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Watts v. Astrue

United States District Court, Third Circuit

May 31, 2013

DORTHAAN WATTS o/b/o D.W., Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

MEMORANDUM RE: PLAINTIFF’S REQUEST FOR REVIEW

Baylson, J.

Introduction

Plaintiff D.W., a minor, seeks judicial review of a decision by the Commissioner of Social Security Administration (“the Commissioner”) denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381-83(f). After careful consideration of all the relevant facts and circumstances, and for the reasons below, D.W.’s Request for Review of the November 23, 2010 decision of the Administrative Law Judge (“ALJ”) is DENIED, and her Complaint is DISMISSED with prejudice.

II. Background

A. Procedural History

On October 9, 2008, [1] (Tr. at 176) D.W., through her grandmother and guardian, filed an application for SSI, claiming that D.W. suffers from a disability beginning on January 1, 1994, due to the severe impairments of mental retardation, depressive mood disorder, disruptive disorder, a reading disorder, a learning disorder, and asthma. (Br. at 5.) The application was denied on February 24, 2009. D.W. then filed a timely request for a hearing on April 17, 2009. On August 26, 2010, a hearing was held before ALJ Anne W. Chain at which D.W. requested a postponement to give her time to seek representation. ALJ Chain granted the postponement and rescheduled the hearing for October 26, 2010. At the October 26, 2010 hearing, D.W. was represented by an attorney and testified on her own behalf. (Tr. at 36.) D.W.’s grandmother also testified at the hearing. (Id. at 37.) On November 23, 2010, ALJ Chain denied D.W.’s application for benefits. (Id. at 13.) D.W. subsequently sought review of the decision before the Appeals Counsel. (Id. at 12.) On June 1, 2012, the Appeals Counsel denied the request for review. (Id. at 2.)

B. The ALJ’s Decision

The ALJ rejected Plaintiff’s claim that she suffers from mental retardation, finding instead that Plaintiff suffers from the severe impairment of borderline intellectual functioning. (Tr. at 19, 21-22.) The ALJ did, however, agree with Plaintiff that she suffers from the severe impairments of asthma, depressive mood disorder, disruptive disorder, a reading disorder, and a learning disorder. Nevertheless, the ALJ found that Plaintiff’s impairments neither meet any of the listings in the Social Security Administration’s (the “SSA”) Listing of Impairments found in Appendix 1to subpart P of 20 C.F.R. chapter. III, part 404 (“Appendix 1”), nor are the medical or functional equivalent of any of the listings in Appendix 1.

C. D.W.’s Grounds for Appeal

1. D.W.’s Initial Argument

Initially, D.W. raised only one issue on appeal, that the ALJ misapplied the listing for mental retardation in section 112.05 of Appendix 1. Section 112.05 states that mental retardation is “[c]characterized by significantly subaverage general intellectual functioning with deficits in adaptive functioning.” Section 112.05 also contains a list of six disjunctive criteria – referred to by letters “A” through “F, ” e.g., section 112.05A – satisfaction of any of which means that the claimant meets “[t]he required level of severity for” the mental retardation listing (the “Severity Criteria”). D.W. argued that the ALJ misapplied section 112.05D, which states that “the level of severity for [mental retardation] is met when . . . [the claimant has a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant limitation of function.” Specifically, D.W. argued that:

1. She satisfies the requirements of section 112.05D because:

a. The record contains a valid full scale IQ score of 69, and
b. The ALJ found that she suffers from the severe impairments of asthma, depressive mood disorder, disruptive disorder, a reading disorder, and a learning disorder; and
2. The ALJ erred by:
a. Improperly disregarding her full scale IQ score of 69, and
b. Using an incorrect definition of “substantial limitation of function, ” which caused the ALJ to improperly disregard her severe impairments when applying section 112.05D.

