Swan v . Comm., SSA 11-CV-482-JD 03/28/13
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Christopher Harold Swan
v. Civil N o . 11-cv-482-JD
Opinion N o . 2013 DNH 046
Michael J. Astrue, Commissioner,
Social Security Administration
O R D E R
Christopher Harold Swan seeks judicial review, pursuant to
42 U.S.C. § 405(g), of the decision of the Commissioner of the
Social Security Administration, denying his application for
disability insurance benefits under Title II and supplemental
security income under Title XVI. Swan contends that the
Administrative Law Judge (“ALJ”) erred in failing to find that
Swan met or equaled Listing 12.05C under 20 C.F.R. Part 4 0 4 ,
Subpart P, Appendix 1 . The Commissioner moves to affirm the
decision.
Background
Swan applied for social security disability insurance
benefits and supplemental security income on July 1 0 , 2007,
alleging a disability as of June 3 0 , 2007. The ALJ noted in his
decision that Swan’s “earnings record shows that [he] has
acquired sufficient quarters of coverage to remain insured
through March 3 1 , 2012.” Swan claimed a disability due to mood
swings, depression, bipolar disorder, substance abuse, bleeding
ulcers, back problems, and neck and leg pain.
From 2007 through 2009, Swan saw Richard Young, ARNP, of
Health First Laconia several times for treatment of his back
pain. Nurse Young prescribed Swan flexeril and darvocet and
diagnosed him with chronic back and neck pain.
Throughout the same period, Swan saw various medical
practitioners for treatment of depression. He was prescribed
amitriptyline, wellbutrin, and lexapro. In October 2007, D r .
Michael Evans diagnosed Swan with alcohol dependence and a
history of depression. In November 2007, Judith McCarthy, ARNP,
gave a provisional diagnosis of a substance induced mood disorder
with depressive features.
In November 2007, D r . Craig Stenslie, a nonexamining state
agency medical consultant, completed a Psychiatric Review
Technique Form and a mental RFC assessment based upon a review of
the record evidence. D r . Stenslie opined that Swan was no more
than moderately limited in areas of understanding and memory,
sustaining concentration and persistence, social interaction, and
adaptation. D r . Stenslie did not review or give an opinion as to
Swan’s IQ score.
2
In June 2008, D r . S . Tyutyulkova, another nonexamining state
agency medical consultant, completed a medical source statement
of Swan’s mental ability to perform work-related activities. D r .
Tyutyulkova opined that Swan had no limitations with respect to
understanding and remembering simple instructions, carrying out
simple instructions, or making judgments on simple work-related
decisions. Like D r . Stenslie, D r . Tyutyulkova did not review or
give an opinion as to Swan’s IQ score.
In June 2009, D r . David Diamond, a psychologist, completed a
mental evaluation of Swan and administered a Wechsler Adult
Intelligence Scale Test. D r . Diamond reported that Swan achieved
a verbal IQ score of 6 6 , a performance IQ score of 6 7 , and a
full-scale IQ score of 6 3 . D r . Diamond opined that the test
results were a valid measure of Swan’s intellectual functioning.
A hearing before an ALJ was held on March 7 , 2011. 1 Swan
was represented by counsel and testified at the hearing. In
addition, an impartial medical expert, D r . Alfred Jonas, and a
vocational expert, Howard Steinberg, testified.
1
The ALJ initially held a hearing on March 1 , 2010, after
which he denied Swan’s application for benefits. On July 1 3 ,
2010, the Decision Review Board issued an order remanding the
claims for a supplemental hearing. The supplemental hearing was
held on March 7 , 2011, and the ALJ’s decision after that hearing
is the subject of this order.
