noting that, to state “persuasive, specific, valid” reasons for deviating from the substantial weight standard, “an ALJ could explain which aspects of the prior agency decision he finds not credible and why, [or] describe why he finds other evidence more credible”
How later courts described this case
- noting that, to state “persuasive, specific, valid” reasons for deviating from the substantial weight standard, “an ALJ could explain which aspects of the prior agency decision he finds not credible and why, [or] describe why he finds other evidence more credible”
- “If the ALJ finds that a claimant has not satisfied any step of the process, review does not proceed to the next step.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MELVIN VINES, )
)
Plaintiff, )
)
v. ) 1:19CV1099
)
ANDREW M. SAUL, )
Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Melvin Vines, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security,
denying Plaintiff’s claims for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”). (Docket Entry
1.) Defendant has filed the certified administrative record
(Docket Entry 9 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 12, 14; see also Docket Entry 13
(Plaintiff’s Memorandum); Docket Entry 15 (Defendant’s
Memorandum)). For the reasons that follow, the Court should remand
this matter for further administrative proceedings.
I. PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging an onset date of
January 1, 2013. (Tr. 428-39.)1 Upon denial of those claims
1 Plaintiff previously applied for DIB in May 2011, resulting in an unfavorable
ALJ decision on January 23, 2013 (Tr. 137-50) rendered final by the Appeals
(continued...)
initially (Tr. 162-99, 286-97) and on reconsideration (Tr. 200-43,
300-17), Plaintiff requested a hearing de novo before an
Administrative Law Judge (“ALJ”) (Tr. 318-20). Plaintiff, his
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 42-79.) The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act. (Tr. 244-61.) The Appeals
Council thereafter granted Plaintiff’s request for review, and
remanded the matter for a new hearing and further consideration of
whether Plaintiff’s impairments met or equaled the requirements of
Listings 1.04A and 12.05B. (Tr. 268-77.)
The ALJ convened a new hearing, which Plaintiff, his attorney,
and a VE attended. (Tr. 80-136.) Following that hearing, the ALJ
issued a decision finding Plaintiff not disabled. (Tr. 12-33.)
The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6, 425-27, 593-94), thereby making the ALJ’s ruling
the Commissioner’s final decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1. [Plaintiff] met the insured status requirements of
the . . . Act through December 31, 2015.
2. [Plaintiff] has not engaged in substantial gainful
activity since January 1, 2013, the alleged onset date.
. . .
1 (...continued)
Council’s denial of review on January 10, 2014 (Tr. 155-61).
2
3. [Plaintiff] has the following severe impairments:
osteoarthritis including the bilateral feet and great
toes, right wrist tendonitis, plantar fasciitis, fat pad
atrophy of the foot, hallux valgus of the right foot,
degenerative disc disease, gout, obesity, depressive
disorder, bipolar disorder, intellectual disorder,
personality disorder, learning disability, borderline
intellectual functioning, and alcohol use disorder.
. . .
4. [Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5. . . . [Plaintiff] has the residual functional
capacity to perform medium work . . . with the following
limitations: frequently climb ramps or stairs;
occasionally climb ladders, ropes or scaffolds;
frequently balance; and frequently reach, reach overhead,
handle objects, and finger bilaterally. [Plaintiff]’s
work is limited to simple, routine and repetitive tasks,
but not at a production rate pace; simple work-related
decisions; few, if any, changes in the routine work
setting; occasional interaction with the public and
supervisors; and frequent interaction with coworkers.
[Plaintiff] would be off task no more than 10 percent of
the time in an eight-hour workday, in addition to normal
breaks (with normal breaks defined as a 10-15 minute
morning and afternoon break and a 30 minute lunch break).
[Plaintiff] is limited to occupations requiring no
ability to read, write or do math calculations.
. . .
6. [Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [he] can perform.
. . .
3
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from January 1, 2013, through
the date of this decision.
(Tr. 17-32 (bold font and internal parenthetical citations
omitted).)
II. DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.” Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Even given those limitations, the Court should remand this case for
further administrative proceedings.
A. Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead,
the Court “must uphold the factual findings of the ALJ if they are
supported by substantial evidence and were reached through
application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted). “Substantial
evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Hunter v. Sullivan,
993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)). “It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance.” Mastro
4
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
quotation marks omitted). “If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there
is substantial evidence.” Hunter, 993 F.2d at 34 (internal
quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].” Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability 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
5
to last for a continuous period of not less than 12 months,’” id.
(quoting 42 U.S.C. § 423(d)(1)(A)).2 “To regularize the
adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . detailed regulations incorporating longstanding medical-
vocational evaluation policies that take into account a claimant’s
age, education, and work experience in addition to [the claimant’s]
medical condition.” Id. “These regulations establish a
‘sequential evaluation process’ to determine whether a claimant is
disabled.” Id.
This sequential evaluation process (“SEP”) has up to five
steps: “The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3 A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
2 The Act “comprises two disability benefits programs. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. [SSI]
provides benefits to indigent disabled persons. The statutory definitions and
the regulations . . . for determining disability governing these two programs
are, in all aspects relevant here, substantively identical.” Craig, 76 F.3d at
589 n.1 (internal citations omitted).
3 “Through the fourth step, the burden of production and proof is on the
claimant. If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied. The second step determines if the
claimant is ‘severely’ disabled. If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).” Id. at 179.4 Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled. See id. at
179-80. However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
4 “RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)). The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
7
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.” Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs available in the community,” the claimant qualifies as
disabled. Hines, 453 F.3d at 567.5
B. Assignments of Error
According to Plaintiff, the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ erred by failing to either accord substantial
weight to the favorable Medicaid decision [by the North Carolina
Department of Health and Human Services on October 9, 2018 (‘2018
NCDHHS decision’)] or provide specific, persuasive and valid
reasons for not doing so” (Docket Entry 13 at 4 (bold font and
single-spacing omitted));
2) “[t]he ALJ erred by finding that Plaintiff did not meet
Listing 12.05B” (id. at 9 (bold font omitted));
3) “[t]he decision of the ALJ violates Albright and
[Acquiescence Ruling 00-1(4), (Interpreting Lively v. Secretary of
Health and Human Services) – Effect of Prior Disability Findings on
5 A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
8
Adjudication of a Subsequent Disability Claim – Titles II and XVI
of the Social Security Act, 2000 WL 43774 (Jan. 12, 2000) (‘AR
00-1(4)’)] with regards to Plaintiff’s [past relevant work (‘PRW’)]
classification” (id. at 15 (bold font and single-spacing omitted));
and
4) “[t]he ALJ erred in his evaluation of Plaintiff’s education
level and PRW and thereby misapplied the [Medical-Vocational
Guidelines (‘Grids’)] (id. at 17 (bold font and single-spacing
omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision. (Docket Entry 15 at 4-13.)
