Burgans v. Astrue (CONSENT)

Filing 23

MEMORANDUM OPINION. A separate order will be entered. Signed by Honorable Charles S. Coody on 3/26/2010. (Attachments: # 1 Civil Appeals Checklist)(cb, )

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IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION S Y B I L BURGANS, 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. 2:08cv386-CSC (WO) 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 Social S e c u rity Act, 42 U.S.C. 401 et seq., alleging that she was unable to work because of a d is a b ility. Her application was denied at the initial administrative level. The plaintiff then re q u e ste d and received a hearing before an Administrative Law Judge ("ALJ"). Following th e hearing, the ALJ also denied the claim. The Appeals Council rejected a subsequent re q u e st for review. The ALJ's decision consequently became the final decision of the C o m m issio n er of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 1 3 1 (11 th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C. 4 0 5 (g) and 1631(c)(3). The parties have consented to the United States Magistrate Judge 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. 1 c o n d u c tin g all proceedings in this case and ordering the entry of final judgment, pursuant to 2 8 U.S.C. 636(c)(1) and M.D. Ala. LR 73.1. Based on the court's review of the record in th is case and the briefs of the parties, the court concludes that the decision of the C o m m is s io n e r should be reversed and remanded for further proceedings. II. 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 period o f not less than 12 months . . . To make this determination,2 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 "not d is a b le d ." 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 2 M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).3 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 evidence. 4 2 U.S.C. 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11 th 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). A reviewing court may not look only to those parts of th e record which supports 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 (11 th Cir. 1986). [ T h e court must] . . . scrutinize the record in its entirety to determine the re a s o n a b le n e ss of the [Commissioner's] . . . factual findings . . . No similar p r e s u m p t io 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 (11 th Cir. 1987). I I I . The Issues A . Introduction. Plaintiff Sybil Burgans ("Burgans") was 53 years old at the time o f the hearing before the ALJ. (R. 404). She has a ninth grade education but her classes w e re all special education classes. (R. 90 & 405). Burgans alleges that she has been disabled 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). 3 3 s in c e November 26, 2003, (R. 24), due to headaches, pain in her back, shoulder, legs and h a n d s . (R. 83-84). She also complains of problems with her nerves. (Id.) She did not allege th a t she was disabled due to mental retardation. Following a hearing, the ALJ concluded that the plaintiff has severe impairments of " b u lg in g cervical disc with radiculopathy, arthritis of the left shoulder, carpal tunnel s yn d ro m e , peripheral neuropathy, headaches, lumbar disc bulge, non-insulin dependent diabetes mellitus, obesity, status post left shoulder impingement syndrome, major depression, a n d borderline intellectual functioning." (R. 33). The ALJ concluded that Burgans was u n a b le to perform her past relevant work as an egg collector/packer and sewing machine o p e ra to r. (R. 40). However, relying on the testimony of a vocational expert, the ALJ c o n c lu d e d that jobs exist in significant numbers in the national economy that Burgans could p e rf o rm , and thus, she is not disabled. (Id.). B. Plaintiff's Claims. As stated by the plaintiff, she presents the following issues for th e Court's review. I. II. T h e ALJ erred in failing to find disability under 12.05C. T h e ALJ erred in failing to find Plaintiff disabled under the Medical V o c a tio n a l Rules at the sedentary level. T h e ALJ did not meet his burden of establishing other work that could b e performed. III. (P l's Br. in support of Compl., at 4, 7 & 9). I V . Discussion 4 A disability claimant bears the initial burden of demonstrating an inability to return to her past work. Lucas v. Sullivan, 918 F.2d 1567 (11 th Cir. 1990). In determining whether th e claimant has satisfied this burden, the Commissioner is guided by four factors: (1) o b je c tiv e medical facts or clinical findings, (2) diagnoses