Barker v. Commissioner of Social Security
Filing
27
OPINION AND ORDER re: 1 Complaint. The decision of the Commissioner is REVERSED and this action is REMANDED for further proceedings. See Opinion and Order for details. The Clerk is directed to enter judgment accordingly, and close the file. Signed by Magistrate Judge Carol Mirando on 3/26/2016. (Mirando, Carol)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
BRANDON ANDREW BARKER,
Plaintiff,
v.
Case No: 6:15-cv-159-Orl-CM
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Brandon Andrew Barker appeals the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying his
claim for adult child’s insurance benefits and supplemental security income (“SSI”).
For the reasons discussed herein, the decision of the Commissioner is reversed, and
this matter is remanded pursuant to 42 U.S.C. § 405(g), sentence four.
I.
Issues on Appeal
Plaintiff raises three issues on appeal: (1) whether the Administrative Law
Judge (“ALJ”) properly relied upon the vocational expert (“VE”) to determine that
Plaintiff could perform other work; (2) whether the ALJ erred by failing to evaluate
whether Plaintiff’s impairment met or equaled Listing 12.05, Intellectual Disability;
and (3) whether the ALJ properly weighed the opinions of Dr. Carolyn Geis.
II.
Procedural History and Summary of the ALJ’s Decision
Plaintiff filed an application for adult child’s insurance benefits and SSI
alleging a disability that began on February 8, 2011. 1 Tr. 122, 129. The Social
Security Administration denied his claim initially and upon reconsideration. Tr.
101, 115. Plaintiff requested and received a hearing before ALJ John D. Thompson,
Jr., on December 6, 2012 during which he was represented by an attorney. Tr. 920961. Plaintiff testified at the initial hearing. Id. A supplemental hearing was held
thereafter on June 4, 2013.
Tr. 962-1011.
Plaintiff’s attorney appeared at the
supplemental hearing, but Plaintiff waived his right to be present at the hearing.
Tr. 15. At the supplemental hearing, clinical psychologist, Jeffrey Fremont, Ph.D.,
and VE Charles K. Heartsill both testified.
Tr. 962-1011.
The ALJ issued an
unfavorable decision on August 2, 2013. Tr. 15-25.
The ALJ first determined that Plaintiff had not attained the age of 22 as of
February 8, 2011, the corrected alleged onset date.
Tr. 17.
At step one of the
sequential evaluation process, the ALJ determined that Plaintiff has not engaged in
substantial gainful activity since February 8, 2011. Tr. 17. At step two, the ALJ
determined that Plaintiff has the following severe impairments: a history of gunshot
wounds with status post lung resection; a history of possible PTSD, which is poorly
supported; a history of polysubstance abuse (in remission after July 2011) and a
history of tobacco abuse. Tr. 17-18. At step three, the ALJ concluded that Plaintiff
Plaintiff’s applications state that the alleged onset date was February 8, 2010, but
Plaintiff’s attorney clarified at the hearing that the correct date is February 8, 2011. Tr. 15.
1
-2-
“does not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.” Tr. 18. The ALJ elaborated that, “[t]he severity of the [Plaintiff’s]
mental impairments, considered singly and in combination, do not meet or medically
equal the criteria of Listings 12.04, 12.06 or 12.09.” Id.
Taking into account the effects from all of Plaintiff’s impairments, the ALJ
determined that Plaintiff has the RFC to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). In
the course of a normal eight-hour workday, the [Plaintiff], with
reasonable and appropriate breaks, can sit, stand and walk for at least
six hours each. The [Plaintiff] can occasionally (up to one-third of the
workday) lift and/or carry 20 pounds and more frequently (up to twothirds of the workday) 10 pounds or less. Within the established weight
limitations, the [Plaintiff] can push and/or pull objects and operate
hand/arm or foot/pedal controls with no limitation of function. With
regard to his ability to perform postural activities, the [Plaintiff] can
occasionally climb ramps and stairs though he cannot climb ladders,
ropes or scaffolding. The [Plaintiff] can perform postural activities,
including balancing, stooping, crouching, crawling and kneeling on a
frequent basis. Within the defined weight limits, in terms of the ability
to use his upper extremities, the [Plaintiff] can reach in all directions
and handle, finger and feel with no limitations. There are no limitations
of function in the [Plaintiff’s] abilities to see, speak, or hear. From an
environmental standpoint, the [Plaintiff] is limited to working in a
temperature-controlled work environment without exposure to
temperature extremes. Mentally, the [Plaintiff] is able to undertake
simple rote and repetitive type activities in response to oral directives.
