Carwile v. Astrue

Filing 14

MEMORANDUM OPINION AND ORDER that the administrative transcript is supplemented to include Dr. Blanton's November 6, 2008 report, attached to plaintiff's brief, which the Commissioner omitted erroneously from the transcript; that the court concludes that the decision of the Commissioner is due to be REVERSED, and this action REMANDED to the Commissioner for further proceedings consistent with this Memorandum Opinion; that a separate judgment will be entered. Signed by Honorable Judge Susan Russ Walker on 6/30/2011. (cc, ) Copies mailed to Office of Hearings and Appeals and SSA Chief Judge.

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DANIEL J. CARWILE,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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CIVIL ACTION NO. 2:10CV456-SRW
(WO)

MEMORANDUM OF OPINION and ORDER
Plaintiff Daniel J. Carwile brings this action pursuant to 42 U.S.C. § 405(g) and
§ 1383(c)(3) seeking judicial review of a decision by the Commissioner of Social Security
(“Commissioner”) denying his application for supplemental security income under the Social
Security Act. The parties have consented to entry of final judgment by the Magistrate Judge,
pursuant to 28 U.S.C. § 636(c). Upon review of the record and briefs submitted by the
parties, the court concludes that this action is due to be reversed and remanded to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g).
BACKGROUND
Plaintiff was born on March 11, 1986 and completed twelfth grade in special
education classes in 2004. On June 5, 2006 (protective filing date), when he was twenty
years old, plaintiff filed an application for supplemental security income, alleging that he is
disabled due to a “learning disability.” He asserted that he cannot read or write, and he

“can’t keep a job.” He stated that he stopped working on August 1, 2005 because he
“couldn’t handle the job.” (R. 71, 82, 85, 88). Plaintiff testified that, for one month at some
point after his alleged onset date, he worked at Victoryland as a dishwasher. He stated that
the job ended because he “couldn’t understand nothing,” “couldn’t do two things at one
time[,]” and, also, because “there’s too many people there and I didn’t – I don’t get along.
I mean, I do get along with them but I just couldn’t.” (R. 27, 30). In the disability report
plaintiff submitted in support of his application for benefits, he also reported work as a
dishwasher from 2001-2002, while he was still in school. (R. 83). He further reported work
for an asphalt contractor for two weeks, from July 15, 2005 to August 1, 2005. (R. 100).
Plaintiff worked briefly with his brother and brother-in-law at a marble company, helping
with cleaning and pouring sinks.

Plaintiff told Dr. Daniel Clark, the consultative

psychologist, that he “couldn’t read the work orders to know what to do to help out” and
testified at the administrative hearing that the “problem there” was that he “didn’t like
working around too many people.” (R. 30, 157).1
Plaintiff saw Dr. Clark on September 5, 2006 for a consultative psychological
evaluation. (Exhibit 2F). Dr. Clark administered the Wechsler Adult Intelligence Scale,
Third Edition (WAIS-III). Plaintiff’s testing yielded a Verbal IQ score of 62, a Performance
IQ score of 69 and a Full Scale IQ score of 62. (R. 158-59). Dr. Clark assessed “Mild

1

When the DDS claims examiner contacted plaintiff to clarify his past work history, plaintiff was
“unable to give complete details of jobs worked” and “stated he did not work anywhere very long.” (R. 108;
see also R. 111). The ALJ concluded that plaintiff had no past work that “has lasted long enough to be
definitively classified as past relevant work.” (R. 18, Finding No. 6).

