Butts v. Colvin (CONSENT)

Filing 14

MEMORANDUM OPINION. The court has carefully and independently reviewed the record and concludes that, for the reasons given above, the decision of the Commissioner is REVERSED and this case REMANDED for proceedings consistent with this opinion. A separate judgment will issue. Signed by Honorable Judge Wallace Capel, Jr. on 3/24/2014. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION

DIANA KEY BUTTS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO.: 1:13cv130-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Diana Key Butts, applied for disability insurance benefits and

supplemental security income, but her applications were denied at the initial
administrative level. As a result, Plaintiff requested and received a hearing before an
Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued a decision in
which she found Plaintiff “not disabled” at any time through the date of the decision.
Plaintiff then sought review from the Appeals Council, but that request was rejected. 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).

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Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 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.

The case is now before the court for review under 42 U.S.C. § 405(g). Pursuant to
28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and
entry of a final judgment by the undersigned United States Magistrate Judge. Pl.’s
Consent to Jurisdiction (Doc. 8); Def.’s Consent to Jurisdiction (Doc. 9). Based on the
court’s review of the record and the briefs of the parties, the court REVERSES AND
REMANDS the decision of the Commissioner.
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.
42 U.S.C. § 423(d)(1)(A).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(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 [the Listing of
Impairments]?
(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?
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A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.

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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.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step 1 through Step
4. At 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 Guidelines4 (grids) or call a vocational expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary

3

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).

4

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

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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. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s 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); see also Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence
preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.”). 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).
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III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was fifty-four years old when the ALJ’s decision was issued. Plaintiff

had a limited education and attended special education classes until she dropped out. Tr.
27.

Plaintiff had past relevant work as a housekeeper.

Tr. 26.

Following the

administrative hearing, and employing the five-step process, the ALJ found that Plaintiff
“has not engaged in substantial gainful activity since the alleged onset date.” (Step 1)
Tr. 17. At Step 2, the ALJ found that Plaintiff suffered from the following severe
impairments:

“hypertension, back pain, shoulder pain, obesity, depression, and

borderline intellectual functioning.” Tr. 17. At Step 3, the ALJ found that Plaintiff’s
impairments, impairment or combination of impairments did not meet or medically equal
any listed impairment. Id. Next, the ALJ found that Plaintiff retained the RFC
to perform less than a Full Range of light work as defined in 20 CFR
404.1567(b) and 416.967(b) except the claimant can only occasionally
push/pull against resistance with the upper extremities, except as needed for
reaching. She should not perform overhead reaching with the non-dominant
upper extremity. She should never climb ladders, ropes, or scaffolds. She
could occasionally climb ramps, stairs, stoop, crouch, or kneel. She could
never crawl. She should avoid operating dangerous machinery or work at
unprotected heights. Due to deficits with literacy, she would require a job
with no reading above the first grade level. Due to pain, borderline
intellectual functioning, psychological issues and other factors she would
have some moderate deficits in concentration persistence or pace which
would limit her to simple routine tasks with only minimal decision making,
changes in the work setting or use of judgment. Her deficits in
concentration, persistence or pace could also cause her to be off task or at a
non-productive pace for up to 5% of the workday.

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Tr. 21. Following the RFC determination, the ALJ found that Plaintiff could not perform
her past relevant work. (Step 4) Tr. 26. At Step 5, the ALJ found that, “[c]onsidering the
claimant’s age, education, work experience, and residual functional capacity,” and after
consulting with the VE, “there are jobs that exist in significant numbers in the national
economy that the claimant can perform.” Tr. 27. The ALJ identified the following
occupations as examples: “packer,” “usher,” and “cafeteria attendant.” Id. Accordingly,
the ALJ determined that Plaintiff “has not been under a disability, as defined in the Social
Security Act, from February 5, 2009, through the date of th[e] decision.” Id.
IV.

DISCUSSION
The single issue presented in this case relates to the ALJ’s decision that Plaintiff’s

impairments did not meet or equal the criteria of Listing 12.05. Within this claim,
Plaintiff argues that the ALJ erred in finding that Plaintiff did not meet the introductory
paragraph requirements of the listing and erred in finding that Plaintiff did not meet the
criteria of Listing 12.05C because she suffered no “additional and significant”
impairment.

