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Heims v. Berryhill

United States District Court, N.D. Iowa, Cedar Rapids Division

February 16, 2018

EMILY E. HEIMS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Kelly K. E. Mahoney United States Magistrate Judge

         Plaintiff Emily E. Heims seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for child's insurance benefits (CIB) under 42 U.S.C. § 402(d) and Supplemental Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83f. Heims argues that the administrative law judge (ALJ) erred in assessing Heims' cognitive functioning by failing to order a consultative examination, by failing to include credible limitations in the questions posed to the vocational expert (VE), and by not giving proper weight to non-medical reports. Heims further argues that the ALJ's residual functional capacity (RFC) determination was not supported by sufficient medical evidence. I recommend reversing and remanding the ALJ's decision.

         I. BACKGROUND[1]

         Heims was born in 1994 and was twenty years old at the time of her administrative hearing with the ALJ. AR 63, 150.[2] She applied for CIB and SSI benefits[3] on June 18, 2013, alleging she has been disabled since birth due to, among other issues, bipolar disorder, post-traumatic stress disorder (PTSD), learning disability, depression, generalized anxiety disorder, borderline personality disorder, possible schizoaffective disorder, and back issues.[4] AR 37, 150, 165. The Commissioner denied Heims' CIB and SSI applications initially and on reconsideration (AR 163, 178, 198, 216), and Heims subsequently requested a hearing before an ALJ (AR 282-84). The ALJ held a hearing on February 24, 2015, at which both Heims and a VE testified. AR 55-56. The ALJ subsequently issued a written opinion following the familiar five-step process outlined in the regulations, finding Heims was not disabled because she could work as a mail clerk, photocopy machine operator, or cleaner.[5] AR 31-44.

         Heims received special education services while in school and graduated from the twelfth grade. AR 63, 161, 380, 1063-66. She lives in an apartment by herself, which she described as “more like community living.” AR 63, 659. She explained that two or three workers assisted her three or four times per week with learning social skills and budgeting. AR 64-65. She was discharged from these support services a couple of weeks before the administrative hearing and was making arrangements to receive similar services from another provider. AR 65-68, 756-58. Heims spends her money impulsively and testified she requires the assistance of community support workers to live independently and to help her because of her learning disability. AR 64-65, 68. She described herself as shy around people, and she believes others are judging her. AR 66. The ALJ found Heims has “daily feelings of worthlessness, paranoia, and cyclical emotions.” AR 37. She is not employed, although she has previously worked for short periods as a cashier or salesperson and as a call center employee. AR 68-69, 78-81. She received vocational rehabilitation services from Goodwill Industries and Iowa Vocational Rehabilitation Services on multiple occasions. AR 68-69, 432-59, 482-591, 593-94, 598-99, 608-11, 620-42, 727-42, 745. Heims reported needing a job coach because it takes her “excessive time to learn new job concepts.” AR 683. She testified she had issues attending work because of her feelings that co-workers were judging her and talking behind her back. AR 69. Heims spends her time listening to the radio, watching television, hanging out with friends and family, and exercising, and she is presently engaged to be married. AR 663, 694. She leaves home daily, describing herself as an “outdoor girl.” AR 662. Although she is unable to drive, she can walk to her destination or take public transportation, and she does not require a companion when in public. AR 662, 693. Heims reports that she is “great” at following written instructions, and although she previously experienced difficulty following verbal instructions, she more recently reported that she is good at following verbal instructions if they are spoken clearly. AR 664, 695.

