United States District Court, E.D. North Carolina, Eastern Division
MEMORANDUM AND RECOMMENDATION
E. Gates, United States Magistrate Judge.
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
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;Tr. 17, 18.
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.
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.
Standards for Disability
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).
disability regulations under the Act
("Regulations") provide a five-step analysis that
the ALJ must follow when determining whether a claimant is
(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
(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. §
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.
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.
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).
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.
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),
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.
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.
STANDARD OF REVIEW
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.
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.
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).
OVERVIEW OF PLAINTIFF'S CONTENTIONS
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,  and relying on testimony
by the vocational expert elicited by an improper
hypothetical. The court will address each contention in turn.
ALJ'S DETERMINATION ON LISTINGS 12.05B AND C
Applicable Legal Principles
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
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.
satisfy Listing 12.05 for intellectual disability,
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)
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.
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.
Evaluation of Medical Opinion Evidence
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.").
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. §
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],