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finding that even though plaintiff lived alone, "substantial evidence establishes conclusively that [she] does not meet the standards of independence" of a woman of her age given the substantial evidence of deficits in adaptive functioning in the areas of communication, self-care, home living, use of community resources, work, and health and safety
Summary of this case from Miles v. Comm'r of Soc. Sec.Opinion
Case No. 3:12-cv-00259
08-26-2013
KIMBERLY CLARK Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED;
(2) JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF
AWARDING BENEFITS
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore unentitled to disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). (See Administrative Transcript ("Tr.") (PageID 63-72) (ALJ's decision)).
I.
Plaintiff filed applications for DIB and SSI on October 20, 2008, alleging disability since December 31, 2003. (PageID 63, 519). Plaintiff alleges disability due to mental retardation. (PageID 65, 524).
Plaintiff also complains of other severe impairments including: a vertebral disorder of the lumbosacral spine and a depressive disorder NOS. (PageID 65-66, 520).
Plaintiff's claim was denied initially and on reconsideration. (PageID 104, 114). Plaintiff timely filed a request for a hearing before an ALJ. (PageID 119). A hearing was held on September 9, 2010. (PageID 78-97). The ALJ denied the claims in a decision dated March 19, 2011, finding that Plaintiff is "not disabled." (PageID 60-72). Plaintiff requested review of the decision by the Appeals Counsel. (PageID 58-9). The Appeals Council denied review, making the ALJ's decision the Commissioner's final decision. (PageID 52-4). Plaintiff then commenced this action in this Court under 42 U.S.C. sections 405(g) and 1383(c)(3).
At the time of the hearing, Plaintiff was 32 years old, single, with two dependent children. (PageID 81-82, 355). Growing up, she participated in learning disability classes and completed high school. (PageID 83). Plaintiff's past relevant work is as cleaner and dishwasher. (PageID 70, 357).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2004.
2. The claimant engaged in substantial gainful activity during the following periods: January 18, 2008 to August 25, 2008 (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).
3. However, there have been continuous 12-month periods during which the claimant did not engage in substantial gainful activity. The remaining findings address the periods the claimant did not engage in substantial gainful activity.
4. The claimant has the following severe impairments: a vertebral disorder of the lumbosacral spine, a depressive disorder NOS, and borderline intellectual functioning (20 CFR 404.1520(c) and 416.920(c)).(PageID 65-72).
5. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.925 and 416.926).
6. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that she needs the option to sit or stand at will to relieve pain and avoid an exacerbation of her vertebral disorder. Furthermore, she is limited to simple tasks with no requirement to read or write as a part of her job duties, and she is restricted to jobs featuring minimal personal contact and no production quotas.
7. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
8. The claimant was born on December 25, 1977 and was 26 years old, which defined her as a younger individual, age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
9. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
10. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568 and 416.968).
11. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
12. The claimant has not been under a disability, as defined in the Social Security Act, from December 31, 2003, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations and was therefore not entitled to disability insurance benefits or supplemental security income. (PageID 72).
On appeal, Plaintiff argues that the ALJ erred in failing to consider the totality of the record and erroneously found that Plaintiff did not meet Section 12.05(c) of the Listings.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
While in school, Ms. Clark participated in learning disability classes. (PageID 83). She graduated high school and does not have any post high school education. (Id.) Ms. Clark had difficulty holding a job. She reported that she worked at thirteen different jobs from 1994-2002 and seven different jobs between 2001 and 2008. (PageID 205-06, 261-67). Several of these jobs lasted only a few months or weeks. (Id.) She lost her most recent job as a dishwasher due to her inability to do the required lifting. (PageID 83, 84). She began working as a hotel housekeeper when she was a teenager and stopped working when the hotel closed 18 months later. (PageID 357). Ms. Clark reported to Dr. Michael Farrell PhD that she had never been fired; had no problems getting along with coworkers or supervisors; had no problems learning assigned duties; had no problems with quality, speed, or accuracy of her work; and had no problems with work attendance. (Id.)