He cannot be required to do any significant amount of reading or writing
and the job should not require the meeting of a strict production goal or
quota. Additionally, the job should be one that basically has no change
in work activities performed from one day to the next so that work
demands and/or job tasks are predominately fixed in nature. With
regard to ability to interact with others, the [Plaintiff] is able to do so on
an occasional basis or less. In terms of interaction with co-workers and
supervisors, the [Plaintiff] can interact occasionally and at least
occasionally with members of the general public. The [Plaintiff] should
not be asked to do jobs requiring him to resolve and/or handle problems
-3-
of others and is better suited for jobs requiring him to work with things
rather than people.
Tr. 19-20.
The ALJ found that Plaintiff’s medically determinable impairments
reasonably could be expected to cause the alleged symptoms, but his statements
concerning the intensity, persistence and limiting effects of the symptoms are not
fully credible.
Tr. 23.
The ALJ found that Plaintiff has no past relevant work
(“PRW”) but there are many unskilled jobs that exist in the national economy that
Plaintiff can perform. Tr. 24. Thus, the ALJ found that Plaintiff is not disabled
and denied his claim. Tr. 25.
Following the ALJ’s decision, Plaintiff filed a request for review by the Appeals
Council, which was denied on December 3, 2014. Tr. 7-9. Accordingly, the August
2, 2013 decision is the final decision of the Commissioner. Plaintiff filed an appeal
in this Court on February 3, 2015. Doc. 1.
III.
Social Security Act Eligibility and Standard of Review
A claimant is entitled to disability benefits when she is unable to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to either result in death or last for a
continuous period of not less than twelve months.
42 U.S.C. §§ 416(i)(1),
423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner has established a five-step
sequential analysis for evaluating a claim of disability. See 20 C.F.R. §§ 404.1520;
416.920. The Eleventh Circuit has summarized the five steps as follows:
(1) whether the claimant is engaged in substantial gainful activity; (2)
if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether these impairments meet or equal an
-4-
impairment listed in the Listing of Impairments; (4) if not, whether the
claimant has the residual functional capacity (“RFC”) to perform his
past relevant work; and (5) if not, whether, in light of his age, education,
and work experience, the claimant can perform other work that exists
in “significant numbers in the national economy.”
Atha v. Comm'r, Soc. Sec. Admin., 616 F. App'x 931, 933 (11th Cir. 2015) (citing 20
C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm'r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion
through step four; and, at step five, the burden shifts to the Commissioner. Id.;
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this Court’s review is
limited to determining whether the ALJ applied the correct legal standards and
whether the findings are supported by substantial evidence. McRoberts v. Bowen,
841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390
(1971)).
The Commissioner’s findings of fact are conclusive if supported by
substantial evidence.
42 U.S.C. § 405(g).
Substantial evidence is “more than a
scintilla, i.e., evidence that must do more than create a suspicion of the existence of
the fact to be established, and such relevant evidence as a reasonable person would
accept as adequate to support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560
(11th Cir. 1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005) (finding that “[s]ubstantial evidence is something more than a
mere scintilla, but less than a preponderance”) (internal citation omitted).
The Eleventh Circuit recently has restated that “[i]n determining whether
substantial evidence supports a decision, we give great deference to the ALJ’s fact
findings.” Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015)
-5-
(citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir.
