Tyree v. Astrue

Filing 23

MEMORANDUM AND OPINION AND ORDER entered, Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be REVERSED and that this action be REMANDED for further administrative proceedings not inconsistent with the Orders of the Court, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 2/1/12. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
APRIL TYREE,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 11-0326-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 13).

The parties filed written consent and this

action has been referred to the undersigned Magistrate Judge to
conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc.
22).

Oral argument was waived in this action (Doc. 21).

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be REVERSED and that this action be REMANDED for further
administrative proceedings not inconsistent with the Orders of
the Court.
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This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
thirty-one years old, had received a certificate of special
education (Tr. 36), and had previous work experience as a fast
food worker (Tr. 51).

In claiming benefits, Plaintiff alleges

disability due to mild mental retardation and headaches (Doc. 13
Fact Sheet).
The Plaintiff filed an application for SSI on April 30,
2008 (Tr. 112-15; see Tr. 11).

Benefits were denied following a

hearing by an Administrative Law Judge (ALJ) who determined that
although Tyree could not perform her past relevant work, there
were specific jobs which she was capable of doing (Tr. 11-22).
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Plaintiff requested review of the hearing decision (Tr. 7) by
the Appeals Council, but it was denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Tyree alleges

(1) The ALJ improperly determined that she did not meet

the requirements of Listing 12.05C; and (2) the ALJ did not pose
a comprehensive hypothetical to the vocational expert (Doc. 13).
Defendant has responded to—and denies—these claims (Doc. 17).
The Court notes that, because of the specific claims raised
herein, it will be unnecessary, as is customary, to set out the
medical evidence herein.
Plaintiff first claims that she meets the requirements for
Listing 12.05C.

The introductory notes to Section 12.05 state

that “[m]ental retardation refers to a significantly subaverage
general intellectual functioning with deficits in adaptive
behavior initially manifested during the development period;
i.e., the evidence demonstrates or supports onset of the
impairment before age 22.”

20 C.F.R. Part 404, Subpart P,

Appendix 1, Listing 12.05 (2011).

Subsection C requires "[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."
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20 C.F.R.

Part 404, Subpart P, Appendix 1, Listing 12.05C (2011).
In the decision, the ALJ specifically found the following:
[W]hile the claimant does have a valid
verbal, performance, or full scale IQ of 60
through 70, she does not have a physical or
other mental impairment imposing an
additional and significant work-related
limitation of function. I acknowledge that
the claimant experiences headaches for which
she receives treatment and that the
treatment is not always successful in
controlling the headaches. However, based
on the information contained in Dr.
Hongsakaphada’s treatment records, as well
as the claimant’s own testimony, I find that
the frequency of the headaches is not such
that they interfere with the claimant’s
ability to perform basic work activities.
Giving the claimant the benefit of the doubt
regarding her headaches, I have limited the
claimant to no performance of work
activities at unprotected heights and no
work involving dangerous moving equipment.
I do not find these non-exertional
limitations to be a significant impediment
to the performance of basic work related
activities.

(Tr. 17).
Plaintiff argues that the ALJ has acknowledged that the
first prong of 12.05C, the IQ requirement, has been met (Doc.
13, pp. 5-6).

The Court agrees.

Tyree further argues, however, that the medical evidence of
record shows that the second prong, requiring “a physical or
other mental impairment imposing an additional and significant
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work-related limitation of function" has also been met because
of her headaches (Doc. 13, pp. 6-8).

As support, Plaintiff

points to case language holding that the second prong
requirement is met once there is a finding that the claimant has
an additional severe impairment because the requirement of
“significant work-related limitation of function” “involves
something more than ‘minimal’ but less than ‘severe.’”

Edwards

by Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985).

The

Edwards Court specifically held that “[o]nce a claimant is found
to have a ‘severe impairment’ within the meaning of §
404.1520(c), he is deemed disabled (he must also meet the
durational requirement), and the analysis comes to an end.”
Edwards, 755 F.2d at 1515.
The Defendant has responded that the holding in Edwards is
no longer good law as it was superseded fifteen years later by
regulation (Doc. 17, pp. 7-8).

The current regulation

specifically states as follows:

For paragraph C, we will assess the degree
of functional limitation the additional
impairment(s) imposes to determine if it
significantly limits your physical or mental
ability to do basic work activities, i.e.,
is a “severe” impairment(s), as defined in
§§ 404.1520(c) and 416.920(c). If the
additional impairment(s) does not cause
limitations that are “severe” as defined in
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the §§ 404.1520(c) and 416.920(c), we will
not find that the additional impairment(s)
imposes “an additional and significant workrelated limitation of functions,” even if
you are unable to do your past work because
of the unique features of that work.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00A (2011).