The Commissioner concedes error as to the Paragraph C finding, but

maintains that the ALJ’s decision should be upheld, because the Paragraph C finding is
only relevant if Plaintiff meets the introductory paragraph requirements of the Listing—
which the Commissioner argues Plaintiff does not.
Under the Listing scheme of 12.05, a Plaintiff must first meet the requirements of
the introductory paragraph, then the criteria of the subparagraph before they can be found
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to meet the listing. See Listing 12.00A (“If your impairment satisfies the diagnostic
description in the introductory paragraph and any one of the four sets of criteria, we will
find that your impairment meets the listing.”). The introductory paragraph of Listing
12.05 defines “intellectual disability” as:
Intellectual disability: intellectual disability 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.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (emphasis in original). Thus, “[t]o be
considered for disability benefits under section 12.05, a claimant must at least (1) have
significantly subaverage general intellectual functioning; (2) have deficits in adaptive
behavior; and (3) have manifested deficits in adaptive behavior before age 22.” Crayton
v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997). It is that third requirement where the
ALJ determined that Plaintiff fell short.
Plaintiff first points to her presentment of a full IQ score of 52 and a diagnostic
impression of mild mental retardation, which was not rejected by the ALJ. Then Plaintiff
points this court to the rebuttable presumption that absent evidence of sudden trauma,
there is a rebuttable presumption that an IQ score will stay constant throughout life, and
that “a claimant need not present evidence that she manifested deficits in adaptive
functioning prior to the age twenty-two, when she presented evidence of low IQ test
results after the age of twenty-two.”

Pl.’s BR. (Doc. 11) at 5 (quoting Hodges v.

Barnhart, 276 F.3d 1265, 1266 (11th Cir. 2001)).
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Thus, keeping in mind such a

presumption, the court turns to the ALJ’s reasons for finding that the presumption had
been rebutted.
When specifically addressing whether Plaintiff meet the criteria of Listing 12.05C,
the ALJ first made the finding that Plaintiff did not meet the diagnostic requirements of
the introductory paragraph, then later made the error regarding the Paragraph C criteria.
In making the introductory paragraph finding, the ALJ found that Plaintiff had not
manifested deficits in adaptive functioning prior to age 22, stating that Plaintiff’s “history
of mental illness does not suggest historic lifetime difficulties, and day-to-day function
was significantly better at one time based upon the claimant’s school work or function.”
Tr. 21. The ALJ also pointed out that Plaintiff “did not quit school or work because of
her mental impairments” and that Dr. Jordan had “determined that the claimant should be
able to do labor jobs that did not require reading.” Id. The court finds that the ALJ’s
determination is in error and without support of substantial evidence.
First, as to the issue of school, while it is true that Plaintiff testified that she
dropped out of school due to pregnancy rather than because of mental impairments, the
fact of the matter was that she was in special education classes while in school. Tr. 20.
The court agrees with Plaintiff and its sister court in the Northern District of Alabama,
that special education classes indicate deficits in adaptive functioning. Vaughn v. Astrue,
494 F. Supp. 2d 1269, 1274 (N.D. Ala. 2007). The Commissioner must keep in mind,
that the test for the introductory paragraph is simply deficits in adaptive functioning, not
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“significant deficits.” The determination regarding the level of those deficits is reserved
for Paragraph D of the Listing.
Second, as to the issue of work, “once a claimant is found to suffer from a listed
impairment, vocational factors are irrelevant.” Id. (citing Ambers v. Heckler, 736 F.2d
1467 (11th Cir. 1984)). This is because once the determination is made that a claimant’s
impairments meet or equal a listing, benefits are awarded. Further, the ALJ’s assertions
regarding Plaintiff’s work history are not accurate. Plaintiff did quit her work due to a
mental impairment. Plaintiff’s job required her to read a list of tasks to be performed on
a daily basis. She is unable to read, so a co-worker would read her the list. Once that coworker quit, Plaintiff was unable to continue working. That evidences a deficit in
adaptive functioning. Moreover, the court must point to the troubling inconsistency in
the ALJ’s reliance on Plaintiff’s supposed “school work” as evidence that Plaintiff had no
deficits in adaptive functioning, while at the same time, the ALJ’s relied on Plaintiff’s
ability to do work, as long as it did not involve reading above a first grade level. Clearly
such a restriction evidences a deficit in Plaintiff’s schooling and her ability to work.
Third, the court has questions regarding the ALJ’s reliance on Dr. Jordan’s
opinion to make the introductory paragraph determination. The ALJ cites Dr. Jordan’s
opinion regarding the Plaintiff’s “history of mental illness,” Tr. 20, where the report
actually discusses Plaintiff’s “history of illness,” Tr. 331. This insertion of the word
“mental” is important because the report was completed in 2010, when Plaintiff was 54
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years of age, and related to Dr. Jordan’s diagnostic impression of “Major Depressive
Disorder,” “Borderline Intellectual Functioning” and “Chronic pain.” Id. To which of
these “illnesses” Dr. Jordan was referring is not clear. However, Dr. Jordan’s diagnosis
of mental retardation and the IQ testing did not occur until 2011. Tr. 335. Thus, Dr.
Jordan could not have been opining regarding Plaintiff’s mental retardation in the 2010
report.
Accordingly, the court finds that these errors in the ALJ’s decision requires this
court to remand this decision for the ALJ to clarify his rebuttal of the presumption that
Plaintiff did manifest deficits in adaptive functioning prior to the age of 22 and to
properly explain his reliance on the Dr. Jordan’s opinion where the 2010 report does not
appear to address adaptive functioning prior to the age of 22.
V.

CONCLUSION
The court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is REVERSED and this
case REMANDED for proceedings consistent with this opinion.
A separate judgment will issue.
Done this 24th day of March 2014.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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