At the hearing, Ms. Clark was thirty-two years old and single with two dependent children. (PageID 81, 82). She requires assistance on a daily basis from her mother and aunt, including help with chores, cooking, and going to the grocery store. (PageID 89, 90). Her mother has to live close by to check up on Ms. Clark and her children. (PageID 89). Ms. Clark's mother helps her with cooking, such as measuring ingredients and determining when to take food out of the oven. (Id.) Ms. Clark's mother also helps her with laundry and grocery shopping. (PageID 89, 90).
Ms. Clark cannot read enough to read a newspaper. (PageID 83). In order to read her mail, Ms. Clark calls her aunt or mother to read it to her. (PageID 89). She cannot multiply or divide. (PageID 90).
Ms. Clark testified that when she took her driver's license test, the questions were read to her. (PageID 83, 88). Even still, she failed the test the first time and had to re-take it to pass. (PageID 88). Ms. Clark required the assistance of her aunt to fill out the Social Security Paperwork. (Id.) She also needed assistance from her aunt or mother to fill out job applications. (PageID 89, 90).
Ms. Clark also suffers from depression and anxiety. (PageID 84). She has difficulty coping and is easily upset. (Id.)
Ms. Clark reported to Dr. Farrell that she was able to care for her hygiene and other personal needs without assistance. (PageID 358). She said she could read, write, handle money, and calculate basic math, but to a limited degree. (Id.) She performed daily chores, with limitations only related to her physical condition. (Id.)
Ms. Clark also described her physical impairments at the hearing. She fell and injured her back in 2003, which continues to cause her chronic pain in her back. (PageID 85). Ms. Clark explained that she can only be on her feet for thirty minutes at a time, sit for twenty to thirty minutes at a time, and cannot lift a gallon of milk. (PageID 85, 86). She uses a TENS unit daily. (PageID 91). Surgery was recommended for her back, but the surgery created a fifty percent chance that she would not walk after it, so Ms. Clark was afraid to have the surgery performed. (Id.)
Ms. Clark underwent mental evaluations on May 12, 1993, when she was fifteen years-old. (PageID 433-37). The psychologist concluded that Ms. Clark appeared to be functioning in the mentally retarded range with academic achievement near learning expectancy in all areas, and that Ms. Clark was delayed in all areas of adaptive behavior. (PageID 435-37). Ms. Clark scored a 59 verbal IQ, a 61 verbal comprehension IQ, a 64 performance IQ, a 67 perceptual organization IQ, and a full-scale IQ of 58. (PageID 433). These scores were determined to be valid. (Id.) The Vineland Adaptive Behavioral Scale showed that Ms. Clark had low communication skills, moderately low daily living skills, and moderately low socialization skills. (PageID 437). The Bender Visual-Motor Gestalt Test showed that Ms. Clark had marked immaturity and malfunction in her visual-motor perception. (Id.) On the Goodenough-Harris Draw-A-Man Test, Ms. Clark's fine motor skills were below the average range. (Id.) The psychologist concluded that Ms. Clark appeared to be functioning in the mentally retarded range with academic achievement near learning expectancy in all areas, and that Ms. Clark was delayed in all areas of adaptive behavior. (Id.)
Ms. Clark's school records were submitted. (PageID 438-446). These show deficits in communication and work skills. (Id.) Individualized Education Programs (IEP) for Ms. Clark focused on developing reading skills, writing skills, and study skills to function in a classroom. (Id.) IEP's also show Ms. Clark needed to work on math skills for budgeting and calculating gas costs. (Id.) By May 22, 1996, Ms. Clark was exempt from all proficiency tests. (Id.)
Dr. Stephen Halmi, PhD, evaluated Ms. Clark for the government on January 15, 2009. (PageID 355-64). This evaluation included an IQ test, and again Ms. Clark scored 70 or below on all scales, with a full scale IQ of 65. These scores were also determined to be valid. (Id.) Dr. Halmi determined that Ms. Clark performed in a mentally deficient range on intellectual and memory testing. (PageID 359-62). Considering only Dr. Vosler's November 5, 2008 report, and Plaintiff's May 31, 1996 IEP, Dr. Halmi diagnosed as Borderline Intellectual Functioning. (PageID 355-64). Dr. Halmi recommended that if Ms. Clark was awarded benefits, she be assigned a payee because her cognitive abilities were so impaired. (PageID 362). Dr. Halmi ultimately concluded that Ms. Clark was not mentally retarded and instead found that she had borderline intellectual functioning. (PageID 360).
