Opinion
Civil Action No. SA-04-CA-0261 XR (NN).
June 14, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Xavier Rodriguez United States District Judge
I. Introduction
This action concerns the denial of Supplemental Security Income ("SSI") to a minor child, plaintiff Quincy Daniels. By way of the instant action, plaintiff and his mother, co-plaintiff Wanda Daniels, seek review and reversal of the administrative denial of his application for SSI by Administrative Law Judge ("ALJ") Justilian Martin on December 18, 2003.After considering plaintiff's brief in support of the complaint, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration (hereafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's request for relief be GRANTED, the decision of the Commissioner REVERSED and this action REMANDED for further proceedings consistent with this Memorandum and Recommendation.
Docket Entry 12.
Docket Entry 15.
Docket Entry 16.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. §§ 405, 1383.
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted his administrative remedies prior to filing this action in federal court. Plaintiff's mother, Wanda Daniels, filed an application for SSI on behalf of plaintiff on July 12, 2001. The SSA denied plaintiff's application both initially, on September 21, 2001, and on reconsideration, February 28, 2002.
Transcript, at 47-51.
Transcript, at 20-24.
Transcript, at 28-31.
On April 17, 2002, plaintiff requested a hearing before an ALJ. The hearing was held on September 29, 2003. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to examine and question plaintiff, plaintiff's mother and the medical expert, Dr. Melvin Cohen.
Transcript, at 32.
Transcript, at 361-383.
The plaintiff, who was ten years old at the September 2003 administrative hearing, testified that he attended school and was in the fourth grade. Upon questioning by the ALJ, plaintiff stated that he never repeated a grade level. Although he initially testified that he did not have problems in school, plaintiff later told the ALJ that he had problems talking and moving around during class when he was not supposed to do so. Plaintiff stated that he had friends and walked to school every day.
Transcript, at 364.
Transcript, at 365.
Transcript, at 365-366.
Transcript, at 367-368.
Transcript, at 368.
ALJ Martin then heard testimony from plaintiff's mother, Wanda Daniels. Ms. Daniels testified that plaintiff got into a lot of trouble at school and was transferred into a "self contained" class. She told the ALJ that plaintiff was transferred into special education in kindergarten on the basis of his emotional disability, his disruptive behavior, and his speech impediment. Ms. Daniels also stated that plaintiff had trouble sleeping and was often nervous and frustrated. She further testified that plaintiff was able to dress himself and tie his own shoes, but needed to be reminded of every task to accomplish (dressing, combing hair, brushing teeth, etc.) every morning.
Transcript, at 368-376; 383-383.
Transcript, at 369.
Transcript, at 370.
Transcript, at 371, 372.
Transcript, at 382.
Ms. Daniels clarified that plaintiff walked a block and a half to school with a group of children and a parent chaperone. She also stated that plaintiff routinely tested at approximately one to one and a half grade levels below his own in all subjects. Plaintiff's mother further testified that plaintiff was "below the level" and unable to concentrate when he underwent testing. She also told ALJ Martin that plaintiff was very disruptive in class before he was tested for Attention Deficit Hyperactivity Disorder (ADHD).
Transcript, at 371, 372.
Transcript, at 376.
Transcript, at 375.
Transcript, at 373.
When asked about plaintiff's medical treatments, Ms. Daniels testified that plaintiff took medication every day. She further told the ALJ that plaintiff saw his treating physician, psychiatrist Dr. Holgean, once every other month.
Transcript, at 375.
Transcript, at 374.
At the hearing, ALJ Martin also heard testimony from medical expert, Dr. Melvin Cohen. Dr. Cohen testified that none of plaintiff's impairments were of listing-level severity and, in particular, that plaintiff's ADHD was not of listing level severity. In assessing the domains of functioning, Dr. Cohen stated that plaintiff had less than marked impairments in the acquiring and using information domain, as well as the attending and completing tasks domain. He further testified that plaintiff had no limitations in the domains of moving and manipulating objects, caring for himself and/or health and physical well-being. Dr. Cohen opined that plaintiff might, on occasion, have a marked level of impairment in the domain of interacting and relating to others.
Transcript, at 364, 376-381.
Transcript, at 364, 377.
Transcript, at 377.
Transcript, at 378.
Transcript, at 377.
Dr. Cohen further testified that there was no evidence that plaintiff's psychiatrist concurred with a diagnosis of generalized anxiety disorder. However, Dr. Cohen explained that the listings were based on a claimant's functioning. Therefore, different diagnoses — without more — would not affect his conclusions as to the level of plaintiff's impairment in a particular domain.
Transcript, at 379.
Transcript, at 380.
On December 18, 2003, ALJ Martin issued his decision in which he concluded that plaintiff was not under a "disability," as defined by the Social Security Act ("the Act"). After receiving the ALJ's unfavorable decision, plaintiff requested review of the hearing and decision on January 26, 2004. On February 27, 2004, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action in this court on March 26, 2004.
