WALTON v. COLVIN

Filing 30

ENTRY - The Court finds that the ALJ's denial of Mr. Walton's claim for child-disability benefits is erroneous, not supported by substantial evidence, and the result of legal error. Signed by Magistrate Judge Denise K. LaRue on 3/22/2017.(CBU)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA,
INDIANAPOLIS DIVISION

STEVEN M. WALTON,
Plaintiff,
CAUSE NO. 1:15-cv-1736-DKL-JMS

vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

ENTRY
Plaintiff Steven M. Walton applied for disability benefits under the Social Security
Act. The defendant Commissioner of Social Security denied his applications and Mr.
Walton filed this suit for judicial review of those denials. The parties have briefed their
positions and the matter is ready for decision. Upon the parties’ consents, the assigned
district judge referred this Cause to this magistrate judge to conduct all proceedings and
to order entry of a final judgment. Notice, Consent, and Reference of a Civil Action to a
Magistrate Judge [doc. 15]. This Entry explains the Court’s reasons for ordering the
separate judgment.
Standards
Judicial review of the Commissioner’s factual findings is deferential: courts must
affirm if her findings are supported by substantial evidence in the record. 42 U.S.C. '
405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v. Barnhart, 345 F.3d
467, 470 (7th Cir. 2003). Substantial evidence is more than a scintilla, but less than a

1

preponderance, of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). If
the evidence is sufficient for a reasonable person to conclude that it adequately supports
the Commissioner’s decision, then it is substantial evidence. Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758
(7th Cir. 2004). This limited scope of judicial review derives from the principle that
Congress has designated the Commissioner, not the courts, to make disability
determinations:
In reviewing the decision of the ALJ [administrative law judge], we cannot
engage in our own analysis of whether [the claimant] is severely impaired
as defined by the SSA regulations. Nor may we reweigh evidence, resolve
conflicts in the record, decide questions of credibility, or, in general,
substitute our own judgment for that of the Commissioner. Our task is
limited to determining whether the ALJ’s factual findings are supported by
substantial evidence.
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758. While
review of the Commissioner=s factual findings is deferential, review of her legal
conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
The Social Security Act defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically-determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. §
423(d)(1)(A); 20 C.F.R. § 404.1505(a). 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. ' 416.905(a). A
person will be determined to be disabled only if his impairments “are of such severity
2

that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A) and
1382c(a)(3)(B). 20 C.F.R. §§ 404.1505, 404.1566, 416.905, and 416.966. The combined effect
of all of an applicant’s impairments shall be considered throughout the disability
determination process. 42 U.S.C. '§ 423(d)(2)(B) and 1382c(a)(3)(G). 20 C.F.R. §§ 404.1523
and 416.923.
The Social Security Administration has implemented these statutory standards
in part by prescribing a “five-step sequential evaluation process” for determining
disability.

If disability status can be determined at any step in the sequence, an

application will not be reviewed further. At the first step, if the applicant is currently
engaged in substantial gainful activity, then he is not disabled. At the second step, if the
applicant’s impairments are not severe, then he is not disabled. A severe impairment is
one that “significantly limits [a claimant’s] physical or mental ability to do basic work
activities.” Third, if the applicant’s impairments, either singly or in combination, meet or
medically equal the criteria of any of the conditions included in the Listing of
Impairments, 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, Part A, then the applicant is deemed
disabled. The Listing of Impairments are medical conditions defined by criteria that the
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Social Security Administration has pre-determined are disabling. 20 C.F.R. ' 404.1525. If
the applicant’s impairments do not satisfy the criteria of a listing, then her residual
functional capacity (“RFC”) will be determined for the purposes of the next two steps.
RFC is an applicant’s ability to do work on a regular and continuing basis despite his
impairment-related physical and mental limitations and is categorized as sedentary,
light, medium, or heavy, together with any additional non-exertional restrictions. At the
fourth step, if the applicant has the RFC to perform his past relevant work, then he is not
disabled. Fifth, considering the applicant’s age, work experience, and education (which
are not considered at step four), and his RFC, the Commissioner determines if he can
perform any other work that exists in significant numbers in the national economy. 42
U.S.C. ' 416.920(a)
The burden rests on the applicant to prove satisfaction of steps one through
four. The burden then shifts to the Commissioner at step five to establish that there are
jobs that the applicant can perform in the national economy. Young v. Barnhart, 362 F.3d
995, 1000 (7th Cir. 2004). If an applicant has only exertional limitations that allow her to
perform the full range of work at her assigned RFC level, then the Medical-Vocational
Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the “grids”), may be used at step
five to arrive at a disability determination.

