Cox v. Kijakazi

77 F.4th 983

Angela M. COX, Appellant v. Kilolo KIJAKAZI, Acting Commissioner, Social Security Administration, Appellee

No. 22-5050

Consolidated with 22-5070

United States Court of Appeals, District of Columbia Circuit

Argued May 1, 2023

Decided July 28, 2023

Appeals from the United States District Court for the District of Columbia, (No. 1:18-cv-02389).

Christine P. Benagh argued the cause and filed the briefs for appellant/cross-appellee.

Alisa B. Klein, Attorney, U.S. Department of Justice, argued the cause for appellee/cross-appellant. With her on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Edward Himmelfarb, Attorney. Jane M. Lyons, Assistant U.S. Attorney, entered an appearance.

Before: Srinivasan, Chief Judge, Millett and Childs, Circuit Judges.

Millett, Circuit Judge:

In 2014, Angela Cox applied for Supplemental Security Income based on disability. While her application was pending, the Social Security Administration promulgated rules with new criteria for demonstrating disability and made them applicable to pending claims like Cox's. An Administrative Law Judge subsequently found Cox ineligible for benefits under those updated criteria.

Cox then filed suit in federal district court, and the court overturned the agency's decision on the ground that application of the new criteria was impermissibly retroactive. The court ordered the agency to reconsider Cox's case under the criteria in place when she first filed her claim. The district court rejected all of Cox's other challenges to the agency's decision.

Cox and the Social Security Administration have cross-appealed. We hold that application of the new criteria to Cox's pending claim was not retroactive, but that the Administrative Law Judge erred in his analysis of evidence from Cox's treating physician. Accordingly, we reverse the district court's decision and remand for further proceedings.

I

A

The Social Security Act, 42 U.S.C. § 301 et seq., was enacted in 1935 in response to economic suffering and deprivation caused by the Great Depression. See Smith v. Berryhill, — U.S. —, 139 S. Ct. 1765, 1771, 204 L.Ed.2d 62 (2019). Title XVI of the Act, 42 U.S.C. §§ 1381-1383f, sets out the Supplemental Security Income ("SSI") program, which provides benefits for low-income individuals who are over 65 years old, those who are blind, and those who are disabled. See id. §§ 1381, 1381a, 1382; see also Bowen v. Galbreath, 485 U.S. 74, 75, 108 S.Ct. 892, 99 L.Ed.2d 68 (1988).

To be eligible for SSI based on disability, a claimant must demonstrate that disability prevents her from earning a living. In particular, the Act requires that a successful claimant be "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment" that either "can be expected to result in death" or "has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). Such an impairment must be severe enough that a claimant "is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work * * * in the national economy[.]" Id. § 1382c(a)(3)(B).

The Social Security Administration ("Administration") has promulgated regulations that set out a sequential, multi-step process for determining whether a claimant is disabled.

First, the claimant must show that she is not engaged in "substantial gainful activity[.]" 20 C.F.R. §§ 416.920(a)(4)(i), (b).

Second, the claimant must show that she has a "severe medically determinable physical or mental impairment" that meets the statutory requirements. 20 C.F.R. § 416.920(a)(4)(ii); see id. §§ 416.909, 416.920(c); 42 U.S.C. § 1382c(a)(3)(A).

Third, the claimant can establish a qualifying disability by showing that she "suffers from an impairment that meets or equals an impairment listed in the appendix to the [Administration] regulations[,]" which is known as its "Listings." See Jones v. Astrue, 647 F.3d 350, 353 (D.C. Cir. 2011). If the claimant has met the first two steps and her disability is on that list, she is deemed disabled and qualifies for benefits, with no further inquiry. 20 C.F.R. §§ 416.920(a)(4)(iii), (d); Jones, 647 F.3d at 353.