2. The Court’s Request for Additional Briefing

The Court’s review of the ALJ’s decision revealed that the ALJ had, in fact, applied section 112.05 incorrectly. The ALJ’s recitation of section 112.05 is incorrect, because the ALJ:

1. Listed only three of section 112.05’s six Severity Criteria[2];
2. Stated that the claimant must meet at least two of the Severity Criteria, while section 112.05 is clear that the criteria are disjunctive; and
3. Stated the incorrect definition for “significant limitation of function” in sections 112.05D and 112.05F.
a. The ALJ defined “significant limitation of function” as requiring that the claimant meet two of the impairment- related functional limitations for organic mental disorders, found in section 112.02B2.[3] (Tr. At 21-22.)
b. However, according to Appendix 1, “significant limitations of function” under sections 112.05D and 112.05F are caused by impairments that are severe “as defined in [20 C.F.R.] § 416.924(c).” App’x 1 § 112.00A, para. 8.

The Commissioner’s brief did not address the fact that the ALJ had improperly applied section 112.05. Instead, the Commissioner argued that D.W. cannot satisfy the two requirements for mental retardation set forth in the introductory paragraph of section 112.05 – “significantly subaverage general intellectual functioning” and “deficits in adaptive functioning” – which are independent of the six Severity Criteria in 112.05A-F. (Resp. at 8.)

However, the Court’s review of the ALJ’s decision revealed no indication that it is based on D.W.’s failure to satisfy the requirements of section 112.05’s introductory paragraph. At the same time, the ALJ’s findings of fact – which D.W. had not challenged – are apparently sufficient to conclude that D.W. cannot meet any of the six Severity Criteria as a matter of law. Accordingly, on April 30, 2012, the Court requested additional briefing from the parties to address whether the ALJ’s decision may be upheld on legal grounds it does not address.

3. The Parties’ Responses

D.W. responded on May 13, 2013, without explicitly addressing the issue of whether the Court may uphold the ALJ’s decision on legal grounds it does not address. Instead, D.W. argues that the ALJ’s findings of fact are sufficient to establish that she meets two of the six Severity Criteria, sections 112.05D and 112.05F2, [4] and that she meets the requirements in section 112.05’s introductory paragraph.

The Commissioner responded on May 14, 2013, arguing that pursuant to Shinseki v. Sanders, 556 U.S. 396 (2009), the Court should uphold the ALJ’s decision because her incorrect application of section 112.05 amounts to harmless error. According to the Commissioner, the ALJ made no error in her findings of fact, and those findings are sufficient to establish that D.W. meets neither the requirements in section 112.05’s introductory paragraph, nor any of the six Severity Criteria.

III. Legal Standard

A. Jurisdiction

The Social Security Act provides for judicial review by this Court of any “final decision of the Commissioner of Social Security” in a disability proceeding. 42 U.S.C. §§ 405(g), 1383(c)(3). A district court may enter a judgment “affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” Id. § 405(g). When an Appeals Council denies a petitioner’s request for review, the ALJ's decision operates as the Commissioner’s final decision for the purposes of judicial review. Matthews, 239 F.3d at 592.

B. Standard of Review

On judicial review of the Commissioner’s decision, the Commissioner’s findings of fact, “if supported by substantial evidence, ” are conclusive. 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 633 (3d Cir. 2010) (quotation omitted). It is a standard requiring “less than a preponderance of the evidence but more than a mere scintilla.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (quotation omitted).

In reviewing the record for substantial evidence, however, the Court must “not weigh the evidence or substitute [its own] conclusions for those of the fact finder.” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (quotation omitted).

The Court’s review of the legal standards applied by the ALJ is plenary. See Allen v. Barnhart, 417 F.3d 396, 398 (3d Cir. 2005).

V. Discussion

As discussed above, D.W.’s appeal raises three issues:

1. Whether the ALJ’s incorrect application of section 112.05 is harmless error;
2. Whether D.W. meets the Severity Criteria in sections 112.05D and 112.05F2; and
3. Whether D.W. can satisfy the requirements of section 112.05’s introductory paragraph.

For the reasons below, the Court finds that the ALJ’s incorrect application of section 112.05 is harmless error, and that D.W. cannot meet the Severity Criteria in sections 112.05D and 112.05F2. Because these findings are sufficient to uphold the ALJ’s decision, the Court will not address whether D.W. can satisfy the requirements of section 112.05’s introductory paragraph.

