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Cassidy v. Berryhill

United States District Court, D. Utah, Northern Division

April 16, 2019

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



         Charlene Cassidy has appealed the Social Security Administration's (SSA) denial of her application for disability benefits under the Social Security Act. Ms. Cassidy claims benefits under both Title II (disability insurance) and Title XVI (supplemental security income) of the Act. In her benefits application she asserted that she was disabled based on numerous physical and mental impairments (she alleged bipolar affective disorder, panic disorder, agoraphobia, generalized anxiety disorder, ADHD, and obesity).

         Her appeal focuses primarily on her contention that the administrative law judge (ALJ) improperly discounted an IQ test when he concluded that she did not satisfy the criteria of “intellectual disability.” She also challenges the ALJ's equivalency analysis, [1] the disproportionate weight he placed on the opinions of the non-treating application examiners, and his reliance on the vocational expert's allegedly-flawed conclusion about which jobs Ms. Cassidy has the capacity to perform.

         For the reasons stated below, the court remands Ms. Cassidy's case to allow the SSA to re-evaluate her disability application under the “intellectual disability” impairment criteria set forth in SSA listing 12.05 and then, if necessary, present the conclusions to the ALJ for a fresh analysis of that listing.


         In her April 2014 application for disability benefits, Ms. Cassidy asserts that she has been disabled since October 1, 2007. Here, the only issue is whether she “is disabled under sections 216(i), 223(d) and 1614(a)(3)(A) of the Social Security Act.” (Nov. 9, 2016 SSA Office of Disability Adjudication and Review Decision (“ALJ Decision”), R. 30.[2])[3]

         The SSA initially reviewed Ms. Cassidy's application in September 2014 through state agency disability reviewers (Disability Determination Services or DDS). June Steinvorth, M.D., and Mark Berkowitz, Psy. D., issued their analyses on September 2, 2014, and denied her application. (R 73-94.) On reconsideration (at Ms. Cassidy's request), a new set of claim reviewers- Dennis Taggart, M.D., and Joan Zone, Ph.D-issued reports. (See Dec. 22, 2014 Case Analyses (R. 103-112, 117-126).) Drs. Taggart and Zone gave opinions similar to the other reviewers' conclusions and also rejected her application.

         Ms. Cassidy then requested a hearing before an ALJ. That hearing was held in September 2016, where Ms. Cassidy appeared and testified on her behalf. A vocational expert also testified.

         In connection with the hearing, Ms. Cassidy introduced evidence obtained after DDS reviewers completed their September and December 2014 evaluations. She offered a September 23, 2016 report of the results of an IQ test performed by Dr. Lori Kotter (see R. 832-35), an August 25, 2016 form completed by Ms. Cassidy's psychiatrist (see R. 826-28), and a one-page “Physician's Assessment of Physical Capacities” completed by Dr. Jonathan Weeks (R. 830).

         The ALJ issued a written opinion on November 9, 2016, denying Ms. Cassidy's application after concluding that she was not disabled. That opinion was affirmed by the appellate arm of the SSA. Ms. Cassidy appeals the ALJ's decision to this court.

         In the opinion, the ALJ followed the standard five-step sequential evaluation process to determine whether Ms. Cassidy is disabled.

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, given her age, education, and work experience. 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.

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotation marks and citations omitted; brackets in original). See also 20 C.F.R. § 404.1520(a)(4).

         Ms. Cassidy satisfied the requirement of Step One (no “substantial gainful activity” or SGA).

         The ALJ found at Step Two that Ms. Cassidy has several severe impairments: obesity, degenerative disc disease of the lumbar spine, bipolar disorder, anxiety, panic disorder, agoraphobia, ADHD, and mild intellectual disability. (R. 33.)

         At Step Three, he found that she did not satisfy the criteria of any per se-i.e., listed- disabling impairment set forth in 20 C.F.R. pt. 404, subpt. P, app. 1. (R. 32-36). He reached this conclusion about her physical as well as her mental impairments.

         In her appeal, Ms. Cassidy does not address the ALJ's conclusions that she is not physically disabled. She only addresses the conclusions regarding the mental disability listings.

         For the mental impairments, the ALJ looked at listings 12.02 (“Organic Mental Disorders”), 12.04 (“Affective Disorders”), 12.05 (“Intellectual Disability”), and 12.06 (“Anxiety Related Disorders”). Listing 12.05 is the one most discussed in Ms. Cassidy's appeal to this court.

         The ALJ stated numerous times that there was “no evidence” showing that her conditions met or equaled a listed impairment. Although he sets forth selected information from the record (which is done in the section discussing her RFC), the ALJ does not analyze it. Instead, he concludes in a perfunctory manner that she does not have evidence of the various listing criteria.

         He proceeded to Step Four, where he evaluated her RFC (which represents the most the claimant can still do despite her functional limitations). 20 C.F.R. § 404.1545. The ALJ found that Ms. Cassidy retained the residual functional capacity for a limited range of simple work. (R. 36-43.)

         At Step 5, he consulted the vocational expert (VE) at the hearing. He presented a hypothetical scenario to the VE, and asked whether a claimant with the same age, education, work experience, and RFC could perform working existing in significant numbers in the national ...

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