Strange v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 4/4/2017. (KAM, )
2017 Apr-04 AM 10:11
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JOHN WILLIAM STRANGE,
NANCY A. BERRYHILL,
Acting Commissioner of
Case No.: 5:16-cv-00214-JEO
Plaintiff John William Strange brings this action pursuant to 42 U.S.C. §
405(g), seeking review of the final decision of the Acting Commissioner of Social
Security (“Commissioner”)1 denying his applications for disability insurance
benefits and supplemental security income. (Doc. 1). 2 The case has been assigned
to the undersigned United States Magistrate Judge pursuant to this court’s general
Nancy A. Berryhill was named the Acting Commissioner on January 23, 2017. See
https://www.ssa.gov/agency/commissioner.html. Under 42 U.S.C. § 405(g), “[a]ny action
instituted in accordance with this subsection shall survive notwithstanding any change in the
person occupying the office of Commissioner of Social Security or any vacancy in such office.”
Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule 25(d) of the Federal Rules of Civil
Procedure, the Court has substituted Nancy A. Berryhill for Carolyn W. Colvin in the case
caption above and HEREBY DIRECTS the clerk to do the same party substitution on CM/ECF.
References herein to “Doc(s). _” are to the documents numbers assigned by the Clerk of the
Court to the pleadings, motions, and other materials in the court file, as reflected on the docket
sheet in the court’s Case Management/Electronic Case Files (CM/ECF) system.
order of reference. The parties have consented to the jurisdiction of this court for
disposition of the matter. (Doc. 14). Upon review of the record and the relevant
law, the undersigned finds that the Commissioner’s decision is due to be reversed
I. PROCEDURAL HISTORY
On July 16, 2012, Plaintiff filed applications for a period of disability,
disability insurance benefits (“DIB”), and supplemental security income (“SSI”),
alleging disability beginning February 22, 2005. (R. 35). 3 Plaintiff later amended
his alleged disability onset date to July 16, 2012. (R. 35). His claims were denied
initially on September 12, 2012. (R. 35). Thereafter, he requested a hearing by an
Administrative Law Judge (“ALJ”) on October 2, 2012. (R. 35). A hearing was
held on May 14, 2013, in Florence, Alabama. (R. 35). The ALJ denied Plaintiff’s
request for DIB and SSI on September 24, 2013. (R. 35-43). Review by the
Appeals Council was requested twice by Plaintiff, and denied in both instances.
(R. 1-3, 15-17). Plaintiff filed this action on February 5, 2016. (Doc. 1 at 1). This
matter is properly before the court for review under 42 U.S.C. § 405(g).
II. STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly
circumscribed. The function of the court is to determine whether the
References herein to “R. _” are to the page numbers of the administrative record.
Commissioner’s decision is supported by substantial evidence and whether proper
legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct.
1420, 1422 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). The
court must “scrutinize the record as a whole to determine if the decision reached is
reasonable and supported by substantial evidence.” Bloodsworth v. Heckler, 703
F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is “such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Id. It is
“more than a scintilla, but less than a preponderance.” Id.
The court must uphold factual findings that are supported by substantial
evidence. However, it reviews the ALJ’s legal conclusions de novo because no
presumption of validity attaches to the ALJ’s determination of the proper legal
standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). 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, it must reverse the ALJ’s decision. See Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
III. STATUTORY AND REGULATORY FRAMEWORK
To qualify for DIB and SSI under the Social Security Act, a claimant must
show the inability 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); 42 U.S.C. §
1382(a)(3)(A). A physical or mental impairment is “an impairment that results
from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3); 42 U.S.C. § 1382(a)(3)(D).
Determination of disability under the Social Security Act requires a five step
analysis. 20 C.F.R. §§ 404.1520(a)(4). Specifically, the Commissioner must
determine in sequence:
whether the claimant: (1) is unable to engage in substantial gainful
activity; (2) has a sever medically determinable physical or mental
impairment; (3) has such an impairment that meets or equals a Listing
and meets the duration requirements; (4) can perform his past relevant
work, in light of his residual functional capacity; and (5) can make an
adjustment to other work, in light of his residual functional capacity,
age, education, and work experience.
Evans v. Comm’r of Soc. Sec., 551 F. App’x 521, 524 (11th Cir. 2014)4 (citing 20
C.F.R. § 404.1520(a)(4)). Plaintiff bears the burden of proving that he was
disabled within the meaning of the Social Security Act. Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005). The applicable “regulations place a very heavy
burden on the claimant to demonstrate both a qualifying disability and an inability
to perform past relevant work.” Id.
Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered binding
precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
Plaintiff was 43 years old at the time of the ALJ’s decision. (R. 43, 79). He
possesses a 12th grade education, including special education classes through
graduation. (R. 37, 42). He has worked as a groundskeeper and a fast food
worker. (R.72, 184). He has been unemployed since 2006. (R. 40). As noted
above, his original alleged onset of disability date was February 22, 2015, which
was later amended to July 16, 2012. (R. 37, 79). Plaintiff’s alleged disability was
due to a status post fracture of the distal right tibia and fibula, chronic pain with
toeing out of the right foot and muscle atrophy of the right thigh and right calf,
diabetes mellitus, vision loss, depression, and a learning disability. (R. 37, 79).