1. 2018 NCDHHS Decision
Plaintiff first asserts that “[t]he ALJ erred by failing to
either accord substantial weight to the [2018 NCDHHS decision] or
provide specific, persuasive and valid reasons for not doing so.”
(Docket Entry 13 at 4 (bold font and single-spacing omitted).) In
particular, Plaintiff faults the ALJ for affording “‘limited
weight’” to the 2018 NCDHHS decision on the grounds that “‘the[]
decision[] address[ed] the ultimate issue of disability, an issue
reserved to the [] Commissioner,’” and because the decision stated
that it “‘in no way affect[ed] any pending or future claims for
[DIB] and [SSI].’” (Id. at 6 (internal quotation marks omitted)
(quoting Tr. 29).) In that regard, Plaintiff argues that the
Fourth Circuit has held that, “‘in order to demonstrate that it is
9
appropriate to accord less than substantial weight to an NCDHHS
disability decision, an ALJ must give persuasive, specific, valid
reasons for doing so that are supported by the record.’” (Id.
(internal quotation marks omitted) (quoting Woods v. Berryhill, 888
F.3d 686, 692-93 (4th Cir. 2018)).) According to Plaintiff, the
ALJ’s “generic explanation, which could apply to every [] decision,
is neither persuasive nor specific.” (Id. (quoting Woods, 888 F.3d
at 693).) Plaintiff further contends that “the ALJ’s statement
that ‘the [2018 NCDHHS] decision is not consistent with the
complete record before the [ALJ], as described [in the ALJ’s
decision], to include the opinions of the consultative examiners”
is conclusory without explaining how such evidence undercuts the
[2018] NCDHHS decision.” (Id. at 7 (quoting Tr. 29, and citing
Sabourin v. Saul, No. 5:18CV410, at 7 (E.D.N.C. Jul. 15, 2019)
(unpublished), and Miles v. Saul, No. 5:18CV422, at 12 (E.D.N.C.
Sept. 6, 2019) (unpublished)).) Plaintiff thus argues that,
because “[t]he ALJ engaged in no substantive analysis of [the 2018]
NCDHHS decision, . . . the ALJ’s decision must be vacated and the
claim remanded for compliance with Woods.” (Id. at 9.) That
argument has merit and warrants remand.
The Fourth Circuit addressed for the first time the “weight
that the SSA must afford to a VA disability rating” in Bird v.
Commissioner of Soc. Sec. Admin., 699 F.3d 337, 343 (4th Cir.
2012). After reviewing the “varying degrees of evidentiary
10
Significance” other circuits afford VA disability ratings, the
Fourth Circuit held as follows:
The VA rating decision reached in [the plaintiff’s] case
resulted from an evaluation of the same condition and the
same underlying evidence that was relevant to the
decision facing the SSA. Like the VA, the SSA was
required to undertake a comprehensive evaluation of [the
plaintiff’s] medical condition. Because the purpose and
evaluation methodology of both programs are closely
related, a disability rating by one of the two agencies
is highly relevant to the disability determination of the
other agency. Thus, we hold that, in making a disability
determination, the SSA must give substantial weight toa
VA disability rating. However, because the SSA employs
its own standards for evaluating a claimant’s alleged
disability, and because the effective date of coverage
for a claimant’s disability under the two programs likely
will vary, an ALJ may give less weight to a VA disability
rating when the record before the ALJ clearly
demonstrates that such a deviation is appropriate.
Bird, 699 F.3d at 343 (emphasis added).
Following Bird, the Fourth Circuit further clarified “what an
ALJ must do” to clearly demonstrate the appropriateness of a
deviation from Bird’s substantial weight standard in a case
involving an NCDHHS disability determination:
We now conclude, consistent with our sister circuits,
that in order to demonstrate that it is “appropriate” to
accord less than “substantial weight” to an NCDHHS
disability decision, an ALJ must give “persuasive,
specific, valid reasons for doing so that are supported
by the record.”
