Opinion
CIVIL ACTION NO. 1:10cv47-WC.
March 7, 2011
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff Amber Octavia Jones applied for child's insurance benefits and supplemental security income pursuant to Titles II and XVI of the Social Security Act (Act), 42 U.S.C. §§ 401- 433, 1381-1383c (Tr. 137-43). Her applications were denied at the initial administrative level. Plaintiff then requested and received a hearing before an Administrative Law Judge (ALJ). Following the hearing, the ALJ issued a decision in which he found Plaintiff not disabled from the alleged onset date through the date of the decision. The Appeals Council rejected Plaintiff's request for review of the ALJ's decision. The ALJ's decision consequently became the final decision of the Commissioner of Social Security (Commissioner). See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry of a final judgment by the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #9); Def.'s Consent to Jurisdiction (Doc. #10). Based on the Court's review of the record and the briefs of the parties, the Court REVERSES the decision of the Commissioner.
Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.
II. STANDARD OF REVIEW
Pursuant to the Act, a person may be entitled to "child's insurance benefits" if they are eighteen years old or older and have a disability that began before the age of twenty-two. 20 C.F.R. § 404.350(a)(5). Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person is unable to
engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.42 U.S.C. § 423(d)(1)(A).
A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
To make this determination, the Commissioner employs a five-step, sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2006).
(1) Is the person presently unemployed?
(2) Is the person's impairment severe?
(3) Does the person's impairment meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of Impairments]
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of "not disabled."McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying disability once they have carried the burden of proof from Step 1 through Step 4. At Step 5, the burden shifts to the Commissioner, who must then show there are a significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do despite his impairments and is based on all relevant medical and other evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and work experience to determine if there are jobs available in the national economy the claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational Guidelines (grids) or call a vocational expert (VE). Id. at 1239-40.
See 20 C.F.R. pt. 404 subpt. P, app. 2.
The grids allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorily-required finding of "Disabled" or "Not Disabled." Id.
The Court's review of the Commissioner's decision is a limited one. This Court must find the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the Commissioner's findings, [a reviewing court] must affirm if the decision reached is supported by substantial evidence."). A reviewing court may not look only to those parts of the record which support the decision of the ALJ, but instead must view the record in its entirety and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the reasonableness of the [Commissioner's] . . . factual findings. . . . No similar presumption of validity attaches to the [Commissioner's] . . . legal conclusions, including determination of the proper standards to be applied in evaluating claims.Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. ADMINISTRATIVE PROCEEDINGS
IV. PLAINTIFF'S CLAIMS
Id. Id. Id. 20 C.F.R. part 404
V. DISCUSSION
As a preliminary matter, the court notes that the Commissioner concedes that this "was a close case on the ultimate issue of disability." Def.'s Brief (Doc. #15) at 9. The court agrees, which highlights the importance of the ALJ's duty to properly develop the record during the administrative proceedings. For some reason not apparent to this court, the ALJ appeared particularly opposed to the development of the record in this case.
See, e.g., Transcript of Hearing Tr. 35-36 (the ALJ chided Plaintiff's attorney for "leading" during attorney's follow-up questioning of Plaintiff regarding information to which Plaintiff had already testified, attempted to limit attorney's questions regarding conditions diagnosed by the consultive examiner, and instructed attorney that she is "not going to create a condition for us").
As the Court of Appeals for the Eleventh Circuit has instructed, "[b]ecause a hearing before an ALJ is not an adversary proceeding, the ALJ has a basic obligation to develop a full and fair record." Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Requiring such a record "ensures that the ALJ has fulfilled his duty . . . to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts" and enables reviewing courts "to determine whether the ultimate decision on the merits is rational and supported by substantial evidence." Welch v. Bowen, 854 F.2d 436, 440 (11th Cir. 1988).
In the present case, the ALJ found that Plaintiff had not met the requirements of section 12.05 of the Listing of Impairments because there was no valid test showing that Plaintiff had an IQ below 70 and she did not have deficits of adaptive functioning. Tr. 12-14. This is troubling because the only IQ score the ALJ apparently considered was the full scale IQ score of 62, submitted by consultive examiner Dr. Dipeolu. Tr. 304-305. The ALJ determined that this was not a valid IQ score, because Dr. Dipeolu stated in his report that Plaintiff was "not considered to be functioning in this range given her performance on the WISC-III plus her current psychological condition." Tr. 14 305. Plaintiff's "current psychological condition" included "severe depression with psychotic features." Tr. 305. However, the ALJ apparently disregarded Dr. Dipeolu's other statement that "[t]he chances that her true IQ score falls in the range from 59 to 69 are approximately 95 out of 100." Tr. 304. Thus, the ALJ relied on the portion of Dr. Dipeolu's report wherein he stated that the IQ score of 62 may not be reliable because of Plaintiff's functioning and severe depression with psychotic features, but failed to acknowledge his finding of a 95% chance that her IQ score was between 59 and 69.
