Poke v. Astrue (CONSENT)

Filing 14

MEMORANDUM OPINION AND ORDER directing that this case is due to be REVERSED and REMANDED to the Commissioner for further proceedings consistent with this opinion. Signed by Honorable Judge Terry F. Moorer on 10/1/12. (Furnished to SSA Chief Judge and SSA Appeals)(scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
VALENTA M. POKE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.

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CASE NO. 1:12-cv-189-TFM
[wo]

MEMORANDUM OPINION AND ORDER
In March 2009, Valenta M. Poke (“Plaintiff” or “Poke”) originally applied for
Supplemental Social Security Income under Title XVI of the Social Security Act (“the
Act”), 42 U.S.C. §§ 1381-1484f. (Tr. 233-34). She alleged disability since August 19961
(Tr. 233-34) due to physical impairments including pain and swelling in her arms and
legs. (Tr. 256). After her application was denied (Tr. 120), and following two hearings
(Tr. 37-63, 65-93), the ALJ issued a decision finding Poke not disabled since March
2009. (Tr. 20-32). The Appeals Council denied Poke’s request for review making the
ALJ’s decision the Commissioner’s final decision for purposes of judicial review. (Tr. 14); See 20 C.F.R. § 422.210(a). Judicial review proceeds pursuant to 42 U.S.C. § 405(g),
and 28 U.S.C. § 636(c). After careful scrutiny of the record and briefs, for reasons herein
explained, the Court REVERSES and REMANDS the Commissioner’s decision.
1

The record shows that Plaintiff filed a prior application for supplemental security income in April 2005
in which she also alleged disability since August 1996. In March 2007, an ALJ issued a decision finding
Plaintiff not disabled on that application, and, in April 2009, the Appeals Council denied her request for
review of the ALJ’s decision. (see Tr. 99-108,119).

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I. NATURE OF THE CASE
Poke seeks judicial review of the Commissioner’s decision denying her
application for disability insurance benefits. United States District Courts may conduct
limited review of such decisions to determine whether they comply with applicable law
and are supported by substantial evidence. 42 U.S.C. § 405. The Court may affirm,
reverse and remand with instructions, or reverse and render a judgment. Id.
II. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is a limited one. The Court’s
sole function is to determine whether the ALJ’s opinion is supported by substantial
evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983).
“The Social Security Act mandates that ‘findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the
Commissioner’s decision conclusive if it is supported by substantial evidence. Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla
— i.e., the evidence must do more than merely create a suspicion of the existence of a
fact, and must include such relevant evidence as a reasonable person would accept as
adequate to support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d

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842 (1971)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th
Cir. 1982)).
If the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the court would have reached a contrary result as finder of fact,
and even if the evidence preponderates against the Commissioner’s findings. Ellison v.
Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584
n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986)). The Court must view the evidence as a whole, taking into account evidence
favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The Court “may not decide facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but
rather it “must defer to the Commissioner’s decision if it is supported by substantial
evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth,
703 F.2d at 1239).
The Court will also reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton
v. Dep’t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption
that the Commissioner’s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d
1233, 1236 (11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).

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III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence.2 See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line.3 Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act which defines disability in virtually identical language
for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§
404.1505(a), 416.905(a). A person is entitled to disability benefits when the person is
unable to
Engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes.
See Social Security Administration, Social Security Handbook, § 136.1, available at
http://www.ssa.gov/OP_Home/handbook/handbook.html
3
SSI benefits are authorized by Title XVI of the Social Security Act and are funded by general
tax revenues. See Social Security Administration, Social Security Handbook, §§ 136.2, 2100,
available at http://www.ssa.gov/OP_Home/handbook/handbook.html
2

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in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 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. 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits.

See 20 C.F.R. §§

404.1520, 416.920 (2010).
(1) Is the person presently unemployed?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?4
(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?
An affirmative answer to any of the questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
“not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
4

This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
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Step 5, the burden shifts to the Commissioner, who must then show there are a significant
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
Residual Functional Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines5 (“grids”) or hear testimony from a vocational expert (VE). Id. at
1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Id. at 1240. Combinations of these factors yield a statutorily-required
finding of “Disabled” or “Not Disabled.” Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
The ALJ held two administrative hearings, one in July, 2010 (Tr. 65-93) and one
in March, 2011 (Tr. 37-63). Plaintiff testified at both hearings, and her testimony was
largely consistent between the two hearings. Poke, age 49 at the time of the ALJ’s

See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. § 416.969 (use of the grids in SSI
cases).