1996). Where the Commissioner’s decision is supported by substantial evidence, the
district court will affirm, even if the reviewer would have reached a contrary result
as finder of fact, and even if the reviewer finds that the preponderance of the evidence
is against the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). “The
district court must view the record as a whole, taking into account evidence favorable
as well as unfavorable to the decision.” Foote, 67 F.3d at 1560; see also Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize
the entire record to determine the reasonableness of the factual findings). It is the
function of the Commissioner, and not the courts, to resolve conflicts in the evidence
and to assess the credibility of the witnesses. Lacina v. Commissioner, 2015 WL
1453364, at *2 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th
Cir.1971)).
IV.
Discussion
a. Whether the ALJ properly relied upon the VE to determine that
Plaintiff could perform other work
Plaintiff argues that the ALJ’s decision that Mr. Barker is disabled is contrary
to Social Security Rulings (“SSRs”) 85-15 and 96-9p when the ALJ found that Plaintiff
had a marked impairment in adjusting to changes in routine work setting. Doc. 25
at 1. Plaintiff argues that given the substantial evidence in the record, SSRs 85-15
and 96-9p required a finding that he is disabled. Id. at 20. The Commissioner
-6-
responds that neither SSR 85-15 nor 96-9p technically apply to Plaintiff’s case; but
even if they do, they do not mandate a finding of disability. Doc. 26 at 5.
“SSRs are agency rulings ‘published under the authority of the Commissioner
of Social Security and are binding on all components of the Administration.’”
Thornton v. Comm’r of Social Security, 597 F. App’x 604, 610 (11th Cir. 2015) (quoting
Sullivan v. Zebley, 493 U.S. 521, 531 n.9 (1990)). “SSRs ‘do not have the force and
effect of the law or regulations but are to be relied upon as precedents in determining
other cases where the facts are basically the same.’”
Id. (quoting Heckler v.
Edwards, 465 U.S. 870, 873 n.3 (1984)). Although SSRs are not binding on the court,
courts accord them deference. Id. (citing Fair v. Shalala, 37 F.3d 1466, 1469 (11th
Cir. 1994)). Simply because a ruling will justify a finding of disabled does not mean
that the Commissioner must find that a claimant is disabled. Id. at 611.
Social Security Ruling 85-15 discusses the Medical Vocational Rules as a
framework for evaluating solely nonexertional impairments.
SSR 85-15.
Social
Security Ruling 83-14 discusses when a person’s exertional capacity is compromised
by nonexertional impairments.
SSR 85-15 (citing SSR 83-14).
Ruling 85-15
provides that “[t]he basic mental demands of competitive, remunerative, unskilled
work include the abilities (on a sustained basis) to understand, carry out, and
remember simple instructions; to respond appropriately to supervision, coworkers,
and usual work situations; and to deal with changes in routine work setting.” Id. A
substantial loss in any of these abilities would justify a finding of disability because
it would severely limit the potential occupational base. Id. (emphasis added).
-7-
Social Security Ruling 96-9p discusses the implications of an RFC for less than
a full range of sedentary work. SSR 96-9p. The ruling states that an RFC of less
than a full range of sedentary work reflects very serious limitations and is very rare,
but it does not necessarily equate to a finding that a person is disabled.
Id.
Additionally, a substantial loss of the ability to meet any one of several basic mental
work-related demands, as listed in SSR 85-15, will substantially erode the unskilled
sedentary occupational base and would justify a finding a disability. Id. (emphasis
added).
Plaintiff argues that given the substantial evidence in the record, SSRs 85-15
and 96-9p require a finding that he is disabled. Doc. 25 at 2. He contends that
every treating or examining source who performed a mental RFC analysis concluded
that Plaintiff has a marked limitation in his ability to deal with routine changes at
work.
Id. Plaintiff acknowledges that the ALJ appears to have considered this
evidence because the ALJ found that Plaintiff could only perform a job “that basically
has no change in work activities from one day to the next so that work demands
and/or job tasks are predominately fixed in nature.” Id., Tr. 18. Because the ALJ
made this finding, Plaintiff contends that the ALJ could not rely upon the testimony
of the VE that there were jobs in the economy that Plaintiff could perform. Doc. 25
at 21. Plaintiff references SSR 00-4p, which states, “SSA adjudicators may not rely
on evidence provided by a VE, VS, or other reliable source of occupational information
if that evidence is based on underlying assumptions or definitions that are
inconsistent with our regulatory policies or definitions.” Id. (quoting SSR 00-4p).
