Loftis v. Astrue
Filing
22
MEMORANDUM OPINION - The SSA's decision will be vacated, and this matter remanded for the award of SSD benefits to Ms. Loftis. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (TCL )
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
CHRISTINA K. LOFTIS,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Commissioner of the Social
)
Security Administration,
)
)
Defendant.
)
______________________________)
8:12CV212
MEMORANDUM OPINION
This matter is before the Court for review, pursuant to
42 U.S.C. § 405(g), of the decision of defendant Commissioner of
the Social Security Administration (“SSA”) denying social
security disability benefits (“SSD benefits”) to plaintiff
Christina K. Loftis.
Upon review, the Court finds the SSA’s
decision is not supported by substantial evidence and should be
reversed, and the matter will be remanded for award of Ms.
Loftis’s SSD benefits.
I. BACKGROUND AND PROCEDURAL HISTORY
As an initial matter, it must be noted that although
the Administrative Law Judge found that Ms. Loftis had several
severe impairments, namely, “borderline intellectual functioning,
diabetes with neuropathy, obesity, hypertension, partial
amputation of digits on the left foot, depression, and anxiety”
(Tr. 23), Ms. Loftis concedes that other than the borderline
intellectual functioning, her impairments “were established after
the alleged onset date/date last insured” (Filing No. 13, at 8).
Consequently, Ms. Loftis is only challenging the SSA’s
determination that her borderline intellectual functioning does
not render her disabled.
The Court, likewise, will focus on Ms.
Loftis’s mental impairment, borderline intellectual functioning,
and will evaluate her physical impairments and her psychological
impairments as relevant.1
Plaintiff Christina Loftis was born in 1976.
She
graduated from Central High School in Omaha, Nebraska, in 1995,
but she claims that all of her classes, in every grade, were in
special education (Tr. 47-48).
Ms. Loftis attended college for
about seven weeks in 2004 but abandoned her studies because she
had difficulty with English and math classes (Tr. 62-63).
Ms. Loftis is married to Chris Loftis, and she has four
children, three of whom are the biological children of Mr.
Loftis.
As of the date of the hearing before the Administrative
Law Judge (“ALJ”), December 2, 2011, the children were fifteen,
twelve, six, and three years old (Tr. 46).
Six weeks before the
date of the hearing, all four children were removed from the home
by Child Protective Services and placed in foster care due to
1
During the period relevant to this appeal, Ms. Loftis had
numerous medical examinations relating to her impairments, as
well as other unrelated medical issues. These examinations are
well documented in the record. The Court will call attention
only to those medical records that have particular significance
for the appeal at hand.
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allegations that Ms. Loftis abused another child who was living
in their home, the child of an ex-girlfriend of Mr. Loftis (Tr.
46, 458).
The Court has no further information as to the
resolution of the children’s placement in foster care.
Ms. Loftis alleges that she has been disabled since
December 31, 2006 (Tr. 146).
Ms. Loftis originally filed initial
applications and was denied disability insurance benefits and
social security benefits in 2009.
She testified at the ALJ
hearing that she did not appeal the 2009 denial because she did
not understand the letter sent to her by the SSA (Tr. 60).
On March 19, 2009, in connection with her 2009
disability applications, Ms. Loftis was seen by Caroline
Sedlacek, Ph.D., for a psychological interview and report (“2009
Sedlacek Report,” Tr. 244-249).
Dr. Sedlacek reported,
[Ms. Loftis] gave the current date
to be March 18, 2008 and Wednesday.
(It was March 19, 2009 and
Thursday.) Also, she had put 2008
on the background information form
that she completed. She recalled
two of three words on a short-term
delayed memory task with
interference. She was unable to
count backward by 3's from 30. She
was able to recall five digits
forward and three digits backward.
She knew that a "black guy" was
president and that Bush had been
president. She missed other simple
information questions. By counting
on her fingers she was able to do
very simple addition, subtraction[]
and multiplication calculations and
did not know how to solve a simple
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division problem. She could not
explain a simple proverb. She gave
a similarity and a difference.
. . . Intellectual functioning
appears to be within the Borderline
range. Insight is poor. . . .
The claimant has the ability to
carry out simple activities of
daily living and functions better
with some assistance. Due to her
lower intellectual functioning and
lack of knowledge about the world
around her she has some difficulty
maintaining social functioning.
Although she readily admits to
being depressed and becomes
stressed easily, she is not under
the care of any mental health
professional. She has some
difficulty maintaining
concentration and attention needed
for task completion. She was able
to recall two of three simple words
on the short-term delayed memory
task. She had difficulty recalling
digits backward. She would have
some difficulty remembering short
and simple instructions even though
she might be able to understand
them. Even when she can remember
short and simple instructions, she
would need some additional
supervision in order to carry out
those instructions. She would
relate to coworkers and supervisors
in a shy, nervous manner. She can
adapt to simple changes in her
environment but functions better,
of course, in a predictable,
structured environment. She does
not have the intellect and
experience to manage her own funds.
(Tr. 248-49).
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Dr. Sedlacek’s Diagnostic Impression included the
following:
“Axis II:
. . . Axis IV:
V62.89 Borderline Intellectual Functioning
Stresses of parenting, inadequate health care due
to lack of insurance, lower intellectual functioning, financial
concerns
poor.
