Opinion
C/A No. 0:19-603-BHH-PJG
03-16-2020
Mark Devon Vito, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Mark Devon Vito, 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 defendant, Acting Commissioner of Social Security ("Commissioner"), denying his claims for Disability Insurance Benefits ("DIB"), Supplemental Security Income ("SSI"), and Child's Insurance Benefits ("CIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be affirmed.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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 months." 20 C.F.R. §§ 404.1505(a), 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). With regard to CIB, claimant is entitled to those benefits on the earnings of an insured person who is entitled to old-age or disability benefits or who has died if the claimant: is the insured person's child; is dependent upon the insured; applies; is unmarried; and is under age 18, or is 18 years or older and has a disability that began before he became 22 years old, or is 18 years or older and qualifies for benefits as a full-time student. 20 C.F.R. § 404.350(a).
The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform his past relevant work; and
(5) whether the claimant's impairments prevent him from doing any other kind of work.
The parties do not appear to dispute application of the five-step process to all of Vito's claims. Further, the court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. §§ 404.1520(h), 416.920(h).
Under this analysis, a claimant has the initial burden of showing that he is unable to return to his past relevant work because of his impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). Further, for child's insurance benefits, pursuant to section 202(d) of the Social Security Act, the claimant must have a disability that began before attainment of age 22.
ADMINISTRATIVE PROCEEDINGS
In March 2015, Vito applied for DIB and SSI, and in April 2015 applied for CIB, in all applications alleging disability beginning May 17, 1993. Vito's applications were denied initially and upon reconsideration, and he requested a hearing before an ALJ. A hearing was held on October 20, 2017, at which Vito and his mother appeared and testified. Vito was represented at the hearing by Beatrice Whitten, Esquire. After hearing testimony from a vocational expert, the ALJ issued decisions on February 5 and February 12, 2018, concluding Vito was not disabled from May 17, 1993 through the date of the decision. (Tr. 27-35, 45-53.) The Appeals Council granted Vito's request for review, noting that the ALJ failed to specifically address Vito's application for CIB. Vito was given the opportunity to submit additional information or appear before the Appeals Council but did not avail himself of either of these options. The Appeals Council issued a decision on February 7, 2019, concluding that Vito was not entitled to or eligible for DIB, SSI, or CIB. (Tr. 4-7, 13-16.) This action followed.
Vito was born in 1993 and was twenty-one years old at the time he filed his applications. He has a high school education. (Tr. 382.) Vito alleged disability due to intellectual disability, hearing impairment, and vision impairment. (Tr. 382.)
In reviewing the ALJ's decisions and applying the five-step sequential process, the Appeals Council agreed with the ALJ in finding that Vito had not engaged in substantial gainful activity since his alleged onset date of May 17, 1993. The Appeals Council also agreed with the ALJ's determination that Vito's borderline intellectual functioning and hearing loss were severe impairments. Likewise, the Appeals Council agreed with the ALJ in finding that Vito 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 (the "Listings"). The Appeals Council agreed with the ALJ's finding that Vito retained the residual functional capacity to
perform a full range of work at all exertional levels but with the following nonexertional limitations: he must avoid heights and hazards; he cannot perform work requiring fine hearing capability; he is limited to simple, repetitive tasks for 2-hour increments followed by customary breaks; he can have occasional changes in work setting that are gradually introduced; he can have occasional and superficial interaction with coworkers and the public; and he would need occasional reminders of job duties.(Tr. 6.) The Appeals Council did not agree with the ALJ's finding that Vito could perform past relevant work as a food packager and dishwasher because Vito had not performed this work at a level that constituted substantial gainful activity. Rather, the Appeals Council found that Vito was unable to perform any past relevant work, but that considering Vito's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Vito could perform. Therefore, the Appeals Council found that Vito was not disabled from the alleged onset date of May 17, 1993 through February 12, 2018, the date of the most recent ALJ decision. (Tr. 4-7, 13-16.)
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUE
Vito raises the following issue for this judicial review:
The ALJ's Listing analysis is not supported by substantial evidence. (Pl.'s Br., ECF No. 15.)
DISCUSSION
Although the Appeals Council observed and corrected several errors in the ALJ's decisions, the Appeals Council specifically agreed with the ALJ's findings at Steps One through Three of the sequential process, which includes the ALJ's findings that Vito did not have an impairment or combination of impairments which met or medically equaled a Listing. The Appeals Council adopted these findings for all of the applications at issue.
Here, Vito argues that the ALJ erred in failing to find that he met the requirements of Listing 12.05B. At Step Three of the sequential analysis, the Commissioner must determine whether the claimant's impairments meet or medically equal the criteria of one of the Listings and the claimant is therefore presumptively disabled. "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria." Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis added). It is not enough that the impairments have the diagnosis of a listed impairment; the claimant must also meet the criteria found in the Listing of that impairment. 20 C.F.R. §§ 404.1525(d), 416.925(d); see also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting that the burden is on the claimant to establish that his impairment is disabling at Step Three); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (same).
