Pugh v. Colvin

Filing 23

MEMORANDUM 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 procedures not inconsistent with the Orders of the Court. Signed by Magistrate Judge Bert W. Milling, Jr on 4/30/2014. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
EARLINE PUGH, o/b/o R.P.,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 13-0465-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff1
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income for children
(hereinafter SSI) (Docs. 1, 16).

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. 21).
action (Doc. 22).

Oral argument was waived in this

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

1

The Court notes that this action was brought by Earline Pugh on
behalf of her adolescent son.
the child as the Plaintiff.

Nevertheless, the Court will refer to

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REMANDED for further administrative procedures not inconsistent
with the Orders of the Court.
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 most recent administrative hearing,
Plaintiff was fifteen years old and had completed an eighth-grade
education (Tr. 32).

In claiming benefits, Plaintiff alleges

disability due to bronchitis, asthma, and impaired intellectual
functioning (Doc. 15).
The Plaintiff filed an application for SSI on September 18,
2006 (Tr. 141-47; see Tr. 15).

Benefits were denied following a

hearing by an Administrative Law Judge (ALJ) (Tr. 55-64); the
Appeals Council, however, remanded the action back for further
consideration (Tr. 65-68).

Following a second evidentiary

hearing, the ALJ determined that Pugh was not disabled as he had
no severe impairments (Tr. 10-23).

2

Following a request for

review of the hearing decision (Tr. 212-15), the Appeals Council
denied review of the hearing decision (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Pugh alleges

(1) The ALJ did not properly assess the conclusions of two

examining psychologists; (2) the ALJ improperly determined that
he did not meet Listing requirements; and (3) the ALJ improperly
discounted Plaintiff’s testimony (Doc. 16).

Defendant has

responded to—and denies—these claims (Doc. 17).

The relevant

evidence of record follows.
On December 5, 2006, Psychologist Nina E. Tocci examined the
eleven-year-old Pugh whose mother reported that he was enrolled
in special education classes in the fifth grade (Tr. 251-54).
Plaintiff was oriented to time, place, and person; he
demonstrated fair attention and scattered concentration.

“He was

able to recite the alphabet, the days of the week, the months of
the year, and count to 25;” he demonstrated a good fund of
information and comprehension (Tr. 252).

Pugh’s ability to

abstract was intact; he demonstrated thought content appropriate
to mood and circumstances and a goal-directed thought
organization.
behavior.

Plaintiff demonstrated some insight into his

Tocci thought that he was functioning within the

average range of intellectual ability and diagnosed him to have
Adjustment Disorder with disturbance of mood and conduct.

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The

Psychologist noted that Pugh had some issues surrounding the
death of his older brother years earlier; Plaintiff had witnessed
the brother get hit and killed by a truck and still suffered
visual hallucinations of his brother.
On July 30, 2008, Psychologist Donald W. Blanton examined
Pugh; in the Fall to come, Plaintiff was to start seventh grade
in special education classes (Tr. 360-64).

Thoughts and

conversation were logical and associations were intact; affect
was flat but appropriate.
depressed.

Pugh was alert; insight was limited and judgment was

considered fair.
testing.

No confusion was noted; his mood was

Persistence and concentration were adequate for

The WISC-IV was administered and Plaintiff scored a

verbal comprehension of 67, a perceptual reasoning of 61, a
working memory of 74, a processing speed of 70, and a full scale
IQ score of 60; these scores placed Pugh in the mild range of
mental retardation.

Blanton expressed the opinion that this was

a valid assessment of his level of intellectual functioning,
noting that there were no distractions and Plaintiff appeared to
put forth good effort.

The Psychologist diagnosed post-traumatic

stress disorder with depression and behavior problems, related to
Pugh’s witnessing his brother’s death.

Blanton estimated that

Plaintiff had a Global Assessment of Functioning (hereinafter

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GAF) score of 50.2

The Psychologist completed a Broad Functional

Limitations form in which he indicated that Pugh had extreme
limitations in his ability to acquire and use information, marked
limitations in attending and completing tasks and in interacting
and relating with others, and less than marked limitation in his
ability to care for himself; there were no limitations in
Plaintiff’s ability to move about and manipulate objects.
On August 10, 2010, Psychologist Tocci again examined Pugh
who was in the ninth grade in a regular school curriculum with
resources classes in math and reading (Tr. 323-26).

Plaintiff’s

affect was appropriate, normal, and stable; he was oriented to
person, place, and time.

