Stroud v. Astrue (CONSENT)

Filing 17

MEMORANDUM OPINION. Signed by Honorable Judge Terry F. Moorer on 8/16/13. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRENDA C. STROUD,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 1:12cv1070-TFM
(WO)

MEMORANDUM OPINION
I. PROCEDURAL HISTORY
The plaintiff, Brenda C. Stroud (“Stroud”) applied for supplemental security income

benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., on
September 18, 2008, alleging that she is unable to work because of a disability. Stroud’s
application was denied at the initial administrative level. Stroud then requested and received
a hearing before an Administrative Law Judge (“ALJ”). Following the hearing, the ALJ
determined that Stroud is not disabled. The Appeals Council rejected a subsequent request
for review. The ALJ’s decision consequently became the final decision of the Commissioner
of Social Security (“Commissioner”).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir.
1986).

The parties have consented to the undersigned United States Magistrate Judge

rendering a final judgment in this lawsuit. The court has jurisdiction over this lawsuit under

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.

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 briefs of the parties, the court concludes that the decision of the Commissioner is due
to be REVERSED and REMANDED.
II. STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(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
in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months . . . .
To make this determination,3 the Commissioner employs a five-step, sequential
evaluation 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
impairments 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?
An affirmative answer to any of the above 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.”

2

Title 42 U.S.C. §§ 405(g) and 1383(c)(3) allow a plaintiff to appeal a final decision of the
Commissioner to the district court in the district in which the plaintiff resides.
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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

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
The standard of review of the Commissioner’s decision is a limited one. This court
must find 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
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of
the record which support the decision of the ALJ but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. INTRODUCTION
A. The Commissioner’s Decision
Stroud was 41 years old at the hearing before the ALJ and has completed the eighth
grade. (R. 31, 128.) Stroud alleges that she became disabled on June 1, 2007, due to
migraine headaches, depression, back pain, foot pain, and arthritis. (R. 35, 47, 138.) After
the hearing, the ALJ found that Stroud suffers from severe impairments of arthralgia,
arthritis, asthma, depression, personality disorder, migraine headaches, and borderline
intellectual functioning. (R. 12.) The ALJ found that Stroud is unable to perform her past
relevant work, but that she retains the residual functional capacity (“RFC”) to perform light

4

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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work. (R. 14.) Testimony from a vocational expert led the ALJ to conclude that a significant
number of jobs exist in the national economy that Stroud could perform, including work as
an assembler, sewing machine operator, and garment bagger. (R. 23.) Accordingly, the ALJ
concluded that Stroud is not disabled. (Id.)
III. ISSUES
The plaintiff presents the following issues for this court’s review:
(1)

The Commissioner’s decision should be reversed because the ALJ erred
as a matter of law in failing to find that Stroud’s intellectual deficiency
meets and/or equals the criteria of Listing 12.05C and/or 12.05D.

(2)

The Commissioner’s decision should be reversed because the
ALJ abused her discretion by substituting her own medical
judgments for those of two examining psychiatrists, and failing
to give substantial weight to Stroud’s treating physician.

