United States District Court, D. Alaska
VERONICA C. KOELZER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
DECISION AND ORDER
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE
Veronica
Koelzer filed an application for Disability Insurance
Benefits ("disability insurance") and Supplemental
Security Income ("SSI") under Titles II and XVI of
the Social Security Act ("the Act"), [1] alleging
disability beginning November 1, 2013.[2]Ms. Koelzer has
exhausted her administrative remedies and seeks relief from
this Court.[3]She argues that the determination by the
Commissioner of the Social Security Administration
("Commissioner") that she is not disabled, within
the meaning of the Act, is not supported by substantial
evidence and that the Administrative Law Judge
("ALJ") committed legal errors.[4] Ms. Koelzer asks
for a reversal of the Commissioner's decision and a
remand for calculation of benefits.[5]
The
Commissioner filed an answer to the complaint and an
answering brief in opposition.[6] Oral argument was not requested
and was not necessary to the Court's determination. For
the reasons set forth below, Ms. Koelzer's Motion for
Remand at Docket 1 is GRANTED, the Commissioner's final
decision is VACATED, and the case is REMANDED to the
Commissioner for the immediate calculation of benefits.
I.
STANDARD OF REVIEW
A
decision by the Commissioner to deny disability benefits will
not be overturned unless it either is not supported by
substantial evidence or is based upon legal
error.[7]"Substantial evidence" has been
defined by the United States Supreme Court as "such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."[8] Such evidence
must be "more than a mere scintilla, " but may be
"less than a preponderance."[9] In making its
determination, the Court considers the evidence in its
entirety, weighing both the evidence that supports and that
which detracts from the ALJ's conclusion.[10] If the
evidence is susceptible to more than one rational
interpretation, the ALJ's conclusion must be
upheld.[11]
II.
DETERMINING DISABILITY
The Act
provides for the payment of disability insurance to
individuals who have contributed to the Social Security
program and who suffer from a physical or mental
disability.[12] In addition, SSI may be available to
individuals who are age 65 or older, blind or disabled, but
who do not have insured status under the Act.[13] Disability is
defined in the Act as follows:
[l]nability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 months.[14]
The Act
further provides:
An individual shall be determined to be under a disability
only if his physical or mental impairments are of such
severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. For
purposes of the preceding sentence (with respect to any
individual), "work which exists in the national
economy" means work which exists in significant numbers
either in the region where such individual lives or in
several regions of the country.[15]
The
Commissioner has established a five-step process for
determining disability within the meaning of the
Act.[16] A claimant bears the burden of proof at
steps one through four in order to make a prima
facie showing of disability[17] If a claimant establishes
a prima facie case, the burden of proof then shifts
to the agency at step five.[18] The Commissioner can meet this
burden in two ways: "(a) by the testimony of a
vocational expert, or (b) by reference to the
Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P,
app. 2."[19] The steps, and the ALJ's findings in
this case, are as follows:
Step 1.
Determine whether the claimant is involved in
"substantial gainful activity." The ALJ
concluded that Ms. Koelzer had not engaged in substantial
gainful activity since November 1,
2013[[2]]
Step 2.
Determine whether the claimant has a medically severe
impairment or combination of impairments. A severe impairment
significantly limits a claimant's physical or mental
ability to do basic work activities, and does not consider
age, education, or work experience. The severe impairment or
combination of impairments must satisfy the twelve-month
duration requirement. The ALJ determined that Ms. Koelzer has
the following severe impairments: post-traumatic stress
disorder ("PTSD"), dependent personality disorder,
depression, history of mild traumatic brain injury, probable
borderline intellectual functioning, hearing loss in the
right ear, and obesity. The ALJ found that the following
impairments were not severe: GERD and bronchitis. The ALJ
also found that the following alleged impairments were not
medically determinable: chronic gastroenteritis, ovarian
cyst, lymphedema, pelvic inflammatory disease, low back pain
with pain and numbness of the left leg, left ankle pain and
swelling, and arm pain[21]
Step 3.
Determine whether the impairment (or combination of
impairments) is the equivalent of a number of listed
impairments found in 20 C.F.R. pt. 404, subpt. P, app. 1 that
are so severe as to preclude substantial gainful activity. If
the impairment is the equivalent of one of the listed
impairments and meets the twelve-month duration requirement,
the claimant is conclusively presumed to be disabled. If not,
the evaluation goes on to the fourth step. The ALJ determined
that Ms. Koelzer does not have an impairment or combination
of impairments that meets or medically equals the severity of
a listed impairment. The ALJ specifically found that the
§12.05- Intellectual Disability criteria did not
apply.[[2]]
Before
proceeding to step four, a claimant's residual functional
capacity ("RFC") is assessed.[23] Once
determined, the RFC is used at both step four and step
five.[24] An RFC assessment is a determination of
what a claimant is able to do despite his or her physical,
mental, or other limitations.[25] The ALJ concluded that Ms.
