Ward v. Astrue

Filing 17

MEMORANDUM OPINION. Signed by Honorable Charles S. Coody on 9/30/2010. (jg, )

W ar d v. Astrue (CONSENT)

Do c. 17

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 W A Y N E WARD, 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 S E C U R IT Y , D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 1:09CV833-CSC (W O )

M E M O R A N D U M OPINION I . Introduction. T h e plaintiff applied for disability insurance benefits pursuant to Title II of the S o c ia l Security Act, 42 U.S.C. § 401 et seq. and for supplemental security income b e n e fits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., alleging th a t he was unable to work because of a disability. His application was denied at the in itia l administrative level. The 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 also denied the c la im . The Appeals Council granted review and gave the plaintiff an opportunity to c o m m e n t on its proposed decision. (R. at 1-8) The Appeal Council's decision of July 12, 2 0 0 9 , became the final decision of the Commissioner of Social Security (Commissioner).1

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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20 C.F.R. § 416.1479. The case is now before the court for review pursuant to 42 U.S.C. § § 405 (g) and 1383(c)(3).2 Based on the court's review of the record in this case and the b rie f s of the parties, the court concludes that the decision of the Commissioner should be a f f irm e d . I I . 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 rio d of not less than 12 months... To make this determination 3 the Commissioner employs a five step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920. (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? (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

Pursuant to 28 U.S.C. § 636(c), the parties have consented to entry of final judgment by the United States Magistrate Judge. 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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" n o t disabled." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).4 T h e standard of 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 ev iden ce . 42 U.S.C. § 405(g); Ingram v. Comm. of Soc. Sec. Admin., 496 F.3d 1253, 1260 (1 1 th Cir. 2007). "Substantial evidence is more than a scintilla, but less than a p re p o n d e ra n c e. It is such relevant evidence as a reasonable person would accept as a d e q u a t e to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). A re v ie w in g court may not look only to those parts of the record which supports the d e c is io n of the ALJ but instead must view the record in its entirety and take account of e v id e n c e which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F .2 d 1179, 1180 (11 th Cir. 1986). [ 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 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 (11 th Cir. 1987). I I I . The Issues A . Introduction. The plaintiff was 21 years old at the time of the hearing before

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) (Unit A).

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th e ALJ and has a 9 th grade education. The plaintiff's prior work experience includes w o rk as a laborer and a sandwich maker. The Appeals Council adopted the findings of th e ALJ who concluded that the plaintiff has impairments of borderline intellectual f u n c tio n in g and reading, mathematics and written language disorders. In his written o p in io n , the ALJ concluded that the plaintiff was not disabled because the plaintiff has th e residual functional capacity to perform his past relevant work as a laborer. The A p p e a ls Council disagreed with that conclusion because "his past relevant work . . . was p e rf o rm e d at a level less than what is considered substantial gainful activity, and th e re f o re , cannot be considered past relevant work." (R. at 5) Nonetheless, the Appeals C o u n c il found that the plaintiff was not disabled. T h e claimant's nonexertional limitations do not significantly affect his re sid u a l functional capacity to perform work-related activities at all e x e rtio n a l levels. Using section 204.00 of 20 CFR Part 404, Subpart P, A p p e n d ix 2 as a framework for decision-making, the claimant is not disable (2 0 CFR 416.920(f)). As supported by the vocational expert testimony, the c la im a n t is capable of performing a wide range of unskilled work, including the work of a laborer. (R . at 6) B . The Issues. As stated by the plaintiff, there are three issues in this case: 1 . The Appeals Council improperly relied on the Administration's M e d ic a l-V o c a tio n a l Guidelines ("the Grids") to deny Mr. Ward's claim under step f iv e of the sequential evaluation. It is undisputed that Mr. Ward has several n o n -e x e rtio n a l impairments which would make exclusive reliance on the Grids in a p p ro p ria te in this case. 2 . The ALJ erred in rejecting the opinions of the psychologist who examined Mr. W a rd at the request of the Administration, and erred in giving "determinative" 4