         Heims has suffered from mental health issues since at least age 9 (depression) and has a long history of mental health treatment consisting of medication, therapy, and multiple hospitalizations. AR 74, 766, 1063, 1077, 1677. The record includes documentation of the following treatment: medication management for mood swings, bipolar disorder, irritability, and psychosis from nurse practitioner Carol Aunan in 2013 and 2014, and therapy for depression and anxiety from Richard Socwell, M.S.Ed., in 2014, both with the Abbe Center (AR 1087-93, 1355-58, 1361-66, 1489-1509); medication management related to anxiety and depression from Dr. Kerri Husman, M.D., and therapy sessions with licensed mental health counselor Sandra Griffith from 2010 to 2013, both with the Cedar Centre Psychiatric Group (AR 759-67, 793-806, 950-67, 1332-44, 1348-52); and therapy from nurse Terry J. Carlson (Nurse Carlson) for approximately six weeks in August and September 2013 (AR 1438-39). Heims' most recent hospitalizations occurred in November 2014 for schizophrenia and risk of bodily harm (AR 1638-59), in December 2014 for suicidal ideation and bipolar disorder with psychotic features (AR 1671-86), and in January 2015 for suicidal ideation and depression (AR 1687-1701).

         With regard to medical source opinions, the record includes mental RFC[6] opinions from non-examining state agency consultants Dr. Aaron Quinn (AR 159-62, 174-77) and Dr. Myrna Tashner (AR 197, 215) and a letter from Nurse Carlson dated November 6, 2013 (AR 1438-39). The record also contains prior opinions[7] by non-examining state agency consultants from September 2012 and February 2013 (AR 101-03, 129-31), a consultative examination report by Dr. John E. Williams from July 2011 (AR 839-43), and a Teacher's Questionnaire from April 2011 covering the period up to November 5, 2010 (AR 380-95).

         Dr. Quinn opined that Heims had moderate limitations in her abilities to remember and understand detailed instructions (regarding understanding and memory); to carry out detailed instructions, to maintain attention and concentration for extended periods, to perform activities within a schedule, to maintain regular attendance and be punctual within customary tolerances, to work in coordination with or proximity to others without being distracted, and to complete a normal workday or workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number of rest periods (regarding sustained concentration and persistence); and to respond appropriately to change in the work setting, to be aware of normal hazards and take appropriate precautions, and to set realistic goals or make plans independently of others (regarding adaptation limitations). AR 159-60, 174-75. Dr. Quinn also opined that with regard to social interaction, Heims has marked limitations in her ability to interact appropriately with the general public and moderate limitations in her abilities to accept instructions and respond appropriately to criticisms from supervisors and to get along with coworkers and peers. AR 160, 175. Dr. Quinn found the allegations contained in Heims' function report and a third-party report were fully credible based on their consistency with the other evidence. AR 161, 176. Dr. Quinn concluded Heims is “able to complete simple, repetitive tasks in a sustained manner while she will have difficulties sustaining attention, following detailed instructions, maintaining pace, interpersonal functioning, handling change, and using good judgment.” Id. Dr. Quinn found Heims has only mild limitations in her activities of daily living but noted Heims has borderline range intellect and that her ability to maintain pace and her cognitive functioning are “expected to vary secondary to her emotional status.” Id. Dr. Tashner, as part of the reconsideration, affirmed Dr. Quinn's opinions, noting updated records show Heims remained stable at that time and cited information from Nurse Carlson. AR 197, 215.

         Nurse Carlson's opinion stated that Heims “responded well to therapy, appearing to be able to learn some of the skills slowly with practice”; that her communication with her fiancé had improved; and that her anxiety had lessened. AR 1438. Nurse Carlson also opined that Heims' “lack of emotional stability, poor self-esteem, learning disability, and poor judgment and decision-making skills” serve as barriers to her progress. Id. Heims' inconsistency in attending treatments sessions with Nurse Carlson impeded Heims' progress and resulted in Nurse Carlson being unable to fully assess Heims' ability to function in a work environment. Id.

         The ALJ determined Heims suffers from severe impairments of “bipolar disorder, generalized anxiety disorder with [PTSD][], degenerative disc disease at ¶ 4-L5 with scoliosis, marijuana abuse, borderline intellectual functioning, and borderline personality disorder with narcissistic tendencies” and non-severe impairments of gastroesophageal reflux disease (GERD), asthma, headaches, and obesity. AR 34. The ALJ concluded at step three that Heims' impairments do not meet or equal Listings 12.04 (affective disorders), 12.06 (anxiety-related disorders), 12.08 (personality disorders), or 12.09 (substance addiction disorders). AR 35. The ALJ did not consider whether Heims' impairments meet or equal Listing 12.05 (mental impairment). AR 34-36. The ALJ determined Heims' mental RFC as follows:

[Heims] is limited to tasks that can be learned in 30 days or less involving no more than simple work-related decisions and requiring little to no judgment, with only occasional workplace changes; [she] can tolerate no interaction with the public; and can tolerate occasional interaction with co-workers and supervisors.