The Court

also notes that the Federal Register sets out the motivation
behind changing the regulation, stating as follows:

We always have intended the phrase to mean
that the other impairment is a “severe”
impairment, as defined in §§ 404.1520(c) and
416.920(c). We have explained this policy
previously in our training manuals, in
Social Security Ruling 98-1p, and in Social
Security Acquiescence Ruling (AR) 98-2(8).
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. The revised paragraph states that
we will assess the degree of functional
limitation the additional impairment imposes
to determine if it significantly limits an
individual's physical or mental ability to
do basic work activities; “i.e., is a
‘severe’ impairment(s), as defined in §§
404.1520(c) and 416.920(c).”
Sections 404.1520(c) and 416.920(c)
note that we must base our assessment of
whether an impairment is severe on the
limitations that the impairment imposes on
the individual's physical and mental
abilities to do basic work activities. When
we do this, we do not consider factors such
as the individual's age, education, or past
work experience. Thus, although the other
impairment in listing 12.05C may not prevent
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the individual from doing his or her past
work, it may still cause an “additional and
significant work-related limitation of
function.” Conversely, if the other
impairment prevents the individual from
doing his or her past work because of the
unique features of that work, but does not
significantly limit the individual's ability
to do basic work activities, we will find
that the impairment does not satisfy the
“additional and significant work-related
limitation of function” requirement in
listing 12.05C.

65 Fed.Reg. 50746, 50772-73 (August 21, 2000).
After reviewing the current regulation and the language in
the Federal Register, the Court acknowledges that the second
prong in Listing 12.05C requires evidence of an additional
severe impairment.

The Court also understands that, at the time

of Edwards, the definition of severe impairment was not as
stringent as required by the new regulation.

See Black v.

Astrue, 678 F.Supp.2d 1250, 1262 (M.D. Ala. 2010) (“Under an
earlier version of this Listing, our circuit interpreted this as
something that is ‘significant’ but less than a ‘severe
impairment’ as defined in Step 2”).
However, this understanding does not negate the ALJ’s
finding at step two that Plaintiff’s headaches are severe (Tr.
15).

The Court does not understand how an impairment that is

severe at step two becomes not severe for step three analysis
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when the definitions are the same for both.1
reached the same conclusion.

Other courts have

Black, 678 F.Supp.2d at 1262;

Carroll v. Astrue, 2009 WL 1708073, *1 (M.D. Ala. 2009 (“The
standard for an “additional and significant” limitation is the
same as for a “severe” impairment under 20 C.F.R. 404.1520(c) or
416.920(c)”).

The Government has failed to bridge the gap to

demonstrate that a finding in step two is no longer relevant in
later steps of the analysis.
The Court also notes that the ALJ goes on to specifically
find that the frequency of Plaintiff’s headaches will not
interfere with her ability to work (Tr. 17).

Tyree stated at

the evidentiary hearing that she had headaches once or twice a
week and that they cause nausea, vomiting and sensitivity,
requiring her to go to bed in a dark room (Tr. 43-44).

Medical

records from her doctor confirm the frequency of the headaches
(Tr. 396-99).

The Court also notes that the ALJ did not find

Plaintiff’s testimony not credible.

The Court does not

understand how the ALJ could find—at any step—that Tyree’s

1

The Court finds Defendant’s reference to Delia v. Commissioner
of Social Security, 433 Fed.App’x. 885, 887 (11th Cir. 2011) to be
inapplicable. In Delia, the ALJ determined that an impairment was not
severe at step two but gave it further analysis as though it were a
severe impairment at later steps; the Eleventh Circuit Court of
Appeals found this harmless. Here, the ALJ found the headaches to be
severe at step two, yet finds them otherwise in later analysis (Tr.
13, 17). This is not harmless error.

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headaches would not interfere with her ability to work without
dismissing her testimony as non-credible.
The Court finds that the ALJ’s opinion is not supported by
substantial evidence.

Therefore, it is ORDERED that the action

be REVERSED and REMANDED to the Social Security Administration
for further administrative proceedings consistent with this
opinion, to include, at a minimum, a supplemental hearing for
the gathering of evidence regarding Plaintiff’s headaches.
Judgment will be entered by separate Order.
DONE this 1st day of February, 2012.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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