w e ig h t to the opinion of the state agency psychologist who neither spoke to nor e x a m in e d the Claimant. The ALJ also failed to develop the record in this case. 3 . The ALJ and Appeals Council erred in rejecting the testimony of the Claimant's f a th e r, and two individuals who submitted letters on behalf of the Claimant. I V . Discussion 1 . The Grids.5 An ALJ is required to develop a full and fair record about v o c a tio n a l opportunities available to a claimant. Allen v. Sullivan, 880 F.2d 1200, 1201 (1 1 th Cir. 1989). This burden may sometimes be met through exclusive reliance on the grids. H o w e v e r, " `exclusive reliance on the grids is not appropriate either when th e claimant is unable to perform a full range of work at a given residual f u n c tio n a l level or when a claimant has a non-exertional impairment that s ig n if ic a n tly limits basic work skills.' " Walker v. Bowen, 826 F.2d 996, 1 0 0 2 -0 3 (11th Cir.1987) (quoting Francis v. Heckler, 749 F.2d 1562, 1566 (11 th Cir.1985). F o o te v. Chater, 67 F.3d 1553, 1558 (11th Cir. 1995). In this case, the record before the court affirmatively demonstrates that the A p p e a ls Council did not rely exclusively on the Grids. As quoted above, the Council u s e d the Grids as a framework for its decision and that use is appropriate if "independent e v id e n c e, preferably through a vocational expert's testimony, [is introduced] of existence o f jobs in the national economy that the claimant can perform." Wilson v. Barnhart, 284 F .3 d 1219, 1227 (11th Cir. 2002); see also Smith v. Bowen, 792 F.2d 1547, 1554-55 (11th C ir. 1986) (stating that the grids "may serve as a framework for consideration of the
The so-called "Grids" are the medical-vocational guidelines found at 20 CFR Part 404, Subpart P, Appendix 2.
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c o m b i n a tio n of the exertional and nonexertional limitations"). The regulations likewise p e rm it use of the grids to "provide guidance for decisionmaking." 20 C.F.R. Pt. 404, S u b p t. P, App. 2 § 200.00(d). A state agency psychologist completed a psychiatric review technique form finding th a t the plaintiff had mild restriction of activities of daily living, moderate difficulties in m a in ta in in g social functioning and moderate difficulties in maintaining concentration, p e rs is te n c e or pace. (R. at 313) In addition the agency psychologist found that the

plaintiff was moderately limited in his ability to understand and remember detailed
in stru c tio n s, in his ability to carry out detailed instruction and his ability to maintain a tte n tio n and concentration for extended periods. (R. at 314) The psychologist also found th e plaintiff moderately limited in his ability to interact appropriately with the general p u b lic and in his ability to respond appropriately to changes in the work setting. (R. at

315) The vocational expert considered these limitations, but testified that they would not preclude the plaintiff from performing work as a laborer. (R. at 51) The vocational expert also considered the educational limitations found by Dr.
P a s s le r, a neuropsychologist. Dr. Passler diagnosed the plaintiff with learning disability (d ys le x ia , dysgraphia and dyscalculia), left hemisphere dysfunction and adjustment d is o rd e r NOS. Dr. Passler also administered the Wechsler Intelligence Scale for Children - III finding that the plaintiff had a Verbal IQ of 72, Performance IQ of 86 and a Full S c a le IQ of 77. (R. at 209) The vocational expert concluded that the limitations found by

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D r. Passler would not preclude the plaintiff's work as a laborer. T h u s , in reaching its decision the Appeals Council relied not just on the Grids but a ls o on testimony of a vocational expert whose opinion was informed by the opinions of a n agency psychologist and an examining neuropsychologist. The Appeals Council did n o t commit error. 2 . The Consultant Psychologist and Development of the Record. The plaintiff c o n ten d s that the ALJ, whose opinion in this regard was adopted by the Appeals Council, e rre d in rejecting the opinion of Dr. Ghostley who found the plaintiff markedly impaired in the areas of ability to understand, remember and carry out instructions and respond a p p ro p ria te ly to supervisors, co-workers and work pressure. (R. at 299) The vocational e x p e rt testified that with those impairments there were no jobs in the national economy w h ic h the plaintiff could perform. (R. at 51) T h e ALJ rejected Dr. Ghostley's opinion. T h e Administrative Law Judge has considered the evaluation of the c la im a n t performed by David C. Ghostley, Psy,D on August 18, 2006. 'W h e n asked why he was applying for disability. The claimant stated, ''I'm n o t certain, I guess I can't hold a job for the disabilities I have." The c la im a n t presented to the evaluation as appropriately attired. He exhibited a c ce p ta b le levels of grooming and personal hygiene. Throughout the e x a m in a tio n , the claimant was alert, cooperative, and attentive. Motor a c tiv i ty level was normal. Eye contact was good. No abnormal mannerisms, g e stu re s, or facial expressions were noted. Productivity and flow of speech w e re normal. He spoke in expressive tones and was coherent and u n d e rs ta n d a b le . No receptive language deficits were evidenced. D u rin g the evaluation, the claimant described his mood as being depressed o v e r the past 3 or 4 years. He stated, "It seems like nothing ever goes right 7

