff contends the ALJ failed to properly consider Plaintiff's mental impairments under Listing 12.05. [Id. at 6-10.] The Commissioner contends the ALJ's decision should be affirmed because there is substantial evidence of record that Plaintiff was not disabled within the meaning of the Act. [See Doc. 16.] Specifically, the Commissioner contends substantial evidence supports the ALJ's finding that Plaintiff did not meet the Listing 12.05 requirements because the Plaintiff failed to show the requisite deficits in adaptive functioning prior to age 22. [Id. at 8-11.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat 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.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1091-92 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four may be appropriate to allow the Commissioner to explain the basis for the decision. See Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991), rev'd on other grounds. With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
[the] inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months[.]Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of his insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. §§ 404.1572(a), 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. §§ 404.1572(b), 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-1575, 416.974-975.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. §§ 404.1521, 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. §§ 404.1509, 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's RFC with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the RFC to do his past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to his prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1520(f)-(g), 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines ("GRIDS"). Exclusive reliance on the GRIDS is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the GRIDS is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the GRIDS may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. §§ 404.1569a, 416.969a; see Walker, 889 F.2d at 49-50 ("Because we have found that the GRIDS cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. §§ 404.1569a(a), 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. §§ 404.1569a(c)(1), 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. §§ 404.1527(c), 416.927(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)) (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. §§ 404.1527(d), 416.927(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1517, 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. §§ 404.1517, 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion). First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce . . . the actual pain, in the amount and degree, alleged by the claimant.'" Id. (quoting Craig, 76 F.3d at 594). Second, "if, and only if, the ALJ finds that the claimant has produced such evidence, the ALJ must then determine, as a matter of fact, whether the claimant's underlying impairment actually causes [his] alleged pain." Id. (emphasis in original) (citing Craig, 76 F.3d at 595).
Under the "pain rule" applicable within the United States Court of Appeals for the Fourth Circuit, it is well established that "subjective complaints of pain and physical discomfort could give rise to a finding of total disability, even when those complaints [a]re not supported fully by objective observable signs." Coffman v. Bowen, 829 F.2d 514, 518 (4th Cir. 1987) (citing Hicks v. Heckler, 756 F.2d 1022, 1023 (4th Cir. 1985)). The ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence. 20 C.F.R. §§ 404.1528, 416.928. Indeed, the Fourth Circuit has rejected a rule which would require the claimant to demonstrate objective evidence of the pain itself, Jenkins v. Sullivan, 906 F.2d 107, 108 (4th Cir. 1990), and ordered the Commissioner to promulgate and distribute to all administrative law judges within the circuit a policy stating Fourth Circuit law on the subject of pain as a disabling condition, Hyatt v. Sullivan, 899 F.2d 329, 336-37 (4th Cir. 1990). The Commissioner thereafter issued the following "Policy Interpretation Ruling":
This Ruling supersedes, only in states within the Fourth Circuit (North Carolina, South Carolina, Maryland, Virginia and West Virginia), Social Security Ruling (SSR) 88-13, Titles II and XVI: Evaluation of Pain and Other Symptoms:SSR 90-1p, 55 Fed. Reg. 31,898-02, at 31,899 (Aug. 6, 1990). SSR 90-1p has since been superseded by SSR 96-7p, which is consistent with SSR 90-1p. See SSR 96-7p, 61 Fed. Reg. 34,483-01 (July 2, 1996). SSR 96-7p provides, "If an individual's statements about pain or other symptoms are not substantiated by the objective medical evidence, the adjudicator must consider all of the evidence in the case record, including any statements by the individual and other persons concerning the individual's symptoms." Id. at 34,485; see also 20 C.F.R. §§ 404.1529(c)(1)-(c)(2), 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
. . . .
FOURTH CIRCUIT STANDARD: Once an underlying physical or [m]ental impairment that could reasonably be expected to cause pain is shown by medically acceptable objective evidence, such as clinical or laboratory diagnostic techniques, the adjudicator must evaluate the disabling effects of a disability claimant's pain, even though its intensity or severity is shown only by subjective evidence. If an underlying impairment capable of causing pain is shown, subjective evidence of the pain, its intensity or degree can, by itself, support a finding of disability. Objective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available, should be obtained and considered. Because pain is not readily susceptible of objective proof, however, the absence of objective medical evidence of the intensity, severity, degree or functional effect of pain is not determinative.
