Dickerson v. Colvin
Filing
30
ORDER denying 17 Motion for Judgment on the Pleadings; granting 19 Motion to Affirm; adopting Report and Recommendations re 23 Report and Recommendations.; denying 29 Motion to Strike. Signed by Honorable David C. Bramlette, III on September 11, 2015. (AA)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
TIMOTHY SCOTT DICKERSON
VS.
PLAINTIFF
CIVIL ACTION NO: 5:14-cv-9-DCB-MTP
CAROLYN W. COLVIN
Commissioner of Social Security Administration
DEFENDANT
ORDER ADOPTING REPORT AND RECOMMENDATION
This cause is before the Court on Magistrate Judge Michael T.
Parker’s Report and Recommendation of July 22, 2015 [docket entry
no. 23] and Defendant’s Motion to Strike [docket entry no. 29].
Therein, Judge Parker recommends that the Plaintiff’s Motion for
Judgment on the Pleadings [docket entry no. 17] be denied, that
Defendant’s Motion to Affirm [docket entry no. 19] be granted, and
that the denial of benefits be affirmed. Having reviewed the Report
and Recommendations and motion, the plaintiff’s objections thereto
and the Commissioner’s response, and applicable statutory and case
law, the Court finds and orders as follows:
I. Factual and Procedural Background
On January 7, 2009, Plaintiff Timothy Scott Dickerson was
struck in the head by a piece of falling lumber. He was treated for
a concussion and abrasion in his eye. Dickerson was then thirtyfive years old and had completed high school, attending special
education classes. On January 22, 2009, Dickerson was treated by
1
Dr. Howard Katz, who determined that he suffered from a minor head
injury, daily headaches, joint dysfunction, and tennis elbow. On
May 12, 2009, Dickerson received a neuropsychological evaluation
from Dr. Edward Manning. Dr. Manning determined Dickerson’s IQ to
be 62.1 Dr. Manning continued treating Dickerson through July and
in
June
and
activities.
July,
he
encouraged
Dickerson
to
resume
normal
On July 16, 2009, Dr. Katz determined that Dickerson
could perform light and sedentary work. Dr. Katz continued treating
Dickerson
through October,
where
Dickerson
reported continued
improvement. However, Dickerson was hospitalized in January 2010
and admitted to a behavioral healthcare center in July 2010 for
recurrences of depressive and aggressive behavior. Both times,
Dickerson was given medication and responded well. Dickerson was
treated by Dr. Krishan Gupta at Brentwood Behavioral Healthcare.
Dickerson applied for disability benefits on November 22,
2010, and applied for supplemental social security income on
December 8, 2010. The alleged disability onset date in both claims
was January 7, 2009. Plaintiff’s claim was denied both initially
and after reconsideration. At Dickerson’s request, a hearing was
held before an Administrative Law Judge (“ALJ”) on April 4, 2012.
On May 26, 2012, Dickerson underwent a psychological examination by
Dr. Brian Thomas. Dr. Thomas retested Dickerson’s IQ and determined
1
The complete IQ results are as follows: full-scale IQ of
62, verbal IQ of 64, and nonverbal performance IQ of 66.
2
it to be 60.2 Dr. Thomas, however, doubted the accuracy of these
scores based on the questionable effort put in by Dickerson. A
second hearing was held on August 8, 2012. The ALJ found that
Dickerson was not disabled. Dickerson appealed the decision to the
Appeals Council, which denied his request for review.
On February 3, 2014, Dickerson filed a complaint, seeking to
overturn the decision of the Commissioner and to award benefits, or
in the alternative, to remand the case for a new hearing. Judge
Parker issued a Report and Recommendation on July 22, 2015.
II. Magistrate Judge’s Findings
Judge Parker found that the decision to deny benefits was
supported by substantial evidence. Federal law provides that the
decision whether a claimant is disabled is “a five-step sequential
procedure.” Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988)
(citing 20 C.F.R. § 404.1520(b)-(f) (1988)). At step one, the ALJ
determines whether the claimant is “engag[ed] in
substantial
gainful employment.” Id. At step two, the ALJ determines whether
the claimant has a “severe impairment.” Id. At step three, the ALJ
determines
whether
the
claimant
“meets
or
equals
a
listed
impairment.” Id. At step four, the ALJ determines whether the
claimant can still perform past relevant work. Id. At step five,
the ALJ determines whether “other work can be performed” based on
2
The complete IQ results are as follows: full-scale IQ of
60, verbal comprehension score of 66, and perceptual reasoning
score of 69.
