McIntire v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The final decision of the Commissioner of Social Security denying plaintiff Danny J. McIntire's application for Social Security Disability benefits is REVERSED and the matter is remanded to the Commissioner for further proceedings consistent with this opinion. The Clerk shall enter judgment in favor of plaintiff and against the defendant. Signed by Judge Philip P Simon on 3/6/19. (nal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
DANNY J. McINTIRE,
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Plaintiff,
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vs.
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NANCY BERRYHILL, Acting Commissioner )
of the Social Security Administration,
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Defendant.
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CAUSE NO. 3:17CV910-PPS
OPINION AND ORDER
Danny McIntire is a 50-year-old man with severe impairments including a
seizure disorder and borderline intellectual functioning. McIntire appeals the denial of
his applications for disability insurance benefits and supplemental security income by
the Commissioner of the Social Security Administration. The final decision against
McIntire is embodied in a written opinion by an administrative law judge, issued after
a hearing at which McIntire and his mother testified. McIntire asks me to reverse the
ALJ’s decision and find that he was disabled as of December 20, 2013, or remand for
further proceedings by the Social Security Administration.
My review of the ALJ’s decision is deferential. I must affirm it if it is supported
by substantial evidence, meaning “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” McKinzey v. Astrue, 641 F.3d 884, 889 (7th
Cir. 2011) (citation omitted). I can’t reweigh the evidence or substitute my judgment
for that of the ALJ. Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015). But these
standards do not mean that I “will simply rubber-stamp the Commissioner’s decision
without a critical review of the evidence.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.
2000).
When considering the evidence, “an ALJ is not required to provide a complete
and written evaluation of every piece of testimony and evidence, but ‘must build a
logical bridge from the evidence to his conclusion.’” Minnick, 775 F.3d at 935, quoting
Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005). This means that an ALJ’s decision
must offer an explanation of the rationale from the evidence to his or her conclusions
“sufficient to allow us, as a reviewing court, to assess the validity of the agency’s
ultimate findings and afford [the claimant] meaningful judicial review.” Moore v.
Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014).
Discussion
McIntire raises two issues in this appeal. The first is that the ALJ failed to
consider the combined effects of McIntire’s seizure disorder and borderline intellectual
functioning. McIntire’s second argument is that the ALJ failed to explain his rejection
of some of an examining psychologist’s findings concerning McIntire’s intellectual
functioning and seizure disorder.
Combined Effects of Seizure Disorder and Cognitive Limitations
“Listings” are definitions of disorders in the Social Security regulations which, if
met or medically equaled by an applicant’s condition, support a finding that the
applicant is disabled without considering age, education, and work experience. 20
C.F.R. §414.1520(a)(4)(iii), §404.1520(d). The ALJ found that McIntire’s seizure
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disorder and borderline intellectual functioning were both severe impairments. [AR at
17.]1 As the ALJ explained, that means that each of those conditions (among others
McIntire has) “significantly limits [McIntire’s] ability to perform basic work activities.”
[Id. at 16 .] Listing 11.02 provides a complicated definition of disabling epilepsy, which
the ALJ reproduced in his decision. [AR at 18-19.] The ALJ also considered Listing
12.05, which defines intellectual disorder. [AR at 19-20.] The ALJ found that McIntire’s
impairments did not meet or medically equal the elements of either of these Listings.
[AR at 18-20.]
Although the ALJ included epilepsy/seizure disorder among McIntire’s severe
impairments, after setting out the text of Listing 11.02 on epilepsy, the decision only
makes a conclusory statement that a review of the evidence shows that McIntire does
not meet or medically equal the Listing. The ALJ’s decision does not mention, much
less discuss or analyze, McIntire’s “absence” or petit mal seizures. As McIntire points
out, his mother testified that he has petit mal seizures 4 to 5 times a week, leaving him
foggy afterward. [AR at 71.] During a mental status exam, Dr Alan Wax actually
witnessed an a “absence seizure” that left McIntire unfocused and with slurred speech.
[AR at 441.] Although the ALJ’s decision reviews Dr. Wax’s assessment of McIntire’s
borderline intellectual functioning, the ALJ omitted any reference to the seizure Dr.