Axis V:
50/50" (Tr. 249).
“PROGNOSIS:
Prognosis is
She likely has been making a poor to marginal adjustment
during all of her life. . . .
never held a job.
It appears that the claimant has
She lacks basic job skills.
It is unlikely
that she will be employable in the next two years, at least”
(Id.).
“ABILITY TO MANAGE FUNDS:
Due to her level of
intellectual functioning and lack of knowledge about the world
around her, it would not be in this claimant’s best interests to
manage her own funds” (Id.).
On March 24, 2009, Ms. Loftis underwent examination by
Gerald Spethman, M.D., a state agency reviewing physician, who
completed a Physical Residual Functional Capacity (“RFC”)
Assessment (Tr. 263-71).
Dr. Spethman listed Ms. Loftis’s
diagnoses as “Obesity,” “DM type 2,” and “Left foot – Partial
Digits AMP” (Tr. 263).
Dr. Spethman wrote, “CRED - the claimant
has a lot of problems due to her obesity and not good balance she appears CRED,” which the Court interprets to mean “credible”
(Tr. 268).
On April 4, 2008, Ms. Loftis was seen by a nurse for a
home visit because of “impaired parenting related to statement of
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inability to control children” (Tr. 340).
On March 27, 2009, and
April 17, 2009, Ms. Loftis was seen by a nurse for home visits
because of “impaired parenting related to depression” (Tr. 299,
295).
On April 24, 2009, Ms. Loftis was seen by a nurse for a
home visit for several problems, including “impaired parenting”
(Tr.
293).
The nurse advised Ms. Loftis and provided
“intervention activities” to address the parenting problems
(Id.).
Ms. Loftis filed a second set of initial applications
on April 21, 2010 (Tr. 151, 170).
In her disability report, she
listed the following medical conditions:
diabetes, depression
and anxiety, neuropathy in feet and hands, missing toes on left
foot, and slow learner (Tr. 178).
On July 9, 2010, Ms. Loftis was examined by Bridget
Larson, Ph.D., a non-treating psychological examiner.
After
reviewing Ms. Loftis’s employment history, Dr. Larson stated that
Ms. Loftis “denied that she has ever been fired from a job or had
difficulty completing the tasks that were asked of her” (Tr.
359).
Dr. Larson administered an IQ test to Ms. Loftis.
On the test, Christina received a
Full Scale IQ of 65 that placed her
in the Extremely Low range and is
ranked at the 1st percentile. . . .
Christina received a Verbal
Comprehension IQ of 68 at the 2nd
percentile, . . . which is in the
Extremely Low range. She received
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a Perceptual Reasoning IQ of 63 at
the 1st percentile, . . . which is
within the Extremely Low range.
She received a Working Memory IQ of
80 at the 9th percentile, . . .
which is within the Low Average
range. She received a Processing
Speed IQ of 76 at the 5th
percentile, . . . which is within
the Borderline range.
(Tr. 360).
Scores on other “subtest scores . . . suggest that
Christina may have some difficulty completing both verbal and
nonverbal tasks; however, she may have more ease with tasks
involving short-term auditory and visual memory, sequencing
skills, mental manipulation and processing speed” (Tr. 360-61).
“Overall, Christina’s intellectual functioning scores indicate
that her intellectual functioning is within the Mild Mental
Retardation range” (Tr. 361).
Dr. Larson stated that Ms. Loftis “appears to have some
difficulty maintaining social functioning as she has isolated
herself from friends and extended family and will only leave the
house when it is absolutely necessary” (Id.).
“She appears to be
able to carry out instructions under ordinary supervision, as
evidenced by her behavior during the present interview.
She has
the ability to sustain concentration and attention for task
completion” (Id.).
“She has the ability to relate appropriately
to co-workers and supervisors.
She may have some difficulty
adapting to changes in life or structure due to her anxiety”
(Id.).
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Dr. Larson diagnosed Ms. Loftis with a GAF of 40 (Tr.
361).
Dr. Larson concluded, “While her intellectual functioning
may be within the Mild Mental Retardation range, she does not
have accompanying deficits in skills of adaptive functioning to
warrant a mental retardation diagnosis” (Tr. 362).
“Presently
she successfully cares for her four children and maintains the
household, and in the past she has worked in the area of
healthcare, looking after dying family members which indicates
she has the ability to successfully carry out a number of tasks”
(Id.).
Dr. Larson stated that Ms. Loftis was capable of handling
her own funds (Tr. 363).
On July 14, 2010, Christopher Milne, Ph.D., a state
agency reviewing provider, completed a Mental RFC Assessment (Tr.
366-370) and Psychiatric Review Technique (“PRT”) (Tr. 371-385)
based on the information then available in Ms. Loftis’s record,
but not on an examination of Ms. Loftis.
Dr. Milne stated that
Ms. Loftis had a medically determinable impairment, namely
“Probable BIF vs. specific learning d.o.” (Tr. 372).
Dr. Milne
stated that Ms. Loftis had no limitations regarding restrictions
of daily living, and moderate limitations as to difficulties in
maintaining social functioning and concentration, persistence, or
pace (Tr. 381).