Transcript, at 8-16.
Transcript, at 359-360.
Transcript, at 4-7.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards?V. Analysis
A. Judicial Review: Substantial Evidence Standard
In reviewing the Commissioner's decision, the court is limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3) (2002).
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In reviewing the Commissioner's findings, the court must carefully examine the entire record, but refrain from re-weighing the evidence or substituting its judgment for that of the Commissioner. "Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve." B. Statutory Framework for Determining SSI Childhood Disability
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez, 64 F.3d at 174.
The evaluation process for determining childhood disability is outlined in 20 C.F.R § 416.924. The inquiry for childhood disability requires a child (or, more likely, his guardian) to establish that: (1) he is not engaged in substantial gainful activity (i.e., not working); (2) he has a severe impairment or combination of impairments; and (3) his impairment or combination of impairments is of listing-level severity, that is, the impairment(s) met, medically equaled, or functionally equaled the severity of an impairment in the listings.
See 20 C.F.R. § 416.924(a-d).
In order to meet the third prong of the childhood disability test — that the impairment or combination of impairments functionally equaled the severity of a listed impairment — the child must establish that he has a marked limitation in two broad areas of functioning, also known as "domains," or an extreme limitation in one domain. The domains used to assess childhood disability are:
See 20 C.F.R. § 416.926a.
(i) Acquiring and using information;
(ii) Attending and completing tasks;
(iii) Interacting and relating with others;
(iv) Moving about and manipulating objects;
(v) Caring for [him]self; and
(vi) Health and physical well-being.
20 C.F.R. § 416.926a(b)(1)(i-vi).
In this case, ALJ Martin concluded that plaintiff had a less than marked impairment in the domains of acquiring and using information and attending and completing tasks. The ALJ further found that plaintiff had a marked impairment in the domain of interacting and relating with others, but no limitation in the domains of moving about and manipulating objects, caring for himself, or health and physical well-being. C. Is the ALJ's December 18, 2003 Decision Supported by Substantial Evidence?
Transcript, at 13-16.
Plaintiff challenges the ALJ's decision, asserting that ALJ Martin: (1) erroneously concluded that plaintiff "was `less than marked' in the functional domain acquiring and using information;" (2) erroneously concluded that plaintiff was "`less than marked' in the functional domain caring for yourself;" and (3) accorded inadequate weight to the medical opinions of Dr. Stephen Drake, Ph.D, and Marcedes White, M.S. Plaintiff argues that these mistakes constitute reversible error and that substantial evidence does not support the ALJ's decision. Importantly, because ALJ Martin found that plaintiff had a marked impairment in the domain of interacting and relating with others, a finding that plaintiff had a marked impairment in a second domain would necessitate a finding of disability.
See Docket Entries 12, 16.
1. Did ALJ Martin erroneously conclude that plaintiff was less than marked in the acquiring and using information domain?
In his first point of error, plaintiff asserts that ALJ Martin erroneously concluded that plaintiff was less than marked in the domain of acquiring and using information. Although the ALJ relied upon the testimony of medical expert Dr. Cohen to determine that plaintiff's standardized test scores were not more than two standard deviations below normal, plaintiff argues that the ALJ ignored other evidence of record — evidence which the ALJ was obligated to consider.
See Docket Entry 12, at 9-12. The domain of acquiring and using information considers "how well you acquire or learn information, and how well you use the information you have learned." 20 C.F.R. § 416.926a(g).
Docket Entry 12, at 9-12.
In defining a "marked limitation," the Regulations state:
We will find that you have a `marked' limitation in a domain when your impairment(s) interferes seriously with your ability to independently initiate, sustain, or complete activities. Your day-to-day functioning may be seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects of your impairment(s) limit several activities. `Marked' limitation also means a limitation that is `more than moderate' but `less than extreme.' It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.
The Regulations further explain, however, that no one piece of evidence — not even test scores — is dispositive:
we will not rely on any test score alone. No single piece of information taken in isolation can establish whether you have a `marked' or an `extreme' limitation in a domain . . . We will consider your test scores together with the other information we have about your functioning, including reports of classroom performance and the observations of school personnel and others.
20 C.F.R. § 416.926a(e)(4)(i-ii).
When assessing plaintiff's level of impairment in the domain of acquiring and using information, ALJ Martin wrote, in pertinent part:
The first domain addresses the issue of how well the child acquires information and how well the child uses the information which is learned. I accept Dr. Cohen's opinion that Quincey has less than `marked' limitations in this area. The record shows that Quincey has a verbal IQ of 83, a performance IQ of 73, and a full scale IQ of 76 (Exhibit 14E, page 33). His achievement tests are below average in some areas but less than 2 standard deviations below normal (Exhibit 14E, page 34).