of examining physicians, (3) su b jec tiv e evidence of pain and disability, e.g., the testimony of the claimant and her family o r friends, and (4) the claimant's age, education, and work history. Tieniber v. Heckler, 720 F .2 d 1251 (11 th Cir. 1983). The court must scrutinize the record in its entirety to determine th e reasonableness of the ALJ's decision. See Walker, 826 F.2d at 999. The ALJ must c o n sc ien tio u sly probe into, inquire of and explore all relevant facts to elicit both favorable a n d unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11 th Cir. 1 9 8 1 ). The ALJ must also state, with sufficient specificity, the reasons for his decision re f e re n c in g the plaintiff's impairments. Burgans raises issues related to this court's ultimate inquiry of whether the C o m m is s io n e r's disability decision is supported by the proper legal standards and substantial e v id e n c e . See Bridges v. Bowen, 815 F.2d 622 (11 th Cir. 1987). That ultimate issue inquiry is what guides the court in this case. Because the court concludes that the ALJ erred as a m a tte r of law at step three of the sequential analysis, this case is due to be remanded for f u rth e r proceedings, and the court pretermits discussion of the plaintiff's other specific a rg u m e n ts . Burgans contends that the Commissioner erred in failing to find that she is disabled 5 u n d e r 12.05C of the Listing of Impairments because she was diagnosed as mentally retarde d , and she meets the requirements in the Listing. (Pl's Br. at 5). The Commissioner, o n the other hand, argues that Burgans does not meet or equal all of the criteria of Listing 1 2 .0 5 C because she has not demonstrated that she has the requisite "deficits of adaptive f u n c tio n in g " o r that her significantly subaverage general intellectual functioning manifested b e f o re age 22. (Mem. in Supp. of the Comm'r Dec., doc. # 13, at 6). According to the C o m m is s io n e r , Burgans must demonstrate deficits in adaptive functioning in at least two a re a s in order to meet the Listing. The Commissioner argues that because she has only e s ta b l is h e d a single deficit in adaptive functioning in the area of her academic skills,4 B u rg a n s does not meet the Listing. (Id. at 7). The court addresses each argument seriatim. A . Listing 12.05 - Mental Retardation. The Listing provides, in pertinent part, that a claimant is disabled if she meets the following criteria: 1 2 .0 5 Mental Retardation: Mental Retardation refers to significantly s u b a v e ra g e general intellectual functioning with deficits in adaptive f u n c tio n in g initially manifested during the developmental period; i.e., the e v id e n c e demonstrates or supports onset of the impairment before age 22. T h e required level of severity for this disorder is met when the re q u ire m e n ts 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 w o rk -re la te d limitation of function. It is undisputed that Burgans failed the first grade and then continued in special education classes until she completed the ninth grade. (R. 419-20). 4 6 S e e 20 C.F.R. Pt. 220, App. 1. Listing 12.05. "The structure of the listing for mental retardation (12.05) is different from that of the o th e r mental disorders listings." 20 C.F.R. Pt. 220, App. 1, 12.00 MENTAL DISORDERS. Listing 12.05 "contains an introductory paragraph with the diagnostic d e sc rip tio n for mental retardation." 20 C.F.R. Pt. 404, Subpt. P. App. 1 at 1 2 .0 0 (A ). The impairment must satisfy the diagnostic description in the in tro d u c to ry paragraph and any one of the four sets of criteria described in s e c tio n 12.05 to meet the Listing requirements. Id. Listing 12.05 defines m ental retardation as "significantly subaverage general intellectual functioning w ith deficits in adaptive functioning initially manifested" before age 22. Id. a t 12.05. "To be considered for disability benefits under section 12.05, a c la im a n t must at least (1) have significantly subaverage general intellectual f u n c tio n in g ; (2) have deficits in adaptive behavior; and (3) have manifested d e f ic its in adaptive behavior before age 22." Crayton v. Callahan, 120 F.3d 1 2 1 7 , 1219 (11 th Cir. 1997). H a rr is v. Commissioner of Social Security, 2009 WL 1426754, *2 (11 th Cir. 2009) (No. 081 5 4 5 7 ). See also Pettus v. Astrue, 226 Fed. Appx. 946, 948 (11 th Cir. 2007); Humphries v. B a r n h a r t, 183 Fed. Appx. 887, 889 (11 th Cir. 2006). C o n s e q u e n tly, a claimant meets the strictures of 12.05(C) by presenting evidence of (1 ) a sub-average general intellectual