United States District Court, S.D. West Virginia, Huntington Division
January 6, 2017
SCOTT ANTHONY MILLER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
A. Eifert United States Magistrate Judge
an action seeking review of the decision of the Commissioner
of the Social Security Administration (hereinafter the
“Commissioner”) denying Plaintiff's
application for disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. The
case is presently before the court on the parties'
motions for judgment on the pleadings as articulated in their
briefs. (ECF Nos. 11, 12). Both parties have consented in
writing to a decision by the United States Magistrate Judge.
(ECF Nos. 7, 8). The court has fully considered the evidence
and the arguments of counsel. For the reasons that follow,
the court FINDS that the decision of the Commissioner is not
supported by substantial evidence, and therefore should be
REVERSED and REMANDED, pursuant to sentence four of 42 U.S.C.
§ 405(g), for further proceedings consistent with this
2012, Plaintiff Scott Anthony Miller (“Claimant”)
completed applications for DIB and SSI alleging a disability
onset date of July 1, 2010 due to “Problems with back,
neck and shoulders, learning disability.” (Tr. at 188,
212). The Social Security Administration (“SSA”)
denied the applications initially and upon reconsideration.
(Tr. at 101-10, 114-27). Claimant filed a request for a
hearing, which was held on April 7, 2014 before the Honorable
Toby J. Buel, Sr., Administrative Law Judge
(“ALJ”). (Tr. at 27-71). By written decision
dated May 13, 2014, the ALJ determined that Claimant was not
entitled to benefits. (Tr. at 11-21). The ALJ's decision
became the final decision of the Commissioner on October 9,
2015 when the Appeals Council denied Claimant's request
for review. (Tr. at 1-6).
November 24, 2015, Claimant filed the present civil action
seeking judicial review of the administrative decision
pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The
Commissioner filed an Answer and a Transcript of the
Proceedings on January 27, 2016. (ECF Nos. 9, 10).
Thereafter, the parties filed their briefs in support of
judgment on the pleadings. (ECF Nos. 11, 12). The time period
for the filing of a reply has expired. Accordingly, this
matter is fully briefed and ready for disposition.
was 38 years old at the time of his alleged onset of
disability and 43 years old at the time of the ALJ's
decision. (Tr. at 20, 188). He completed the 12th grade in
special education classes and communicates in English. (Tr.
at 33, 212, 321). Claimant previously worked as a golf course
landscaper. (Tr. at 34-35, 213).
Summary of ALJ's Findings
42 U.S.C. § 423(d)(5), a claimant seeking disability
benefits has the burden of proving a disability. See
Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.
1972). A disability is defined as 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.” 42 U.S.C. § 423(d)(1)(A).
Social Security Regulations establish a five step sequential
evaluation process for the adjudication of disability claims.
If an individual is found “not disabled” at any
step of the process, further inquiry is unnecessary and
benefits are denied. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). First, the ALJ determines whether a claimant
is currently engaged in substantial gainful employment.
Id. §§ 404.1520(b), 416.920(b). Second, if
the claimant is not gainfully employed, then the inquiry is
whether the claimant suffers from a severe impairment.
Id. §§ 404.1520(c), 416.920(c). Third, if
the claimant suffers from a severe impairment, the ALJ
determines whether this impairment meets or equals any of the
impairments listed in Appendix 1 to Subpart P of the
Administrative Regulations No. 4 (the “Listing”).
Id. §§ 404.1520(d), 416.920(d). If the
impairment does meet or equal a listed impairment, then the
claimant is found disabled and awarded benefits.
if the impairment does not meet or equal a listed impairment,
the adjudicator must determine the claimant's residual
functional capacity (“RFC”), which is the measure
of the claimant's ability to engage in substantial
gainful activity despite the limitations of his or her
impairments. Id. §§ 404.1520(e),
416.920(e). In the fourth step, the ALJ ascertains whether
the claimant's impairments prevent the performance of
past relevant work. Id. §§ 404.1520(f),
416.920(f). If the impairments do prevent the performance of
past relevant work, then the claimant has established a
prima facie case of disability and the burden shifts
to the Commissioner to prove the final step. McLain v.
Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). Under
the fifth and final inquiry, the Commissioner must
demonstrate that the claimant is able to perform other forms
of substantial gainful activity, while taking into account
the claimant's remaining physical and mental capacities,
age, education, and prior work experiences. 20 C.F.R.
§§ 404.1520(g), 416.920(g); see also Hunter v.
Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). The
Commissioner must establish two things: (1) that the
claimant, considering his or her age, education, skills, work
experience, and physical shortcomings has the capacity to
perform an alternative job, and (2) that this specific job
exists in significant numbers in the national economy.
McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir.
claimant alleges a mental impairment, the ALJ “must
follow a special technique” to assess disability. 20
C.F.R. §§ 404.1520a, 416.920a. First, the ALJ
evaluates the claimant's pertinent signs, symptoms, and
laboratory results to determine whether the claimant has a
medically determinable mental impairment. Id.
§§ 404.1520a(b), 416.920a(b). If such impairment
exists, the ALJ documents the findings. Second, the ALJ rates
and documents the degree of functional limitation resulting
from the impairment according to criteria specified in the
regulations. Id. §§ 404.1520a(c),
416.920a(c). Third, after rating the degree of functional
limitation from the claimant's impairment(s), the ALJ
determines the severity of the limitation. Id.
§§ 404.1520a(d), 416.920a(d). A rating of
“none” or “mild” in the first three
functional areas (activities of daily living, social
functioning, and concentration, persistence or pace) and
“none” in the fourth (episodes of decompensation)
will result in a finding that the impairment is not severe
unless the evidence indicates that there is more than minimal
limitation in the claimant's ability to do basic work
activities. Id. §§ 404.1520a(d)(1),
416.920a(d)(1). Fourth, if the claimant's impairment is
deemed severe, the ALJ compares the medical findings about
the severe impairment and the degree of functional limitation
against the criteria of the appropriate listed mental
disorder to determine if the severe impairment meets or is
equal to a listed mental disorder. Id. §§
404.1520a(d)(2), 416.920a(d)(2). Finally, if the ALJ finds
that the claimant has a severe mental impairment that neither
meets nor equals a listed mental disorder, then the ALJ
assesses the claimant's residual functional capacity. 20
C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3).
case, the ALJ determined as a preliminary matter that
Claimant met the insured status requirements of the Social
Security Act through December 31, 2015. (Tr. at 13, Finding
No. 1). The ALJ acknowledged that Claimant satisfied the
first inquiry because he had not engaged in substantial
gainful activity since July 1, 2010, the alleged disability
onset date. (Id., Finding No. 2). Under the second
inquiry, the ALJ found that Claimant suffered from severe
impairments of sprains/strains, all types, and borderline
intellectual functioning. (Tr. at 13-14, Finding No. 3).
Under the third inquiry, the ALJ concluded that
Claimant's impairments, either individually or in
combination, did not meet or medically equal any of the
listed impairments. (Tr. at 14-15, Finding No. 4). Therefore,
the ALJ determined that Claimant had the RFC to:
[P]erform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except he is limited to lifting and/or carrying 20
pounds occasionally and ten pounds frequently; standing
and/or walking six hours out of an eight-hour workday;
sitting six hours out of an eight-hour workday; and
pushing/pulling to the weight limitations noted herein
(Exhibit 5A). He should only lift with the right shoulder on
an occasional basis. He should avoid concentrated exposure to
extreme cold or heat, and hazards (moving machinery,
unprotected heights, etc.). He can maintain concentration and
attention for two-hours at a time.
(Tr. at 16-19, Finding No. 5). At the fourth step of the
analysis, the ALJ determined that Claimant was unable to
perform any past relevant work. (Tr. at 20, Finding No. 6).
Consequently, the ALJ considered Claimant's past work
experience, age, and education in combination with his RFC to
determine if he would be able to engage in substantial
gainful activity. (Tr. at 20-21, Finding Nos. 7-10). The ALJ
considered that (1) Claimant was born in 1971 and was defined
as a younger individual on the alleged disability onset date;
(2) he had at least a high school education and could
communicate in English; and (3) transferability of job skills
was not material to the ALJ's disability determination
because Claimant's past relevant work was unskilled. (Tr.
at 20, Finding Nos. 7-9). Taking into account all of these
factors, and Claimant's RFC, and relying upon the opinion
testimony of a vocational expert (“VE”), the ALJ
determined that Claimant could perform jobs that existed in
significant numbers in the national economy. (Tr. at 20-21,
Finding No. 10). At the light level, he could work as an
edging machine feeder, bakery racker, or rover; and at the
sedentary level, Claimant could work as a grader/sorter,
bench worker, and motor polarizer. (Tr. at 20-21). Therefore,
the ALJ concluded that Claimant was not disabled as defined
in the Social Security Act from July 1, 2010 through the date
of the decision. (Tr. at 21, Finding No. 11).