AR 36.

         In making the RFC determination, the ALJ found that Heims' allegations about the intensity, persistence, and limiting effects of her symptoms were not fully credible because they were not fully supported by the medical evidence and were inconsistent with other evidence in the record, and because her mental impairments were “generally amenable to treatment.” AR 38-40. The ALJ discussed how Heims' allegations were inconsistent with her activities of daily living, including attending to her personal care needs and the ability to perform routine household chores such as “preparing meals (e.g., ‘steak, chicken [A]lfredo, potatoes, pizza, sandwiches, cookies'), making her bed, washing dishes, laundering clothes, . . . vacuuming, ” and grocery shopping. AR 35, 38. The ALJ also found that although Heims has no prior substantial gainful employment (AR 33), her prior work experience demonstrates that she possesses a greater ability to function socially than she alleges. AR 39-40.

         The ALJ gave considerable weight to the opinions of Dr. Quinn and Dr. Tashner, finding they were consistent with Heims' “longitudinal medical history and self-reported daily activities.” AR 40. The ALJ gave limited weight to prior state agency consultant opinions because they relate to the previously adjudicated period. AR 40. For the same reason, and because it was based on a one-time examination, the ALJ gave limited weight to Dr. Williams' opinion. AR 41. The ALJ gave little weight to Nurse Carlson's opinion because he is not an acceptable medical source and because of the limited duration and nature of the treatment he provided. AR 41. Finally, the ALJ gave minimal and limited weight to the Teacher's Questionnaire and reports from vocational rehabilitation specialists. AR 41. The ALJ noted that these reports “merely document the observations of laypersons during the previously adjudicated period” (referring to the Teacher's Questionnaire and Goodwill Industries reports), and that they were based on Heims' subjective complaints (which were not fully credited) and “did not provide any specific quantified statements regarding [Heims'] ability to perform specific work-related activities on a regular and continuing basis.” AR 41.

         The Appeals Council denied Heims' request for further review on August 2, 2016 (AR 1-4), making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. The Appeals Council received additional evidence consisting of a representative's brief and an “Optimae LifeServices Plan” dated June 30, 2015. AR 6-21. Heims timely filed a complaint in this Court (Doc. 3). See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 15, 19), and the Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa, referred this case to me for a Report and Recommendation.


         A court must affirm the ALJ's decision if it “is supported by substantial evidence in the record as a whole.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); see also 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision.” Kirby, 500 F.3d at 707. The court “do[es] not reweigh the evidence or review the factual record de novo.” Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994). If, after reviewing the evidence, “it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [ALJ's] findings, [the court] must affirm the decision.” Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).

         Heims argues the ALJ erred by not ordering a consultative evaluation regarding Heims' cognitive functioning, which she argues was necessary to determine whether she meets or equals Listing 12.05C, and by not precisely setting forth Heims' limitations in the ALJ's questions to the VE. Heims also challenges the ALJ's RFC determination, arguing the failure to develop the record resulted in an RFC that is not supported by some medical evidence and that the vocational rehabilitation reports were not given proper weight. I will address each of these issues in turn.