The ALJ found that Plaintiff’s severe impairments include a status post
fracture of the distal right tibia and fibula with post open reduction and internal
fixation, and chronic pain with toeing of the right foot and muscle atrophy of the
right thigh and right calf. (R. 37). The ALJ further found that Plaintiff’s vision
impairment and diabetes mellitus were not “severe.” (R. 38). Finally, the ALJ
found that Plaintiff’s alleged depression and learning disabilities were not
supported within the record as medically determinable impairments, as both
alleged disabilities appeared to be self-diagnosed. (R. 38).
After careful consideration of Plaintiff’s impairments, the ALJ found that
Plaintiff has the residual functional capacity (“RFC”) to perform light work 5 with
additional postural and environmental limitations, including the avoidance of
concentrated exposure to extreme cold. (R. 39). Premised on the testimony of the
vocational expert, the ALJ determined that Plaintiff could not perform his past
relevant work. (R. 42). However, again premised on the testimony of the
vocational expert, the ALJ further determined that there are other jobs in the
national economy that Plaintiff is capable of performing, including surveillance
system monitor, telephone call out operator, and charge account clerk. (R. 42-43).
Following the ALJ’s decision, Plaintiff filed a Request for Review of the
Hearing Decision. (R. 28). The Appeals Council denied review on January 9,
2015. (R. 15). On June 4, 2015, Plaintiff’s representative requested that the
Appeals Council vacate its previous order because neither he nor Plaintiff had
notice of the Appeals Council’s denial. (R. 52). On December 10, 2015, the
Appeals Council set aside its January 9, 2015 order and again denied Plaintiff’s
request for review. (R. 1). In its written denial, the Appeals Council stated that it
“considered” Plaintiff’s argument and determined that the information provided to
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. . . . [A] job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing or pulling
of arm or leg controls.” 20 C.F.R. § 404.1567(b).
the Council did “not provide a basis for changing the Administrative Law Judge’s
decision.” (R. 2).
On February 5, 2016, Plaintiff filed his complaint in this court challenging
the denial of his claims for DIB and SSI. (Doc. 1). Thereafter, the Social Security
Administration mandated that Plaintiff obtain a psychological evaluation with IQ
testing in conjunction with a subsequent disability claim filed by Plaintiff. (Doc. 9
at 5). On July 28, 2016, Plaintiff was given a WAIS-IV IQ test. (Doc. 9-1 at 2).
This testing demonstrated that Plaintiff had a valid full scale IQ of 63. (Doc. 9-1 at
Plaintiff asserts four arguments in support of reversal and remand of his
case: (1) new and material evidence, namely the results of his IQ test, warrants a
remand (doc. 1 at 4-8); (2) the ALJ failed to order a psychological consultative
exam in light of Plaintiff’s allegation of slow learning, his special education in
school, and a consultative medical examiner’s diagnosis of a learning disability (id.
at 8-11); (3) the transcript lacks two items of evidence and is therefore incomplete
(id. at 11-13); and (4) the ALJ improperly evaluated the opinion of Dr. Samuel D.
Williams, a non-examining physician (id. at 13-15).
Plaintiff’s Subsequent IQ Test Results Merit a Remand
Plaintiff argues that his July 2016 WAIS-IV testing and the results thereof
constitute new and non-cumulative evidence warranting a remand of this case
pursuant to the sixth sentence of 42 U.S.C. § 405(g), which permits a remand
“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.” Ingram v. Comm’r Soc. Sec., 496 F.3d 1253, 1257
(11th Cir. 2007). To be entitled to remand for consideration of newly discovered
evidence, a “claimant must establish that: (1) there is new, non-cumulative
evidence; (2) the evidence is ‘material,’ that is, relevant and probative so that there
is a reasonable possibility that it would change the administrative result, and (3)
there is good cause for the failure to submit the evidence at the administrative
level.” Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1218 (11th Cir. 2001); see
also Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998); Cherry v. Heckler, 760
F.2d 1186, 1192 (11th Cir. 1985). The Commissioner argues that the court should
deny Plaintiff’s request for remand if it determines that he has not met this threepronged standard. (Doc. 10 at 9). The court will consider each prong below.
New and Material Evidence
New and non-cumulative evidence must be evidence that is dissimilar to the
evidence found in the administrative record which relates to a period on or before
the date of the ALJ’s decision. See 20 C.F.R. § 404.970(b); Cannon v. Bowen, 858
F.2d 1541, 1546 (11th Cir. 1988); see also Falge, 150 F.3d at 1324. Here,
Plaintiff’s IQ testing is non-cumulative in that it is Plaintiff’s only comprehensive
psychological evaluation. See Milano v. Bowen, 809 F.2d 763, 766 (11th Cir.