Transcript, at 15.
There is, however, evidence in the record beyond plaintiff's test scores which speaks to his difficulties in acquiring and using information. For example, a report authored by plaintiff's school officials concluded that plaintiff had difficulty remembering tasks, the testers had difficulty administering the test, plaintiff was overwhelmed by the demands of school, and plaintiff had a very limited ability to cope with the problems which interfered with his ability to learn. The report also noted that plaintiff's teachers "have tried a number of educational/behavioral strategies to help Quincey function more effectively in school" but "few are reported to be successful." Finally, the report itself indicated that plaintiff's ability to learn could not be measured by his IQ test scores alone.
Transcript, at 157.
Transcript, at 158.
Transcript, at 162.
Transcript, at 163.
Transcript, at 155.
Transcript, at 163-164.
ALJ Martin failed to discuss any of the aforementioned evidence in his decision. In support of the ALJ's decision, defendant argues:
Plaintiff is correct in the assertion that the ALJ relied heavily upon the testimony of a medical expert, Melvin Cohen, M.D. (Tr. 376-383). The Commissioner respectfully submits that the discussions between both the ALJ and Plaintiff's attorney with Dr. Cohen strongly suggest that the ALJ considered the relevant evidence of record in finding Plaintiff did not have marked limitations in acquiring and using information. While it would have been preferable for the ALJ to have more thoroughly discussed the evidence that Dr. Cohen relied upon, the transcript indicates that the ALJ carefully considered the evidence of record in evaluating the domain of acquiring and using information.
Docket Entry 15, at 4-5. Defendant also noted that another report found plaintiff to have an emotional disturbance and a speech impairment but not a learning disability. Id. , at 6. See also Transcript, at 174. The fact that a school official failed to place a check mark beside "learning disability" does not, in and of itself, contradict the findings of the more detailed school report discussed herein. See Transcript, at 154-173. Importantly, the same report cited by defendant also found that plaintiff needed special education services. See Transcript, at 174.
Defendant's attempt to excuse the ALJ's failure to cite all the relevant evidence is unavailing. The ALJ must adequately articulate the basis for his decision. Similarly, the decision must be supported based on the evidence cited by the ALJ, as well as the ALJ's explicit written conclusions. It is improper for the court to assume that the ALJ assessed un-cited evidence in the record or to find that the transcript of the hearing, as opposed to the decision, "strongly suggest[s]" that the ALJ considered evidence of record. Moreover, the case authority is clear that the ALJ may not "`pick and choose' only the evidence that supports his position."
Loza v. Apfel, 219 F.3d 378, 393-394 (5th Cir. 2000) (internal citations omitted).
In this case, the ALJ improperly disregarded evidence of record that might have changed his ultimate conclusions. Importantly, had the ALJ found that plaintiff had a marked limitation in the domain of acquiring and using information — in addition to the domain of interacting and relating with others — he also would have found plaintiff disabled. Since conflicts in the evidence must be resolved by the ALJ, the court may not adjudicate which opinion — that of Dr. Cohen or that of plaintiff's school administrators — is entitled to greater weight. For these reasons, I recommend that plaintiff's request for relief be GRANTED and this action REMANDED for further proceedings. On remand, I recommend that the ALJ be directed to assess the Comprehensive Individual Assessment and its impact on his conclusions as to plaintiff's level of impairment in the domain of acquiring and using information.
See Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000), "This Court will not reverse the decision of an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure . . . To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result (internal citations omitted).'"
Transcript, at 154-173.
2. Did ALJ Martin erroneously conclude that plaintiff was less than marked in the caring for yourself domain?
In his second point of error, plaintiff asserts that the ALJ erroneously concluded that plaintiff had a less than marked limitation in the caring for yourself domain. The domain of caring for yourself addresses how well the claimant
maintain[s] a healthy emotional and physical state, including how well you get your physical and emotional wants and needs met in appropriate ways; how you cope with stress and changes in your environment; and whether you take care of your own health, possessions, and living area.
20 C.F.R. § 419.926a(k).
Plaintiff argues that "the ALJ's analysis addressed only a few of several factors to take into consideration."
Docket Entry 12, at 12.
In support of his position that plaintiff has a marked impairment in the domain of caring for himself, plaintiff cited a report dated May 7, 2001, which included plaintiff's mother's statements that plaintiff defecated outside and sucked his thumb. Plaintiff also referred the court to a report that found that plaintiff had a below average "ability to remember information just heard, adapt to new situations without getting upset, initiate activities independently, and retain instructions from week to week." Finally, plaintiff cited his mother's testimony regarding the assistance plaintiff needs in dressing and caring for himself, as well as the frustrations he feels when performing the same. Plaintiff asserts that the ALJ's failure to include explicit findings as to Ms. Daniels' credibility constitutes prejudicial error.
