Hollis v. Colvin

Filing 20

MEMORANDUM OPINION and ORDER entered that after considering the administrative record, 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 this Court, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 1/11/2016. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
JAMARIS HOLLIS,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

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CIVIL ACTION 15-0270-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
denying a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 12).

The parties filed written consent and this

action has been referred to the undersigned Magistrate Judge to
conduct all proceedings and order judgment in accordance with 28
U.S.C. § 636(c), Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b)
(see Doc. 18).
19).

Oral argument was waived in this action (Doc.

After considering the administrative record, 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 this 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).

Substantial

evidence 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
twenty-two years old, had received a high school occupational
diploma (Tr. 42, 204), and had no relevant previous work
experience (Tr. 31).

Plaintiff alleges disability due to mild

mental retardation, anxiety disorder, dysthymic disorder, major
depressive disorder, panic disorder, and Attention Deficit
Hyperactivity Disorder (hereinafter ADHD) (Doc. 11).
The Plaintiff protectively applied for SSI on August 3,
2011, asserting an onset date of August 3, 2011 (Tr. 18, 15156).

An Administrative Law Judge (ALJ) denied benefits,

determining that Hollis had the ability to perform specific
light work jobs (Tr. 18-33).

Plaintiff requested review of the

hearing decision (Tr. 8-14), but the Appeals Council denied it
(Tr. 1-5).

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Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Hollis alleges

(1) The ALJ improperly considered the opinions and

conclusions of the examining psychologists; and (2) she meets
the requirements of Listing 12.05C (Doc. 12, 15).
responded to—and denies—these claims (Doc. 13).

Defendant has
The relevant

evidence of record follows.1
On June 3, 2002, Clare Ward, M.Ed. evaluated Hollis because
of academic and attention problems; she was eleven years and ten
months old at the time (Tr. 312-15).

On the Wechsler

Intelligence Scale for Children, Third Edition (hereinafter
WISC-III), Plaintiff scored a verbal IQ of 70 and a performance
IQ of 50.

The Examiner’s interpretation of this test was as

follows:
Her verbal reasoning abilities are much
better developed than her nonverbal
reasoning abilities. Making sense of
complex verbal information and using verbal
abilities to solve novel problems are a
relative strength for Jamaris. Processing
complex visual information by forming
spatial images of part-whole relationships
and/or by manipulating the parts to solve
novel problems without using words is a
weakness. Her verbal reasoning abilities
are in the borderline range and above those
of approximately 2% of her peers []. Her
nonverbal reasoning abilities are in the
intellectually deficient range and better
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1As Plaintiff’s claims focus on her mental impairments, the Court
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will not herein summarize those records relating to physical ones.!
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than those of approximately 1% of her peers.
(Tr. 312).

On the Wechsler Individual Achievement Test, Second

Edition (hereinafter WIAT-II), Hollis scored 72 on reading, 68
on mathematics, 74 on oral language, and 57 in written language.
On September 15, 2004, fourteen-year-old Plaintiff was seen
by Psychologist Richard S. Reynolds and David D. Hall, D.O., for
talking to herself, frequent anger outbursts, and being
impulsive and quite slow at school; she was taking Metadate2 and
Vistaril3 (Tr. 317-19).

On examination, Hollis was alert and

oriented in all spheres; affect was mildly blunted.

Thought

associations were tight; it was noted that she put words in the
wrong order when speaking.

Recent memory was intact while

remote memory was poor; judgment was adequate while insight was
very shallow.

Plaintiff was diagnosed to have:

(1) ADHD, by

history; and (2) rule out mild range of mental retardation.
On May 28, 2008, Hollis was admitted to Hill Crest Hospital
for refusing to go to school and pulling a knife on her mother;
she had been staying out late, displaying inappropriate
behavior, and was thought to be using drugs and alcohol (Tr.

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2Metadate is a central nervous system stimulant used in the
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treatment of ADHD. Physician's Desk Reference 3261-64 (62nd ed. 2008).!
3Vistaril is used to treat anxiety and tension and may be used to
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control nausea and vomiting. http://www.drugs.com/vistaril.html

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277-86).