Dr. Milne found that Ms. Loftis was moderately
limited as to the ability to understand and remember detailed
instructions, carry out detailed instructions, and interact
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appropriately with the general public; otherwise, she was not
significantly limited (Tr. 366-67).
After citing many of Dr. Larson’s conclusions, Dr.
Milne stated, “It is noted she cares for her 4 children,
maintains a household, has worked in healthcare in the past and
cared for her ailing father.
The [claimant] does not report
[special education] and that she achieved 12 yrs of education;
school records were requested but not rec'd” (Tr. 383).
“The
[claimant] likely would be unable to perform detailed or complex
tasks, but retains the ability to perform simple and routine
tasks [without] assistance” (Id.).
Dr. Milne stated, “[Claimant] displayed adequate
understanding and memory at [previous examination] and had no
difficulties completing [IQ] testing.
She retains ability to
successfully perform at least s/u tasks” (Tr. 368).
He stated
that “when stressed [Ms. Loftis] may not interact well with
others. . . .
She may do better in positions requiring
infrequent social contacts” (Id.).
“[M]ental health status does
not reveal a level of sx intrusion that would reasonably impair
ability to make routine on the job decisions, follow rules or
adhere to schedules, production standards or timelines” (Id.).
Also on July 14, 2010, Jerry Reed, M.D., completed a
Physical RFC Assessment based upon the information in the record
(Tr. 386-394).
As relevant here, Dr. Reed stated, “She is
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somewhat inconsistent in her presentation - she states she
doesn’t walk due to the [burning] pain in her feet yet she walks
her children to school daily.
partially credible” (Tr. 391).
The [claimant is seen] as
Dr. Reed did not give any other
reason for his credibility determination.
Dr. Reed did not give
any indication that he knew that Ms. Loftis’s home was “not even
a block away” from her children’s school (Tr. 55).
Ms. Loftis’s second set of initial applications were
denied on May 4, 2010 (Tr. 142), and July 15, 2010 (Tr. 75).
On October 21, 2010, Gerald Spethman, M.D., completed a
second, abbreviated Physical RFC Assessment (Tr. 404-405) based
on the information then available in Ms. Loftis’s record.
Dr.
Spethman states, “Claimant not precluded from all work - affirm
initial assessment dated 7/15/2010.
-- BRB” (Tr. 404).
Claimant partially credible.
Dr. Spethman gave no reason for his
credibility assessment.
Dr. Spethman wrote, “I have reviewed all
of the evidence in file and the RFC of 7/15/2010 is affirmed”
(Tr. 405).
Also on October 21, 2010, Patricia Newman, Ph.D.,
completed an abbreviated PRT (Tr. 402-403) based on Ms. Loftis’s
record.
Dr. Newman wrote, “Review of initial evidence shows IQ
scores mild [mental retardation / borderline intellectual
functioning] but [activities of daily living] include taking care
of 4 children and do activities that are necessary” (Tr. 403).
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Dr. Newman wrote that Ms. Loftis “appears capable of routine
types of work with mild to moderate limits” (Id.).
Dr. Newman’s
credibility assessment was identical to that of Dr. Spethman:
“Claimant not precluded from all work - affirm initial assessment
dated 7/15/2010.
Claimant partially credible. -- BRB” (Id.).
Like Dr. Spethman, Dr. Newman gave no reason for her credibility
assessment.
Dr. Newman wrote, “I have reviewed all of the
evidence in file and the PRTF/MRFC of 7/15/2010 is affirmed” (Tr.
402).
Ms. Loftis’s second set of initial applications were
denied on reconsideration on October 21, 2010 (Tr. 77).
On
November 12, 2010, Ms. Loftis applied for an appellate hearing
with an administrative law judge (“ALJ”) for review of her claim
(Tr. 100).
On November 17, 2011, Ms. Loftis was again examined by
Caroline Sedlacek, Ph.D., for a second psychological interview
and report (“2011 Sedlacek Report,” Tr. 449-455),2 at the request
of Ms. Loftis’s attorney.
Dr. Sedlacek reported,
This client is capable of carrying
activities of daily living but
would have difficulty carrying out
parenting duties on her own due to
her borderline intellectual level
of functioning and tendency to
2
In her written decision, the ALJ stated that she would
“give[] the claimant the benefit of the doubt” and reopen the
prior 2009 determinations so as to include this new piece of
evidence (Tr. 20).
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become stressed easily. She
appears to be able to maintain
social functioning consistent with
her level of intellectual
functioning which appears to be in
the Borderline range. She lacks
good coping skills and does become
stressed and upset easily even
though she reported that her mood
has been good lately. She has the
ability to sustain concentration
and attention needed for task
completion. She has the ability to
understand short and simple
instructions and with repetition
could remember them. She needs
more than ordinary supervision when
first learning new tasks. She has
the ability to relate appropriately
with co-workers and supervisors.
She can adapt to simple changes in
her environment. She is capable of
handling her own funds.
(Tr. 453-54).
Dr. Sedlacek’s Diagnostic Impression included the
following: “Axis II:
. . . Axis IV:
V62.89 Borderline Intellectual Functioning
Children removed from home recently, financial
concerns, lack of mental health treatment
454).
“PROGNOSIS:
Fair.
Axis V:
55/55" (Tr.