Claimant's Challenge to the Commissioner's
presents several challenges to the Commissioner's
decision. First, Claimant argues that the ALJ erred in
finding that Claimant did not meet Listing 12.05C without
first obtaining an additional psychological evaluation to
resolve his inconsistent IQ scores. (ECF No. 11 at 5-6).
Second, Claimant alleges that the ALJ erred in disregarding
the VE's testimony that Claimant was incapable of
substantial gainful activity if his impairments required him
to take at least one extra break during the workday.
(Id. at 6-7). Finally, Claimant argues that the ALJ
improperly disregarded the consultative examiner's
finding that he had markedly deficient persistence, as well
as the VE's testimony that he would be incapable of
substantial gainful activity if he had markedly deficient
persistence. (Id. at 7).
response to Claimant's arguments, the Commissioner states
that Claimant has not proven that he is disabled under the
Act, has not produced evidence that he meets or equals the
requirements of Listing 12.05C, and has not demonstrated that
he needed an additional break during the workday. (ECF No. 12
Relevant Medical Records
court has reviewed the transcript of proceedings in its
entirety, including the treatment records and evaluations in
evidence, and confines the following summary to those entries
most relevant to the issues in dispute.
March 28, 1979, Claimant was referred for a psychological
evaluation based on the observations of his first grade
teacher that Claimant could only work on a one-to-one basis
and had “no memory for numbers or letters.” (Tr.
at 315-16). He was described as restless and unable to attend
to the task at hand; his class work was described as
“terrible with many errors when left to work
independently.” (Tr. at 315). Claimant was administered
several tests by psychologist Diane C. Mufson, M.A.,
Department of Psychological Services, Cabell County Public
Schools, and the results were confirmed by licensed
counseling psychologist Michael J. Hughes, Ed.D. (Tr. at
315-16). On the Wechsler Intelligence Scale for
Children-Revised (“WISC-R”), Claimant's full
scale IQ score was 74, verbal IQ score was 75, and
performance IQ score was 77. (Tr. at 315). These results
placed him at the borderline of the Department of Mental
Retardation's (“DMR”) lowest end of average
ability ranges. Id. Claimant's results on the
Bender Gestalt test, which measured perceptual ability,
revealed that Claimant performed approximately two years
below his age. (Id.). On the Wide Range Achievement
Test (“WRAT”), which measured academic skills,
Claimant received reading scores of kindergarten .7, spelling
1.o, and arithmetic 1.2, which indicated that he was at a
grade equivalence less than his actual placement, with the
greatest discrepancy in the area of reading. (Tr. at 316).
The results of the evaluation indicated a need for additional
learning disorder screening and educational evaluation, as
well as consideration of DMR placement unless the learning
disorder screening revealed specific areas that could best be
remedied in a learning disorder classroom. (Id.).
still in the Cabell County School System, Claimant was
re-evaluated on December 11, 1985 for the purpose of
compliance with Public Law 94-142. (Tr. at 317-18). Claimant
scored within the educable mentally impaired range of
intellectual ability on the WISC-R. (Tr. at 319). The
Bender-Gestalt results suggested a level of visual motor
coordination commensurate with Claimant's overall
intellectual ability. (Id.). Claimant scored a
verbal IQ of 67, performance IQ of 77 and an overall full
scale IQ of 70. (Tr. at 320). The administering psychologist
found that Claimant easily interacted with him and was
personable. (Tr. at 321). Claimant's performance
abilities were found to be better developed than his verbal
abilities, albeit not significantly. (Id.). Tests
results also indicated that Claimant had a history of
behavioral problems at school. (Id.). Based on the
results and available information, behavior management
strategies were recommended, along with continued instruction
in the program for educable mentally impaired students.
was re-evaluated again on November 18, 1988 by Kenneth R.
Mobley, M.A., and Psychologist William Given, West Virginia
Division of Rehabilitation Services, for the purpose of
determining his eligibility for rehabilitation services and
vocational counseling. (Tr. at 312-14). He was 16.9 years old
and in the 11th grade. (Tr. at 312). On the Wechsler Adult
Intelligence Scale-Revised (“WAIS-R”), Claimant
scored a verbal IQ of 73, a performance IQ of 76 and a full
scale IQ of 74. (Tr. at 312). These scores placed Claimant in
the borderline range of intellectual functioning. (Tr. at
313). The WRAT-R test used to evaluate academic skills
revealed that Claimant's reading recognition and reading
comprehension fell far below average. (Id.). The
examiners felt the test results were an adequate
representation of Claimant's level of functioning. (Tr.
time of this evaluation, Claimant was enrolled in the
building and maintenance curriculum at the Cabell County
Vocational Technical Center. Claimant informed the examiners
that he did not like the curriculum; however, it was
determined that training options for Claimant were limited
due to his low level of ability and impaired academic skills.