1987) (holding that the only comprehensive psychological evaluation of the
claimant’s condition constituted non-cumulative evidence). Put another way, “[n]o
similar evidence was introduced in the administrative record.” Cannon, 858 F.2d
at 1546. Although the administrative record includes an opinion from consultative
examiner Dr. Will R. Crouch, concluding that Plaintiff possessed a learning
disability, the evaluation did not include any specific testing. (R. 256-57). Dr.
Crouch’s opinion on Plaintiff’s mental state appeares to be based solely on
Plaintiff’s self-reported history and Dr. Crouch’s immediate observations. His
opinion was not supported by any other evidence within the record. (R. 38, 257).
Despite this, as noted, he did conclude that Plaintiff had a learning disability with a
history of special education classes. (R. 257).
Additionally, Plaintiff’s “mental examination” relates back to a period
before the ALJ’s decision. (Doc. 9-1 at 1). In Hodges v. Barnhart, 276 F.3d 1265,
1268 (11th Cir. 2001), the Eleventh Circuit Court of Appeals stated that “IQ tests
create a rebuttable presumption of a fairly constant IQ throughout . . . life.”
Therefore, absent evidence of a sudden trauma that may cause mental retardation,
Plaintiff’s IQ test results create a presumption that Plaintiff’s full scale IQ was 63
before the date of the ALJ’s decision. Plaintiff’s IQ scores are new and noncumulative evidence. Thus, the court finds Plaintiff’s IQ testing evidence meets
the first prong of the remand consideration.
The Materiality of the New Evidence
Plaintiff’s mental examination is material in that a reasonable possibility
exists that the new evidence would change the administrative result. See Falge,
150 F.3d at 1323; Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987). In Wright v.
Heckler, 734 F.2d 696, 697 (11th Cir. 1984), the Eleventh Circuit held that
additional evidence consisting of a psychiatric evaluation indicating that a
claimant’s IQ was between 65 and 68 was sufficient to warrant a remand. The
court determined that if the psychiatric examination was accepted, a disability
based upon the claimant’s mental impairments might well exist. Id. at 697.
Similar to the claimant in Wright, Plaintiff now presents his IQ test results which
demonstrate he has a valid full scale IQ of 63. (Doc. 9-1 at 2). Consideration of
this additional evidence along with Dr. Crouch’s assessment and Plaintiff’s
physical impairments could well change the previous administrative result.
Additionally, Plaintiff’s test results are relevant and probative to a condition
that Plaintiff enumerated at the outset of this process – “slow reading and writing
went [sic] to special education classe[s]” (see R. 79, 183), further supporting the
materiality of the evidence. See Caulder v. Bowen, 791 F.2d 872, 877-78 (11th
Cir. 1991) (“The evidence is relevant and probative in that it pertains to a condition
that Caulder listed in his applications at the administrative level as a source of his
disability”). The new evidence arguably provides objective medical support for
Plaintiff’s claim that he suffers from a learning disability. 6 (R. 256-67).
Accordingly, this court concludes that Plaintiff’s IQ results are new “material”
The Good Cause Requirement
The final prong requires that the proponent show that there is good cause for
failing to present the evidence at the administrative level. This requirement may
be satisfied by showing that the evidence in question did not exist at the time of the
administrative proceeding. Cannon, 858 F.2d at 1546; Caulder, 791 F.2d at 878-79
(citing Cherry, 760 F.2d at 1192; Johnson v. Harris, 612 F.2d 993, 998 (5th Cir.
This evidence is also relevant for a determination as to whether Plaintiff meets or equals Listing
12.05C concerning “Intellectual disability.” Listing 12.05C provides that a claimant’s mental
retardation satisfies the criteria in paragraph C of Listing 12.05 when there is: (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 of function.” Hickel v. Comm’r,
539 F. App’x 980, 983 (11th Cir. 2013); see 20 C.F.R. § 404, Subpt. P, App. 1 § 12.05(C); see
also Hodges v. Barnhart, 276 F.3d 1265, 1269 (11th Cir. 2001) (“[A] claimant meets the criteria
for presumptive disability under Listing 12.05(C) when the claimant presents a valid I.Q. score
of 60 to 70 and evidence of additional mental or physical impairment.”).
In this instance, the testing was performed seven months after the Appeals
Council denied review and after this case was filed. (R. 1; Doc. 1 at 1, Doc. 9 at 5,
7). Furthermore, Plaintiff could not have obtained a psychological evaluation prior
to July 28, 2016, since he did not have health insurance and could not afford such
testing. (R. 68; Doc. 9 at 7). Thus, the good cause requirement is satisfied because
the evidence did not exist and could not have been reasonably obtained by Plaintiff
at the time the ALJ or the Appeals Council reviewed his case.
Plaintiff’s Other Claims
Because of the court’s determination as to the first issue, the undersigned
pretermits further discussion of Plaintiff’s other arguments.
For the reasons set forth above, the undersigned concludes that the case is
due to be reversed and remanded to the Commissioner for further proceedings
consistent with this opinion. An appropriate order of remand will be entered.
DONE, the 4th day of April, 2017.
JOHN E. OTT
Chief United States Magistrate Judge
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