SSR 16-3p was promulgated by the Commissioner and supersedes SSR 96-7p, for all cases rendered as of March 28, 2016. See 81 Fed. Reg. 15776-01, 2016 WL 1131509. In the instant matter, the ALJ's decision is dated January 30, 2015; thus, SSR 96-7p was in effect at the time of the Commissioner's ruling.
VI. Credibility
The ALJ must make a credibility determination based upon all the evidence in the record. Where an ALJ decides not to credit a claimant's testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). Although credibility determinations are generally left to the ALJ's discretion, such determinations should not be sustained if they are based on improper criteria. Breeden, 493 F.2d at 1010 ("We recognize that the administrative law judge has the unique advantage of having heard the testimony firsthand, and ordinarily we may not disturb credibility findings that are based on a witness's demeanor. But administrative findings based on oral testimony are not sacrosanct, and if it appears that credibility determinations are based on improper or irrational criteria they cannot be sustained.").
APPLICATION AND ANALYSIS
Plaintiff argues that the ALJ's decision is not supported by substantial evidence because the record evidence shows that Plaintiff met Listing 12.05C. [Doc. 15 at 9.] The Commissioner contends, however, that the ALJ properly determined that Plaintiff did not meet Listing 12.05C because Plaintiff did not show the requisite deficits in adaptive functioning prior to age 22. [Doc. 16 at 8.]
The ALJ's Decision
In evaluating Plaintiff's impairments under Listing 12.05, the ALJ made the following findings:
Finally, the "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. In April 2013, the claimant obtained a full scale IQ of 63. (Exhibit 8F). However, although this IQ score falls within listing range, there is no indication that the claimant has deficits in adaptive functioning as required by Listing 12.05. Specifically, the record reflects that the claimant completed the ninth grade and has worked for a number of years performing substantial gainful activity in semi-skilled occupations and there is no evidence that his employers made significant accommodations for the claimant based on his sub-intellectual functioning. (Exhibit 6D). The claimant has indicated he can independently care for matters of personal hygiene and use public transportation. He was able to recount his medical history, follow instructions and participate in his medical evaluations, and he was able to answer questions completely and communicate effectively at the hearing. Accordingly, due to the aforementioned inconsistencies, particularly his semi-skilled work history, there is no indication that the claimant has deficits in adaptive functioning as required by Listing 12.05.[R. 27.] With respect to the medical evidence in the record, the ALJ noted that Plaintiff was seen in February 2013 by C. Barton Saylor, Ph.D. ("Dr. Saylor") who that Plaintiff
demonstrated poor abstracting ability and comprehension, difficulty expressing himself in a relevant and coherent manner, and an inability to recall words after a delay. Dr. Saylor also noted the claimant demonstrated some difficulty with arithmetic tasks and verbal abstract and comprehension abilities. However, Dr. Saylor noted the claimant repeated 3/3 words on immediate presentation and correctly spelled "world" forward. Dr. Saylor estimated that the claimant's overall intellectual ability appeared to fall within the borderline range, but he did not conduct any formal intellectual testing of the claimant.[R. 30.] The ALJ also noted that Plaintiff was seen in February 2013, by Gene J. Sausser Ph.D. ("Dr. Sausser") who indicated that Plaintiff "obtained a full scale IQ score of 63, and academic achievement testing revealed that the claimant's reading, spelling and math skills fell within the third grade range." [Id.] Based on Dr. Sausser's consultative exam, the ALJ concluded that Plaintiff's "level of adaptive functioning and semi-skilled work history suggests that his borderline intellectual functioning is not significantly limiting and does not preclude him from performing the demands of unskilled work. I have accounted for the claimant's mental disorders and his subjective reports of social isolation in limiting the claimant to unskilled work with limited interaction with others." [R. 31.]
Listing 12.05
To meet Listing 12.05, a claimant must satisfy the "diagnostic description" in the introductory paragraph and any one of the four sets of criteria—A, B, C, or D. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00A (May 2016). The diagnostic description describes intellectual disability as "significantly sub-average 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." Id. § 12.05. Case law suggests that the issue of whether a claimant manifested deficits in adaptive functioning during the developmental period is a fact-specific inquiry with few bright-line rules. Accord Salmons v. Astrue, No. 5:10CV195-RLV, 2012 WL 1884485, at *5-7 (W.D.N.C. May 23, 2012).