Woods, 888 F.3d at 692 (quoting McCartey v. Massanari, 298 F.3d
1072, 1076 (9th Cir. 2002)) (emphasis added); see also Social
Security Ruling 06-03p, Titles II and XVI: Considering Opinions and
Other Evidence from Sources Who Are Not “Acceptable Medical
Sources” in Disability Claims; Considering Decisions on Disability
11
by Other Governmental and Nongovernmental Agencies, 2006 WL
2329939, at *6-7 (Aug. 9, 2006) (“SSR 06–03p”) (“[E]vidence of a
disability decision by another governmental . . . agency cannot be
ignored and must be considered,” and “the [ALJ] should explain the
consideration given to these decisions in the notice of
decision”).6
In this case, the 2018 NCDHHS decision reversed the
determination of the Durham County Department of Social Services,
and found that Plaintiff met the requirements of Listing 12.05B and
qualified as disabled as of December 2017. (See Tr. 370-72.) The
ALJ analyzed and weighed the NCDHHS’s determination as follows:
The [ALJ] gave limited weight to the [NCDHHS] decisions
in August 2016 and October 2018 regarding [Plaintiff]’s
entitlement to Medicaid. First, these decisions address
the ultimate issue of disability, an issue reserved to
the [] Commissioner. Second, the [2018 NCDHHS] decision,
finding [Plaintiff] disabled and eligible for Medicaid,
specifically states, “This decision in no way affects any
pending or future claims for [DIB] or [SSI].” Third, the
[2018 NCDHHS] decision is not consistent with the
complete record before the [ALJ], as described [in the
6 For claims filed on or after March 27, 2017, the SSA has rescinded SSR 06–03p
and amended 20 C.F.R. §§ 404.1504 and 416.904. See 82 Fed. Reg. 5844 (Jan. 18,
2017); 82 Fed. Reg. 15263-01 (Mar. 27, 2017). The new regulations state that the
SSA “will not provide any analysis in [its] determination or decision about a
decision made by any other governmental agency or a nongovernmental entity about
whether you are disabled, blind, employable, or entitled to any benefits,” 20
C.F.R. §§ 404.1504, 416.904. In rescinding SSR 06–03p, the SSA noted that, for
claims filed on or after March 27, 2017, ALJs “will not provide any articulation
about their consideration of decisions from other governmental agencies and
nongovernmental entities because this evidence is inherently neither valuable nor
persuasive.” 82 Fed. Reg. 15263-01. Because Plaintiff filed his claims for DIB
and SSI in 2014 (see Tr. 428-39), this Recommendation will apply SSR 06-03p and
the prior versions of Sections 404.1504 and 416.904 to Plaintiff’s contentions
in his first assignment of error.
12
ALJ’s decision], to include the opinions of the
consultative examiners.
(Tr. 29 (internal citation omitted).)7
The ALJ’s consideration of the 2018 NCDHHS decision runs afoul
of Woods. To begin, the ALJ’s discounting of the 2018 NCDHHS
decision because it included the proviso that it “‘in no way
affect[ed] any pending or future claims for [DIB] and [SSI]’”
(id.), disregards the Fourth Circuit’s express rejection, as
“neither persuasive nor specific,” of that “generic explanation,
which could apply to every NCDHHS decision,” Woods, 888 F.3d at
693. Moreover, although the ALJ’s reliance upon the SSA’s rule
that the “ultimate issue of disability” constitutes “an issue
reserved to the [] Commissioner” (Tr. 29), see 20 C.F.R.
§§ 414.1527(d), 416.927(d), supports the ALJ’s decision to accord
“limited weight” (Tr. 29) to the NCDHHS’s ultimate determination
that Plaintiff qualified as disabled (see Tr. 280), that rule did
not authorize the ALJ to disregard the NCDHHS’s specific findings
that Plaintiff’s “impairments of intellectual disability and
specific learning disabilities in reading, math, and written
expression . . . result[ed] in significant work related
limitations” (Tr. 279 (emphasis added)), that “objective medical
evidence” supported that finding (id.), that “school records
indicate[d Plaintiff] was in special education courses[, ] was
7 In August 2016, the NCDHHS affirmed the decision of the Durham County
Department of Social Services on a prior application by Plaintiff finding he did
not meet the disability requirements for Medicaid. (See Tr. 564-67.)
13
retained in the 10th grade and apparently was socially promoted at
least once” (id.), that “[a] vocational evaluation in November 2011
. . . yielded a full scale IQ score of 66[, and Plaintiff] was also
noted to have first to second grade reading levels and fourth grade
math skills” (id.), and that, at “[a] neuropsychological evaluation
in August 2017,” the psychologist noted that “[a] review of
[Plaintiff’s] records indicated [his] low intellectual functioning
had been present since childhood” (id.). See Woods, 888 F.3d at
693 (noting that, to state “persuasive, specific, valid” reasons
for deviating from the substantial weight standard, “an ALJ could
explain which aspects of the prior agency decision he finds not
credible and why, [or] describe why he finds other evidence more
credible”).
Moreover, the ALJ’s statement that “the [2018 NCDHHS] decision
is not consistent with the complete record before the [ALJ], as
described [in the ALJ’s decision], to include the opinions of the
consultative examiners” (Tr. 29 (emphasis added)) does not provide
a “persuasive, specific, valid reason[] . . . supported by the
record,” Woods, 888 F.3d at 693, for deviating from the substantial
weight standard. As an initial matter, the record contains
consultative examinations from no fewer than nine sources ranging
in time from 2004 to 2017 (see Tr. 652-55, 656-59, 734-37, 739-44,
832-57, 865-68, 879-84, 1049-52, 1394-1400); yet, the ALJ neither
identified which consultative examiners’ opinions lacked
consistency with the 2018 NCDHHS decision, nor explained how they
14
lacked consistency (see Tr. 29). Moreover, although the ALJ
discussed and assigned either moderate, significant or substantial
weight to the findings and opinions from all nine of the
consultative evaluations (see Tr. 24-29), those same evaluations
contained findings and opinions that do not appear to lack
consistency with the 2018 NCDHHS decision. For example:
• Dr. Katharine V. Raleigh, to whom the ALJ accorded
“moderate weight” (Tr. 24), observed in July 2004
that she had to redirect Plaintiff “frequently”
(Tr. 866 (emphasis added)), that his ability to
sustain attention and concentration rated as
“mentally deficient” at the 0.1 percentile (Tr. 867
(emphasis added)), that Plaintiff read at a second
grade level, spelled at a first grade level, and
handled math at a fourth grade level (id.), that,
although Plaintiff had good “adaptive behavior” due
to a “supportive family” and “good social skills,”
he had “unrealistic plans” and “lack[ed] awareness
of his own deficits” (Tr. 869), and that
Plaintiff’s issues with short-term and long-term
memory evidenced a decline from prior functioning
(see id.);
• James R. Tedrow, M.A., to whom the ALJ gave
“[s]ignificant weight” (Tr. 27), described
Plaintiff in November 2011 as “not a good problem
solver or long term planner” who “must rely on
others” (Tr. 883), opined that Plaintiff “ha[d]
difficulty initiating, anticipating, generalizing,
and integrating information into a usable form”
(id.), and noted Plaintiff’s “lofty” and
unrealistic plans for starting his own business
(Tr. 882);
• Dr. Sarah Elizabeth Cook, to whom the ALJ assigned
“significant weight” (Tr. 24), remarked in June
2012 that Plaintiff “had significant difficulties
comprehending task instructions, requiring
repetition of instructions where possible,” and
that he “had some difficulties remaining focused
during the evaluation, particularly after lunch,
appearing fatigued” (Tr. 1050 (emphasis added)), as
well as that he performed cognitively at the level
15
of “mild mental retardation,” but that she lacked
sufficient information to assess his adaptive
skills (Tr. 1052 (emphasis added));
• Dr. Betsy Pedersen, to whom the ALJ allotted
“substantial weight” (Tr. 29), noted in March 2016
that Plaintiff could not understand the directions
during testing of his immediate retention and
recall (see Tr. 853), and provided an Addendum to
her opinion that Plaintiff (through previous
testing) had met the criteria for “borderline
intellectual functioning” (Tr. 856), opining that
Plaintiff’s school records actually supported a
diagnosis of “mild intellectual disorder” (Tr.