The grids are tables that correlate an

applicant’s age, work experience, education, and RFC with predetermined findings of
disabled or not-disabled. If an applicant has non-exertional limitations or exertional
4

limitations that limit the full range of employment opportunities at his assigned work
level, then the grids may not be used to determine disability at that level. Instead, a
vocational expert must testify regarding the numbers of jobs existing in the economy for
a person with the applicant’s particular vocational and medical characteristics. Lee v.
Sullivan, 988 F.2d 789, 793 (7th Cir. 1993). The grids result, however, may be used as an
advisory guideline in such cases.
An application for benefits, together with any evidence submitted by the
applicant and obtained by the agency, undergoes initial review by a state-agency
disability examiner and a physician or other medical specialist. If the application is
denied, the applicant may request reconsideration review, which is conducted by
different disability and medical experts. If denied again, the applicant may request a
hearing before an administrative law judge (“ALJ”).1 An applicant who is dissatisfied
with the decision of the ALJ may request the SSA’s Appeals Council to review the
decision. If the Appeals Council either affirms or declines to review the decision, then
the applicant may file an action in district court for judicial review. 42 U.S.C. ' 405(g). If
the Appeals Council declines to review a decision, then the decision of the ALJ becomes

1 By agreement with the Social Security Administration, initial and reconsideration reviews in Indiana

are performed by an agency of state government, the Disability Determination Bureau, a division of the
Indiana Family and Social Services Administration. 20 C.F.R. Part 404, Subpart Q (' 404.1601, et seq.).
Hearings before ALJs and subsequent proceedings are conducted by personnel of the federal Social
Security Administration.

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the final decision of the Commissioner for judicial review.
As they relate to this case, disability benefits are available through three
programs under the Social Security Act.

Disability-insurance benefits (“DIB”) are

available to individuals who have become “insured” by working forty quarters and
paying Social Security taxes. Supplemental-security income disability benefits (“SSI”) are
available to individuals based on financial need. Finally, an unmarried dependent child
over the age of eighteen years is entitled to receive child’s disability insurance benefits
based on the earnings record of an insured parent who is entitled to disability benefits if
the child has a disability that began before he became twenty-two years old. 42 U.S.C. §
402(d)(1); 20 C.F.R. § 404.350.
Background
Mr. Walton’s claims have taken a circuitous route to this point. On September 14,
2007 (protective filing date of August 24, 2007),2 he filed two applications: one for DIB,
based on his own earnings record, and one for SSI benefits. (R. 235, 241.) On January 7,
2008, he filed a third application, this one for child’s insurance disability benefits based
on his parents’ earnings records. (R. 392.)3 For his DIB claim, Mr. Walton declared an

A protective filing date is established on the date that the Social Security Administration either
receives a written statement of intent to file for DIB or SSI benefits or receives, at specific locations, an oral
inquiry about SSI benefits. Social Security Administration, Program Operations Manual System, GN
00204.010 Protective Filing (effective July 23, 2015) (available at https://secure.ssa.gov/poms.nsf/lnx/
02002040.10).
2

The citation is to a receipt or a notification of confirmation number for his application. No other
documents related to this application appear to be included in the record.
3

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onset-of-disability date of December 30 or 31, 1990. (R. 241, 309, 342.) For his SSI claim,
he declared on onset date of January 1, 1987. (R. 235.) Because his child-disability
application is not in the record, the onset date that it might have contained is unknown.
However, as noted above, eligibility for child benefits requires that the child’s disability
began before his twenty-second birthday. Mr. Walton became twenty-two years old on
May 12, 1984.
During the first hearing before an ALJ on his claims, Mr. Walton amended his
onset date for his claims to January 10, 2008, and he and his counsel signed a motion to
that effect. (R. 105-06, 274.) That date was chosen because it was the date of the first
diagnosis in the record (as it was constituted at the time) by an acceptable medical source
― a psychiatrist or psychologist ― of a serious mental impairment 4 and because, at the
time, earlier records of similar diagnoses rendered in the mid-1980s, when Mr. Walton
was incarcerated, could not be obtained and were believed destroyed. (R. 103-13, 12528.) The ALJ indicated that, if the missing prison medical records were found and
submitted before she issued her decision, then she would consider them and not hold Mr.
Walton to his amended date of onset and, if the records were submitted after her decision
was issued, then he could appeal (presumably to the Appeals Council).

