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No. 7:17-CV-00097-D (E.D.N.C. Jul. 24, 2018)

No. 7:17-CV-00097-D


Pamela D. Hill, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

Memorandum & Recommendation

Plaintiff Pamela D. Hill instituted this action in May 2017 to challenge the denial of her application for social security income. Hill claims that Administrative Law Judge ("ALJ") Anthony Dziepak erred in failing to find that her intellectual impairments met or equaled the criteria for Listing 12.05C. Both Hill and Defendant, Nancy A. Berryhill, have filed motions seeking a judgment on the pleadings in their favor. D.E. 19, 22.

After reviewing the parties' arguments, the court has determined that ALJ Dziepak reached the appropriate decision. Substantial evidence supports his conclusion that Hill's intellectual deficits failed to satisfy the criteria of Listing 12.05C. Therefore, the undersigned magistrate judge recommends that the court deny Hill's motion, grant the Commissioner's motion, and affirm the Commissioner's decision.

The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b). D.E. 24.

I. Background

In May 2013, Hill protectively filed an application for supplemental security income, alleging a disability that began on March 30, 2009. After her claim was denied at the initial level and upon reconsideration, Hill appeared before ALJ Dziepak for a hearing to determine whether she was entitled to benefits. ALJ Dziepak determined Hill was not entitled to benefits because she was not disabled. Tr. at 15-32.

As noted by ALJ Dziepak, Hill filed previous claims for disability and supplemental security income, which were denied on August 26, 2010. Tr. at 15. Her alleged onset date—March 30, 2009—implicitly requests reopening of the prior claims. Id. ALJ Dziepak noted he could not reopen the prior claim given the time lapse of over two years between the initial determination on her supplemental security income application and her present application. Id. Nonetheless, he noted the prior finding must be considered and given appropriate weight. Id. He concluded that res judicata applied because no new evidence had been offered for the relevant period. Tr. at 16. ALJ Dziepak addressed the previous determination's findings and the weight he assigned it. Tr. at 30.

ALJ Dziepak found that Hill had severe impairments: borderline intellectual functioning, organic brain disorder, major depressive disorder, anxiety, personality disorder, arthropathy, essential hypertension with a history of coronary artery disease and atrial fibrillation, and chronic obstructive pulmonary disorder ("COPD"). Tr. at 18. ALJ Dziepak found that Hill's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 19.

ALJ Dziepak then determined that Hill had the RFC to perform a range of light work with additional limitations. Tr. at 23-24. She can never climb ladders, ropes, or scaffolds but she can occasionally perform other postural maneuvers such as stooping, kneeling, crouching, crawling, balancing on uneven surfaces, and climbing ramps and stairs. Id. Hill must avoid temperature extremes as well as work environments with fumes, odors, gases, dusts, and poor ventilation. Id.

Hill can perform simple, routine, repetitive tasks. Id. Although she can have no interaction with the general public as part of her job duties, Hill can have superficial interactions while working in the same area as members of the public. Id. Additionally, Hill can have occasional interactions with co-workers and supervisors but she cannot perform tandem, team, or collaborative-type work with co-workers. Id. Hill can, however, work in the same area as them. Id. Finally, Hill is limited to simple decision-making and could adapt to occasional changes in a routine work environment. Id.

ALJ Dziepak concluded that Hill could perform her past relevant work as a hand packer as that job was actually performed. Tr. at 30. ALJ Dziepak also determined that, considering Hill's age, education, work experience, and RFC, there were other jobs existing in significant numbers in the national economy that Hill could perform. Tr. at 31. These include: price marker, collator/operator, and electrical assembler. Id. Thus, ALJ Dziepak found that Hill was not disabled. Tr. at 32.

After unsuccessfully seeking review by the Appeals Council, Hill began this action in May 2017. D.E. 6.

II. Analysis

A. Standard for Review of the Acting Commissioner's Final Decision

When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).

B. Standard for Evaluating Disability

In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).

C. Medical Background

The discussion of her medical background will be limited to Hill's mental impairments because the present motions address only those conditions.

Hill has a history of mental impairments. She testified that she was disabled because of her inability to get along with others. Tr. at 24. She also claimed to have a history of violence and sleeping problems. Id. Hill reported, however, that medications improved her mental health symptoms. Id.

