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Perkins v. Berryhill

United States District Court, D. Connecticut

July 9, 2018



          MICHAEL P. SHEA, U.S.D.J.

         This is 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).[1] 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 decision.

         Ms. 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.


         On 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.[2](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.)

         The ALJ found that Ms. Perkins was not disabled. (Id.) Specifically, the ALJ found that while Ms. Perkins's asthma, [3] 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 12.04[4]and 12.06[5] 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.)

         Specifically, 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.)

         Ms. 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.


         The 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.

         The 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).

         “A 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.


         I. Listing 12.05C

         Ms. 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.

         A. The ALJ's Failure to Consider Listing 12.05C

         The 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.)

         The 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.

         Nonetheless, 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.

         B. Whether Remand Is Necessary

         “[W]here 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.

         “For 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 ...

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