5

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decision, completed the ninth grade and was enrolled in special education classes. (Tr.
70.) She said that she could read and write a “[l]ittle bit” (Tr. 70). During her lifetime,
Poke held a variety of jobs, such as housekeeper, cook, packer, and janitor, but most of
her jobs were short term or part time. (Tr. 43, 72-73, 242-49). Poke testified that she
raised six children alone as a single mother (Tr. 62), and that she lived with her daughter
and her daughter’s infant son at the time of the hearings. (Tr 40-41, 69, 79).
Poke testified that, in a typical day, she did housework, cooked, did laundry,
grocery shopped, and planted greens. (Tr. 47-48, 75). She said she took care of her
infant grandchild for a few hours each day as well. (Tr. 47). She also went to church
twice a month. (Tr. 49, 76-77). She said she was able to pay the “light bill and rent”
herself (with money her daughter gave her) (Tr. 53, see also Tr. 48, 76). She claimed she
did not drive because she could not see well enough to do so and did not have a license.6
(Tr. 48, 77). Plaintiff’s testimony regarding her inability to work revolved primarily
around her physical impairments, including pain in her legs, knees, neck, shoulders, and
arms, as well as bad eyesight and high blood pressure. (Tr. 44-46, 49-53, 74-75, 78-84).
In June 2005, psychologist Doug McKeown, Ph.D., performed a psychological
evaluation of Plaintiff at the request of the state agency in connection with her prior
disability application. Dr. McKeown noted Plaintiff’s reports that she had completed
ninth grade in school, had not worked since 1998, and had lost her driver’s license
because of a driving under the influence ticket in 1998 and had never renewed it. Dr.
6

Poke told Doug McKeown, Ph.D, a clinical and forensic psychologist, during a disability evaluation
conducted on June 7, 2005, that she received a DUI in 1998, but would be eligible to get her license back
if she wanted it. (Tr. 360).

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McKeown also noted Poke’s reports that she had never sought any mental health
treatment (and the record does not contain any mental treatment records), but sometimes
felt depressed.

A mental status examination showed that Plaintiff could recite the

alphabet; count backward from 20 without difficulty; add and subtract single digits (but
had difficulty with more complex mathematical computations); could not spell the word
“world” forward or backward; could recall three items after five minutes; could repeat
four digits forward and reverse three digits on a second try; could provide basic
information about activities she had engaged in during the past 24 hours; had an adequate
fund of information (e.g. could name the president but not the governor of Alabama); had
concrete thought processes and normal thought content; and displayed adequate judgment
and insight.
Dr. McKeown concluded that Plaintiff functions in the upper end of the mild range
of mental retardation, but that her “difficulties appear to focus primarily on her physical
symptoms and she does appear to have no significant indications of anxiety or depressive
symptomology. She is concrete and limited but does demonstrate reasonable adaptive
living skills.”

(Tr. 360-62).

The next month, Dr. McKeown performed follow-up

intelligence testing that showed Poke had a full IQ scale of 63, which placed her in the
mild range of mental retardation. (Tr. 364-67).
In May 2009, state agency psychologist Joanna Koulianos, Ph.D. reviewed
Plaintiff’s medical records in connection with her disability application. Dr. Koulianos
opined that Plaintiff had mild mental retardation, but that records showed she engaged in
daily activities including performing simple household chores, cooking simple meals, and
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taking care of her personal needs.

Dr. Koulianos opined that Plaintiff’s mental

impairments did not meet the listings. (Tr. 448-61). Dr. Koulianos opines that Plaintiff is
not significantly limited in ten areas of functioning and is moderately limited in the other
ten areas of functioning.

Dr. Koulianos concludes that Plaintiff could understand,

remember and carry out very short simple instructions (that detailed instructions should
be limited) and maintain attention for two-hour periods, but that Plaintiff would
periodically require assistance or supervision to complete tasks in a timely manner;
corrective action from supervisors should be offered in a simple, supportive manner;
workplace changes should be infrequent; and Plaintiff’s contact with the general public
and co-workers should be limited and casual in nature. (Tr. 462-64).
The ALJ found that Poke had not engaged in substantial gainful activity since her
application date, and that she had severe impairments – borderline intellectual
functioning, arthritis, and high blood pressure – that did not meet or medically equal the
criteria of a listing at 20 C.F.R. pt. 404, subpt. P, app. 1 (the listings) (Tr. 22-26).
Between steps three and four, the ALJ assessed Plaintiff’s residual functional capacity.
(Tr. 26-29).

