Miller v. Astrue (CONSENT)

Filing 23

MEMORANDUM OPINION AND ORDER is REVERSED and the case REMANDED for further proceedings consistent with this opinion. A separate judgment will issue. Signed by Honorable Wallace Capel, Jr on 6/15/2009. (cb, )

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 T O N Y MILLER, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:08cv216-WC

M E M O R A N D U M OPINION AND ORDER
I. INTRODUCTION P la in tif f Tony Miller applied for disability insurance benefits under Title II of the S o c ia l Security Act ("the Act"), 42 U.S.C. §§ 404 et seq., and supplemental security income b e n e fits pursuant to Title XVI of the Act, 42 U.S.C. § 1381 et seq. Plaintiff's applications w e re denied at the initial administrative level. Plaintiff then requested and received a hearing b e f o re an Administrative Law Judge (ALJ). Following the hearing, the ALJ also denied the c la im s . The Appeals Council rejected a subsequent request for review. The ALJ's decision c o n se q u e n tly became the final decision of the Commissioner of Social Security (C o m m issio n e r).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. § 636(c),

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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b o th parties have consented to the conduct of all proceedings and entry of a final judgment b y the undersigned United States Magistrate Judge. Pl.'s Consent to Jurisdiction (Doc. #7); D e f .'s Consent to Jurisdiction (Doc. #8). Based on the Court's review of the record and the b rie f s of the parties, the Court REVERSES AND REMANDS the Commissioner'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 period o f 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 "not

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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d is a b le d ." 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, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5, th e burden shifts to the Commissioner, who must then show there are a significant number o f 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 F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines 4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or lig h t work, inability to speak English, educational deficiencies, and lack of job experience.

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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E a c h factor can independently limit the number of jobs realistically available to an in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre 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 must f in d 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 e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m is s io n e r's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings. . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

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III.

ADMINISTRATIVE PROCEEDINGS P l a i n t if f was forty-four years old at the time of the hearing before the ALJ and had

c o m p le te d the eleventh grade. (Tr. 22, 313). Plaintiff's past relevant work experience was a s a maintenance worker and laborer. (Tr. 22). Following the administrative hearing, and e m p lo yin g the five-step process, the ALJ found Plaintiff had not engaged in substantial g a in f u l activity since the alleged onset date of July 9, 2004 (Step 1). (Tr. 20). At Step 2, the A L J found that Plaintiff suffers from the following severe impairments: hypertension; a rth ritis ; Post Traumatic Stress Disorder, Prolonged; Depressive Disorder, NOS; Cognitive D i s o rd e r, NOS. Id. The ALJ next found that Plaintiff's impairment or combination of im p a irm e n ts did not meet one of the listings (Step 3). Id. Next, the ALJ found that Plaintiff c o u ld not perform past relevant work (Step 4). (Tr. 22). The ALJ also queried a VE about w h e th e r Plaintiff's RFC precludes the performance of the types of jobs identified as P lain tiff 's past relevant work. Based on the expert's testimony, the ALJ concluded that, g iv e n his age, education, past work experience, and RFC, Plaintiff could perform jobs that e x is t in significant numbers in the national economy. (Tr. 23). Thus, the ALJ determined P la in tif f was not disabled. Id. IV. P L A I N T I F F 'S CLAIMS P la in tif f claims that the final decision of the Commissioner is not supported by su b sta n tial evidence in the record and submits three discrete arguments in support of his c laim : (1) "Did the ALJ commit reversible error when rating only three of the four `b' criteria 5

in evaluating Mr. Miller's mental impairment?"; (2) "Even if we were to accept the ALJ's re sid u a l functional capacity (RFC) assessment, would there be substantial evidence to s u p p o rt the ALJ's step five finding of not disabled?"; and (3) "Does substantial evidence s u p p o rt the ALJ's RFC assessment, given the fact that the ALJ failed to acknowledge and e v a lu a te the state agency non-examining reviewing physician's opinion that Mr. Miller was m o d e r a te ly limited in specific work-related functions?". (Doc. #15 at 1-2). All of these i s s u e s center around the ALJ's RFC determination and how Plaintiff's mental evaluation im p a c te d the RFC. Because this Court finds the RFC determination to be insufficient and re q u ire s remand, the Court need not address all of the issues raised. In addition, the Court spent a great deal of time in this matter attempting to decipher th e ALJ's decision. Beyond the obvious typos, the decision failed to fully set forth the ALJ p ro c e ss in making his determinations and findings. The Court found problems with the d e c isio n that were not even raised by Plaintiff, but were nonetheless impediments to this C o u rt's reviewing function. The Commissioner admits some of the mistakes and omissions a n d states that the ALJ's decision was at times "not ideal." (Doc. #20 at 13). Indeed, the C o u rt expects that when Counsel for the Commissioner find themselves speculating as to an A L J's findings and then stretching their arguments to fit that speculation, Counsel should c o n s id e r whether a recommendation for remand may be more appropriate. V. DISCUSSION As the Court plodded through the ALJ's decision, it became clear that the ALJ's RFC 6