-8-
First, the Court finds that Plaintiff’s reliance on SSRs 85-15 and 96-9p is
misplaced because those rulings do not directly apply to this case. As noted by the
Commissioner, SSR 85-15 pertains solely to the use the Medical Vocational Rules as
a framework for evaluating non-exertional impairments. Doc. 26 at 5, SSR 85-15.
Where, as here, Plaintiff’s exertional capacity is compromised by a non-exertional
impairment, SSR 83-14, not SSR 85-15, would apply. SSR 83-14. Moreover, SSR
96-9p discusses the implications of a RFC for less than a full range of sedentary work.
SSR 96-9p. Here, the ALJ found that Plaintiff has the RFC to perform light work
with certain restrictions. Tr. 19-20. Thus, SSR 96-9p also would not apply.
Even if SSRs 85-15 and 96-9p applied to Plaintiff’s case, the Court finds the
ALJ was entitled to rely upon the testimony of the VE that there were jobs existing
in significant numbers in the economy in which Plaintiff could perform.
In
Thornton, the Eleventh Circuit addressed a similar argument. 597 F. App’x at 60911.
There, the plaintiff argued that all unskilled work requires the ability to
cooperate with co-workers; and, because the ALJ concluded that she was unable to
do this, plaintiff was disabled as a matter of law pursuant to SSRs 85-15, 96-8p and
96-9p.
Id. at 610. The plaintiff argued that the VE’s testimony conflicted with
SSRs and thus the Commissioner could not rely upon the VE’s testimony at step five.
Id. at 611. The court held that the SSRs cited do not require a finding that the
plaintiff was disabled. Id. The court stated, “the fact that a finding of disability
may be justified, does not mean that a finding of disability is required.” Id. The
court reasoned that because there was no conflict with Social Security policies, the
-9-
Commissioner was entitled to rely upon the VE’s testimony. Id. Here, there is no
conflict between the Social Security regulations and policies and the testimony of the
VE. See id. Accordingly, the Court finds that the ALJ did not err when he found
Plaintiff could perform other work.
b. Whether the ALJ erred by failing to evaluate if Plaintiff’s
impairment met or equaled Listing 12.05, Intellectual Disability
Next, Plaintiff argues that the ALJ failed to properly evaluate whether his
impairment met or equaled Listing 12.05, for intellectual disability. Doc. 25 at 21.
Plaintiff states that his counsel argued at the supplemental hearing and in a
memorandum that Plaintiff met or equaled Listing 12.05; and, while the ALJ
considered Listings 12.04, 12.06 and 12.09, he did not address Listing 12.05. Id. at
22.
Plaintiff contends that substantial evidence supports a finding of disability
under that listing. Id. The Commissioner responds that Plaintiff failed to prove his
impairment met or equaled 12.05.
Doc. 26 at 6.
Additionally, although the
Commissioner concedes that the ALJ did not expressly discuss Listing 12.05, she
contends that this omission is harmless error because the record simply does not
support a finding that Plaintiff’s impairment satisfied all of the criteria of Listing
12.05. Id.
The ALJ determined at step three that Plaintiff did not have an impairment
or combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. pt. 404, subpt. P, app. 1.
Tr. 18.
In making this
determination, the ALJ considered the criteria of Listings 12.04 (affective disorders),
12.06 (anxiety-related disorders) and 12.09 (substance addiction disorders).
- 10 -
Id.
The ALJ did not expressly consider whether Plaintiff met or equaled Listing 12.05
for intellectual disability.