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Mental Retardation” on Axis II and “No Diagnosis” on Axis I. (R. 156). Dr. Aileen
McAlister, a non-examining agency psychiatrist, completed a Psychiatric Review Technique
Form on September 12, 2006. She concluded that plaintiff suffers from mild mental
retardation which results in a moderate degree of limitation in activities of daily living,
maintaining social functioning, and in maintaining concentration, persistence or pace. Dr.
McAlister indicated “None” in the category of “Episodes of Decompensation[.]” (Exhibit 3F;
R. 162, 171). Dr. McAlister also completed a mental residual functional capacity assessment,
finding moderate limitations in several rated work functions, no significant limitations in
others, and no marked limitations as to any of the listed work functions. She concluded that
plaintiff is “[c]apable of understanding[,] remembering, and carrying out simple instructions
over an 8[-]hr work day with routine breaks” and that “[c]ontact with coworkers, supervisors,
and [the] general public should be casual and non-confrontational and changes in the work
place introduced slowly due to IQ in Mild MR range.” (Exhibit 4F, R. 175-77).
The only medical treatment notes of record are for three emergency room visits.
Plaintiff sought treatment on April 13, 2006 for a red knot on the left side of his abdomen,
diagnosed as “cystic mass [left] abdom[inal] wall. Poss[ible] insect bite[.]” Plaintiff was
discharged after two hours with a prescription and instructions to follow up with “Dr
Courtney.” (R. 187-88). Eleven months later, on March 21, 2007, plaintiff returned to the
ER complaining of pain and redness in his right eye after he accidently snapped himself in
the eye with an extension cord. He was diagnosed with a “subconjunctival hemorrhage,”
given a prescription, and discharged forty minutes after he arrived in the ER. (R. 185-86).
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On May 11, 2008, over thirteen months after his previous visit to the ER, plaintiff returned
seeking treatment for right shoulder pain which had persisted for two months. X-rays of
plaintiff’s shoulder and neck were normal. The ER physician diagnosed plaintiff with
cervical strain. (R. 179-84).
Consistent with the diagnosis of the consultative psychologist, the ALJ found that
plaintiff has a single “severe” impairment of mild mental retardation. However, the ALJ
concluded that plaintiff’s condition is not at a level sufficient to meet or medically equal
Listing 12.05. (R. 13). The ALJ further determined that there are jobs existing in significant
numbers that plaintiff can perform, considering his age, education, work experience, and
residual functional capacity and, therefore, that he was not disabled during the relevant
period. (R. 19). The ALJ issued his decision on Monday, November 3, 2008.
Three days later – on Thursday, November 6, 2008 – plaintiff was evaluated by
Donald W. Blanton, Ph.D. (R. 1; see also Doc. 11-1, attachment to plaintiff’s brief). Dr.
Blanton reviewed Dr. Clark’s report of the consultative evaluation in 2006 and some of
plaintiff’s school records. Dr. Blanton administered the WAIS-III to plaintiff, with resulting
IQ scores of 63 (Verbal), 62 (Performance) and 59 (Full Scale). Plaintiff’s highest percentile
score on the Wide-Range Achievement Test (WRAT-III) was .03 in Arithmetic. Dr. Blanton
concluded that plaintiff is functionally illiterate. Like Dr. Clark, he assessed mild mental
retardation on Axis II. However, Dr. Blanton further concluded that plaintiff has an Axis I
diagnosis of “Social Phobia with Anxiety and Depression.” Dr. Blanton noted plaintiff’s
report that he “no longer attends church because he becomes very anxious around people
there,” and that, at his last job at Victoryland, “[h]e could not stand being around the other

people and he called in sick too many times.” On mental status examination, Dr. Blanton
noted plaintiff’s depressed mood and his “significant fear of being in public and around
people.” (Doc. # 11-1). Dr. Blanton completed a questionnaire in which he indicated that
plaintiff has “marked” limitations in the areas of: (1) maintaining social functioning; and (2)
concentration, persistence or pace; he further concluded that plaintiff has a “marked”
impairment in his ability to perform simple tasks and repetitive tasks in a work setting and
to “[u]nderstand, carry out, and remember instructions in a work setting.”

