Brown v. Astrue

Filing 15

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is REVERSED and this matter is REMANDED to the Commissioner for further proceedings. Signed by Honorable Wallace Capel, Jr on 5/18/2011. (br, )

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

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 2:10cv498-WC

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION
In 1995, because of “mental retardation and dysthymia” (Tr. 69), Plaintiff Tyrus D.

Brown was deemed disabled by Social Security and provided with supplemental security
income benefits for and on his behalf pursuant to Title XVI of the Social Security Act, 42
U.S.C. § 1381, et seq. In 2006, after reaching the age of eighteen, the Agency reevaluated
his qualification to continue receiving benefits as an adult, pursuant to § 1382c(a)(3)(H)(iii),
and determined that Plaintiff’s disability had ceased due to medical improvement. Plaintiff
then requested and received a hearing before an Administrative Law Judge (ALJ), which was
conducted in two parts in February and August of 2008. Following the hearings, the ALJ
also denied Plaintiff’s claims. (Tr. 17-32). 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 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. #10); 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 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 (2006).
(1) Is the person presently unemployed?

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.
2

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) 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?
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

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).
3

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 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 statutorilyrequired 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).

4

See 20 C.F.R. pt. 404 subpt. P, app. 2.
4

[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.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was twenty years old at the time the hearing before the ALJ began, and

reached the age of twenty-one prior to the hearing reconvening in August of 2008. Tr. 28687. Plaintiff completed the eleventh grade. Tr. 287. Following the administrative hearing,
and employing the five-step process,5 the ALJ found that, since May 1, 2006, Plaintiff suffers
from the following severe impairments: “borderline intellectual functioning, depression, and
history of attention deficit hyperactivity disorder (ADHD).” Tr. 21. The ALJ then found
that, since May 1, 2006, Plaintiff “has not had an impairment or combination of impairments
that meets or medically equals one of the listed impairments . . . .” (Step 3) Tr. 25. Next, the
ALJ found that, since May 1, 2006, Plaintiff has had the RFC to
perform a full range of work at all exertional levels but with the following
nonexertional limitations: a moderate degree of limitation of functioning in

5

Because the cessation of Plaintiff’s benefits was ordered upon the Agency’s
required reevaluation of his entitlement to benefits after reaching the age of eighteen, the ALJ
applied the normal five-step evaluation process rather than the seven-step evaluation process
applicable to other cessation cases. See 20 C.F.R. § 416.987(b). Furthermore, because the ALJ
was “redetermining disability at age 18,” the ALJ was not required to make a “Step One” finding
respecting whether the claimant has previously engaged in substantial gainful activity. Tr. 19;
20 C.F.R. § 416.987(b). Nevertheless, the ALJ did find that Plaintiff “has never maintained
gainful employment.” Tr. 23.
5

ability to respond appropriately to supervisors, co-workers and other members
of the general public; ability to use judgment in simple one or two step workrelated decisions; ability to deal with changes in a routing [sic] work setting;
ability to understand, remember, and carry out simple, one and two step
instructions; ability to maintain attention, concentration or pace for periods of
at least two hours; and ability to maintain social functioning. The claimant has
a mild to moderate limitation in ability to maintain activities of daily living.
He has a marked limitation of functioning in ability to use judgment in detailed
or complex instructions and in the ability to understand, remember, and carry
out detailed or complex instructions. The claimant has no episodes of
decompensation.
Tr. 26-27. The ALJ then found that “claimant has no past relevant work” (Step 4). Tr. 30.
Next, the ALJ found that, given Plaintiff’s age, education, work experience, and RFC, and
after consulting with a vocational expert, since May 1, 2006, “claimant was able to perform
a significant number of jobs in the national economy” (Step 5). Tr. 30. The ALJ found that
such representative occupations include: “laundry worker,” “grader/sorter,” and “hand
packer.” Tr. 31. Accordingly, the ALJ determined that “claimant’s disability ended on May
1, 2006, and the claimant has not become disabled again since that date.” Tr. 32.
IV.

PLAINTIFF’S CLAIM
Plaintiff presents one issue for this Court’s review in determining whether the

Commissioner’s decision is supported by substantial evidence: whether the ALJ erred in
determining that Plaintiff’s impairments do not meet Listing 12.05C. Pl.’s Brief (Doc. #12)
at 1, 7.
V.

DISCUSSION
Plaintiff claims that the ALJ erred in failing to find that Plaintiff’s mental impairments
6

meet Listing 12.05C, one of the sub-paragraphs containing criteria for the mental retardation
listing.

