Davis v. Astrue (CONSENT)

Filing 22

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is REVERSED AND REMANDED. Signed by Honorable Wallace Capel, Jr on 11/25/2008. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION J A M E S V. DAVIS, P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:07cv830-WC

M E M O R A N D U M OPINION I. INTRODUCTION Ja m e s V. Davis (Davis) applied for disability insurance benefits pursuant to Title X V I of the Social Security Act, 42 U.S.C. § 1381 et seq. (the Act). Davis's application w a s denied at the initial administrative level. Davis then requested and received a hearing b e f o re an Administrative Law Judge (ALJ). Following the hearing, the ALJ also denied the claim. The Appeals Council rejected a subsequent request for review. The ALJ's d e c isio n consequently became the final decision of the Commissioner of Social Security (C o m m issio n er).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is n o w before the Court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 6 3 6 (c ), both parties have consented to the conduct of all proceedings and entry of a final ju d g m e n t by the undersigned United States Magistrate Judge. Pl.'s Consent to
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.
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Ju risd iction (Doc. #7); Def.'s Consent to Jurisdiction (Doc. #6). Based on the Court's re v ie w of the record and the briefs of the parties, the Court REVERSES the C o m m is s io n e r's decision. II. STANDARD OF REVIEW U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 p e r io d of not less than 12 months. 4 2 U.S.C. § 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n 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 im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of I m p a i rm e n t s] (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? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of " n o t disabled."

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.

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M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 3 5 7 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of q u a lif yin g 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 s ig n if ic a n t 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 R e s id u a l Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still a b le to do despite his impairments and is based on all relevant medical and other e v id e n c e . Id. It also can contain both exertional and nonexertional limitations. Id. at 1 2 4 2 -4 3 . At the fifth step, the ALJ considers the claimant's RFC, age, education, and w o rk experience to determine if there are jobs available in the national economy the c la im a n t can perform. Id. at 1239. To do this, the ALJ can either use the Medical V o c a tio n a l Guidelines 4 (grids) or call a vocational expert. Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary o r light work, inability to speak English, educational deficiencies, and lack of job e x p e rie n c e . Each factor can independently limit the number of jobs realistically available

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).
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See 20 C.F.R. pt. 404 subpt. P, app. 2.

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to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a s ta tu to rily-re q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court m u s t find the Commissioner's decision conclusive if it is supported by substantial e v id e n c e . 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 re lev a n t evidence as a reasonable person would accept as adequate to support a c o n c lu s io n ." Richardson v. Perales, 402 U.S. 389, 401 (1971). A reviewing court may n o t look only to those parts of the record which support the decision of the ALJ, but in ste a d must view the record in its entirety and take account of evidence which detracts f ro m the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1 9 8 6 ). [The court must] . . . scrutinize the record in its entirety to determine the re a s o n a b le n e s s of the [Commissioner's] . . . factual findings. . . . No s im ila r presumption of validity attaches to the [Commissioner's] . . . legal c o n c lu s io n s , including determination of the proper standards to be applied in evaluating claims. W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

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III.

ISSUES A. Introduction

Davis was thirty-six years old and had completed the eighth grade at the time of th e hearing before the ALJ. (Tr. 18). Davis's prior work experience included em p loym en t as a construction laborer, janitor, poultry plant worker, and forklift operator. (T r. 276-77). Employing the five-step process, the ALJ found Davis had not engaged in s u b s ta n tia l gainful activity at any time relevant to the decision (Step 1). (Tr. 25). At Step 2 , the ALJ found Davis suffered from the severe impairments of borderline intellectual f u n c tio n in g . Id. Nonetheless, the ALJ found Davis did not possess an impairment or c o m b in a tio n of impairments that met or equaled the criteria of any listed impairment set f o rth in the Listing of Impairments (Step 3). (Tr. 26-27). At Step 4, the ALJ determined D av is did not possess the RFC to perform any relevant past work. (Tr. 28). A t Step Five, the ALJ evaluated Davis's RFC, age, education, and work e x p e rie n c e , as well as testimony from a vocational expert (VE) regarding the availability, in significant numbers, of other work Davis could perform in the national economy. Upon consideration of this evidence, the ALJ determined Davis possessed the RFC to p e rf o rm jobs that exist in significant numbers in the national economy. (Tr. 28-29). Consequently, the ALJ found Davis was not disabled within the meaning of the Act. (Tr. 3 0 ).