functioning with deficits in adaptive functioning in itia lly manifested prior to age of 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 e f f e c t" on the claimant's ability to perform basic work activities. Lowery v. Sullivan, 979 F .2 d 835 (11 th Cir. 1992); Edwards v. Heckler, 755 F.2d 1513, 1517 (11 th Cir. 1985). In this C irc u it, it is presumed that "mental retardation is a condition that remains constant 7 th ro u g h o u t life" and the claimant is not required to present evidence that adaptive deficits m a n if e s te d before age 22. Hodges v. Barnhart, 276 F.3d 1265 (11 th Cir. 2001). See also B u r t v. Barnhart, 151 Fed. App. 817, *2 (11 th Cir. 2005). B u rg a n s obtained a verbal IQ score of 66, a performance IQ score of 72 and a full s c a le IQ score of 65. Thus, she has the requisite IQ score below 70 to meet the first re q u ire m e n t of the Listing. It is also undisputed that she suffers from several severe physical im p a irm e n ts that have more than a "minimal effect" on her ability to work. In fact, the C o m m iss io n e r concedes that Burgans has "a medically determinable mental impairment, n a m e ly, mental retardation, characterized as "mild," that her "IQ scores . . . fall within the re q u is ite range," "that [she] enjoys a rebuttable presumption that her IQ score has remained fairly constant since before age 22," and "that Plaintiff has additional severe impairments that f u rth e r compromise[] her capacity for work-related activities." (Mem. in Supp. of the C o m m 'r Dec., doc. # 13, at 6). Thus, Burgans meets the (C) requirement of 12.05. The parties disagree on whether the Listing requires Burgans to demonstrate a d d itio n a l deficits in adaptive functioning in accordance with the introductory paragraph, or w h e th e r she is simply required to present evidence of a valid IQ score of 60 to 70 inclusive a n d evidence of an additional mental or physical impairment that has more than a "minimal e f f e c t" on the claimant's ability to perform basic work activities. Compare Pettus v. Astrue, 2 2 6 Fed. Appx. 946, 948 (11 th Cir. 2007) and Humphries v. Barnhart, 183 Fed. Appx. 887, 8 8 9 (11 th Cir. 2006) with Hodges, supra and Lowery, supra. 8 T h e ALJ found that Burgans did not meet the Listing because she did not have the re q u is ite deficits in adaptive functioning necessary to satisfy the introductory paragraph of 12.05. Although the Eleventh Circuit has yet to address the proper construct of the in tro d u c to ry paragraph of Listing 21.05, the court concludes that to meet or equal Listing 1 2 .0 5 , Burgans is required to demonstrate deficits in adaptive functioning as described in the in tro d u c to ry paragraph of the Listing. In 2000, the Social Security Administration revised its regulations for evaluating mental impairments including Listing 12.05, Mental R e ta rd a tio n . See 65 Fed.Reg. 50746. Specifically, the Administration added the introductory p a ra g ra p h to the Listing to include the diagnostic description of mental retardation and the c rite ria for determining severity. Id. In an attempt to clarify the Listing, the Administration ex p lain ed that "[i]f your impairment satisfies the diagnostic description in the introductory p a ra g ra p h and any one of the four sets of criteria, we will find that your impairment meets th e Listing." 20 C.F.R. Pt. 220, App. 1, 12.00 MENTAL DISORDERS (emphasis added). U n f o rtu n a te ly, the Administration did not define either the diagnostic elements to be satisfied w ith in the introductory paragraph or the standard by which to measure those elements. However, the Listing's plain language compels a conclusion that to meet or equal L is tin g 12.05, a claimant is required to demonstrate some measure of deficits in adaptive f u n c tio n in g . In an unpublished opinion, the Eleventh Circuit framed the determinative issue a s follows. T o prevail on appeal, Pettus has to show that substantial evidence did not 9 su p p o rt the ALJ's finding that she did not have the required deficits in a d a p tiv e functioning necessary to satisfy the introductory paragraph of 12.05. T h e ALJ's finding as to adaptive functioning was the reason why Pettus did n o t meet the Listing. P e ttu s , 266 Fed. Appx. at 948. Affirming the district court in Garrett v. Astrue, the Eleventh Circuit concluded that th e plaintiff "did not have the required deficits in adaptive functioning" sufficient to meet the L is tin g . 