(Pl’s Br., Doc. # 14, p. 4).
IV. DISCUSSION
The plaintiff raises several arguments related to this court’s ultimate inquiry of
whether the Commissioner’s disability decision is supported by the proper legal standards
and by substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987).
However, the court pretermits discussion of the plaintiff’s specific arguments, with the
exception of her argument that she meets the requirements of Listing 12.05C, because the
court concludes that the Commissioner erred as a matter of law; and thus, this case is due to
be remanded for further proceedings. Specifically, the court finds that the Commissioner
erred by failing to properly evaluate whether Stroud meets Listing 12.05C at Step Three of
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the sequential evaluation, substituted her judgment for that of the consultative physician, and
failed to develop the record in full.
Stroud argues that the ALJ erred as a matter of law by failing to properly consider
whether she has a valid verbal, performance, or full scale I.Q. of 60 through 70 and a
physical or other mental impairment imposing an additional and significant work-related
limitation of function. The court agrees.
Section 12.05 of the Listing of Impairments define mental retardation as “significantly
sub-average general intellectual functioning with deficits in adaptive behavior initially
manifested during the developmental period; i.e. the evidence demonstrates or supports onset
of impairment before age 22.” See 20 C.F.R. Subpt P, App. 1, Listing 12.05(c). In addition
to this requirement, the Listings provide, in pertinent part, that a claimant is disabled if he
meets the following criteria:
§ 12.05. Mental Retardation . . . 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 I.Q. of 60 through 70 and a
physical or other mental impairment imposing additional and significant workrelated limitation of function.
Consequently, a claimant meets the strictures of 12.05C by presenting evidence of (1) a subaverage general intellectual functioning initially manifested prior to age twenty-two; (2) valid
IQ score of 60 to 70 inclusive; and (3) evidence of an additional mental or physical
impairment that has more than a “minimal effect” on the claimant’s ability to perform basic
work activities. Lowery v. Sullivan, 979 F.2d 835 (11th Cir. 1992); Edwards v. Heckler, 755
F.2d 1513, 1517 (11th Cir. 1985).
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The ALJ concluded that Stroud does not satisfy these requirements primarily because
her daily activities and work history demonstrate that her adaptive functioning is in the
borderline range of intelligence, she “does not have a valid verbal, performance, or full scale
IQ of 60 through 70 and [she does not have] a physical or other mental impairment imposing
an additional and significant work-related limitation of function.” (R. 14.)
First, the ALJ’s finding that Stroud does not have a valid IQ score falling between 60
and 70 is erroneous. The mental health records demonstrate that Dr. J. Walter Jacobs, a
consultative psychologist, conducted a psychological evaluation of Stroud in July 2010. (R.
263.) During the evaluation, Stroud took the Weschler Adult Intelligence Scale, Fourth
Edition (“WAIS-IV”). On the WAIS-IV, she achieved a verbal index score of 63, a
perceptual reasoning index score of 65, a working memory index score of 69, a processing
speed score of 74, and a full scale IQ score of 61. (R. 265.) Dr. Jacobs’ found that Stroud’s
full scale IQ score falls within the mild range of mental retardation, that her subtest scores
were uniformly low, and that the results of testing were “consistent with special education
placement.” (R. 265.) Thus, the ALJ’s determination that Stroud does not have a valid fullscale IQ score which falls between 60 and 70 is not supported by substantial evidence.
Secondly, the ALJ’s determination that Stroud’s daily activities demonstrate that her
adaptive functioning is in the borderline range of intelligence is not supported by substantial
evidence. In this Circuit, a claimant’s IQ score is not conclusive evidence of a disability
when it is inconsistent with other evidence of the claimant’s daily activities and behavior.
See Popp v. Heckler, 779 F.2d 1497 (11th Cir. 1986). In Popp, the Eleventh Circuit Court
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of Appeals held that the Listings for mental retardation do not require the Commissioner to
make a finding of mental retardation based upon the results of an I.Q. test alone. However,
the test results must be considered in context with other evidence including the daily
activities and behavior of the claimant. Id. at 1499. If the ALJ concludes from other
evidence in the record that the IQ scores are inconsistent with the claimant’s actual
intellectual functioning, the ALJ may properly find that the claimant does not meet the
criteria of § 12.05. The ALJ’s decision is reviewable by the court for substantial evidence.
In this case, the ALJ found:
The Administrative Law Judge notes that the claimant’s adaptive functioning
places her intellectual functioning in the borderline range of intelligence. That
is, the claimant’s ability (as noted by Dr. Jacobs and testified to by the
claimant) to manage her own finances, take care of her mother (who suffers
from dementia), care for other relatives living in the household, takes care of
her personal needs, read a newspaper, watch and concentrate on television,
prepare meals, and perform household chores such as laundry establish that her
adaptive functioning level [is] above mild mental retardation. It is noted that
the claimant attended school through the 8th grade in alleged special education
classes.
(R. 19.)
The ALJ’s finding that Stroud takes care of her mother and other relatives in her
household is a mischaracterization of the evidence. Stroud testified that, when she lived in
her mother’s house with her nephew and mother in 2009, “the people from the church were
bringing food to the house for them [and] I just only like fixed something for them at night
like a sandwich or something like that.” (R. 52.) She stated that, in February 2010, she
moved into a relative’s house with her two daughters, son-in-law, nephew, and mother. (R.
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37.) During the hearing, the ALJ questioned Stroud about her household responsibilities as
follows:
Q.

Do you take care of your parents or help with that?

A.

I just help watch my mother, that’s about it. But she feed herself
and - -

Q.

What do you help do for your mother exactly?

A.

Nothing but take her plate and that’s about it, because she bathes
her own self. She do all that, and keep her from going out the
door, stuff like that.

Q.

So you sit with your mother?

A.

Well, supposed to be all of us at the house, so it ain’t like I’m
there by myself.

Q.

And how old is your mother?

A.

62.