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B.

D a v is's Claims

D a v is 's claims are as follows: "Administrative res judicata precluded the ALJ f ro m revisiting the commissioner's initial award of benefits in December 1998 based on a fin d ing that Mr. Davis was mentally retarded absent new evidence documenting that Mr. D a v is is no longer mentally retarded;" (2) "The ALJ's reasons for rejecting the opinion o f Dr. Cauthorn, Mr. Davis'[s] treating psychologist, are not based on substantial e v id e n c e;" and (3) "The ALJ failed to sustain his burden of establishing that there is other w o rk in the national economy that Mr. Davis can perform." (Doc. #15 at 1). IV. D IS C U S S IO N D a v is 's claim regarding mental retardation. P r io r to this present application Davis was awarded disability benefits from 10 D e c e m b e r 1998 to March 2002. See (Tr. 26). This prior disability finding was based on a f in d in g that Davis suffered from depressive disorder, an anxiety disorder, a personality d is o rd e r, and mental retardation. (Tr. 246, 249, 250, 251). In the prior determination, the A L J relied on a diagnosis of mental retardation made by Doctor Lawrence Annis, Ph.D. (D r. Annis), a clinical and forensic psychologist. Dr. Annis's testing revealed that Davis h a s a full scale IQ score of 56 (verbal IQ of 63, a performance IQ of 54). (Tr. 244). Davis's benefits were terminated in March 2002 due to an outstanding felony warrant. (Tr. 63-67). In the present case, the ALJ rejected the earlier award of disability finding

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th e "record does not corroborate the presence of life-long mental retardation." D a v is argues the ALJ's failure to find Davis mentally retarded is a violation of res ju d ica ta . The Commissioner argues the ALJ is free to make his own determination b e c a u se Davis's current application is a new issue, not subject to res judicata and that to s u b je c t the claim to res judicata would be contrary to SSA's national policy. Without d e c id in g whether this claim is subject to res judicata, this Court finds that the ALJ's d e c is io n is not supported by substantial evidence. T h e ALJ specifically acknowledged the prior finding of mental retardation by the p re v io u s ALJ as well as the previous "consultive psychological findings from September a n d November 1998." (Tr. 27). Because there was a previous finding of mental re ta rd a tio n , there is a strong presumption that Davis is still mentally retarded. Hodges v. B a r n h a r t, 276 F.3d 1265, 1266 (11th Cir. 2001) ("[T]here is a presumption that mental re ta rd a tio n is a condition that remains constant throughout life."). In her opinion, the ALJ expressly rejected the earlier determination of mental re ta rd a tio n , stating: "I consider the original award erroneous; and the psychological d ia g n o se s in calendar 1998 misplaced (See Exhibits 1A, 6F, & 7F). The record does not c o rro b o ra te the presence of life-long mental retardation." (Tr. 27). The Psychological d iagn o ses to which the ALJ referred were those of Dr. Annis and Doctor James E. Hord (D r. Hord). Dr. Hord diagnosed Davis with: Anxiety Disorder NOS; Depression NOS; P ara n o id Personality Disorder; and Histrionic Personality Disorder. (Tr. 241). Dr. Hord 7

