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Koelzer v. Berryhill

United States District Court, D. Alaska

May 17, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         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.


         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]


         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]]


         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.


         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;
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;
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 ...

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