(R. 107.)

Apparently, Mr. Walton did not submit additional medical records before the ALJ issued
her decision.

4 That diagnosis

was rendered by psychiatrist Jerry Fletcher, M.D. After examination, he diagnosed
Mr. Walton with schizoaffective disorder, chronic, with residual symptoms. (R. 148.)

7

The ALJ issued her decision on February 25, 2010. Initially, she dismissed Mr.
Walton’s DIB and child-disability claims because the amended onset date of January 10,
2008 rendered both claims moot: that date was long after both May 12, 1984, Mr. Walton’s
twenty-second birthday, and March 31, 1998, the last day that he was insured for DIB.
(R. 145.) Proceeding on only Mr. Walton’s claim for SSI benefits, the ALJ found, at step
two of the sequential evaluation process, that Mr. Walton has the severe impairments of
type II diabetes, obesity, and schizoaffective disorder, bipolar type. At step three, she
found that his impairments meet the criteria of listing 12.03 (schizophrenic, paranoid, and
other psychotic disorders). (R. 147.) She found that the paragraph A severity criteria of
the listing are satisfied because Mr. Walton has medically documented persistence, either
continuous or intermittent, of delusions or hallucinations and she found that the criteria
of paragraph B are satisfied because his impairments result in marked restrictions in
activities of daily living and marked difficulties in maintaining social functioning.
Because the listing criteria are satisfied, she found that Mr. Walton was disabled on his
amended onset date of January 10, 2008. (R. 148.)
On April 28, 2010, about two months after the ALJ’s decision was issued, Mr.
Walton submitted a request to the ALJ to reopen the hearing and a request for the
Appeals Council to review the ALJ’s decision. (R. 215, 217.) His letter to the ALJ and his
letter accompanying his request for review explained that, after the hearing, he obtained
his prison psychiatric records for the period from November 1986 to November 1987, (R.

8

554-71),5 and that these records proved that he met or equaled the criteria for listing
12.05C (“mental retardation,” then; “intellectual disability,” now) before his date last
insured for DIB, on his own record, March 31, 1998. (R. 215, 218.)
In both of his letters, Mr. Walton specifically described three of the prison medical
records. First, the report of a psychiatrist’s evaluation of Mr. Walton on November 7,
1986 noted that, in 1984 (no further identification of the date), Mr. Walton’s IQ was tested
at the Reception Diagnostic Center6 and measured sixty-six, with a reading level at grade
3.5 and a math level at grade 2.3 grade. (R. 570.) The psychiatrist diagnosed him with
acute paranoid disorder and mild mental retardation, prescribed Thorazine (which Mr.
Walton refused), and recommended an emergency transfer to a psychology unit at
another facility for treatment. (R. 570-71.) Mr. Walton was transferred the same day.
Second, in the report of his psychological evaluation of Mr. Walton on November 18 and
19, 1986, a clinical psychologist at the transferee psychology unit diagnosed Mr. Walton
with paranoid personality disorder and found it possible that he would decompensate
into paranoid disorder and likely that he would reintegrate into anti-social personality.
(R. 559.) Third, in the report of his mental-status evaluation of Mr. Walton before his

When he received the records, in relation to the ALJ’s decision, is not reflected in the record or
the briefs.
5

The Reception Diagnostic Center “is a maximum security intake facility for adult males sentenced
to the [Indiana Department of Correction]. All adult males, including male offenders under 18 who were
waived to adult court, are received at RDC, classified and transferred to long-term facilities.”
(www.in.gov/idoc/3180.htm) “Intake facilities [of which there are two in Indiana: the RDC, for men, and
the Rockville Correctional Facility, for women] are designated to received newly committed adult
offenders. During the intake process each offender is evaluated through interviews, reports and diagnostic
tests.
This evaluation forms the basis of the offenders’ facility and program assignment.”
(www.in.gov/idoc/2332.htm)
6

