Olivarez v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on June 14, 2012. (adw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EZEQUIEL OLIVAREZ, JR.
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Plaintiff, Ezequiel Olivarez, Jr., brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and XVI
of the Social Security Act (Act). In this judicial review, the Court must determine whether there
is substantial evidence in the administrative record to support the Commissioner’s decision. See
42 U.S.C. § 405(g).
Plaintiff protectively filed his current applications for DIB and SSI on August 15, 2008,
alleging an inability to work since April 1, 2008, due to “Shoulders, back problems, pain, no
upper body strength.” (Tr. 149, 153). An administrative hearing was held on February 11, 2010,
at which Plaintiff appeared with counsel, and he and his mother testified. (Tr. 23-59).
By written decision dated July 29, 2010, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe degenerative disc disease of the cervical and lumbar spine, obesity, mood disorder not otherwise
specified (NOS), intermittent explosive disorder, and mild mental retardation. (Tr. 11).
However, after reviewing all of the evidence presented, the ALJ determined that Plaintiff’s
impairments did not meet or equal the level of severity of any impairment listed in the Listing
of Impairments found in Appendix I, Subpart P, Regulation No. 4. (Tr. 12). The ALJ found
Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except he is limited to only occasional climbing, balancing, stooping,
kneeling, crouching and crawling and is precluded from performing
overhead work. In addition, the claimant is able to perform only simple
tasks with routine supervision and can have superficial contact with coworkers and supervisors but can have no contact with the general public.
(Tr. 14). With the help of a vocational expert, the ALJ determined Plaintiff could perform work
as a bottling line attendant; conveyor line bakery worker, power screwdriver operator;
compression molding machine tender; riveting machine operator; bindery worker; poultry
eviscerator; poultry deboner; and poultry dresser. (Tr. 19).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on January 27, 2011. (Tr. 1-3). Subsequently, Plaintiff filed this action.
(Doc. 1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 5).
Both parties have filed appeal briefs, and the case is now ready for decision. (Docs. 8, 9).
This Court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F. 3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance but it is enough that a reasonable mind
would find it adequate to support the Commissioner’s decision. The ALJ’s decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.
3d 964, 966 (8th Cir. 2003). As long as there is substantial evidence in the record that supports
the Commissioner’s decision, the Court may not reverse it simply because substantial evidence
exists in the record that would have supported a contrary outcome, or because the Court would
have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In
other words, if after reviewing the record, it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the findings of the ALJ, the decision of the
ALJ must be affirmed. Young v. Apfel, 221 F. 3d 1065, 1068 (8th Cir. 2000).
It is well established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F. 3d 1211, 1217 (8th Cir. 2001); see also 42 U.S.C. §§423(d)(1)(A),
1382c(a)(3)(A). The Act defines “physical or mental impairment” as “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),
1382(3)(D). A Plaintiff must show that his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in substantial
gainful activity since filing his claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. §416.920. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
in light of his residual functional capacity (RFC). See McCoy v. Schneider, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
One of the issues that causes the Court concern relates to the hypothetical question posed
by the ALJ to the VE, and whether it fully set forth the impairments which the ALJ accepted as
true and which were supported by the record as a whole.
There are several instances in the record where Plaintiff stated that although he went
through the eighth grade of school, he was unable to read or write. In the initial Disability
Report - Field Office, dated September 3, 2008, the field officer reported that Plaintiff had
difficulty with reading, using hands, and writing. (Tr. 150). In fact, his girlfriend assisted in
answering the questions for him. (Tr. 151). In a September 8, 2008 Function Report - Adult,
Plaintiff reported that he was not good at math and read very little. (Tr. 164). At the hearing
before the ALJ on February 11, 2010, Plaintiff testified that he still had problems reading and
writing and stated “I don’t read.” (Tr. 32). He stated that he had his wife do that, and that some
of the grocery store labels he could identify, but most of the time his wife “does all the reading
and writing for me.” (Tr. 32). He further testified that he “cannot write a letter” and that he
usually took his wife to fill out a job application. (Tr. 33). He also stated that he could not use
a telephone book, and just drove from memory. (Tr. 33).
During the Mental Diagnostic Evaluation and Intellectual Assessment performed by
Stephen P. Nichols, Ph.D. on April 1, 2010, Dr. Nichols reported that when he asked Plaintiff
to describe his current concerns he replied, “My shoulders and back hurt all the time. I can’t read
or write.” (Tr. 251). Dr. Nichols diagnosed Plaintiff as follows:
Intermittent Explosive Disorder
Mild Mental Retardation
History of shoulder and back pain
GAF - 35 (current).