Plaintiff was taking Metadate and Abilify.4

On

examination, she was oriented in four spheres; her estimated
intelligence was average to slightly below average.

Thought

processes were logical, but she lacked insight and minimized her
behavior. Plaintiff was admitted to the adolescent unit for
approximately two weeks and prescribed Ativan5 as needed.

A

physical exam was “grossly within normal limits” (Tr. 286).
During her hospitalization, Hollis underwent psychological
testing by Psychologist Shannon M. Hartley who noted that
although she was not receiving special education services,
Hollis had been placed on the 504 plan6 (Tr. 270; see generally
Tr. 269-75).

Reality testing was adequate while insight was

entirely absent; judgment was fair.

On the Wechsler Adult

Intelligence Scale-Third Edition (hereinafter WAIS-III), Hollis
scored a Verbal IQ of 71, a Performance IQ of 69, and a Full
Scale IQ of 67, placing her within the extremely low
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4

Abilify is a psychotropic drug used in the treatment of
schizophrenia. Error! Main Document Only.Physician's Desk Reference
872-74 (62nd ed. 2008).!
5Error!%Main%Document%Only.“Ativan (lorazepam) is indicated for the
!
management of anxiety disorders or for the short-term relief of the
symptoms of anxiety or anxiety associated with depressive symptoms.”
Its use is not recommended “in patients with a primary depressive
disorder or psychosis.” Physician's Desk Reference 2516-17 (48th ed.
1994).
6
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“The 504 Plan is a plan developed to ensure that a child who has
a disability identified under the law and is attending an elementary
or secondary educational institution receives accommodations that will
ensure their academic success and access to the learning environment.”
http://www.washington.edu/doit/what-difference-between-iep-and-504plan

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psychometric range of intelligence.
impression was as follows:

Hartley’s diagnostic

Oppositional Defiant Disorder;

Adjustment Disorder with Disturbance of Conduct, Chronic
Stressor; Rule out ADHD; Extremely Low Intellectual Functioning;
Rule out Mild Mental Retardation; and Rule out Fetal Alcohol
Syndrome (Tr. 269).

Plaintiff’s discharge diagnosis from Hill

Crest Hospital on June 13, 2008 was Disruptive Disorder, NOS and
ADHD (Tr. 278).
Plaintiff went to Cahaba Center for Mental Health
(hereinafter Cahaba CMH) in June 2008 where goals were made for
her mood and anger control (Tr. 291).

A treatment note from

September 9, 2008 indicated Hollis was feeling good and had no
suicidal or homicidal ideation (Tr. 289).

On February 2, 2009,

Plaintiff was seen for a refill of her medications; she was
doing well in school, having scored A’s and B’s. (Tr. 288).
Psychiatrist Timothy Baltz’s impression was as follows:

(1)

ADHD combined type, partial remission; (2) suspect somewhat past
chaotic home environment; and (3) high/mild MR (Tr. 288).
The next medical record was from November 1, 2011, when Dr.
Stephen J. Robidoux performed a physical evaluation, stating it
was normal (Tr. 293-96).

The Doctor went on to say that Hollis

had no limitations in “sitting, standing, walking, lifting,
carrying, climbing, squatting, crawling, handling objects, using
hand and foot controls, talking, listening or travel” (Tr. 296).

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On November 29, 2011, Psychologist Donald W. Blanton saw
Plaintiff at the request of the Social Security Administration
(hereinafter SSA) for a mental examination without testing;
previous records were made available to aid in the evaluation
(Tr. 301-03).

Blanton noted that Hollis “was a simple young

girl who appeared to be mentally retarded who cried several
times during the examination” (Tr. 302).

Thoughts and

conversation were logical and associations were in tact; affect
was flat, but appropriate.
depressed.

No confusion was noted; her mood was

No psychomotor retardation as noted; no delusions or

persecutory type fears were noted, but Plaintiff was very
negative and obsessed about her spells of anxiety.

Hollis was

oriented in four spheres; “intelligence was estimated [to be]
well below average” (Tr. 302).

The Psychologist noted that

Plaintiff’s memory was consistent with her intellect; “insight
was limited and judgment was considered fair for work and
financial type decisions” (Tr. 302).

