McCall 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 AFFIRMED. A separate judgment will issue. Signed by Honorable Judge Wallace Capel, Jr. on 12/20/2013. (dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DORIS MCCALL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO.: 2:12cv641-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, Doris McCall, applied for supplemental security income (“SSI”) and

disability insurance benefits (“DIB”).
administrative level.

Her application was denied at the initial

Plaintiff then requested and received a hearing before an

Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued a decision in
which he found Plaintiff 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 court for review under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. §

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.

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. 7); Def.’s Consent to Jurisdiction (Doc. 8). Based on the court’s
review of the record and the briefs of the parties, the court 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?
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
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.

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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
or light work, inability to speak English, educational deficiencies, and lack of job

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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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 years old at the time of the hearing before the ALJ and had a

limited education. Tr. 34. Plaintiff’s past relevant work was as a “packer,” “cook,” and
“janitor.” Id. Following the administrative hearing, and employing the five-step process,
the ALJ found Plaintiff “has not engaged in substantial gainful activity since November
14, 2008, the alleged onset date.” (Step 1) Tr. 27. At Step 2, the ALJ found that Plaintiff
suffers from the following severe impairments: “degenerative disc disease; history of
asthma; osteoarthritis; and history of schizophrenia with no current treatment or
symptoms.” 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.” (Step 3) Tr. 28. Next, the ALJ found that Plaintiff has the RFC to
perform light work, but she could only have occasional contact with the general public
Tr. 29. The ALJ then concluded that Plaintiff “is unable to perform any past relevant
work.” (Step 4) Tr. 34. 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.” Id. The ALJ identified the following occupations as examples:
“gate tender,” “production inspector,” and “shirt presser.” Tr. 24. Accordingly, the ALJ
determined that Plaintiff “has not been under a disability, as defined in the Social
Security Act, from November 14, 2008, through the date of the decision.” Tr. 35.
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IV.

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

decision: (1) whether “[t]he Commissioner’s decision should be reversed because the
ALJ failed to apply the proper legal standards in addressing [Plaintiff’s] subjective
complaints of debilitating pain”; and (2) whether the Commissioner properly evaluated
Plaintiff’s deficiencies in intellectual functioning. Pl.’s Br. (Doc. 12) at 5. Because the
ALJ committed reversible error with regard two issue two, which requires a remand for
additional consideration, the court will decline to review issue one.
V.

DISCUSSION
At the center of the second issue presented by Plaintiff is the opinion rendered by

Dr. King in 1991, wherein he diagnosed Plaintiff with “schizophrenia, undifferentiated,
chronic and severe mental retardation.” See Tr. 30. In his opinion, the ALJ makes
mention of the diagnosis, but nothing more. In fact not only does the ALJ make only one
passing mention of the diagnosis, he makes no further references to mental retardation.
While the ALJ does discuss the examination of Plaintiff by a consultative examiner, an
osteopathic physician, the examiner diagnosed Plaintiff with schizophrenia by report, but
performed no intelligence testing.

Another consultative physician opined there was

insufficient evidence to determine mental impairment and the opinions of two other
consultative physicians, both of whom were rejected by the ALJ, were that Plaintiff had
no medically determinable impairments. Tr. 31.
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Plaintiff argues that it was error for the ALJ to fail to discuss or consider the
severe mental retardation and whether it met section 12.05(B) of the Listings. Pl.’s Br.
(Doc. 12) at 12. The Commissioner concedes that the ALJ “acknowledged Plaintiff’s
1991 IQ score and that she had been assessed with severe mental retardation” and
“acknowledged that Plaintiff had another severe impairment.” Def.’s Br. (Doc. 15) at 89. The Commissioner then invites the court to “infer that the ALJ, in finding that
Plaintiff’s impairments did not meet the requirements of the Listings, concluded that
Plaintiff had a valid IQ score that met the requirements of sections 12.05B and 12.05C of
the Listings, and another impairment that met the requirements of section 12.05C of the
Listings.” Id. at 9. The Commissioner further invites the court to assume then, that
because the ALJ did not make the finding that Plaintiff me the Listing, it must be because
the ALJ found that Plaintiff had not satisfied the introductory paragraph of 12.05. Thus,
in order to affirm the ALJ’s decision, the court must assume (1) the ALJ did undertake an
analysis of Plaintiff’s mental impairments under Listing 12.05; (2) the ALJ found that
Plaintiff had a valid IQ that met the listings;5 and that (3) the reason the ALJ did not
award benefits was based on his finding that Plaintiff was unable to show deficits in
adaptive functioning manifested prior to age 22.

Then, after making all of those

assumptions, the court is to review the ALJ’s supposed findings for substantial evidence.
5

The importance of this finding cannot be overstated where it is “critical that an ALJ specifically address
and resolve the validity of an I.Q. score; if the I.Q. score is valid and meets or equals the criteria of a
listed impairment, the ALJ can go no further.” Thomas v. Barnhart, 2004 WL 3366150, *2 (11th Cir.
2004).

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The court will decline the Commissioner’s invitation. Instead, the court finds it
appropriate to remand the case back to the Commission for a full and reviewable decision
which explains why, after finding that “Plaintiff had a valid IQ score that met the
requirements of sections 12.05B and 12.05C of the Listings, and another impairment that
met the requirements of section 12.05C of the Listings,” Plaintiff did not meet a Listing.
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 AFFIRMED.
separate judgment will issue.
Done this 20th day of December, 2013.

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

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