United States District Court, D. Connecticut
RULING ON THE PLAINTIFF'S MOTION TO REVERSE AND
THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE
MICHAEL P. SHEA, U.S.D.J.
an administrative appeal following the denial of plaintiff
Christine Marie Perkins's application for disability
insurance benefits. The appeal is brought pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Ms. Perkins now
moves for an order reversing the decision of the Commissioner
of the Social Security Administration
(“Commissioner”). In the alternative, Ms. Perkins
seeks an order remanding her case for a rehearing. The
Commissioner, in turn, has moved for an order affirming the
Perkins argues, among other things, that the Administrative
Law Judge (“ALJ”) erred in (1) failing to
consider whether she was per se disabled under medical
listing 12.05C, i.e., intellectual disability; (2) failing to
properly consider medical opinion evidence regarding her
mental functioning; and (3) failing to properly evaluate her
testimony. Because I agree that the ALJ erred in failing to
consider whether Ms. Perkins was disabled under Listing
12.05C and did not properly apply the treating physician rule
with regard to her treating internist, the case is REMANDED.
February 21, 2014, Ms. Perkins filed an application for
Social Security Disability benefits and Supplemental Security
Income alleging an onset date of disability of June 10,
2010.(Joint Stipulation of Facts, ECF No. 17 at
2.) A disability adjudicator in the Social Security
Administration denied her initial request for disability
benefits and thereafter denied her request for
reconsideration. (Id.) On January 28, 2016, Ms.
Perkins appeared for a hearing before ALJ John Noel.
(Id.) The ALJ issued a decision denying benefits on
March 23, 2016. (Id.)
found that Ms. Perkins was not disabled. (Id.)
Specifically, the ALJ found that while Ms. Perkins's
asthma,  Bipolar I disorder, and posttraumatic
stress disorder (“PTSD”) were severe impairments,
she did not have an impairment or combination of impairments
that meets or medically equals the severity of one of the
listed impairments under 20 C.F.R. Part 404. The ALJ found
that Ms. Perkins's bipolar disorder and PTSD did not
satisfy the criteria of Listings 12.04and
12.06 because Ms. Perkins demonstrated mild
restrictions with respect to her daily life activities, had
moderate difficulties with respect to social functioning and
concentration, persistence, or pace, and neither experienced
episodes of decompensation nor was hospitalized in connection
with her mental impairments since her alleged onset date. The
ALJ next found that Ms. Perkins had the residual functional
capacity (“RFC”) to perform medium work, except
that she could only frequently climb ramps and stairs,
occasionally climb ladders, ropes, or scaffolds, and
frequently balance, stoop, kneel, crouch, or crawl; could
have no exposure to extreme heat or extreme cold, occasional
exposure to dust, odors, fumes and pulmonary irritants; could
perform simple routine tasks, but not at a production rate;
could use judgment related to simple routine tasks; could
deal with changes in the work setting limited to simple, work
related decisions; and could have occasional contact with the
public. (R. 19.)
the ALJ found that while Ms. Perkins's medically
determinable impairments could reasonably be expected to
cause the alleged symptoms, her statements concerning the
intensity, persistence, and limiting effects of the symptoms
were not entirely credible. The ALJ found that although Ms.
Perkins was unable to perform her past relevant work as a
sales attendant, there were jobs that existed in significant
No. in the national economy that she could perform based on
her age, education, work experience, and RFC. (R. 23.)
Perkins requested review of the ALJ's decision by the
Appeals Council, which denied review on December 13, 2016,
making the ALJ's decision the final decision of the
Commissioner. (ECF No. 17 at 2.) This appeal followed.
Specific facts and portions of the ALJ's decision will be
discussed below as necessary.
Social Security Act establishes that benefits are payable to
individuals who have a disability. 42 U.S.C. §
423(a)(1). “The term ‘disability' means . . .
[an] inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment . . . .” 42 U.S.C. § 423(d)(1). To
determine whether a claimant is disabled within the meaning
of the Social Security Act, the ALJ must follow a five-step
evaluation process as promulgated by the Commissioner.
five steps are as follows: (1) The Commissioner considers
whether the claimant is currently engaged in substantial
gainful activity; (2) if not, the Commissioner considers
whether the claimant has a “severe impairment”
that limits his or her mental or physical ability to do basic
work activities; (3) if the claimant has a “severe
impairment, ” the Commissioner must ask whether, based
solely on the medical evidence, the claimant has an
impairment listed in Appendix 1 of the regulations. 20 C.F.R.
§ 416.920(a)(4). If the claimant has one of these
enumerated impairments, the Commissioner will automatically
consider that claimant disabled, without considering
vocational factors such as age, education, and work
experience. Id. (4) If the impairment is not
“listed” in the regulations, the Commissioner
then asks whether, despite the claimant's severe
impairment, he or she has the residual functional capacity to
perform his or her past work; and (5) if the claimant is
unable to perform his or her past work, the Commissioner then
determines whether there is other work the claimant could
perform. Id. To be considered disabled, an
individual's impairment must be “of such severity
that he is not only unable to do his previous work but cannot
. . . engage in any other kind of substantial gainful work
which exists in the national economy.” 42 U.S.C. §
423(d)(2)(A). The Commissioner bears the burden of proof on
the fifth step, while the claimant has the burden on the
first four steps. 20 C.F.R. § 416.920(a)(4).
district court reviewing a final ... decision pursuant to ...
42 U.S.C. § 405(g), is performing an appellate
function.” Zambrana v. Califano, 651 F.2d 842,
844 (2d Cir. 1981). “The findings of the Commissioner
of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive.” 42 U.S.C.
