Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
7-10-2006
Cacere v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3502
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Cacere v. Comm Social Security" (2006). 2006 Decisions. Paper 767.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/767
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 05-3502
_________________
YOLANDA CACERE O/B/O
DIANA CACERE,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
______________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 04-cv-1793)
District Judge: Honorable William G. Bassler
_______________
Submitted Under Third Circuit LAR 34.1(a)
April 21, 2006
Before: SLOVITER and AMBRO, Circuit Judges,
and DuBOIS,* District Judge
(Opinion filed July 10, 2006)
________________
OPINION
________________
*
Honorable Jan E. DuBois, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
DuBOIS, District Judge
Appellant Yolanda Cacere (“Cacere”) appeals from an order of the District Court
for the District of New Jersey affirming the final decision of the Commissioner of Social
Security (“Commissioner”) which denied Social Security benefits. The District Court
determined that the Commissioner’s decision was supported by substantial evidence in
the administrative record. For the reasons stated below, we affirm.
I. Factual Background and Procedural History
On January 14, 2002, Cacere filed an application for Child’s Supplemental
Security Income Benefits on behalf of her daughter (“claimant”), alleging disability as of
October 1, 1999. In the application, Cacere alleged that claimant suffered from a learning
disability, lack of sleep, and spitting. These conditions caused claimant to be tense,
anxious, and lack an appetite. Clinical evaluations in the record explain that claimant
suffered from adjustment, learning, and obsessive compulsive disorders.
After Cacere’s application was denied initially and upon reconsideration, Cacere
requested de novo review before an Administrative Law Judge (the “ALJ”). An
evidentiary hearing was held on November 13, 2003; both claimant and Cacere testified
and were represented by counsel. The key evidence is summarized below.
Dr. Victor Hernandez, claimant’s treating psychiatrist, began treating claimant on
September 25, 2001. The initial diagnosis was adjustment disorder with depressed mood.
In the report of that examination, Dr. Hernandez noted “R/O OCD [rule out obsessive
2
compulsive disorder].” (Tr. 122) In his report dated April 25, 2002, Dr. Hernandez noted
that he prescribed Luvox for claimant’s obsessive compulsive disorder on December 12,
2001. The April 25, 2002 report includes a diagnosis, inter alia, of obsessive compulsive
disorder. In that report, Dr. Hernandez opined that claimant had an “average” intellect
and that her ability to reason and use judgment were “developmentally appropriate.” (Tr.
94) Dr. Hernandez’s prognosis as of April 25, 2002 was: “It is good.” (Tr. 95)
The last examination of claimant by Dr. Hernandez documented in the record was
on July 31, 2003. The report of that examination noted that depressive symptoms had
been “resolved” and that treatment with Luvox, which was increased from 25 milligrams
“OD [once daily]” to 50 milligrams once daily on February 7, 2002, had resulted in
“improvement” in claimant’s obsessive compulsive disorder symptoms. (Tr. 119)
Elias Fernandez, Ph. D., administered claimant’s intelligence test in April 2002.
Claimant obtained a verbal IQ of 64, a performance IQ of 72, and a full scale IQ of 65.
Based on these scores, claimant was diagnosed with a learning disorder and borderline
intellectual functioning. (Tr. 86) Dr. Fernandez noted, however, that “[d]ue to social and
cultural factors [claimant’s] nonverbal results may be a better indication of her true
abilities which place her in the low end of the borderline range.” (Tr. 85)
Dr. Lawrence Laveman performed a consultative examination of claimant on April
12, 2002. He described claimant as a “10 year-3 month old female with emotional and
sleeping problems along with [a] learning disability.” (Tr. 87) Dr. Laveman added that
3
claimant had “a prominently atypical affect, altered social awareness, altered social
appropriateness and altered sense of social boundaries.” (Tr. 89)
On January 21, 2003, claimant’s Language Arts & Social Studies teacher John T.