832); and
• Dr. Jill Zukerman Stuart, to whom the ALJ afforded
“significant weight” (Tr. 26), noted in August 2017
that, although Plaintiff’s attention remained
“adequate” for testing purposes, she had to
redirect him several times due to tangential
comments (Tr. 1398), and that Plaintiff rated as
“borderline” on the Independent Living Scales
regarding health and safety awareness (Tr. 1399).
Significantly, the 2018 NCDHHS decision expressly relied on
findings and opinions from Tedrow, Dr. Cook, Dr. Pederson, and Dr.
Stuart in reaching its determination that Plaintiff’s intellectual
disorder met the requirements of Listing 12.05B. (See Tr. 279; see
also Tr. 832-57, 879-82, 1049-52, 1394-1400.)
In sum, the ALJ’s failure to provide “persuasive, specific,
valid reasons,” Woods, 888 F.3d at 693, for rejecting the 2018
NCDHHS decision requires remand.
2. Listing 12.05B
Plaintiff next alleges that “[t]he ALJ erred by finding that
Plaintiff did not meet Listing 12.05B.” (Docket Entry 13 at 9
(bold font omitted).) More specifically, Plaintiff challenges the
16
ALJ’s findings that Plaintiff “only had a moderate limitation in
understanding, remembering or applying information” (id. at 10) and
“possessed only moderate limitations in adapting or managing
[him]self” (id. at 11). According to Plaintiff, “the record
demonstrates that [he] possesses marked to extreme limitation in
both his ability to understand, remember or apply information and
in his ability to adapt or manage [him]self.” (Id. at 11-12; see
also id. at 12-15 (describing evidence Plaintiff believes supports
marked to extreme limitations in those functional areas (citing Tr.
100, 110, 111-12, 119, 121-24, 269, 488, 511, 652, 656, 832, 834,
845, 852, 867-68, 879, 880, 882, 883, 888-89, 890, 1050, 1138,
1399-1400, 1427, 1497, 1517, 1520, 1522, 1667)).) Plaintiff thus
contends that “the ALJ’s decision should be reversed for an award
of benefits due to [Plaintiff’s intellectual disorder/mental
retardation] meeting the requirements of Listing 12.05B.” (Id. at
15.)
Listing 12.05B requires a showing of 1) “{[sJignificantly
subaverage general intellectual functioning,” 2) “[a] full scale
(or comparable) IQ score of 70 or below on an individually
administered standardized test of general intelligence,” and 3)
“[s]lignificant deficits in adaptive functioning currently
manifested by extreme limitation of one, or marked limitation of
two, of the following areas of mental functioning: [u]nderstand,
remember, or apply information; [i]nteract with others;
[c]oncentrate, persist, or maintain pace; [a]ldapt or manage
17
oneself.” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.05B (emphasis
added) (subsection lettering and internal citations omitted).
Understanding, remembering, or applying information “refers to the
abilities to learn, recall, and use information to perform work
activities” and “[e]xamples include: [u]nderstanding and learning
terms, instructions, procedures; following one- or two-step oral
instructions to carry out a task; describing work activity to
someone else; asking and answering questions and providing
explanations; recognizing a mistake and correcting it; identifying
and solving problems; sequencing multi-step activities; and using
reason and judgment to make work-related decisions.” 20 C.F.R. Pt.
404, Subpt. P, App’x 1, § 12.00E.1. Adapting or managing oneself
“refers to the abilities to regulate emotions, control behavior,
and maintain well-being in a work setting” and “[e]xamples include:
[r]esponding to demands; adapting to changes; managing your
psychologically based symptoms; distinguishing between acceptable
and unacceptable work performance; setting realistic goals; making
plans for yourself independently of others; maintaining personal
hygiene and attire appropriate to a work setting; and being aware
of normal hazards and taking appropriate precautions.” Id.,
§ 12.00E.4.
The ALJ provided the following analyses of those areas of
mental functioning:
In understanding, remembering, or applying information,
[Plaintiff] has moderate limitation. [Plaintiff]
complained of several issues in this area, including with
18
reading, writing, learning, and maintaining his emotional
stability. Somewhat consistently, the record reflects a
history of reduced cognitive functioning as early as July
2004, as well as multiple full scale IQ scores of between
63 to 70. At the same time, however, this same body of
evidence reflects limited mental health treatment,
consisting of sporadic and infrequent mental health
treatment, with routine prescription medication
management and limited mental health therapy.
Consistently, [Plaintiff] exhibited little to no acute
emotional or cognitive symptoms during his various
psychological testing sessions of record. And, even with
his minimal treatment, [Plaintiff] admitted to being
capable of a wide range of activities independently,
including caring for himself and his pet, routinely
driving, preparing meals, completing his household
chores, shopping in stores, and understanding and
following all his medical instructions. Such behavior,
particularly in combination with [Plaintiff]’s limited
mental health treatment, and in spite of his learning and
intellectual disorders, supports that [Plaintiff] is
capable of understanding and learning terms, asking and
answering questions, and sequencing a range of simple
activities.