§ 405(g). Accordingly, a district court may not make a
de novo determination of whether a plaintiff is disabled in
reviewing a denial of disability benefits. Wagner v.
Sec'y of Health & Human Servs., 906 F.2d 856,
860 (2d Cir. 1990). Rather, the court's function is to
ascertain whether the correct legal principles were applied
in reaching the decision, and whether the decision is
supported by substantial evidence. Johnson v. Bowen,
817 F.2d 983, 985 (2d Cir. 1987). If the Commissioner's
decision is supported by substantial evidence, that decision
will be sustained, even where there may also be substantial
evidence to support the plaintiff's contrary position.
Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir.
1982). The Second Circuit has defined substantial evidence as
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)
(citation and quotation marks omitted). Substantial evidence
must be “more than a mere scintilla or a touch of proof
here and there in the record.” Id.
Perkins argues that the ALJ failed to address whether her
condition met or medically equaled the criteria under Listing
12.05C, which would have made her disabled per se at step
three of the five-step evaluation process. 20 C.F.R. §
404.1520(a)(4)(iii). I agree and remand to the ALJ to
consider this issue.
The ALJ's Failure to Consider Listing 12.05C
parties do not dispute that Ms. Perkins notified the ALJ of
her claim under Listing 12.05C. Though she neither listed an
intellectual disability on her initial claim for benefits or
during the reconsideration stage (R. 338, 364), nor mentioned
an intellectual disability in her pre-hearing letter to the
ALJ providing a “summary of the relevant medical
evidence and [her] theory of disability” (R. 438),
following the hearing, the ALJ informed Ms. Perkins that he
would leave the record open for an additional ten days so
that she could submit additional evidence if she wished. (R.
304.) On February 10, 2016, Ms. Perkins submitted additional
school records and notified the ALJ in a letter dated
February 18, 2016 of her claim that she met the criteria of
Listing 12.05C based on those records. (R. 442.) The parties
agree that education records and IQ testing materials were
submitted to the ALJ but for unknown reasons were not made
part of the record until they were resubmitted to the Appeals
Council. (ECF No. 17 at 2 n.5; R. 1409-29.)
parties also do not dispute that the ALJ did not address
Listing 12.05C in his decision. The ALJ's decision
indicates that he received the additional school records
submitted after the hearing. (R. 18, 21.) The ALJ did not
acknowledge, however, that Ms. Perkins raised a claim under
Listing 12.05C when submitting those records, and his opinion
includes no discussion of Listing 12.05C.
the Commissioner argues that the ALJ's decision was
supported by substantial evidence because Ms. Perkins has not
shown that she has an intellectual impairment or that she
meets the requirements of Listing 12.05C. The Commissioner
also argues that by not explicitly discussing Listing 12.05C,
the ALJ concluded that it did not apply. Especially because
the ALJ expressly addressed Listings 12.04 and 12.06 and
concluded that they did not apply, the Commissioner's
current reading of the ALJ's decision is implausible. In
any event, the Court “may not properly affirm an
administrative action on grounds different from those
considered by the agency, ” Burgess v. Astrue,
537 F.3d 117, 128 (2d Cir. 2008), and therefore may not
affirm on the grounds that Ms. Perkins does not meet the
criteria of a listing that was not even mentioned by the ALJ.
Although the ALJ's decision does include some discussion
of Ms. Perkins's intellectual capacity in formulating the
RFC (R. 18, 21), the ALJ did not expressly evaluate the
separate issues of Ms. Perkins's adaptive functioning and
intellectual capacity to decide whether she met Listing
12.05C, as required under the Second Circuit's decision
in Talavera. See Talavera v. Astrue, 697 F.3d 145,
153 (2d Cir. 2012) (noting that “there is no necessary
connection between an applicant's IQ scores and her
relative adaptive functioning” and considering whether
Talavera met “her separate burden of establishing that
she suffers from qualifying deficits in adaptive
functioning”). See also Newell v. Colvin, No.
15 Civ. 7095 (PKC)(DF), 2017 WL 1200911, at *5-6 (S.D.N.Y.
Mar. 31, 2017) (remanding where the ALJ failed to
independently evaluate adaptive functioning and intellectual
capacity under Listing 12.05C). Thus, even if the Court could
piece together from the record substantial evidence to
support a finding that Ms. Perkins did not meet Listing
12.05C, remand would still be required. See Rousey v.
Commissioner, 285 F.Supp.3d 723, 732 (S.D.N.Y. 2018)
(“legal error alone [could] be enough to overturn the
ALJ's decision”) (internal quotation marks
omitted). It is up to the ALJ to apply the criteria of
Listing 12.05C in the first instance.
Whether Remand Is Necessary
application of the correct legal principles to the record
could lead to only one conclusion, [however], there is no
need to require agency reconsideration.” Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir. 1987). See also
Tilbe v. Astrue, No. 5:10-CV-910 (NAM/ATB), 2012 WL
2930784, at *10 (N.D.N.Y. July 17, 2012) (finding “any
error in the ALJ's failure to consider” a
particular listing “harmless because no view of the
evidence would support a finding that plaintiff's
impairment met all the specified medical criteria” of
that listing). For the reasons set forth below, the Court
cannot conclude that application of Listing 12.05C to the
evidence in the record could lead to only one conclusion,
i.e., a finding of no disability, as the record contains some
evidence that Ms. Perkins met the criteria for that listing.
a claimant to show that his impairment matches a listing,
[the impairment] must meet all of the specified medical
criteria. An impairment that manifests only some of those
criteria, no matter how severely, does ...