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Smith v. Berryhill

United States District Court, M.D. Tennessee, Nashville Division

December 8, 2017

JERRICA M. SMITH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         This Social Security case is before the Court on a Report and Recommendation (“R & R”)(Doc. No. 19) from the Magistrate Judge. The R & R recommends that this action be remanded to the Commissioner for further consideration of whether Plaintiff's intellectual impairment meets or equals Listing 12.05C. In making the recommendation, the Magistrate Judge concluded that the Administrative Law Judge (“ALJ”) erred at step three of the applicable analysis[1] on the following grounds:

The ALJ found that the IQ scores contained in Plaintiff's school records and as reported by Ms. Garland were not valid in light of Ms. Garland's suspicion that they were “slightly low, ” Tr. 27, 339, and in light of the substantially higher IQ scores reported by Dr. Loftin, Tr. 29. However, the ALJ accorded “little weight” to Dr. Loftin's assessment because, inter alia, he did not have the benefit of Plaintiff's school records. Tr. 34. Instead, the ALJ accorded “significant weight” to the assessments of Ms. Garland and of the state agency reviewing psychologists. Yet, none of these psychologists had the benefit of Plaintiff's school records either. See Tr. 336, 395, 475. Moreover, and perhaps most significantly, although Ms. Garland suspected that Plaintiff's IQ scores were “slightly low, ” Tr. 339, her ambiguous diagnostic assessment - i.e., “[m]ild mental retardation to borderline intellectual functioning, ” Id. - did not eliminate a level of intellectual functioning inconsistent with Listing 12.05C.

(Doc. No. 19 at 12).

         The Government has filed Objections to the R & R based upon two interrelated principles. First, the Government argues the Magistrate Judge neglected to consider that, in accordance with the unpublished decision in Bledsoe v. Barnhart, 165 F. App'x 408, 411 (6th Cir. 2006), an ALJ is under no obligation to spell out “every consideration that went into the step three determination, ” and that a court should search the entire decision for statements supporting that analysis. Second, the Government relies on Justice v. Comm'r of Soc. Sec., 515 F. App'x 583, 588 (6th Cir. 2013) for the proposition that, “[i]n a battle of experts, the agency decides who wins” and the “fact that [the claimant] now disagrees with the ALJ's decision does not mean that the decision is unsupported by substantial evidence.”

         Having considered the record de novo in accordance with Rule 72(b)(3) of the Federal Rules of Civil Procedure, the Court agrees with the recommended disposition. Accordingly, the R & R will be adopted, the Government's objections will be overruled, and this matter will be remanded to Commissioner for further consideration.

         I.

         Under step three, Plaintiff sought to show that her impairments qualified under the listings in Section 12.05 of the appendix to subpart P of 20 C.F.R. § 404. Those listings relate to what was previously characterized as “mental retardation, ” and is now identified as “intellectual disability.”[2]

         The diagnostic description for intellectual disability is “significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates onset of impairment before age 22.” Hayes v. Comm'r of Soc. Sec., 357 F. App'x 672, 674-75 (6th Cir. 2009). “To demonstrate mental retardation, a claimant must demonstrate three factors to satisfy the diagnostic description: (1) subaverage intellectual functioning; (2) onset before age twenty-two; and (3) adaptive-skills limitations.” Id. Additionally, a claimant “must satisfy ‘any one of the four sets of criteria' in Listing § 12.05.” Id. (quoting 20 C.F.R. Pt. 404, Subpart. P, App. 1, § 12.00(A)). If an “impairment satisfies the diagnostic description . . . and any one of the four sets of criteria, an impairment will be found to meet the listing.” Daniels v. Comm'r of Soc. Sec., 70 F. App'x 868, 872 (6th Cir. 2003) (citation omitted).

         Among the criteria, and the one at issue here, is Listing 12.05C, which requires “[a] valid verbal performance, or full scale IQ of 60 though 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function[.]” Hayes, 357 F. App'x 675. By way of shorthand, “[a] claimant satisfies Listing 12.05C, demonstrating ‘intellectual disability' and ending the five-step inquiry, if [s]he can show: (1) subaverage intellectual functioning with deficits in adaptive functioning initially manifested before age 22; (2) a valid IQ score of 60 to 70; and (3) a physical or other mental impairment imposing an additional and significant work-related limitation.” Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013); see Illig v. Comm'r Soc. Sec., 570 F. App'x 262, 265 (3d Cir. 2014) (identifying essentially the same elements); Maresh v. Barnhart, 438 F.3d 897, 900 (8th Cir. 2006) (same).

         II.

         Turning to the facts of this case, Plaintiff, at the age of 16, was administered WISC-III and the WJTA-R testing[3] by a school psychologist, and found to have a verbal IQ score of 62, a Performance IQ of 66, a Full scale IQ score of 61, and the ability to read and write at approximately the third grade level. She was also found to “meet [the] criteria for special education services as a child with mental retardation.” (Tr. at 272-73). The ALJ appears to have accepted that Plaintiff met the diagnostic description by observing that Plaintiff's “testing reflects sub-average intellectual functioning with deficits in adaptive functioning that initially manifested during the development period.” (Doc. No. 10 at 27).

         The ALJ also appears to agree that Plaintiff met Listing 12.05C's requirement that there be another physical or mental impairment that imposes a significant limitation. The ALJ specifically found that Plaintiff had impairments, including “right carpal tunnel syndrome, ” “obesity” and “depressive disorder.” (Id. at 17). In the ALJ's opinion “these impairments are severe because they cause more than a minimal effect on the claimant's ability to work.” (Id.); see, Marsh, 438 F.3d at 900 (collecting cases for the proposition that a “claimant has a physical or other mental impairment imposing an additional and significant work-related limitation of function” when it has “‘more than slight or minimal' effect on the ability to perform work”).

         Where Plaintiff's claim faltered, according to the ALJ, was at the second prong of the analysis. In this regard, the ALJ wrote that “both 12.05(b) and 12.05(c) require valid IQ scores, ” and “the absence of such valid scores does not satisfy the ...


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