Fourth, if the claimant's impairment does not fall within the Listings, she may still be entitled to benefits. Under step four, the Administration evaluates the claimant's "residual functional capacity and [her] past relevant work." 20 C.F.R. § 416.920(a)(4)(iv). An individual's "residual functional capacity" is "the most [she] can still do despite [her] limitations." Id. § 416.945(a)(1); see Butler v. Barnhart, 353 F.3d 992, 1000 (D.C. Cir. 2004) (residual functional capacity inquiry "is designed to determine the claimant's uppermost ability to perform regular and continuous work-related physical and mental activities in a work environment"). So step four evaluates whether the claimant is able, physically and mentally, to perform her past relevant work. If she can, then she will be found not disabled. See 20 C.F.R. §§ 416.920(e), (f).

In making the residual functional capacity determination, the Administration considers medical and other evidence. By regulation, the Administration is required to give "controlling weight" to the opinions of a treating physician "if they are not inconsistent with other substantial record evidence and are well-supported by medically acceptable clinical and laboratory diagnostic techniques." Butler, 353 F.3d at 1003 (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)) (internal quotation marks omitted); see id. (according "substantial weight" to the opinions of treating physicians) (quoting Williams v. Shalala, 997 F.2d 1494, 1498 (D.C. Cir. 1993)). If the Administration does not give a treating physician's opinion controlling weight, then the Administration must "always give good reasons * * * for the weight" it does give the opinion. See 20 C.F.R. § 404.1527(c)(2).

The claimant bears the burden of proof at each of those four steps. Jones, 647 F.3d at 352. If the claimant succeeds, then the burden shifts, at the fifth step, to the Commissioner of Social Security to demonstrate that the claimant can perform other work. See 20 C.F.R. § 416.920(a)(4)(v). To meet that burden, the Commissioner must show that the claimant "can make an adjustment to other work, and must show that there are jobs in the national economy that the claimant can perform" in light of the claimant's "residual functional capacity, age, education, and work experience[.]" Jones, 647 F.3d at 353. If the Commissioner cannot make that showing, then the claimant is disabled and entitled to benefits. Id.

This case involves step three, which considers whether the claimant's impairment fits within the Administration's "Listings." At the time Angela Cox applied for SSI benefits, the Administration's Listings provided that a claimant would be deemed disabled if she had "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22." 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05 (2014) ("2014 Listings"). The regulation then listed four possible ways that the "required level of severity" for this disorder could be met:

A. Mental incapacity evidenced by dependence upon others for personal needs (e.g., toileting, eating, dressing, or bathing) and inability to follow directions, such that the use of standardized measures of intellectual functioning is precluded; OR

B. A valid verbal, performance, or full scale IQ of 59 or less; OR

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; OR

D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least two of the following:

1. Marked restriction of activities of daily living; or

2. Marked difficulties in maintaining social functioning; or

3. Marked difficulties in maintaining concentration, persistence, or pace; or

4. Repeated episodes of decompensation, each of extended duration.

Id.

While Cox was waiting for a hearing before an Administrative Law Judge ("ALJ"), the Administration promulgated new Listings. See Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66,138 (Sept. 26, 2016) ("2017 Listings"). The updated Listings became effective January 17, 2017, and applied both to "new applications filed on or after the effective date of the rules, and to claims that [were] pending on or after the effective date." Id. at 66,138.

The 2017 Listings provide that a claimant is disabled if she has an intellectual disorder and her "[1] disorder is characterized by significantly subaverage general intellectual functioning, [2] significant deficits in current adaptive functioning, and [3] manifestation of the disorder before age 22." 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00B(4)(a); see Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. at 66,161.¹

The first element "requires a claimant to have obtained either" a full-scale IQ score of 70 or below, or a full-scale IQ score of 71-75 with a verbal or performance IQ score of 70 or below. Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. at 66,155. The second element requires an "extreme limitation of one, or marked limitation of two" of: (a) abilities to understand, remember, or apply information; (b) interaction with others; (c) concentration, persistence, or maintaining pace, or (d) adapting or managing one's self. Id. at 66,167. Finally, the claimant must provide evidence that "demonstrates or supports the conclusion that the disorder began prior to age 22." Id.

B

Angela Cox is 57 years old. Her complaint alleges that she has an IQ of 61,...