Would be improved if she received
outpatient mental health counseling to learn coping skills in
dealing with stress and if she participated in parenting skills
classes” (Id.).
In response to questions from Ms. Loftis’s attorney,
Dr. Sedlacek stated,
This client has had limitations
throughout her life regarding her
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emotional and intellectual
functioning. It appears that she
had an unstable upbringing. She
was placed in a foster home and
group homes for about a two year
period. She missed out on some
developmental skills during that
time. She was in special
education. She has continued
making a marginal adjustment and
has had the same limitations before
December 31, 2006 as well as after
that date to the present time.
. . .
Her longest employment appears to
have been taking care of her father
who was diabetic and was on
dialysis. That was not a job in
which she had to meet performance
requirements that would be expected
if employed in a more traditional
job, such as being at work at a
specific time, meeting production
requirements or deadlines and
responding well to co-workers and
supervisors.
According to the student nurses’
reports she had difficulty
parenting her children in 2008-2009
and at times felt overwhelmed by
parenting responsibilities. . . .
She does not meet mental
retardation (intellectual
disability) criteria. Her
functioning falls within the
Borderline range of intellectual
functioning.
(Tr. 454-55).
In response to the question, “If pursuing
employment, what assistance is needed?”
Dr. Sedlacek replied,
She could benefit from services
provided by an agency such as
Vocational Rehabilitation. She
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needs assistance in learning what
is expected of an employee.
Observing her in a simulated work
experience would be important to
evaluate her basic job skills. She
likely learns best by being shown a
task rather than being told how to
do a task. She would need a job
coach at the beginning of any
employment. She would have the
best chance of successful
employment in a job in which
individuals carrying out the work
are of lower intellectual
functioning. A repetitive,
physical type of job would be
appropriate if her obesity would
not prevent her from performing the
tasks.
(Tr. 455).
At Ms. Loftis’s request, an administrative hearing took
place on December 2, 2011, in Omaha, Nebraska, to review Ms.
Loftis’s SSD benefits claims (Tr. 37-74).
Ms. Loftis was thirty-
five years old on the date of the hearing (Tr. 39).
At the
hearing, Ms. Loftis’s attorney stated to the ALJ, “The theory of
the case, Your Honor, is that Ms. Loftis is unable to work
because of her low IQ. . . . I believe the claimant’s disabled
because of her borderline intellectual functioning” (Tr. 41, 45).
As of the date of the ALJ’s hearing, Ms. Loftis had
never held a job for a significant period of time other than
caring for family members.
Ms. Loftis cared for her grandmother
in 1996 or 1997 without any problems (Tr. 50, 58).
She did not
need to fill out any paperwork for the job because her aunt took
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care of it (Tr. 64).
Her aunt also assisted by taking Ms. Loftis
and her grandmother grocery shopping and to doctor’s appointments
(Tr. 64-65).
Ms. Loftis would prepare meals and help her
grandmother with medications, with supervision by Ms. Loftis’s
aunt (Tr. 65).
Ms. Loftis’s aunt “would come over and check it
out, make sure that I had given the right amounts. . . [b]ecause
I had never done it before.
it right” (Id.).
She wanted to make sure I was doing
Ms. Loftis testified that she did not think she
could return to that kind of job now:
“No, because it was just
-- it was with family that I took care of.
do that with somebody else” (Tr. 58-59).
I wouldn’t be able to
When her attorney asked
her why not, Ms. Loftis replied, “Because it would depend on
their situation, and if I had to give them medicine, I couldn’t
do that because I’m not licensed.
If I had to cook, it would
depend on if, you know, they were allergic to things” (Tr. 59).
Ms. Loftis worked at a Blimpie sandwich shop for “a
couple months” in about 1998 but “the job stopp[ed]” because she
was too slow (Tr. 50, 56).
She worked at Mama’s Pizza for about
four months in 1999 but, again, “the job stopp[ed]” because she
was too slow (Tr. 51, 55).
Ms. Loftis cared for her father in his home for almost
four years, from April 2003 to December 2006 (Tr. 49, 179).
was paid by the Nebraska Office on Aging (Tr. 50).
She
Ms. Loftis
would assist her father with his medications and his insulin (Ms.
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Loftis herself is a diabetic) and would cook his meals (Tr. 49).
Her brothers, however, would help him bathe (Tr. 49-50).
In
response to the question, “And did you have any problems
performing that job for your dad?”, Ms. Loftis testified, “No
because it was my dad, I knew what to do” (Tr. 58).
She did have
problems filling out a billing statement relating to the job,
however, but received help with this (Id.).
Ms. Loftis typically spends the day in her home doing a
few chores and watching television (Tr. 51-52).
She goes to the
grocery store once a month with her husband; they do not prepare
a list (Tr. 52, 61).
52).
She does not plan meals ahead of time (Tr.
She does not typically follow a recipe when cooking unless
she is baking during the holidays, when she sometimes needs help
understanding the recipe (Tr. 61-62).
Ms. Loftis does not do any
reading but sometimes uses her phone to access Facebook or find a
phone number on the Internet, or sometimes to text (Tr. 53).
When her children are in the home she walks the two youngest to
school, which is “not even a block away” (Tr. 55).
Ms. Loftis testified that she is a slow reader and that
she has trouble with big words (Tr. 59-60).
