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Burton v. Berryhill

United States District Court, E.D. Pennsylvania

March 30, 2017

TRISTAN BURTON
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security

          MEMORANDUM OPINION

          TIMOTHY J. SAVAGE, J.

         Since Tristan Burton filed his application for Supplemental Security Income benefits thirteen years ago, there have been six hearings and three decisions by two different administrative law judges, and his case has been twice remanded to the Commissioner for expert testimony addressing his impairments relating to intellectual disability.[2] Now, acknowledging the recent decision to deny benefits is not supported by substantial evidence, the Commissioner moves to remand a third time.

         As the Commissioner concedes, the last ALJ decision is indefensible. After thirteen years, it is time for a decision. Thus, we shall deny the Commissioner's motion to remand for more testimony and instead decide the case on the existing record.

         Factual and Procedural Background

         This is the third time this case has been before us for review. In 2004, Burton, then ten years of age, applied for Supplemental Security Income benefits. In 2008, after an ALJ found Burton was not disabled and the Appeals Council affirmed, Burton filed an action for review.[3] We adopted the report and recommendation of the magistrate judge, who found that the ALJ had failed to develop the record by obtaining medical expert opinion on whether Burton met or equaled the listings for intellectual disability. Accordingly, we remanded to the Commissioner to obtain a medical expert opinion.

         In 2011, the same ALJ again determined that Burton was not disabled. The Appeals Council affirmed. After Burton filed a second action for review, [4] the Commissioner sought a remand to obtain a psychological evaluation and expert evidence on Burton's mental impairments, functional capacity and ability to work. Granting the motion, we again remanded.

         In a September 26, 2014 decision, a different ALJ decided that Burton was not disabled. The ALJ relied substantially on the testimony of a medical expert, who testified that Burton's IQ scores were not consistent with intellectual disability and he had no deficits in adaptive functioning sufficient to meet or equal Listings 12.05C or 112.05D. Burton then filed this action.

         The Disability Tests

         There are two different disability tests that apply-one for a child and the other for an adult. When Burton filed his claim, he was ten years old. He is now twenty-four.

         To determine whether a child under eighteen is disabled, the Commissioner engages in a three-step sequential process. To establish eligibility for benefits, the child must show: (1) he is not engaged in substantial gainful activity; (2) he has a medically determinable physical or mental impairment that is “severe” within the meaning of the regulations; and, (3) the impairment or combination of impairments meets, medically equals, or functionally equals the severity of one or more of the impairments listed in the regulations. 20 C.F.R. § 416.924; see also Morrison ex rel. Morrison v. Comm'r, 268 F. App'x 186, 187 (3d Cir. 2008). If he has an impairment that meets, medically equals, or functionally equals the listed impairments, the child is deemed disabled.

         It is the third step that is at issue. The ALJ found that Burton was not engaged in substantial gainful activity and he had a severe mental impairment. At the third step, he concluded that Burton's impairment did not meet, medically equal, or functionally equal in severity any of the listed impairments. 20 C.F.R. § 416.924.

         The inquiry at the third step requires the Commissioner to compare medical evidence to corresponding medical criteria for the listed impairment. See 20 C.F.R. pt. 404, subpt. P, app. 1. If the impairment does not meet or equal a listed impairment, the claimant must show that it is functionally equal to a listed impairment. Id. § 416.926a(a). To meet his burden, the child must demonstrate that he suffers from an impairment that causes “marked” limitations in at least two domains of functioning or an “extreme” limitation in at least one domain of functioning. If he does, the child is considered to have an impairment functionally equal in severity to a listed impairment, rendering him disabled. Id. § 416.926a(d).

         The six domains of functioning are: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for himself; and (6) health and physical well-being. Id. § 416.926a(b)(1). A “marked” limitation “interferes seriously” with a child's “ability to independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(2)(i). A marked limitation “also means a limitation that is more than moderate but less than extreme.” Id. (internal quotation marks omitted). An “extreme” limitation “interferes very seriously” with a child's “ability to independently initiate, sustain, or complete activities.” Id. § 416.926a(e)(3)(i). An extreme limitation is “a limitation that is more than marked.” Id. (internal quotation marks omitted).

