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Dettmer v. Berryhill

United States District Court, D. Kansas

July 5, 2018

MARIBETH BROOKE DETTMER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          John W. Lungstrum, United States District Judge.

         Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying child's insurance benefits, Disability Insurance Benefits (DIB), and Supplemental Security Income (SSI) benefits pursuant to sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the Commissioner's final decision.

         I. Background

         Plaintiff argues that the Administrative Law Judge (ALJ) erred by failing to consider whether Plaintiff's condition medically equals § 12.05C of the listing for mental disorders and by accepting vocational expert testimony which is inconsistent with the Dictionary of Occupational Titles (DOT) and the policies of the Social Security Administration (SSA). Finally, she argues that the ALJ's residual functional capacity (RFC) assessment is not supported by the evidence because he erred in evaluating the opinion evidence. She seeks reversal and remand “with directions to grant her claims for disability insurance benefits and supplemental security income benefits.” (Pl. Br. 37).

         The court's review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ's factual findings are supported by substantial evidence in the record and whether he applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also, Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).

         The court may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005); see also, Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (The court “may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the [Commissioner's], even if the evidence preponderates against the [Commissioner's] decision.”) (quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)). Nonetheless, the determination whether substantial evidence supports the Commissioner's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

         The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether she has a severe impairment(s), and whether the severity of her impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant's RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.

         The Commissioner next evaluates steps four and five of the sequential process--determining at step four whether, considering the RFC assessed, claimant can perform her past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).

         The court considers the issues in the order presented in Plaintiff's Brief and finds no error in the ALJ's decision.

         II. Step Three Determination

         Plaintiff argues that the ALJ erred because he did not consider whether Plaintiff's mental impairment medically equals Listing 12.05C of the listing of mental disorders. (Pl. Br. 28). Plaintiff cites two cases from the Eighth Circuit for the proposition that a case should be remanded where the ALJ fails to mention, or disregards, the Program Operations Manual System (POMS) guideline for determining medical equivalence to Listing 12.05C. Id. at 29 (citing Hesseltine v. Colvin, 800 F.3d 461, 466 (8th Cir. 2015); and Shontos v. Barnhart, 328 F.3d 418, 425 (8th Cir. 2003); and POMS DI 24515.056, available online at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0424515056; effective 9/13/12-present) (last visited July 2, 2018). The Commissioner argues that the Eighth Circuit “cases have no authority in the Tenth Circuit, ” and that contrary to Plaintiff's argument, the ALJ specifically determined Plaintiff's mental impairments did not meet or medically equal any Listed mental disorder. (Comm'r Br. 5-6). In her Reply Brief, Plaintiff argues that “the ALJ did not consider Listing 12.05C except to the extent he mentioned the B criteria and C criteria of 12.04 or 12.06.” (Reply 2) (citing R. 928-29).

         A. Step Three Standard

         The Commissioner has provided a “Listing of Impairments” which describes certain impairments that she considers disabling. 20 C.F.R. §§ 404.1525(a), 416.925(a); see also, Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If Plaintiff's condition meets or equals the severity of a listed impairment, that impairment is conclusively presumed disabling. Williams, 844 F.2d at 751; see Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (if claimant's impairment “meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled”). However, Plaintiff “has the burden at step three of demonstrating, through medical evidence, that h[er] impairments ‘meet all of the specified medical criteria' contained in a particular listing.” Riddle v. Halter, No. 00-7043, 2001 WL 282344 at *1 (10th Cir. Mar. 22, 2001) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in Zebley)); see also, Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) (burden shifts to Commissioner only at step five). “An impairment that manifests only some of [the listing] criteria, no matter how severely, does not qualify” to meet or equal the listing. Zebley, 493 U.S. at 530.

         “The [Commissioner] explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard. The listings define impairments that would prevent an adult, regardless of h[er] age, education, or work experience, from performing any gainful activity, not just ‘substantial gainful activity.'” Zebley, 493 U.S. at 532-33 (emphasis in original) (citing 20 C.F.R. § 416.925(a) (1989)). The listings “streamlin[e] the decision process by identifying those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background.” Yuckert, 482 U.S. at 153. “Because the Listings, if met, operate to cut off further detailed inquiry, they should not be read expansively.” Caviness v. Apfel, 4 F.Supp.2d 813, 818 (S.D. Ind. 1998).

         Medical equivalence to a listing may be established by showing that the claimant's impairment(s) “is at least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. §§ 404.1526(a), 416.926(a). The determination of medical equivalence is made without consideration of vocational factors of age, education, or work experience, but the ALJ will “consider the opinion given by one or more medical or psychological consultants designated by the Commissioner. 20 C.F.R. §§ 404.1526(c), 416.926(c).