Dr. Blanton

responded affirmatively to the question, “Have the above limitations lasted or can they be
expected to last for twelve months or longer?” (Id.).
Plaintiff submitted Dr. Blanton’s report to the Appeals Council on November 25,
2008, along with his request for review. (See R. 7, cover letter transmitting both). On March
25, 2010, the Appeals Council denied plaintiff’s request for review. The Appeals Council
declined to admit Dr. Blanton’s report into the record, concluding that it was “new
information . . . about a later time.” The Appeals Council returned the evidence to plaintiff
to file with a new claim for benefits, if he decided to apply again. (R. 1-2, 5).2 On May 24,

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While the Appeals Council “looked at the medical assessment from Donald W. Blanton, Ph.D.,
dated November 6, 2008” (R. 1), the Commissioner agrees that the Appeals Council did not consider the
evidence in evaluating the merits of plaintiff’s present claim for benefits. (See Doc. # 12, p. 12)(“The
Appeals Council properly declined to consider [Dr. Blanton’s report] and returned it to Plaintiff to submit
in a later application.”); see also 20 C.F.R. § 416.1470(b)(“In reviewing decisions based on an application
for benefits, if new and material evidence is submitted, the Appeals Council shall consider the additional
evidence only where it relates to the period on or before the date of the administrative law judge hearing
decision.”); 20 C.F.R. § 416.1476(b)(“In reviewing decisions based on an application for benefits, the
Appeals Council will consider the evidence in the administrative law judge hearing record and any new and
material evidence only if it relates to the period on or before the date of the administrative law judge hearing
decision. If you submit evidence which does not relate to the period on or before the date of the
administrative law judge hearing decision, the Appeals Council will return the additional evidence and will

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2010, plaintiff filed a complaint in this court seeking review of the Commissioner’s decision.
DISCUSSION
Plaintiff contends that the ALJ erred by failing to develop the record as to a possible
additional diagnosis of ADHD, based on plaintiff’s testimony that he took medications for
attention deficit hyperactivity disorder (Doc. # 12 at p. 8, citing ALJ’s decision at R. 15),3
school records showing that plaintiff was “taking Ritalin while in school” (id., citing R. 127)4
and was “restless and inattentive in school” (id., citing R. 116).5 Plaintiff contends that the
ALJ erred by failing to find disability under Listing 12.05, because the ALJ found no
additional physical or mental impairment as to Listing 12.05C and, as to Listing 12.05D, the
ALJ “relied exclusively on the finding of moderate in the first three areas by the consultative
psychologist and the reviewing non[-]examining DDS consultant without further rationale.”
Plaintiff acknowledges that he did not allege ADHD or ADD in his application paperwork,
but argues that the ALJ “too readily adopted the consultative and State Agency opinions in
2006” in view of the statement made by plaintiff’s sister-in-law to the consultative
psychologist that plaintiff “just can’t pay attention or comprehend things[.]” (Doc. # 12 at
advise you of your right to file a new application.”). The Appeals Council’s notice of its action denying
plaintiff’s request for review makes clear that it “looked at” the report and declined to include it as an exhibit
or consider it on the merits of plaintiff’s claim, concluding that the report did not pertain to the time period
“on or before November 3, 2008.” (R. 1-2, 5).
3

See also R. 29, 30-31 (plaintiff’s testimony).

4

The cited record includes an indication that plaintiff’s mother reported to plaintiff’s high school,
during an interview regarding plaintiff’s eligibility for special education services, that he was taking Ritalin.
(R. 127).
5

This note reflects that plaintiff was “restless/inattentive during classroom observation” conducted
in September 2002 in connection with plaintiff’s special education eligibility determination. (R. 116).

