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Fleming v. Berryhill

United States District Court, D. Utah, Central Division

March 26, 2018

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

          Dustin B. Pead Judge


          ROBERT J. SHELBY United States District Judge

         Plaintiff Charmaine Fielding[1] seeks in this action reversal or remand of a final agency decision denying her claim for Supplemental Security Income (SSI) under Title XVI of the Social Security Act.[2] Before the court is her Objection[3] to Magistrate Judge Dustin B. Pead's Report and Recommendation advising the court to affirm that denial.[4] The court has conducted a de novo review of the issues raised in Fielding's Objection. Having carefully considered the parties' briefing, applicable law, evidentiary record, and reasoning in Judge Pead's Report and Recommendation, the court OVERRULES Fielding's Objection, ADOPTS Judge Pead's Recommendation in its entirety, and AFFIRMS the denial of benefits.


         Fielding applied for SSI alleging disability beginning on August 1, 2012, when she was twenty-seven years old. She based her claim on multiple mental impairments. Fielding had worked in the past as a bus attendant, but had not completed high school and had a history of mental and emotional issues.

         After her claim was denied initially and upon reconsideration, Fielding sought a hearing before an Administrative Law Judge (ALJ). Following a May 2014 hearing, the ALJ determined in a February 5, 2015 decision that Fielding suffered from severe mental impairments, [5] but was not disabled under section 1614(a)(3)(A) of the Social Security Act.[6] The ALJ found Fielding did not have a mental impairment or combination of impairments that met or equaled in severity one of the listed impairments in 20 C.F.R. Part 404, in part because she had not established an intellectual disability with evidence showing “significant deficits in adaptive functions prior to age 22.”[7] The ALJ further found that Fielding retained the residual functional capacity to do work-albeit different from her past work.

         Fielding appealed the ALJ's decision to the agency's Appeals Council. The Council denied her request for review. Fielding then filed this case, appealing the Commissioner's final decision. The court referred this case to Magistrate Judge Dustin B. Pead pursuant to 28 U.S.C. § 636(b)(1)(B).[8] Judge Pead issued a thorough Report and Recommendation advising this court to affirm the final decision denying benefits to Fielding.[9] Fielding filed a timely Objection[10] to Judge Pead's Recommendation, to which Defendant Nancy Berryhill filed a Response.[11]


         Fielding must show that she is disabled.[12] One is disabled within the meaning of the Social Security Act only if her physical or mental impairments preclude her from performing both her previous work and any other substantial gainful work available in the national economy.[13] To determine disability, the Commissioner follows a five-step sequential process:

Step one requires the claimant to demonstrate that he is not presently engaged in substantial gainful activity. At step two, the claimant must show that he has a medically severe impairment or combination of impairments. At step three, if a claimant can show that the impairment is equivalent to a listed impairment, he is presumed to be disabled and entitled to benefits. If a claimant cannot meet a listing at step three, he continues to step four, which requires the claimant to show that the impairment or combination of impairments prevents him from performing his past work.
If the claimant successfully meets this burden, the burden of proof shifts to the Commissioner at step five to show that the claimant retains sufficient RFC [residual functional capacity] to perform work in the national economy . . . . If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.[14]

         This court reviews only whether the ALJ applied the correct legal standards and whether the decision below is supported by substantial evidence, [15] meaning evidence a reasonable person would accept as adequate to support a conclusion-more than a scintilla but less than a preponderance.[16] In making this determination, the court does not upset credibility determinations when supported by this quantum of evidence, as those determinations “are peculiarly the province of the finder of fact.”[17]


         Before Judge Pead and her in Objection to his Report and Recommendation, Fielding argues the ALJ erred by:

1) failing to find she had not met Medical Listing 12.05(c), intellectual disability, and was not “per se disabled”;
2) giving little weight to her family doctor, Dr. Gardner, treating psychiatrist, Dr. Lang, and examining psychologist, Dr. Neims, [18] while giving the greater weight to a state agency-hired reviewing psychologist, Dr. Reade;[19] and
3) finding her statements about her symptoms not altogether credible.[20]The court discusses these issues in turn.

         I. ALJ's Consideration of 12.05

         Fielding claims the ALJ erred at step three in the five-step disability evaluation process, which requires the ALJ to assess whether the claimant's impairments meet or equal in severity certain established impairments described in Appendix 1 of the regulations.[21] At this step, if the claimant meets or equals a listing-by establishing that she meets all the specific criteria-she is automatically found disabled, and the analysis ends. If not, the ALJ continues to the remaining steps to assess the claimant's residual functional capacity (RFC) and ability to work.

         Before Judge Pead and in her Objection, Fielding argues that she is disabled “per se” and meets the requirements of Listing 12.05(c), Intellectual Disability. This required her to establish both a diagnostic description and one of four “severity prongs.” The diagnostic description provides: “Intellectual disability: 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 [subparts] A, B, C, or D. are satisfied.” Here, Fielding relies on subpart C as the severity prong to establish her alleged disability. It provides: “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.”

         At issue is whether Fielding established requisite deficits in her adaptive functioning before age 22. The ALJ found she had not, noting the evidence “shows that the claimant has no significant deficits in adaptive function prior to age 22.”[22] The ALJ explained that Fielding was “independent in her ability to care for herself, she undertook at least partial responsibility for two children on a daily basis, and has previously worked at the substantial gainful activity level. She has a valid driver's license and []is able to take public transportation.”[23]

         In briefing before Judge Pead, Fielding argued these findings from the ALJ were “not accurate” because she had not done certain activities wholly “on her own, ” including living on her own, handling her own finances, watching her brother's children, or going places. She had lived with others, watched her brother's children along with her mom, and went to stores and other places accompanied by others. And, she had only worked one job and had failed to graduate from high school. But citing these additional facts does not render the ALJ's findings inaccurate-they simply underscore that she had done some activities with others. At bottom, Fielding's argument before Judge Pead on this point is one seeking the re-weighing of ...

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