                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-24-2003

Gist v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket 02-3691




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 02-3691


                                      BERNICE GIST

                                           v.

    JO ANNE B. BARNHART, COMMISSIONER OF THE SOCIAL SECURITY
                         ADMINISTRATION,

                                        Appellant


          ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
                 THE EASTERN DISTRICT OF PENNSYLVANIA

                            (Dist. Court No. 01-CV-02754)
                       District Court Judge: Clifford Scott Green


                               Argued on April 10, 2003

           Before: ALITO, FUENTES, Circuit Judges, PISANO, District Judge*

                    (Opinion Filed:     April 23, 2003              )




                                                ROBERT D. MCCALLUM, JR.
                                                     Assistant Attorney General
                                                PATRICK L. MEEHAN
                                                     United States Attorney


      *
      The Honorable Joel A. Pisano, United States District Judge for the District of
New Jersey, sitting by designation.
                                                 FREDDI LIPSTEIN
                                                 MARK S. DAVIES
                                                 EDA GIUSTI
                                                 JOAN K. GARNER
                                                 NICHOLAS CERULLI
                                                 SAMBHAV N. SANKAR (argued)
                                                 U.S. Department of Justice
                                                 Civil Division, Room 9108
                                                 Washington, D.C. 20530

                                                 Counsel for Appellant

                                                 MICHAEL PATRICK BOYLE (argued)
                                                 123 S. Broad Street
                                                 Suite 2140
                                                 Philadelphia, PA 19109

                                                 Counsel for Appellee




                              OPINION OF THE COURT




PER CURIAM:

      In this appeal, the Commissioner of the Social Security Administration (“SSA”)

challenges the District Court order that granted summary judgment in favor of claimant

Bernice Gist, reversed the Commissioner’s final decision denying benefits, and remanded

to the Commissioner solely for the determination of benefits. See App. at 2-3, 23-34.

      The Commissioner uses a five-step analysis to evaluate disability claims brought

pursuant to 42 U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A). If the Commissioner


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finds that a claimant is or is not disabled at any step in the process, she does not proceed

to further steps in the evaluation. 20 C.F.R. §404.1520(a); §416.920(a).

       At Step One, the Commissioner determines whether the claimant is gainfully

employed. 20 C.F.R. §404.1520(b), §416.920(b). If she is not so employed, the

Commissioner proceeds to Step Two to determine whether the claimant has a “severe

impairment” that significantly limits “the claimant’s “ability to do basic work activities.”

20 C.F.R. §404.1520(c), §416.920(c). If the Commissioner finds a severe impairment at

Step Two, she proceeds to Step Three to determine whether the claimant’s impairment

meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the

Commissioner determines at Step Three that the claimant does not meet or equal a listed

impairment, she proceeds to Step Four to determine whether the severe impairment

renders the claimant functionally incapable of performing the work the claimant has

performed in the past. 20 C.F.R. §404.1520(e), §416.920(e). Finally, if the Commissioner

concludes at Step Four that the claimant cannot perform work she has performed in the

past, the Commissioner proceeds to Step Five and considers the claimant’s “residual

functional capacity” and her “age, education, and past work experience” to determine

whether she is capable of doing “other work.” 20 C.F.R. §404.1520(f)(1), §416.920(f)(1).

If the Commissioner determines at Step Five that the claimant cannot do “other work,”

the Commissioner declares the claimant disabled for purposes of benefits eligibility.

       In July 1998, the claimant in this case applied for Disability Insurance Benefits and



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Supplemental Security Income. The state administering agency evaluating her claim

denied her application on initial review as well as on reconsideration. Subsequently, she

sought review of the denial before an Administrative Law Judge (“ALJ”). After

convening a hearing on the matter, the ALJ proceeded to Step One of the evaluation

process, determining that the claimant has not been gainfully employed since the alleged

onset of disability. The ALJ then determined at Step Two that the claimant “carries

diagnoses of degenerative disc disease and borderline intellectual functioning,

impairments which are severe.” Admin. R. at 18. Proceeding to Step Three, the ALJ

determined that the claimant’s impairments do not meet or equal a listed impairment. Id.

Finally, the ALJ determined at Step Four that the claimant is not disabled as her

impairments “do not prevent her from performing her past relevant work.” Id.