Koelzer has the RFC to perform a full range of work at all
exertional levels but with the following nonexertional
limitations: no climbing of ladders, ropes, or scaffolds;
occasional stooping; avoiding concentrated exposure to
excessive noise, unprotected heights and hazardous machinery;
and with work that is limited to simple, routine and
repetitive tasks with only occasional direct interaction with
the general public[2]
Step 4.
Determine whether the impairment prevents the claimant from
performing work performed in the past. At this point, the
analysis considers the claimant's RFC and past relevant
work. If the claimant can still do his or her past relevant
work, the claimant is deemed not to be disabled. Otherwise,
the evaluation process moves to the fifth and final step.
The ALJ found that Ms. Koelzeris unable to perform any
past relevant work[2]
Step 5.
Determine whether the claimant is able to perform other work
in the national economy in view of his or her age, education,
and work experience, and in light of the RFC. If so, the
claimant is not disabled. If not, the claimant is considered
disabled. Based on the testimony of a vocational expert
("VE"), the ALJ determined that there are jobs that
exist in significant numbers in the national economy that Ms.
Koelzer can perform, including: table worker, DOT No.
730.687-182, sedentary; assembler, DOT No. 706.684-022,
light; cleaner/maid hotel/motel, DOT No. 323.687-014,
light[[2]]
III.
PROCEDURAL AND FACTUAL BACKGROUND
Ms.
Koelzer was born in 1984 and is currently 33 years old. She
was raised in both Anchorage, Alaska and Arizona and has
resided in Alaska for over a decade. Ms. Koelzer has learning
disabilities and received special education services
throughout her elementary and high school
education.[29] She graduated high school in 2005 at age
20 through the Specialized Academic Vocational Education
("SAVE") school in Anchorage.[30]From 2003
through 2005, when she was in her late teens, her performance
in reading, writing, and math testing prior to graduation was
consistently "far below" proficient in reading and
math and "below" proficient in
writing.[31] Ms. Koelzer obtained a driver's
license when she was a teenager in Arizona; she required
special accommodation in order to do so.[32]
After
being assaulted by a former boyfriend on December 11, 2011,
Ms. Koelzer suffers from PTSD, depression, and
anxiety.[33] The assault perforated her right ear
drum and caused facial bruising and mild soft-tissue injury
around her neck.[34] Ms. Koelzer's weight has fluctuated
greatly since that time.[35] She is very afraid of being assaulted
again.
Hope
Community Resources employed Ms. Koelzer from 2010 through
2012 in both its Home Health Care program and at its
Discovery Center.[36] At Home Health Care, Ms. Koelzer
provided individual support services (e.g., bathing,
feeding, and toileting) to adults. At the Discovery Center,
she provided basic monitoring of children with special needs.
Ms. Koelzer stopped working at Hope Community Resources after
she accidently gave an individual the wrong medication
dose.[37] She has also worked as a cashier at a
drug store, gas station, and convenience store and as a fast
food employee and day care worker over the years, including
while attending SAVE.[38]
Ms.
Koelzer lives downstairs from her parents.[39] A friend
moved into the space with her in order to help Ms. Koelzer
with her fear.[40] Occasionally Ms. Koelzer runs errands
outside her home, but only when her mother or friend
accompany her; otherwise she typically does not leave the
house.[41] Ms. Koelzer stays up through the
night-out of fear that her ex-boyfriend or others will find
and hurt her-and sleeps during the day.[42]
Mr.
Koelzer claims disability due to a combination of impairments
that includes: intellectual disability, post-traumatic stress
disorder ("PTSD"), depression, anxiety, dependent
personality disorder, history of a mild traumatic brain
injury, hearing loss in her right ear, and
obesity.[43] Her date of last insured is December 31,
2017.[44]
The ALJ
hearing was held on April 3, 2014; Ms. Koelzer was
represented by counsel at that hearing.[45] The ALJ's
decision was issued on June 19, 2014, and found that Ms.