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p. 7, citing R. 157). However, despite this statement by plaintiff’s sister-in-law, the
consultative psychologist assessed only mild mental retardation. Plaintiff did not present any
medical evidence of a diagnosis of ADHD even though, at the hearing, the ALJ expressed
his willingness to consider evidence of plaintiff’s treatment for ADHD at age eighteen by Dr.
McCullough if plaintiff’s counsel were to provide it to him (R. 24). The DDS obtained a
consultative psychological evaluation which did not result in a diagnosis of ADD or ADHD.
It was the only psychological evaluation of record, and the ALJ did not err by relying on it.
The court rejects plaintiff’s contention that the ALJ erred by failing to further develop the
record and his dependent argument that the ALJ erred by failing to find him to be disabled
pursuant to Listing 12.05.
Plaintiff further contends that the Appeals Council erred in its treatment of Dr.
Blanton’s report. (Doc. # 11, pp. 8-10). Plaintiff argues that “[t]he AC rejected this evidence
out of hand on the simplistic basis that because the report was dated three days after the ALJ
decision, it had no bearing on the period prior to the ALJ decision.” (Id. at p. 10). The
Commissioner responds by reiterating – without any meaningful analysis – the Appeals
Council’s conclusion that, because Dr. Blanton’s report was based on an interview and
testing that took place three days after the date of the ALJ’s decision, it “did not relate [to]
the time period that ended with the ALJ’s decision.” (Doc. # 12, p. 12). The Commissioner
argues that, therefore, “[t]he Appeals Council properly declined to consider [the report].”
(Id.).
The ALJ determined that plaintiff has a severe impairment of mild mental retardation.
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(R. 13). However, at the next step of his analysis, he concluded that plaintiff’s mental
retardation is not at the level required to establish disability under Listing 12.05(B) because
“the claimant does not have a valid verbal, performance, or full scale IQ of 59 or less,”
noting that, in the testing administered by Dr. Clark, he “achieved a full scale intelligence
quotient of 62.” (R. 14).6 The ALJ found that plaintiff does not meet the requirement for
disability under Listing 12.05(C) because the medical evidence does not demonstrate the
existence of any severe impairment other than mild mental retardation, i.e., that plaintiff does
not have, in addition to a valid IQ score of 60 through 70, “a physical or other mental
impairment imposing an additional and significant work-related limitation of function. (Id).
The ALJ concluded that plaintiff does not meet the requirements of Listing 12.05(D) because
he does not have – in addition to the requisite valid IQ of 60 through 70 – “marked”
restrictions in two of the rated areas (concentration, persistence, or pace; activities of daily
living; and maintaining social functioning) or a “marked” restriction in at least one of the
three areas accompanied by “repeated episodes of decompensation, each of extended
duration.” (Id.).
On its face, Dr. Blanton’s report expresses conclusions which would – if accepted as
valid – satisfy the criteria for disability under Listing 12.05(B).7 Dr. Blanton reports a full

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There is nothing in the administrative transcript or Dr. Blanton’s report to suggest that plaintiff
satisfies the requirement of Listing 12.05(A).
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Because the ALJ concluded that plaintiff has a severe impairment of mild mental retardation,
plaintiff satisfies the requirement of the introductory paragraph of Listing 12.05 of “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; see also DSM IV-TR, p. 41 (“The essential feature of Mental

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scale IQ score of 59.8 Additionally, Dr. Blanton diagnoses an additional mental impairment
of “social phobia with anxiety and depression” which, if found to be “severe” and to meet
the twelve-month duration requirement, would satisfy the requirement of Listing 12.05(C).
Dr. Blanton also concluded that plaintiff has “marked” limitations in maintaining social
functioning and “marked” deficiencies in concentration, persistence or pace which have
lasted or can be expected to last for twelve months or longer – conclusions which, if
accepted, satisfy the requirements of Listing 12.05(D). Accordingly, if Dr. Blanton’s
conclusions pertain to plaintiff’s condition three days before Dr. Blanton evaluated him, they
contradict the ALJ’s finding that plaintiff is not disabled.
Dr. Blanton’s evaluation did, indeed, occur three days after the ALJ issued his
decision. However, consistent with Dr. Blanton’s Axis I diagnosis of “social phobia,”
plaintiff testified at the administrative hearing on October 3, 2008 that he did not continue
working at the marble company – a job he held before his September 2006 evaluation by Dr.
Clark and before his July 2005 employment for the asphalt company – because he “didn’t
like working around too many people,” and that this was also one reason he quit working at
Victoryland. (R. 30, 100, 157). Plaintiff also told Dr. Blanton that he “no longer attends
church because he becomes very anxious around people there.” (R. 30; Doc. # 11-1).
Additionally, as to plaintiff’s full scale IQ of 59, there is nothing in the record to suggest that