The Commissioner admits that "[t]he most crucial evidence in the case is Dr. Dipeolu's March 2007 consultative examination." Def.'s Brief (Doc. #15) at 9. If that is the case, then certainly Dr. Dipeolu's determination that Plaintiff's true IQ lies somewhere between 59 and 69 should not have been ignored, especially when the ALJ stated that Plaintiff did not have a valid full scale IQ of less than 70 and used that in conjunction with her adaptive abilities to deny disability. Tr. 14.
Even more concerning is the fact that there was another full scale IQ score in the evidence of record. Dr. Molly Allen from River Park Psychiatric performed an IQ test on Plaintiff in October of 2005, approximately four months after the alleged onset date, and found a full scale IQ of 55. Tr. 199. The ALJ failed to even mention this score in his decision, although it is clear from the transcripts of the hearing that he knew about it. Tr. 42-43. The Commissioner dismisses the ALJ's failure to discuss this score, because "[i]n order for an IQ score to be valid, there must be a narrative report indicating that the score was valid and consistent with the claimant's functioning . . . [h]ere, there was no narrative statement. Consequently, the score was not valid." Def.'s Brief (Doc. #15) at 13. But, in a "close case on the ultimate issue of disability" (where Dr. Dipeolu's report on the one hand says that Plaintiff was not functioning in the range of her IQ score of 62 and that her test score was not exact because she was suffering from severe depression with psychotic features at the time of the test, then on the other hand states that Plaintiff's IQ score was somewhere between 59 and 69), there is all the more reason for the ALJ to take steps to further develop the record.
As Plaintiff rightly points out, "[t]he Code of Federal Regulations places an affirmative duty on the ALJ to recontact a medical source `when the report from [a] medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.'" 20 C.F.R. 404.1512(e)(1). The full scale score of 55 clearly conflicts with Dr. Dipeolu's report and the ALJ's findings.
It also conflicts with the ALJ's determination that Plaintiff did not meet Listing 12.05, where paragraph (B) instructs a finding of mental retardation with a full scale IQ score of 59 or less.
Additionally, the court is concerned with the second part of the ALJ's mental retardation findings: functional abilities. The ALJ based most of his findings regarding Plaintiff's functional abilities on her own testimony. See Tr. 14. In the decision, the ALJ cites to Plaintiff's self-reported abilities to cook, take care of herself and her child, have a driver's license, read the paper if the words are not too hard, and read the bible. See Tr. 14. However, a deeper reading of the record reveals that these activities are not entirely independent. As the Commissioner points out: she required help while cooking and "her boyfriend made sure that the stove was turned off, because she forgot," and she did not drive because she became nervous on the highways. Def.'s Brief (Doc. #15) at 6 (citing Tr. 34-35). Further, Plaintiff also testified that the thirteen year old daughter of her boyfriend "take up more time with my son than me and my boyfriend does sometimes." Tr. 33. The Commissioner argues that the ALJ's determination of adaptive functioning is reasonable considering his reliance on the findings of Dr. Witt. Def.'s Brief (Doc. #15) at 10. The court notes that, while Dr. Witt found that Plaintiff has the social and intellectual skills for simple work, he also stated that she "does need support for independent living." Tr. 307. Oddly, when determining that Plaintiff did not meet the listing under 12.05 paragraph (C), the ALJ only pointed to Plaintiff's abilities for independent living. Tr. 14. Further, the ALJ specifically pointed to Plaintiff's "activities of daily living" as a basis for her RFC, just prior to stating that he was giving great weight to the opinion of Dr. Witt. Tr. 15.
The ALJ responded by saying: "Well that's nice," but asked no follow-up questions about what that meant. Id.
Ultimately, the court has too many concerns with the determination made in this "close case." The ALJ, at least in part, relied on his belief that Plaintiff had not presented a valid full scale IQ score of 70 or less in determining Plaintiff's status. Considering Dr. Dipeolu's 95% belief that Plaintiff's score was between 59 and 69, and Dr. Allen's score of 55, the court finds that the ALJ failed to properly develop the record for a full and fair hearing. This failure precludes the court from determining "whether the ultimate decision on the merits is rational and supported by substantial evidence." Welch, 854 F.2d at 440.
VI. CONCLUSION
The Court has carefully and independently reviewed the record and concludes that, for the reasons given above, the decision of the Commissioner is REVERSED and this case is REMANDED for further proceedings consistent with this opinion.
A separate judgment will issue.
DONE this 7th day of March, 2011.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).