United States District Court, D. Minnesota
BRIAN M. DAVIS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Schaen, Esq. and Eddy Pierre Pierre, Esq. for plaintiff
A. Marentette, Assistant U.S. Attorney for defendant
ORDER AND MEMORANDUM
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
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.
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).
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. 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.
STANDARD OF REVIEW
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)
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).
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.”).
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).
Listing 12.05C 
contends that he is disabled because his mental limitations
satisfy the requirements of Listing 12.05C. “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
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.
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.
Treating Psychiatrist's Opinion
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).
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. §
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.
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).
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.
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.
The ALJ also appeared to be referring to the following
comment by Dr. Hamberg: “Though [Davis's] FSIQ
score is in the ...