. . .
In adapting or managing oneself, [Plaintiff] has moderate
limitation. The generally conservative medical treatment
of record and his own stated activities of daily living
show that he remains capable of distinguishing between
acceptable and unacceptable work performance, making
plans independently of others, maintaining his personal
hygiene and attire appropriate to a work setting, and
otherwise managing his psychologically based symptoms,
albeit with the benefit of prescription medication.
. . .
The above findings are supported by the assessments of
the [s]tate agency psychological consultants, who
together found no more than moderate mental limitations
and concluded that [Plaintiff] could perform simple,
routine and repetitive tasks in a low stress, structured
work setting, with limited interpersonal contact (B3A/B4A
and B7 A/BSA). These assessments are given significant
weight overall, as they are mostly consistent with the
evidence at the time and supported by explanations. More
weight is given to the initial assessment, as it is
19
better supported by the evidence at the time and more
consistent with the overall evidence of record. While it
is clear from the record that [Plaintiff] has some
reduced cognition and general intellectual functioning,
[Plaintiff] has maintained a long history of overall
intact and stable cognition and emotional functioning,
even during periods in which he was not receiving any
mental health treatment, with mental health treatment
consisting mostly of routine prescription medication
management. The [ALJ] does note that these assessments
were made prior to the implementation of the Final Rule
concerning the Revised Medical Criteria for Evaluating
Mental Disorders, 81 Fed. Reg. 66138 (published September
29, 2016, effective January 17, 2017), and that the
revised criteria for evaluating mental disorders with
regard to the “A,” “B,” and “C” criteria are now
materially different.
(Tr. 20-21 (emphasis added) (internal parenthetical citations
omitted).)
Plaintiff first faults the ALJ’s reliance on Plaintiff’s lack
of “extensive mental health treatment” in the above-quoted
analysis, arguing that “[intellectual disability] or mental
retardation . . . is not amenable to mental health treatment the
way that depression and anxiety are[, but ] is a lifelong condition
an individual is born with and which persists throughout their
life.” (Docket Entry 13 at 10 (citing Luckey v. United States
Dep’t of Health & Human Servs., 890 F.2d 666, 668 (4th Cir.
1989)).) Plaintiff’s argument, however, fails to recognize that
the ALJ considered the effects of both Plaintiff’s intellectual and
emotional impairments in rating the degree of limitation in the
areas of mental functioning. The ALJ found that Plaintiff suffered
from severe depressive disorder and bipolar disorder at step two of
the SEP (see Tr. 18), and expressly considered whether those
20
impairments met or equaled the criteria of Listing 12.04 for
affective disorders at step three (see Tr. 19), which shares the
same paragraph B criteria as Listing 12.05B, compare 20 C.F.R. Pt.
404, Subpt. P, App’x 1, § 12.04B, with id., § 12.05B. The ALJ’s
consideration of Plaintiff’s “sporadic and infrequent mental health
treatment, with routine prescription medication management and
limited mental health therapy” (Tr. 20) remained entirely an
appropriate area of inquiry for evaluating the impact of
Plaintiff’s emotional disorders, just as the ALJ’s reliance on
Plaintiff’s “exhibit[ion of] little to no acute . . . cognitive
symptoms during his various psychological testing sessions of
record” (id.) constituted an appropriate consideration for
evaluating the effect of Plaintiff’s intellectual disorders.
Plaintiff additionally challenges the ALJ’s reliance on
Plaintiff’s daily activities to find only moderate limitation in
the functional areas at issue, pointing out that “the fact that you
engage in common everyday activities, such as caring for your
personal needs, preparing simple meals, or driving a car, will not
always mean that you do not have deficits in adaptive functioning
as required by 12.05B2.” (Docket Entry 13 at 10 (citing 20 C.F.R.
Pt. 404, Subpt. P, App’x 1, § 12.00H, and Cavarra v. Astrue, 393 F.
App’x 612, 614-15 (11th Cir. 2010)).) That contention falls short
for two reasons. First, the ALJ did not solely rely on Plaintiff’s
daily activities to find moderate limitation in the areas of
functioning, but rather as one part of his overall analysis. (See
21
Tr. 20-21.) Second, Cavarra does not aid Plaintiff’s cause,
because in that case, “the ALJ’s description [of the plaintiff’s
daily activities] mischaracterize[d the plaintiff]’s testimony” by
failing to acknowledge the plaintiff’s significant qualifications
about his ability to engage in those activities, Cavarra, 393 F.
App’x at 615. Plaintiff makes no argument here that the ALJ failed
to acknowledge any qualifications in Plaintiff’s stated ability to
engage in daily activities. (See Docket Entry 13 at 10-11.)
Next, Plaintiff describes evidence that he believes supported
marked to extreme limitations in understanding, remembering, or
applying information and adapting or managing oneself. (See Docket
Entry 13 at 12-15 (citing Tr. 100, 110, 111-12, 119, 121-24, 269,
488, 511, 652, 656, 832, 834, 845, 852, 867-68, 879, 880, 882, 883,
888-89, 890, 1050, 1138, 1399-1400, 1427, 1497, 1517, 1520, 1522,
1667).) Plaintiff, however, misinterprets this Court’s standard of
review. The Court must determine whether substantial evidence,
i.e., “more than a mere scintilla of evidence but . . . somewhat
less than a preponderance,” Mastro, 270 F.3d at 176 (brackets and
internal quotation marks omitted), supported the ALJ’s findings
regarding Plaintiff’s limitations in the two functional areas at
issue, and not whether other record evidence weighed against those
findings, see Lanier v. Colvin, No. CV414-004, 2015 WL 3622619, at
*1 (S.D. Ga. June 9, 2015) (unpublished) (“The fact that [the
p]laintiff disagrees with the ALJ’s decision, or that there is
other evidence in the record that weighs against the ALJ’s
22
decision, does not mean that the decision is unsupported by
substantial evidence.”).