Koelzer was not disabled from November 1, 2013 through the
date of the decision.[46] The Appeals Council declined to
review the ALJ's disability determination on February 26,
2016.[47] As such, the ALJ's decision is the
final decision of the Social Security Administration
("SSA").[48] Ms. Koelzer filed her complaint seeking
judicial review with this Court on April 28,
2016;[49] she is represented by counsel in this
appeal.
IV.
DISCUSSION
Ms.
Koelzer argues that the ALJ erred in: (1) determining that
her intellectual disability does not meet or equal the
criteria in § 12.05(C) - Intellectual Disability
Listing; (2) discrediting her testimony; (3) discrediting her
mother's testimony; and (4) relying on the VE's
testimony because the VE's opinions were based on an RFC
that was not supported by substantial evidence.[50] The
Commissioner asserts that the ALJ did not err in any of these
respects.
(1)
Section 12.05(C) Listing
Intellectual
disability is a diagnostic category under § 12.00 -
Mental Disorders that can automatically qualify a claimant as
unable to pursue substantial gainful employment and therefore
deemed disabled under step three of the disability
analysis.[51]
Under
the applicable regulation in effect at the relevant time, an
Intellectual Disability under § 12.05 required the
following:
Intellectual disability refers to significantly subaverage
general intellectual functioning with deficits in adaptive
functioning initially manifested during the development
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.
A. Mental incapacity evidenced by dependence upon others for
personal needs (e.g., toileting, eating, dressing, or
bathing) and inability to follow directions, such that the
use of standardized measures of functioning is precluded;
OR
B. A valid verbal, performance, or full scale IQ of 59 or
less; OR 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;
OR
D. A valid verbal, performance, or full scale IQ of 60
through 70, resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of extended
duration.[52]
Unlike
other diagnostic categories within § 12.00, the
applicable version of § 12.05 required a claimant to
satisfy "both the introductory paragraph and any one of
the four sets of criteria" (i.e., Paragraphs
A-D).[53] Paragraph C is the subsection at issue
in this case.[54]
The
record includes a diagnosis of intellectual disability dated
February 17, 2014 by Nan Truit, Ph.D., that on its face would
appear to meet the requirements of Paragraph C.[55] However, the
ALJ, after analysis, concluded that Dr. Truit's diagnosis
was "unsupported by the evidence as a whole, " and
rejected it.[56] On appeal, Ms. Koelzer argues that the
ALJ improperly rejected Dr. Truit's diagnosis that Ms.
Koelzer met the requirements of an Intellectual Disability
diagnosis.
Dr.
Truit met with Ms. Koelzer in February 2014 for a
comprehensive neuropsychological evaluation.[57] Dr. Truit
interviewed Ms. Koelzer and her mother, reviewed medical
records related to the assault in December 2011, and reviewed
Ms. Koelzer's school records. She also conducted a
battery of assessments on Ms. Koelzer.[58] The doctor
noted a possibility of secondary gain, but explicitly found
that validity of the testing had been assessed and determined
to be valid.[59]
Dr.
Truit administered numerous tests to Ms. Koelzer, including
the Wechsler Adult Intelligence Scale - Fourth Edition
("WAIS-IV"), the Rey Complex Figure Test and
Recognition Trial, the Wisconsin Card Sorting Task
("WCST"), Conners' Continuous Performance Test
II ("Conners' CPTII"), the Digit Vigilance Test
("DVT"), the Posttraumatic Stress Diagnostic Scale
("PDS"), and Beck's Depression Inventory,
Validity, and Pain Patient Profile ("P3").
Within
the WAIS-IV, Ms. Koelzer was administered ten subtests
including: verbal comprehension, perceptual reasoning,
working memory, processing speed, Full Scale Intelligence
Quotient ("FSIQ"), and general ability. The FSIQ
incorporates the ten subtest scores and Dr. Truit indicates
that it "is considered the most representative estimate
of global intellectual functioning."[60] Ms. Koelzer
attained a composite FSIQ score of 67.[61]Dr. Truit
opined that overall, Ms. Koelzer's test results place her
general cognitive ability in the "extremely low range of
intellectual functioning" and "her overall thinking
and reasoning abilities exceed those of only approximately 1%
of individuals her age."[62]
To
assess trauma and characterological development, Dr. Truit
administered the PDS to evaluate for PTSD. Ms. Koelzer met
all the criteria for PTSD; test results showed a severe
symptom rating and level of impairment.[63]
Dr.
