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Taylor v. Saul

United States District Court, E.D. North Carolina, Eastern Division

August 7, 2019

DEXTER XAVIER TAYLOR, JR., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM AND RECOMMENDATION

          James E. Gates, United States Magistrate Judge.

         In this action, plaintiff Dexter Xavier Taylor, Jr. ("plaintiff or, in context, "claimant"), with assistance from his parents, challenges the final decision of defendant Commissioner of Social Security Andrew M. Saul ("Commissioner") denying his application for Supplemental Security Income ("SSI") on the grounds that he is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 21, 23. Both filed memoranda in support of their respective motions (D.E. 22, 24), and plaintiff filed a response (D.E. 27) to the Commissioner's motion. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 6 Feb. 2019 Text Ord. For the reasons set forth below, following careful consideration of the parties' arguments, the authorities they cite, other applicable law, and the evidence of record, it will be recommended that the Commissioner's motion be allowed, plaintiffs motion be denied, and the final decision of the Commissioner be affirmed.

         I. BACKGROUND

         A. Case History

         Plaintiff, who was born in 1994, received SSI based on disability as a child. Transcript of Proceedings ("Tr.") 17; 27 ¶ 6. When he attained age 18, he was required to have his eligibility for these benefits redetermined under the rules for determining disability in adults. See 20 C.F.R. § 416.987[1];Tr. 17, 18.

         On 26 February 2013, plaintiff was found to be no longer disabled as of 25 January 2013. Tr. 17. This determination was upheld upon reconsideration, and a request for hearing was timely filed. Tr. 17. A prehearing conference was held on 22 February 2016. Tr. 560-82. On 7 July 2016, an administrative law judge ("ALJ") held a video hearing at which the witnesses were plaintiff, who was proceeding pro se; his mother; and a vocational expert. Tr. 505-59. In lieu of testifying at this hearing or a supplemental hearing, plaintiffs father submitted a written, post-hearing statement (Tr. 495-96) for consideration by the ALJ. Tr. 17. Other documents were also added to the record before the ALJ after the hearing. Tr. 17. The ALJ issued a decision denying plaintiffs claim on 6 January 2017. Tr. 17-28.

         Plaintiff timely requested review by the Appeals Council. Tr. 501. The Appeals Council denied the request on 1 February 2018. Tr. 6. At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. §416.1481. Plaintiff commenced this proceeding for judicial review on 3 April 2018, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). See In Forma Pauperis ("IFP") Mot. (D.E. 1); Order Allowing IFP Mot. (D.E. 3); Compl. (D.E. 4).

         B. Standards for Disability

         The Social Security Act ("Act") defines disability 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "[A]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . ." 42 U.S.C. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 1382c(a)(3)(D).

         The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:

(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled. . ..
(ii) At the second step, we consider the medical severity of your impairments). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 416.909, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled. ...
(iii) At the third step, we also consider the medical severity of your impairments). If you have an impairments) that meets or equals one of our listings in [20 C.F.R. pt. 404, subpt. P, app. 1 ] ["Listings"] . . . and meets the duration requirement, we will find that you are disabled....
(iv) At the fourth step, we consider our assessment of your residual functional capacity ["RFC"] and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled... .
(v) At the fifth and last step, we consider our assessment of your [RFC] and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled.....

20 C.F.R. § 416.920(a)(4). The first step is not used for redetermining disability at age 18. Id. § 416.987(b).

         The burden of proof and production rests with the claimant during the first four steps of the analysis. Pass, 65 F.3d at 1203. The burden shifts to the Commissioner at the fifth step to show that alternative work is available for the claimant in the national economy. Id.

         In the case of multiple impairments, the Regulations require that the ALJ "consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." 20 C.F.R. § 416.923. If a medically severe combination of impairments is found, the combined impact of those impairments will be considered throughout the disability determination process. Id.

         C. ALJ's Findings

         Plaintiff was 21 years old on the date of the hearing and 22 on the date of issuance of the ALJ's decision. See, e.g., Tr. 27 ¶ 6. The ALJ found that plaintiff has at least a high school education (Tr. 27 ¶ 7) and no past relevant work (Tr. 27 ¶ 5).

         At step two of the sequential analysis under 20 C.F.R. § 416.920(a)(4), the ALJ found that since 25 February 2013 plaintiff had the following severe impairments: Crohn's disease, attention deficit hyperactivity disorder ("ADHD"), expressive-receptive language disorder, and borderline intellectual functioning. Tr. 19 ¶ 2. At step three, the ALJ found that since 25 February 2013 plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of any of the Listings. Tr. 21 ¶ 3.

         The ALJ next determined that since 25 February 2013 plaintiff had the RFC to perform a limited range of medium work:

After careful consideration of the entire record, I find that since February 25, 2013, the claimant has had the [RFC] to perform medium work, as defined in 20 CFR 416.967(c), [2] except no climbing ladders, ropes, or scaffolds, and no exposure to workplace hazards such as moving machinery and unprotected heights. He is further limited to the performance of simple, routine, repetitive tasks ["SRRTs"], in a low stress job (defined as having no more than occasional decision-making required and no more than occasional changes in the work setting), with no production-rate or paced-work (such as would be done on an assembly line).