Here, as the above-quoted analysis shows, the ALJ cited to
substantial evidence to support his findings of moderate limitation
in the two functional areas (see Tr. 20-21), including affording
“significant weight” to the opinions of the state agency
psychological consultants (Tr. 21). Although record evidence
exists that could support greater limitations in the functional
areas, the record does not compel a finding of marked or extreme
limitation in either functional area. See Stallworth v.
Commissioner of Soc. Sec., No. 1:12CV496, 2013 WL 2897879, at *10
(S.D. Ohio Jun. 13, 2013) (unpublished) (holding that ALJ’s failure
to find greater limitations fell within ALJ’s “zone of choice”
because supported by substantial evidence); Penick v. Astrue, No.
3:08CV549, 2009 WL 3055446, at *9 (E.D. Va. Sept. 23, 2009)
(unpublished) (recognizing general right of ALJ to rely on state
agency consultants).
For the foregoing reasons, the Court should deny relief on
Plaintiff’s second issue on review.8
8 Due to the undersigned’s recommendation to remand this matter for an ALJ to
reevaluate and reweigh the 2018 NCDHHS decision finding that Plaintiff’s
intellectual disorder met the requirements of Listing 12.05B, the ALJ should
also, upon remand and in light of his reconsideration of the 2018 NCDHHS
decision, reevaluate whether Plaintiff’s intellectual disorder meets or equals
the requirements of Listing 12.05B.
23
3. Classification of Prior Welding Work
Plaintiff’s third assignment of error asserts that “[t]he
decision of the ALJ violates Albright and AR 00-1(4) with regards
to Plaintiff’s PRW classification.” (Docket Entry 13 at 15 (bold
font and single-spacing omitted).) In particular, Plaintiff points
out that the ALJ who adjudicated Plaintiff’s prior claim for DIB on
January 23, 2013, “classified [Plaintiff’s] welding work as ‘welder
helper’ which has a [Dictionary of Occupational Titles (‘DOT’)]
code of 819.687-014 and is classified as ‘unskilled’ with a
specific vocational preparation (‘SVP’) of two. (Id. (citing Tr.
149).) Plaintiff further notes that the 2013 ALJ “decision became
final and thus subject to res judicata when [Plaintiff] did not
appeal his January 10, 2014 [Appeals Council] denial.” (Id.
(citing Tr. 155).) According to Plaintiff, Albright and AR 00-1(4)
required the current ALJ to “assess whether such prior [ALJ’s]
finding [with regard to the classification of Plaintiff’s PRW as a
welder helper] was subject to change with the passage of time, the
likelihood of such change and the extent to which evidence not
considered in the final decision on the prior claim provides a
basis for making a different finding with respect to the period
being adjudicated in the subsequent claim.” (Id. at 16 (citing
Albright, 174 F.3d at 477, and AR 00-1(4)).) Plaintiff contends,
however, that “the ALJ did not explain why he classified
[Plaintiff’s] welding work as ‘welder’ with a [DOT] code of
24
810.384-014 which is a skilled job” (id. (citing Tr. 31)), despite
the fact that the ALJ afforded the prior ALJ’s findings
“substantial weight” under Albright and AR 00-1(4) (id. at 16-17
(citing Tr. 30)). Plaintiff further asserts that “there are no
circumstances under AR 00-1(4) or Albright which could have
justified reclassifying [Plaintiff’s] welding work” (id. at 17),
and that the ALJ’s “error was very harmful as had [Plaintiff’s]
welding work been properly classified as ‘welder helper’ as opposed
to ‘welder,’ a finding of ‘disabled’ would have been directed by
the [G]rids . . . when he attained 60 years of age, as he has a
less than marginal level of education[] . . . and PRW which is
unskilled” (id. (citing 20 C.F.R. Pt. 404, Subpt. P, App’x 2,
§ 203.01)).
In Albright, the Fourth Circuit addressed the manner in which
an ALJ should consider a final decision of the Commissioner
regarding a claimant’s prior application for benefits. See
Albright, 174 F.3d at 474-78. In that case, the new ALJ did not
analyze whether the claimant’s condition had worsened since the
prior ALJ’s decision, but rather simply adopted the prior ALJ’s
denial of benefits as res judicata based upon Acquiescence Ruling
94-2(4) (“AR 94-2(4)”). Id. at 474, 475. AR 94-2(4) required ALJs
to adopt findings from prior ALJ decisions unless the claimant
produced new and material evidence. Id. The Fourth Circuit found
the application of AR 94-2(4) to the new claim for benefits
25
“imprudent,” id. at 477, and contrary to the SSA’s long-standing
“treatment of later-filed applications as separate claims,” id. at
476.
In response to Albright, the SSA issued AR 00-1(4), which
provides as follows:
When adjudicating a subsequent disability claim . . ., an
[ALJ] determining whether a claimant is disabled during
a previously unadjudicated period must consider . . . a
prior finding [of a claimant’s RFC or other finding
required at a step in the SEP] as evidence and give it
appropriate weight in light of all relevant facts and
circumstances. In determining the weight to be given
such a prior finding, an [ALJ] will consider such factors
as: (1) whether the fact on which the prior finding was
based is subject to change with the passage of time, such
as a fact relating to the severity of a claimant’s
medical condition; (2) the likelihood of such a change,
considering the length of time that has elapsed between
the period previously adjudicated and the period being
adjudicated in the subsequent claim; and (3) the extent
that evidence not considered in the final decision on the
prior claim provides a basis for making a different
finding with respect to the period being adjudicated in
the subsequent claim.
AR 00-1(4), 2000 WL 43774, at *4 (emphasis added).
Here, the ALJ explained the weight he accorded to the prior
ALJ’s decision as follows:
The [ALJ] considered the prior [ALJ] decision in
accordance with [AR] 00-1(4) and gave the findings
therein substantial weight. However, the current record
before the [ALJ] supports additional impairments and
limitations.