3
factors such as “age, education, past work experience, and residual
functional capacity.” Id. “The claimant bears the burden of proof
on the first four steps and the burden shifts to the Commissioner
for the fifth step.” Newton v. Apfel, 209 F.3d 448, 453 (5th Cir.
2000). If the ALJ finds that the claimant “is disabled or not
disabled at any point in the five-step process” that “terminates
the . . . analysis.” Id. The decision of the ALJ is reviewed only
to determine whether there is substantial evidence to support it
and whether the correct legal standards were applied. Hollis v.
Bowen, 837 F.2d 1378, 1382 (5th Cir. 1988).
In his complaint, Dickerson
raised two assignments of error: (1) the ALJ committed
reversible error in failing to find that the results of
Plaintiff’s [IQ] Test of May 12, 2009, meet or equal the
requirements of Listing 12.05C and (2) the ALJ erred in
the assessment of Plaintiff’s [residual functional
capacity] in failing to give proper weight to the
opinions of treating and examining physicians and in
failing to properly evaluate Plaintiff’s pain and other
symptoms.
Report & Recommendation (“R&R”) 8, ECF No. 23.
As to the first assignment of error, Judge Parker found that
the ALJ . . . found that the results of both [IQ] tests
appeared to be an underestimation of Plaintiff’s
functioning. The ALJ found that the other evidence of
record, including Plaintiff’s history of working without
special accommodations and his daily activities, such as
caring for himself, cutting grass, running errands,
caring for his dogs and horses, hunting, fishing, and
cooking, demonstrated that Plaintiff has a higher level
of intellectual functioning than was shown by the test
results.
R&R 10. Judge Parker recognized that there was evidence both
4
favorable and contrary in the record but stated that conflicts in
the evidence were to be resolved by the Commissioner, not the
Court. R&R 10 (citing Selders v. Sullivan, 914 F.2d 614, 617 (5th
Cir. 1990)). Judge Parker further found that the ALJ committed a
procedural error in step three but that this error was harmless
because it did not affect Dickerson’s substantial rights. See
Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (“Procedural
perfection in administrative proceedings is not required as long as
the
substantial
rights
of
a
party
have
not
been
affected.”
(internal quotation marks omitted)). The error did not affect
Dickerson’s substantial rights because the finding is irrelevant in
light of the ALJ’s finding related to Dickerson’s IQ. Lastly Judge
Parker found that the ALJ was not required to order additional
medical testimony.
As to the second assignment of error, Judge Parker found that
the
ALJ
found
that
Dickerson
“has
the
[residual
functional
capacity] to perform light work as defined in [the regulations]
except he is limited to simple work instructions in a low stress,
non-confrontational environment.” R&R 14 (internal quotation marks
omitted). Judge Parker further found that the ALJ erroneously
attributed a statement to Dr. Manning when it was made by Dr. Katz;
this misattribution “amounts to a harmless error as Dr. Manning’s
findings were consistent with those of Dr. Katz.” R&R 15. Judge
Parker also found that the ALJ gave “proper weight to the opinions
5
of Dr. Gupta” because the ALJ considered Dr. Gupta’s medical
opinion in context with Dr. Gupta’s recommendation that Dickerson
receive further testing and Dr. Gupta’s belief that Dickerson might
be malingering. R&R 17. Lastly, Judge Parker found that “[t]he ALJ
found
that
the
medical
evidence
was
more
persuasive
than
Plaintiff’s subjective complaints.” R&R 20. The ALJ found that
Dickeron’s other ailments were not severe and that Dickerson’s
testimony about his residual problems was not credible.
III. Plaintiff’s Objections
Dickerson timely filed his objections. The Commissioner timely
responded to the objections. Dickerson makes five objections: (1)
the ALJ improperly rejected the IQ test results; (2) the ALJ
improperly found that Dickerson’s other impairments were not severe
at step two; (3) Dickerson’s schooling in Special Education is
evidence of Pre-Age 22 Onset of subaverage general intellectual
with
deficits
in
adaptive
functioning
meeting
all
of
the
requirements in Listing 12.05; (4) the ALJ did not adequately
develop
the
record
on
medical
equivalency
by
not
accepting
Dickerson’s special education classes and not acknowledging a five
point
measurement
error
in
evaluating
IQs;
and
(5)
the
ALJ
improperly assessed Dickerson’s residual functional capacity.
“[P]arties filing objections must specifically identify those
findings objected to. Frivolous, conclusive or general objections
need not be considered by the district court.” Battle v. U.S.
6
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting Nettles
v. Wainwright, 667 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc)).
Meritorious objections mandate a de novo review of the Report and
Recommendations. 28 U.S.C. § 636(b)(1) (2009). Merely reurging the
allegations in the complaint or attacking the underlying decision
is insufficient to receive de novo review, however. Those portions
of the report not objected to are reviewed only for plain error.