Wax witnessed. [AR at 23.]
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The administrative record [AR] is found in the court record at docket entry 9, and consists of
825 pages. I cite to the pages of this AR according to the Social Security Administration’s Bates stamp
numbers rather than the court’s Electronic Case Filing page number.
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Dr. Ewa Bialikiewicz, McIntire’s family physician since 2008, referred McIntire
for an EEG in April 2008, and the results were “abnormal because of mildly excessive
diffuse slowing and decreased organization” suggesting “mild diffuse cerebral
dysfunction.” [AR at 688.] His history of seizures has apparently been significant
enough to preclude driving. [AR at 40.] In a letter dated August 19, 2014, Dr.
Bialikiewicz expressed her opinion that McIntire is “unable to hold a job due to his
medical conditions,” including “mental retardation with behavioral problems and
learning disabilities” as well as “epilepsy and other forms of convulsions.” [AR at 596.]
She has repeated these views in subsequent letters dated February 3, 2015 and
November 1, 2016. [AR at 709, 762.]
It is unclear to me why McIntire’s condition does not meet Listing 11.02(B) –
“Dyscognitive seizures....occurring at least once a week for at least 3 consecutive
months...despite adherence to prescribed treatment.” The definition of “Dyscognitive
seizure” is one “characterized by alteration of consciousness without convulsions or
loss of muscle control” during which “blank staring, change of facial expression, and
automatisms...may occur.” Listing 11.00(H)(2). What is clear to me is that the ALJ’s
decision does not demonstrate full and fair consideration of McIntire’s seizure disorder
and its impact on his ability to function in a workplace. In the absence of any
discussion of the condition, substantial evidence does not support the ALJ’s conclusion
that McIntire does not meet Listing 11.02. Barnett v. Barnhart, 381 F.3d 664, 668-70 (7th
Cir. 2004)(“an ALJ must discuss the listing by name and offer more than a perfunctory
analysis”).
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The combined impact of the seizure disorder and borderline intellectual
functioning is also not discussed in the ALJ’s decision. The ALJ determined that,
standing alone, McIntire’s intellectual functioning does not meet Listing 12.05 for
intellectual disorder. The ALJ’s analysis refers to 12.05(B) and appears to tacitly
concede that McIntire meets the IQ limitations of 12.05(B)(1)(b) and the durational
requirements of 12.05(B)(3). It appears that the ALJ ruled out the Listing because he
concluded that McIntire has only mild or moderate limitations in the four functional
areas defined in 12.05(B)(2).
McIntire would meet the Listing if his ability to “understand, remember, or
apply information” (12.05(B)(2)(a)) and his ability to “concentrate, persist, or maintain
pace” (12.05(B)(2)(c)) were found to be markedly, rather than mildly, limited. Both of
these species of intellectual function may be impacted by McIntire’s frequent seizures,
given that they interrupt his thinking and leave him with no memory during the
occurrence. Dr. Wax, who witnessed one of the seizures, described it as lasting
approximately two minutes and rendering McIntire less alert and less focused. [AR at
441.] The ALJ’s failure to consider the combined impact of McIntire’s borderline
intellectual functioning and his frequent seizures, and whether together those meet – or
equal in severity – the parameters of Listing 12.05, or for that matter Listing 12.02,
preclude my affirmance of the ALJ’s step three analysis.
The ALJ repeatedly relied on McIntire’s and his mother’s claims about his
independence with his personal care and daily chores to support a non-disabled
functional capacity [AR at 22, 23] but then, to the contrary, includes a boilerplate
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conclusion that McIntire’s “statements concerning the intensity, persistence and
limiting effects of [his] symptoms are not fully consistent with the evidence.” [AR at
24.] In other words, McIntire is to be believed when he testifies as to positive traits that
he has, but he is not to be believed when he references the negatives. Another irony of
the ALJ’s decision is that he seems to weigh against McIntire his demonstrated interest
in working and his unsuccessful efforts to find a job. [AR at 22, 23.] As the Seventh
Circuit has noted, “seeking work is not the same as actually working or being
demonstrably able to work.” Fisher v. Berryhill,
Fed.Appx.