n o ted Davis was a very neurotic individual at best and there are indications of a possible u n d e rlyin g psychotic orientation," . . . "[d]epression is probably his most aggravating p a tte rn of symptomatology at this point but he is very agoraphobic, very paranoid and v e ry marginal in his adjustment pattern at best" and "I really think we need to know some m o re about this individual, including his intellectual ability." (Tr. 240-42). Thus, Dr. A n n is performed the IQ test and determined Davis was mentally retarded. (Tr. 244). In rejecting the findings of Doctors Annis and Hord, the AlJ did not attack their m e th o d o lo g y nor their qualifications. Neither does she rely on new IQ scores which place th e 1998 scores in doubt. Rather, she relies on what she finds to be inconsistencies and e v id e n c e in the record which contradict the medical findings. First, the ALJ attacked Davis's educational history stating: [T]he claimant did not receive special education training while in school d e s p ite some assertions to the contrary (See Exhibits 3E and 1 SE). In fact, a c o n sid e ra b le discrepancy exists regarding just when the claimant stopped a tte n d in g school. He testified he quit school at age 17 or 18 in March 1988 w h ile still attending only the 8th grade, but he originally reported attending sc h o o l into the 10th grade (See Exhibit 3E, P.6). Theses [sic] facts seriously u n d e rm in e the validity of his assertions regarding lifelong mental retardation a n d his purported "social promotion." (T r. 27). However, the evidence does not support the ALJ's conclusion that those facts u n d e rm in e d Davis's diagnosis of mental retardation. Two months prior to Davis's 17th b irth d a y, his school informed his mother that, with her permission, Davis would be placed in a 9th grade home room and could take a trade course in building construction, but that 8

D a v is would not be working toward a diploma. The School reiterated that Davis "will not b e working toward a diploma but toward getting a skilled trade." (Tr. 200). Davis's s c h o o l records indicate that he repeated the third, fifth, and seventh grades due to failing g ra d e s. (Tr. 210). In fact, his 7th grade records show that despite his second attempt at 7 th grade, the school "socially promoted" him to 8th grade. (Tr. 201). Second, the ALJ states that an "inference" of normal intellectual functioning can b e drawn from Davis's "arrest and conviction for a felony theft involving the use and p o s s e ss io n of forged documents, which are hardly the type of activities undertaken by the m e n ta lly incompetent and illiterate." (Tr. 27). Drawing an inference merely due to a c o n v ictio n , or the nature of the underlying crime, is unreasonable. In order to properly re je c t the strong evidence of mental retardation, the ALJ would have to point to the s p e c if ic facts and circumstances surrounding the conviction. Without more, the mere fact o f a conviction does not negate a determination of mental retardation. T h ird , the ALJ states that "[Davis's] mental capacity to repeatedly work in u n s k ille d employment, even at less than a substantial gainful activity level, is further p ro o f of a higher level of mental functioning than alleged." Id. The ALJ appears to b e lie v e that Davis's ability to hold any employment evidences a higher functioning level th e n his reported IQ of 58. However, the DSM-IV, classifies persons with an IQ of 58 to s u f f er Mild Mental Retardation. DSM-IV-TR, at 43. Persons with mild mental R e ta rd a tio n can achieve vocational skills. Id. The fact that Davis has worked 9

"re p ea tedly" is due to his inability to keep a job for any substantial length of time, (Tr. 4 2 0 ) (Davis: "I haven't had -- I ain't never been on a job long."), and evidences his lack o f adaptive functioning. F o u r th , the ALJ relies on Dr. McKeown's diagnosis that Davis was malingering d u rin g the psychological examination he preformed in November 2003. Dr. McKeown's f in d in g of malingering was based on his impression that Davis was "extremely c irc u m sta n tial, passive aggressive and evasive." (Tr. 263). However, Dr. McKeown did n o t perform an IQ examination, nor did he address Davis's previous IQ score of 58. Davis's behavior during McKeown's examination does not refute a finding of mental re tar d a tio n , but it does support Dr. Hord's diagnosis that Davis suffers from Anxiety D is o rd e r NOS and Paranoid Personality Disorder, and that Davis is "very paranoid." F if th , the ALJ states when Davis "filed all of his Title XVI applications he was m a d e aware of his potential ineligibility should he "flee to avoid" jail, prison, or " cu s to d y" after a felony conviction . . . [and Davis] was actually rounded up and arrested o n a fugitive warrant after being paroled in late calendar 1999/early calendar 2000. . . [ a n d the] same caveat was on every application he filed seeking Title XVI benefits (See E x h ib its 6D and I 9E)." (Tr. 27). Therefore, the ALJ "believe[d] [Davis] knew what he w a s doing at all times." Id. The ALJ's conclusion that Davis is not mentally retarded b e c a u se of caveats contained on applications that informed him that should he "flee to a v o id jail, prison, or custody" he would be ineligible to receive benefits, then because 10