(R. 40-41.) Stroud also testified that she washes clothes and cooks but “when it comes to
cooking a big meal or something like that, my son-in-law do that.” (R. 54.) Although Dr.
Jacobs’ notes indicate that Stroud “cares for her elderly mother who has dementia,” the
consultative psychologist does not list any of Stroud’s household duties or specify how she
cares for her mother. (R. 263.) This court cannot conclude that Stroud’s ability to make
sandwiches, take a plate of food to and sit with her mother in a house with five other adults
establishes that she is her mother’s caretaker.
The ALJ’s finding that Stroud’s testimony indicates that she is able to take care of her
own finances is also incorrect. During the hearing before the ALJ, Stroud testified that she
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does not have a bank account, that she “can read and write, but [] can’t add good,” and that
her son-in-law assists her with calculations when paying for items in a store. (R. 32.) Thus,
the ALJ’s finding concerning Stroud’s testimony about her ability to take care of finances
is not supported by substantial evidence.
When determining Stroud’s adaptive functioning is above mild mental retardation, the
ALJ also failed to resolve inconsistencies in the record. The ALJ is tasked with the
responsibility of resolving inconsistencies in the evidence. See generally Wolfe v. Chater,
861 F.3d 1072, 1079 (11th Cir. 1996); Johnson v. Barnhart, 138 Fed. Appx. 266, 271 (11th
Cir. 2005). When assessing Stroud’s ability to concentrate, Dr. Jacobs found:
Ms. Stroud could not do reverse serial sevens. She was able to do simple
calculations by finger counting. This would include single digit multiplication
and division. She made one error in attempting to count backward from
twenty to one. Ms. Stroud was able to spell “world” forward and backward.
(R. 264.) When evaluating Stroud’s fund of information, Dr. Jacobs noted Stroud was able
to name the President of the United States, but that she was unable to name the capital or the
Governor of the State of Alabama. (Id.) Despite noting that Stroud “does appear capable of
functioning independently and managing her own finances,” Dr. Jacobs diagnosed Stroud
as suffering from mild mental retardation. (R. 265.) When relying on Dr. Jacobs’ notes
indicating that Stroud is able to function independently to conclude that her adaptive
functioning is above the level of mild mental retardation, the ALJ failed to reconcile this
determination with Dr. Jacobs’ diagnostic assessment of mild mental retardation and his
notes regarding Stroud’s sensorium and cognition skills. The ALJ is not free to simply
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ignore medical evidence, nor may he pick and choose between the records selecting those
portions which support his ultimate conclusion without articulating specific, well supported
reasons for crediting some evidence while discrediting other evidence. Marbury v. Sullivan,
957 F.2d 837, 840-41 (11th Cir. 1992). By ignoring Dr. Jacobs’ diagnosis of mild mental
retardation and other evidence in the record, the ALJ substituted his judgment for that of the
consultative psychologist when determining Stroud’s adaptive functioning places her
intellectual functioning in the borderline range of intelligence. While the ALJ is entitled to
make credibility determinations, the ALJ may not substitute his judgment for the judgments
of experts in their field of expertise. Psychiatrists deal with quintessentially subjective
information with respect to which they must exercise professional, interpretive judgment.
Hill v. Astrue, No. 1:09cv01-CSC, 2010 WL 1533121, *4 (M.D. Ala., April 15, 2010).
The court also concludes that the ALJ’s suggestion that Stroud’s work history as a
poultry processor and a clothing launderer establishes that her adaptive functioning is above
mild mental retardation is based on pure speculation. Manual labor of this nature “does not
require great mental acumen, and the fact that [Stroud] worked, which the ALJ emphasized,
is by itself barely relevant.” Williams v. Astrue, 692 F.Supp.2d 1331, 1341 (N.D. Fla. 2010)
(citing Powell v. Heckler, 773 F.3d 1572 (11th Cir. 1985); Ambers v. Heckler, 736 F.2d 1467
(11th Cir. 1984)).
The second prong of the Listing requires “evidence of an additional mental or physical
impairment that has more than “minimal effect” on the claimant’s ability to perform basic
work activities.” Lowery, 979 F.2d at 837; Edwards, 755 F.2d at 1517. The medical records
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clearly demonstrate that Stroud suffers from additional mental health impairments. For
example, Stroud participated in group therapy at SpectraCare on several occasions in 2009.
(R. 229, 238-240.) On December 8, 2009, a psychiatrist diagnosed Stroud with major
depressive disorder, recurrent, moderate; personality disorder non-specific; and
trichotillomania (hair pulling). (R. 236.) During his consultative examination of Stroud on
July 7, 2010, Dr. Jacobs also noted that “[u]nder the circumstances, it is not surprising that
Ms. Stroud experiences anxiety and depression.” (R. 263.) On January 18, 2011, Dr.
Fernando Lopez, a psychiatrist, noted that Stroud’s mood was depressed and prescribed
medication. (R. 230.) The ALJ, however, fails to consider these mental health records when
determining Stroud does not meet the requirements of Listing 12.05C.
Stroud also suffers from additional physical impairments. For example, in December
2007, Stroud presented to Dale Medical Center with complaints of pain in her lower back and
right leg. (R. 205-207.) On July 11, 2008, Stroud returned to the medical center complaining