A. Harmless Error

In Shinseki v. Sanders, the Supreme Court held that courts reviewing Court of Appeals for Veterans Claims decisions should rely on the “general case law governing application of the harmless-error standard” that applies to review of decisions in a civil case. 556 U.S. at 407. Although the Court is aware of no Third Circuit case holding that Sanders should be applied to decisions regarding applications for Social Security benefits, a number of district courts in the Third Circuit have done so. E.g., Urena v. Astrue, Civil Action No. 11-6746, 2013 WL 1737854, at *2 (D.N.J. Apr. 22, 2013); Briggs v. Astrue, Civil Action No. 12-957, 2013 WL 607833, at *11 (W.D. Pa. Feb. 19 2013); Simpson v. Astrue, Civil Action No. 10-2874, 2011 WL 1883124 at *5 (E.D. Pa. May 17, 2011) (Baylson, J.). Contra Sojourner v. Astrue, Civil Action No. 09-5662, 2010 WL 4008558, at *3 (Robreno, J.) (stating that Sanders is limited to cases involving the Court of Appeals for Veteran Claims).[5]

In the civil context, it is axiomatic that “the mere fact that the [lower court] erred in [its] legal reasoning does not mean that [the appellate court] should reverse the result” – the “‘appellate court may affirm a result reached by the [lower court] on different reasons, as long as the record supports the judgement.’” In re Oakwood Homes Corp., 449 F.3d 588, 615 n.31 (3d Cir. 2006) (quoting Brumfield v. Sanders, 232 F.3d 376, 379 n.2 (3d Cir. 2000), and citing Helvering v. Gowran, 302 U.S. 238, 245 (1937) (“In the review of judicial proceedings the rule is settled that, if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.”)).

The Court recognizes that upholding an ALJ’s decision on a ground it did not address is in apparent tension with the well-established “teaching of SEC v. Chenery Corporation, 318 U.S. 80 (1943), that ‘[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.’” Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001) (alteration in original). However, Chenery did not create a rule that courts are confined to the legal reasoning the agency used – at least where the courts’ review of legal issues is plenary, which is the case in the Social Security context. As the Third Circuit explained in RNS Services, Inc. v. Secretary of Labor, Mine Safety and Health Administration, Chenery, was concerned with courts intruding “‘in situations where ‘an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made.’” RNS Services, 115 F.3d 182, 184 n.1 (3d Cir. 1997) (emphasis added) (quoting Chenery, 318 U.S. at 88).[6] Thus, RNS Services upheld an agency’s determination for a legal reason upon which the agency had not explicitly relied, in part, because “no factual or other determination that Congress sought to ‘exclusively entrust’ to the [agency was] being intruded upon by the court[].” Id.

Therefore, the Court concludes that it may uphold the ALJ’s decision in this case on any legal ground that is supported by the ALJ’s proper factual determinations – i.e., the ALJ’s improper application of section 112.05 is harmless error so long as her findings of fact are sufficient to uphold her denial of benefits to D.W. on any legal basis.

B.The ALJ’s Error Was Harmless.

As noted above, D.W. argues that she meets the requirements for the listing of mental retardation in section 112.05 of Appendix 1, and, in particular, that she meets the Severity Criteria in sections 112.05D and 112.05F2. Although the ALJ incorrectly applied section 112.05, the Court finds that the ALJ’s error was harmless because her findings of fact are sufficient for the Court to determine that D.W. does not satisfy either criterion.

1. Section 112.05D

As noted above, section 112.05D requires “[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant limitation of function.” (emphasis added). D.W. argues that she has either a valid full scale IQ score of 69 or a valid verbal IQ score of 70, and that the ALJ never questioned their validity. (Pl.’s Suppl. at 2-3.) The Court disagrees: the ALJ determined that Plaintiff’s IQ scores are not valid, and this determination is supported by substantial evidence.[7] Therefore, Plaintiff cannot meet the requirements of section 112.05D.