In 1970, Hill's IQ score was measured at 68. Tr. at 22. Four years later, a test yielded an IQ score of 47.5. Id. State agency psychological consultant Robert Cyr-McMillan, Ph.D., noted that such a reduction in score was highly improbable without any intervening medical event or process. Id. As the record lacked evidence of such an occurrence, the validity of the latter score was found to be highly questionable. Id.

David Johnson, M.A., performed a consultative psychological examination in July 2013. Tr. at 22, 25. Hill reported that she bathed and dressed herself, watched television, listened to the radio, performed word searches, talked on the phone, maintained contact with family members, and made and kept friends. Tr. at 22. She remarked that she had attended special education classes, experienced depressive symptoms, and had been sober for over 90 days. Tr. at 25. Hill stated that she could not read, experienced fatigue, and had problems concentrating. Id.

Johnson remarked that Hill was somewhat uncooperative and that her symptoms had some degree of exaggeration, such as the varied speed and quality of her speech. Id. Johnson observed that Hill was not oriented to date, could not repeat any out of five items after the first presentation, but four out of five on the second and third presentations, and could repeat five digits forward but not two digits backwards. Id. Johnson concluded that Hill was embellishing her concentration difficulties and did not try to figure out the math questions posed to her. Id. He assessed malingering, alcohol dependence in remission, depression, personality disorder, and deferred diagnosis of borderline intellectual disorder. Tr. at 25-26. Julia Brannon, Ph.D., signed off on Johnson's report. Tr. at 26.

Although providers noted Hill had a stable mood in December 2013, four moths later she presented with a flat affect and irritable mood but normal speech patterns. Id. By December 2014, Hill reported her mood was stable with medications. Id.

Ten months later, however, Hill claimed to experience racing thoughts, irritability, anger, and poor concentration. Id. A mental status examination found normal sensation and orientation, engaging attitude, good attention, and marginal insight and judgment. Id. Providers prescribed medications and referred Hill for psychotherapy. Id.

The next month, Hill reported ongoing depressive symptoms including hopelessness, worthlessness, anxiety, mood swings, and insomnia. Id. One month later, treatment notes reflect that Hill was pleasant and had a stable mood. Id.

In the Paragraph B functional areas, ALJ Dziepak found that Hill had mild limitations in activities of daily living, moderate limitations in both social functioning and maintaining concentration, persistence, or pace, and no episodes of decompensation. Tr. at 21.

D. Listing 12.05C

Hill contends that ALJ Dziepak erred by failing to find that her impairments met the criteria for Listing 12.05C. The Commissioner maintains that ALJ Dziepak properly concluded that Hill failed to meet the Listing criteria. The court finds that ALJ Dziepak correctly determined that Hill failed to satisfy the criteria of Listing 12.05C.

1. Overview of Listing of Impairments

The Listing of Impairments details impairments that are "severe enough to prevent an individual from doing any gainful activity." 20 C.F.R. § 416.925(a). If a claimant's impairments meet all the criteria of a particular listing, id. § 416.925(c)(3), or are medically equivalent to a listing, id. § 416.926, the claimant is considered disabled, id. § 416.920(d). "The Secretary explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard [for disability more generally]. The Listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just 'substantial gainful activity.'" Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (stating that the Listings are designed to weed out only those claimants "whose medical impairments are so severe that it is likely they would be disabled regardless of their vocational background").

The claimant has the burden of proving that his or her impairments meet or medically equal a listed impairment. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981); see also Hancock v. Astrue, 667 F.3d 470, 476 (4th Cir. 2012). As a result, a claimant must present medical findings equal in severity to all the criteria for that listing: "[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan, 493 U.S. at 530-31; see also 20 C.F.R. § 416.925(c)(3). A diagnosis of a particular condition, by itself, is insufficient to establish that a claimant satisfies a listing's criteria. Id. § 416.925(d); see also Mecimore v. Astrue, No. 5:10-CV-64, 2010 WL 7281096, at *5 (W.D.N.C. Dec. 10, 2010) ("Diagnosis of a particular condition or recognition of certain symptoms do not establish disability.").

2. Overview of Listing 12.05C

Listing 12.05C was deleted from the Listings as of January 17, 2017, under the final rule on Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138 (Sept. 26, 2016). That said, because 81 Fed. Reg. 66138-01 states that the Social Security Administration does not intend for the court to apply the revised Listings retroactively in evaluating final agency decisions rendered before January 17, 2017, the court will analyze this case as if Listing 12.05C were still in effect. See Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138 n.1 (Sept. 26, 2016) ("We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions."). For cases that reverse the Commissioner's final determination and remand for further administrative action after January 17, 2017, the amended rules will be applied for the entire period at issue. Id.