(Tr. 253). Dr. Nichols also reported that Plaintiff would have difficulty driving unfamiliar
routes, shopping independently, handling personal finances, and performing several acts of daily
living, and that his capacity to communicate and interact in a socially adequate manner was
impaired by his temper and suspicions of other people’s motives. (Tr. 253). Dr. Nichols further
opined that Plaintiff’s capacity to cope with, concentrate, and sustain persistence in completing
tasks would be “very poor unless the task were extremely simple and required no reading or
writing. Therefore, his capacity to complete work tasks within an acceptable time frame would
also be limited.” (Tr. 253). Dr. Nichols believed that if Plaintiff were to receive funds, it would
be best if his wife managed them on his behalf. (Tr. 253).
It is also noteworthy that Dr. Nichols completed a Medical Source Statement of Ability
to Do Work-Related Activities (Mental), on April 5, 2010. (Tr. 254-256). Dr. Nichols found
Plaintiff had marked restrictions in understanding and remembering complex instructions;
carrying out complex instructions; and the ability to make judgments on complex work-related
decisions. (Tr. 254). Dr. Nichols also noted that Plaintiff had a low IQ (1st percentile), and a
marked restriction in interacting appropriately with his supervisor and moderate and marked
restriction in interacting appropriately with co-workers, based upon Plaintiff’s diagnosis of
intermittent explosive disorder. (Tr. 255).
There is no evidence to contradict Dr. Nichols’ finding that Plaintiff is functionally
illiterate. In fact, the ALJ stated in his decision that Plaintiff was unable to follow written
instructions “because he cannot read and understand but he is able to follow spoken instructions
fairly well.” (Tr. 13). The ALJ also discussed the fact that Dr. Nichols diagnosed Plaintiff with
functional illiteracy, but that Plaintiff “should also be able to perform work involving simple
tasks with routine supervision, only superficial contact with co-workers and supervisors, and no
contact with the general public.” (Tr. 16-17). The ALJ concluded that Dr. Nichols’ assessment
of mental limitations was supportive of unskillled work involving only simple tasks and little
interaction with others, as set out in his RFC assessment. (Tr. 17).
In his hypothetical to the VE, the ALJ asked him to consider:
a hypothetical individual same age, education and past work as the
Claimant. Assume the individual is limited to light level work as defined
by the Social Security regulations, further limited to only occasional
climbing, balancing, stooping, kneeling, crouching, crawling, assume the
individual’s limited to no overhead work and from a nonexertional
standpoint the individual’s limited to simple tasks with routine
supervision, superficial contact with co-workers, supervisors, no contact
with the general public, and just from an exertional standpoint such an
individual could not perform any of the claimant’s past work.
The Court recognizes that in Hillier v. Social Security Administration, 486 F.3d 359,
365-366 (8th Cir. 2007), the court found the hypothetical question to be sufficient even though
it did not expressly state Plaintiff was functionally illiterate and had poor reading and writing
skills. However, in Hillier, the ALJ did state in his hypothetical question that “[t]he file indicates
[Hillier] has an IQ score in the 70's, ... I find her IQ to be low average to borderline.” The ALJ
in Hillier also stated that the claimant could understand, remember, and follow concrete
instructions and limited her to simple, concrete work, either unskilled or semiskilled. Id. In the
present case, in his hypothetical question to the VE, the ALJ did not make any specific reference
to the fact that Plaintiff was functionally illiterate or that his IQ was limited. Each of the jobs
the ALJ determined Plaintiff could perform (bottling line attendant, conveyor line bakery worker,
power screwdriver operator, compression molding machine tender, riveting machine operator,
bindery worker, poultry eviscerator, poultry debone, and poultry dresser) require the ability to
recognize the meaning of 2,500 (two -or three-syllable) words, and to read at the rate of 95-120
words per minute. They also require the ability to print simple sentences containing subject,
verb, and object, and series of numbers, names, and addresses. They require the individual to
add and subtract two-digit numbers, multiply and divide 10's and 100's by 2, 3, 4, and 5, to
perform the four basic arithmetic operations with coins as part of a dollar, and to perform
operations with units such as cup, pint, and quart; inch, foot, and yard; and ounce and pound.
Dictionary of Occupational Titles §§ 920.687-042, 524.687-022, 699.685-026, 556.685-022,
699.685-030, 653.686-026, 525.687-074, 525.687-062, 525.687-070.
Based upon the foregoing, the Court believes this matter should be remanded in order for
the ALJ to present a properly phrased hypothetical question to the VE, which should encompass
all of the Plaintiff’s impairments, including the practical consequences of Plaintiff’s functional
illiteracy. The Court also notes that during the time period that Plaintiff was seen by mental
health experts, he received no higher than a GAF score of 40, with the most recent being 35. The
undersigned recommends that the ALJ again consider these scores, in conjunction with
Plaintiff’s functional illiteracy.
Accordingly, the Court concludes that the ALJ’s decision is not supported by substantial
evidence, and therefore, the denial of benefits to Plaintiff should be reversed and this matter
should be remanded to the Commissioner for further consideration pursuant to sentence four of
42 U.S.C. § 405(g).
ORDERED this 14th day of June, 2012.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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