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Davis v. Berryhill

United States District Court, D. Minnesota

March 23, 2018

BRIAN M. DAVIS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Ethel Schaen, Esq. and Eddy Pierre Pierre, Esq. for plaintiff

          Pamela A. Marentette, Assistant U.S. Attorney for defendant



         Brian M. Davis appeals the Commissioner of Social Security's denial of his application for children's insurance benefits (CIB) and supplemental security income (SSI) benefits. Docket No. 1. This matter is before the Court on the parties' cross-motions for summary judgment. Local Rule 7.2(c)(1); Docket Nos. 14, 18. No. hearing was held. Docket No. 23. For the reasons stated below, the Court grants Davis's motion for summary judgment and remands the case to the Administrative Law Judge (ALJ) for further consideration consistent with this opinion.


         1. ALJ DECISION

         The Commissioner uses a five-step sequential evaluation process to determine whether a claimant is entitled to disability benefits. 20 C.F.R. § 404.1520(a). The Commissioner evaluates “(1) whether the claimant is currently employed; (2) whether the claimant is severely impaired; (3) whether the impairment is, or approximates, a listed impairment; (4) whether the claimant can perform past relevant work; and if not, (5) whether the claimant can perform any other kind of work.” Brock v. Astrue, 674 F.3d 1062, 1064 n.1 (8th Cir. 2012); see also 20 C.F.R. § 404.1520(a)(4).

         The ALJ issued his decision on March 12, 2015. In steps one through three, he found that Davis has not engaged in substantial gainful activity; has several severe impairments - schizophrenia, major depression, obsessive compulsive disorder, anxiety, ADHD, borderline intellectual functioning, degenerative changes in the cervical spine, and back pain - that did not meet or medically equal any listed impairment; and has the residual functional capacity (RFC) to perform medium work with limitations. R. 18-25.[1] At step four the ALJ found that Davis has no past relevant work (“PRW”). R. 26. At step five, the ALJ found that Davis could perform jobs that exist in significant numbers in the national economy, such as hand packager and package sealer/machine tender, and thus concluded he was not disabled. R. 26-27.


         The Commissioner's denial of disability benefits is subject to judicial review. 42 U.S.C. §§ 405(g), 1383(c)(3). This Court has authority to “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing a decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” Id. § 405(g) (sentence four).

         Disability under the Social Security Act means 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 12 months.” Id. § 423(d)(1)(A). Under the regulations, disability means that the impairment(s) is/are so severe that the claimant is not only unable to engage in previous work, but cannot engage in any other kind of substantial gainful employment that exists in the national economy. Id. § 423(d)(2)(A).

         This Court “must affirm the Commissioner's decision if it is supported by substantial evidence on the record as a whole.” Telkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006). Substantial evidence is “less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion.” Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir. 2003). On review, the Court considers “both evidence that detracts from and evidence that supports the Commissioner's decision.” Hartfield v. Barnhart, 384 F.3d 986, 988 (8th Cir. 2004). If it is possible, based on the evidence in the record, to reach two inconsistent decisions, and one of those decisions is the Commissioner's position, the decision must be affirmed. Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). In other words, the denial of benefits will not be disturbed “so long as the ALJ's decision falls within the available zone of choice. An ALJ's decision is not outside the zone of choice simply because [the reviewing court] might have reached a different conclusion had [it] been the initial trier of fact.” Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008); see also Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988) (“The concept of substantial evidence . . . embodies a zone of choice within which the Secretary may grant or deny benefits without being subject to reversal on appeal.”).

         The claimant bears the burden of proving entitlement to disability benefits. See 20 C.F.R. § 404.1512(a); Young v. Apfel, 221 F.3d 1065, 1069 n. 5 (8th Cir. 2000). Once the claimant demonstrates that he or she cannot perform past work due to a disability, the burden “shifts to the Commissioner to prove, first that the claimant retains the residual functional capacity to do other kinds of work, and, second that other work exists in substantial numbers in the national economy that the claimant is able to do.” Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000).

         3. ANALYSIS

         a. Listing 12.05C [2]

         Davis contends that he is disabled because his mental limitations satisfy the requirements of Listing 12.05C.[3] “Listing 12.05C requires: 1) ‘significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested . . . before age 22, ' 2) ‘[a] valid verbal, performance, or full scale IQ of 60 through 70, ' and 3) ‘a physical or other mental impairment imposing an additional and significant work-related limitation of function.'” Scott v. Berryhill, 855 F.3d 853, 856 (8th Cir. 2017) (quoting 20 C.F. R. Pt. 404, Subpt. P, App. 1, § 12.05C (2013)).