Tr. 23 ¶ 4.

         The ALJ found at step four that plaintiff had no past relevant work. Tr. 27 ¶ 5. At step five, the ALJ accepted the testimony of the vocational expert and found that since 25 February 2013 there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of dining room attendant, hospital cleaner, and store laborer. Tr. 27-28 ¶ 9. The ALJ accordingly concluded that plaintiffs disability ended on 25 February 2013 and he had not become disabled again since that date, implicitly, through the date of the decision, 6 January 2017. Tr. 28 ¶ 10.

         II. STANDARD OF REVIEW

         Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.

         The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.

         Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).

         III. OVERVIEW OF PLAINTIFF'S CONTENTIONS

         Plaintiff contends that the ALJ's decision should be reversed and benefits awarded him or, alternatively, that this case should be remanded for a new hearing on the grounds that the ALJ erred by not determining him to satisfy Listings 12.05B and C for intellectual disability, [3] and relying on testimony by the vocational expert elicited by an improper hypothetical. The court will address each contention in turn.

         IV. ALJ'S DETERMINATION ON LISTINGS 12.05B AND C

         A. Applicable Legal Principles

         1. Listing 12.05

         The Listings consist of impairments, organized by major body systems, that are deemed sufficiently severe to prevent a person from doing any gainful activity. 20 C.F.R. § 416.925(a). Therefore, if a claimant's impairments meet a listing, that fact alone establishes that the claimant is disabled. Id. § 416.920(d). An impairment meets a listing if it satisfies all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Soc. Sec. Ruling 83-19, 1983 WL 31248, at *2 (1983). The burden of demonstrating that an impairment meets a listing rests on the claimant. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).

         Even if an impairment does not meet the listing criteria, it can still be deemed to satisfy the listing if the impairment medically equals the criteria. 20 C.F.R. § 416.925(c)(5). To establish such medical equivalence, a claimant must present medical findings equal in severity to all the criteria for that listing. Sullivan, 493 U.S. at 531; 20 C.F.R. § 416.926(a). "A claimant cannot qualify for benefits under the 'equivalence' step by showing that the overall functional impact of his unlisted impairment or combination of impairments is as severe as that of a listed impairment." Sullivan, 493 U.S. at 531.

         To satisfy Listing 12.05 for intellectual disability, [4] a claimant must first satisfy the introductory diagnostic description for intellectual disability. See Listing 12.00A; Hancock v. Astrue, 667 F.3d 470, 473 (4th Cir. 2012). Specifically, the claimant must demonstrate "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period," that is, before the age of 22. Listing 12.05. General intellectual functioning may be defined by the intelligence quotient ("IQ") obtained using one or more of the standardized, individually administered intelligence tests. See Am. Psych. Assn., Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. text rev. 2000) ("DSM-IV-TR").[5]

         Adaptive functioning "refers to how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting." DSM-IV-TR 42. Areas in which deficits in adaptive functioning may exist include "communication, self-care, home living, social/inter-personal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety." Jackson v. Astrue, 467 Fed.Appx. 214, 218 (4th Cir. 2012) (citing Atkins v. Virginia, 536 U.S. 304, 309 n.3 (2002)) and reciting areas of adaptive functioning listed in DSM-IV-TR 49). By specifying "deficits" in adaptive functioning, the diagnostic description requires that there be at least two. Listing 12.05; see Hightower v. Colvin, Civ. Act. No. 1:14-cv-02761-RBH, 2015 WL 5008713, at *7 (D.S.C. 20 Aug. 2015). This requirement is consistent with the definition of mental retardation in the DSM-IV-TR, which requires deficits or impairments in "at least two" of the foregoing areas. DSM-IV-TR 49.

         In addition to the diagnostic description, to satisfy Listing 12.05 a claimant must satisfy the criteria set forth in at least one of four paragraphs relating to the severity of the intellectual disability. Paragraph B requires a "valid verbal, performance, or full scale IQ of 59 or less." Listing 12.05B. To satisfy Listing 12.05C, a claimant must demonstrate both 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." Listing 12.05C.

         2. Evaluation of Medical Opinion Evidence

         "Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. § 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See Id. § 416.927(c); Nicholson v. Comm'r of Soc. Sec. Admin., 600 F.Supp.2d 740, 752 (N.D. W.Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").

         The Regulations provide that opinions of treating physicians and psychologists on the nature and severity of impairments are to be accorded controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. § 416.927(c)(2); see Craig, 76 F.3d at 590; Ward v. Chater, 924 F.Supp. 53, 55-56 (W.D. Va. 1996); Soc. Sec. Ruling 96-2p, 1996 WL 374188 (2 July 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In this circumstance, the Regulations prescribe factors to be considered in determining the weight to be ascribed, including the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, and any specialization of the opining source. 20 C.F.R. § 416.927(c)(2)-(6).

         The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. § 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. 6 Mar. 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], ...


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