f o r me." Neuro-vegetative signs of depression were reported as decreased sleep and fluctuating levels of energy. His affect was observed by Dr. G h o stle y as flat and restricted in range. He was, however, fully oriented to a ll relevant spheres and attention was adequate for conversational purposes. T h e claimant was unable to perform reverse serial 7s, reverse serial 2 ' s, sim p le mental arithmetic calculations, and he could not spell the word " W O R L D " either forward or backward. His memory for remote events was d u ll. With regard to recent memory, he was able to recall 2/3 verbally p re se n te d words following a brief delay with interference. Fund of in f o rm a tio n was well below average, as was his ability to think in abstract te rm s . Productivity and structure of thought were normal. There was no e v id e n c e of suicidal or homicidal ideation, hallucinations and paranoia, p h o b ias , obsessions, or compulsions. Insight into acknowledging his p ro b lem s, accepting responsibility for them, and recognizing a need for help w a s considered fair, as was his judgment with regard to social functioning, f a m ily relationships, finances, employment, and future plans. Responses to m a th e m a tic a l and serial tasks, coupled with memory functioning, fund of in f o rm a tio n , and ability to think in abstract terms, were consistent with a le v e l of intellectual functioning estimated to be within the Borderline R an g e. Dr. Ghostley listed his diagnostic impression as depressive disorder, n o t otherwise specified, mathematics disorder, reading disorder, disorder of w ritte n language and borderline intellectual functioning. D r. Ghostley opined that the claimant's ability to function independently a n d manage finances was impaired; presently, the claimant's ability to u n d e rs ta n d , remember, and carry out instructions, as well as to respond ap p ro p riately to supervisors, co-workers, and work pressures in a work se ttin g was markedly impaired. Dr. Ghostley further noted that a favorable re sp o n s e to treatment is not expected within the next 6 to 12 months (E x h ib its 3F and 4F). L ittle weight is assigned to Dr. Ghostley's opinion because there is no o b je c tiv e evidence to show that the claimant has limitations caused by m e d ica lly determinable impairments that substantially erode his o cc u p atio n al base and are as limiting as Dr. Ghostley suggested. Dr. G h o s tle y's conclusion was apparently based on "clinical history." as re f le c te d in the reports of the claimant. Moreover, Dr. Ghostley remarked f o llo w in g his evaluation that the claimant appeared to be minimally m o tiv a te d . Moreover, the record reveals that the claimant has worked at s u b s ta n tia l gainful activity since his evaluation with Dr. Ghostley. 8

T h e re is no evidence that the claimant has sought any treatment or v o c a tio n a l rehabilitation. The claimant apparently quit school in 2004. Even th o u g h the claimant denied significant histories of legal problems and s u b s ta n c e abuse during his evaluation with Dr. Ghostley, the record, h o w e v e r, reflects that the claimant was, at one time, using marijuana and c o c a in e , and his father testified that the claimant served time in a boys h o m e two or three times, as well as in a boot camp on one occasion. During h is evaluation with Dr. Ghostley, the claimant reported that on an average d a y he typically cleaned the house and did yard work. When his girlfriend g o t off work, he typically went to her house. The record reflects that the c laim a n t is the father of one child; he has another child on the way; he is p la n n in g his wedding; and he has worked during the period of adjudication. (R . at 23-24) T h e plaintiff contends that the ALJ erred to reversal when he discounted Dr. G h o s tle y's opinion. The court disagrees. The plaintiff first argues that the ALJ's c o n c lu s io n that there was no "objective evidence to show that the claimant has limitations c a u s e d by medically determinable impairments . . . " is "simply wrong." To support this a rg u m e n t the plaintiff notes that Dr. Ghostley's opinion was informed by review of Dr. P a s s le r's records which included "objective evidence in the form of formal testing." The p rob lem with this argument is that it elides the fact that when the vocational expert c o n sid e re d the limitations set forth by Dr. Passler, he concluded that the plaintiff could w o rk as a laborer. Moreover, Dr. Passler concluded after extensive testing and dealings w ith the plaintiff that the plaintiff could benefit from vocational education. (R. at 278) T h e plaintiff also attacks every other component of the ALJ's reasons for d isco u n tin g Dr. Ghostley's opinion. With regard to the motivation argument, while Dr. P a s s le r indeed did characterize the plaintiff's lack of motivation as "understandable," a 9