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release, a facility clinical psychologist wrote that Mr. Walton “seems at times to be
borderline delusional in his relationship with others and at the very least confused about
them.” (R. 555.) This psychologist found that Mr. Walton’s attention span was impaired,
he blames others for his problems, he seems to be highly dependent on others, and he
often assumes that he knows what others are thinking. He also found that Mr. Walton’s
orientation was good, his memory was efficient, his stream of thought was undisturbed,
he has the ability to manage his daily living activities, and he has the ability to make
reasonable decisions. Id.
In his letter to the ALJ seeking reopening of her decision, Mr. Walton also stated
that his child-disability claim required proof of disability onset before age twenty-two, or
by March 12, 1984, while his DIB claim required an onset date before his date last insured,
or March 31, 1998. (R. 215.) But the letter stated that, because the newly obtained prison
medical records show that his disability began before the DIB deadline, he is entitled to
receive “Social Security Disability Insurance benefits,” (R. 215, 216); he did not assert that
the records show that Mr. Walton’s disability began before he reached twenty-two years
of age and, therefore, that he also is entitled to child-disability benefits. Mr. Walton’s
letter accompanying his request for Appeals Council review did not mention childdisability benefits or the March 12, 1984 eligibility date; it argued only that the new
evidence showed that his disability began before his eligibility for DIB expired on March
31, 1998. (R. 218-19.)

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The ALJ did not reopen her decision but the Appeals Council granted Mr.
Walton’s request for review. It affirmed the ALJ’s finding that he was disabled as of
January 10, 2008, but vacated the decision with respect to the issue of disability before
that date. The Council recognized that Mr. Walton had amended his alleged date of onset
only because the prison medical records before that date had not been obtained. It found
that the newly obtained prison medical records from 1986 and 1987 showed mental issues
existing before Mr. Walton’s date last insured of March 31, 1998, and, therefore, it decided
to reopen Mr. Walton’s claims. The Council instructed the ALJ on remand to consider
new and material evidence in order to determine the severity of Mr. Walton’s
impairments prior to January 10, 2008 and to issue a new decision with respect to
disability before that date. The Council did not specifically mention DIB, SSI, or childdisability benefits or restrict the ALJ on remand to an earliest possible onset date or to
any closed period of consideration.
A new hearing was held on remand and a different ALJ issued two decisions: one
on DIB and SSI benefits and the other on child-disability benefits. (R. 12 (DIB, SSI), 23
(child), 30 (child).)7 In the DIB/SSI decision, the ALJ found that Mr. Walton met the
insured-status requirements for DIB benefits from October 1, 1997, to March 31, 1998. At
step two, he found that Mr. Walton has the severe impairment of borderline personality
disorder. He found that Mr. Walton’s impairments did not meet or equal any of the

Two decisions on child-disability benefits were issued. They appear to be identical and the
parties do not assert any material differences between them.
7

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listings. He found that Mr. Walton has the RFC to perform a full range of work at all
exertional levels with the added nonexertional restrictions to simple and repetitive work,
no reading or mathematics, and no more than superficial interaction with the general
public, co-workers, or supervisors. The ALJ found that Mr. Walton has “some decreased
intellectual functioning and the record notes some paranoia and antisocial features,
though not during the period [when] he meets the insured status requirements.” (R. 17.)
He imposed the three nonexertional RFC restrictions to accommodate his “borderline
intellectual functioning and possible paranoia.” Id. He found that there was “a lack of
evidence during the pertinent period.” Id.
The ALJ briefly discussed the prison medical records but he found as follows:
While the claimant had a diagnosis of a paranoid personality disorder in
1986, there is no evidence that this continued to or through the period
during which he was insured for benefits. This was of acute onset and the
record indicates his symptoms improved, he was going to activities and
socializing with some peers. he was subsequently released from prison and
was able to engage in work activity, albeit intermittent and minimal for the
most part.
There is no source document for the 66 IQ referenced in the record. There
is no documentation in the record of deficits in adaptive functioning during
the developmental period.
(R. 16.) The last paragraph refers to the definitional criteria for satisfying listing 12.05,
mental retardation:

“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.” 20 C.F.R.
Part 404, Subpart P, Appendix 1, Part A, § 12.05. Regarding the prison medical records,
12