Plaintiff asserts that the ALJ’s finding that Plaintiff suffers from borderline

intellectual functioning, rather than mental retardation, contravenes evidence of his lifelong
disability as well as the conclusion of the consultative examiner in 2006. Pl.’s Brief (Doc.
#12) at 9-11. Plaintiff also argues that the ALJ’s finding that Plaintiff suffers from less than
disabling depression signals the ALJ’s improper application of Listing 12.05C’s requirement
that, in addition to a requisite IQ score, a claimant must possess a “physical or other mental
impairment imposing an additional and significant work-related limitation of function” in
order to meet the Listing. Id. at 8-9. Defendant maintains that the ALJ correctly ruled that
Plaintiff’s impairments do not meet Listing 12.05C because he does not have deficits in
adaptive functioning sufficient to satisfy the “diagnostic” clause of Listing 12.05.
The Listings grouped under 12.00 cover adult mental disorders. Listing 12.05 is
concerned with mental retardation.
Listing 12.05 “contains an introductory paragraph with the diagnostic
description for mental retardation.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 at §
12.00(A). The impairment must satisfy the diagnostic description in the
introductory paragraph and any one of the four sets of criteria described in
section 12.05 to meet the listing requirements. Id. Listing 12.05 defines
mental retardation as “significantly subaverage general intellectual functioning
with deficits in adaptive functioning initially manifested” before age 22. Id.
at 12.05. “To 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).
Listing 12.05(C) requires “[a] valid verbal, performance, or full scale
I.Q. of 60 through 70 and a physical or other mental impairment imposing an
7

additional and significant work-related limitation of function.” 20 C.F.R. Pt.
404, Subpt. P, App. 1 at § 12.05(C). To meet 12.05(C), the applicant must
have a severe impairment that significantly limits the applicant’s “physical or
mental ability to do basic work activities.” Id. at § 12.00(A). “Generally, a
claimant meets the criteria for presumptive disability under section 12.05(C)
when the claimant presents a valid I.Q. score of 60 to 70 inclusive, and
evidence of an additional mental or physical impairment that has more than
‘minimal effect’ on the claimant’s ability to perform basic work activities.”
Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992).
Harris v. Comm’r of Soc. Sec., 330 F. App’x 813, 815 (11th Cir. 2009).
In considering whether Plaintiff’s mental impairments met or equaled any of the
listings under 12.00, the ALJ first examined whether “the ‘paragraph B’ criteria (“paragraph
D” criteria of listing 12.05) are satisfied.” Tr. 25. After a brief review of the evidence, the
ALJ concluded that, “[b]ecause the claimant’s mental impairments do not cause at least two
‘marked’ limitations or one ‘marked’ limitation and ‘repeated’ episodes of decompensation,
the ‘paragraph B’ criteria (‘paragraph D’ criteria of listing 12.05) are not satisfied.” Tr. 26.
Next the ALJ, in pertinent part, determined that Plaintiff does not meet the paragraph B
criteria of Listing 12.05, which requires a “valid verbal, performance, or full scale IQ of 59
or less.” Tr. 26. Finally, the ALJ concluded that, “for the reasons noted above, the
‘paragraph C’ criteria of listing 12.05 are not met because the claimant does not have a valid
verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related limitation of function.” Tr.
26.
The ALJ’s conclusion that the “paragraph C” criteria are not met is problematic. First,

8

it is clear that Plaintiff has a “valid verbal, performance, or full scale IQ of 60 through 70”
because Plaintiff obtained a full scale IQ score of 70 in March of 2006.6 Tr. 249-50. The
examiner credited Plaintiff’s effort during the examination and indicated “that these scores
are valid and are indicative of this claimant’s current level of functioning.” Tr. 250. It
appears the ALJ also accepted this score as valid. Tr. 23 (“His effort during this measure was
good; therefore, this score is considered valid and places his cognitive abilities in the
uppermost limits of the mild range of mental retardation.”). It is also clear that Plaintiff
suffers from “a physical or other mental impairment imposing an additional and significant
work-related limitation of function,” as the ALJ found that Plaintiff suffers from, inter alia,
the severe impairment of depression. Tr. 21.7 While the ALJ’s opinion also indicates his
belief that Plaintiff’s depression had improved, Tr. 25, he nevertheless found the impairment
severe. As such, the ALJ’s finding about the “paragraph C” criteria is inconsistent with the

6

Indeed, Plaintiff has previously obtained IQ scores of sixty and below. See Tr.