Ms. Clark received mental health treatment from Samaritan Behavioral Health in 2010. (PageID 472-506). These records show Ms. Clark has struggled with depression for years, is easily irritated, emotional, moody, anxious, and has difficulty with her memory. (Id.) Her therapist noted her anxious and agitated appearance. (PageID 480). Additionally, Ms. Clark indicated on June 15, 2010, that she could not complete the paperwork necessary for her session, because she was unable to read or remember the material. (PageID 482).
The record also evidences Ms. Clark's physical impairments. An MRI from December 2005 clearly shows a significant disc herniation at L5-S1 and moderately severe bilateral facet arthropathy. (PageID 416, 421). A CT scan from October 2008 also showed left foraminal stenosis at L5-S1 with some displacement of the left S1 nerve root. (PageID 425). Dr. Aivar Vitols, an orthopedic specialist, evaluated Ms. Clark in February 2009. (PageID 370-73). He found that Ms. Clark's chronic lumbosacral sprain and strain caused diminished range of motion in her lumbar spine and diminished her capacity for bending and twisting at the waist. (Id.)
The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through September 30, 2004, but not thereafter. (PageID 65). At Step Two of the sequential evaluation process, the ALJ found that Plaintiff had the severe impairments of a vertebral disorder of the lumbosacral spine, a depressive disorder NOS, and borderline intellectual function. (Id.) At Step Three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listing. (PageID 66). The ALJ found that Plaintiff retained the residual functional capacity ("RFC") to perform sedentary work except that she needs the option to sit or stand at will to relieve pain and avoid an exacerbation of her vertebral disorder. (PageID 69). Further, Ms. Clark is limited to simple tasks that do not require her to read or write and involve minimal personal contact and no production quotas. (Id.) The ALJ found that Plaintiff was unable to perform any past relevant work at Step Four, but identified sedentary exertion level jobs, such as inspector and sorter, that Plaintiff could perform at Step Five. (PageID 70).
B.
Plaintiff maintains that the ALJ erroneously found that she does not meet Section 12.05(c) of the Listing of Impairments for Mental Retardation because he found no evidence of deficits in adaptive functioning. (PageID 524).
In order to meet Listing 12.05(c), Plaintiff must evidence that she "experiences 'significantly subaverage general intellectual functioning with deficits in adaptive functioning [that] initially manifested during the developmental period' (i.e., the diagnostic description); (2) [s]he has a 'valid verbal, performance or full scale IQ of 60-70'; and (3) [s]he suffers from 'a physical or other mental impairment imposing an additional and significant work-related limitation of function.'" West v. Comm'r Social Sec. Admin., 240 F. App'x 692, 697-98 (6th Cir. 2007) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(c)).
An IQ score between 55 and 70 often signifies the presence of mild mental retardation. American Psychiatrist Association, Diagnostic and Statistical Manual of Mental Disorders (DSM IV), Text Revision, 39-41, (4th ed. 2000). However, to diagnose mild mental retardation, there must be evidence of significant limitations in at least two specified areas of adaptive functioning. (Id.) These areas include communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. The ALJ explained that the record reflects that Ms. Clark does not have significant limitations in those areas. (PageID 68). The ALJ points to Ms. Clark's work history and the fact that she maintains her own home independently. (Id.) Additionally, the ALJ refers to Dr. Halmi's diagnosis of borderline intellectual functioning instead of mental retardation. (Id.)
Adaptive functioning generally refers to how effectively an individual copes with common life demands, and how well they meet the standards of independence expected of someone of his or her age and cultural background. (PageID 68).