the ALJ wrote: “The records are from a remote period, twenty three years prior to the
established onset, and there is no further treatment documented in the record until 2008.
I have considered the Westville Correctional Center records and find they have no
relevance to the later evidence of record.” (R. 18.)
At step four, the ALJ found that Mr. Walton had no relevant past work. At step
five, the ALJ found that there were a significant number of jobs in the national economy
that he could perform with his RFC and vocational characteristics. He concluded that
Mr. Walton was not not under a disability during his insured period from October 1, 1997
through March 31, 1998 and that he was not disabled for SSI purposes before January 10,
2008, the onset date determined by the first ALJ.
In his child-disability decision, the ALJ acknowledged that Mr. Walton alleged that
his disability commenced before he was twenty-two years old. At step one, he found
that, because Mr. Walton had demonstrated the ability to engage in substantial gainful
activity after he attained age twenty-two years ― earning $1,386.58 in 1988 and $11,776.03
in 1989, from landscape work ― his claim must be denied. (R. 25.)
The Appeals Council denied Mr. Walton’s request to review the decision, (R. 1),8
and he filed suit for judicial review, Walton v. Astrue, Cause no. 1:12-cv-688-JMS-TAB
(“Walton”) (complaint filed May 21, 2012). After Mr. Walton had filed his opening brief,

Mr. Walton requested review by letter and form dated October 26, 2010, four days after the ALJ’s
decisions. (R. 5-8.) Apparently, the Social Security Administration did not docket the request and Mr.
Walton was resent his request in February 2012. (R. 4.) The Appeals Council issued its denial in April
2012. (R. 1.)
8

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he and the Commissioner reached an agreement to remand the case for reconsideration
of specific matters. Walton, Stipulation to Remand [doc. 21] (Nov. 29, 2012). The Court
ordered remand and entered judgment. Id., Order [doc. 22], Judgment [doc. 23]; (R. 671).
Adhering to the parties’ agreement and agreed form, the Court ordered the
Commissioner to take the following actions on remand:
1. “re-evaluate psychiatric medical records dated November 12, 1986 through
November 16, 1987, submitted subsequent to Plaintiff’s administrative hearing, to
consider whether a disability onset date earlier than January 10, 2008 is possible under
Social Security Ruling (SSR) 83-20,”
2. “re-assess the credibility of Plaintiff’s subjective symptomatic complaints in
accordance with SSR 96-7p,”
3. “provide Plaintiff with the opportunity for a new administrative hearing,”
4. “obtain medical expert testimony to assist in inferring a date of disability onset,
if warranted under SSR 83-20, ” and
5. “issue a new decision as to the period from October 1, 1997 [the date that Mr.
Walton first became insured for DIB on his own account] through January 9, 2008, based
on the updated record.”
(R. 671.) The stipulation and order do not mention separate determinations for DIB, SSI,
and child-disability benefits. Instead, the Court ordered the Commissioner to determine
whether an onset date earlier than January 10, 2008 can be determined, to obtain medical
14

expert testimony on inferring an onset date, and to make a “new decision” for the period
from Mr. Walton’s first date of eligibility for DIB and his previously amended onset date
(which does not include the requisite date for child-disability benefits).
The same ALJ who held the second hearing held a third hearing on remand. On
July 23, 2013, he issued a decision on Mr. Walton’s DIB and child-disability claims. He
wrote that his decision addressed “the claimant’s Title II [DIB] disability claim on his own
earnings as well [as] his Title II claims for child’s benefits based on his parents’ records.
The claimant is alleging disability since October 1, 1997. Per the remand order, this
decision reflects the period of time from October 1, 1997 to January 9, 2008.” (R. 684
(original emphasis).) The ALJ reiterated that Mr. Walton’s date last insured was March
31, 1998, and that, for child benefits, disability must be established before he attained the
age of twenty-two. However, the ALJ mistakenly stated that Mr. Walton became twentytwo on October 1, 1997, the first day of the closed period that he was examining, (R. 686),
instead of May 12, 1984.
At step two, the ALJ found that Mr. Walton has the severe impairments of
borderline personality disorder and paranoid personality disorder. At step three, he
found that Mr. Walton impairments meet the criteria of listing 12.05D, mental
retardation. He found that the mental retardation manifested itself before age 22, based
on his tested IQ between 60 and 70, and that his impairments cause marked restrictions
in activities of daily living and marked difficulties in maintaining social functioning, (R.
687), which findings satisfy the criteria of listing 12.05D.
15