With regard to the
initial denial of her 2009 disability application, Ms. Loftis
testified that she remembered getting a denial letter from Social
Security and that she read the front of the letter, but that she
did not understand what she had to do to appeal the denial:
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“I
read some of it, but I didn’t finish reading all of it because I
didn’t understand it.
I didn’t appeal.
I’d never done it
before” (Tr. 60).
After Ms. Loftis’s testimony, the ALJ posed the
following hypothetical to the vocational expert:
I’m going to ask you to consider an
individual of the claimant’s age,
educational level, and work
history. From a physical
standpoint, the individual is in
the light category of work, may
occasionally climb and balance, and
should avoid concentrated exposure
to hazards. And in addition, from
a mental standpoint, the individual
has moderate limitations, which
means less than moderate but more
than mild in the following areas:
The ability to understand and
remember detailed instructions, the
ability to carry out detailed
instructions, and the ability to
interact appropriately with the
general public. In addition, the
individual can perform simple and
routine tasks without assistance
and needs a job with infrequent
social contacts.
Would the individual be able to do
the past work that the claimant has
done?
(Tr. 66-67).
Based on the hypothetical, the vocational expert
answered, “[N]o” (Tr. 67).
When asked by the ALJ if there were “other jobs that
such an individual could perform,” the vocational expert
testified that “we’re looking at a minimum of public interaction
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and avoidance of hazards in the light, unskilled category” (Id.).
As such, the vocational expert testified that jobs as a
“production assembler,” “hand packager,” or “housekeeping
cleaner” would meet the criteria set forth in the ALJ’s
hypothetical (Tr. 67-68).
Ms. Loftis’s attorney also asked questions of the
vocational expert at the hearing:
For my first hypothetical, I want
you to assume someone with no
physical limitations prior to
December 31, 2006, but this
individual would have the following
mental limitations: A fullscale IQ
of 65, verbal comprehension IQ of
68, perceptual reasoning IQ of 63,
working memory IQ of 80, processing
speed IQ of 76. This person would
have difficulty maintaining
concentration and attention needed
for task completion, based off Dr.
[Sedlacek’s 2009] report at 1-F,
page 5. Further, based off that
report, this person would have
difficulty -- or some difficulty
remembering short and simple
instructions, even though she might
be able to understand them. And
even when she can remember short
and simple instructions, she would
need some additional supervision in
order to carry out those
instructions. This person could
relate to co-workers and
supervisors in a shy, nervous
manner. This person can adapt to
simple changes in her environment
but functions better, of course, in
a predictable structured
environment.
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With those limitations, is there
any competitive work that exists in
the national economy?
(Tr. 68-69).
The vocational expert testified,
I believe there are two things that
really stand out in your whole
hypothetical. One is the concept
of additional supervision. The
other is needing a predictable
structured environment. Both of
those speak to workshop settings,
at least a job coach, to initially
get a person started if they
weren’t at a workshop. But the
predictable structured environment
and the additional supervision both
point to, largely to workshop
settings.
(Tr. 69).
The vocational expert testified that he didn’t believe
that any competitive work would exist in the national economy
under the facts of the hypothetical, and that such a person would
need the accommodation of “additional supervision . . . probably
. . . a job coach or workshop setting” (Tr. 69-70).
Based on his
previous experience handling a “developmental, disabled case
load,” the vocational expert testified, “Those -- IQ scores like
those, the additional -- they would point to additional
supervision and structured environment.
So, I guess, those
scores would backup those other elements that I brought out” (Tr.
70).
When asked, “So in your experience, scores like that
usually suggest a structured work environment?”, the vocational
expert answered, “Yes.
Usually, yes” (Id.).
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For his second hypothetical, Ms. Loftis’s attorney
stated,
I want you to assume someone that
pre-December 31, 2006, has no
physical restrictions but based off
19-F [the 2011 Sedlacek Report] has
the following limitations: This
person’s capable of activities of
daily living but would have
difficulty carrying out parenting
duties on her own due to borderline
intellectual level of functioning
and has a tendency to become
stressed easily. She appears able
to maintain social functioning
consistent with her level of
intellectual functioning, which
appears to be in the borderline
range. She lacks good coping
skills and does become stressed and
upset easily, even though she
reported that her mood has been
good lately. She has the ability
to sustain attention and -- or
excuse me -- sustain concentration
and attention needed for task
completion. She has the ability to
understand short and simple
instructions and with repetition
could remember them. She needs
more than ordinary supervision when
first learning tasks. She has the
ability to relate appropriately
with co-workers and supervisors.
She can adapt to simple changes in
her environment. She would benefit
from services provided by an
agency, such as vocational
rehabilitation. She needs
assistance in learning what is
expected of an employee. Observing
her in the simulated work
experience would be important to
evaluate her basic job skills. She
likely learns best by being shown a
task rather than told how to do a
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task. She would need a job coach
at the beginning of any employment.
She would have the best chance of
successful employment in a job in
which individuals carrying out the
work are of lower intellectual
functioning. A repetitive physical
type of job would be appropriate if
her obesity would not prevent her
from performing the tasks.
Is there any competitive work that
exists in the national economy with
those limitations?
(Tr. 70-72).
The vocational expert replied, “I would say the
overall picture is that she would be ready for non-competitive
employment only” (Tr. 72).