Listings evaluating mental disorders were amended as of January 17, 2017, pursuant to the final rule on Revised Medical Criteria for Evaluating Mental Disorders. 81 Fed. Reg. 66138-01, 2016 WL 5341732 (Sept. 26, 2016). Listing 12.05 was amended, changing the name to Intellectual Disorder and reorganizing the listing to reflect the diagnostic criteria from DSM-5 and the American Association on Intellectual and Developmental Disabilities. Id. The revised listing only has two paragraphs and omits the previous 12.05C. Revised Listing 12.05A applies to those claimants whose cognitive limitations prevent them from taking a standardized intelligence test, and revised Listing 12.05B applies to those who are able to take a standardized intelligence test. Id. Each requires evidence that demonstrates or supports the conclusion that the disorder began prior to age 22. Id. Examples of proof include school records indicating a history of special education, statements from employers or supervisors and from people who may be able to describe the claimant's functioning in the past and currently. Id. However, in that revision, the Social Security Administration states,
We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions. If a court reverses our final decision and remands a case for further administrative proceedings after the effective date of these final rules, we will apply these final rules to the entire period at issue in the decision we make after the court's remand.
Deficits in Adaptive Functioning
The Administration "has never adopted a standard of measurement for the term 'deficits in adaptive functioning' in the capsule definition of Listing 12.05." Wall v. Astrue, 561 F.3d 1048, 1073 (10th Cir. 2009) (Holloway, C.J., dissenting). The Administration has noted, however, that it permits use of any of the measurement methods recognized and endorsed by any of the four major professional organizations dealing with mental retardation. Id. at 1074. But see Cox v. Astrue, 495 F.3d 614, 618 n.4 (8th Cir. 2007) (noting that "the medical standard for mental retardation is not identical to the legal standard"). The regulations do not "specify what degree of deficit is required (mild versus [moderate], for example), whether deficits must exist in one, two, or more categories of adaptive functioning, or what methodology should be used to measure deficits in adaptive functioning." Blancas v. Astrue, 690 F. Supp. 2d 464, 477 (W.D. Tex. 2010). "'[A]daptive functioning' refers to the individual's progress in acquiring mental, academic, social and personal skills as compared with other unimpaired individuals of his/her same age . . . ." Program Operations Manual System ("POMS") § DI 24515.056(D)(2). Medical professional organizations have stated that deficits in "adaptive functioning" can include limitations in areas such as "communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety." See Jackson v. Astrue, 467 F. App'x 214, 218 (4th Cir. 2012) (relying on two American medical associations) (citing Atkins v. Virginia, 536 U.S. 304, 309 n.3 (2002)); see also Hawley v. Astrue, No. 1:09-cv-246, 2012 WL 1268475 at *5 (M.D.N.C. Apr. 16, 2012) (describing "adaptive activities" as "cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for your grooming and hygiene, using telephones and directories, and using a post office") (citing Blancas, 690 F. Supp. 2d at 476).
The law is clear that functional illiteracy in and of itself is a deficit in adaptive functioning. Davis v. Astrue, C/A No. 2:07-1621-JFA-RSC, 2008 WL 1826493, at *4 (D.S.C. Apr. 23, 2008) (citing the Diagnostic and Statistical Manual, Fourth Edition ("DSM-IV")); see also Luckey v. Dep't of Health & Human Servs., 890 F.2d 666, 668-69 (4th Cir. 1989); Salmons, 2012 WL 1884485, at *7; Holtsclaw v. Astrue, No. 1:10CV199, 2011 WL 6935499, at *4 (W.D.N.C. Dec. 30, 2011); Rivers v. Astrue, No. 8:10-cv-00314-RMG, 2011 WL 2581447, at *3-4 (D.S.C. June 28, 2011). Additionally, "[a] finding of at least moderate limitations of functioning has been held to be facially in tension with the ALJ's conclusion that a claimant lacks deficits in adaptive functioning." Linaburg v. Comm'r of Soc. Sec., No 1:13cv177, 2014 WL 3101449, at *8 n.9 (N.D.W.Va. July 7, 2014). Similarly, whether the claimant has ever lived independently is also a relevant inquiry. Compare Salmons, 2012 WL 1884485, at *6, with Holtsclaw, 2011 WL 6935499, at *5. Another guiding factor is whether the claimant has ever provided care for others, or, conversely, whether he himself is dependent on others for care. Compare Salmons, 2012 WL 1884485, at *6-7 (noting claimant was heavily dependent on his mother and was not responsible for the care or supervision of anyone else) and Holtsclaw, 2011 WL 6935499, at *4-5 (noting claimant had never lived independently and required a parent's help), with Hancock v. Astrue, 667 F.3d 470, 475-76 (4th Cir. 2012) (affirming denial of benefits where the claimant managed the household and cared for her three young grandchildren) and Caldwell v. Astrue, No. 1:09cv233, 2011 WL 4945959, at *3 (W.D.N.C. Oct.18, 2011) (noting claimant assisted in the care of an elderly parent).