The ALJ discussed only the

1986-1987 prison medical “treatment records,” (R. 687), and cited them as the only
evidence supporting his conclusion that listing 12.05D was met:
The treatment records above confirm that claimant had mental retardation
which initially manifested before age 22 with a valid verbal, performance
or full scale IQ score between 60 and 70. The treatment notes further
confirm that the claimant’s impairments caused at least two “marked”
limitation or one “marked” limitation and “repeated” episodes of
decompensation, each of extended duration, the [sic] criteria of listing 12.05
are satisfied during the period of October 1, 1997 through January 9, 2008.
(R. 687.) The ALJ concluded that Mr. Walton is entitled to DIB, SSI, and child-disability
benefits during the period October 1, 1997, to January 9, 2008. (R. 688.)
About one month later, on August 26, 2013, the ALJ issued a second decision
amending his first decision because the first decision had “inadvertently” stated that Mr.
Walton was entitled to child-disability benefits. Noting that a child’s disability must have
begun before attaining age twenty-two years, the ALJ found that he was not, in fact,
entitled to child benefits: “[a]s the claimant was found to be disabled from October 1,
1997 to January 9, 2008, he is not entitled to Child Disability Benefits.” (R. 699.)
Mr. Walton sought review by the Appeals Council but it found “no reason under
our rules to assume jurisdiction.” (R. 598.) However, in its decision, the Council declared
that the ALJ properly denied child-disability benefits because Mr. Walton’s disability had
to have been established prior to May 13, 1984, and the ALJ found only that he was
disabled during the “closed period” of October 1, 1997 to January 9, 2008. (R. 598-99.) It
stated that the ALJ had “fully considered and evaluated the evidence and reached the
appropriate conclusion on the issues regarding the finding of disability,” and that his
16

amended decision complied with both the district-court and Appeals-Council remand
orders. (R. 599.) Mr. Walton then filed this suit for judicial review.
Discussion
Mr. Walton makes one argument: the record evidence shows that he satisfied
listing 12.05C before his twenty-second birthday, May 13, 1984, and the ALJ’s contrary
finding, that he is not eligible for child-disability benefits because he was not found
disabled until the “closed period” beginning October 1, 1997, is not supported by
substantial evidence and is the result of legal error. The Commissioner counters that the
1986-87 prison medical evidence of “a mental impairment imposing an additional and
significant work-related limitation of function,” which is required, in addition to an IQ
score of 60 through 70, to meet listing 12.05C, “was dated after his attainment of age 22 in
May 1984.” Defendant’s Memorandum in Support of the Commissioner’s Decision [doc. 26]
(“Response”), at 8. Although she concedes that the ALJ found that “the prison mental
health records from 1986 and 1987 indicated that the 12.05D criteria were satisfied, in that
the impairments caused at least two marked limitations in areas of functioning,” she
argues that “those records do not establish that the criteria were satisfied before Plaintiff
attained age 22 in May 1984.” Id., at 8-9. She also argues that Mr. Walton ignores the
medical expert’s testimony at the third hearing that the prison records showed marked
limitations in social functioning and maintaining concentration, persistence, or pace for
only the “closed period,” not before Mr. Walton’s twenty-second birthday. Id., at 9.

17

The court concludes that the ALJ’s finding that Mr. Walton is not entitled to childdisability benefits is erroneous. In his first decision, the ALJ found that the 1986-87 prison
medical records “confirm” that Mr. Walton had mental retardation which initially
manifested before age 22 and those records “further confirm” that his impairments
caused at least two marked limitations of function (which meant that the criteria of listing
12.05D were satisfied) during the period of October 1, 1997, through January 9, 2008. (R.
687.)

Thus, the ALJ found that the prison medical records prove that the initial

definitional criteria of the 12.00 listings for mental retardation ― significantly sub-average
general intellectual functioning, with adaptive-functioning deficits initially manifested
before age twenty-two ― are satisfied. It is only the listings’ severity criteria and the
disability onset date that are at issue.
The ALJ also found that the prison medical records show: (1) a psychiatric
evaluation noted that Mr. Walton expressed paranoid delusions and seemed genuinely
afraid; (2) he was diagnosed with acute paranoid disorder; and (3) a mental status
evaluation “confirm[ed]” that he was borderline delusional in his relationships with
others, his attention span was impaired, and he appeared to be highly dependent on
others. (R. 687.) The ALJ found, based on an articulated evaluation of only the 1986-87
prison medical records, that Mr. Walton has the severe impairments of borderline
personality disorder and paranoid personality disorder. (R. 686.) These and the other
findings above directly relate to the criteria of 12.05C: an IQ of 60 through 70 together
with another mental impairment imposing an additional and significant work-related