The ALJ rejected the validity of Plaintiff’s IQ scores when the ALJ determined at step two that Plaintiff suffers from the severe impairment of borderline intellectual functioning. (Tr. at 19-21.) According to the DSM-IV, borderline intellectual functioning is defined as having IQ scores between 71 and 84, and, therefore, the ALJ’s finding that Plaintiff suffers from borderline intellectual functioning was a rejection of the validity of Plaintiff’s IQ scores, which are below 71. See Shaw v. Astrue, Civil Action No. 11-139J, 2012 WL 4372521, at *5 (W.D. Pa. Sept. 24, 2012) (doctor’s diagnosis of borderline intellectual functioning, and not mental retardation, “despite . . . IQ scores of 69” suggested that doctor “did not believe that plaintiff [was] mentally retarded” (citing Manigault v. Astrue, 2009 WL 1181253, at *9 (W.D. Pa. 2009), for the proposition that a “psychologist who diagnosed claimant with borderline intellectual functioning rather than mild mental retardation, despite IQ scores in the 61-70 range, implicitly found [those] scores to be invalid”)); Technical Revisions to Medical Criteria for Determinations of Disability, 67 Fed. Reg. 20, 018, 20, 022 (Apr. 24, 2002) (“[t]he definition of [mental retardation] . . . use[d] in [SSA] listings is consistent with, if not identical to, the definitions of [mental retardation] used by the leading professional organizations. . . . all the definitions require significant deficits in intellectual functioning, as evidenced by IQ scores of approximately 70 or below” (emphasis added)).

The ALJ rejected the validity of D.W.’s IQ scores because D.W.’s 2010 psychoeducational evaluation, [8] a comprehensive assessment of her cognitive abilities that the ALJ discussed at length, indicated that D.W. showed “variability” in her performance i.e., that she performed average on some tests, but below average on others. (Tr. at 19-20.) Due to this variability, the psychoeducational evaluation team concluded that “overall cognitive scores are not believed to accurately represent [D.W.’s] abilities.” (Tr. at 257.) The ALJ also specifically noted the evaluation’s conclusion that D.W.’s “difficulties with motivation and inattention appear to contribute to the difficulties she has” with learning, though “emotional and behavioral issues do not appear to be the primary factors affecting her learning.” (Tr. at 20, 257.)

Further supporting the ALJ’s rejection of D.W.’s IQ scores is the fact that the psychoeducational evaluation contains a diagnosis of “Specific Learning Disability” – i.e., D.W. was not diagnosed as mentally retarded – as well as the ALJ’s findings that:

1. The results of the psychoeducational evaluation were consistent with other information in the record, including reports for teachers and other evaluations of Plaintiff by her school district; and
2. Lori Hart, Ph.D., who evaluated Plaintiff in February 2009 for the Pennsylvania Bureau of Disability Determination, diagnosed Plaintiff with borderline intellectual functioning.

(Tr. 20, 256.)

The ALJ’s decision does note that the Warren E. Smith Mental Health Center (“WES”) diagnosed Plaintiff with mental retardation of unspecified severity in May 2009. However, the ALJ apparently discounted the WES diagnosis because after her initial evaluation, D.W. failed to meet with WES’s therapist and psychologist on a regular basis. (Tr. 21.)

Accordingly, the record contains substantial evidence to support the ALJ’s finding that D.W.’s IQ scores are not valid. Cacere v. Comm’r of Soc. Sec., 189 F. App’x 59, 62-63 (3d Cir. 2006) (ALJ properly discredited IQ scores where they were “at variance with the remainder of the evidence, ” and the administrator of the test stated that due to “social and cultural factors, ” the scores may not have provided an accurate “indication of claimant’s true intellectual abilities”); see also Brown v. Comm’r of Soc. Sec., Civil Action No. 08-1265, 2009 WL 3087220, at *12 (W.D. Pa. Sept. 23, 2009) (“While the ALJ may reject an IQ score, he is required to review all of the pertinent evidence of record and explain his ‘conciliations or rejections, ’” and the ALJ “‘cannot reject IQ scores based on personal observations of the claimant and speculative inferences drawn from the record.’” (quoting Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 122 (3d Cir. 2000), and Markle v. Barnhart, 324 F.3d 182, 187 (3d Cir.2003))). Therefore, D.W. cannot meet the requirements of section 112.05D.

2. Section 112.05F2.

Section 112.05F2 states that the claimant must meet the requirements of section 112.02B2a, in addition to suffering from “a physical or other mental impairment imposing an additional and significant limitation of function.” As discussed in Section II.C.2., supra, the ALJ used the criteria in section112.02B2, including section 112.02B2a, to define “substantial limitation of function.” (Tr. 21-22.) The ALJ also specifically found that Plaintiff met none of section112.02B2’s criteria. (Id, at 22.)