(Tr. 30 (internal citation omitted) (emphasis added).) Despite
according the findings in the prior ALJ’s decision “substantial
weight” (id.), the ALJ proceeded at step four of the SEP to adopt
the VE’s classification of Plaintiff’s PRW in welding as the
26
skilled job Welder (DOT No. 810.384-014) (see Tr. 31, 131), and did
not provide any explanation for deviating from the prior ALJ’s
finding (see id.) that Plaintiff’s welding PRW rated as the
unskilled job Welder Helper (DOT 819.687-014) (see Tr. 149).
Although the ALJ could have pointed to testimony and/or other
evidence regarding the details of Plaintiff’s welding-related PRW
that differed from the evidence before the prior ALJ, he did not do
so. (See Tr. 31.) Thus, the Court cannot meaningfully review why
the current ALJ found that Plaintiff’s welding-related PRW
qualified as skilled, a finding less favorable to Plaintiff. See
Manuel v. Colvin, No. 1:11CV8, 2015 WL 519481, at *5 (M.D.N.C. Feb.
9, 2015) (unpublished) (Peake, M.J.) (remanding where current ALJ
found the plaintiff could perform PRW but previous ALJ found the
plaintiff could not, and current ALJ “did not address .. . the
prior inconsistent determination” which “appear[ed] to be based on
a change in the categorization of [the p]laintiff’s [PRW],” as well
as noting possibility that “additional evidence presented by the
[VE] . . . [i]n the [currJent claim [might have] created a basis
for making a different [step four] finding” but that, “[b]ecause
the [current] ALJ did not address the prior ruling, th[e] Court
cannot. . . determine whether the ALJ weighed the prior
adjudication in accordance with AR 00-1(4)”), recommendation
adopted, slip op. (M.D.N.C. Mar. 3, 2015) (Osteen, Jr., C.JU.); see
also Pickett v. Berryhill, No. 7:17CV238, 2019 WL 847745, at *4
(E.D.N.C. Jan. 28, 2019) (unpublished) (“Courts within the Fourth
27
Circuit have generally found remand appropriate under AR 00-1(4)
where an ALJ neglects to discuss a prior decision . . . [which]
contains findings more favorable to the claimant than the ALJ’s
subsequent decision.” (collecting cases)), recommendation adopted,
2019 WL 845415 (E.D.N.C. Feb. 21, 2019) (unpublished); Craft v.
Colvin, No. 1:16CV97, 2017 WL 239375, at *4 (M.D.N.C. Jan. 19,
2017) (unpublished) (Webster, M.J.) (finding that “ALJ’s written
decision must provide some explanation for discrediting or failing
to adopt past administrative findings favorable to the claimant”),
recommendation adopted, slip op. (M.D.N.C. Feb. 17, 2017) (Osteen,
Jr., C.J.).
Because, as explained more fully below, the ALJ misclassified
Plaintiff’s education level, the ALJ’s failure to explain why he
deviated from the prior ALJ’s decision and deemed Plaintiff’s
welding-related PRW as skilled constitutes prejudicial error.
Plaintiff turned 60 years old, or “closely approaching retirement
age,” 20 C.F.R. §§ 404.1563(e), 416.963(e), during the period of
adjudication (see Tr. 31), and the ALJ limited Plaintiff to medium
work (see Tr. 22), such that Grid Rule 203.01 would direct a
conclusion of “disabled” if the ALJ categorized Plaintiff’s
welding-related PRW as “unskilled” and found Plaintiff possessed
only a “marginal” education, 20 C.F.R. §§ 404.1564(b)(2),
416.964(b)(2) (or qualified as “illiterate,” 20 C.F.R.
§§ 404.1564(b)(1), 416.964(b)(1)), 20 C.F.R. Pt. 404, Subpt. P,
App’x 2, § 203.01. See Pickett, 2019 WL 847745, at *6 (rejecting
28
treatment of ALJ’s error at step four as harmless, where “a
determination that [the plaintiff] was unable to return to [PRW]
would direct a finding of ‘disabled’ under the Grids”).
In short, the ALJ failed to comply with Albright and AR 00-
1(4) in his consideration of the prior ALJ’s decision, providing an
additional basis for remand.
4. Education Level
Lastly, Plaintiff maintains that “[t]he ALJ erred in his
evaluation of Plaintiff’s education level and PRW and thereby
misapplied the [G]rids.” (Docket Entry 13 at 17 (bold font and
single-spacing omitted).) According to Plaintiff, the ALJ
determined, “[w]ithout analysis, . . . that [Plaintiff] had a high
school education when applying the [G]rids and evaluating the case
at [s]tep [f]ive of the SEP” (id. at 17-18 (citing Tr. 31));
“[y]et, in [the] RFC assessment, the ALJ acknowledged that
[Plaintiff] was illiterate, unable to perform any work involving
reading or writing and that he was also incapable of performing
math calculations” (id. at 18 (citing Tr. 23)). Plaintiff thus
contends that “the ALJ should have classified [Plaintiff’s]
educational abilities as ‘illiterate[]’ [or,] . . . at the very
most, . . . as [not] more than ‘marginal.’” (Id.) Plaintiff deems
the ALJ’s error in that regard “very harmful” (id. at 19) as, had
the ALJ properly classified Plaintiff’s welding-related PRW as
unskilled work and rated his education level as “marginal” or
29
“illiterate,” Grid Rule 203.01 would have directed a conclusion of
“disabled” (id. (citing 20 C.F.R. Pt. 404, Subpt. P, App’x 2,
§ 203.01)).
The ALJ remarked that Plaintiff’s school records showed that
he “achieved largely average grades in his high school years,
reportedly in a special education setting” (Tr. 24 (emphasis
added); see also Tr. 836), but also acknowledged that those records
“reflected an apparent final grade point average of 1.52” (Tr. 26
(emphasis added); see also Tr. 836), and that psychological testing
documented that Plaintiff “exhibited first to second grade reading
ability and fourth grade level math skills, with ‘very low visual,
auditory, and global memory’ and primary difficulties reading words
and understanding oral language” (Tr. 27 (quoting Tr. 890); see
also Tr. 879-84). In the RFC, the ALJ limited Plaintiff to
“occupations requiring no ability to read, write or do math
calculations” (Tr. 23 (emphasis added) (bold font omitted)), but
then concluded, at step five of the SEP that Plaintiff “ha[d] at
least a high school education” (Tr. 31).