In addition, with regard to Ms.
Loftis’s work as a home attendant to family members, the
vocational expert testified that she “may have” performed the
work as it is performed competitively in the economy, but
one of the things in her testimony
that she had discussed with regard
to her other jobs was slowness.
And in that particular job setting,
working for family, speed was
really not -- not of the essence.
So she probably performed -- as she
had indicated in her other past
jobs, she probably performed it
slower than usual.
(Id.).
The vocational expert testified that he did not know
whether performance of such a home attendant job would require
certification as a medication aide (Id.).
On January 11, 2012, the ALJ issued an unfavorable
opinion affirming the denial of Ms. Loftis’s SSD benefits claims
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(Tr. 20-31).
The ALJ evaluated Ms. Loftis’s claims under the
SSA’s five-step sequential process.
See 20 C.F.R. § 404.1520(a).
At step one, the ALJ found that Ms. Loftis had not engaged in
substantial gainful activity since December 31, 2006, the alleged
onset date of her disability (Tr. 22).
At step two, the ALJ found that Ms. Loftis’s
impairments, borderline intellectual functioning, diabetes with
neuropathy, obesity, hypertension, partial amputation of digits
on the left foot, depression, and anxiety, were severe (Tr. 23).
But the ALJ also concluded, “The evidence indicates only the
claimant’s borderline intellectual functioning was a severe
medically determinable impairment at the time of the alleged
onset date and the date last insured.
The remaining impairments
listed above are not established as severe until after the date
last insured” (Id.).
At step three, the ALJ found that Ms. Loftis’s
impairments did not meet one of the listed impairments found in
20 C.F.R. Part 404, Subpart P, Appendix 1 (Id.).
The ALJ stated,
“Although the claimant has a full-scale IQ of 65, the evidence
does not satisfy the criteria of listing 12.05.
Her functioning
is not in the mental retardation range, but falls within the
borderline intellectual range based on her adaptive functioning”
(Tr. 24).
Yet the Court notes that in analyzing the issue, the
ALJ stated, “In activities of daily living, the claimant has no
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restriction.
She was able to care for her ailing father and her
4 children. . . . She has been able to maintain relationships
with her family and relate appropriately to others . . . .” (Tr.
23-24).
This statement is plainly false, since at least as of
the date of the hearing, Ms. Loftis’s children had been placed in
foster care due to her allegedly inappropriate behavior with
another child.
Thus, at least as of that date, she was not
allowed to care for her four children and was not able to
maintain normal relationships with her family.
Next, the ALJ determined that Ms. Loftis had a residual
functional capacity
to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b)
except she can only occasionally
climb and balance, and she should
avoid concentrated exposure to
hazards. Due to her mental
impairments, the claimant has
moderate limitation, which is less
than marked but more than mild
limitation, in the ability to
understand, remember, and carry out
detailed instructions and interact
appropriately with the general
public. She can perform simple and
routine tasks without assistance
but needs a job with infrequent
contacts.
(Tr. 24-25).
While the ALJ found Ms. Loftis’s “medically
determinable impairments could reasonably be expected to cause
the alleged symptoms,” nevertheless, the ALJ found that Ms.
Loftis’s “statements concerning the intensity, persistence, and
-23-
limiting effects of these symptoms are not credible to the extent
they are inconsistent with the above residual functional capacity
assessment” (Tr. 25).
The ALJ devoted a large portion of her opinion to the
evaluation of Ms. Loftis’s physical maladies, even though Ms.
Loftis’s attorney had stated at the outset of the hearing that
only the borderline intellectual functioning impairment was at
issue.
With regard to Ms. Loftis’s borderline intellectual
functioning, the ALJ repeated many of the findings made by Dr.
Sedlacek and Dr. Larson, including Dr. Sedlacek’s opinion that
Ms. Loftis “would need more than ordinary supervision when
learning new tasks,” “could benefit from Vocational
Rehabilitation services,” and “would need a job coach” (Tr. 28).
Yet the ALJ concluded, “The observations, assessments, and
opinions by Dr. Sedlacek and Dr. Larson are given some weight.
Neither indicates the claimant’s mental functioning precludes
employment.
The difficulties and limitations addressed in their
reports support the moderate mental limitations [in the RFC]
outlined above” (Id. (emphasis added)).
In contrast, the ALJ
stated, “Dr. Reed, Dr. Spethman, Dr. Milne, and Dr. Newman are
acceptable medical sources.
Their assessments [are] given great
weight because they are supported by the evidence and consistent
with the record as a whole.
They support the above residual
functional capacity assessment” (Tr. 29 (emphasis added)).
-24-
The ALJ questioned the credibility of Ms. Loftis,
stating,
The claimant’s own statements and
activities are inconsistent with
the alleged severity of her
impairments. . . . She testified
that she had no problems
understanding jobs in the past and
she can read basic things. The
claimant last worked taking care of
her father. She also described
providing care for her 4 children
before they were put in foster care
and is hopeful to get them back.
She said she makes coffee, lets the
dogs out, picks up stuff in the
house, sits awhile, watches
television, and checks the mail.