Attention and concentration were

distracted; he recited the alphabet, but only with difficulty and
the need to sing it.

Pugh demonstrated a good fund of

information and comprehension; his ability to abstract was
impaired.

Plaintiff demonstrated thought content appropriate to

mood and circumstances and a logical thought organization; he had
no insight into his behavior, but evinced fair social judgment.
Tocci noted that he appeared to be functioning within the
borderline range of ability.

The Psychologist administered the

WISC-IV on which Pugh scored a verbal IQ of 59, a perceptual
reasoning IQ score of 75, a working memory IQ score of 52, a

2A GAF score between 51-60 indicates “moderate symptoms or

moderate difficulty in social, occupational or school functioning.”
See https://depts.washington.edu/Resources/ CGAS/GAF%20Index.htm

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processing speed IQ score of 53, and a full scale IQ score of 52.
Tocci stated that although the scores would indicate that
Plaintiff was mentally retarded, the scores were invalid as his
effort was poor and he was not motived to participate; she
indicated that his prognosis was fair.

The Psychologist’s

impression was that Pugh was malingering and suggested that his
GAF Score was 75.3
On November 30, 2010, Neuropsychologist John R. Goff
examined Plaintiff (Tr. 365-72).

Goff noted that he had been

provided evidence by the Office of Disability Adjudication and
Review and by Pugh’s attorney; he reviewed those records within
the body of his report.

Plaintiff’s Mother reported that

although he had undergone special education courses in the past,
they were not available in high school.

A test for dissimulation

suggested that Plaintiff gave a straightforward performance in
his testing.
questionable.

Goff noted that Pugh’s memory was somewhat
He was oriented to time, place, and person and

could recite the alphabet; logical memory for verbal material was
poor.

The Neuropsychologist saw no clinical indications for

malingering or dissimulation.

On the WISC-IV, Pugh obtained a

full scale score of 54, which Goff thought was “spuriously low;”

3

A score between 71 and 80 indicates that “[i]f symptoms are
present they are transient and expectable reactions to psychosocial
stresses; no more than slight impairment in social, occupational, or
school functioning.” See https://depts.washington.edu/Resources/
CGAS/GAF%20Index.htm

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he indicated that the General Ability Index, on which Plaintiff
scored a 58, was a better estimate of his abilities (Tr. 368).
It was noted that “[t]he working memory and process speed scores
[were] very low and the process speed score in particular [was]
affected by a rather ponderous approach to the test” (id.); the
scores were in the upper end of the mildly retarded range of
intelligence.

Pugh also took the WRAT-IV, obtaining standard

scores of 83, 87, and 89 for the Word Reading, Spelling and Math
Computation scores, corresponding to the beginning fourth-grade,
mid-fifth grade, and mid-third grade levels, respectively.
found no thought or mood disorder.

Goff

The Examiner found that Pugh

was mentally retarded, as supported by Blanton’s previous
testing, the tests he had given, and his academic performance; he
noted that Plaintiff was functionally illiterate.

Goff said that

he did not know “where the PTSD comes from” as he saw no signs of
anxiety (Tr. 369).

The Neuropsychologist’s diagnosis was that

Pugh suffered from a mathematics disorder and mild mental
retardation.

Goff completed a Broad Functional Limitations Form

on which he indicated that Plaintiff had marked-to-extreme
limitation in acquiring and using information, marked limitation
in attending and completing tasks,4 marked limitation in

4The ALJ found that Goff marked both “No limitation” and

“Marked limitation” for this domain (Tr. 22). The Court cannot
say that that interpretation is wrong though it seems obvious that
the “Marked limitation” is what was intended (Tr. 371).

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interacting and relating with others, and less than marked
limitation in caring for himself and in his health and physical
well-being (Tr. 371-72).
At the first evidentiary hearing, Plaintiff’s mother
testified that her son had just been socially promoted to the
seventh grade and was in the special education curriculum (Tr.
43-49).

Pugh gave his mother, teachers, and other students a

hard time; the Mother thought his behavior was related to having
witnessed his brother get killed when run over by a truck.
Plaintiff had a hard time with asthma and took medication for it;
he had to be on the breathing machine four times a day.

He had

to have a breathing treatment in the middle of the night about
three times a week.

Pugh could not participate in P.E. at school

because of the asthma.
At the second—and most recent—evidentiary hearing, the
Mother testified that her son was in the ninth grade and not
doing very well with his schoolwork; his school did not offer
special education classes, though he had been in that curriculum
previously (Tr. 31-35).