Matranga submitted a teacher questionnaire. Mr. Matranga, who had six months of
experience serving as claimant’s teacher, reported that claimant had only slight problems
acquiring and using information, no problems attending and completing tasks, no
problems interacting and relating with others, no problems moving about and
manipulating objects, and no problems caring for herself. In sum, Mr. Matranga wrote
that claimant “is a very quiet, introverted student who has some difficulty with
comprehension (written and oral). She is somewhat withdrawn socially but has made
friends within the class.” (Tr. 105)
At a hearing before the ALJ, Cacere testified that claimant, who was in the sixth
grade, was not placed in any special classes at that time but that she would soon be
assigned to such classes three days a week. Cacere also explained that claimant attended
an after-school tutoring program and had been receiving treatment from a psychiatrist at
the Jersey City Medical Center once a month. In addition, Cacere described claimant as
“absentminded, distracted” and “[i]n another world.” (Tr. 142)
Based on a review of this evidence, the ALJ determined that claimant was not
disabled because she did not have a severe impairment that met, medically equaled, or
functionally equaled an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1. On
4
February 21, 2004, the Appeals Council determined that there were no grounds for review
and, therefore, the ALJ’s determination became the final decision of the Commissioner.
Cacere then filed this action and sought review of the ALJ’s determination pursuant to 42
U.S.C. § 405(g). On May 17, 2005, the District Court concluded that the Commissioner’s
decision was supported by substantial evidence.
II. Jurisdiction and Standard of Review
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. On appeal from the
District Court’s decision affirming the Commissioner’s denial of benefits, our review of
legal issues is plenary. Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). We review the
ALJ’s factual findings only to determine whether they are supported by substantial
evidence. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
“Substantial evidence has been defined as ‘more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as adequate.’” Plummer v.
Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d
Cir. 1995)). “Where the ALJ’s findings of fact are supported by substantial evidence, we
are bound by those facts, even if we would have decided the factual inquiry differently.”
Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001).
III. Discussion
A.
Regulation § 416.924 sets out a three-step analysis for determining child disability
5
claims. 20 C.F.R. § 416.924. Under this analysis, a child is disabled if: (1) she is not
engaged in substantial gainful activity; (2) she has a medically determinable impairment
that is severe; and (3) the medically determinable severe impairment meets, medically
equals, or functionally equals an impairment Listing found in 20 C.F.R., pt. 404, subpt. P,
app. 1. An impairment functionally equals a listed impairment if the child has “‘marked’
limitations in two domains of functioning or an ‘extreme’ limitation in one domain.” 20
C.F.R. § 416.926a(a). Six domains are to be considered: acquiring and using information;
attending and completing tasks; interaction and relating with others; moving about and
manipulating objects; caring for yourself; and, health and physical well-being. 20 C.F.R.
§ 416.926a(b)(1).
In this case, the ALJ concluded that claimant was not disabled at step three of the
sequential analysis. First, the ALJ found that claimant was not engaged in substantial
gainful activity. Second, the ALJ considered claimant’s intelligence testing scores,
medical reports, the teacher evaluation, and the testimony and concluded that claimant
had one severe impairment, a learning disorder. However, the ALJ found that claimant’s
affective and obsessive compulsive disorders were not severe and that claimant’s severe
impairment did not meet the Listing for mental retardation. See 20 C.F.R., pt. 404, subpt.
P, app. 1, § 112.05. Finally, the ALJ determined that claimant’s limitations were not the
functional equivalent of any listed impairment.
B.
6
Cacere argues that the Commissioner’s decision is not supported by substantial
evidence because the ALJ negated evidence of presumptive disability under Listing
112.05D. A finding of presumptive disability, under Listing 112.05D, requires: (1) a
valid verbal, performance, or full scale IQ of 60 through 70 and; (2) a physical or other
mental impairment imposing an additional and significant limitation of function.