The listings describe impairments that the Commissioner considers severe
enough to prevent a person from doing “any gainful activity, regardless of his or her
age, education, or work experience.” See 20 C.F.R. §§ 404.1625(a), 416.925(a). If an
adult’s impairment “meets or equals one of the listed impairments, the claimant is
conclusively presumed to be disabled. . . .” Bowen v. Yuckert, 482 U.S. 137, 141
(1987), cited in Sullivan v. Zebley, 493 U.S. 521, 532 (1990). The Eleventh Circuit
has described how the standard is met or equaled:
In order to meet a listing, the claimant must (1) have a diagnosed
condition that is included in the listings and (2) provide objective
medical reports documenting that this condition meets the specific
criteria of the applicable listing and the duration requirement. A
diagnosis alone is insufficient. [] In order to equal a listing, the medical
findings must be at least equal in severity and duration to the listed
findings.
Wilkinson on Behalf of Wilkinson, 847 F.2d at 662 (citing 20 C.F.R. § 416.925(c)-(d)).
The burden of establishing that a claimant’s impairments meet or equal a listing rests
with the claimant, who must produce specific medical findings that satisfy all the
criteria of a particular listing. 20 C.F.R. § 404.1520(a)(4).
If Plaintiff contends that an impairment meets a listing, as he does here (Doc.
25 at 22-21), he bears the burden of “present[ing] specific medical findings that meet
the various tests listed under the description of the applicable impairment.”
Wilkinson ex rel. Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987). In doing
so, Plaintiff must have a diagnosed condition that is included in the listings. Id.
- 11 -
Diagnosis of a listed impairment, however, is not enough; as the claimant must also
provide objective medical reports documenting that her impairment meets the
specific criteria of the applicable listing. Id.; accord Wilson v. Barnhart, 284 F.3d
1219, 1224 (11th Cir. 2002). Further, “[a]n impairment that manifests only some of
[the specific] criteria [of the applicable impairment], no matter how severely, does not
qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
The introductory material to the mental disorders listings clarifies Listing
12.05, stating:
The structure of the listing for intellectual disability (12.05) is different
from that of the other mental disorders listings. Listing 12.05 contains
an introductory paragraph with the diagnostic description for
intellectual disability. It also contains four sets of criteria (paragraphs
A through D). If your impairment satisfies the diagnostic description
in the introductory paragraph and any one of the four sets of criteria,
[the Commissioner] will find that your impairment meets the listing.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00A. Listing 12.05 provides, that a claimant
is disabled if he or she meets the following criteria:
12.05 Intellectual disability: intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
A. Mental incapacity evidenced by dependence upon others for personal
needs (e.g., toileting, eating, dressing, or bathing) and inability to follow
directions, such that the use of standardized measures of intellectual
functioning is precluded;
OR
- 12 -
B. A valid verbal, performance, or full scale IQ of 59 or less;
OR
C. 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;
OR
D. A valid verbal, performance, or full scale IQ of 60 through 70,
resulting in at least two of the following:
1. Marked restriction in activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or
pace; or
4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05 (emphasis added). Accordingly, in order
to meet Listing 12.05, “a claimant must at least[:] 1) have significantly subaverage
general intellectual functioning; 2) have deficits in adaptive [functioning]; and 3) have
manifested deficits in adaptive [functioning] before age 22.” Crayton v. Callahan,
120 F.3d 1217, 1219 (11th Cir. 1997); 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05.
Additionally, a claimant must meet one of the four sets of criteria found in 12.05A, B,
C, or D, in order to show that his or her impairments are severe enough to meet or
equal Listing 12.05. 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A).
In Hodges v. Barnhart, the Eleventh Circuit held that “there is a presumption
that mental retardation 2 is a condition that remains constant throughout life” and
The Court notes that currently Listing 12.05 uses “Intellectual disability” in place
of “Mental retardation,” amended on August 1, 2013. See 78 Fed. Reg. 46,499, 46,501. The
2
- 13 -
would apply to a claimant since the onset date of disability. 276 F.3d 1265, 1266
(11th Cir. 2001). In Hodges, the plaintiff acknowledged the lack of I.Q. evidence
before the age of 22, but the court agreed with the plaintiff that “I.Q. tests create a
rebuttable presumption of a fairly constant I.Q. throughout her life.” Id. at 1268.
The court also noted that “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.” Id. at 1269. However, “a
valid I.Q. score need not be conclusive of mental retardation where the I.Q. score is
inconsistent with other evidence in the record on the claimant’s daily activities and
behavior.” Id. (citing Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986)).
