Opinion
No. P-99-CA-050.
March 30, 2001
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Before the Court are the Defendant's Motion for Summary Judgment and Incorporated Memorandum in Support Thereof, filed on March 22, 2000, and the Plaintiff's Motion for Summary Judgment and Memorandum in Support of Plaintiff's Motion for Summary Judgment, both filed on March 31, 2000. In addition, the Defendant filed a Response to Memorandum in Support of Plaintiff's Motion for Summary Judgment on April 24, 2000. The Plaintiff then filed a Reply to the Defendant's Response on May 19, 2000. After due consideration of the arguments and submissions of the parties, together with the complete record of the administrative proceedings below and the relevant law, the Court is of the opinion that the Defendant's Motion for Summary Judgment should be DENIED and the Plaintiff's Motion for Summary Judgment should be GRANTED.
FACTUAL BACKGROUND PROCEDURAL HISTORY
On March 10, 1995, the Plaintiff filed an application for supplemental security income benefits with the Social Security Administration; he further filed an application for disability insurance benefits on April 5, 1995. In both applications, the Plaintiff alleged a date of disability onset of January, 1995. The applications were denied initially and on reconsideration, and the Plaintiff requested a hearing before an Administrative Law Judge (ALJ). After the hearing took place on January 18, 1996, the ALJ issued a decision on March 28, 1996 finding that the Plaintiff was not under a disability at any time through the date of the decision.
The Plaintiff then requested a review of the ALJ's decision by the Appeals Council. The Appeals Council granted the request and vacated the ALJ's decision by an order dated June 6, 1997. The case was remanded to the ALJ for a new hearing and the issuance of a new decision. Accordingly, a second administrative hearing was held on July 23, 1997.
After the second hearing, the ALJ issued a decision on August 25, 1997 once again finding that the Plaintiff was not under a disability at any time through the date of the new decision. Specifically, the ALJ found that the Plaintiff was unable to perform his past relevant work, but that he retained the residual functional capacity (RFC) to perform the full range of sedentary work. In addition, the ALJ utilized the Medical-Vocational Guidelines, or "Grid Rules," in making his determination of non-disability. The Plaintiff again sought review of the ALJ's decision by the Appeals Council. This time, however, the Appeals Council denied the request for review on June 9, 1999. The Plaintiff then filed the instant action in federal court on August 11, 1999.
With regard to the Plaintiff's substantive disability claims, he alleges that he has been unable to work since January, 1995 due to pain and arthritis in his lower back, as well as a maxillary sinus problem. In his August 25, 1997 decision, the ALJ found that "[t]he evidence supports a finding that Mr. Ortega has low back pain with right sided sciatica, spondylosis at his L4-5 and L5-S1 levels, and lumbar degenerative arthritis. The claimant also has a history of having chronic maxillary sinusitis on the right side [of his face]." (R. at 14.) At the time of the administrative decision, the Plaintiff was a forty-eight year old man with a sixth or seventh grade education. He had past relevant work experience as an onion slider operator, a general laborer, a fruit truck driver, and a test track driver.
STANDARD OF REVIEW
Judicial review of the Commissioner's decision to deny benefits is limited to determining whether (1) substantial evidence supported the decision, and (2) the proper legal standards were used to evaluate the evidence. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999). Substantial evidence is defined as more than a scintilla, but less than a preponderance, of relevant evidence that a reasonable mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). In applying the substantial evidence standard, a court may not reweigh the evidence or substitute its judgment for that of the Commissioner. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000). Thus, "[a] finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision." Id.
DISCUSSION
Although the Plaintiff has presented several complaints with regard to the proceedings below, in essence he asserts that the ALJ's decision was not supported by substantial evidence and that improper legal standards were employed in reaching that decision. The Defendant Commissioner, on the other hand, contends that the ALJ's decision was supported by substantial evidence in the record and that the proper legal standards were employed. While the Court agrees with the Plaintiff's overall contention that the case should be remanded, it does so for the particular reason discussed below.
In the Memorandum in Support of the Plaintiff's Motion for Summary Judgment, he argues that evidence submitted to the Appeals Council subsequent to the ALJ's August 25, 1997 decision could either support a finding of per se disability or at least significantly reduce the range of sedentary work that the Plaintiff can perform, such that he would be considered effectively disabled under the Social Security Administration's guidelines. That evidence consists of an I.Q. score based on the WAIS-R (Wechsler Adult Intelligence Scale Revised) test, given on June 18, 1998, and the Plaintiff's cumulative elementary school record. In its June 9, 1999 letter denying the Plaintiff's request for review of the ALJ's August 25, 1997 decision, the Appeals Council stated that it had "considered the contentions raised in your representative's letters dated June 30, 1998 and November 30, 1998, as well as the additional evidence also identified on the attached Order of the Appeals Council, but concluded that neither the contentions nor the additional evidence provides a basis for changing the Adminisrative Law Judge's decision." (R. at 3.)