18

limitation of function, i.e., another “severe” impairment, which he found existed at step
two.
Dr. Paul Wiese, psychologist, testified as the medical expert at the hearing. The
ALJ asked Dr. Wiese to summarize the psychological evidence “specifically as it pertains
to the period from November 12, 1986 through November 16, 1987.” (R. 620.) Dr. Wiese
answered that, coupled with Mr. Walton’s diagnosis of paranoid personality disorder
and possible psychotic disorder, not otherwise specified, he “certainly did have antisocial traits of a significant nature which include anti-social behaviors, poor judgment,
fighting, lack of insights, lack of empathy for other, et cetera.” (R. 621.) He opined that
that, “during that time period, there were sufficient symptoms to suggest that there was
a psychosis and that falls under [listing] 12.03 [(schizophrenic, paranoid, and other
psychotic disorders)] – in that time period.” (R. 621.) He also confirmed that the recorded
1984 IQ score was valid, given Mr. Walton’s grade equivalence with regard to his reading
and math levels. (R. 622.) The ALJ later directed Dr. Wiese’s testimony to Mr. Walton’s
condition during the “closed period” and Dr. Wiese opined that the records show that
Mr. Walton was disabled during that period as well, but he did not modify his opinion
regarding the earlier time period or testify as to any factors that differentiated Mr.
Walton’s condition or disability during the two time periods.
Based on these findings, the ALJ found that Mr. Walton was entitled to DIB, SSI,
and child-disability benefits for the period October 1, 1997 to January 9, 2008. His sole
basis for later eliminating Mr. Walton’s entitlement to child-disability benefits is that his
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finding that Mr. Walton was disabled during the “closed period” from 1997 to 2008 did
not constitute a finding that he became disabled in 1984, before he attained the age of
twenty-two, which is a prerequisite for child-disability benefits. The ALJ believed that
he was constrained to considering only this later closed period and was prohibited from
determining whether Mr. Walton was disabled before his twenty-second birthday for two
reasons. First, he wrote that this Court’s order of remand that concluded the previous
suit limited him to issuing a new decision only regarding the closed period. (R. 684.)
Second, during the hearing, the ALJ stated that the issue of whether Mr. Walton was
disabled before October 1, 1997 ― including whether he was disabled in 1984 and, thus,
entitled to child-disability benefits ― already had been determined by a different judge,
(R. 625, 627), and was, therefore, res judicata, “as [Mr. Walton’s counsel] pointed out in
the earlier hearing,” (R. 629). The ALJ was mistaken.
This Court’s Order of November 30, 2012, remanding Mr. Walton’s claims to the
Commissioner on the parties’ agreed motion, did not restrict the Commissioner to
determining Mr. Walton’s entitlement to disability benefits only during the “closed
period” of October 1, 1997 to January 9, 2008, and it did not foreclose Mr. Walton’s claim
for child-disability benefits. It is unfortunate that the parties, in their agreed motion and
proposed order, and the Court, in its subsequent adoption of that that proposed order as
its order of remand, did not provide specificity regarding Mr. Walton’s separate claims
for DIB, SSI, and child-disability benefits, and the ranges of possible onset dates for each.
But it is clear that the terms of the remand order do not support the ALJ’s narrow

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interpretation of it. The Court’s first instruction to the Commissioner was to re-evaluate
the prison medical records and consider whether they supported a disability onset date
earlier than January 10, 2008. That instruction and open onset start date allowed the
Commissioner to find that Mr. Walton’s disability began before his twenty-second
birthday. The Court’s fourth instruction was to obtain, if warranted, medical expert
testimony to assist in inferring an onset date, without mentioning any restriction to a date
range or a particular disability program. That instruction also permitted a finding that
Mr. Walton’s disability began before his twenty-second birthday. The Court’s fifth
instruction was to make a new decision as to the closed period. Because the start date of
the period, October 1, 1997, was the date that Mr. Walton first became insured for DIB,
that instruction is best understood as requiring a new decision as to Mr. Walton’s
entitlement to DIB during his insured period. No reason has been advanced why the
parties should have agreed to limit Mr. Walton’s disability onset date to no earlier than
his eligibility for DIB. Mr. Walton’s arguments throughout the administration of his
claim, and especially after the prison medical records were obtained, certainly suggest
that such an agreement would be unlikely.
As noted above, Dr. Wiese, the medical expert, testified specifically that the prison
medical records showed that Mr. Walton’s diagnoses of paranoid personality disorder
and possible psychotic disorder, and his anti-social behaviors, poor judgment, and other
symptoms, were sufficient to support a psychosis that falls under listing 12.03 during the
time period from November 1986 through November 1987, which was the time period