         Once Burton turned eighteen years old, a different test applied. Id. § 416.924(f). Instead of the three-step process applicable to children, a five-step sequential process governs the inquiry to determine whether an adult is disabled. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § 416.920. The first two steps are the same as the child test. Compare 20 C.F.R. §§ 416.920(a)(4)(i), (ii) with Id. §§ 416.924(b), (c). The third step is different. Unlike the test for a child, the adult test does not apply a functional equivalence measurement. The claimant must show that his impairment meets or equals a listed impairment. A functionally equivalent impairment does not qualify. See Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014); 20 C.F.R. § 416.920(a)(4)(iii). If he has an impairment meeting or equaling a listed impairment, the claimant is considered per se disabled, ending the inquiry. Burns v. Barnhart, 312 F.3d 113, 119 (3d Cir. 2002); 20 C.F.R. § 416.920(d). If the impairment does not meet or equal a listed impairment, the inquiry proceeds to a fourth step. See Sullivan v. Zebley, 493 U.S. 521, 534-37 (1990) (concluding that previous Social Security regulations did not provide children a comparable opportunity to adult step four). At step four, the claimant must show that the impairment prevents the performance of his past relevant work. Zirnsak, 777 F.3d at 611; 20 C.F.R. § 416.920(a)(4)(iv). Once the claimant establishes that he cannot return to his customary occupation, the burden shifts to the Commissioner, who, at the fifth step, must prove that the claimant can still engage in substantial gainful activity. Zirnsak, 777 F.3d at 612; 20 C.F.R. § 416.920(a)(4)(v). The Commissioner satisfies this burden by demonstrating that given the claimant's age, education and work experience, he can perform specific jobs that exist in the national economy. Zirnsak, 777 F.3d at 612 (quoting 20 C.F.R. § 404.1560); Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984).

         Burton argues the ALJ erred at step three of both the child and the adult tests. At step two, the ALJ found that Burton had a severe impairment, a learning disability.[5] He also found that, before and after age 18, Burton had depression and attention deficit hyperactivity disorder (ADHD), which he characterized as nonsevere impairments.[6] At the same time, the ALJ determined that these impairments “cause more than minimal functional limitations.”[7]

         At step three, the ALJ found that Burton's learning disability, even when combined with his depression and ADHD, did not meet, medically equal, or functionally equal a listing for child benefits; or meet or medically equal a listing for adult benefits.[8]To match a listing, the claimant must show that he meets or exceeds all of the criteria for the listed impairment. Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992) (quoting Zebley, 493 U.S. at 531). Burton asserts that he has a severe impairment-an intellectual disability, in addition to a learning disability-which meets, medically equals, or functionally equals Listings 112.05D and 12.05C for child benefits and meets or medically equals Listing 12.05C for adult benefits.[9]

         Listings 12.05C and 112.05D are the listings applicable to intellectual disability.

         They provide in relevant part:

12.05 Intellectual disability: Intellectual disability refers to 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.
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.
. . .
C. 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[.]
112.05 Intellectual Disability: Characterized by significantly subaverage general intellectual functioning with deficits in adaptive functioning.
The required level of severity for this disorder is met when the requirements in A, B, C, D, E, or F are satisfied.
. . .
D. 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 . . . .

Id. pt. 404, subpt. P, app. 1.

         In summary, Burton must show: (1) deficits in adaptive functioning-his performance of various activities of daily living notwithstanding his impairments-prior to age 22; (2) a valid verbal, performance, or full-scale IQ score between 60 and 70; and (3) an additional severe impairment imposing significant work-related limitations. See Gist v. Barnhart, 67 F. App'x 78, 81-82 & n.2 (3d Cir. 2003); see also Markle v. Barnhart, 324 F.3d 182, 188-89 (3d Cir. 2003).

         The ALJ's Decision

         The ALJ concluded that Burton's impairments did not meet or exceed the criteria for Listings 12.05C and 112.05D as either a child or an adult.[10] Relying on medical expert Dr. Jerry Cottone's opinion, the ALJ concluded that Burton exhibited “no delays in adaptive functioning, ”[11] an element of an intellectual disability necessary to meet Listings 12.05C and 112.05D. In discussing his analysis of each of the six domains of functioning, the ALJ laid out the relevant regulations applicable to each. Then, he made conclusory statements without an analysis of Burton's functioning in those domains.[12]For the period when Burton was a child, the ALJ found that he had a marked limitation in acquiring and using information; had a less than marked limitation in attending and completing tasks; and, was not markedly limited in other functional domains.[13] But, he characterized his own finding that Burton had a marked limitation in acquiring and using information as “equivocal secondary to the opinion of the medical expert, Dr. Cottone, that [Burton] has a learning disability and not mental retardation.”[14]

         The ALJ rationalized that Cottone's opinion was supported by a consulting psychologist's conclusion that intellectual disability had been ruled out. The consultant, Dr. Brown, “provisionally diagnosed rule out mild mental retardation.”[15] Apparently, the ALJ elevated a provisional diagnosis to a final diagnosis.[16]

         Brown did not definitively conclude that Burton did not have an intellectual disability. Brown reported that Burton's “intellectual functioning was assessed as falling in the mild mental retardation range. However, he does not appear to have deficits in adaptive functioning sufficient to meet criteria for a diagnosis of mild mental ...


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