Finally, the tasks a claimant is able to undertake, although not determinative, have been considered in the adaptive functioning analysis. See generally Radford v. Astrue, No. 5:08-CV-421-FL, 2009 WL 1675958, at *6 (E.D.N.C. June 10, 2009) (finding that the claimant's ability to perform certain tasks was not inconsistent with mild mental retardation); see, e.g., Hancock, 667 F.3d at 476 n.3 (affirming the ALJ's consideration of the claimant's ability to perform tasks such as shopping, paying bills, and making change); Salmons, 2012 WL 1884485, at *7 (discussing the claimant's inability to do household chores, cook, and drive). Work history, while it cannot preclude benefits where the Listing criteria are otherwise met, Luckey, 890 F.2d at 669, can be relevant in determining whether a claimant manifested deficits in adaptive functioning prior to age 22. Hancock, 667 F.3d at 475-76 (concluding the ALJ's finding that the claimant did not manifest the requisite deficit in adaptive functioning to be supported by substantial evidence where the ALJ considered, among many other factors, that the claimant had worked several jobs); Harts v. Astrue, No. 0:10-1893-CMC-PJG, 2012 WL 529982, at *6 n.3 (D.S.C. Jan. 30, 2012) (distinguishing Luckey because the ALJ used the claimant's work history as only one factor to support his finding of no significant deficits in adaptive functioning and because the claimant did not otherwise meet the Listing 12.05C criterion of a valid IQ score within the range of 60-70), Report and Recommendation adopted by 2012 WL 529980 (D.S.C. Feb. 17, 2012).
Here, the ALJ concluded that "there is no indication that [Plaintiff] has deficits in adaptive functioning as required by Listing 12.05." [R. 27.] The ALJ's opinion—in making this conclusion—appears to rely on Plaintiff's semi-skilled work history, ability to care for his personal hygiene, use of public transportation, ability to participate in his medical care, and his ability to communicate during the hearing. [Id.] The Court finds the ALJ's reasoning not consistent with the law; and thus, not supported by substantial evidence.
As an initial matter, the record contains evidence of adaptive deficits. As noted, adaptive functioning deficits can include limitations in communication, self care, functional academic skills, social/interpersonal skills, home living, self direction, work, leisure, health and safety, and the use of community resources. Cagle v. Astrue, No. 9:09-cv-3250-RMG, 2011 WL 322554, at *2 (D.S.C. Jan. 28, 2011) (citing Atkins, 536 U.S. at 308 n.3). In the hearing before the ALJ, Plaintiff testified that the highest grade he completed was 9th grade. [R. 47.] Plaintiff also testified that he lives in a "second part in [his parent's] house" and that his mother takes care of his laundry. [R. 46-47, 54.] Additionally, during a mental status exam in February 2013, Dr. C. Barton Saylor, a consultative examiner ("CE"), noted that Plaintiff indicated that he had to repeat 1st grade and confirmed that he dropped out of school after 9th grade. [R. 425.] Dr. Saylor indicated that Plaintiff, in terms of formal mental status, did not appear in distress, but Plaintiff's comprehension and abstracting ability were poor; and Plaintiff had a difficult time expressing himself consistently in a relevant and coherent manner. [R. 426.] Dr. Saylor also indicated that Plaintiff failed on mental arithmetic tasks after six items in the series—while using his fingers to count; Plaintiff could repeat three out of three words on immediate presentation—but could not recall any after delay; and that Plaintiff could spell "world" correctly forwards, but not backwards. [R. 426.] Dr. Saylor concluded that Plaintiff "may have [a] cognitive impairment affecting verbal information processing and expression." [R. 426.] Dr. Saylor further opined that Plaintiff's "overall intellectual ability appears to be fairly low, possibly in the borderline range, and he would likely be unable to do tasks which required any sort of multi task, simultaneous information processing or any sort of complicated reasoning." [R. 426.] Dr. Saylor diagnosed Plaintiff with depression NOS, antisocial personality disorder, and a GAF score of 55. [R. 426-427.]