203, 215.
7

The standard for an “additional and significant” limitation is the same as that for a
“severe” impairment under 20 C.F.R. 404.1520(c) or 416.920(c). Under earlier versions of the
regulation, as interpreted by the Eleventh Circuit, the “additional and significant” standard was
lower than the “severe” standard. See Edwards v. Heckler, 755 F.2d 1513, 1515-16 (11th Cir.
1985); see also Davis v. Shalala, 985 F.2d 528, 531-32 (11th Cir. 1993). However, the
Commissioner has modified introductory paragraph 12.00A and Listing 12.05C to clarify that
the additional physical or mental impairment must be “severe.” See 65 Fed. Reg. 50,746 at
50,754 (Aug. 21, 2000)(“In final listing 12.05C . . . we used the word ‘an’ before the word
‘additional’ to clarify that the additional impairment must be ‘severe’ in order to establish ‘an
additional and significant work-related limitation of function.”); id. at 50772 (“We have always
intended the phrase [significant work-related limitation of function] to mean that the other
impairment is a ‘severe’ impairment, as defined in §§ 404.1520(c) and 416.920(c). . . .
Therefore, . . . we revised the fourth paragraph of final 12.00A, which explains how we assess
the functional limitations of an additional impairment under listing 12.05C.”).
9

evidence in the record and the ALJ’s other findings about Plaintiff’s IQ scores and the
severity of Plaintiff’s other impairments. More importantly, the ALJ’s finding that Plaintiff
lacks an additional physical or mental impairment causing “significant work-related
limitation of function” is erroneous as a matter of law. See Carroll v. Astrue, 2009 WL
1708073 at *1-2 (M.D. Ala. June 17, 2009).
Defendant argues that the ALJ’s finding that Plaintiff does not meet listing 12.05C is
supported by substantial evidence because, regardless of the applicability of the paragraph
C criteria, Plaintiff does not satisfy the “diagnostic” description of mental retardation because
he does not have sufficient deficits of adaptive functioning. Def.’s Brief (Doc. #13) at 9. It
should first be noted that the ALJ’s findings with respect to Plaintiff’s adaptive functioning
lack the clarity and indicia of thorough consideration required to fully credit Defendant’s
assertion. That is, while the ALJ appears to conclude that Plaintiff’s “adaptive functioning
has consistently been in the borderline range of intellectual functioning and not in the
mentally retarded range,” Tr. 26, the ALJ does not devote any considerable portion of his
opinion to discussing Plaintiff’s deficits in adaptive functioning or otherwise explaining this
finding. Nevertheless, while Defendant’s after-the-fact rationale for upholding the ALJ’s
decision may prove supported by some evidence in the record, it is not the rationale
articulated by the ALJ. As set forth above, the ALJ made a specific finding that Plaintiff
does not meet the paragraph C criteria of Listing 12.05, and such finding appears inconsistent
with the medical evidence, other aspects of the ALJ’s own opinion, and/or governing law.

10

Where the ALJ’s decision appears so encumbered with inconsistencies and ambiguity, the
court cannot conclude that the ALJ applied the correct legal standards and, accordingly,
reversal is in order. See Grant v. Astrue, 255 F. App’x 374, 374 (11th Cir. 2007) (“‘[T]he
Secretary’s conclusions of law are not presumed valid. The Secretary’s failure to apply the
correct law or to provide the reviewing court with sufficient reasoning for determining that
the proper legal analysis has been conducted mandates reversal.’”) (quoting Keeton v. Dep’t
of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994); see also Carroll, 2009 WL
1708073 at *1 (“If the court finds an error in the ALJ’s application of the law, or if the ALJ
fails to provide the court with sufficient reasoning for determining that the proper legal
analysis has been conducted, the ALJ’s decision must be reversed.”) (citing Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991) (emphasis in original)); id. at *1-2
(“Because the ALJ failed to address explicitly either the validity of the plaintiff’s IQ score
or the requirements of the introductory paragraph of Listing 12.05C, and because the reason
the ALJ gave for his determination on the “paragraph C” criteria is erroneous as a matter of
law, the court cannot conclude that the ALJ employed the proper legal analysis.”).
VI.

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 matter
is REMANDED to the Commissioner for further proceedings. A separate judgment will
issue.

11

DONE this 18th day of May, 2011.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

12