Turner v. Astrue(CONSENT)

Filing 17

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 further proceedings consistent with this opinion. Signed by Honorable Judge Wallace Capel, Jr. on 9/13/2013. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TERRY TURNER,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

CIVIL ACTION NO. 2:12cv201-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Terry Turner, applied for and was denied supplemental security income

(“SSI”) under Title XVI of the Social Security Act (the Act), 42 U.S.C. §§ 1381-83c.
Plaintiff then requested and received a hearing before an Administrative Law Judge
(“ALJ”). Following the hearing, the ALJ issued a decision in which Plaintiff was found
not disabled at any time through the date of the decision. The Appeals Council rejected
Plaintiff’s request for review of the ALJ’s decision. 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
1

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.

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. 9);
Def.’s Consent to Jurisdiction (Doc. 10). 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?
(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?

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

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.

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.

3

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
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.
4

Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was 43 years of age at the time of the hearing before the ALJ and had a

9th grade education. Tr. 44. Plaintiff had no past relevant work experience. Tr. 56.
Following the administrative hearing, and employing the five-step process, the ALJ
found Plaintiff “has not engaged in substantial gainful activity since” the application date.
(Step 1) Tr. 41. At Step 2, the ALJ found that Plaintiff suffers from the following severe
impairments: “Diabetes; Status post gunshot wounds to the back and leg; obesity; left
knee arthritis; and mild mental retardation.”5 Id. The ALJ then found that Plaintiff “does
not have an impairment or combination of impairments that meets or medically equals
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).” Id. Next, the ALJ found that Plaintiff has the RFC
to perform sedentary unskilled work. Tr. 43. Because Plaintiff had no past relevant
work, the ALJ moved on to Step 5. At Step 5, and after consulting a VE, the ALJ
determined that “there are jobs that exist in significant numbers in the national economy”
that Plaintiff can perform. Tr. 57. The ALJ identified the following occupations as
examples: “Machine Tender,” “Folder,” and “Assembler.” Tr. 57. Accordingly, the

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Despite making a finding of mild mental retardation at Step 2, the ALJ did not make a finding of
disability. The Commissioner explains this as a simple error on the part of the ALJ—that the ALJ meant
to write “borderline intellectual functioning.” See Def.’s Br. (Doc. 15) at 7.

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ALJ determined that Plaintiff had not been under a disability from the alleged onset date,
through the date of the decision. Tr. 58.
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents two issues for this court’s consideration in review of the ALJ’s

decision: 1) “Based upon the undisturbed administrative findings of the ALJ, Mr. Turner
respectfully requests that this Honorable Court determine that his mild mental retardation
meets and/or medically equals Listing 12.05C”; and 2) “The Commissioner’s decision
should be reversed, because the ALJ erred at step three of the evaluation process by
failing to provide any meaningful rationale with respect to his medically equals
determination.”

Pl.’s Br. (Doc. 11) at 3. Because the issues are interrelated the court

will address them as one.
V.

DISCUSSION
The structure of the Listing for Mental Retardation, 20 C.F.R., pt. 404, subpt. P,

app. 1, § 12.05, is different from that of other mental disorders listings. The Listing
contains an introductory paragraph which states: “Mental retardation 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. Further, the introductory paragraph states that “[t]he required
level of severity for this disorder is met when the requirements in A, B, C, or D are
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satisfied.” Id. Thus, if a plaintiff’s impairment satisfies the diagnostic description in the
introductory paragraph and any one of the four paragraphs, the impairment meets the
Listing for Mental Retardation.
In evaluating whether Plaintiff met the requirements of mental retardation in
Listing 12.05, the ALJ apparently failed to consider the introductory paragraph. Instead,
the ALJ immediately began to analyze the requirements of paragraphs A, B, C, and D.
Tr. 42-43. In regards to this omission, the Commissioner argues that “based on the
overall record, Plaintiff did not establish that he had significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested before
age 22.” Def.’s Br. (Doc. 15) at 10. In other words, the Commissioner asserts that
Plaintiff did not meet the requirements of the introductory paragraph and invites the court
to analyze the “overall record” and make the introductory paragraph determination. The
court could just as easily infer from the ALJ’s opinion that because she evaluated the
requirements of paragraphs A, B, C, and D that the ALJ found that Plaintiff met the
requirements of the introductory paragraph. Moreover, Plaintiff’s full scale IQ score of
61 and evidence of additional physical impairments, “absent evidence of sudden trauma
that can cause retardation,” creates a presumption that Plaintiff not only meets the
requirements of the introductory paragraph, but meets Listing 12.05(C). Hodges v.
Barnhart, 276 F.3d 1265, 1268-69 (11th Cir. 2001).