Additionally, two months later, Plaintiff had a psychological exam with Dr. Gene J. Sausser, a CE. During the appointment, Plaintiff indicated that he was 45 years old and had been living in what sounded like an apartment in the rear portion of his mother's home since 2011. [R. 439.] Plaintiff explained that he eats dinner with his mother and that she does his laundry. [Id.] Dr. Sausser indicated that Plaintiff's activities of daily living ("ADL's") were somewhat impaired in that Plaintiff did no cooking, laundry, or yard work; had some difficulties bathing and dressing himself; and did not have money to manage—although Plaintiff indicated he could manage money if he had any. [R. 440.] Dr. Sausser also noted that Plaintiff did not have friends and did not socialize. [Id.] Dr. Sausser diagnosed Plaintiff with major depression—single episode mild, mild mental retardation, and a GAF score of 58 both currently and in the past year. [R. 443.]
During the hearing before the ALJ, Plaintiff testified that he did not remember meeting with Dr. Sausser. [R. 49.]
In evaluating Plaintiff, Dr. Sausser administered the Wide Range Achievement Test-Four ("WRAT-4") clinical interview and the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV). The results of the WAIS-IV indicated that Plaintiff's
Full Scale IQ score of 63 falls at the 1st percentile in comparison with others of his age and places him in the mild range of mental retardation according to DMS-IV norms.[R. 441 (emphasis added).] Dr. Sausser noted that the WRAT-4—which assessed Plaintiff's academic achievement in the areas of spelling, reading, and arithmetic—indicated Plaintiff was performing at around a third grade level. [R. 442.] Dr. Sausser also suggested that in event Plaintiff was granted benefits that a payee be utilized because of Plaintiff's "intellectual level and his past history with alcohol use." [R. 443.] Dr. Sausser, whose opinion was given great weight, indicated that Plaintiff's results in the examination were "seen as good and accurate estimates of [Plaintiff's] current functioning." [R. 440.]
Nevertheless, the ALJ concluded that Plaintiff had no deficits in adaptive functioning because he worked "for a number of years performing substantial gainful activity in semi-skilled occupations and there is no evidence that [Plaintiff's] employers made significant accommodations for [him] based on his sub-intellectual functioning. [See R. 27.] This was error. See Davis, 2008 WL 1826493, at *5 ("While the administrative law judge contended that Plaintiff's low IQ was not manifested during her developmental years as evidenced by the fact that she worked for 33 years, her work is no bar to an award of benefits. A plaintiff whose impairment meets a Listing is disabled without regard to the fact that he or she worked in the past or could return to his or her past work"); see also Luckey, 890 F.2d at 669 (rejecting the idea that an ALJ may rely on a claimant's work history to reject IQ scores) (quoting Murphy, 810 F.2d at 438).
Additionally, the Court notes that a diagnosis of mental retardation under DSM IV is defined as "significantly subaverage general intellectual functioning . . . that is accompanied by significant limitations in adaptive functioning in at least two . . . skill areas . . . ." Atkins, 536 U.S. at 308 n.3; see DSM IV at 39. As such, Dr. Sausser's diagnosis of mental retardation indicates a finding of at least two deficits in adaptive functioning. Further, Dr. Sausser's finding that Plaintiff's math, reading, and spelling skills were at a third grade level—at a minimum—demonstrates a deficit in "functional academic skills," which is one of the skill areas defined under the DSM IV. DSM IV at 39. Moreover, the ALJ found Plaintiff exhibited moderate limitations in social functioning; as well as in concentration, persistence, and pace. [R. 25-26.] The Court recognizes that "[a] finding of at least moderate limitations of functioning has been held to be facially in tension with the ALJ's conclusion that a claimant lacks deficits in adaptive functioning." See Linaburg v. Comm'r of Soc. Sec., No. 1:13-cv-177, 2014 WL 3101449, at *7-8 & n.9 (D.S.C. July 7, 2014).