3
The ALJ issued a decision on April 5 , 2011, denying
benefits. The ALJ found that Swan had several severe
impairments, including degenerative disc disease of the lumbar
and cervical spine. The ALJ also found at Step Three, however,
that Swan did not have an impairment that would meet or equal any
of the impairments listed in 20 C.F.R. Part 4 0 4 , Subpart P,
Appendix 1 . In making that determination, the ALJ found that
Swan did meet all the criteria of Listing 12.05, which pertains
to mental retardation.1
The ALJ found at Step Four that Swan had the residual
functional capacity to perform medium work involving simple,
repetitive tasks with light social demands and routine
interactions with public, supervisors, and peers. Based on the
residual functional capacity assessment, the ALJ found that Swan
could return to his past work as a groundskeeper or a
housekeeper. As a result, the ALJ concluded that Swan was not
disabled. The Appeals Council denied Swan’s request for review
1
The ALJ initially found that Swan’s impairments, including
his alcohol abuse, met Listings 12.08 and 12.09 of 20 C.F.R. Part
404, Subpart P, Appendix 1 . The ALJ further found, however, that
if Swan stopped his alcohol abuse, his impairments would not meet
Listings 12.08 or 12.09. See Grogan v . Barnhart, 399 F.3d 1257,
1264 (10th Cir. 2005); Randall v . Astrue,
2011 WL 573603, at *1
(D. Mass. Feb. 1 5 , 2011). Swan challenges only the ALJ’s
decision determination concerning Listing 12.05C. Therefore, the
court will not address the ALJ’s findings as to Listings 12.08 or
12.09.
4
on September 1 3 , 2011, making the ALJ’s decision the final
decision of the Commissioner.
Standard of Review
In reviewing the final decision of the Commissioner in a
social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.” Nguyen v . Chater,
172 F.3d 3 1 , 35 (1st Cir. 1999). The court defers to the ALJ’s
factual findings as long as they are supported by substantial
evidence. § 405(g). “Substantial evidence is more than a
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Astralis
Condo. Ass’n v . Sec’y Dep’t of Housing & Urban Dev.,
620 F.3d 6 2 ,
66 (1st Cir. 2010).
Discussion
Swan contends that the ALJ erred in finding that Swan’s
impairments did not meet or equal the impairment at Listing
12.05C. The Commissioner points to evidence supporting the ALJ’s
finding.
The ALJ follows a five-step sequential analysis for
determining whether a claimant is disabled. 20 C.F.R. § 404.1520
5
& § 416.920.2 At Step Three of the sequential analysis, the ALJ
compares the medical evidence of the claimant’s impairment “to a
list of impairments presumed severe enough to preclude any
gainful work.” Sullivan v . Zebley, 493 U.S. 5 2 1 , 525 (1990).
“If the claimant’s impairment matches or is ‘equal’ to one of the
listed impairments, he qualifies for benefits without further
inquiry.” Id.; § 404.1520(a)(4)(iii).
To match a listed impairment, the claimant’s medically
determinable impairment must satisfy all of the listed criteria.
20 C.F.R. § 404.1525(e). An impairment equals a listed
impairment if the impairment “is at least equal in severity and
duration to the criteria of any listed impairment.” §
404.1526(a). The claimant bears the burden of showing that he
has an impairment or combination of impairments that meets or
equals a listed impairment. Torres v . Sec’y of Health & Human
Servs.,
870 F.2d 7 4 2 , 745 (1st Cir. 1989).
The ALJ found at Step Two that Swan had the following severe
impairments: degenerative disc disease of the lumbar spine and
2
The Social Security Administration promulgated regulations
governing eligibility for disability insurance benefits at Part
404 and for supplemental security income at Part 416. Because
the regulations are substantially the same, the court will cite
only to the disability insurance benefits regulations. See
McDonald v . Sec’y of Health & Human Servs., 795 F.2d 1118, 1120
n.1 (1st Cir. 1986).
6
the cervical spine, mild mental retardation, alcohol abuse,
depression, and anxiety. At Step Three, the ALJ found that
Swan’s impairments did not meet any of the listed impairments in
20 C.F.R. Part 4 0 4 , Subpart P, Appendix 1 , including Listing
12.05C.