         B. The ALJ's Findings Regarding Mental Listings

         The ALJ found that Plaintiff has severe mental impairments of borderline intellectual functioning, attention deficit hyperactivity disorder, oppositional defiant disorder, cognitive disorders, affective disorders, and anxiety disorders. (R. 927). He found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (R. 928) (bolding omitted). Regarding the Mental Disorders in Section 12.00 of the Listings, the ALJ explained:

The severity of the claimant's mental impairments, considered singly and in combination, do not meet or medically equal the criteria of any impairment listed in section 12.00 of Appendix 1. In making this finding, the undersigned has considered whether the paragraph B criteria are satisfied. To satisfy the paragraph B criteria, the mental impairments must result in extreme limitation of one, or marked limitation of two, of the four areas of mental functioning. The four areas of mental functioning are: understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. An extreme limitation is an inability to function in the area independently, appropriately, effectively, and on a sustained basis. A marked limitation is a seriously limited ability to function in the area independently, appropriately, effectively, and on a sustained basis.

(R. 928).

         The ALJ went on to explain that he found Plaintiff has a moderate limitation in understanding, remembering, or applying information; a moderate limitation in interacting with others; a moderate limitation in concentrating, persisting, or maintaining pace; and a mild limitation in adapting, or managing oneself. (R. 928-29). He found that the paragraph B criteria of the mental listings are not satisfied because there is neither one extreme limitation nor two marked limitations, and the paragraph C criteria are not satisfied because the evidence does not establish that Plaintiff has only marginal adjustment. Id. at 929. Finally, he noted “that no State agency psychological consultant concluded that a mental listing is medically equaled.” Id.

         C. Analysis

         The Listings for Mental Disorders were changed effective January 17, 2017. 81 Fed. Reg. 66, 138 (Sept. 26, 2016); see also 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00 (2017). As relevant here, Plaintiff's borderline intellectual functioning is evaluated under Listing 12.11, “neurodevelopmental disorder, ” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00B9b (“Examples of disorders that we evaluate in this category include … borderline intellectual functioning”); and Plaintiff's anxiety disorder is evaluated under Listing 12.06, “anxiety and obsessive-compulsive disorders.” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00B5b. Listing 12.05, “intellectual disorder, ” on the other hand “may be described in the evidence as intellectual disability, intellectual developmental disorder, or historically used terms such as ‘mental retardation.'” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00B4b. The regulations specifically note that “[t]his category [(Listing 12.05)] does not include the mental disorders that we evaluate under … neurodevelopmental disorders (12.11).” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00B4c.

         Listing 12.11 has two paragraphs--A and B--and to meet or equal that Listing, the mental impairment “must satisfy the requirements of both paragraphs A and B.” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00A2. Listing 12.06 has three paragraphs--A, B, and C--and the mental impairment “must satisfy the requirements of both paragraphs A and B, or the requirements of both paragraphs A and C.” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00A2. Paragraph B of both Listing 12.06 and Listing 12.11 require evaluation of each of the four mental functional areas: understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself, and the paragraph B criteria are only met, as the ALJ explained when Plaintiff's mental impairments “result in ‘extreme' limitation of one, or ‘marked' limitation of two, of the four areas of mental functioning.” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00A2b.

         The paragraph C criteria of Listing 12.06 require a mental disorder that is “serious and persistent, ” “medical treatment, mental health therapy, psychosocial support(s) or a highly structured setting(s)” that diminishes the symptoms and signs of the claimant's mental disorder, and “only marginal adjustment.” 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00G2a, b, and c.

         Th e explanation above illuminates the ALJ's consideration of Plaintiff's mental impairments. His explanation that the paragraph B criteria are not met demonstrates that Listing 12.11 cannot be met and that one possible combination of criteria in Listing 12.06 cannot be met. His explanation that the Paragraph C criteria are not met eliminates the other possible combination of criteria for Listing 12.06, and confirms that Listing 12.06 cannot be met.

         Plaintiff's argument that Listing 12.05C is medically equaled, misunderstands the current listing of Mental Disorders, because Listing 12.05 no longer has a paragraph C. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00A3. Current Listing 12.05 states:

         12.05 Intellectual disorder (see 12.00B4), satisfied by A or B:

         A. Satisfied by 1, 2, and 3 (see 12.00H):

1. Significantly subaverage general intellectual functioning evident in your cognitive inability to function at a level required to participate in standardized testing of intellectual functioning; and
2. Significant deficits in adaptive functioning currently manifested by your dependence upon others for personal needs (for example, toileting, eating, dressing, or bathing); 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.

         OR

         B. Satisfied by 1, 2, and 3 (see 12.00H):

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 ...

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