Based on the above, the ALJ's dismissal of the record evidence of adaptive deficits was therefore not based upon substantial evidence. See Smith v. Astrue, No. 3:10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar.7, 2011) ("Smith's school records, standardized test scores from seventh grade, and her IQ as measured by Dr. Fishburne constitute substantial evidence that shows her impairment manifested itself prior to the age of 22. Based on the foregoing, the court concludes that the ALJ's finding that 'there is no evidence of deficits in adaptive functioning prior to age 22' is not supported by substantial evidence."); Cagle, 2011 WL 322554, at *3 (finding that a reading and spelling skill recorded at a second and third grade level demonstrates a deficit in functional academic skills).
Manifestation During the Developmental Period
Listing 12.05's diagnostic description also requires that the evidence demonstrate or support an onset of the impairment before age 22. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00 (May 2016). School records and past academic performance are important indicators of deficits in adaptive functioning prior to age 22. See Salmons, 2012 WL 1884485, at *7 ("[F]unctional academic skills is the primary measure of deficits of adaptive functioning before age 22"); Rivers, 2011 WL 2581447, at *3 (noting that claimant was classified as special needs at school, had repeated evaluations in elementary school with IQ scores all in the 50s, and dropped out of school in the ninth grade); see also Conyers v. Astrue, No. 4:11-CV-37-D, 2012 WL 3282329, at *8-9 (E.D.N.C. June 29, 2012) (discussing the claimant's school history). Evidence of illiteracy, despite a claimant's education, supports a finding that a claimant's mental retardation occurred before age twenty-two. See Turner v. Bowen, 856 F.2d 695, 699 (4th Cir. 1988). Indeed, "in the absence of any evidence of a change in a claimant's intelligence functioning, it must be assumed that the claimant's IQ had remained relatively constant." Luckey, 890 F.2d at 668 (citing Branham v. Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985))(emphasis added). Additionally, work history can be relevant in determining whether a claimant manifested deficits in adaptive functioning prior to age 22. Reliance on a claimant's work history to reject IQ scores, however, has been rejected in the Fourth Circuit. See Luckey, 890 F.2d at 669 (quoting Murphy v. Bowen, 810 F.2d 433, 438 (4th Cir. 1987)).
The record contains evidence that Plaintiff had deficits in adaptive functioning; as such, as discussed above, the ALJ's determination that Plaintiff exhibited no deficits in adaptive functioning prior to age 22 is not supported by substantial evidence.
Because the ALJ found Plaintiff had no deficits in adaptive functioning, she did not address the onset of deficits of adaptive functioning prior to age 22. [See R. 27.] On remand, the ALJ is reminded to address whether Plaintiff's adaptive functioning deficits onset prior to age 22. --------
Listing 12.05B or 12.05C Requirements
At the time of the ALJ's opinion, Listing 12.05B required, in addition to satisfying the capsule definition, "a valid verbal, performance, or full scale IQ of 59 or less." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05B (May 2016). Listing 12.05C required "[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. § 12.05C. The ALJ found that Plaintiff did not meet the initial diagnostic definition for Listing 12.05; however, the Court will address the Listing 12.05B/12.05C requirements as it finds troubling the ALJ's failure both to adequately explain her rejection of Plaintiff's full-scale IQ score of 63 in April 2013, and/or her suggestion that the score was an invalid indicator of Plaintiff's true intellectual functioning. [R. 37; see R. 439-43.] "Generally, the results obtained by a licensed psychologist following the administration of accepted intelligence tests are entitled to considerable weight in Social Security cases although they are not required to be accepted." Maybank v. Astrue, No.4:08-0643-MBS, 2009 WL 2855461, at *11 (D.S.C. Aug. 31, 2009) (citing Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998); Craig, 76 F.3d at 589; Coffman, 829 F.2d at 517; Foster v. Heckler, 780 F.2d 1125, 1130 (4th Cir. 1986)). However, the Commissioner may "reject such scores if they are inconsistent with other substantial evidence in the record such as conflicting professional opinions or other record evidence indicating that the claimant is historically higher achieving or has more advanced functional capacities than would be expected from someone with a below-average I.Q." Id. (citing Clark, 141 F.3d at 1255). An "ALJ is allowed some leeway to evaluate other evidence when determining the validity of an I.Q. score. The word 'valid' would be superfluous otherwise. Where an I.Q. score is inconsistent with the remainder of evidence in the record on the claimant's daily activities and behavior, it need not be conclusive proof of mental retardation." Powell v. Barnhart, 2005 WL 1926613, at *4 (W.D.Va. Aug. 9, 2005) (citing Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986)).