Blanton indicated that

Hollis appeared to be mentally retarded and diagnosed her as
follows:

Major Depression, Panic Disorder without Agoraphobia,

history of ADHD, and Mild Mental Retardation (estimated).
On December 13, 2011, Dr. Harold R. Veits, without benefit
of examining Plaintiff, reviewed the evidence of record as of
that time and determined that she had no severe physical
impairments; he further concluded that, mentally, she had been

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diagnosed to suffer from Affective Disorders and Borderline
Intellectual Functioning, though she did not meet Listing
requirements for either of those impairments (Tr. 65-75).

Veits

further opined that Hollis had mild restrictions of activities
of daily living, moderate difficulties in maintaining social
functioning, and moderate difficulties in maintaining
concentration, persistence or pace.

The Non-Examiner further

suggested that Plaintiff would be moderately limited in her
ability to do the following:

understand, remember, and carry

out detailed instructions; maintain attention and concentration
for extended periods; sustain an ordinary routine without
special supervision; interact appropriately with the general
public; accept instructions and respond appropriately to
criticism from supervisors; and respond appropriately to changes
in the work setting.
On May 9, 2012, Plaintiff was seen at Cahaba CMH, stating
that she was having problems with her nerves, was easily
frustrated, and was often anxious (Tr. 328-35).

On July 20,

Hollis received individual therapy; she had been experiencing
visual and auditory hallucinations (Tr. 351).

On August 10,

Cahaba MHC notes indicate that Hollis was anxious, dysphoric,
suicidal, and experiencing hallucinations; she was diagnosed to
have anxiety and the treatment goal was to stabilize it (Tr.
350, 352).

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On September 26, 2012, Psychologist Blanton again examined
Plaintiff, at the request of the SSA, and reported that
Plaintiff had run out of some of her medications, but would not
see her psychiatrist for another couple of weeks (Tr. 305-11).
Hollis was obese, quite anxious, with logical thoughts and
conversation; associations were intact and affect was flat but
appropriate.

There was no psychomotor retardation noted; she

was oriented in four spheres, though insight was limited and
judgment considered poor.

On the WAIS-IV, Plaintiff scored a

Full Scale IQ of 50; however, Blanton noted that Plaintiff had
not been taking her Metadate and that her “extremely short
attention span and her poor concentration [] artificially
lower[ed] the results” (Tr. 307).

The Psychologist noted that

the score placed her in the moderate range of mental
retardation, but he did not think the scores were valid.
Nevertheless, Blanton thought that Hollis fell into the mild
range of mental retardation.

His impression was as follows:

(1) Major depression, recurrent type with psychotic features;
(2) ADHD, mixed type; (3) history of panic disorder without
agoraphobia; and (4) mild mental retardation.

Blanton completed

a mental evaluation form in which he indicated that Plaintiff
had marked limitations in her ability to understand, remember,
and carry out complex instructions and make judgments in complex
work-related decisions (Tr. 309-11).

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The Psychologist further

indicated that Hollis would be markedly restricted in
interacting appropriately with supervisors and moderately
limited in interacting appropriately with coworkers and
responding appropriately to changes in a routine work setting.
Blanton thought that Hollis had suffered from these limitations
for more than one year.
On October 3, 2012, Plaintiff reported to Cahaba CMH that
she was having difficulty sleeping and that people were after
her/trying to grab her; it was suggested that she might be
malingering (Tr. 349).

On October 8, Psychiatrist Baltz

reported that Plaintiff admitted to wanting to hurt herself
sometimes; the Doctor continued the Ativan and prescribed Prozac7
(Tr. 347-48).

On November 7, 2012, Hollis’s anxiety concerned

physical ailments for which she had been exercising or walking
briskly (Tr. 346).

On January 7, 2013, Cahaba MHC notes

indicated Plaintiff had lost weight and was exercising to combat
her anxiety (Tr. 345).