(Tr. at 314). The examiners opined that Claimant would be
best suited to programs that involved oral instructions and
direct hands-on experience; however, once Claimant learned
basic job skills, he would most likely require very little
supervision on the job site. (Id.).
years later, on October 17, 2012, Claimant underwent
psychological testing as an adult in connection with his
present applications for Social Security benefits. (Tr. at
281-85). Lisa Tate, M.A., completed a Mental Status
Examination and observed that although Claimant demonstrated
some articulation errors, his speech production was easy to
understand. (Tr. at 281). Claimant reported that he graduated
from high school in 1990, but stated that he had a lifelong
learning disability and was enrolled in special education
classes. (Tr. at 282). He stated that he repeated the fifth
grade, but was then promoted directly to the seventh grade.
(Id.). He also stated that he required assistance in
reading his mail and that his wife managed the household
examination, Claimant was oriented to person, place, time,
and date. (Tr. at 283). His thought processes and content
were within normal limits, his insight was fair, but his
judgment was markedly deficient based upon his response to
the “finding the letter” question.
(Id.). Claimant's immediate and remote memory
were within normal limits; however, his recent memory was
deemed mildly deficient as he could only recall two out of
four words after a thirty-minute lapse. (Id.).
Claimant's concentration and psychomotor behavior were
Tate administered the WAIS-IV test, which revealed a full
scale IQ of 51; however, Ms. Tate opined that the results
were invalid due to Claimant's apparent disinterest in
testing, his tendency to give up easily on tasks, his slow
work pace, his need for constant encouragement, and the lack
of satisfactory rapport between Claimant and the tester. (Tr.
at 284). On the WRAT-4 test, Claimant received a score of 56
in reading and 55 for spelling and math. (Id.).
These scores were likewise deemed invalid for the same
described that he spent a typical day sitting and watching
television. (Id.). He showered and washed dishes
once a week and grocery shopped once a month. His only
reported hobby was watching football games on television.
(Id.). Ms. Tate found Claimant's social
functioning to be mildly deficient based upon his interaction
with staff during the evaluation. (Tr. at 285).
Claimant's concentration and pace were within normal
limits; however, his persistence was markedly deficient based
on clinical observation. (Id.). Due to the invalid
IQ scores, Ms. Tate was unable to reach a diagnostic
impression. (Tr. at 284).
November 15, 2012, Jim Capage, Ph.D., completed a Case
Analysis after reviewing Ms. Tate's report. (Tr. at
75-76). Dr. Capage noted that Claimant alleged a learning
disability and reported that he could not read or write;
however, during Ms. Tate's evaluation, Claimant did not
appear to show any effort, which caused Ms. Tate to consider
his test scores invalid. (Tr. at 76). Given Claimant's
failure to cooperate in his consultative examination, Dr.
Capage found Claimant's credibility to be
“suspect.” (Id.). Ultimately, Dr. Capage
found that the evidence was insufficient to adjudicate the
claim. (Id.). The above findings were affirmed by
Timothy Saar, Ph.D., on January 14, 2013. (Tr. at 85-86). Dr.
Saar completed a Case Analysis and found no new allegations,
no new treatment, and no new sources. He reiterated that
there was insufficient evidence to adjudicate the claim.
Scope of Review
issue before this Court is whether the final decision of the
Commissioner denying Claimant's application for benefits
is supported by substantial evidence. The Fourth Circuit has
defined substantial evidence as:
evidence which a reasoning mind would accept as sufficient to
support a particular conclusion. It consists of more than a
mere scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify a refusal to
direct a verdict were the case before a jury, then there is
Blalock, 483 F.2d at 776 (quoting Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).
Additionally, the administrative law judge, not the court, is
charged with resolving conflicts in the evidence. Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). The Court
will not re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the
Commissioner. Id. Instead, the Court's duty is
limited in scope; it must adhere to its “traditional
function” and “scrutinize the record as a whole
to determine whether the conclusions reached are
rational.” Oppenheim v. Finch, 495 F.2d 396,
397 (4th Cir. 1974). Thus, the ultimate question for the
Court is not whether the Claimant is disabled, but whether
the decision of the Commissioner that the Claimant is not
disabled is well-grounded in the evidence, bearing in mind
that “[w]here conflicting evidence allows reasonable
minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the
[Commissioner].” Walker v. Bowen, 834 F.2d
635, 640 (7th Cir. 1987).