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Further, the court finds the Commissioner’s arguments regarding Plaintiff’s
adaptive functioning to be without merit. The Commissioner relies on the findings the
ALJ makes in relation to the “paragraph D” criteria. It appears the Commissioner would
have this court read the introductory paragraph and “paragraph D” as the same. Whereas,
the introductory paragraph requires the subaverage intellectual functioning and deficits in
adaptive functioning to onset prior to the age of 22, paragraphs A, B, C, and D, describe
the ways in which those Mental Retardation factors (intellectual functioning and deficits
in adaptive functioning) can occur. Specifically, “paragraph D” requires “at least two of
the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties
in maintaining social functioning; or 3. Marked difficulties in maintaining concentration,
persistence, or pace; or 4. Repeated episodes of decompensation, each of extended
duration.” 20 C.F.R., pt. 404, subpt. P, app. 1, § 12.05(C). Those specific findings of
“marked” limitations and “repeated episodes” are not the same as the general requirement
of “deficits in adaptive functioning” in the introductory paragraph. It they were the same,
there would be no point in moving beyond the introductory paragraph.
In addition, not only did the ALJ fail to state his findings in relation to the
introductory paragraph, he also erred when evaluating Plaintiff’s claim under “paragraph
C.”

Paragraph C requires: (1) “[a] valid verbal, performance, or full scale IQ of 60

through 70,” and (2) “a physical or other mental impairment imposing an additional and
significant work-related limitation or function.” 20 C.F.R., pt. 404, subpt. P, app. 1, §
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12.05(C). In determining the second prong, the ALJ will assess “the degree of functional
limitation the additional impairment(s) imposes to determine if it significantly limits [a
claimant’s] physical or mental ability to do basic work activities, i.e., is a ‘severe’
impariment(s), as defined in §§ 404.1520(c) and 416.920(c).” Id. at § 12.00(A) para. 4.
Therefore, if it is determined that a plaintiff has a “severe impairment” as defined in Step
2 of the ALJ’s evaluation, then this satisfies Paragraph C’s requirement of “additional
and significant.” See Carroll v. Astrue, No. 1:08CV74-SRW, 2009 WL 1708073, at *1,
n.2 (M.D. Ala. 2009 June 17, 2009) (citing 65 Fed. Reg. 50,746 at 50,772 (Aug. 21,
2000) (“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).”); Jones v. Colvin, 2013 WL 842704, at *4 (M.D. Ala. Mar
06, 2013); Morris v. Astrue, 2012 WL 3288667, at *4 (M.D.Ala. Aug 10, 2012); Tyree v.
Astrue, 2012 WL 345362, at *3 (S.D. Ala. Feb 01, 2012).
The ALJ’s evaluation of Paragraph C in this case was that while Plaintiff’s IQ
score fell within the 60-70 range, “the evidence of record does not establish that the
claimant has a physical or other mental impairment that imposes any additional and/or
significant work-related limitation of function.” Tr. 43. This finding is not consistent
with the ALJ’s findings at Step 2. See Carroll, 2009 WL at 1708073 at *2 (holding that a
finding of “severe” physical impairments at step 2 ipso facto was a finding that the
claimant had shown an impairment as required by the second prong of Listing 12.05C).
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As such, the ALJ erred in his determination that Plaintiff did not prove his
impairments met Listing 12.05(C). However, whether this is harmless error depends on
the ALJ’s determination following remand, concerning whether Plaintiff meets the
requirements of the introductory paragraph of Mental Retardation. If Plaintiff does not
meet this introductory paragraph, the ALJ’s determination concerning Paragraph C may
be harmless error; if Plaintiff does meet this introductory paragraph, Plaintiff meets the
listing, and is entitled to benefits.
Accordingly, this court finds that remand is necessary to determine whether
Plaintiff met the introductory paragraph of 20 C.F.R., pt. 404, subpt. P, app. 1, §
12.05(C).
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
case REMANDED for further proceedings consistent with this opinion.
Done this 13th day of September, 2013.

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

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