Taylor v. Astrue

Filing 21

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is REVERSED and this matter REMANDED for further proceedings consistent with this opinion. Signed by Honorable Wallace Capel, Jr on 12/23/2009. Copies also mailed to SSA Chief Judge and SSA office of Hearings and Appeals. (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 T IF F A N Y M. TAYLOR, P l a in tif f , v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 1:08cv1014-WC

M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tif f Tiffany M. Taylor applied for disabled adult child benefits under Title II of th e Social Security Act ("the Act"), 42 U.S.C. §§ 402(d), and supplemental security income u n d e r Title XVI of the Act, § 1381 et seq. Her applications were denied at the initial a d m in is tra tiv e level. Plaintiff then requested and received a hearing before an

A d m in is tra tiv e Law Judge (ALJ). Following the hearing, the ALJ issued a decision in which s h e found Plaintiff not disabled. Tr. 22. After accepting additional evidence from Plaintiff, th e Appeals Council ultimately rejected her request for review of the ALJ's decision. The A L J 's decision consequently became the final decision of the Commissioner of Social S ec u rity (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The

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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c a s e is now 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 Jurisdiction (D o c . #14); Def.'s Consent to Jurisdiction (Doc. #15). Based on the Court's review of the rec o rd and the briefs of the parties, the Court REVERSES the decision of the Commissioner. II. STANDARD OF REVIEW P la in tif f filed her application for disabled adult child benefits based on the earnings r e c o r d of her father, Eddie Taylor. To obtain such benefits, Plaintiff is required to

d e m o n s tra te , among other things, that she suffers from a disability before attaining the age o f 22, and that this disability continued without interruption through the date of her a p p lica tio n . 42 U.S.C. § 402(d)(1). Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to d isa b ility benefits when the person 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? 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. 2
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(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 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 t i o 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
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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). 3

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. 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 iss 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).

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See 20 C.F.R. pt. 404 subpt. P, app. 2. 4

[ T h e 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 re su m p tio 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). III. ADMINISTRATIVE PROCEEDINGS P la in tif f was twenty years old at the time of the hearing before the ALJ. Tr. 488. P la in tif f completed her high school education. Tr. 491.5 Following the administrative h e a rin g , and employing the five-step process, the ALJ found Plaintiff had not engaged in s u b s ta n tia l gainful activity at any time relevant to the decision (Step 1). Tr. 24. At Step 2, th e ALJ found that Plaintiff suffers from the following "medically determinable im p a irm e n ts :" "carpal tunnel syndrome, thyroid disease, a learning disorder/borderline in te lle c tu a l functioning, a non-specific sleep disorder, and depression." Tr. 24. The ALJ th e n determined that none of the "medically determinable impairments" are severe, alone or in combination, within the meaning of applicable law. Accordingly, the ALJ found that " [ t]h e claimant has not been under a `disability,' . . . from January 29, 2003 through the date o f this decision," Tr. 29, and is therefore not entitled to benefits as a disabled adult child or s u p p le m e n ta l security income. IV. P L A I N T I F F 'S CLAIMS

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Plaintiff participated in special education classes during her schooling. Tr. 153. 5

P lain tiff alleges the ALJ's decision should be reversed because the ALJ erred in f a ilin g to find any of Plaintiff's impairments severe 6 and failing to consider evidence of P l a in t i f f 's "severe" headaches. Pl.'s Brief (Doc. #18) at 5-8. The Court will address the c la im s in the order in which they are discussed in her brief. V. DISCUSSION A. T h e ALJ's finding of no severe impairments.

A lth o u g h the ALJ found that Plaintiff suffers from numerous "medically determinable im p a irm e n ts ," the ALJ found that no such impairments are "severe" within the meaning of t h e regulations. A "severe" impairment is defined as "any impairment or combination of im p a irm e n ts which significantly limits [the individual's] physical or mental ability to do b a sic work activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). The United States' Court of A p p e a ls for the Eleventh Circuit has explained that a "severe" impairment "causes more than a minimal limitation on a claimant's ability to function." Davis v. Shalala, 985 F.2d 528, 532 (11 th Cir. 1993). Conversely, "[a]n impairment or combination of impairments is not severe if it does not significantly limit [the claimant's] physical or mental ability to do basic work a c tiv itie s." 20 C.F.R. § 404.1521(a). "An impairment is not severe only if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with th e individual's ability to work, irrespective of age, education, or work experience. It is a
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Specifically, Plaintiff contends that the ALJ erred in failing to find Plaintiff's borderline intellectual functioning and depression severe impairments. Pl.'s Brief (Doc. #18) at 6-8. 6