The ALJ's Analysis of Claimant's IQ Under Listing
first challenge to the Commissioner's decision, Claimant
argues that his combination of physical and mental
impairments satisfy Listing 12.05C. (ECF No. 11 at 5).
Claimant contends that substantial evidence before the ALJ
supported a step three finding in his favor; therefore,
contradictory evidence in the record should have been more
thoroughly considered and reconciled by the ALJ.
Specifically, Claimant asserts that the ALJ should have
ordered an additional psychological examination to resolve
inconsistencies in his IQ scores; particularly, as the ALJ
made his step three determination based largely upon those
scores. (Id. at 6).
claimant should be found disabled at the third step of the
sequential evaluation process when his or her impairments
meet or medically equal an impairment included in the
Listing. The Listing describes “for each of the major
body systems, impairments which are considered severe enough
to prevent a person from doing any gainful activity.”
See 20 C.F.R. § 404.1525. The Listing is
intended to identify those individuals whose mental or
physical impairments are so severe that they would likely be
found disabled regardless of their vocational background;
consequently, the criteria defining the listed impairments is
set at a higher level of severity than that required to meet
the statutory definition of disability. Sullivan v.
Zebley, 493 U.S. 521, 532, 110 S.Ct. 885, 107 L.Ed.2d
967 (1990). Because disability is presumed with a listed
impairment, “[f]or a claimant to show that his
impairment matches a [listed impairment], it must meet all of
the specified medical criteria.” Id. at 530.
The claimant bears the burden of production and proof at this
step of the disability determination process. Grant v.
Schweiker, 699 F.2d 189, 191 (4th Cir. 1983).
12.00 of the Listing pertains to mental disorders, which are
arranged in nine diagnostic categories, including listing
12.05 for intellectual disability (formerly mental
retardation). 20 C.F.R. Pt. 404, Subpt. P, App'x 1 §
12.00. According to the regulations:
The structure of the listing for intellectual disability
(12.05) is different from that of the other mental disorders
listings. Listing 12.05 contains an introductory paragraph
with the diagnostic description for mental retardation. It
also contains four sets of criteria (paragraphs A through D).
If [a claimant's] impairment satisfies the diagnostic
description in the introductory paragraph and any one of the
four sets of criteria, [the SSA] will find that [the]
impairment meets the listing.
Id. Thus, to qualify for disability under listing
12.05C, Claimant must establish that he has an intellectual
impairment that satisfies both the diagnostic description and
the severity criteria outlined in paragraph C. The diagnostic
description of intellectual disability, sometimes called the
first prong of the listing, is “significantly
subaverage general intellectual functioning with deficits in
adaptive functioning initially manifested during the
developmental period, i.e., the evidence demonstrates or
supports onset of the impairment before age 22.” 20
C.F.R. Part 404, Subpart P, App'x 1 § 12.05. The
severity criteria contained in paragraph C, which constitutes
the second prong of the listing, is: “A valid verbal,
performance, or full scale IQ of 60 through 70 and a physical
or other mental impairment imposing an additional and
significant work-related limitation of function.”
Id. at § 12.05C.
introduction to Section 12.00, the SSA explains that
“[s]tandardized intelligence test results are essential
to the adjudication of all cases of intellectual disability
that are not covered under the provisions of 12.05A.”
20 C.F.R. Part 404, Subpart P, App'x 1 § 12.00.
However, “since the results of intelligence tests are
only part of the overall assessment, the narrative report
that accompanies the test results should comment on whether
the IQ scores are considered valid and consistent with the
developmental history and the degree of functional
limitation.” Id. Furthermore, when
“considering the validity of a test result, [the ALJ]
should note and resolve any discrepancies between formal test
results and the individual's customary behavior and daily
activities.” Id. In general, the results
obtained by a licensed psychologist following administration
of accepted intelligence tests are entitled to considerable
weight in Social Security cases, but the ALJ is not required
to accept such scores. See Clark v. Apfel, 141 F.3d
1253, 1255 (8th Cir. 1998); see also Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v.
Bowen, 829 F.2d 514, 517 (4th Cir. 1988); Foster v.