At issue here, Listing 12.05B (Intellectual disorder) is satisfied by demonstrating the following:
1. Significantly subaverage general intellectual functioning evidenced by a or b:
a. A full scale (or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence; or
b. A full scale (or comparable) IQ score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below on an individually administered standardized test of general intelligence; and
2. Significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of the following areas of mental functioning:
a. Understand, remember, or apply information (see 12.00E1); or
b. Interact with others (see 12.00E2); or
c. Concentrate, persist, or maintain pace (see 12.00E3); or
d. Adapt or manage oneself (see 12.00E4); and
3. The evidence about your current intellectual and adaptive functioning and about the history of your disorder demonstrates or supports the conclusion that the disorder began prior to your attainment of age 22.20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05B. The ALJ found that Vito did not meet the requirements of Listing 12.05B, observing the following:
In this case, these requirements were not met because he obtained a Full Scale IQ score of 72 in July 2012. (Exhibit 6F). He obtained a Verbal Comprehension Index composite score of 85, a Perceptual Reasoning Index composite score of 73, a Working Memory Index composite score of 69, and a Processing Speed Index composite score of 76. He was assessed with a Global Assessment of Functioning ["GAF"] score of 80, which typically denotes nondisabling symptoms.(Tr. 31, 49.)
In understanding, remembering, or applying information, the claimant had a moderate limitation. In his Function Report submitted to the Social Security Administration, he indicated that he can follow one and two-step instructions. (Exhibit 8E). He requires some reminders to take care of his grooming.
In interacting with others, the claimant had a moderate limitation. He spends time with others. (Exhibit 8E). He regularly attends church. He denied any problems getting along with family, friends, neighbors, or others. He stated that he is shy and scared, however.
With regard to concentrating, persisting, or maintaining pace, the claimant had a moderate limitation. He estimated that he can pay attention for 3 minutes. (Exhibit 8E). Nevertheless, he is able to finish what he starts. He does not follow written instructions very well. He reported difficulty handling changes in routine.
As for adapting or managing oneself, the claimant had experienced a moderate limitation. He indicated that he typically wakes up and play[s] video games. (Exhibit 8E). He goes to work. He rides his bike. The claimant is independent in his personal care. He prepares meals. He cleans his room, does laundry, and mows the grass.
Vito first argues that he satisfied the first requirement by obtaining a Full Scale IQ score of 72 and a Working Memory Index composite score of 69, which Vito argues is a comparable part score. However, this specific argument was made at the hearing and discussed with the ALJ. (Tr. 64-65.) Moreover, Vito has directed the court to no legal support for his reassertion of this argument here. Further, caselaw addressing prior versions of Listing 12.05 or similar listings have rejected the argument that a working memory score is the equivalent of a performance IQ score, and have found that the perceptional reasoning index score is equivalent to a performance IQ score. See, e.g., Martin v. Comm'r, Soc. Sec. Admin., No. CIV. SAG-12-1130, 2013 WL 4512071, at *2 (D. Md. Aug. 22, 2013); Isaac ex rel. JDM v. Astrue, No. CA 1:12-00097-C, 2012 WL 5373435, at *3-4 (S.D. Ala. Oct. 30, 2012); Green ex rel. K.C.G. v. Astrue, No. CIV.A. 09-1028, 2011 WL 1440363, at *4 (M.D. La. Feb. 15, 2011) (Report and Recommendation), adopted sub nom. Green v. Astrue, 2011 WL 1456218 (M.D. La. Apr. 14, 2011)). Accordingly, as argued by the Commissioner, Vito has failed to demonstrate that he meets the diagnostic criteria for Listing 12.05.
Even assuming that Vito's scores were sufficient to meet the first criteria, Vito has not demonstrated that the ALJ's finding that Vito failed to show "[s]ignificant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, [specified] areas of mental functioning." Contrary to Vito's assertions, the evidence cited by the ALJ in each category provides substantial support for his findings. Vito challenges the ALJ's findings by pointing to selective other pieces of evidence, such as evidence of Vito's deficient academic performance, processing speed, and working memory, as well as his inability to drive and his requiring prompts for hygiene and chores. However, this evidence is insufficient to demonstrate that the ALJ's determination that Vito experienced moderate limitations in all areas of adaptive functioning is unsupported by substantial evidence and that the ALJ erred in failing to find that Vito suffered from marked limitations in at least two areas. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00F(2) (defining a claimant's limitations as "moderate" where "functioning in this area independently, appropriately, effectively, and on a sustained basis is fair" and "marked" where "functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited").
Upon careful review of this evidence and the ALJ's decision as a whole, the court finds that this evidence does not render the ALJ's determinations unsupported by substantial evidence. See Craig, 76 F.3d at 589 (defining "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance"). Vito's arguments are essentially asking the court to again analyze the facts and reweigh the evidence presented, and such action is contrary to the substantial evidence standard of review that this court is bound to apply at this stage in the proceedings. See Craig, 76 F.3d at 589 (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence); Blalock, 483 F.2d at 775 (indicating that even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence). Accordingly, Vito has failed to demonstrate that remand is warranted for further consideration of Listing 12.05.
RECOMMENDATION
For the foregoing reasons, the court finds that Vito has not shown that the Commissioner's decision was unsupported by substantial evidence or reached through application of an incorrect legal standard. See Craig, 76 F.3d at 589; see also 42 U.S.C. § 405(g); Coffman, 829 F.2d at 517. The court therefore recommends that the Commissioner's decision be affirmed. March 16, 2020
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).