, 2019 WL 644219, at
*6 (7th Cir. Feb. 15, 2019). See also Hill v. Colvin, 807 F.3d 862, 868 (7th Cir. 2015) (a desire
to work is not inconsistent with an inability to work due to a disability).
McIntire’s seizure disorder may or may not meet Listing 11.02, and the
combined effect of his seizure disorder and borderline intellectual functioning may or
may not meet or medically equal Listing 11.02 or Listing 11.05. But the ALJ’s decision
does not address these possibilities with a discussion relating the evidence to his
conclusions. Reversal is required because I am unable to assess the validity of the
agency’s ultimate findings and afford McIntire meaningful judicial review. Moore, 743
F.3d at 1121.
Opinion of Dr. Wax
McIntire’s second argument is that the ALJ failed to adequately consider the
opinions of Dr. Wax, who performed a psychological evaluation of McIntire on March
24, 2010. After administering the WAIS-4 battery of testing, Dr. Wax concluded that
McIntire’s “[c]ognitive functioning is at the low end of the Borderline range...with
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corresponding memory, attention, communication, and focusing.” [AR at 443.] Dr.
Wax diagnosed McIntire’s Global Assessment of Function or GAF score at 55. [AR at
443.] That GAF score reflects moderate impairment in psychological, social and
occupational functioning and/or moderate difficulty in social, occupational, or school
functioning. DSM-IV-TR, p.34. I’ve previously noted that Dr. Wax observed first-hand
a two-minute absence seizure, after which McIntire was less alert and focused, and his
speech was slurred. [AR at 441.]
Although the ALJ overlooked the seizure, he gave great weight to Dr. Wax’s
GAF score assignment and his diagnostic finding of borderline intellectual functioning.
[AR at 23.] McIntire challenges the ALJ’s determination, despite accepting these
diagnostic determinations reflecting borderline functioning, that McIntire retained the
capacity to function independently. [DE 18 at 13; AR at 23.] After citing hearing
testimony as to McIntire’s limitations in daily activities, McIntire argues that the ALJ’s
“failure to discuss the reasons he dismissed the remainder of Dr. Wax’s findings means
the ALJ’s determination of his mental residual functional capacity is not supported by
substantial evidence....” [DE 18 at 13.]
Since the ALJ did in fact accept Dr. Wax’s findings concerning McIntire’s
cognitive functioning, it is not clear to me what McIntire means by “the remainder of
Dr. Wax’s findings” other than his report concerning the seizure. I have addressed this
omission in my analysis of McIntire’s first ground for relief. Otherwise, McIntire’s
argument devolves into an attempt to reweigh the evidence in determining his
functional limitations. But the court’s role is not to “substitute its own judgment for
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that of the SSA by reevaluating the facts, or reweighing the evidence to decide whether
a claimant is in fact disabled.” Stephens v. Berryhill, 888 F.3d 323, 327 (7th Cir. 2018).
To the extent McIntire is challenging the ALJ’s hypotheticals to the vocational
expert for failure to reflect time off task due to McIntire’s seizure disorder [DE 18 at 12],
the argument is underdeveloped. McIntire presents no evidentiary basis or rationale
for any particular hypothetical as to time off task attributable to seizures. In all events,
given the remand for further consideration of the seizure disorder, alone and in
combination with borderline intellectual functioning, the Commissioner may devote
additional attention to this issue as well.
Conclusion
The ALJ’s decision offers an inadequate analysis of McIntire’s seizure disorder
relative to Listing 11.02, and of the combined effect of his seizure disorder and
borderline intellectual functioning relative to Listings 11.02 and 11.05. Without that
explanation of the “logical bridge” between the evidence and his conclusions, I cannot
say that the denial of benefits is supported by substantial evidence.
ACCORDINGLY:
The final decision of the Commissioner of Social Security denying plaintiff
Danny J. McIntire’s application for Social Security Disability benefits is REVERSED, and
the matter is remanded to the Commissioner for further proceedings consistent with this
opinion.
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The Clerk shall enter judgment in favor of plaintiff and against the defendant.
SO ORDERED.
ENTERED: March 6, 2019.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT
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