244 Fed. Appx. 937, 938 (11 th Cir. 2007) (No. 06-16058). See also Harris, 2009 W L 1426754, *2 (plaintiff "did not have the necessary deficits in adaptive functioning" to m e e t or equal Listing 12.05); Battle v. Astrue, 243 Fed. Appx. 514, 521 (11 th Cir. 2007)(No. 0 6 -1 6 1 4 9 ) (plaintiff did not meet the Listing because he did not demonstrate "deficits in a d a p tiv e functioning."). Consequently, the court concludes that to meet the Listing, Burgans is required to demonstrate that she has deficits in adaptive functioning sufficient to satisfy th e diagnostic description in the introductory paragraph of 12.05. The crux of the problem before the court, however, is whether Burgans was properly in f o rm e d of her burden of proof, i.e. by what method and to what extent she would be re q u ire d to make that showing. By their nature, Social Security proceedings are inquisitorial, n o t adversarial. See Ingram v. Comm'r of Social Sec. Admin., 496 F.3d 1253 (11 th Cir. 2 0 0 7 ). Moreover, the Commissioner is tasked with the responsibility to "adopt reasonable a n d proper rules and regulations to regulate and provide for the nature and extent of the p ro o f s and evidence and the method of taking and furnishing the same" in disability cases." S e e Heckler v. Campbell, 461 U.S. 458, 466 (1983) quoting 42 U.S.C. 405(a). 10 T h e ALJ relied on adaptive skill areas from the American Association on Mental R e ta rd a tio n manual and the Diagnostic and Statistical Manual of Mental Disorders (4 th ed. 1 9 9 4 ) ("DSM-IV") to determine that Burgans did not have the requisite deficits in adaptive f u n c tio n in g in two areas to be considered mentally retarded. (R. 34). While the regulations p e r m i t an ALJ to use "any of the measurement methods recognized and endorsed by the p ro f e s s io n a l organizations" to satisfy the elements of Listing 12.05, Mental Retardation, see 6 7 Fed.Reg. 20018, 20022, basic due process mandates that the plaintiff be advised of the m e a s u re m e n t methods to be utilized and her requisite burden of proof. Unquestionably, p ro c e d u ra l due process is applicable to adjudicative administrative proceedings such as S o c ia l Security disability hearings before an ALJ. Richarson, 402 U.S. at 401-402. This is s o because the right to a hearing necessarily implies the right to a fair hearing; in other w o rd s , "process which is a mere gesture is not due process." Mullane v. Central Hanover B a n k & Trust Co., 339 U.S. 306, 315 (1950). A hearing at which a person is allocated a b u rd e n of proof of which the person has no notice is not fair in any respect. According to the ALJ, "[i]t is not established that Claimant had deficits in c o m m u n ica tio n , self-care, home living, social/interpersonal skills, use of community re so u rc e s, self-direction, work, leisure, health, or safety." (R. 35). However, the record is d e v o id of any evidence that the plaintiff had notice that the ALJ intended to require her to d e m o n s tra te deficits in adaptive functioning in two areas to meet the Listing. Indeed, in G r a n t v. Astrue, the Court held that the ALJ "applied an improper legal standard . . . by 11 re q u irin g [the claimant] to demonstrate deficits in more than one area of adaptive functioning b ef o re the age of 22." 255 Fed. Appx. 374, 375 (11 th Cir. 2007). Consequently, the court c o n c lu d e s that the ALJ erred as a matter of law by failing to notify Burgans of the m e a su re m e n t methodology he intended to utilize and to notify her of her burden of proof re g a rd in g the requisite deficits of adaptive functioning necessary to meet the Listing. B. Manifestation of deficits in adaptive functioning prior to age 22. The court a ls o concludes that the ALJ erred as a matter of law in finding that Burgans's subaverage g e n e ra l intellectual functioning did not manifest before age 22. The ALJ determined that B u rg a n s did not meet Listing 12.05C, in part because she "had not demonstrated that she had s ig n if ic a n tly subaverage general intellectual functioning manifested during the development p e rio d ." (R. 33). The ALJ accepted Burgans's testimony that she had completed the ninth g ra d e in special education classes, and found that she had deficits in academic skills during th e developmental period. (R. 35). Consequently, his conclusion that she had not d e m o n s tra te d the requisite subaverage intellectual functioning during the developmental p e rio d is contradicted by his own finding. Moreover, because Burgans has a valid diagnosis as well as the requisite IQ score to p re su m p tiv e ly meet the Listing for mental retardation, she is entitled to the rebuttable p re su m p tio n that "mental retardation is a condition that remains constant throughout life" and s h e is not required to present evidence that adaptive deficits were manifested before age 22.5 5 It is undisputed that the ALJ accepted Burgans's I.Q. scores as valid. 