Docket Entry 12, at 13, citing Transcript, at 157.
Docket Entry 12, at 13, citing Transcript, at 120-121.
Docket Entry 12, at 13, citing Transcript, at 372, 382.
Docket Entry 12, at 13, citing Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims — Assessing the Credibility of an Individual's Statements, SSR 96-7p.
In discussing the domain of caring for himself, ALJ Martin reviewed the domain's definition and considerations. Thereafter, the ALJ wrote and concluded, in complete part:
Transcript, at 15-16.
I accept Dr. Cohen's opinion that Quincey has no limitations in this area. The record shows no self-injurious behavior or inability to care for himself.
Transcript, at 16.
Although there is not an abundance of record evidence that plaintiff has marked problems in the domain of caring for himself, nevertheless the ALJ was obligated to assess the evidence which contradicted his findings. That evidence included the report of May 7, 2001, which contained Ms. Daniels' statement to treating professionals that her son defecated outside — an indication that plaintiff might have difficulty taking care of his own health — as well as her statements regarding plaintiff's level of frustration, his temper tantrums and thumb sucking (i.e., his ability to cope with stress), and her testimony at the administrative hearing regarding plaintiff's ability to dress himself. Because the evidence might have altered the ALJ's ultimate conclusions as to plaintiff's level of impairment in the domain of caring for himself, plaintiff has met his burden of establishing prejudicial, i.e. reversible, error. For the foregoing reasons, I recommend that, on remand, the ALJ be directed to assess the evidence of record cited above and its impact on his conclusions regarding plaintiff's level of impairment, if any, in the caring for yourself domain.
3. Did ALJ Martin accord inadequate weight to the medical opinions of Dr. Stephen Drake, Ph.D, and Marcedes White, M.S.?
In his third, and final, point of error, plaintiff asserts that the ALJ erroneously neglected to address discrepancies between the opinions of Dr. Stephen Drake and Marcedes White, the State Agency Medical Consultants (SAMCs), and those of medical expert Dr. Cohen with respect to their findings in the domain of attending and completing tasks.
Early in the decision, when assessing whether plaintiff's impairments or combination of impairments met or medically equaled a Listing, the ALJ stated:
State Agency psychologists and doctors have also concluded that plaintiff's impairments do not meet or medically equal any Listing. There is no other subsequent medical opinion in the record stating that the claimant meets or medically equals a listed impairment . . .
Transcript, at 13.
In subsequently addressing the domain of attending and completing tasks, the ALJ wrote, in complete part:
This domain refers to how well a child is able to focus and maintain attention. It also refers to how well a child begins, carries through, and finishes activities, including the pace at which a child performs activities and the ease with which a child can change activities.
I accept Dr. Cohen's opinion that Quincey has less than `marked' limitations in this area. The record shows that Quincey is distractable and impulsive, but he has normal concentration (Exhibit 1F, page 14) and only mild attention deficit with a GAF rating of 60 (Exhibit 1F, page 12). His treating physician noted that he is `doing well' (Exhibit R90).
Transcript, ¶ 6, at 15.
On the evaluation form filled out by both Dr. Stephen Drake and Marcedes White, SAMCs, the box for a marked impairment is checked next to the domain of attending and completing tasks. In the space for comments which follows, the SAMCs wrote:
Poor ability to stay on task. However, it appears that, per teacher, he is not getting his morning med dose at home but benefits significantly from the dose he gets at school ( sic)
Transcript, at 145.
Because this opinion was more than a mere checked box, and because it differed from the other medical evidence of record, the ALJ was obligated to document and address this report. Similarly, the SAMCs findings hold additional weight because the finding of a marked impairment in two or more domains of functioning will result in a finding of disability. Although I am not persuaded that the final outcome would have been different had the ALJ assessed the opinion of the SAMCs, his failure to do so constitutes an error of law — not an error of evidence. Consequently, I recommend that, on remand, the ALJ be directed to discuss the findings of the SAMCs and resolve any inconsistencies between their findings and those of the ALJ on the domain of attending and completing tasks.
Defendant argues that the ALJ's early reference to the SAMCs, coupled with his citation to other medical evidence of record which supported his decision as to the domain of attending and completing tasks, excuses his failure to directly resolve the conflicts between certain of the medical evidence of record and the SAMCs' findings. See Docket Entry 15, at 9-10. Defendant's argument is without merit, as the ALJ is obligated to expressly resolve conflicts in the evidence and may not merely ignore evidence which weighs against his decision. See Loza v. Apfel, 219 F.3d 378, 393-394 (5th Cir. 2000).
See Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981).
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's request for relief be GRANTED, the decision of the Commissioner REVERSED and this action REMANDED for further proceedings consistent with this Memorandum and Recommendation.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).