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However, Ms. Clark's school records show that she was in developmentally handicapped special education programs and operated under an Individualized Education Program. (Exhibit 25F). Ms. Clark cannot read her own mail or a newspaper and requires help to fill out job applications, which shows that she experiences significant communication limitations; she only passed the driver's license test after it was read to her. (PageID 83, 88, 89). She requires assistance on a daily basis from her mother and aunt, including help with chores, cooking, and going to the grocery store. (PageID 89, 90). Further, she is unable to multiply or divide. (PageID 90). Testing conducted when Ms. Clark was 15 diagnosed mild mental retardation with a verbal IQ score of 69. (PageID 435). Her school record further indicates she was "delayed in all areas of adaptive behavior." (PageID 437). Additionally, Dr. Halmi indicated Ms. Clark is not able to handle money and should be appointed a payee. (PageID 362). Further, Ms. Clark had 13 different jobs in eight years and frequently failed to notify her employers properly when leaving a job. (PageID 205-06, 440-46).
Dr. Halmi evaluated Ms. Clark on January 9, 2009. (PageID 355). Dr. Halmi only reviewed one of Ms. Clark's IEPs and a report by Dr. Scott Vosler, D.O. (PageID 356, 360). Based on that review, he indicated that there was not sufficient evidence that Ms. Clark lacked the requisite adaptive abilities to diagnose Mild Mental Retardation. However, Dr. Halmi did not review Plaintiff's education records which determined that Plaintiff was "functioning in the mentally retarded range intellectually" and that she was "delayed in all areas of adaptive behavior." (PageID 437). Thus, ultimately, Dr. Halmi reviewed an incomplete record. Therefore, Dr. Halmi's conclusions are not based on the totality of the record and the ALJ erred in relying on his conclusions.
Accordingly, the Court finds that the ALJ improperly weighed the evidence of Ms. Clark's level of adaptive functioning. The substantial evidence establishes that Plaintiff meets Listing 12.05(c). Specifically: (1) Plaintiff experiences significantly sub-average intellectual functioning which initially manifested during the development period; (2) Plaintiff has a valid IQ score of 65; and (3) Plaintiff suffers from additional significant work-related limitations (vertebral disorder and depressive disorder). The record contains substantial evidence that Ms. Clark meets the requisite deficits in adaptive functioning, in the areas of communication, self-care, home living, use of community resources, work, and health and safety. Further, the ALJ's faulty reliance of Dr. Halmi's incomplete report does not constitute substantial evidence so as to overcome the substantial evidence of Ms. Clark's level of adaptive functioning. The substantial evidence establishes conclusively that Ms. Clark does not meet the standards of independence expected of a 35 year old woman of her cultural background; instead, she relies on her mother and aunt who must check on her daily.
Here, the proof of disability is strong and opposing evidence is lacking in substance.
III.
When, as here, the non-disability determination is not supported by substantial evidence, the Court must decide whether to reverse and remand the matter for rehearing or to reverse and order benefits granted. The Court has authority to affirm, modify or reverse the Commissioner's decision with or without remanding the cause for rehearing. 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991).
Generally, benefits may be awarded immediately only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits. Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987).
The Court may award benefits where the proof of disability is strong and opposing evidence is lacking in substance, so that remand would merely involve the presentation of cumulative evidence, or where the proof of disability is overwhelming. Faucher, 17 F.3d at 176; see also Felisky, 35 F.3d at 1041; Mowery v. Heckler, 772 F.2d 966, 973 (6th Cir. 1985). Such is the case here.
Here proof of disability is overwhelming and remand will serve no purpose other than delay. As fully recited supra, in view of the extensive evidence of Plaintiff's deficits in adaptive functioning, school records, IQ scores, mental evaluations, and job history and limitations, proof of disability is overwhelming.
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner, that Plaintiff was not entitled to a disability insurance benefits and supplemental security income beginning December 31, 2003, is hereby found to be NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this matter is REMANDED to the Commissioner for an immediate award of benefits. The Clerk shall enter judgment accordingly.
_____________
Timothy S. Black
United States District Judge