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th
Cir. 1996) (en banc), superseded by statute on other grounds, 28
U.S.C. § 636(b)(1).
In general, Dickerson’s objections point to perceived flaws in
the ALJ’s reasoning, rather than Judge Parker’s reasoning, but to
the extent that the objections imply that Judge Parker improperly
reviewed the ALJ’s decision, the Court will review the Report and
Recommendation de novo.
As to the first objection, Dickerson does not identify what
part of Judge Parker’s reasoning to which he objects. He quotes
from the Report and Recommendation but only a section wherein Judge
Parker quoted a regulation and nothing further. This objection
argues nothing that was not asserted in the original complaint and
briefing for the underlying motions. Therefore, the Court will
review Judge Parker’s analysis related to the ALJ’s finding related
to the validity of the IQ tests only for plain error. The Court
finds that Judge Parker properly reviewed the evidence relied on by
7
the ALJ in this case and that there is no plain error. Thus, the
first objection is overruled.
As to the second objection, Dickerson impliedly argues that
Judge Parker incorrectly found to be harmless the ALJ’s error
related to the determination of Dickerson’s severe impairment. The
Court reviews this de novo. Judge Parker found the error to be
harmless because Dickerson did not meet the other requirements of
Listing 12.05. See Randall v. Astrue, 570 F.3d 651, 660-62 (5th
Cir. 2009) (holding that claimants must meet both “the diagnostic
description’s components and the severity criteria”). Because the
ALJ did not find that Dickerson met the diagnostic component of
mental retardation, it is irrelevant whether he meets the severe
impairment requirement. And the Court has already affirmed Judge
Parker’s analysis of the ALJ’s finding related to the validity of
the
IQ
test
results.
Thus,
after
de
novo
review,
the
Court
overrules this objection. Judge Parker correctly found the ALJ’s
error to be harmless.
As to the third objection, Dickerson impliedly argues that
Judge Parker improperly reviewed the ALJ’s application of a legal
standard, meriting de novo review. Judge Parker acknowledged that
there was
evidence
both
favorable
and
contrary
to
find
that
Dickerson met the criteria of Listing 12.05C, but he went on to
state that it is not the job of the Courts to reweigh the evidence
on review of an administrative decision. See Selders, 914 F.2d at
8
617. Dickerson also argues that Judge Parker found the ALJ’s
weighing of the evidence here to be a procedural error rather than
a substantive error. But Judge Parker did not, in fact, find that
the
ALJ
had
committed
any
error
in
weighing
this
evidence.
Therefore, the Court will overrule this objection.
As to the fourth objection, Dickerson largely reasserts a
previous argument that the ALJ did not fully develop the medical
record in this case, but he also argues that a different legal
standard for viewing the IQ test results should have been used and
that the ALJ improperly discounted Dickerson’s special education as
medically equivalent evidence of his impairment before age twentytwo. Judge Parker discussed in the Report and Recommendation the
ALJ’s development of the record, and this portion will be reviewed
for plain error. But insofar as the objection relates to special
education and medical equivalency and the standard for weighing IQ
test results, the Court will review de novo. The Court finds no
error in the analysis of the duty to develop the medical record.
Further, the Court finds that Judge Parker properly reviewed
the ALJ’s analysis of medical equivalence and the weight afforded
to an actual IQ score. Judge Parker found that
[t]he ALJ considered Plaintiff’s adaptive functioning,
and the ALJ’s decision did not turn on the timing of the
onset of Plaintiff’s adaptive deficits. Instead, the ALJ
determined that Plaintiff “did not exhibit the adaptive
deficits contemplated in the listing and consistent with
mental retardation.” The opinion of the ALJ and the
evidence of record indicates that the ALJ did not
reasonably believe Plaintiff’s impairments might be
9
judged equivalent to a listed impairment.
R&R 13-14 (internal citations omitted). The Court agrees with Judge
Parker’s analysis; Dickerson’s enrollment in special education is
irrelevant
because
he
does
not
meet
the
requirements
of
intellectual disability.
As to the IQ test results, Dickerson argues that there is a
five point margin of error in measuring IQ so that an actual IQ of
60 could score anywhere between 55 and 65. If the ALJ had adjusted
Dickerson’s IQ score downward by five points, then Dickerson would
have met the requirements of Listing 12.05B by having an IQ of less
than 60. The Commissioner argues that Dickerson “has not offered
any reason why the Court should not assume that the Commissioner,
in promulgating the regulation, was aware of the standard margin of
error and could have incorporated or referenced it if the stated
numbers were to be given an expansive reading.” Resp. 7, ECF No.