12 S e e Hodges, supra. However, the ALJ concluded that Burgans's past wage earnings from h e r work as an egg packer and sewing machine operator rebutted the presumption. (R. 353 6 ). The mere fact that Burgans held a job is, as a matter of law, insufficient to rebut the p resu m p tio n that her subaverage intellectual functioning manifested before age 22. In A m b e rs v. Heckler, the court held that since Ambers met the Listing for mental retardation, " sh e is entitled to benefits regardless of the fact that she may be able to hold gainful e m p lo ym e n t as she did in the past." 736 F.2d 1467, 1468 (11 th Cir. 1984). See also Powell v . Heckler, 773 F.2d 1572, (11 th Cir. 1985) (fact that claimant had worked intermittently d u rin g the period at issue is not sufficient justification to deny benefits.). F u r th e rm o re , the ALJ's reliance on Popp v. Heckler, 779 F.2d 1497, 1499 (11 th Cir. 1 9 8 6 ) is misplaced because Popp is distinguishable from the case at bar. In Popp, the c la im a n t had an Associate's degree from a two-year college and was in his third year of c o lle g e , majoring in history. His prior work experience included serving as an administrative c le rk in the Army, a statistical clerk at a VA hospital and a postal clerk. Popp also taught 10 th th ro u g h 12 th grade algebra at a private school. 779 F.2d at 1498. B u rg a n s's education and prior work experience are decidedly more limited than P o p p ' s . The ALJ accepted Burgans's testimony that all of her classes were special education classe s. (R. 90, 405, 419). She also testified that she can only read "a little bit," (R. 405), a n d she can "look over [her bills to] see how much [she] owned (sic)." (R. 119). As an egg 13 p a c k er, Burgans "pick[ed] up eggs and walk[ed] chicken houses." (R. 406). She gathered e g g s from nesting boxes and placed them in a buggy. (R. 420). As a sewing machine o p e ra to r, she sewed linings into Army jackets. (R. 407). Both jobs are considered unskilled, a n d the ALJ found that Burgans had no transferrable skills. (R. 40). Although the Commissioner argues that Burgans's previous work as an egg packer a n d a sewing machine operator is inconsistent with "allegedly disabling mental retardation," th e Commissioner points to no evidence that would support this argument. Nor does the ALJ e x p la in how, if at all, Burgans's prior work experience as either an egg packer or sewing m a c h in e operator is inconsistent with mild mental retardation. See generally Black v. Astrue, _ _ _ F.Supp.2d ___, 2010 WL 63207 (N.D. Fla. 2010) (valid I.Q. scores between 60 and 70, s p e c ia l education classes, prior employment as a mushroom picker and reliance on family for h e lp with complicated activities sufficient to demonstrate deficits in adaptive functioning m a n if e s te d before age 22). Taking the ALJ's reasoning to its logical conclusion, no mentally retarded person is a b le to do even the most basic, unskilled work including manual labor. If that reasoning is c o rre c t, then any claimant who has ever been employed would be unable to demonstrate that h e or she met the Listing for mental retardation. This is simply incorrect as a matter of law. S e e Ambers, supra. Thus, the court concludes that the ALJ's determination that the p re su m p tio n was rebutted by Burgans's past employment is not supported by substantial e v id e n c e . 14 A c c o rd in g ly, the court concludes that the Commissioner erred as a matter of law by f a ilin g to apprise the plaintiff of the measurement methodology he intended to utilize and to n o tify her of her burden of proof with respect to the deficits of adaptive functioning to n e c es s a ry to meet the Listing. The court further concludes that the ALJ's determination reg ard ing the rebuttal presumption is not supported by substantial evidence. Thus, the court c o n c lu d e s that this case is due to be remanded so that the Commissioner may properly a s c e rta in whether the plaintiff meets the requirements of Listing 12.05. V. Conclusion A c c o rd in g ly, this case will be reversed and remanded to the Commissioner for further p ro c e ed in g s consistent with this opinion. A separate order will be entered. D o n e this 26 th day of March, 2010. /s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE 15

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