The regulations define the relevant levels of education as
follows:
. . . Llliteracy means the inability to read or write.
[The SSA] consider[s] someone illiterate if the person
cannot read or write a simple message such as
instructions or inventory lists even though the person
can sign his or her name. Generally, an illiterate
person has had little or no formal schooling.
. . . Marginal education means ability in reasoning,
arithmetic, and language skills which are needed to do
30
simple, unskilled types of jobs. [The SSA] generally
consider[s] that formal schooling at a 6th grade level or
less is a marginal education.
. . . Limited education means ability in reasoning,
arithmetic, and language skills, but not enough to allow
a person with these educational qualifications to do most
of the more complex job duties needed in semi-skilled or
skilled jobs. [The SSA] generally consider[s] that a 7th
grade through the llth grade level of formal education is
a limited education.
. . . High school education and_above means abilities in
reasoning, arithmetic, and language skills acquired
through formal schooling at a 12th grade level or above.
We generally consider that someone with these educational
abilities can do semi-skilled through skilled work.
20 C.F.R. §§ 404.1564(b), 416.964(b) (emphasis added). Those
regulatory provisions also expressly acknowledge that, “[f]ormal
education that [a claimant] completed many years before [his or
her] impairment began, or unused skills and knowledge that were a
part of [his or her] formal education, may no longer be useful or
meaningful in terms of [the] ability to work,” and that “the
numerical grade level that [a claimant] completed in school may not
represent [his or her] actual educational abilities.” Id. Thus,
the SSA “will use [a claimant’s] numerical grade level to determine
[his or her] educational abilities” only “if there is no other
evidence to contradict it.” Id. (emphasis added).
Here, the ALJ erred by finding that Plaintiff “ha[d] at least
a high school education.” (Tr. 31.) Although the record
establishes that Plaintiff graduated from high school (see Tr. 87-
88, 836), the record contains voluminous evidence contradicting
that Plaintiff actually achieved a 12th grade educational level.
31
For example, Plaintiff’s high school records reflect that he
received many very low and failing grades, even in classes such as
“[b]lasic” English, math, science, and history, and that he did not
pass the 10th grade but proceeded to the 11th grade through
apparent social promotion. (Tr. 836.) Plaintiff’s scores on the
Wide Range Achievement Test 3 placed his reading and spelling
skills at the first grade level and his mathematical skills at the
fourth grade level. (See Tr. 867; see also Tr. 881-82 (reflecting
similar results on Woodcock-Johnson III).) Consistent with that
evidence, a disability examiner documented that Plaintiff had
difficulties with reading, understanding, concentrating, talking,
and answering, and noted that she had to repeat guestions multiple
times. (See Tr. 488.) Plaintiff’s Vocational Rehabilitation
history reflects Plaintiff’s difficulties reading, counting money,
and understanding a calculator. (See Tr. 889.)
Furthermore, the above-described evidence harmonizes with
Plaintiff’s testimony, which included the following statements:
° Plaintiff remained in special education throughout
his time in school (see Tr. 88), repeated one grade
(see Tr. 121), and did not have to pass a test to
obtain his diploma but rather, used a sheltered
workshop he attended for half days to graduate (see
Tr. 120-21);
° Plaintiff passed the written North Carolina
driver’s license test because his brother took the
test for him (see Tr. 126);
° Plaintiff could not fill out job applications (see
121), read menus (see Tr. 126), or complete the
SSA’s forms (see id.);
32
° Plaintiff asked his daughters to help him to read
his mail (see Tr. 110) and used only cash to
purchase items because he could not manage a bank
account (see Tr. 111); and
° Plaintiff lost jobs because he could not pass
aptitude tests (see Tr. 121) and because he did not
understand the technology required by some jobs
(see Tr. 122).
Thus, the ALJ erred by finding that Plaintiff possessed “at
least a high school education.” (Tr. 31.) Moreover, as discussed
above, that error does not qualify as harmless under the
circumstances of this case because, if the ALJ had found that
Plaintiff fell into the categories of marginal education or
illiterate and had classified Plaintiff’s welding-related PRW as
unskilled, Grid Rule 203.01 would have directed a conclusion of
“disabled” as of Plaintiff’s attainment of age 60 (which occurred
during the period of adjudication).
Put simply, Plaintiff’s fourth assignment of error has merit
and entitles Plaintiff to remand.
III. CONCLUSION
Plaintiff has established errors warranting remand.’
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated and that the matter be remanded
° Plaintiff's Memorandum alternatively asks for “summary judgment with a reversal
of the ALJ’s decision for an award of benefits, or [] with a remand of the matter
for a new hearing.” (Docket Entry 13 at 20.) In this case, the Court should opt
for remand, because Plaintiff’s Memorandum does not adequately develop a cogent
argument justifying reversal for an award of benefits. (See id. at 15
(specifically arguing for a “revers[al] for an award of benefits” only in
connection with Plaintiff’s second issue on review, contending that Plaintiff’s
“(intellectual disability/mental retardation] me[t] the requirements of Listing
12.05B,” an argument which this Recommendation found to lack merit).
33
under sentence four of 42 U.S.C. § 405(g), for further
administrative proceedings to include 1) reevaluation and re-
weighing of the NCDHHS’s disability determination in accordance
with Woods, the applicable regulations, and SSR 06-03p, 2)
reevaluation of Plaintiff’s welding-related PRW, including
consideration and weighing of the 2013 ALJ decision’s finding that
such work qualified as unskilled, and 3) reevaluation of
Plaintiff’s educational level. As a result, Plaintiff’s Motion for
Judgment on the Pleadings (Docket Entry 12) should be granted in
part, i.e., to the extent it requests remand, and Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 14) should be
denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 2, 2021
34