27. Although it appears that the Fifth Circuit has not examined
this question, other Circuits have, and they have found that an ALJ
may rely on the plain language of the regulation and not provide
the IQ results any flexibility. See, e.g., Burns v. Barnhart, 312
F.3d 113, 125 (3d Cir. 2002); Dover v. Apfel, 203 F.3d 834 (10th
Cir. 2000) (unpublished); Anderson v. Sullivan, 925 F.2d 220, 223
(7th Cir. 1991). More recently, however, the Supreme Court has
recognized that “IQ test scores should be read not as a single
fixed number but as a range” and that “[i]ntellectual disability is
10
a condition, not a number.” Hall v. Florida, 134 S. Ct. 1986, 1995,
2001 (2014). But the Supreme Court issued this opinion in the death
penalty context. Id., at 2001. (“But in using these scores to
assess a defendant’s eligibility for the death penalty, a State
must afford these test scores the same studied skepticism that
those who design and use the tests do, and understand that an IQ
test score represents a range rather than a fixed number. A state
that
ignores
the
inherent
imprecision
of
these
tests
risks
executing a person who suffers from intellectual disability.”). And
the Court can only find one district court opinion citing to Hall
in a social security benefits context. See Davis ex rel. J.E.C. v.
Colvin, No. 14C104, 2014 WL 4954470, at *9 n.11 (E.D. Wis. Oct. 2,
2014) (noting “that IQ test scores should be read not as a single
fixed number but as a range” (quoting Hall, 134 S. Ct. at 1995)).
While an IQ score may be better understood as a range, the Court is
unwilling to extend the holding in Hall to this context without
further guidance; the same rights are not at stake. Further, Judge
Parker
found
that
the
ALJ
believed
the
test
results
to
underestimate Dickerson’s IQ. Therefore, the Court will overrule
this objection.
As to the fifth objection, Dickerson does not identify what
part of Judge Parker’s reasoning to which he objects. He quotes
from the Report and Recommendation but only where Judge Parker
states what Dickerson’s second assignment of error is and nothing
11
further. This objection argues nothing that was not asserted in the
original
complaint
and
briefing
for
the
underlying
motions.
Therefore, the Court will review Judge Parker’s analysis related to
the
ALJ’s
finding
related
to
Dickerson’s
residual
functional
capacity only for plain error. The Court finds that Judge Parker
properly reviewed the evidence relied on by the ALJ and that there
is no plain error. Thus, the fifth objection is overruled.
IV. Motion to Strike
The Commissioner moved to strike Dickerson’s reply to her
response to Dickerson’s objections arguing that it was “filed
without authority” because “there is no provision in the Federal
Rules of Civil Procedure or in the Local Uniform Civil Rules to
allow the Plaintiff to reply to Defendant’s response to Plaintiff’s
objections to the Report and Recommendation. . . .” Mot. Strike 1,
ECF No. 29. While it is true that Local Rule 72(a)(3) does not
provide for a reply in this situation, the Court sees no difference
here
between
this
and
a
surreply.
Courts
in
this
district
occasionally consider surrebuttals not properly before them in
reaching their decisions. See e.g., Pierce v. The Clarion Ledger,
433 F. Supp. 2d 754, 769 n.7 (S.D. Miss. 2006); Bradshaw v. City of
Gulfport, No. 1:09cv743, 2010 WL 4192879, at *2 (S.D. Miss. Oct.
12, 2010); Okunoren v. United States, No. 3:08cv178, 2009 WL
1395471,
at
*2
(S.D.
Miss.
May
18,
2009).
Leave
to
file
a
surrebuttal should be granted when judicial experience and common
12
sense deem it appropriate. While the Court agrees that leave of
court should have been requested by Dickerson prior to filing his
reply, the Court can see no reason to exclude his reply in this
case. Therefore, the motion to strike will be denied.
V. Order
Having conducted a de novo review of the portions of the
Report and Recommendations objected to and reviewed the remainder
for plain error, the Court is satisfied that Judge Parker has
issued a thorough opinion. Accordingly,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and
Recommendations is hereby ADOPTED.
FURTHER
ORDERED
that
the
Plaintiff’s
Objections
to
the
Magistrate Judge’s Report and Recommendations are OVERRULED.
FURTHER ORDERED that the Motion for Judgment on the Pleadings
is DENIED.
FURTHER ORDERED that the Motion to Affirm the Commissioner’s
Decision is GRANTED.
FURTHER ORDERED that the Motion to Strike is DENIED.
A final judgment in accordance with Federal Rule of Civil
Procedure 58 will follow.
SO ORDERED this the 11th day of September 2015.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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