Listing 12.05C is based on three elements that characterize intellectual disorder: significantly subaverage general intellectual functioning; significant deficits in current adaptive functioning; and the disorder manifested before age 22. 20 C.F.R. Pt. 404, Subpart P, App. 1, § 12.00H. In determining intellectual disability, a claimant must first satisfy the diagnostic description of the impairment, and then show that they meet the required severity level. 20 C.F.R. Pt. 404, Subpart P, App. 1, § 12.05. Where, as here, the paragraph C severity criteria are at issue, the Fourth Circuit has described the presence of an intellectual disability as Prong 1 and the requirements of paragraph C regarding IQ level and a significant work-related limitation as Prongs 2 and 3, respectively. Hancock, 667 F.3d at 473.

Here, the dispute centers on whether the evidence satisfies the first factor of Listing 12.05C. Hill contends that it does, but the Commissioner disagrees. The Commissioner argues that the evidence fails to support a finding that Hill has deficits in adaptive functioning and that the ALJ properly rejected the results of an IQ test Hill contends support her claim. After consideration of the evidence with the record, the court agrees with the Commissioner and determines that Hill has failed to establish that she satisfies the criteria of Listing 12.05C.

The third and final factor requires the ALJ to find that a claimant has a "significant work-related limitation." Hancock, 667 F.3d at 473. Under Prong 3, the required physical or mental impairment "need not be disabling in and of itself." Branham v. Heckler, 775 F.2d 1271, 1273 (4th Cir. 1985). This requirement is satisfied when the ALJ finds that a claimant has other severe impairments. Luckey v. U.S. Dep't of Health & Human Servs., 890 F.2d 666, 669 (4th Cir. 1989). There appears to be no dispute that Hill would satisfy Prong 3 given that ALJ Dziepak found that she has severe impairments including borderline intellectual functioning, organic brain disorder, major depressive disorder, anxiety, personality disorder, arthropathy, essential hypertension with a history of coronary artery disease and atrial fibrillation, and chronic obstructive pulmonary disorder. Tr. at 18.

3. Valid IQ Score

To meet subparagraph C of Listing 12.05, Hill must show a valid IQ score between 60 and 70. The record shows that Hill's IQ was measured to be 68 in 1970. Tr. at 22. ALJ Dziepak noted that this score would could satisfy the requirement of Listing 12.05C. Id. Accordingly, the undersigned concluded that the Hill has met the IQ level requirement of the Listing.

ALJ Dziepak rejected another IQ score of 47. Tr. at 22. Without any intervening medical event or process, which the record failed to reveal, the consultative psychological examiner found the later score's validity highly questionable. Id. ALJ Dziepak rejected the later IQ score. Id. See Hancock v. Astrue, 667 F.3d 470, 474 (4th Cir. 2012) (observing that in the Fourth Circuit "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.").

4. Deficits in Adaptive Functioning

The diagnostic criteria for an intellectual disability includes two components—deficits in adaptive functioning and an onset before age 22—that must both be satisfied in order for the Listing to apply. Id. at 475. Although the age-related component is generally self-explanatory, the adaptive functioning component requires more discussion.

The American Psychiatric Association states that "adaptive functioning" refers "to how well a person meets standards of personal independence and social responsibility, in comparison to others of similar age and sociocultural background. Adaptive functioning involves adaptive reasoning in three domains: conceptual, social, and practical." Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders 37 (5th ed. 2013) ("DSM-V"); Gibbs v. Comm'r, Soc. Sec. Admin., No. 16-16445, 2017 WL 1501082, at *2 (11th Cir. 2017). The Regulations note that evidence of adaptive functioning may come from medical records, standardized tests, third party reports, school records, reports from employers or supervisors, and a claimant's own statements of daily activities. 20 C.F.R. Pt. 404, Subpart P, App. 1, § 12.00H(3)(b).

Whether a claimant's alleged deficits satisfy this prong is a fact-specific inquiry which must be determined case-by-case. Richardson v. Colvin, No. 8:12-cv-03507, 2014 WL 793069, at *11 (D.S.C. Feb. 25, 2014) ("[W]hether a claimant manifested deficits in adaptive functioning during the developmental period is a fact-specific inquiry with few bright-line rules." (citation omitted)). Thus, although cases interpreting Listing 12.05 provide some guidance, the factors that will satisfy this prong are unique to each case.