f u ll review of Dr. Passler's notes show that he believed the plaintiff nonetheless could im p ro v e if he demonstrated "a desire/commitment to participate in the program that has b e e n offered to him . . . " (R. at 293) In other words, the record shows that Dr. Passler b e lie v e d the plaintiff had the capacity to motivate himself to improve. N e x t, the plaintiff challenges the ALJ's discounting of Dr. Ghostley's opinion on th e basis that "the record reveals that the claimant has worked at substantial gainful a c tiv ity since his evaluation with Dr. Ghostley." (R. at 24) The plaintiff correctly notes th a t the Appeals Council found that the work done by the plaintiff was not substantial g a in f u l activity and argues, therefore, that the basis for the ALJ's conclusion is faulty. This argument is disingenuous. The conclusion of the Appeals Council related to the te c h n ic a l question of whether the work done by the plaintiff qualified as past relevant w o rk at step 4 of the sequential analysis. (R at 5) The record shows that the plaintiff w o rke d , and that was a legitimate factor for the ALJ to consider. T h e court will not belabor the analysis. The court concludes that substantial e v id e n c e supports the ALJ's conclusion that the plaintiff is capable of performing work, a n d the ALJ identified adequately his reasons for discounting Dr. Ghostley's opinion. Certainly, an ALJ has a duty to develop the record fully and fairly. Wilson v. Apfel, 1 7 9 F.3d 1276, 1278 (11th Cir. 1999) (per curiam). In this instance, this is what the

plaintiff argues.
H e re , Mr. Ward was sent for a consultative psychological examination. H o w ev er, the ALJ subsequently rejected the opinions of that examiner. 10

T h e re f o re , the ALJ did not satisfy his statutory duty to obtain a consultative e x a m in a tio n . For this reason as well, this case should be reversed. (P l.'s Br. at 11) T h e ALJ has no duty to obtain a favorable consultative examination, and the ALJ is under no obligation to blindly accept the conclusions of a consultant if they are in c o n sis te n t with other evidence. As already noted, the ALJ considered and discounted th e opinion of Dr. Ghostley. That is all he is required to do. 3 . Testimony of Family Members. At the hearing before the ALJ, the plaintiff's f a th e r testified that he has attempted but failed to teach his son skills as an electrician and as a carpenter. (R. at 46) Q A D o e s he understand instructions? A s long as you're there with your hand on it he'll help you, but the minute yo u tell him to do something he, he didn't grasp it.

Id . L e tte rs from persons who had hired the plaintiff were submitted to the Appeals C o u n c il. One letter stated that the plaintiff was hired to do a concrete job, but when the e m p lo ye r "left and came back I had to show him repeatly (sic) what to do and I just could n o t keep him working." (R. at 168) A second letter lamented that the plaintiff "did not u n d e rs ta n d " and all of his work had to be redone. (R. at 174) T h e plaintiff correctly points out that neither the ALJ nor the Appeals Council m e n tio n e d the father's testimony or the letters and certainly did not make any credibility

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f in d in g s regarding this evidence. After careful review, the court concludes that if the C o m m is s io n e r' s failure to consider this evidence was error, it was harmless error. See D io r io v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (applying harmless error analysis in the Social Security case context). F o r the purpose of analysis, the court will assume that the father's testimony and th e letter evidence is correct. Even so, that evidence merely shows that the plaintiff is u n a b le to perform specific types of jobs, not all jobs. The vocational expert testified that e v e n with the limitations described by Dr. Passler, the plaintiff could perform work as a la b o re r. There is substantial evidence which supports that conclusion. F o r the foregoing reasons, the court concludes that the decision of the C o m m is s io n e r is due to be affirmed. A separate final judgment will be entered. D o n e this 30 th day of September, 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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