Heckler, 780 F.2d 1125, 1130 (4th Cir. 1986). The ALJ
may reject IQ scores if they are inconsistent with other
substantial evidence in the record, such as conflicting
professional opinions, or other evidence indicating that the
claimant historically achieved higher scores or has more
advanced functional capacities than would be expected from
someone with a below-average IQ. Clark, 141 F.3d at
1255; see also Hancock v. Astrue, 667 F.3d 470, 474
(4th Cir. 2012) (“[A]n ALJ has the discretion to assess
the validity of an IQ test result and is not required to
accept it even if it is the only such result in the
record.”). Indeed, IQ test results must be examined
“to assure consistency with daily activities and
behavior.” Popp v. Heckler, 779 F.2d 1497,
1499 (11th Cir. 1986). The question is “whether the
decision to disregard the scores as unreliable is supported
by substantial evidence from the record as a whole.”
Pogue v. Astrue, 692 F.Supp.2d. 1088 (E.D. Mo.
the ALJ considered the severity of Claimant's
intellectual impairment at steps two and three of the
sequential evaluation. The ALJ referenced the psychological
testing administered to Claimant in 1988 when he was 16.9
years old and in the 11th grade. (Tr. at 13). The test
results confirmed that Claimant was functioning in the
borderline intellectual range, with a verbal IQ score of 73,
a performance IQ score of 76, and a full scale IQ score of
74. (Tr. at 313). The ALJ noted that the results of the 1988
testing were consistent with a prior IQ test performed in
1979, which reflected a verbal IQ score of 75, a performance
IQ score of 77, and a full scale IQ score of 74. (Tr. at 13,
315). The ALJ acknowledged that the IQ scores from
Claimant's October 2012 testing administered by
consultative examiner, Lisa Tate, were markedly lower than
Claimant's previous scores, but emphasized that Ms. Tate
rejected the results as invalid. (Tr. at 13). Consequently,
the ALJ found at step two that, notwithstanding
Claimant's 2012 scores, he was functioning “at
least in the borderline range.” (Tr. at 13-14).
three of the process, the ALJ compared the evidence regarding
Claimant's intellectual functioning with the criteria of
Listing 12.05 and explained why Claimant did not meet the
severity criteria outlined in any of the four paragraphs of
the listing. Specifically, with respect to paragraph C, the
ALJ stated that Claimant did not have “a valid verbal,
performance, or full scale IQ of 60 through 70 and a physical
or mental impairment imposing an additional and significant
work-related limitation of function.” (Tr. at 14). The
ALJ again cited to Claimant's psychological testing from
1988, indicating that the IQ scores obtained at that time
were considered valid “although limited by his low
levels of ability and impaired academic skills.” (Tr.
at 15). The ALJ once again rejected the lower scores returned
in 2012, reiterating that although the scores were 65 and
below, Ms. Tate found the results to be invalid based on a
number of factors, including Claimant's disinterest in
testing, his slow pace and tendency to give up easily, and
the lack of a satisfactory rapport between Claimant and his
tester. (Tr. at 14).
reviewed the evidence and the ALJ's discussion, the
undersigned finds no error in the ALJ's step three
assessment of Claimant's intellectual functioning. As
shown above, the ALJ acknowledged the inconsistency in
Claimant's IQ scores, reconciled the differences, and
clearly articulated his rationale for rejecting the lower
scores. Moreover, the ALJ's determination that Claimant
could not satisfy the second prong of Listing 12.05C is
supported by substantial evidence.
occasions, Claimant had IQ scores that were 70 or below.
First, in 1985, when Claimant was approximately fourteen
years old, his verbal IQ score was 67, his performance IQ
score was 77, and his full scale IQ was 70. (Tr. at 320).
Second, in October 2012, he received scores ranging from 50
to 65 on the five scales of the WAIS-IV. (Tr. at 283).
However, neither set of scores was valid under the Listing.
With respect to the 1985 scores, Claimant's young age
made the scores reliable for only a limited period of time.
As stated in the regulations, IQ testing results tend to
stabilize by the age of 16; consequently, test results that
measure 40 or above and are obtained before the age of 16
(between ages 7 and 16) are valid indicators of an
individual's intellectual functioning for only two years.
20 C.F.R. pt 404, subpt. P, App. 1, § 112.00(D)(10).
Therefore, Claimant's 1985 results were only valid
through 1987. In 1988, after Claimant had turned 16 years of
age, he was retested, and this time all of his scores were
above 70. Moreover, these scores were consistent with
Claimant's earlier testing in 1979, casting doubt on the
reliability of the 1985 scores.
it was appropriate for the ALJ to reject the 2012 scores. Not
only were the scores deemed invalid by the psychologist who
administered the test, but the results were entirely
inconsistent with Claimant's 1988 scores and the level of
functioning displayed by Claimant. As stated by the Fourth
Circuit, “the Secretary's regulation
‘expressly define[s] mental retardation as denoting
‘a lifelong condition.'” Branham v.