of lower back pain. (R. 200.) On November 3, 2008, Dr. Sam Banner, a consultative
physician, conducted a physical examination, specifically noting problems with the range of
motion of Stroud’s neck and left elbow. (R. 224.) Dr. Banner diagnosed Stroud as suffering
from chronic left arm pain and arthralgia, noting that “[c]laimant will need continued medical
care.” (R. 222, 225.) The ALJ, however, ignores Dr. Banner’s findings and substitutes his
judgment for that of a medical specialist when determining Stroud does not have an
additional physical impairment. When considering Stroud’s chronic left arm pain coupled
with her depression, anxiety, and other psychological impairments, the court cannot conclude
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that the ALJ’s finding that there is no evidence of an additional mental or physical
impairment imposing additional and significant work-related limitation of function is
supported by substantial evidence.
The court also concludes that the ALJ failed to consider Stroud’s inability to afford
medical treatment when determining that Stroud has the residual functional capacity to
perform work. The ALJ discredited Stroud’s allegations of disabling symptoms based on
sporadic medical treatment. While failure to seek treatment is a legitimate basis to discredit
the testimony of a claimant, it is the law in this Circuit that poverty excuses non-compliance
with prescribed medical treatment or the failure to seek treatment. Dawkins v. Bowen, 848
F.2d 1211 (11th Cir. 1988). The medical records are replete with references to Stroud’s
inability to afford treatment. For example, on November 3, 2008, Dr. Banner noted that
Stroud “has had no other medical treatment due to a lack of funds” and that she “will need
continued medical care.” (R. 222, 225.) On July 7, 2010, Dr. Jacobs also noted that Stroud
“does not receive regular medical care [and is] going to the ER if medical treatment is
necessary.” (R. 263.) Despite recommendations concerning the need for continued medical
treatment and notations indicating Stroud is uninsured and is unable to afford treatment, the
Commissioner did not properly consider whether Stroud’s financial condition prevented her
from seeking medical treatment. Although the ALJ states that “community clinics exist in
the local area of the claimant’s residence that offer both reduced cost and free medical
treatment for indigent people,” the ALJ does not point to any medical specialists or health
centers which are willing to treat Stroud’s specific physical or mental health conditions on
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a gratuitous basis. Thus, this court cannot conclude that the ALJ’s discrediting of Stroud
based on her failure to seek treatment is supported by substantial evidence.
Finally, the court concludes that the ALJ erred in failing to fully develop the record
regarding the extent of Stroud’s physical impairments. Notwithstanding evidence in the
record indicating that Stroud complained of back pain during the relevant time period, the
ALJ took no steps to explore the severity of Stroud’s condition by securing additional testing
by a medical specialist. On July 11, 2008, a radiologist noted “a .5 sclerotic area overlying
the left pedicle of L5, visible only on the AP view” and “suggest[ed] a nuclear bone scan for
further evaluation.” (R. 203.) The record, however, does not include records of the
recommended bone scan. It is error for the ALJ to fail to obtain additional testing or
otherwise develop the evidence, if that information is necessary to make an informed
decision. See Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988); Freel v. Astrue,
2012 WL 628463, *6 (M.D. Fla. 2012) (“The ALJ is not required to order a consultative
examination or additional testing unless the record shows that such an examination is
necessary for the ALJ to render a decision.”). Because the ALJ’s reasons for discounting the
consultative physicians’ opinions is based on her lack of treatment and it is documented that
the reason for the lack of medical records is her inability to afford treatment, the court cannot
conclude that the lack of evidence is a sufficient reason on its own for discounting the
physicians’ opinion. Consequently, on remand, the ALJ shall consider whether ordering a
bone scan would assist him in determining Stroud’s disability status.
“Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ’s
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duty to investigate the facts and develop the arguments both for and against granting
benefits.” Sims v. Apfel, 530 U.S. 103, 110-111 (2000).
The SSA is perhaps the best example of an agency that is not based to a
significant extent on the judicial model of decisionmaking. It has replaced
normal adversary procedure with an investigatory model, where it is the duty
of the ALJ to investigate the facts and develop the arguments both for and
against granting benefits; review by the Appeals Council is similarly broad.
Id. The regulations also make the nature of the SSA proceedings quite clear.
They expressly provide that the SSA “conducts the administrative review
process in an informal, nonadversary manner.” 20 C.F.R. § 404.900(b).
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000).
For these reasons, the court concludes that the Commissioner erred as a matter of law,
and that the case should be remanded for further proceedings.
VI. CONCLUSION
Accordingly, this case will be reversed and remanded to the Commissioner for further
proceedings consistent with this opinion.
A separate order will be entered.
Done this 16th day of August, 2013.

/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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