In Hancock, the Fourth Circuit held that "an ALJ has the discretion to assess the validity of an IQ test result and is not required to accept it even if it is the only such result in the record." 667 F.3d at 474. The court's conclusion considered language in the introductory section to Listing 12.00, that "'since the results of intelligence tests are only part of the overall assessment, the narrative report that accompanies the test results should comment on whether the IQ scores are considered valid and consistent with the developmental history and degree of functional limitation.'" Id. (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(D)(6)(a)). Accordingly, although the ALJ can consider evidence in addition to an IQ score, the ALJ cannot substitute her own judgment and intuition and disregard IQ scores. Dozier v. Comm'r of Soc. Sec., 736 F. Supp. 2d 1024, 1037 (D.S.C. 2010); see Jackson v. Astrue, No. 8:08-2855-JFA-BHH, 2010 WL 500449, at *6-7 (D.S.C. Feb. 5, 2010) (finding the ALJ improperly interpreted evidence when the ALJ, on his own, not by weighing conflicting medical opinions, found the plaintiff's daily activities did not comport with her IQ scores); see also Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007) ("[A]n ALJ cannot play the role of doctor and interpret medical evidence when he or she is not qualified to do so."); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (noting an ALJ is "not qualified to interpret raw medical data in functional terms"); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985) ("[A]n ALJ is not free to set his own expertise against that of a physician who presents competent evidence.")
Indeed, although the Fourth Circuit's decision in Hancock allows an ALJ to find IQ test scores invalid where they are not supported by the narrative report and record, the ALJ in this case failed to address her dismissal of Plaintiff's IQ score, only noting that "there is no indication that [Plaintiff] has deficits in adaptive functioning as required by Listing 12.05." [R. 27.] Specifically, there is no evidence in the record indicating that Plaintiff's IQ score is inconsistent with his functional capacities. There are neither conflicting psychological reports nor any other IQ scores specifically calling into doubt the validity of Plaintiff's scoring. No treating or consulting medical professional raised any doubt as to Plaintiff's efforts on the testing or as to his low intellectual function. Cf. Johnson v. Barnhart, 390 F.3d 1067, 1071 (8th Cir. 2004) (holding ALJ properly discounted results of two IQ tests where there was evidence the claimant malingered during the tests). Accordingly, the undersigned finds that the ALJ's decision is not supported by substantial evidence.
Remaining Allegations of Error
Because the Court finds the ALJ's error, as outlined above, is a sufficient basis to remand this matter for further consideration, the Court declines to address any additional allegations of error. The ALJ is reminded, however, that, following Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015), Courts in this district, and in other districts within the Fourth Circuit, have found a limitation to simple, unskilled work—absent further explanation—is insufficient to address moderate limitations in social functioning; as well as in concentration, persistence, and pace. See, e.g., Herren v. Colvin, No. 1:15-cv-00002-MOC, 2015 WL 5725903, at *6 (W.D.N.C. Sept. 30, 2015); Desilets v. Colvin, No. 2:14-cv-1693-RBH, 2015 WL 5691514, at *4-5 (D.S.C. Sept. 28, 2015). Accordingly, the Commissioner should address the remaining allegations of error on remand. See Harris v. Astrue, No. 9:09-0028-HFF, 2009 WL 5125215, at *4 (D.S.C. Dec. 28, 2009) (citing Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 (W.D. Va. 2002)) (holding that, on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge August 13, 2018
Greenville, South Carolina
Id. at *66138 n.1. As such, the undersigned will review the ALJ's decision in light of the version of Listing 12.05 in effect when the ALJ made her determination.