The claimant also said she does
laundry, drives, and goes grocery
shopping. She listed her household
chores as including cleaning the
bathroom, sweeping, mopping,
dusting, and doing dishes. She
said she uses the internet for
Facebook or looking up numbers,
sometimes she texts, she talks to
family every other day, and she can
care for her own hygiene.
(Tr. 28-29).
The ALJ did not explain why Ms. Loftis’s ability to
engage in these activities of daily living would translate into
the ability to function in the workplace without unusual
accommodation or the “need” for a job coach as the ALJ quoted
from Dr. Sedlacek.
At step four, the ALJ found that Ms. Loftis was unable
to perform any past relevant work (Tr. 29).
At step five, after
noting that Ms. Loftis “has at least a high school education,”
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the ALJ found that “[c]onsidering the claimant’s age, education,
work experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy that
the claimant can perform” (Tr. 29, 30).
Consequently, the ALJ
concluded her unfavorable decision by stating, “The claimant has
not been under a disability, as defined in the Social Security
Act, from December 31, 2006 through the date of this decision”
(Tr. 30).
On March 9, 2012, Ms. Loftis requested review of the
ALJ’s decision by the SSA’s Appeals Council (Tr. 7).
On April
25, 2012, the Appeals Council declined Ms. Loftis’s request for
review; thus the ALJ’s decision is now the final decision of the
SSA (Tr. 1).
Ms. Loftis timely filed a complaint with the United
States District Court for the District of Nebraska on June 22,
2012 (Filing No. 1).
II.
A.
DISCUSSION
Standard of Review.
When reviewing an ALJ’s decision, the Court “must
determine ‘whether the ALJ’s decision complies with the relevant
legal requirements and is supported by substantial evidence in
the record as a whole.’”
Martise v. Astrue, 641 F.3d 909, 920
(8th Cir. 2011) (quoting Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010)).
“Substantial evidence” is:
relevant evidence that a reasonable
mind might accept as adequate to
-26-
support a conclusion. Substantial
evidence on the record as a whole,
however, requires a more
scrutinizing analysis. In the
review of an administrative
decision, the substantiality of
evidence must take into account
whatever in the record fairly
detracts from its weight. Thus,
the court must also take into
consideration the weight of the
evidence in the record and apply a
balancing test to evidence which is
contradictory.
Id. at 920-21.
“‘If, after reviewing the record, the court finds
it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the ALJ’s
findings, the court must affirm the ALJ’s decision.’”
Partee v.
Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting Goff v.
Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).
The Court may not
reverse the ALJ’s decision “simply because [the Court] would have
come to a different conclusion.”
Teague v. Astrue, 638 F.3d 611,
614 (8th Cir. 2011)(citation omitted).
burden of proving disability.”
B.
“The claimant bears the
Id. at 615.
The ALJ’s Decision is not Supported by Substantial Evidence
in the Record as a Whole.
1.
Assessment.
Dr. Sedlacek’s Opinions and the ALJ’s RFC
Dr. Sedlacek examined Ms. Loftis on two occasions,
in 2009 and 2011.
In fact, Dr. Sedlacek is the only physician /
psychologist who interviewed Ms. Loftis twice for the primary
purpose of evaluating Ms. Loftis’s borderline intellectual
-27-
functioning.
Yet without identifying any particular deficiencies
in Dr. Sedlacek’s reports, the ALJ gave only “some weight” to Dr.
Sedlacek’s opinions.
In contrast, the ALJ gave “great weight” to
Drs. Reed, Spethman, Milne, and Newman, particularly with regard
to the formation of the ALJ’s RFC, even though they performed
only a review of the record and did not personally examine Ms.
Loftis.
When Dr. Reed issued his 2010 report, his purpose was
to evaluate Ms. Loftis for a physical RFC, and not to assess her
intellectual functioning.
As noted above, Dr. Reed found Ms.
Loftis to be only partially credible based solely on the fact
that despite her foot pain, she still walked her children to
school.
Dr. Reed did not give any indication that he knew that
Ms. Loftis’s home was less than a block away from her children’s
school.
In 2009, Dr. Spethman, too, evaluated Ms. Loftis for a
physical RFC, and not for an assessment of her intellectual
functioning.
At that time, he found her to be credible.
When
Dr. Spethman reviewed the record a second time in 2011, he wrote,
“Claimant not precluded from all work - affirm initial assessment
dated 7/15/2010.
Claimant partially credible. -- BRB” (Tr. 404).
Dr. Spethman gave no reason for his reduction in her credibility
assessment.
-28-
Dr. Milne did perform a mental RFC evaluation, but only
on the record and without examining Ms. Loftis.
Dr. Milne
stated, “It is noted she cares for her 4 children, maintains a
household, has worked in healthcare in the past and cared for her
ailing father,” attributing Ms. Loftis with greater abilities
because of her care of four children, but, again, not knowing
that she would be deemed by Child Protective Services to be unfit
to care for them, at least temporarily (Tr. 383), and ignoring
the fact that Ms. Loftis needed several nurse home visits in 2008
and 2009 for interventions due to “impaired parenting.”
Similarly, Dr. Milne did not acknowledge the help Ms. Loftis
received from family members when she “worked in health care.”
Dr. Milne also attributes importance to Ms. Loftis’s
success in high school:
“The [claimant] does not report [special
education] and that she achieved 12 yrs of education; school
records were requested but not rec'd” (Tr. 383).