         A. Cognitive Functioning

         The ALJ determined at step three that Heims suffers from borderline intellectual functioning, among other severe impairments. AR 34. In determining Heims' RFC during step four, the ALJ found, inter alia, that Heims has “below average intellectual functioning” and an intelligence quotient (IQ) “estimated between 70 and 80.” AR 38. Heims argues that, based on the evidence presented, the ALJ should have ordered a consultative examination to determine whether Heims' IQ fell within the scope of Listing 12.05C (intellectual disability). The Commissioner disagrees, arguing that Heims and her attorney did not take this position during the administrative hearing, that the ALJ developed an adequate record that shows Heims has an IQ (of 78) that is above the requirement for Listing 12.05C, and that substantial evidence supports the ALJ's mental RFC determination. I believe the ALJ erred by not obtaining additional evidence regarding Heims' IQ score and mental functioning and by failing to address whether Heims' impairments meet or equal Listing 12.05C.

         At the time of the ALJ's decision, [8] a claimant met Listing 12.05C by demonstrating: (1) deficits in adaptive functioning initially manifested before age 22; (2) “a valid verbal, performance, or full scale IQ score of 60 through 70”; and (3) “a physical or other mental impairment imposing an additional and significant work-related limitation of function.” 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.05C (2015); see also Lott v. Colvin, 772 F.3d 546, 549-50 (8th Cir. 2014). “The results of standardized intelligence tests may provide data to help verify the presence of intellectual disability . . . as well as the extent of any compromise in cognitive functioning.” 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00D(6)(a). “Standardized intelligence test results are essential to the adjudication of . . . cases of intellectual disability” under Listing 12.05C. Id. § 12.00D(6)(b). An ALJ has a “duty to develop the record fully and fairly, even if . . . the claimant is represented by counsel.” Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir. 1998) (quoting Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983)). Further, “it may be reversible error for an ALJ not to order a consultative examination when, without such an examination, [the ALJ] cannot make an informed choice.” Lott, 772 F.3d at 549 (quoting Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986) (per curiam)).

         Even with an IQ score above 70, a claimant's mental impairment, combined with other impairments, may medically equal Listing 12.05C. “A finding that a claimant's impairment is not equal to a listed impairment does not end the inquiry[;] [t]he regulations provide that if a claimant has more than one impairment, the combined effect of the impairments will be considered” to determine whether it medically equals any listing. Shontos v. Barnhart, 328 F.3d 418, 424 (8th Cir. 2003). The Eighth Circuit has recognized that an ALJ should consider the Programs Operations Manual System (POMS) guidelines when determining whether a claimant's impairments are medically equivalent to Listing 12.05C. Hesseltine v. Colvin, 800 F.3d 461, 465 (8th Cir. 2015). The POMS guidelines state that although “a medical equivalence determination would very rarely be required” for Listing 12.05C, “slightly higher IQ[s] (e.g., 70-75) in the presence of other physical or mental disorders that impose additional and significant work-related limitation of function may support an equivalence determination.” Id. (emphasis omitted) (quoting POMS § DI 24515.056). More than once, the Eighth Circuit has reversed an ALJ's decision for failing to consider the POMS guidelines when the claimant's IQ fell just outside the 60 to 70 range, and the claimant had other severe impairments. See Hesseltine, 800 F.3d at 465-66 (finding substantial evidence did not support the ALJ's conclusory finding that claimant's impairments did not medically equal Listing 12.05C when the claimant had an IQ of 72 and severe impairments of Perthes disease of the left hip, polycystic ovarian syndrome, and obesity); Shontos, 328 F.3d at 424, 427 (determining that claimant's IQ of 72, combined with her anxiety, dependency, depression, and degenerative joint disease, was medically equivalent to Listing 12.05C); Thomas v. Sullivan, 876 F.2d 666, 670 (8th Cir. 1989) (reversing and awarding benefits because claimant's “borderline intellectual functioning, poor physical condition, and mental illness combine to disable her”). Courts in the Northern District of Iowa have also reversed ALJs' decisions for failure to address medical equivalence to Listing 12.05C when the claimant had a borderline IQ between 71 and 75, in addition to other severe impairments (such that the POMS guidelines were applicable). See, e.g., Shelton v. Colvin, No. 14-CV-0122-LRR, 2016 WL 916431, at *6, *8 (N.D. Iowa Mar. 10, 2016) (claimant's other severe impairments included degenerative disc disease, COPD/asthma, and depression); Wise v. Colvin, No. C12-2047, 2013 WL 2243875, at *10-12 (N.D. Iowa May 21, 2013) (claimant's other severe impairments were attention deficit hyperactivity disorder (ADHD), depression, anxiety, patellofemoral syndrome, and a recent ACL repair); Childers v. Astrue, No. C12-2015, 2013 WL 54017, at *7-9 (N.D. Iowa Jan. 3, 2013) (claimant's other severe impairments were depression and anxiety).