This Court may order the Commissioner to consider additional evidence if it is shown that the evidence is both new and material, and that there is good cause for the failure to incorporate the evidence into the record in a prior proceeding. Lathum v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994). For new evidence to be material, it must relate to the time period for which benefits were denied. Id. In addition, there must exist a reasonable possibility that the evidence would have changed the outcome of the Commissioner's decision. Id.
Although Lathum involved evidence submitted for the first time to the district court after all administrative proceedings had concluded, the argument that the additional evidence in this case is not "new" because it was submitted to the Appeals Council does not detain the Court for long. The parties agree that the I.Q. test and elementary school record constitute new evidence that was also before the Appeals Council. Furthermore, the good cause requirement does not apply here because the new evidence was indeed incorporated into the record before the Appeals Council denied the Plaintiff's request for review, i.e., before the conclusion of the prior administrative proceedings. See 20 C.F.R. § 404.970 (b) (2000) (lacking requirement of good cause for new and material evidence submitted to Appeals Council). The Plaintiff submitted the results of his I.Q. test well before the Appeals Council denied review of the ALJ's decision, even though the test itself was not performed until almost a year after the ALJ's ruling. Similarly, the Plaintiff's elementary school record was submitted almost a year before the Appeals Council's decision was rendered.
Cf. 42 U.S.C. § 405 (g) (1991 Supp. 2000) (court may at any time order additional evidence to be taken before the Commissioner, "but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding"); Williams v. Chater, 87 F.3d 702, 705 n. 2 (5th Cir. 1996) (holding that new and material evidence in the form of an I.Q. test obtained almost two years after the ALJ's final decision, and after the district court's entry of judgment, did not entitle the plaintiff to relief from a judgment denying his claim for disability benefits; no showing of good cause was made for the failure to incorporate the I.Q. test into the record of the administrative proceedings); Lathum v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994) (remanding case for consideration of new and material evidence in the form of VA rating issued after Secretary's final determination; showing of good cause was made because plaintiff had applied for VA disability benefits and was awaiting rating decision during social security benefits application process).
This leaves the materiality requirement. In the Defendant's Response to Memorandum in Support of Plaintiff's Motion for Summary Judgment, the Commissioner argues that the additional evidence submitted to the Appeals Council does not relate to the period on or before the ALJ's August 25, 1997 decision, i.e., the time period for which benefits were denied. The Commissioner does not appear to contest the "reasonable possibility" prong of the materiality requirement, viz., that there must exist a reasonable possibility that the new evidence would have changed the outcome of the ALJ's decision. Instead, he merely states that the Plaintiff's new evidence fails to meet the materiality requirement because "[n]either the June 1998 psychological evaluation nor the 1959-1960 report card `relate to the period on or before' the August 25, 1997, [sic] date of the ALJ's decision." (Def.'s Resp. at 2.) Rather, the Commissioner characterizes the I.Q. test and report card as "`evidence of a later-acquired disability or of the subsequent deterioration of the previous non-disabling condition,' which does not justify remand." (Def.'s Resp. at 2-3.)
It is difficult to see how the Plaintiff's possible mental impairment, as reflected by his I.Q. and report card, might qualify as "the subsequent deterioration of the previous non-disabling condition," given that the Plaintiff's previous conditions all involved physical impairments only (back pain and sinusitis). See Johnson v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985). As far as being "evidence of a later-acquired disability," it will be up to the ALJ on remand to consider whether the Plaintiff's possible mental impairment (if the I.Q. test results are accurate and a good approximation of the Plaintiff's actual abilities, and not due, for example, to the Plaintiff's lack of familiarity with the English language) reflects a congenital, life-long impairment, or if it is the result of some change in the Plaintiff's level of intellectual functioning. If the latter, then it will be up to the ALJ to determine, as far as possible, exactly when the change occurred vis-a-vis the time period for which the Plaintiff was denied disability benefits. According to the ALJ's August 25, 1997 decision, the Plaintiff's earnings record "reveals that he has acquired sufficient quarters of coverage to remain insured [ i.e., eligible for disability insurance benefits] through December 31, 1999." (R. at 13.) Moreover, in this case there is some suggestion that the Plaintiff may have had a life-long mental impairment because his report card implies that he had difficulty in learning from an early age on. On the other hand, the Defendant offered no evidence to suggest that the Plaintiff's possible mental impairment was actually a later-acquired disability.
See R. at 254; see also Johnson v. Bowen, 864 F.2d 340, 345 (5th Cir. 1988) (citing a doctor's opinion that I.Q. in similar range was possibly lower than the claimant's real intellectual capability).
Although the Fifth Circuit has yet to address the issue, several other circuits hold that a low score I.Q. score, regardless of when obtained, creates a rebuttable presumption that the mental impairment initially manifested during the developmental period (before age 22). See Rowell v. Apfel, 2000 WL 1449887 at *5 n. 3 (E.D. La. 2000) (listing cases).