While Ms.
Loftis did graduate from high school, the record suggests that
she took special education classes throughout her academic
career.
Although graduating from high school was a laudable and
important achievement for Ms. Loftis, her diploma, based on a
special education curriculum, does not have the same vocational
significance that it might otherwise.
Based on this
misunderstanding of her ability to care for four children and the
education she received, Dr. Milne concluded, “The [claimant]
-29-
likely would be unable to perform detailed or complex tasks, but
retains the ability to perform simple and routine tasks [without]
assistance” (Id.).
Finally, Dr. Newman completed an abbreviated PRT (Tr.
402-403) based only on the record.
As with Dr. Milne, Dr. Newman
attaches significance to the ability to care for four children:
“Review of initial evidence shows IQ scores mild [mental
retardation / borderline intellectual functioning] but
[activities of daily living] include taking care of 4 children
and do activities that are necessary” (Tr. 403).
Dr. Newman
wrote that Ms. Loftis “appears capable of routine types of work
with mild to moderate limits” (Id.).
Disturbingly, Dr. Newman’s
credibility assessment was identical to that of Dr. Spethman’s
second credibility assessment:
“Claimant not precluded from all
work - affirm initial assessment dated 7/15/2010.
partially credible. -- BRB” (Id.).
Claimant
Since both reports were
created on the same day, it is unclear which one was written
first.
Like Dr. Spethman, Dr. Newman gave no reason for her
credibility assessment.
In consideration of the foregoing, the Court finds that
greater weight should be given to the 2009 and 2011 Sedlacek
Reports, and lesser weight should be given to the reports of Drs.
Reed, Spethman, Milne, and Newman.
The Court finds that the
ALJ’s RFC simply does not encompass the salient features of Ms.
-30-
Loftis’s impairment as noted in Dr. Sedlacek’s reports.
The fact
is that Ms. Loftis has never successfully held a job for any
significant length of time other than caring for her father and
her grandmother in a family home setting, with assistance from
other family members.
She was, apparently, in special education
for much of her academic career.
When her children were living
with her, she received intervention for “improper parenting.”
She has been deemed incapable of caring for her children, at
least for a time, even with her husband living with them in the
home, such that the last information available to the Court
indicated that the children were in foster care.
She rarely
leaves the home and has the support of her husband for an
activity as simple as going to the grocery store, which she only
does once a month.
Her IQ is technically in the mild mental
retardation stage, although she is able to function at a slightly
higher, borderline level.
According to Dr. Sedlacek, who
personally examined Ms. Loftis twice,
Ms. Loftis “would need
more than ordinary supervision when learning new tasks,” “could
benefit from Vocational Rehabilitation services,” and “would need
a job coach.”
Thus, the Court finds that the RFC developed by
the ALJ was not properly supported by substantial evidence in the
record, particularly as applied to Ms. Loftis’s intellectual
functioning, which was the appropriate focus of the inquiry.
-31-
2.
Vocational Expert Testimony.
“A hypothetical
question posed to the vocational expert is sufficient if it sets
forth impairments supported by substantial evidence in the record
and accepted as true by the ALJ.
The hypothetical question must
capture the concrete consequences of the claimant’s
deficiencies.”
Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir.
2001) (internal citations omitted). “When a hypothetical question
does not encompass all relevant impairments, the vocational
expert’s testimony does not constitute substantial evidence.”
Hunt, 250 F.3d at 626.
“Testimony from a vocational expert
constitutes substantial evidence only when based on a properly
phrased hypothetical question.”
Grissom v. Barnhart, 416 F.3d
834, 837 (8th Cir. 2005) (quotation omitted).
“Time and again,
this court has concluded that borderline intellectual
functioning, if supported by the record as it is here, is a
significant nonexertional impairment that must be considered by a
vocational expert.”
Swope v. Barnhart, 436 F.3d 1023, 1025 (8th
Cir. 2006) (quotation omitted).
In this case, the ALJ’s hypothetical question, based on
her RFC assessment, did not adequately encompass Ms. Loftis’s
limitations as evident by the record as a whole.
In particular,
because the vocational limitations identified by Dr. Sedlacek
were not included, the Court finds that the question did not
fully address Ms. Loftis’s borderline intellectual functioning as
-32-
relevant to the workplace.
In contrast, the Court finds that Ms.
Loftis’s attorney’s hypothetical questions, which did encompass
the limitations identified by Dr. Sedlacek and Dr. Larson,
accurately reflected the evidence in the record as a whole and
“capture[d] the concrete consequences of the claimant’s
deficiencies.”
Hunt, 250 F.3d at 625.
Consequently, the Court
accepts the vocational expert’s testimony, in response to Ms.
Loftis’s attorney’s hypothetical questions, that Ms. Loftis
“would be ready for non-competitive employment only" (Tr. 72).
The Court finds that because Ms. Loftis is unable to engage in
competitive work due to her borderline intellectual functioning,
she has been under a disability, as defined by the Social
Security Act, since December 31, 2006.
III.
CONCLUSION
The SSA’s decision will be vacated, and this matter
remanded for the award of SSD benefits to Ms. Loftis.
A separate
order will be entered in accordance with this memorandum opinion.
DATED this 11th day of April, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
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