D.W. contends that the ALJ erred in determining that she does not satisfy section 112.02B2a, because the ALJ’s finding that she suffers from “a marked limitation in acquiring and using information” under 20 C.F.R. § 416.926a “is equivalent to establishing” that D.W. satisfies section 112.02B2a, (Pl.’s Suppl. at 4) which requires a “[m]arked impairment in age-appropriate cognitive/communicative function.” However, D.W. neither explicates nor provides authority for her contention, which the Court rejects.

D.W.’s argument has superficial rhetorical force, because assessment of “cognitive/communicative function” and “acquiring and using information” would appear to embrace similar considerations. However, even cursory review of the SSA’s guidance on the meaning of these terms leads to the inevitable conclusion that D.W.’s argument is unavailing.

According to section 112.00C of Appendix 1, “[t]he use of standardized tests is the preferred method of documentation” of the severity of a claimant’s impairment. In particular, “[c]ognitive/communicative function . . . can be measured by standardized tests of intelligence . . . . A primary criterion for limited cognitive function is a valid verbal, performance, or full scale IQ of 70 or less. . . . the capacity to function in the school setting is supplemental information.” Id. § 112.00C2a, 3, 4 (emphasis added).

20 C.F.R. § 416.926a(g)(1) describes “acquiring and using information” as consisting of learning – “explor[ing] the world through sight, sound, taste, touch, and smell. . . . acquir[ing] concepts and learn[ing] that people, things, and activities have names . . . . understand[ing] symbols . . . . Using the concepts and symbols you have acquired through play and learning experiences, you should be able to learn to read, write, do arithmetic, and understand and use new information” – and thinking – “the application or use of information you have learned. . . .being able to perceive relationships, reason, and make logical choices.” In SSR 09-3p, which the ALJ references in her decision, (Tr. 24) the SSA explained that:

Because much of a preschool or school-age child’s[9] learning takes place in a school setting, preschool and school records are often a significant source of information about limitations in the domain of “Acquiring and using information.” Poor grades or inconsistent academic performance are among the more obvious indicators of a limitation in this domain . . . .

74 Fed. Reg. 7, 511, 7, 513 (Feb. 17, 2009) (emphasis added). In particular, “[t]he kind, level, and frequency of special education . . . a child receives can provide helpful information about the severity of the child’s impairment(s).” Id.

Accordingly, a claimant’s poor academic performance and participation in special education programs are more weighty considerations when evaluating “acquiring and using information” than when assessing “cognitive/communicative function.” Furthermore, a claimant’s poor academic performance may be the result of impairments other than mental retardation, such as learning disorders – i.e., even though mental retardation would be expected to limit “acquiring and using information, ” a limitation in “acquiring and using information” is not necessarily evidence of mental retardation. See id. (“In addition to mental retardation and learning disorders, many other mental disorders can cause limitations in the domain of ‘Acquiring and using information.’”) This is particularly relevant in this case because the ALJ found that D.W. suffers from both a severe learning disorder and a severe reading disorder, in addition to borderline intellectual functioning. In light of the foregoing, the Court finds no error in the ALJ’s determination that D.W.’s below-grade-level school performance and need for “specially designated instruction, ” in addition to her varying performance on standardized measures of cognitive ability, are sufficient to establish a “marked limitation in acquiring and using information, ” (Tr. 25) but insufficient to establish a marked limitation in “age-appropriate cognitive/communicative function.”

VI. Conclusion

ORDER DENYING PLAINTIFF’S REQUEST FOR REVIEW AND AFFIRMING THE ALJ’S DECISION

AND NOW, , upon careful and independent consideration of Plaintiff D.W.’s Request for Review (ECF 3), the parties’ briefing, and for the reasons discussed in the accompanying Memorandum, it is hereby ORDERED:

1. Plaintiff’s Request for Review is DENIED and her Complaint is DISMISSED with prejudice;
2. The November 23, 2010 decision of the Administrative Law Judge is AFFIRMED; and
3. The Clerk of Court is directed to mark the case as CLOSED for statistical purposes.

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