Retardation is significantly subaverage general intellectual functioning . . . that is accompanied by significant
limitations in adaptive functioning[.]”).
8

The record includes evidence of an earlier full scale IQ of 59 on testing in October 1996, when
plaintiff was ten years old. (R. 114).

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plaintiff suffered any traumatic injury between Monday and Thursday which would account
for a decrease in intellectual functioning or that the higher IQ score in the evaluation two
years previously – still within the mild mental retardation range – is a more accurate
reflection of plaintiff’s intellectual abilities. The mental impairments at issue here are not
likely to have appeared or deteriorated suddenly in the two intervening days between the
ALJ’s decision and plaintiff’s appointment with Dr. Blanton. The Appeals Council’s
conclusion that Dr. Blanton’s November 6, 2008 report “is about a later time” than the period
ending on November 3, 2008 is, as plaintiff argues, overly simplistic. The Appeals Council
is required to consider “new and material evidence” submitted to it, where “it relates to the
period on or before the date of the administrative law judge hearing decision.” 20 C.F.R.
§ 416.1470(b). The Appeals Council erred by refusing to consider Dr. Blanton’s report in
determining plaintiff’s request for review.
Plaintiff contends that, since “the evidence was properly presented to the [Appeals
Council],” it “can be the basis for Fourth Sentence remand for legal error rather than limited
to a Sixth Sentence remand for new and material evidence.” (Doc. # 11, p. 10)(citing Ingram
v. Commissioner, 496 F.3d 1253 (11th Cir. 2007)). The Commissioner does not dispute this
contention, arguing only that the Appeals Council did not err in refusing to consider Dr.
Blanton’s report and, while plaintiff does not request sentence six remand, plaintiff has failed
to meet the sentence six requirement of demonstrating “good cause” for his failure to submit

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the evidence at the administrative level.9 However, a sentence four judgment and a sentence
six remand without a judgment are mutually exclusive; the court must decide which is proper
in this case.
It is settled that evidence which is not submitted during the administrative process –
i.e., evidence presented for the first time to the district court – may be considered by the court
only to determine whether it meets the standard for a “new evidence” remand pursuant to
sentence six of 42 U.S.C. § 405(g). Ingram, 496 F.3d at 1267-68 (citing Caulder v. Bowen,
791 F.2d 872, 875-77 (11th Cir. 1986)). Sentence six review is also appropriate when
evidence is first submitted to the Appeals Council, but is not considered or included in the
certified transcript because it is untimely – i.e., the evidence is “first properly submitted to
the district court.” Ingram, 496 F.3d at 1268 (citing Milano v. Bowen, 809 F.2d 763, 765-66
(11th Cir. 1987)). It is also established that when evidence is submitted properly to the
Appeals Council, considered, and incorporated into the administrative transcript, that
evidence does not provide a basis for remand pursuant to sentence six, but must be
considered by the court – along with the other evidence of record – in reviewing the
Commissioner’s decision for substantial evidentiary support and legal error under “sentence
four” of 42 U.S.C. § 405(g). Ingram, 496 F.3d at 1269. In Ingram, the Eleventh Circuit
held:
The district court correctly refused to remand Ingram’s case under sentence

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The court notes that, contrary to the Commissioner’s argument: (1) plaintiff did submit the
evidence at the administrative level; and (2) there is no requirement that plaintiff show good cause for his
failure to obtain and submit the report to the ALJ. See Ingram, 496 F.3d at 1266-67.