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about which the ALJ asked. Dr. Wiese also opined that Mr. Walton’s 1984 tested IQ of 66
was likely accurate and was lifelong, meaning that it also accurately represented his IQ
in 1984, before his twenty-second birthday. Even more, the ALJ found that the prison
medical records proved that Mr. Walton’s impairments satisfy a listing ― although he felt
himself constrained to apply that finding to only a much later period of time. His only
reason for not applying that finding to the period before Mr. Walton attained twenty-two
years of age ― a period much closer to the dates of the prison medical findings than the
“closed period” ― is that the records were dated after Mr. Walton’s twenty-second
birthday. But it is a reasonable possibility that, if Mr. Walton satisfied a listing in
November 1986, then he satisfied it two years earlier.9 S.S.R. 83-20. There has been no
determination by the Commissioner and no expert medical opinion in this case that Mr.
Walton’s disability did not, in fact, begin before his twenty-second birthday. On the
record as it exists, and on the ALJ’s articulated determinations, a finding that Mr.
Walton’s disability did not begin before his twenty-second birthday solely because the
evidence dates from two years later would not have a medical basis and would not be
supported by substantial evidence. The record could support a finding of disability onset
before Mr. Walton became twenty-two years old and the Court’s remand order did not
constrain the ALJ’s determination.

The Court also notes that Mr. Walton testified at his first hearing that, during his teenage years,
he was prescribed Thorazine, tranquilizers, and anti-depressants due to his paranoia and schizophrenia.
(R. 99.)
9

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The ALJ’s statement during the hearing that the question of whether Mr. Walton’s
disability began before age twenty-two is res judicata is not supported by the record. He
referred to only “two prior applications that [Mr. Walton] filled out both of which . . . he
did not appeal and they are long past since the time when those can be reopened.” (R.
629.) Because nothing about the prior applications ― e.g., the dates they were filed, the
claims that were made, the evidence that was presented, the dates and findings of the
final decisions ― were identified by the ALJ or otherwise made part of the present record,
the Court cannot find that the ALJ’s assertion is supported by substantial evidence or is
legally correct. The Court questions whether an earlier determination would preclude a
new determination now that new and material evidence ― Mr. Walton’s prison medical
records ― was obtained and submitted during the pendency of the present application.
To the extent that the ALJ refused to determine whether Mr. Walton’s disability began
before October 1, 1997, because he found that the issue was res judicata, his finding was
erroneous.
Therefore, the Court finds that the ALJ’s denial of Mr. Walton’s claim for childdisability benefits is erroneous, not supported by substantial evidence, and the result of
legal error. Specifically, the ALJ’s refusal to determine whether Mr. Walton’s disability
began before he attained the age of twenty-two was erroneous.
Mr. Watson’s claim for child-disability benefits will be remanded for
reconsideration consistent with the above discussion and according to the following
instructions: (1) the Commissioner shall determine whether Mr. Walton’s prison medical
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records, other evidence in the current record, and any new evidence received on remand,
show that Mr. Walton’s disability satisfied the criteria of listing 12.05D and/or 12.05C
before he attained the age of twenty-two; (2) the Commissioner shall render a new
decision as to whether Mr. Walton is entitled to child-disability benefits; (3) because Mr.
Walton argued only his entitlement to child-disability benefits in this suit, the
Commissioner is not instructed to reconsider her decision on Mr. Walton’s claims for SSI
and DIB benefits; (4) the Commissioner is not precluded from again finding that the issue
of whether Mr. Walton’s disability began before age twenty-two (not whether he is
entitled to benefits back to that time period) is res judicata, but, if she does, then she must
assure that the record includes evidence of the previous decision or decisions that
decided the issue and articulate why the new prison medical evidence does not warrant
reopening the previous decision(s); (5) the Commissioner’s finding that Mr. Walton’s
impairments meet the definitional criteria of listing 12.05 ― viz., “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” ― is affirmed; (6) the Commissioner’s finding that Mr.
Walton’s prison medical records and Dr. Wiese’s testimony establish that Mr. Walton’s
impairments met the criteria of listing 12.05D, as of October 1, 1997, is affirmed; and (7)
the Commissioner’s finding that Mr. Walton has the severe impairments of borderline
personality disorder and paranoid personality disorder, as of October 1, 1997, are
affirmed.

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DONE this date: 3/22/2017

Distribution to all ECF-registered counsel of record via ECF-generated e-mail.

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