Cacere contends that she has demonstrated a valid IQ score between 60 and 70 and
an additional severe impairment – obsessive compulsive disorder. Cacere also argues that
the ALJ committed an error of law by failing to properly explain his decision to reject
“uncontradicted evidence” of impairment under the rule announced in Cotter v. Harris,
642 F.2d 700, 704 (3d Cir. 1981) (stating that the ALJ should make “a clear and
satisfactory explication of the basis on which [his decision] rests”).
1. Claimant’s IQ Test Scores
Claimant scored a verbal IQ of 64, a performance IQ of 72, and a full scale IQ of
65. Although two of claimant’s scores placed her within the requisite level of Listing
112.05D, the ALJ discredited the claimant’s verbal and full scale IQ scores because these
scores were at variance with the remainder of the evidence, including the report submitted
by claimant’s teacher, the fact that claimant was in her age-appropriate grade, and Dr.
Hernandez’s description of claimant’s intelligence as “average.” The IQ scores were
further explained by Dr. Fernandez, the administrator of the test, who stated that social
and cultural factors may have contributed to the low test scores and that the performance
7
IQ score would provide a better indication of claimant’s true intellectual abilities. We
agree with the District Court that the ALJ’s finding regarding claimant’s IQ scores is
supported by substantial evidence.
In discrediting claimant’s verbal and full scale IQ scores, the ALJ also explained
that there was no evidence of what type of IQ test was administered and whether it was
standardized. Cacere argues that the ALJ should have ordered a second IQ test in light of
these concerns, but, after mentioning that he would consider ordering a second test, he did
not do so. Based on those facts, we do not rely on the ALJ’s unsupported statement
regarding the type and standardization of the IQ test administered by Dr. Fernandez in
concluding that ALJ’s finding is supported by substantial evidence.
2. Claimant’s Obsessive Compulsive Disorder
Cacere also argues that claimant’s obsessive compulsive disorder qualified as an
additional and significant impairment under Listing 112.05D, and that the ALJ’s finding
is based on “evidence nullification.” We disagree. The additional and significant
impairment under Listing 112.05D must be a “severe” impairment, as defined in 20
C.F.R. § 416.924(c). To demonstrate a “severe” impairment, an applicant must
demonstrate something beyond “a slight abnormality or a combination of slight
abnormalities that causes no more than minimal functional limitations. . . .” 20 C.F.R.
§ 416.924(c); see also McCrea v. Commissioner of Soc. Sec., 370 F.3d 357, 360 (3d Cir.
2004).
8
We conclude that the ALJ’s finding that Cacere had not met her burden of
demonstrating more than a “slight abnormality” attributable to claimant’s obsessive
compulsive disorder is supported by substantial evidence. Significantly, Dr. Hernandez
opined that claimant’s medical regimen resulted in improvement in symptoms of
claimant’s obsessive compulsive disorder. Of equal import, claimant’s school teacher,
Mr. Matranga, did not mention any significant behavioral abnormalities in his
submission.
3. Sufficiency of the ALJ’s Explanation
We also reject Cacere’s contention that the ALJ failed to explain properly his
discrediting of evidence in the record. We have repeatedly explained that “we are unable
to conduct our substantial evidence review if the ALJ fails to identify the evidence he or
she rejects and the reason for its rejection.” Walton v. Halter, 243 F.3d 703, 710 (3d Cir.
2001). In viewing the ALJ’s decision as a whole, we conclude that the ALJ’s reasoning
was sufficient to allow for meaningful judicial review.
As noted above, the ALJ rejected some of the IQ test scores because they were at
variance with other evidence, including the report from claimant’s treating psychiatrist
and claimant’s status in her age-appropriate grade. Regarding subjective allegations of
claimant’s obsessive compulsive disorder, the ALJ explained that it was less severe than
alleged by Cacere, relying primarily on the evidence provided by Dr. Hernandez and
claimant’s teacher, Mr. Matranga, discussed previously.
9
IV. Conclusion
Based on the foregoing analysis, we conclude that the Commissioner’s final
determination is supported by substantial evidence and, therefore, deny Cacere’s request
for a remand.
10