d e te rm in a tio n was insufficient. Plaintiff challenges this RFC determination in his second c la im . The Commissioner urges this Court to not consider Plaintiff's claims because "the p rem ise of`Issue No. 2,' which accepts the propriety of the ALJ's RFC assessment" is at o d d s with Plaintiff's challenges to the exertional and nonexertional aspects of the RFC. ( D o c . #20 at 12) (emphasis in original). Essentially, the Commissioner argues that because th is Court's Scheduling Order states that "Issues not presented in the Statement of the Issues w ill not be considered," and because the title of Plaintiff's second claim accepts the propriety o f the RFC, challenges within the claim to the RFC should not be entertained. F irs t, the Court notes the irony of the Commissioner's argument: the Commissioner a sk s this Court to ignore Plaintiff's claim based on its inartful titling, yet, within this issue, d e f en d s the ALJ's decision as merely inartful wording. It appears to this Court that any co n fu sion as to what Plaintiff meant in stating "[e]ven if we were to accept the ALJ's re sid u a l functional capacity (RFC) assessment" is attributable to the confusing nature of the A L J 's RFC determination. T h e ALJ's RFC determination reads as follows: "After careful consideration of the e n tire record, the undersigned finds that the claimant has the residual functional capacity to p e rf o rm work that does not require lifting or carrying 50 pounds frequently and 10 pounds f re q u e n t [sic] and no more than unskilled work." (Tr. 20-21). The problem with this RFC d e te rm in a tio n , beyond the obvious, is that it is not supported within the ALJ's decision. The C o u rt is left to speculate how the ALJ came to the lifting limitations (whatever they may 7

a c tu a lly be) and how the ALJ integrated the nonexertional limitations of "mild limitations a s to activities of daily living; mild or moderate limitations in social functioning; moderate lim ita tio n s on maintaining concentration, persistence or pace." (Tr. 20). Instead, "[t]he

m e n ta l RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment." Social Security Ruling 96-8p. P la in tif f rightly asserts that the Commissioner's argument that the exertional lim itatio n s were simply typographical errors and the ALJ's exertional limits were meant to m irr o r those expressed in the medium work designation 5 fails because the ALJ found that P la in t if f could not perform past relevant work and the VE testified that Plaintiff's past re le v a n t work was as a cabinet assembler, kitchen worker, and tree trimmer were all medium in exertion and unskilled, and the ALJ found Plaintiff could not perform past relevant work.6 In other words, the ALJ could not have been meant to find that Plaintiff could perform "full ra n g e of medium unskilled work." In d e e d , the ALJ's decision expressly states that "the claimant's ability to perform all o r substantially all of the requirements of [medium work] has been impeded by additional lim itatio n s," (Tr. 23), but, does not go on to say what those limitations are and how they are in c lu d e d in the RFC. While the ALJ need not "specifically refer to every piece of evidence
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This appears reasonable because the ALJ does mention the medium work designation throughout the decision. For some reason the ALJ, failed to mention the past relevant jobs stated by the VE and the VE's statement that Plaintiff could perform them. See (Tr. 437).
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in his decision," Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005), his findings need b e sufficiently clear to allow this Court meaningful review. See Maffia v. Comm'r of Soc. S e c ., 291 Fed. App'x. 261, 265 (11th Cir. 2008) (insufficient findings by ALJ make it im p o s s ib le to conduct meaningful review of ALJ's decision). Further, the ALJ discounted the I.Q. finding of 49 7 by Dr. Sphere, relying, in part, on th e reports by Dr. George that Plaintiff performed a wide range of activities, including listen in g to music and playing games. However, Dr. George also opined that Plaintiff would b e unable to persist in a job setting. (Tr. 21). While the ALJ mentions Dr. George's findings h e fails to state how he discounted aspects of Dr. George's opinion, while at the same time relying on it to discount Dr. Sphere's opinion. Further, the ALJ also relied on Dr.

M c K e o w n 's determination that Plaintiff functioned in the low average intellectual range, but f a ile d to mention how the limitations expressed by Dr. McKeown, and adopted by the ALJ, a f f e c ted Plaintiff's RFC. The ALJ cannot pick and choose from the evidence in order to s u p p o rt his conclusions. See Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004) (" T h e ALJ is not entitled to pick and choose from a medical opinion, using only those parts th a t are favorable to a finding of nondisability") (citing Switzer v. Heckler, 742 F.2d 382, 3 8 5 -8 6 (7th Cir.1984)). Overall, the Court would be required to engage in imprudent amounts of speculation

Dr. Sphere's report states an IQ of 49, (Tr. 434), however, the ALJ decision refers to the score as both 45 and 40. (Tr. 21)

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to review the ALJ's decision in this case. See Maffia, 291 Fed. App'x. at 265. Therefore, th is case should be remanded to allow the ALJ to clarify his RFC determination, so that this C o u rt can give it meaningful review. In addition, the Court instructs the ALJ to review the o th e r issues raised by Plaintiff and determine whether he can provide clarity as to the fourth p ron g of the PRTF and discuss his reliance on or dismissal of the State agency physician's m e n ta l RFC. IV . CONCLUSION T h e Court has carefully and independently reviewed the record and concludes the d e c is io n of the Commissioner is REVERSED and the case REMANDED for further p ro c e ed in g s consistent with this opinion. A separate judgment will issue. D O N E this 15th day of June, 2009. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

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