Truit's ultimate diagnostic impressions were that
"all indications are that [Ms. Koelzer] meets criteria
for the DSM-5 diagnosis of intellectual disability and that
this cognitive pattern is pervasive [and] has been present
since at least Kindergarten." Her other diagnostic
impressions included PTSD, persistent depressive disorder
with anxious distress, obesity, and rapid elimination of
bowel. She opined that Ms. Koelzer "generally achieved a
4th grade education" according to the school
records she reviewed, the most recent of which was when Ms.
Koelzer was 20 years old and receiving special education
services.[64]
Dr.
Truit also opined that Ms. Koelzer was unable to work outside
the home because she was "paralyzed by her symptoms of
PTSD." The doctor added, "[i]t should be emphasized
that Ms. Koelzer is not mentally able to seek employment at
this time." She stated that Ms. Koelzer may be able to
return to work-"[w]hen [Ms. Koelzer] is well enough to
look for work"-with the assistance of the Division of
Vocational Rehabilitation.[65]
The ALJ
gave Dr. Truit's opinion that Ms. Koelzer was presently
unable to work "no weight" because he did not find
"her assessment to be a reasonable interpretation of
[Ms. Koelzer's] true functioning."[66] Instead, the
ALJ indicated he would accord "great weight" to the
assessment of Wandal Winn, M.D., the State agency
consultant.[67] Dr. Winn did not treat or examine Ms.
Koelzer, but formulated his opinion based on his review of
some-but not all-of Ms. Koelzer's medical and school
records.[68] Based on that limited review, Dr. Winn
diagnosed Ms. Koelzer with a non-severe hearing loss, as well
as severe anxiety and personality disorders.[69] His report is
silent as to any intellectual disability. His records review
was done prior to Dr. Truit's evaluation; hence, he could
not have been aware of it at the time of his review. He did
review Dr. Campbell's report on the mental status
examination he performed of Ms. Koelzer, but did not comment
on the fact that Dr. Campbell notes that Ms. Koelzer
exhibited cognitive defects at that examination or that Dr.
Campbell opined that "[i]t would be helpful to obtain
school records and psychological testing."[70]
As
noted above, the ALJ explicitly rejected Dr. Truit's
opinion that Ms. Koelzer met the DSM-5 criteria for
intellectually disability. The ALJ stated that Dr.
Truit's "diagnosis [wa]s not consistent with other
evidence in the record."[71] He reasoned that no treating
source had "suggested that [Ms. Koelzer] has an
intellectual disability or made reference to obvious signs of
below average intelligence . . . [and that] no clinical
evidence of cognitive limitations" existed in Ms.
Koelzer's treatment records.[72] He further noted that Dr.
Truit's statement that Ms. Koelzer "had not been
previously diagnosed with mild mental retardation and had no
IQ scores in her academic records was not accurate." He
referenced the higher IQ score of 77 noted in the school
records from January 14, 2005.[73]The ALJ also maintained that
neither Dr. Campbell nor Dr. Donovan had mentioned a
possibility of intellectual disability, yet they had each
recently evaluated or treated Ms. Koelzer.[74] The ALJ also
found that Dr. Truit's statement that Ms. Koelzer was
"'currently' not functioning as expected for her
age, level of education, and former functioning" did not
satisfy the introductory paragraph to Listing 12.05, which
requires that a claimant's "deficits in adaptive
functioning initially manifested during the development
period prior to age 22."[75]
"Regardless
of its source, [the SSA] will evaluate every medical opinion
[it] receive[s]."[76] Medical opinions come from three
types of sources: those who treat the claimant; those who
examine but do not treat the claimant; and those who neither
examine nor treat the claimant. "As a general rule, more
weight should be given to the opinion of a treating source
than to the opinion of doctors who do not treat the
claimant."[77]And the opinion of an examining physician
"is, in turn, entitled to greater weight that the
opinion of a nonexamining physician."[78] Moreover,
"[a]s is the case with the opinion of a treating
physician, the Commissioner must provide 'clear and
convincing' reasons for rejecting the uncontradicted
opinion of an examining physician."[79]
Here,
Dr. Truit was an examining source when she conducted the
neuropsychological evaluation of Ms. Koelzer and diagnosed
Ms. Koelzer with an The ALJ also did not comment on the fact
that Dr. Donovan's records indicated that she intended to
obtain such testing. See A.R. 442. intellectual disability.
That opinion was not contradicted by any other doctor's
opinion. In fact, no other health care provider evaluated
that specific issue. Therefore, Ninth Circuit ...