       The SSA Appeals Council denied the claimant-appellee’s request for review of the

ALJ’s decision, rendering the ALJ’s decision the final decision of the Commissioner of

the Social Security Administration. Admin. R. 5-6; 20 C.F.R. §§404.981, 416.14.

Subsequently, the claimant-appellee sought judicial review of the decision in the United

States District Court for the Eastern District of Pennsylvania, and both parties filed

motions for summary judgment.

       The District Court referred the case to a Magistrate Judge who issued a Report and

Recommendation suggesting that the Court deny the claimant’s summary judgment

motion and grant the Commissioner’s summary judgment motion. The claimant, in turn,



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filed objections to the Report and Recommendation. The District Court sustained the first

of the objections (declining to rule on the other objections), granted the claimant’s

summary judgment motion, denied the Commissioner’s summary judgment motion,

reversed the Commissioner’s final decision based on a finding that the decision was not

supported by substantial evidence, and remanded to the Commissioner solely for a

benefits determination. Following the District Court’s decision, the Commissioner filed a

timely notice of appeal before this Court.

              As the Commissioner determined that the claimant satisfied Steps One and

Two of the disability analysis, this case predominantly involves Step Three of the

Commissioner’s analysis and, more particularly, the applicability of Listing 12.05, Mental

Retardation, 20 C.F.R. Pt. 404, Subpt. P, App. 1. In our review of the Commissioner’s

determination that the claimant did not show fulfillment of the requirements of listing

12.05 for mental retardation, namely a deficit in adaptive functioning and onset of mental

impairment prior to age 22, we must determine whether the Commissioner’s decision is

supported by substantial evidence. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).

       The relevant SSA regulation states that

       Mental retardation refers to significantly subaverage general intellectual
       functioning with deficits in adaptive functioning initially manifested during
       the developmental period; ie., the evidence demonstrates or supports onset
       of the impairment before age 22.

Listing 12.05, Mental Retardation, 20 C.F.R. Pt. 404, Subpt. P, App. 1. The claimant

bears the burden of proof at Step Three. In order to meet or equal listing 12.05, a claimant

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must prove that she experiences “deficits in adaptive functioning” with an onset prior to

the age of 22. Id. She must also show that she meets the requirements listed in

subsections A, B, C, or D of that section. We will address the claimant’s arguments

related to subsections B and C, as these were fully briefed in the District Court.

       While the District Court granted summary judgment based on a finding that the

claimant met listing 12.05B, this finding was in error. Listing 12.05B requires “a valid

verbal, performance, or full scale IQ of 59 or less.” The District Court applied a five-

point Standard Error of Measurement for IQ tests, consequently reading Gist’s actual IQ

score of 62 as a score of 57, to determine that the claimant satisfied this requirement. Our

recent decision in Burns v. Barnhart, 312 F.3d 113, 125-26 (3d Cir. 2002), clearly

establishes that the Standard Error of Measurement may not be imposed when applying

listing 12.05.1 As we stated in Burns,

       if we were to read an error range of five points into the regulation, it would
       violate the plain language of the regulation . . . . Where the language of a
       regulation is plain and unambiguous, as it is here, further inquiry is not
       required.

Id. (citations omitted). With an actual IQ score of 62, Gist clearly does not meet listing

12.05B.

       Recognizing that she does not meet Listing 12.05B in light of Burns, the claimant

asks this Court to find her eligible for a benefits award under Listing 12.05C. While the



       1
       While Burns involved Listing 12.05C, we find the rule announced therein equally
applicable to Listing 12.05B.

                                             -6-
District Court did not specifically address this argument, we will address the issue as it

was fully briefed below. See Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (“the

role of this Court is identical to that of the District Court, namely to determine whether

there is substantial evidence to support the Commissioner’s decision”).