Here, medical records from Learning Rx indicate that on September 21, 2012,
Plaintiff had an IQ score of 55. Tr. 265. The Commissioner, however, questions the
validity of the score because the report does not contain a narrative and does not
indicate whether the score is consistent with Plaintiff’s development and his degree
of functional limitation. Doc. 26 at 12. The Commissioner states that results of
intelligence tests are only part of the overall assessment and that the narrative report
should comment on whether the scores are considered valid and consistent with the
developmental history and degree of functional limitation. Id. (citing 20 C.F.R. pt.
404, subpt. P, app. 1, § 12.00D6a). The Commissioner acknowledges, however, that
an ALJ may not be able to reject an IQ score for lack of a narrative report because
the report’s lack of comment could factor into the ALJ’s analysis. Id. (citing Frame
listing, however, has not substantively changed. Id.
- 14 -
v. Comm’r of Social Security, 596 F. App’x 908, 913 (11th Cir. 2015) (holding that
substantial evidence supported the ALJ’s conclusion that the plaintiff did not meet
Listing 12.05C when the ALJ found the plaintiff’s IQ score invalid).
In the present case, the ALJ made no findings regarding the validity of
Plaintiff’s IQ score from LearningRx. It is unclear from the record whether the ALJ
even considered the IQ score or report at all when making his findings. The ALJ
relied heavily upon the testimony of psychological expert, Dr. Jeffrey Freemont. Tr.
18. The ALJ stated that Dr. Freemont determined Plaintiff’s impairments do not
meet or medically equal the requirements for any impairment in the listing. Id.
The ALJ specifically found that Plaintiff did not meet the criteria for 12.04, 12.06 or
12.09. Id. The ALJ stated that his finding was consistent with the testimony of Dr.
Freemont.
Id.
Additionally, the ALJ commented that neither Plaintiff nor his
attorney suggested facts to establish an impairment that meets or equals any listing,
either singly or in combination. Id.
Dr. Freemont testified during the supplemental hearing that he reviewed
records dating back to 2002, including a January 29, 2013 psychological report from
Dr. J. Jeff Oatley, Ph.D., finding that Plaintiff had a verbal score of 66, a performance
score of 65, and a full scale IQ score of 60 on the Wechsler Adult Intelligence Scale,
fourth edition. Tr. 883-87, 968. Dr. Oatley noted in his report, however, that the
testing was a “significant underestimate” because Plaintiff appeared heavily sedated
and fell asleep during the examination. Tr. 886. Dr. Freemont testified that based
on the evidence in the file, Plaintiff did not meet Listings 12.04, 12.06 or 12.09. Tr.
- 15 -
973-74. He stated that those were the only three listings he was able to consider,
and no other listings were implicated. Tr. 974. Plaintiff’s counsel then asked Dr.
Freemont about the report from LearningRx indicating that Plaintiff had an IQ score
of 55 to determine whether Listing 12.05 would be implicated.
Tr. 982-84.
Dr.
Freemont conceded that he did not have the report from LearningRx and therefore
had not reviewed it. Tr. 984. The only IQ scores Dr. Freemont reviewed were from
Dr. Oatley. Id. Dr. Freemont testified that in order for him to evaluate Listing
12.05, he would have the Oatley test re-administered to Plaintiff to address the
concern about polysubstance abuse.
Id.
Dr. Freemont never made an explicit
finding as to whether Plaintiff’s impairments met or medically equaled Listing 12.05.
Id. Thus, to the extent the ALJ relied upon Dr. Freemont’s testimony that Plaintiff’s
impairments did not meet or medically equal any listing, including 12.05, that finding
is unsupported by substantial evidence because Dr. Freemont never expressly made
a finding as to Listing 12.05.