         The Commissioner argues the record provides evidence that Heims has an IQ above 70, which would be higher than the IQ score necessary to satisfy the second requirement for Listing 12.05C. Doc. 19 at 7, 11. The ALJ, however, apparently chose not to adopt 78 as Heims' IQ score. Instead, the ALJ noted that Heims has an estimated IQ between 70 and 80.[9] This finding is problematic: an IQ score of 70 would meet the requirement for Listing 12.05C, an IQ score of 71-75 with Heims' other impairments may medically equal Listing 12.05C, while a higher IQ score would not meet or equal the listing. The ALJ did not directly address Heims' IQ score, aside from discussing (as part of the RFC determination) that “routine treatment sessions” evidence Heims' below average intellectual functioning and estimated IQ range of 70-80. AR 38.

         It is unclear whether any IQ testing in the record was valid and if so, whether an IQ score of 78 is Heims' overall IQ score or the score from one portion of the testing (such as verbal). The record contains references to IQ testing from 2010 (AR 823, 1350), but the actual test results are not included in the record. In addition, the underlying record contains inconsistencies on this issue. Portions of the record tend to support a finding that Heims has an IQ score above 75. As part of the July 2011 psychological assessment, Dr. Williams opined[10] that Heims has a history of low cognitive functioning but that she reported her lowest grade in school being a C[11] and that she functions “at least in the Borderline Range of intellectual ability though no intellectual testing was completed.” AR 840, 841. One record includes a diagnosis of borderline personality and borderline IQ and estimates Heims has above-average intelligence, a second notes Heims' “[i]ntellectual functioning appears to be in the average range, ” while a third comments “she is apparently normal range intelligence as demonstrated by use of vocabulary and general fund of knowledge.” AR 1080, 1198, 1228. One record from inpatient treatment (for schizophrenia with a discharge against medical advice) listed a diagnosis of learning disability but included a comment that Heims “is high functioning enough to live on her own and maintain a job.” AR 1647-48. Further, two records contain specific references to an IQ score of 78, but these appear to be based on information from Heims' mother. AR 902 (from October 2010), 1064-66 (from October 2011).

         Other portions of the record, however, support a finding of a lower IQ score. Multiple records list a diagnosis of borderline intellectual functioning (AR 865, 1336, 1096, 1362, 1366, 1509), which “is a condition defined as an IQ score within the 71-84 range.” Roberts v. Apfel, 222 F.3d 466, 469 at n.3 (8th Cir. 2000). One record from May 2013 noted Heims' IQ estimate as 75-80, while another from September 2013 listed an IQ estimate of 75. AR 1088, 1363. Another record, in summarizing Heims' past history, “noted that she was treated for ADHD, learning disability and lower level learning” and that these issues were ongoing. AR 1230. Yet another record indicates that Heims has a “low IQ.” AR 1350. As noted above, an IQ score from 71 to 75 could medically equal Listing 12.05C when combined with other impairments. Therefore, the inconsistencies in the record are material to the issue whether Heims could possibly meet or equal Listing 12.05C for intellectual disability. When the ALJ's “decision d[oes] not adequately account for the inconsistencies in the medical evidence, ” the court is “unable to determine whether substantial evidence on the record as a whole supports” the ALJ's decision, and the case must be remanded. Brown v. Colvin, 825 F.3d 936, 940 (8th Cir. 2016); Scott ex rel. Scott v. Astrue, 529 F.3d 818, 819-20, 823 (8th Cir. 2008) (holding that remand was required when the ALJ failed to address the intellectual-disability listing and did not resolve inconsistencies in the record regarding the ...

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