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six. Dr. Wilson’s evaluation fails to meet the criteria for a sentence six remand
because it is not “new evidence” that the Commissioner “failed to incorporate”
into the record of the administrative proceeding. Dr. Wilson’s evaluation was
properly submitted to the Appeals Council, which considered the evaluation
and incorporated it in the administrative record. Sentence six allows the
district court to remand to the Commissioner to consider previously
unavailable evidence; it does not grant a district court the power to remand for
reconsideration of evidence previously considered by the Appeals Council.
Because evidence properly presented to the Appeals Council has been
considered by the Commissioner and is part of the administrative record, that
evidence can be the basis for only a sentence four remand, not a sentence six
remand.
Id.
In this case, the plaintiff submitted Dr. Blanton’s to the Appeals Council with his
request for review. (R. 1,7). As plaintiff argues, the Appeals Council’s failure to consider
the report is “legal error.” See Sneed v. Barnhart, 214 Fed. Appx. 883, 885 (11th Cir.
2006)(“Because the Appeals Council’s refusal to consider the submission of new evidence
before denying review amounts to an error of law, that decision is subject to judicial
review.”)(citing Keeton v. Department of Health and Human Services, 21 F.3d 1064, 1066
(11th Cir. 1994)). While Dr. Blanton’s report is not included in the certified administrative
transcript the Commissioner filed with the court, it should have been. Cf. Keeton, 21 F.3d
at 1067 (“Each successive appeal contributes to the administrative process and, we believe,
the administrative record.”).10 It is not “new” evidence for purposes of sentence six of 42
10

The Appeals Council returned the report to plaintiff with its decision denying review, for his use
in a new claim, as is authorized by the Commissioner’s regulations for evidence submitted to the Appeals
Council which “does not relate to the period on or before the date of the administrative law judge hearing
decision.” See (R. 1-2; 20 C.F. R. §416.1476(b)(1)). However, evidence submitted by a claimant to the
Appeals Council should not be omitted from the certified administrative transcript filed with the court, even
if the Appeals Council only “looked at” it (R. 1) rather than “consider[ing] the additional evidence” pursuant
to 20 C.F.R. § 416.1470(b) and even where, unlike the present case, the Appeals Council has decided

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U.S.C. § 405(g). “The sixth sentence of § 405(g) plainly describes an entirely different kind
of remand [from the fourth sentence], appropriate when the district court learns of evidence
not in existence or available to the claimant at the time of the administrative proceeding that
might have changed the outcome of that proceeding.” Sullivan v. Finkelstein, 496 U.S. 617,
626 (1990). Under sentence six, “[t]he district court . . . does not rule in any way as to the
correctness of the administrative determination. Rather, the court remands because new
evidence has come to light that was not available to the claimant at the time of the
administrative proceeding and that evidence might have changed the outcome of the prior
proceeding.” Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991)(Sentence six allows the taking
of “new evidence . . . that was not available to the claimant at the time of the administrative
proceeding.”). Because the Appeals Council erred in failing to consider material evidence
submitted properly by the claimant, the Commissioner’s decision is due to be reversed and
this action remanded for consideration of Dr. Blanton’s report.11
CONCLUSION
For the foregoing reasons, it is
ORDERED that the administrative transcript is hereby supplemented to include Dr.
Blanton’s November 6, 2008 report, attached to plaintiff’s brief, which the Commissioner

correctly that the evidence does not relate to the period under consideration. See Keeton, 21 F.3d at 1067
(holding that “new evidence first submitted to the Appeals Council is part of the administrative record that
goes to the district court for review when the Appeals Council accepts the case for review as well as when
the Council denies review.”).
11

The court does not here hold that the Commissioner must, on remand, find that plaintiff is disabled
pursuant to Listing 12.05 on the basis of Dr. Blanton’s report.

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omitted erroneously from the transcript.
The court concludes that the decision of the Commissioner is due to be REVERSED,
and this action REMANDED to the Commissioner for further proceedings consistent with
this Memorandum Opinion. A separate judgment will be entered.
Done this 30th day of June, 2011.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

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