Bricker v. Berryhill
| Decision Date | 05 October 2018 |
| Docket Number | CIVIL ACTION No. 17-2573-JWL |
| Parties | NATISHA LYNN BRICKER, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Kansas |
Plaintiff seeks review of a decision of the Acting Commissioner of Social Security (hereinafter Commissioner) denying Supplemental Security Income (SSI) benefits pursuant to sections 1602, and 1614(a)(3)(A) of the Social Security Act, 42 U.S.C. §§ 1381a, and 1382c(a)(3)(A) (hereinafter the Act).1 Finding error in the Administrative Law Judge's (ALJ's) consideration of Listing 12.05C at step three of the sequential evaluation process, and that a finding of "disabled" is compelled by the findings of the ALJ, the court ORDERS that the Commissioner's final decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g)REMANDING the case for computation and award of Title XVI benefits in accordance with this decision.
Plaintiff argues that the ALJ erred in finding Plaintiff's condition does not meet Listing 12.05C because he erroneously concluded that the record does not demonstrate the requisite deficits in adaptive functioning prior to age 22. She seeks remand for an award of benefits.
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) () (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. § 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 . Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant's residual functional capacity (RFC). 20 C.F.R.§ 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 as presented in Plaintiff's Brief, and finds the ALJ erred in the legal standard applied to Listing 12.05C at step three, and that the ALJ's findings at step three compel a finding that Plaintiff's condition meets Listing 12.05C. Therefore, the court remands for an immediate computation and award of SSI benefits.
Plaintiff points out that the ALJ found that "the record does not demonstrate the requisite deficits in adaptive functioning prior to age 22," and that "[a]s a result, the claimant's below average intellectual functioning does not satisfy the 'paragraph C'criteria of listing 12.05." (R. 42); see also, (Pl. Br. 19). She argues that in reaching his decision, the ALJ improperly "improvise[d] h[is] own definition of 'adaptive functioning.'" (Pl. Br. 19) (citing Barnes v. Barnhart, 116 F. App'x 934, 942 (10th Cir. 2004)). She argues that he "must provide some indication of the definition he used to determine if a claimant has deficits in adaptive functioning." Id. at 19-20 (citing 116 F. App'x at 942; Havenar v. Colvin, No. 13-CV-692-PJC, 2015 WL 382450, at *3-4 ().
She argues that "this [c]ourt has held that such activities [(as cited by the ALJ)] are not inconsistent with mild mental retardation." Id. at 20 (citing Gross v. Astrue, No. 11-1256-JWL, 2012 WL 2449900 (D. Kan. June 6, 2012)). She goes on to explain that the evidence will not support a finding that Plaintiff does not have deficits in adaptive functioning initially manifested during the developmental period, and notes that the ALJ found Plaintiff has physical and other mental impairments consisting of degenerative disc disease of the lumbar spine, asthma, obstructive sleep apnea, obesity, bipolar disorder, and anxiety disorder/post-traumatic stress disorder (PTSD), which impose additional and significant work-related limitations of functioning. (Pl. Br. 20-23). She argues that "the record overwhelmingly supports a disability finding and remand would merely delay the receipt of benefits to which Plaintiff is entitled," and that remand for immediate computation and award of benefits is appropriate. Id. at 24 (citing Jackson v. Schweiker,696 F 2d 630, 631 at n.1 (8th Cir. 1983); Lewin v. Schweiker, 654 F.2d 631, 635 (8th Cir. 1981); Ziminga v. Schweiker, 651 F.2d 611, 613 (8th Cir. 1981)).
The Commissioner argues that substantial evidence supports the ALJ's finding that Plaintiff's condition does not meet the criteria of Listing 12.05C. (Comm'r Br. 4). She argues that "the record evidence does not support a finding of deficits in adaptive functioning manifesting before age 22." (Comm'r Br. 5). She argues that "[i]t was reasonable for the ALJ to conclude that Plaintiff effectively coped with common life demands and met standards of personal independence expected of her particular age group, sociocultural background, and community setting." Id. at 6 (). She asserts that Dr. Israel's diagnosis of borderline intellectual functioning rather than intellectual disability2 "reflects a different and lesser degree of intellectual dysfunction than intellectual disability," that the opinion of a healthcare consultant is necessary for an ALJ to find that adaptive functioning is consistent with IQ test results, and that the "absence of a diagnosis of intellectual disability is significant [because] the medicalcriteria for a diagnosis of intellectual disability mirror the criteria of the capsule definition of Listing 12.05." Id. at 7 (). She argues that to meet a Listing is Plaintiff's burden and it requires a very high standard, but that Plaintiff has not met her step three burden.
In her Reply Brief, Plaintiff again appeals to this court's decision in Gross and notes other district court decisions which have cited that opinion favorably. (Reply 2) (citing Woods v. Berryhill, No. 16-4059-DDC, 2017 WL 4284972 (D. Kan. Sept. 27, 2017); Gardner v. Colvin, No. 14-4048-SAC, 2015 WL 4598802 (D. Kan. July 29, 2015); and Swan v. Astrue, No. 11-cv-482-JD, 2013 WL 1314783 (D.N.H. Mar. 28, 2013)). She argues that she has met her burden to show disability, that the ALJ erred as a matter of law and "this [c]ourt should grant Plaintiff's claim for Supplemental Security Income Benefits under Title XVI of the Social Security Act." Id. at 3.
The ALJ found that Plaintiff has not engaged in substantial gainful...
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