       As is true in regard to any 12.05 listing, before demonstrating the specific

requirements of Listing 12.05C, a claimant must show proof of a “deficit in adaptive

functioning” with an initial onset prior to age 22. In support of this requirement, the

claimant stated that “she was in special education throughout the time that she was in

school.” Admin. R. at 13. The ALJ concluded, however, that the claimant failed to carry

her burden of proof at Step Three because she presented no documentary or other

evidence to substantiate her testimony that she was placed in special education classes or

otherwise suffered from deficits in adaptive functioning. Id. Admin. R. at 14. We will

not disturb the ALJ’s determination because we find that it is supported by substantial

evidence.1




       1
         Gist presented a valid IQ of 62 and a qualifying “other impairment,” namely a
degenerative disc condition classified by the ALJ as severe as defined in §§404.1520(c).
Markle v. Barnhart, No. 02-3128, 2003 WL 1546227, at *5 (3d Cir. Mar. 26, 2003)
(citing the Commissioner’s recent clarifying regulation stating that “[w]e always have
intended the phrase to mean that the other impairment [in 12.05C] is a ‘severe’
impairment as defined in §§404.1520(c) and 416.920(c)” (citation omitted)). As Gist
failed to prove an onset of “deficits in adaptive functioning” prior to age 22, her
satisfaction of the two specific requirements of Listing 12.05C, namely an IQ score
between 60 and 70 and a “physical or other mental impairment imposing an additional
and significant work-related limitation of functions, is irrelevant.

                                             -7-
       The claimant argues that even if this Court declines to find that she produced

evidence sufficient to meet Listing 12.05C, we should remand and instruct the District

Court to remand the claim to the Commissioner with instructions to conduct further

administrative proceedings, obtain additional intellectual function testing, and arrange for

the testimony of a medical expert. The authorities cited by the claimant to support this

proposition are applicable only in circumstances where the medical evidence suggests that

a finding of medical equivalence to a listing is reasonable. See 20 C.F.R. §416.912(b)(6)

(acknowledging the admissibility of findings made by medical experts); Social Security

Ruling 96-6p (requiring an updated medical opinion from a medical expert where

“symptoms, signs, and laboratory findings reported in the case record suggest that a

judgment of equivalence may be reasonable”). We do not believe a finding of medical

equivalence is reasonable in the instant case and, therefore, deny the appellee’s request

for remand. See Levin v. Mississippi River Fuel Corp., 386 U.S. 162, 170 (1967) (“the

point is so clear that [the court] see[s] no occasion for remanding the issue”).

       As we uphold the Commissioner’s determination that the claimant did not meet or

equal listing 12.05, we also review the Commissioner’s determination at Step Four of the

disability analysis. In reviewing the determination at Step Four, we play a role “identical

to that of the District Court, namely to determine whether there is substantial evidence to

support the Commissioner’s decision.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.

1999) (citing 42 U.S.C. §405(g) and Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994)).



                                             -8-
Therefore, while the District Court did not consider the propriety of the Commissioner’s

decision at Step Four, we decide the issue without remand.

       Where a claimant with a severe impairment does not meet or equal a listed

impairment at Step Three, she may nevertheless be found disabled for purposes of benefit

eligibility. At Step Four, the Commissioner determines whether the claimant’s severe

impairment renders her functionally incapable of performing the kind of work she

performed in the past. 20 C.F.R. §404.1520(e), §416.920(e). We have reviewed the

administrative record in the instant case and find that substantial evidence supports the

ALJ’s determination that the claimant is capable of resuming her past work.

       The claimant’s allegation that she suffers from a qualifying disability is not

substantiated by either medical evidence or the claimant’s own testimony. Spine X-rays

and doctors’ examinations reveal no physical limitations and only minor narrowing and

mild degenerative changes. App. 20, 125, 173, 143-144. The record demonstrates, and

the claimant’s testimony affirms, that “no physician imposed a lifting restriction, referred

her to a back specialist, ordered any further clinical testing, recommended surgery for her

back, or opined that she was disabled due to her impairments.” Admin. R. 33. The

claimant’s cause is also not helped by inconsistencies in her testimony as to the date of

the alleged back injury that caused her current back problems. Admin. R. 14-15. In

addition, her claim that she left work due to back pain is contradicted by her statement to

Dr. Griffen, the physician-evaluator for the state administering agency, that she had been



                                             -9-
laid off. Admin. R. 146. The ALJ concluded, and the Commissioner agreed, that Gist “is

able to return to the type of work she performed in the past.” As we find this

determination to be supported by substantial evidence in the record, we affirm the

Commissioner’s determination at Step Four without remanding for further proceedings.

       For the foregoing reasons, we reverse the judgment of the District Court and

affirm the final decision of the Commissioner.




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