Listing 12.05C, which pertains to mental retardation, has
three requirements: (1) the claimant developed deficits in
adaptive functioning prior to age 2 2 ; (2) “[a] valid verbal,
performance, or full scale IQ of 60 through 7 0 ; and” (3) “a
physical or other mental impairment imposing an additional and
significant work-related limitation of function.” The ALJ found
that Swan had met the first factor, but not the second or third.3
Swan contends that his impairments meet all the criteria for
Listing 12.05C.
A. Third Prong of Listing 12.05C
Swan argues that he met the third prong of Listing 12.05C
because the ALJ found in Step Two that Swan’s degenerative disc
disease would be a severe impairment even if Swan stopped his
alcohol abuse. Swan argues that a finding of a severe impairment
3
With regard to the first factor, the ALJ noted that “the
record documents a history of difficulties with intellectual
functioning as early as high school when [Swan] required an IEP
and special education services.” Admin. Rec. at 1 9 .
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at Step Two requires a finding that he had a physical impairment
imposing an additional and significant work-related limitation of
function for Listing 12.05C purposes.
The Commissioner appears to concede that the ALJ’s finding
at Step Two that Swan’s degenerative disc disease would be a
severe impairment requires a finding that Swan’s impairment meets
the third prong of Listing 12.05C. See Def. Mot. at 8 (“Here,
although the ALJ found that in the absence of substance abuse,
Plaintiff had a severe impairment of degenerative disc disease of
the lumbar and cervical spine, he reasonably found that Plaintiff
did not meet listing 12.05C because he did not have a valid
verbal, performance, or full scale IQ score of 60 through 7 0 . ” ) .
Even if the Commissioner had not conceded this point, case law is
clear that a Step Two finding of a severe impairment satisfies
the significant limitations standard of Listing 12.05C. See
Nieves v . Sec’y of Health & Human Servs., 775 F.2d 1 2 , 13-14 (1st
Cir. 1985) (“Because claimant’s impairment was found to be
severe, a fortiori it satisfies the significant limitations
standard [of 12.05C].”); see also Santos v . Astrue,
2012 WL
1109285, at *6 n.4 (D. Mass. Mar. 3 0 , 2012). Therefore, the
ALJ’s determination that Swan did not meet the third factor of
12.05C is not supported by substantial evidence.
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B. Second Prong of Listing 12.05C
Swan argues that he met the second prong of Listing 12.05C
because D r . Diamond assessed Swan’s IQ score at 6 3 , and D r . Jonas
testified that the score was valid. The Commissioner argues that
the ALJ’s determination that Swan’s IQ score was invalid and
inconsistent with the record is supported by substantial
evidence.
In discussing Swan’s IQ score, the ALJ wrote:
I note that [Swan] did undergo testing of his
intellectual function with David Diamond, MD in June
2009. Although D r . Diamond assessed his full scale IQ
at only a 6 3 , I find that the results of his
examination were not valid because the claimant
testified that he drank beer the night before. The IQ
of 63 is also not consistent with the remainder of the
record which shows the claimant is able to go hiking,
fishing, and camping, and having previous jobs at the
semi-skilled level, with jobs at the unskilled level.
Admin. Rec. at 19 (internal citations omitted).
The record shows that Swan drank one beer the night before
his IQ test and that both D r . Diamond, who administered the test,
and D r . Jonas, the independent medical examiner, opined that the
test result was valid.4 There is nothing in the record to
4
At the hearing, D r . Jonas testified that if Swan had just
had one beer the night before the IQ test, “then that would not
have interfered with his testing, so I think we should accept
these IQ’s and, therefore, get him into 12.05.” Admin. Rec. at
9 6 . D r . Jonas further noted that D r . Diamond did not suggest
that the scores were invalid. Id.
9
support the ALJ’s determination that Swan’s limited alcohol
consumption the night before the IQ test should invalidate his
score. Therefore, the ALJ erred in disregarding Swan’s IQ score
on that basis. See Nieves, 775 F.2d at 14 (Appeals Council erred
in disregarding claimant’s IQ score when there was no medical
evidence as to why the score was invalid); cf Wilkinson v .