Plaintiff did very poorly in math.

Pugh

did not have friends and tended to stay to himself; he had to use
a nebulizer machine four times a day because of his bronchitis.
Also at the second hearing, Dr. William Jeansomme testified
as a Medical Expert, saying that he had studied the record
evidence and heard the testimony from Pugh’s Mother (Tr. 35-39).

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It was the Doctor’s opinion that Pugh did not “satisfy the
criteria for disability described in the disability evaluation
manual” (Tr. 36-37).

Jeansomme stated that he was not a

psychologist or psychometrist.

This concludes the relevant

evidence of record.
In bringing this action, Plaintiff claims that the ALJ did
not properly assess the conclusions of two examining
psychologists.

Pugh specifically refers to the reports of

Blanton and Goff (Doc. 16, pp. 5-6).

It should be noted that

"although the opinion of an examining physician is generally
entitled to more weight than the opinion of a non-examining
physician, the ALJ is free to reject the opinion of any
physician when the evidence supports a contrary conclusion."
Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);5 see
also 20 C.F.R. § 404.1527 (2013).

The ALJ is required to "state

specifically the weight accorded to each item of evidence and
why he reached that decision."
731, 735 (11th Cir. 1981).

Cowart v. Schweiker, 662 F.2d

In his determination, the ALJ made the following specific
determinations as to what weight he would give the evidence:
The undersigned assigns significant

5The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent
decisions of the former Fifth Circuit rendered prior to October 1,
1981.

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weight to the opinion of William Jeansomme,
Ph.D., M.E., who opined claimant has minimal
asthmatic and bronchitis and claimant does
not have a significant mental impairment.
The undersigned finds the opinion of Nina
Tocci, Ph.D., who diagnosed claimant as
malingering with a guarded prognosis of 75.
The undersigned rejects the opinion of Dr.
Blanton who diagnosed claimant with PostTraumatic Stress Disorder and gave claimant
the necessary functional limitations to
satisfy the “B” criteria for that disorder.
Claimant witnessed his brother’s death,
which Dr. Blanton, rates as meeting PostTraumatic Stress disorder some six years
after the event. The undersigned rejects he
opinion of Dr. Goff, who parroted the
evidence from the CD’s provided to him by
the attorney, and finally came up with the
diagnosis of Math Disorder. However, the
undersigned rejects the opinion of Dr. Goff,
who in the Functional Limitations marked two
separate limitations for claimant in the
Domain of Attending and Completing of no
limitation and a marked limitation, which is
enough to reject his opinion. Moreover, Dr.
Goff has had the benefit of two CD’s with
all the evidence and, yet, he could not
understand why claimant was diagnosed with
posttraumatic stress disorder although the
mother of claimant had told claimant
experienced something in his life that was
quite devastating.
(Tr. 22).
The Court has read this passage multiple times and
determined that the ALJ has failed to adequately explain how he
reached his decision.

In his determination, the ALJ

simultaneously rejects Blanton’s opinion for diagnosing PTSD
while rejecting Goff’s opinion for not diagnosing it.

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Though he

“found” Tocci’s report, the ALJ did not state what he thought of
it.

These assessments eliminate the opinions of all of the

examining physicians, leaving only the opinion of a nonexamining OB-GYN doctor (Tr. 357-59), characterized as having
only a Ph.D. by the ALJ (Tr. 22), to provide an opinion on a
fifteen-year-old with claimed impairments of bronchitis, asthma,
and impaired intellectual functioning.
The ALJ’s evaluation is far from adequate.

While the

Government has made strong arguments explaining why the ALJ’s
conclusions are correct, they do not stand in the shoes of the
ALJ and get the opportunity to come into Court and cleanse the
poorly written opinion (Doc. 17).

This is not just a matter of

the ALJ’s decision needing to be “more clearly worded and
[needing] additional proofreading and spelling,” as acknowledged
by the Government (Doc. 17, p. 5); this decision fails to
explain the evidence on which he relied and how the decision was
reached.
The Court does not indicate by its decision today that the
ALJ’s conclusions are wrong.

They may be correct, but until the

ALJ explains his reasoning, the Court must reach the decision
that the conclusions are not supported by substantial evidence.
Based on review of the entire record, the Court finds that
the Commissioner's decision is not supported by substantial evidence.

Therefore, it is ORDERED that the action be REVERSED and

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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 relevant to Pugh’s impairments.

Judgment will be

entered by separate Order.
DONE this 30th day of April, 2014.

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

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