The Commissioner asks the Court to hold that the ALJ implicitly found that
Plaintiff’s impairments did not meet Listing 12.05 because substantial evidence
supports that finding. Doc. 26 at 13-14. The Court acknowledges that an ALJ may
implicitly find that a claimant does not meet a listing without committing reversible
error. Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986); Keane v. Comm’r
of Soc. Sec., 205 F. App’x 748, 750 (11th Cir. 2006). Under the circumstances of this
case, however, the Court finds that the ALJ’s decision demonstrates no such implicit
finding. The ALJ failed to even address Plaintiff’s IQ scores, and the ALJ made no
- 16 -
findings regarding whether Plaintiff suffered from deficits in adaptive functioning. 3
Moreover, to the extent the ALJ’s conclusion is based upon the testimony of Dr.
Freemont, Dr. Freemont did not make any explicit findings regarding whether
Plaintiff meets Listing 12.05.
Because it is unclear from the record what the ALJ relied upon when
determining that Plaintiff’s impairments failed to meet any listing and whether the
ALJ considered Listing 12.05, the decision is not supported by substantial evidence.
Thus, the Court finds that remand is appropriate for the ALJ to consider whether
Plaintiff meets Listing 12.05. The Court will not assume that the ALJ found that
Plaintiff did or did not meet the requirements of the listing. See Owens v. Heckler,
748 F.2d 1511, 1516 (11th Cir. 1984) (the court will not “affirm simply because some
rationale might have supported the ALJ’s conclusion.”). In similar situations, courts
in this circuit, including this Court, have remanded matters to the Commissioner for
further proceedings. See Johnson v. Colvin, Case No. 3:12-cv-17-J-JRK, 2013 WL
1175258, at *5-6 (M.D. Fla. Mar. 21, 2013) (remanding, in part, because it was not
entirely clear whether the ALJ found claimant did not meet Listing 12.05C because
of a lack of deficits in adaptive functioning or a lack of additional impairments
imposing additional significant work-related functional limitations); Carroll v.
Astrue, 2009 WL 1708073, at *1-2 (M.D. Ala. June 17, 2009) (remanding, in part,
The SSA’s Program Operations Manual System (“POMS”) states that the phrase
“adaptive functioning” refers to “the individual’s progress in acquiring mental, academic,
social and personal skills as compared with other unimpaired individuals of his/her same
age.” POMS DI 24515.056(D)(2). See also Talavera v. Astrue, 697 F.3d 145, 153 (2d Cir.
2012) (explaining that the phrase “adaptive functioning” in Listing 12.05 refers to an
individual’s ability to cope with the challenges of ordinary life).
3
- 17 -
because the ALJ did not explicitly address whether claimant met the requirements
of the introductory paragraph of Listing 12.05); Gorden v. Colvin, Case No. 2:13-cv369-SPC-CM (M.D. Fla. Aug. 18, 2014) (same). Likewise, the Court will do so here.
c. Whether the ALJ properly weighed the opinions of Dr. Carolyn Geis
Plaintiff alleges that the ALJ erred by giving little weight to Dr. Carolyn Geis,
Plaintiff’s treating neurologist, and failed to articulate good cause for according such
weight.
Doc. 25 at 23.
The Commissioner responds that the ALJ properly
evaluated the opinions of Dr. Geis because, although Dr. Geis provided an opinion on
Plaintiff’s mental limitations, the ALJ noted that Dr. Geis is a neurologist, not a
mental health professional. Doc. 26 at 16.
Under the regulations, the ALJ must weigh any medical opinion based on the
treating relationship with the claimant, the length of the treatment relationship, the
evidence the medical source presents to support his opinion, how consistent the
opinion is with the record as a whole, the specialty of the medical source and other
factors. See 20 C.F.R. § 404.1527(c)(2)-(6). Opinions of treating sources usually are
given more weight because treating physicians are the most likely to be able to offer
detailed opinions of the claimant’s impairments as they progressed over time and
“may bring a unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual examinations . . . .”
20 C.F.R. § 404.1527(c)(2). If the opinion of a treating physician as to the nature and
severity of a claimant’s impairment is supported by acceptable medical evidence and
is not inconsistent with other substantial evidence of record, the treating physician’s
- 18 -
opinion is entitled to controlling weight. Id. By contrast, “because nonexamining
sources have no examining or treating relationship with [a plaintiff], the weight [the
Social Security Administration] will give their opinions will depend on the degree to
which they provide supporting explanations.”