A valid IQ score between 60-70 may not be conclusive of intellectual disability where the IQ score "is inconsistent with other evidence in the record on the claimant's daily activities and behavior." Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992). Evidence of a claimant's daily activities and behavior may show that the claimant has more adaptive functioning than suggested by his IQ scores. Id. An ALJ may rely on such evidence to find that the presumption of intellectual disability has been rebutted. See Hodges v. Barnhart, 276 F.3d 1265, 1269 (11th Cir. 2001) (holding that the Commissioner may rebut the presumption of adaptive deficits before age twenty-two by presenting evidence relating to a claimant's daily activities and behavior).

ALJ Dziepak pointed out that the paragraph C requirements "are arguably met in this case" because Hill has the required IQ score between 60-70 and other physical and mental impairments imposing additional and significant work-related limitations of function. Tr. at 22. ALJ Dziepak noted, however, that Listing-level severity was not satisfied because Hill's IQ score was inconsistent with her adaptive functioning. Id.

In making this finding, ALJ Dziepak cited Johnson's consultative examination which noted Hill could bathe and dress herself without assistance, watched soap operas on television, listened to the radio, performed word searches, had contact with family members, spoke on the telephone, and made and kept friends. Id. ALJ Dziepak found that these activities were not consistent with Listing-level adaptive functioning deficits. Id. Instead, he determined, they demonstrated Hill's practical knowledge, ability to communicate effectively, competence in personal care, and the capability to meet simple job requirements. Tr. at 22-23. He also noted Hill's ability to maintain employment at the level of substantial gainful activity ("SGA") counseled against a finding that Listing 12.05C was met. Tr. at 23.

Hill contends that the evidence supports a finding that she has adaptive functioning deficits. She testified that she withdrew from high school in the ninth grade, at which time she was performing at a third grade level. She also notes her moderate limitations in social functioning and maintaining concentration, persistence, or pace support a finding of adaptive functioning deficits. And she argues that her work history in an unskilled packing position is not inconsistent with deficits in adaptive functioning.

Despite her allegations, Hill has not established that she has sufficient deficits in adaptive functioning to satisfy this prong of Listing 12.05. ALJ Dziepak's finding that Hill had not shown a sufficient lack of adaptive functioning is supported by the following substantial evidence: Hill could bathe and dress herself without assistance; she watched soap operas on television and listened to the radio; she performed word searches; she had contact with family members and spoke on the telephone; and she made and kept friends. Tr. at 22.

She also worked at a level of SGA during the relevant period despite her alleged mental deficits. Tr. at 23. While work history does not conclusively establish adaptive functioning, it is a relevant factor in determining a claimant's abilities or limitations. Luckey v. U.S. Dep't of Health & Human Servs., 890 F.2d 666, 669 (4th Cir. 1989). And this was one of many factors ALJ Dziepak noted in concluding Hill did not establish the necessary adaptive functioning deficits.

Additionally, Hill testified that she stopped working because she did not get along with her boss and because the position was temporary. Tr. at 51, 58. --------

Thus, although there may be some evidence weigh in in favor of finding adaptive functioning deficits, there is also evidence supporting ALJ Dziepak's conclusion that Hill did not establish Listing-level deficits in adaptive functioning before age 22.

In sum, Hill invites the court to review the evidence to find that she has the necessary deficits in adaptive functioning required for Listing 12.05. But the court will not revisit an ALJ's decision when it is supported by substantial evidence. See Hancock, 667 F.3d at 476.

The undersigned finds ALJ Dziepak's determination is supported by substantial evidence. Because Hill has failed to establish that ALJ Dziepak erred in finding that she did not show the required deficits in adaptive functioning, she cannot satisfy the criteria of Listing 12.05C. As a result, Hill's argument that she was entitled to a finding of disability based on Listing 12.05C lacks merit.

III. Conclusion

For the forgoing reasons, the undersigned recommends that the court deny Hill's Motion for Judgment on the Pleadings (D.E. 19), grant the Commissioner's Motion for Judgment on the Pleadings (D.E. 22), and affirm the Commissioner's decision.

The court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation, receive further evidence, or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.

If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Owen v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: July 24, 2018


Robert T. Numbers, II

United States Magistrate Judge