Cox v. Astrue

Filing 12

ORDER - plaintiffs motion to reverse the final decision of the ALJ is GRANTED, and the decision of the Commissioner is REVERSED AND REMANDED pursuant to sentence four of 42 U.S.C. § 405(g). Signed on 2/16/12 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DAVID M. COX,

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Plaintiff,
vs.
MICHAEL J. ASTRUE,
Defendant.

ORDER
This is a proceeding under Title II of the Social Security Act and for supplemental
security income benefits under Title XVI. 42 U.S.C. §§ 401 et seq. and 1381 et seq.
Plaintiff’s application for benefits were denied initially. Thereafter, plaintiff requested an
administrative hearing. On December 8, 2009, the ALJ rendered a decision finding that
plaintiff was not under a “disability” as defined under the Social Security Act. Plaintiff
then requested review by the Appeals Council. On February 15, 2011, the Appeals
Council denied plaintiff’s request for review. Thus, the decision of the ALJ stands as the
final decision of the Commissioner. The facts and arguments are presented in the
parties' briefs and will not be repeated here.
The Eighth Circuit recently stated the standard for judicial review of an ALJ's
denial of benefits:
Our role on review is to determine whether the Commissioner's findings
are supported by substantial evidence on the record as a whole.
Substantial evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner's
conclusion. In determining whether existing evidence is substantial, we
consider evidence that detracts from the Commissioner's decision as well

as evidence that supports it. As long as substantial evidence in the record
supports the Commissioner's decision, we may not reverse it because
substantial evidence exists in the record that would have supported a
contrary outcome or because we would have decided the case differently.
Baker v. Barnhart, 457 F.3d 882, 892 (8th Cir. 2006)(citing McKinney v. Apfel, 228 F.3d
860, 863 (8th Cir.2000)).
Plaintiff argues that the ALJ erred in finding that he had no severe impairments
and also by improperly evaluating his credibility. The Court agrees and finds that the
ALJ erred in finding that plaintiff had no severe impairments. The ALJ stated that
“nothing supports a finding that he is mentally limited.” (T. 12). However, the evidence in
the record shows that plaintiff suffered a traumatic brain injury which was documented by
multiple medical sources as well as by an EEG and an MRI. Additionally, test results
after the accident showed plaintiff to be in the mildly retarded to borderline intellectual
functioning category. (T. 304). Plaintiff was also diagnosed by a state agency examiner
as having a “severe memory impairment consistent with dementia.” (T. 310). Instead
the ALJ focused solely on the fact that one psychologist administered one test of
memory malingering and found plaintiff was malingering on this test. However, there is
no other evidence of malingering in the record. Indeed, the state agency examiner noted
that plaintiff “does appear to have decreased abstract thinking” and suggested that “[a]
formal neuropsychological test would probably be appropriate to delineate his true
functional impairments in terms of his cognition.” (T. 316). The ALJ has a duty to fully
and fairly develop the record so that a proper determination of disability can be made.
Hood v. Astrue, No. 5:09-CV-05007-JRM, 2010 WL 231582, *9 (W.D.Ark, Jan. 13,
2010), (citing Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995)).
Accordingly, it is hereby ORDERED that plaintiff's motion to reverse the final
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decision of the ALJ is hereby GRANTED (Doc. # 9) and the decision of the
Commissioner is hereby REVERSED AND REMANDED pursuant to sentence four of 42
U.S.C. § 405(g). On remand, the ALJ shall arrange a consultative neuropsychological
examination of plaintiff. The ALJ shall then review and consider this report along with all
the other evidence in the record in determining how plaintiff’s mental impairment affects
his residual functional capacity.

Date: February 16, 2012
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

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