On February 4, the Psychiatrist noted a

twenty-pound weight loss; Hollis indicated that she still
experienced thoughts of hurting herself and others (Tr. 343-44).
On April 12, 2013, Plaintiff went to the Bryan Whitfield
Memorial Hospital Emergency Room, complaining of shortness of
breath and weakness for the previous four days (Tr. 356-62).
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
7Error!%Main%Document%Only.Prozac is used for the treatment of
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depression.

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Physician's Desk Reference 859-60 (52nd ed. 1998).

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On May 8, 2013, Blanton again examined Hollis, noting that
her thoughts and conversation were simple, but logical;
associations were intact and affect was flat (Tr. 363-66).

She

was depressed and cried often; Plaintiff was oriented in four
spheres, but insight was limited and judgment was only fair.

On

the WAIS-IV, Hollis obtained a verbal comprehension score of 63,
a perceptual reasoning score of 69, a working memory score of
63, a processing speed score of 68, and a full scale IQ of 60,
placing her in the mild mental range of retardation.

The Beck

Depression Inventory II placed her in the moderately depressed
range.

Blanton thought these results were valid, noting she was

functionally illiterate.

The Psychologist went on to find the

following:
Ms. Hollis has marked limitations that
seriously interfere with her ability to
perform work-related activities on a day-today basis in a regular work setting in the
following areas: understand detailed or
complex instructions carry out detailed or
complex instructions, remember detailed or
complex instructions, respond a customary
[sic] work pressure, use judgment in
detailed or complex work-related decisions,
maintain attention and concentration and
pace for appeared [sic] at least two hours.
It is my opinion that her mental retardation
is a lifelong condition and her emotional
problems have been present at this level for
at least one year. Ms. Hollis demonstrates
deficits in adaptive functioning due to her
mental retardation manifested prior to age
22 in the following areas: communication,
social interpersonal skills, work,

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functional academic skills.
(Tr. 364-65).

This concludes the relevant evidence of record.

In bringing this action, Plaintiff makes two claims:

(1)

the ALJ improperly considered the opinions and conclusions of
the examining psychologists; and (2) she meets the requirements
of Listing 12.05C (Docs. 12, 15).

As noted by Defendant, these

arguments are closely related (Doc. 13, p. 7), so the Court will
address them together.
Hollis claims that she meets the requirements for Listing
12.05C.

The introductory notes to Section 12.05 state that

“[i]ntellectual disability refers to a significantly subaverage
general intellectual functioning with deficits in adaptive
functioning 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 (2015).

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."

20 C.F.R.

Part 404, Subpart P, Appendix 1, Listing 12.05C (2015).
The evidence shows that on June 3, 2002, two months shy of
her twelfth birthday, Plaintiff took the WISC-III and scored a
verbal IQ of 70 and a performance IQ of 50 (Tr. 312-13).

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A

month later, she took the WIAT-II and scored 72 on reading, 68
on mathematics, 74 on oral language, and 57 in written language
(Tr. 312, 314-15).

During June 2008, Plaintiff took the WAIS-

III and scored a Verbal IQ of 71, a Performance IQ of 69, and a
Full Scale IQ of 67 (Tr. 272).

On May 8, 2013, Hollis took the

WAIS-IV and obtained a verbal comprehension score of 63, a
perceptual reasoning score of 69, a working memory score of 63,
a processing speed score of 68, and a full scale IQ of 60 (Tr.
366).
The Court finds that these test scores clearly fall within
the Listing requirements of Listing 12.05C.
In his determination, the ALJ found that Hollis had severe
impairments that included obesity and gastroesophageal reflux
disease (Tr. 20).

The Eleventh Circuit Court of Appeals has

held that "[a]n impairment can be considered as not severe only
if it is a slight abnormality which has such a minimal effect on
the individual that it would not be expected to interfere with
the individual's ability to work, irrespective of age,
education, or work experience."

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

920 (11th Cir. 1984); Flynn v. Heckler, 768 F.2d 1273 (11th Cir.
1985); cf. 20 C.F.R. § 404.1521(a) (2015).8

The Court of Appeals

has gone on to say that "[t]he 'severity' of a medically
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"An impairment or combination of impairments is not severe if it
does not significantly limit your physical or mental ability to do
basic work activities."