From vocational expert testimony, the ALJ found that Plaintiff could

perform work that existed in significant numbers, and was thus not disabled within the
meaning of the Act. (Tr. 32).

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V. ISSUE
Poke raises a single issue.

Whether the Commissioner’s decision should be

reversed and a disability finding entered, because Ms. Poke’s Mild Mental Retardation
meets Listing 12.05(c)?
VI. DISCUSSION
I. The ALJ erred in failing to consider all the evidence that Poke’s Mild
Mental Retardation did meet Listing 12.05 C.
Plaintiff argues that the ALJ erred in finding Poke’s mild mental retardation did
not meet Listing 12.05 C . Under Listing 12.05, a claimant is disabled if she meets the
following criteria:
“Mental retardation refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during
the developmental period; i.e., the evidence demonstrates or supports onset
of the impairment before age 22.”
“The required level of severity for this disorder is met when the
requirements in A, B, C or D are satisfied.”
“C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant
work-related limitation of function.”

See 20 CFR pt. 404, subpt. P, App. 1 § 12.05 (emphasis added). During a consultative
examination with Dr. McKeown, plaintiff took an IQ test - the Wechsler Adult
Intelligence Scale - Third Edition (WAIS-III). (Tr. 364-366). The testing demonstrated

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that Poke has a valid verbal score of 64, performance score of 69, and a full scale score of
63.

(Tr. 365).

Dr. McKeown diagnosed Poke as suffering from “mild mental

retardation.” Id.
The ALJ recognized that Poke’s IQ scores were “within the range delineated under
this paragraph” but held that Poke did not “demonstrate adaptive functioning deficits
consistent with this degree of mental retardation.” (Tr. 23-24). Specifically, the ALJ
recognized that the evidence demonstrates that Poke
raised six children alone, enrolled them in school, managed household bills,
availed herself of community resources, looked in the newspaper for jobs,
took the children to the doctor, and socializes with family and friends in
church.
(Tr. 24). The ALJ, also noted Poke’s claim that “she is unable to pay bills, count change,
handle a savings account, or use a checkbook or money order.” (Tr. 24). The ALJ did
not fully credit this assertion based on Poke’s testimony that she could shop for groceries,
run a household and raise six children. (Tr. 24.). Poke testified she was able to pay the
“light bill and rent” herself (with money her daughter gave her). (Tr. 53, see also Tr. 48,
76). Poke told the ALJ:
Q. Do you pay your own household bills?
A. No, my daughter pays it.
Q. Have you paid your own bills in the past?
A. Yes, ma’am.
Q. When you were able to work, were you taking care of your bills yourself?
A. Yes, ma’am.
Q. Did you have a bank account to do that, or did you cash your checks and drive
around and pay your bills with the different companies? Or what did you do?
A. Yeah, whatever – I rode around and paid the bills, what I worked for.

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(Tr. 76). Although it is clear from the testimony that Poke has been responsible at times
for paying her own bills, the testimony does not demonstrate Poke could manage a
checking or savings account or make change.

Poke argues that the ALJ erred in concluding that her “capacity for adaptive
functioning despite her cognitive deficits is inconsistent with the IQ scores provided”
(Tr. 29) because the ALJ relied solely on some of Poke’s daily activities and failed to
consider her lack of past work history and the limitations set forth by her education
history. See Plaintiff’s Brief Doc. 11 at p.11. In support of this argument Poke cites to
Cobb v. Barnhart, 296 F. Supp.2d 1295 (N.D. Ala. 2003)(a claimant’s activities of daily
living and/or history of being able to hold a job does not necessarily preclude a finding of
disability under 12.05 C) and Whetstone v. Barnhart, 263 F. Supp. 2d 1318, 1325-1326
(M.D. Ala. 2003)(evidence of daily activities and behavior and academic performance is
properly considered in determining “actual intellectual functioning” under 12.05 C).
The Eleventh Circuit has held that
“a claimant meets the criteria for presumptive disability under section
12.05(C) when the claimant presents a valid I.Q. score of 60 to 70 inclusive,
and evidence of an additional mental or physical impairment that has more
than “minimal effect” on the claimant’s ability to perform basic work
activities. . . . A valid I.Q. score need not be conclusive of mental
retardation where the I.Q. score is inconsistent with other evidence in the
record on the claimant’s daily activities and behavior.”