Astrue,
2008 WL 1925133, at *4-*5 (D.R.I. Apr. 3 0 , 2008)
(affirming ALJ’s decision which invalidated claimant’s IQ score
because numerous other medical practitioners opined that the IQ
scores were inconsistent with the claimant’s medical records,
history, and evaluations).
The ALJ’s determination that Swan’s IQ score was invalid
because of his physical activities or work history was also not
supported by substantial evidence. “The fact that an individual
lives and functions independently, is able to work, and has
attended schooling (even beyond high school) have been held in
several cases to be facts which are not inconsistent with mild
mental retardation.” Gross v . Astrue, 2012 WL 2449900, at *10
(D. Kan. June 2 6 , 2012) (citing Markle v . Barnhart,
324 F.3d 182
(3rd Cir. 2003)); see also Nieves,
775 F.2d at 1 4 . “Listing
12.05C accommodates such activities, and anticipates that a
mildly mentally retarded individual will be able to perform all
of these activities . . . unless or until he develops another
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severe mental or physical impairment.” Gross, 2012 WL 2449900,
at * 1 0 . As discussed above, the medical evidence in the record
regarding Swan’s IQ test supports the validity of Swan’s reported
score.5 “[An] ALJ [is] not at liberty to ignore medical evidence
or substitute his own views for uncontroverted medical opinion.”
Nguyen, 172 F.3d at 35. 6
The Commissioner argues that D r . Stenslie and D r .
Tyutyulkova opined that Swan did not have a medically
determinable impairment of mental retardation. Neither doctor,
however, gave an opinion as to Swan’s IQ score and, therefore,
their opinions do not bear on whether Swan meets the second
factor of Listing 12.05C. See Hewes v . Astrue, 2011 WL 4501050,
5
Other than the opinions of D r . Diamond and D r . Jonas, the
only evidence in the record concerning Swan’s IQ score is a
mental impairment questionnaire by D r . Christine Runyan. In
response to the question, “Does [Swan] have a low IQ or reduced
intellectual functioning,” D r . Runyan wrote that she was
“[u]nable to answer.” She added, “Suspect relatively low IQ but
not meeting criteria for MR.” That opinion does not contradict
Swan’s reported IQ score.
6
The Commissioner points to D r . Jonas’s testimony that there
was no “good basis” for finding that Swan met the criteria of
Listing 12.05C. The basis for that opinion, however, was that
Swan did not have a “separate and impairing problem” and,
therefore, did not meet the third prong of 12.05C. As discussed
above, the Commissioner’s finding at Step Two that Swan had a
severe impairment satisfies the third prong of 12.05C.
Therefore, that part of D r . Jonas’s testimony is irrelevant to
the court’s determination.
11
at *4 (D. M e . Sept. 2 7 , 2011) (“The existence or non existence of
a diagnosis of mental retardation is not an element of the
[12.05C] analysis.”) (internal quotation marks and citation
omitted). Regardless, neither doctor’s opinion was mentioned by
the ALJ in his determination that Swan’s IQ score was invalid,
and the Commissioner cannot provide a post-hoc rationale for the
ALJ’s erroneous findings. See Van Blarcom v . Astrue, 2011 WL
2118643, at *4 (D.N.H. May 2 5 , 2011); Larlee v . Astrue,
694 F.
Supp. 2d 8 0 , 84 (D. Mass. 2010).
Accordingly, the ALJ’s determination that Swan did not meet
the criteria of Listing 12.05C is not supported by substantial
evidence in the record.
Conclusion
For the foregoing reasons, the applicant’s motion to reverse
(document n o . 8 ) is granted. The Commissioner’s motion to affirm
(document n o . 10) is denied.
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Under sentence four of § 405(g), the case is reversed and
remanded for further proceedings. The clerk of court shall enter
judgment accordingly and close the case.
SO ORDERED.
V J Joseph A. DiClerico, Jr.~
Jr.
United States District Judge
March 28, 2013
cc: Robert J. Rabuck, Esquire
D. Lance Tillinghast, Esquire
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