Next, even though the Commissioner does not contest the reasonable possibility requirement for new evidence to be considered material, the Court addresses this issue briefly on its own. Under § 12.05C of the Listing of Impairments, a finding of disability can be made if the plaintiff demonstrates "[a] valid verbal, performance, or full scale I.Q. of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function." 20 C.F.R. Pt. 404, subpt. P, app. 1, § 12.05C (2000). The WAIS-R test administered on June 18, 1998 shows that the Plaintiff had a verbal I.Q. of 64 and a full scale I.Q. of 66. (R. at 252.) Moreover, the ALJ previously concluded that the Plaintiff's combination of physical impairments are severe. (R. at 20.) Therefore, assuming the results of the I.Q. test are found to be accurate, there is a reasonable possibility that the ALJ could conclude on remand that the Plaintiff has a physical impairment imposing additional and significant work-related limitation of function. That, in turn, would require a finding of disability at step 3 of the 5-step sequential disability determination procedure, thereby changing the outcome of the ALJ's previous decision. Alternatively, there is a reasonable possibility that, if the Plaintiff indeed had a mental impairment during the time period for which benefits were denied, the new evidence could lead the ALJ to find a significant reduction in the range of sedentary work that the Plaintiff can perform in his residual functional capacity. That determination, in turn, could reasonably lead to a finding of disability at step 5.
See Johnson v. Bowen, 864 F.2d 340, 345 (5th Cir. 1988) (affirming ALJ's finding that I.Q. in 60-70 range was not accompanied by physical or other mental impairment imposing additional and significant work-related limitation of function for purposes of per se disability provision in § 12.05C (Listing of Impairments)). The Fifth Circuit also has yet to directly address whether the "significant work-related limitation of function" language in § 12.05C requires the accompanying physical or other mental impairment to be severe, or just that it have more than a slight or minimal effect on the plaintiff's ability to work. See Laffitte v. Apfel, 81 F. Supp.2d 669, 673 (W.D. La. 1999) (citing Selders v. Sullivan, 914 F.2d 614 (5th Cir. 1990); Johnson v. Bowen, 864 F.2d 340, 345 (5th Cir. 1988); Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985)); Romero v. Secy. of Health Human Servs., 707 F. Supp. 249, 253-254 (W.D. La. 1989); Estelle v. Secy. of Health Human Servs., 751 F. Supp. 110, 115 (W.D. La. 1989). The Court need not decide this issue, however; for, although he previously concluded that the Plaintiff's physical impairments were severe, the ALJ is specifically instructed on remand to consider whether the "significant work-related limitation of function" component of § 12.05C is indeed satisfied in this case. See Laffitte, 81 F. Supp.2d at 670.
Finally, it bears pointing out that the Appeals Council violated its own internal procedures in this case by failing to specifically address the additional evidence submitted by the Plaintiff in connection with his request for review. See Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000). Rather, the Appeals Council only issued a standard denial form in rejecting the Plaintiff's request for review. (R. at 3-4.) As explained by the court in Newton, "[i]f prejudice results from a violation [by an administrative agency of its own procedures], the result cannot stand." 209 F.3d at 459. Moreover, because the Appeals Council "perfunctorily adhered to the decision of the hearing examiner," it cannot be said that the Commissioner's decision is supported by substantial evidence. Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980). The Appeals Council clearly did not adequately consider the Plaintiff's new, material evidence in affirming the ALJ's decision. Accordingly, the Court is compelled to remand this case for a determination of the Plaintiffs disability reached on the total record. Id.
Thus, because the Court finds that the Plaintiff's I.Q. test and report card were new and material evidence, remand of this case for consideration of that evidence is appropriate. As stated previously, on remand it will be the ALJ's duty to determine if the Plaintiffs I.Q. reflects a life-long impairment and accurately approximates his actual capabilities, or if it is merely the product of a later-acquired disability. If the latter is true, the ALJ shall determine, as best possible, exactly when the change in the Plaintiff's level of intellectual functioning occurred; if the former, the ALJ must first consider whether the Plaintiff was per se disabled under the Listing of Impairments for a continuous period of twelve months (step 3 of the 5-step sequential disability determination procedure). If the answer to that question is "no," then the ALJ must go on to consider whether the Plaintiff's level of intellectual functioning constitutes a non-exertional impairment that significantly limits the range of sedentary work he can perform in his residual functional capacity. If the ALJ reaches this stage of the inquiry, it will be necessary for him to utilize a vocational expert for assistance with his disability determination, because the use of the Medical-Vocational Guidelines, or "Grid Rules," would no longer be appropriate. See Loza v. Apfel, 219 F.3d 378, 399 (5th Cir. 2000); Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000).
CONCLUSION
For the reasons stated above, the Court is of the opinion that this case should be remanded for a thorough consideration of the Plaintiff's WAIS-R I.Q. test results and elementary school report card. Accordingly,
It is ORDERED that the Plaintiff's Motion for Summary Judgment is GRANTED.
It is ORDERED that the Defendant's Motion for Summary Judgment is DENIED.
It is hereby further ORDERED that this case is REMANDED for further administrative proceedings not inconsistent with this opinion.