Heckler, 775 F.2d 1271, 1274 (4th Cir. 1985). Therefore,
“in the absence of any evidence of a change in a
claimant's intelligence functioning, it must be assumed
that the claimant's IQ had remained relatively
constant.” Luckey v. U.S. Dep't of Health &
Human Servs., 890 F.2d 666, 668 (4th Cir. 1989) (citing
Branham, 775 F.2d at 1274). There was no evidence
that Claimant suffered trauma, illness, or any other event
that would explain a precipitous drop in his intellectual
functioning from the level measured at age 16.9. Therefore,
the ALJ appropriately rejected Claimant's 2012 IQ scores.
(Tr. at 13-14).
it was proper for the ALJ not to order a second consultative
examination given that the record contained valid IQ scores
that were obtained after Claimant's sixteenth birthday.
Claimant's 1988 scores were all above 70 and were found
by the ALJ to be consistent with other evidence regarding
Claimant's educational background, past work history,
daily activities, and level of functioning. (Tr. at 19,
312-14). In addition, the psychologists from the West
Virginia Division of Rehabilitation, who were evaluating
Claimant's need for services and vocational counseling,
concluded that Claimant's intellectual functioning was at
the borderline range. They added that despite having academic
skills “significantly below his level of ability,
” Claimant was capable of learning basic job duties
and, after learning them, would require little supervision on
the job site. (Tr. at 314).
the ALJ relied on valid IQ scores in accordance with the
applicable regulations when he determined that Claimant's
IQ did not fall between 60 and 70 as required by Listing
12.05C. Consequently, there was no compelling reason for the
ALJ to order a second consultative examination. See
Pollard v. Comm'r of Soc. Sec., No. 1:10-CV-714,
2012 WL 95426, at *5 (S.D. Ohio Jan. 12, 2012) (“In
this case, there existed substantial evidence in the record
to determine that Plaintiff did not meet the threshold
diagnosis of mental retardation and therefore could not
satisfy the criteria of Listings 12.05(B) or 12.05(C). As
detailed above, the record does not contain any opinion
evidence suggesting that Plaintiff suffers from mental
retardation nor does it contain evidence of significantly
subaverage intellectual functioning. Accordingly, the ALJ was
under no duty to order additional intelligence
testing.”) (citing Hayes v. Comm'r of Soc.
Sec., 357 F.App'x 672, 675 (6th Cir. 2009)). In sum,
the court finds that the ALJ clearly articulated his analysis
of Claimant's IQ scores and properly concluded that
Claimant's intellectual impairment did not meet Listing
The ALJ's Analysis of Claimant's Persistence and
second and third challenges to the Commissioner's
decision involve the ALJ's decision to disregard
testimony by the VE that Claimant would be incapable of
maintaining substantial gainful employment if he required an
extra break during the work day, or had markedly deficient
persistence. (ECF No. 11 at 6-7). Claimant points to findings
made by Ms. Tate during the consultative examination
establishing Claimant's markedly deficient judgment and
persistence. In light of these findings, Claimant argues that
“it is reasonable to assume that [he] would need at
least one (1) extra break, and probably more, during the
workday.” (Id. at 7).
written decision, the ALJ found that Claimant had moderate
difficulty with concentration, persistence, or pace. (Tr. at
15). To explain this finding, the ALJ noted that Claimant
“enjoys watching football on television, a 60-minute
program, and keeps track of the game off and on” and
also “watches television throughout the day, whatever
is on at the time.” (Id.). In assessing
Claimant's RFC, the ALJ again referenced that Claimant
“could sit and watch a football game that runs 60
minutes or longer.” (Id. at 16). Therefore,
the ALJ determined that Claimant could maintain concentration
and attention for two hours at a time. (Id. at 19).
questioning the VE, the ALJ described a hypothetical
individual that was able to “maintain attention and
concentration for two hour increments.” (Tr. at 68).
Assuming that level of attention and concentration, the VE
testified that the hypothetical individual could perform work
found in significant numbers in the national economy.