th re sh o ld inquiry where only the most trivial impairments are rejected." O'Bier v. Comm'r o f Soc. Sec., 2009 WL 1904706 at *1 (11th Cir. July 2, 2009) (citations omitted). The P la in tif f 's burden in establishing a severe impairment is "mild." McDaniel v. Bowen, 800 F .2 d 1026, 1031 (11th Cir. 1986). E vid en ce in the record amply establishes Plaintiff's borderline intellectual functioning a n d depression. See. e.g., Tr. 338, 344, 345, 386, 397. While some courts have held that a " d ia g n o sis of borderline intellectual functioning should be considered severe when the d ia g n o sis is supported by sufficient medical evidence," Nicola v. Astrue, 480 F.3d 885, 887 (8 th Cir. 2007), it does not appear that the Eleventh Circuit has adopted any such per se rule. S e e Edwards by Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985) ("At the least, th e re f o re , an I.Q. below 80 may be a severe impairment.") (emphasis supplied). Thus, the A L J was required to assess the functional limitations imposed by Plaintiff's borderline in te lle c tu a l functioning and depression in order to decide their severity. In order to determine the severity of mental impairments like those relevant to this c la im , the Commissioner is required, at all levels of the administrative process, to apply the " s p e c ia l technique" of review set forth in 20 C.F.R. §§ 404.1520a and 416.920a. See Nicola, 4 8 0 F.3d at 887. See also Binion v. Astrue, 2008 WL 4493238 (M.D. Al. Oct. 3, 2008). U n d e r the "special technique," after determining whether or not the claimant suffers from s o m e mental impairment(s), the Commissioner then rates the degree of functional limitation re su ltin g from the impairment(s). The Commissioner rates the degree of limitation imposed 7

in four distinct "functional areas" including: "activities of daily living; social functioning; co n ce n tratio n , persistence, or pace; and episodes of decompensation." § 404.1520a(c)(3). T h e Commissioner uses a five-point scale (none, mild, moderate, marked, and extreme) in ra tin g the first three functional areas, and a four-point scale (none, one, two, three, and four o r more) in rating episodes of decompensation. If the degree of limitation found in all of the f irs t three areas is "none" or "mild," and there are no periods of decompensation, then the C o m m issio n er will generally find the impairment not severe. 20 C.F.R. § 1520a(d)(1). If th e ALJ's scoring of the claimant's limitations compels a finding that the claimant's mental im p a irm e n t(s) is severe, the ALJ then proceeds to determine "if it meets or is equivalent in s e v e rity to a listed mental disorder." § 1520a(d)(2). The Commissioner is required to document his application of the special review te c h n iq u e at all stages in the administrative adjudication of a disability claim. 20 C.F.R. § 1 5 2 0 a (e ). During the initial stages of review, application of the "special technique" is f a c ilita te d by the completion of a Psychiatric Review Technique Form ("PRTF") by a q u a lif ie d professional. During review by the ALJ, the ALJ is required "to complete a PRTF a n d append it to the decision, or incorporate its mode of analysis into [the ALJ's] findings a n d conclusions. Failure to do so requires remand." Moore v. Barnhart, 405 F.3d 1208, 1 2 1 4 (11th Cir. 2005). Importantly, the ALJ is required to document his or her application o f the technique as to each of the given functional areas, and failure to do so precludes ju d ic ia l review of the ALJ's decision. Id. Failure to properly apply the special review

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te c h n iq u e requires remand even if the ALJ's ultimate finding that the claimant is not disabled is supported by substantial evidence. Id. See also Binion, 2008 WL 4493238 at *4. The ALJ's treatment of these various considerations lacks clarity. The ALJ did not c o m p le te a PRTF and append it to her decision. Likewise, there is no clearly demarcated p o rtio n of the opinion in which the ALJ "incorporates [the special technique's] mode of a n a lys is into [her] findings and conclusions." Instead, within the context of summarizing the re c o rd medical evidence, the ALJ appears to sporadically and imprecisely document some a p p lic a tio n of the "special technique." For instance, in discussing the findings of the co n su ltativ e examination by Dr. McKeown (Tr. 336-340), the ALJ recounts Dr. McKeown's o p in io n that Plaintiff suffers "no significant limitations in [her] social functioning and her re p o rt of daily activities was essentially normal." Tr. 27. The ALJ then appears to convey h e r own findings about the severity of Plaintiff's mental impairments: M s . Taylor has borderline IQ scores and has received special education s e r v ic e s for a learning disorder but there is no evidence [of] significant s u b a v e ra g e intellectual functioning that prevents her from understanding, re m e m b e rin g or carrying out simple instructions. There is no evidence of any s ig n if ic a n t limitations in Ms. Taylor's daily activities or social functioning or o f more than `mild' limitations in her concentration, persistence or pace due to depression. The record does not document any episodes of decompensation s in c e January 2003 due to depression. T r. 27. This passage, if it is intended to stand as the ALJ's required application of the " sp e c ia l technique" of review of Plaintiff's mental impairments, is problematic in many resp ec ts. First, the ALJ's scoring of Plaintiff's functional limitations does not fully comport