         Davis states that the ALJ erred at step three in failing to consider Listing 12.05. The Commissioner admits that the ALJ did not mention Listing 12.05 but states that any error in failing to do so was harmless because substantial evidence supports a finding that Davis did not satisfy its requirements. Specifically, the Commissioner contends that the record establishes that Davis did not have the required “deficits in adaptive functioning” under Listing 12.05, pointing to the ALJ's findings that Davis had mild restrictions in daily activities and moderate restrictions in social functioning and concentration, persistence or pace. See R. 19-20, 24.

         The Court concludes that it was error not to consider Listing 12.05 and that this case must be remanded. Although the ALJ stated his reasons for finding that Davis's impairments did not satisfy psychiatric Listings 12.02, 12.03, 12.04, and 12.06 [R. 19-21], he did not consider 12.05 which has a separate set of requirements. In addition, as discussed below, the Court finds that the ALJ made errors in evaluating the record and the opinion evidence and that the errors were not harmless because the record does not otherwise support the ALJ's conclusion. See Igo v. Colvin, 839 F.3d 724, 728-29 (8th Cir. 2016) (failure to identify and analyze the appropriate listing may not be reversible error so long as substantial evidence in the record supports the ALJ's determination). Listing 12.05 must be analyzed according to its own terms, based upon an examination of the record as a whole and consistent with this Order and Memorandum. Therefore, the Court remands this case to the ALJ for consideration of whether Davis has satisfied the requirements of Listing 12.05.

         b. Treating Psychiatrist's Opinion

         The ALJ erred in evaluating and discounting the opinions of treating psychiatrist Dr. Sushila Mohan. In making a disability determination, an ALJ considers evidence that includes “medical opinion” evidence of the claimant's “impairment-related limitations or restrictions.” 20 C.F.R. § 416.913(a)(2). Such limitations include the claimant's “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions” and “ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, or pace; carrying out instructions; or responding appropriately to supervision, co-workers, or work pressures in a work setting.” Id. § 416.913(a)(2)(i)(A) and (B).

         A treating physician's opinion should be given controlling weight when it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record. Id. § 404.1527(c)(2); Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002). The record must be evaluated as a whole to determine whether the treating physician's opinion should control. Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009). The ALJ must always give “good reasons” for the weight afforded to the treating source's opinion. Id. at 680; 20 C.F.R. § 404.1527(c)(2).

         The ALJ rejected Dr. Mohan's diagnosis of mild mental retardation, stating that it was not supported by “objective findings” or a “diagnostic test” and that “the records . . . support that [Davis] was capable of working in skilled-type jobs, which supports that he does not have mild mental retardation.” R. 24. These statements are incorrect.

         First, Dr. Mohan's diagnosis of mild mental retardation - “significantly subaverage general intellectual functioning” under Listing 12.05 - is supported by testing administered by psychologist Dr. Michael Hamberg. Dr. Mohan began treating Davis on July 30, 2012. R. 566, 809. Between August 10-16, 2012, upon a referral by Dr. Mohan, Dr. Hamberg administered several tests to Davis, including the Wechsler Adult Intelligence Scale - Fourth Edition (WAIS-IV) which resulted in a Full Scale IQ (FSIQ) score of 65. R. 544, 810-20. The Social Security Administration (SSA) has stated, “In our experience, full scale IQ scores are the most reliable evidence that a person has intellectual disability and not another impairment that affects cognition.” Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66, 138, 66, 151 (Sept. 26, 2016). A person's IQ is presumed to remain stable over time unless there is evidence of a change in the person's intellectual functioning. Maresh v. Barnhart, 438 F.3d 897, 900 (8th Cir. 2006).

         Dr. Mohan's October 2013 Psychiatric/ Psychological Impairment Questionnaire stated that Davis has “mild MR [mental retardation]” and identified the diagnostic test results, including the FSIQ of 65. R. 685-86, 691. Dr. Mohan's progress notes during 2014 continued to note her diagnosis of mild mental retardation. R. 805-08. In an updated opinion letter dated February 10, 2015, Dr. Mohan summarized her clinical findings, opined that Davis's low intellectual functioning began at birth, stated that his current GAF score was between 35 and 40, and found that Davis was “markedly limited” in many areas of functioning. R. 809. Dr. Mohan's opinion regarding Davis's marked functional limitations reflects her diagnosis of mild mental retardation.[4]

         In dismissing Dr. Mohan's mild mental retardation diagnosis - and by extension, her opinion that Davis has marked limitations in adaptive functioning - the ALJ also relied on the fact that Dr. Hamberg said “borderline intellectual functioning” [R. 819] rather than “mild mental retardation.” The ALJ stated, “Though the WAIS-IV scores were low, the psychologist [Dr. Hamberg] diagnosed borderline intellectual functioning.” R. 24.[5] The ALJ also appeared to be referring to the following comment by Dr. Hamberg: “Though [Davis's] FSIQ score is in the ...

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