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ascertained disability must be measured in terms of its effect
upon ability to work, and not simply in terms of deviation from
purely medical standards of bodily perfection or normality."
McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).

It is

also noted that, under SSR 96-3p, “evidence about the
functionally limiting effects of an individual’s impairment(s)
must be evaluated in order to assess the effect of the
impairment(s) on the individual’s ability to do basic work
activities.”

Finally, the Court notes that the Eleventh Circuit

Court of Appeals held that the second prong of 12.05C is met
when a finding is made that a claimant had an additional severe
impairment, holding that “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 Court finds that the ALJ’s conclusion that Hollis had
additional severe impairments meets the requirement of Listing
12.05C.
The Court notes that although the regulations require that
Plaintiff demonstrate she suffered “deficits in adaptive
functioning” before she turned twenty-two, 20 C.F.R. Part 404,
Subpart P, Appendix 1, Listing 12.05 (2015), the Eleventh
Circuit Court of Appeals, in Hodges v. Barnhart, 276 F.3d 1265,
1266 (11th Cir. 2001), has held “that there is a presumption that

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mental retardation is a condition that remains constant
throughout life.”

The Hodges Court further held “that a

claimant need not present evidence that she manifested deficits
in adaptive functioning prior to the age of twenty-two, when she
presented evidence of low IQ test results after the age of
twenty-two.”

Hodges, 276 F.3d at 1266.

presumption is rebuttable.

However, the

Hodges, 276 F.3d at 1267.

The Court finds evidence in this record of testing scores
within the required range of Listing 12.05C well before Hollis
turned twenty-two years of age.

This satisfies Hodges.

The Court further notes that, following three different
evaluations, Psychologist Blanton indicated his belief that
Plaintiff was mentally retarded; his most recent evaluation
included objective testing supporting that conclusion (Tr. 30203, 308, 364-65).

The evidence of record supports a conclusion

that Plaintiff meets the requirements of Listing 12.05C.
However, that presumption is rebuttable.
In his determination, the ALJ discounted Blanton’s opinions
as “not consistent with the record as a whole nor fully
supported by objective signs, symptoms and objective findings”
(Tr. 29).

In his rejection, the ALJ stated as follows:

“I do

not in this case find any ‘smoking gun’ or ‘magic bullet’ theory
to conclusively refute beyond all possible doubt Dr. Blanton’s
apparent findings that the claimant is mentally retarded and has

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disabling mental functional restrictions” (Tr. 29).
The Court reminds the ALJ that it was not his duty to
“refute beyond all possible doubt” Blanton’s conclusions, though
he tried to do so by relying on Dr. Veits, a Non-Examiner who
reviewed less than half of the submitted medical exhibits and
less than half of all of the medical evidence in this record
(Tr. 30).

The ALJ also called Psychologist Tocci to testify at

the hearing in spite of the fact that she never personally
examined Plaintiff, giving her opinions based on her
observations at the hearing and the evidence available at that
time (Tr. 30; cf. Tr. 48-56).9

At the hearing, Tocci reviewed

various test results scored by Hollis and expressed the opinion
that she suffered from borderline intellectual functioning (Tr.
52, 54-55).
The Court notes that Tocci’s testimony failed to reference
Psychologist Blanton’s diagnoses of mental retardation, though
she did acknowledge that Hollis’s test scores fell within the
mental retardation range (Tr. 55).
The Court does not find substantial support in the ALJ’s
reliance on the conclusions of Veits and Tocci.

Veits made

conclusions based on less than half of the evidence of record.
Tocci failed to acknowledge the evidence contrary to her own
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9Blanton’s final exam would appear to be the only evidence not
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yet in the record at the time of the hearing.!
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conclusions.

The ALJ did not recognize these problems and

pointed to nothing to balance the shortcomings.

At the most

fundamental level, though, the ALJ failed to even acknowledge
that Plaintiff, at least on the face of it, satisfied the
requirements of Listing 12.05C.

These failures do not

constitute substantial evidence for the ALJ’s conclusions.
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

REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing to determine if
Plaintiff meets the requirements of Listing 12.05C.

Judgment

will be entered by separate Order.
DONE this 11th day of January, 2016.

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

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