(Id. at 68-69). The VE's opinion changed to the
negative, however, if the individual also required an extra
break during the work day. (Id. at 69). In addition,
when Claimant's attorney asked the VE to assume that the
hypothetical individual was “markedly deficient in
their [sic] persistence skills, ” the VE
testified that the hypothetical individual would not be able
to work. (Tr. at 70). Accordingly, when evaluating the
ALJ's decision, key considerations include (1) whether
the ALJ's finding of a moderate, rather than marked,
deficit in persistence is supported by substantial evidence
and (2) whether the limitation in concentration and attention
contained in the RFC finding adequately accounts for
Claimant's reduced persistence.
the ALJ provided some rationale for his finding that Claimant
had only a moderate limitation in persistence, the
explanation given-that Claimant watched television throughout
the day and kept track of football games “off and
on” that lasted 60 minutes or longer-is so lacking in
analysis that it is perplexing. Moreover, Claimant's
ability to watch a 60-minute television program does not
provide a clear nexus to the ALJ's determination that
Claimant could maintain concentration and attention for two
hours at a time. See, e.g., Burrow v. Colvin, No.
1:15CV163, 2016 WL 1258840, at *5 (M.D. N.C. Mar. 28, 2016)
(“There should be “a logical bridge[ ] between
the ALJ's conclusion that Plaintiff suffered moderate
concentration deficits” and the limitations in the
RFC.”) (citations omitted). Indeed, even assuming that
Claimant paid attention to the television “off and
on” and for 60-minute programs, the ALJ never explained
how that ability translated into the capacity to maintain
concentration and attention, uninterrupted, for
two-hour increments. Thus, the ALJ's
observations regarding Claimant's ability to watch
television do not clearly reconcile with or provide
sufficient support for his finding that Claimant had
moderately deficient persistence, which could be functionally
addressed by limiting the requisite periods of concentration
and attention to two-hour increments.
and very importantly, the ALJ did not distinguish, discount,
reject, or even mention Ms. Tate's findings that Claimant
had markedly deficient judgment and persistence. (Tr. at 283,
285). Due the ALJ's lack of explanation, the court is
left to speculate whether the ALJ considered Ms. Tate's
findings, and, if the ALJ rejected them, why he did so. As
previously stated, the ALJ discussed Claimant's
“significant lack of effort” during the
consultative examination and repeatedly referenced Ms.
Tate's opinion that Claimant's intellectual
functioning test results were invalid. (Tr. at 13, 14,
18-19). However, the ALJ does not provide any discussion or
explanation for rejecting Ms. Tate's other opinions. Ms.
Tate raised doubts only about the validity of Claimant's
IQ test results, not about her other clinical observations
and findings. While the ALJ may have discounted Ms.
Tate's opinion that Claimant had markedly deficient
judgment and persistence based on Claimant's lack of
effort during testing, or for other reasons, the ALJ never
supplied a reason in his decision. As the ALJ failed to
sufficiently articulate his analysis, the court is precluded
from meaningfully reviewing whether the RFC finding and
subsequent determination regarding Claimant's ability to
work are supported by substantial evidence.
review of a final decision regarding disability benefits
under the Social Security Act, 42 U.S.C. §§ 301
et seq. (the “Act”), is limited to
determining whether the findings of the Secretary are
supported by substantial evidence and whether the correct law
was applied.” Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990). “Ultimately, it is the duty of
the administrative law judge reviewing a case, and not the
responsibility of the courts, to make findings of fact and to
resolve conflicts in the evidence. Id. The court
cannot re-weigh the evidence and provide the analysis that
the ALJ should have performed in the first instance. See
Fox v. Colvin, 632 F. App'x 750, 754 (4th Cir.
2015). Therefore, this action must be remanded to the
Commissioner for further analysis and explanation regarding
Claimant's judgment and persistence and its effect on his
ability to engage in substantial gainful activity.
careful consideration of the evidence of record, the Court
finds that the Commissioner's decision is not supported
by substantial evidence. Therefore, the Court will GRANT
Plaintiff's motion for judgment on the pleadings, to the
extent that it requests remand, (ECF No. 11); DENY
Defendant's motion for judgment on the pleadings, (ECF
No. 12); REVERSE the final decision of the Commissioner;
REMAND this matter pursuant to sentence four of 42 U.S.C.
§ 405(g) for further administrative proceedings
consistent with this opinion; and DISMISS this action from
the docket of the Court. A Judgment Order will be entered
Clerk of this Court is directed to transmit copies of this
Memorandum Opinion to counsel of record.
 At the hearing held on April 7, 2014,
the vocational expert referred to this job as a
“groover, DOT 692.686-042.” (Tr. at 69).