D a v is continued to receive benefits after he fled, shows that Davis knew what he was d o in g and evidences normal intellectual functioning, is illogical. T h e ALJ's determination lacks substantial evidence. Substantial evidence consists o f such "relevant evidence as a reasonable person would accept as adequate to support a c o n c lu s io n ." Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Davis was f o u n d mentally retarded, along with other ailments, and those findings were accepted by a p rio r ALJ. In order to disregard his IQ score, the medical evidence indicating mental re ta rd a tio n , and the prior determination of mental retardation, the current ALJ would need a d e q u a t e support of new relevant evidence that contradicted the prior findings. It appears the ALJ attempted to "secure an updated consultive psychological e x a m in a tio n of [Davis]." (Tr. 19). After two unsuccessful attempts, the ALJ declared the e v id e n tia ry record closed. Id. Finding the record "more then sufficient" to render a d e c is io n the ALJ declared that she could not "overemphasize the claimant's initial burden o f providing evidence of his disability, and just how severe it is." Id. The ALJ was c o rre c t that Davis bore the burden however, with the record closed, the overwhelming e v id e n c e presented to the ALJ was that Davis has an IQ score of 58 and had been a d ju d g e d mentally retarded and disabled by another ALJ. Such strong evidence cannot be s e t aside by inferences and speculation. Much of what the ALJ relied on to find that D a v is was not mentally retarded was either evidence irrelevant to the question of mental re ta rd a tio n , or evidence that tended to support Davis's claim. 11

F u rth er, the ALJ's decision is rife with personal opinions, rather then expert o p in io n s, concerning what constitutes appropriate levels of functioning of mentally re ta rd e d persons. For example, at the first step of the five-step sequential evaluation p ro c e ss , wherein the ALJ is to determine whether Davis has engaged in substantial g a i n f u l activity since filing for benefits, the ALJ states: H o w ev er, the claimant admits engaging in unskilled work as a janitor, c o n stru c tio n laborer, and poultry plant processor in the past, with c o n stru c tio n work performed in both calendar [year] 2003 and 2004 . . . The c la im a n t's duties included operation of a forklift to move large m e rc h a n d is e , presumably in a warehouse setting, in addition to janitorial w o rk (See Exhibit 8D). I again note that such activities are hardly what one w o u ld expect from a mentally retarded and totally disabled man. (T r. 25). This characterization of Davis's employment history misrepresents the actual f a cts surrounding his employment experiences. For example; the "construction work" D a v is performed involved "picking up stuff around the construction yard," (Tr. 419), a jo b he quit because "there was a guy there that was always picking on [Davis] and s ta rtin g trouble with [him] and stuff." Id. Being picked on and having trouble with cow o rk e rs was a common occurrence for Davis. In response to the question of why he quit h is job at the chicken plant, Davis stated "because of the, the chickens and folks making f u n at me and stuff because I, I was scared to pick up the chickens and stuff like that." (T r. 420). Thus, the true facts and circumstances surrounding Davis's employment h isto ry evidence a person who suffers deficiencies in adaptive functioning and support his c la im of mental retardation. 12

T h e substantial evidence in this case supports Davis's claim of mental retardation. T h u s , this case is properly remanded back to the ALJ for further proceedings. Hodges v. B a r n h a r t, 276 F.3d 1265, 1269 (11th Cir. 2001) ("A presumption of mental impairment b e f o re age 22 does not [] shift the burden of proof from a claimant to prove entitlement to so cial security benefits.").5 V. C O N C L U SIO N P u r s u a n t to the findings and conclusions detailed in this Memorandum Opinion, the Court concludes that the ALJ's non-disability determination is due to be remanded. It is , therefore, ORDERED that the decision of the Commissioner is REVERSED AND R E M A N D E D . A separate judgment is entered herewith. DONE this 25th day of November, 2008.

/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

Because the Court has determined the ALJ erred in determining that Davis was not mentally retarded, and that error requires the ALJ restart the determination process, the Court need not address Davis's other claims. 13

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