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Lowery v. Sullivan, 979 F. 2d 835, 837 (11th Cir. 1992)(emphasis added) (citations
omitted). The ALJ recognized that Poke’s IQ score put her in the “mild range of mental
retardation”, but concludes that the presumptive disability established by the score is
rebutted because “the claimant does not demonstrate adaptive functioning deficits
consistent with this degree of mental retardation.” (Tr. 23-24).
The Lowery court cites to Popp v. Heckler, 779 F. 2d 1497 (11th Cir. 1986) for the
rule of law that even when a valid IQ score falls within the range establishing a mental
impairment sufficient to establish presumptive disability, other evidence of claimant’s
daily activities and behavior may render the IQ score inconclusive. Although the rule of
law is correct; Popp is clearly distinguishable from the instant action on its facts. Indeed,
in Popp, the claimant held a two-year college associate’s degree, was enrolled in a third
year of college as a history major, had worked as an administrative clerk for the Army
and as a statistical clerk for the VA Hospital, and had also worked as a postal clerk, soil
testing technician, cashier, and an algebra teacher at a private school for grades ten
through twelve. Id. at 1498. In contrast, Poke only completed the 9th grade and there is
evidence that she was enrolled in special education classes. (Tr. 70). Additionally,
Poke’s work history includes mostly short term or part time employment including work
as a housekeeper, cook, packer, and janitor. (Tr. 43, 72-73, 242-49).
The court now turns its attention to whether Poke demonstrated “adaptive
functioning deficits” sufficient to satisfy the diagnostic description in the introductory

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paragraph of § 12.05. Poke argues that the ALJ erred because she did not consider Poke’s
academic performance in making the “adaptive functioning deficits” finding. Poke points
to the special education instruction she received in school and her problems in the areas
of reading and writing (Tr. 70) as evidence of “adaptive functioning deficits”.7 Moreover,
the court notes that the ALJ did not discuss Poke’s limited work history and the nature of
that work in considering whether Poke met § 12.05C.

Indeed, the ALJ did not

specifically discuss or consider these deficits when she concluded that Poke did “not
demonstrate adaptive functioning deficits consistent with this degree of mental
retardation.” (Tr. 24).
It is clear from the this court’s reading of the ALJ’s opinion that the ALJ failed to
consider all the evidence before her of Poke’s “adaptive functioning deficits” when she
made her determination that Poke failed to meet § 12.05C. Thus, the court concludes that
the ALJ’s determination regarding the rebuttable presumption established by Poke’s IQ
test, is not supported by substantial evidence. Therefore, the court further concludes that
this case is due to be remanded so the Commissioner may properly determine whether
Poke meets the requirements of Listing 12.05C. See Burgans v. Astrue, 2010, WL
1254299 (M.D. Ala. March 26, 2010) (reversing and remanding for Commissioner’s
failure to inform the plaintiff of her burden of proof with respect to the “deficits of

7

The ALJ, however, did discuss Poke’s academic background and limited reading and writing skills in
the context of considering whether Poke met § 12.05D. Indeed, the ALJ noted that the record contained
conflicting evidence as to whether she attended special education classes and the degree to which her
reading and writing abilities were limited. (Tr. 25).

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adaptive functioning necessary to meet the Listing” and because the ALJ’s determination
regarding “the rebuttable presumption is not supported by substantial evidence.”).
VII. CONCLUSION
Accordingly, the court concludes that this case is due to be REVERSED and
REMANDED to the Commissioner for further proceedings consistent with this opinion.
It is ORDERED that in accordance with Bergen v. Comm’r, of Soc. Sec., 454 F. 3 1273,
1278 n. 2 (11th Cir. 2006), the plaintiff shall have ninety (90) days after she receives
notice of any amount of past due benefits awarded to seek attorney’s fees under 42 U.S.C.
§ 406(b). See also Blitch v. Astrue, 261 Fed. Appx. 241, 242 n. 1 (11th Cir. 2008).
A separate order shall accompany this opinion.

DONE this 1st day of October, 2012.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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