20 C.F.R. § 416.927(c)(3).
Any
medical source opinion may be discounted when the opinion is not well-supported by
medically acceptable clinical and laboratory diagnostic techniques or if the opinion is
inconsistent with the record as a whole. SSR 96-2p; Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1159-60 (11th Cir. 2004).
Dr. Geis initially treated Plaintiff on February 22, 2011 after he was admitted
to Halifax Medical Center for gunshot wounds to the chest. Tr. 455-56. Dr. Geis
treated Plaintiff on an ongoing basis through at least May 20, 2013. Tr. 918-19. On
October 9, 2012, Dr. Geis completed a mental RFC assessment and concluded that
Plaintiff had marked limitations in his ability to remember locations and work-like
procedures, understand and remember detailed instructions, carry out detailed
instructions, maintain attention and concentration for extended periods, sustain an
ordinary routine without special supervision, respond appropriately to changes in the
work setting, and travel in unfamiliar places or use public transportation. Tr. 83435.
The ALJ gave Dr. Geis’ opinions in her RFC assessment little weight because
she is a neurologist and not a mental health specialist. Tr. 22. He also found that
the RFC was not supported by Dr. Geis’ progress notes or by the other chart notations
offered by Dr. Kathryn Fraser, Plaintiff’s treating mental health provider. Id.
- 19 -
One of the factors an ALJ can consider when determining the weight to provide
to a medical opinion is the specialty of the doctor. See 20 C.F.R. § 404.1527(c)(2)-(6).
Here, the ALJ considered that Dr. Geis was a neurologist rather than a mental health
specialist when he reduced the weight of her opinion. Tr. 22. Plaintiff argues that
the ALJ erred when he concluded that Dr. Geis is a neurologist, when in fact she is a
physical medicine and rehabilitation physician, specializing in brain injury medicine.
Doc. 25 at 23.
The Commissioner responds, and the Court agrees, that the
misidentification by the ALJ is harmless error because the fact remains that Dr. Geis
is not a mental health professional.
Doc. 26 at 16.
Additionally, on numerous
occasions, Dr. Geis recommended that Plaintiff follow up with Dr. Fraser, a mental
health provider, further evidencing that Dr. Geis is not a mental health provider.
Tr. 437, 658, 750.
The ALJ also reduced Dr. Geis’ opinions because they were not consistent with
her progress notes or the records of Dr. Fraser. Tr. 22. Dr. Geis’ treatment notes
regarding Plaintiff’s mental status indicate that Plaintiff was able to immediately
recall three out of three items, two out of three items were recalled after a delay, and
three out of three were recalled after a delay with cues. Tr. 751. Additionally, both
Dr. Geis and Dr. Fraser indicated that Plaintiff expressed an interest in returning to
school. Tr. 800, 823. The RFC provided by Dr. Geis was inconsistent with these
reports. Thus, the ALJ properly reduced the weight of Dr. Geis’ opinions. Because
the Court, however, finds that remand is appropriate, the Court also will direct the
ALJ to reevaluate the opinions and weight accorded to Dr. Geis.
- 20 -
V.
Conclusion
Upon review of the record, the undersigned concludes that the ALJ failed to
apply the proper legal standards, and thus his determination that the Plaintiff is not
disabled is not supported by substantial evidence.
ACCORDINGLY, it is hereby
ORDERED:
1.
The decision of the Commissioner is REVERSED and this matter is
REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g),
for the Commissioner to:
A. determine based upon all the evidence whether Plaintiff meets the
requirements of disability under 20 C.F.R. pt. 404, subpt. P, app. 1,
Listing 12.05;
B. reevaluate the weight accorded to Dr. Geis;
C. make any other determinations consistent with this Opinion and
Order, or in the interests of justice.
2.
The Clerk of Court is directed to enter judgment in favor Plaintiff,
Brandon Andrew Barker, and close the file.
DONE and ORDERED in Fort Myers, Florida on this 26th day of March, 2016.
Copies:
Counsel of record
- 21 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?