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w ith the five-point scale provided in the regulations. The regulations do not contemplate ju d g m e n ts about whether or not the claimant suffers "significant" limitations in the given f u n c tio n a l areas. Rather, the ALJ is required to score the claimant's functional limitations in terms of "[n]one, mild, moderate, marked, and extreme." 20 C.F.R. § 404.1520a(c)(4). F u r th e rm o re , it does not appear that the ALJ even scored Plaintiff's limitations in the given f u n c tio n a l areas related to her borderline intellectual functioning. That is, while the ALJ d o e s appear to find that Plaintiff suffers no more than "mild" limitations in her daily a c tiv itie s, social functioning, and concentration, persistence, and pace, the ALJ explicitly lin k s that finding to her evaluation of Plaintiff's impairment of depression. Tr. 27. The most th e ALJ says about any limitations caused by Plaintiff's borderline intellectual functioning is that "there is no evidence [of] significant subaverage intellectual functioning that prevents h e r from understanding, remembering or carrying out simple instructions." Tr. 27. While " u n d e rs ta n d in g , remembering or carrying out simple instructions" is one of the enumerated " b a sic work activities" with which the regulations are concerned in assessing whether an im p a irm e n t is severe, it is a consideration which is not included among the functional areas g e r m a n e to the "special technique" of review of mental impairments set forth in the r e g u la tio n s . Thus, the ALJ's opinion does not reflect a proper application of the

C o m m is s io n 's special technique for review of mental impairments and is due to be reversed a n d remanded. Moore, 405 F.3d at 1214; Binion, 2008 WL 4493238 at *4.7 The ALJ's rejection (see Tr. 28) of the opinion given in the PRTF completed by Dr. Warren (Tr. 341-354), as well as the unmentioned but corroborative opinion of Dr. Simpson 10
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VI.

C O N C L U SIO N 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 this matter 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 23rd day of December, 2009. /s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

(see Tr. 395), that Plaintiff's mental impairments cause "moderate" difficulties in maintaining concentration, persistence, or pace cannot suffice as an adequate application of the special technique. While one may presume the ALJ concurred with Dr. Warren's finding that Plaintiff has only "mild" restriction of activities of daily living and difficulties in maintaining social functioning, the regulations and applicable case law do not appear to contemplate such implicit documentation of the ALJ's findings. As discussed above, the ALJ provided no clear documentation of her findings with respect to Plaintiff's limitations in the four areas of functioning attributable to her impairment of borderline intellectual functioning. Finally, the Court is also leery of the reasons underlying the ALJ's rejection of Dr. Warren's opinion. The ALJ states that Dr. Warren's opinion is disfavored because it "is not consistent with the minimal, conservative treatment required for the mental impairments or with the claimant's ability to maintain `decent' grades in school." Tr. 28. The ALJ does not explain, and it is not clear to the Court upon review of the record, what treatments have been available and provided to Plaintiff as treatment for her borderline intellectual functioning, other than the provision of special education classes throughout her education. Moreover, there is nothing in the record which indicates that a claimant's successful completion of a school's special education curriculum indicates that claimant's propensity and readiness for entry into the working world. While rendering no opinion on the ultimate severity of Plaintiff's impairment of borderline intellectual functioning, the Court is mindful of the Eleventh Circuit's recent admonition that, in considering whether an impairment is "severe" within the meaning of the regulations, "only the most trivial impairments are rejected." O'Bier, 2009 WL 1904706 at *1. Without further evidence in the record, it is difficult for the Court to embrace the notion that borderline intellectual functioning, which necessitated the intervention of special education through the claimant's life, amounts to an impairment so "trivial" and "slight and its effect so minimal that it would clearly not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Id. 11