Lennox v. Commissioner of Social Security

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION 18 of Magistrate Judge Gary Purcell and reverses the decision of the Commissioner and remands the case for further proceedings consistent with this opinion...in any further proceedings the Commissioner should consider all 12/05 grounds then urged by plaintiff as well as applicable guidelines based on his then determined age. Signed by Honorable Joe Heaton on 11/23/2015. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DONALD L. LENNOX,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)

NO. CIV-15-0073-HE

ORDER
Plaintiff Donald L. Lennox (“Lennox”) filed this action appealing the final decision
of the Commissioner of the Social Security Administration (“Commissioner”) denying his
application for supplemental security income benefits. The case was referred to Magistrate
Judge Gary M. Purcell under 28 U.S.C. § 636(b)(1)(B), and he has recommended that the
Commissioner’s decision be reversed and the matter remanded for further proceedings [Doc.
#18]. The Commissioner has filed an objection to the Report and Recommendation [Doc.
#19].
Having conducted de novo review,1 the court concludes the Commissioner’s decision
should be reversed and remanded, though on a different basis than that set out in the Report
and Recommendation (the “R&R” hereafter).

1

The general standards applicable to the court’s review are set out in the Report and
Recommendation and will not be repeated here.

Background
Lennox applied for supplemental security income benefits on June 9, 2010, alleging
he suffered a learning disability, back pain, a skin rash, and depression. His application was
denied on initial consideration and reconsideration. Lennox then requested a hearing by an
administrative law judge (“ALJ”). A hearing was held and, by that time, Lennox was
represented by counsel. Counsel argued at the hearing that Lennox qualified as disabled
because he met or exceeded the standards of Listing 12.05D for mental retardation (now
referenced as “intellectual disability” in the regulations).2 The ALJ issued an unfavorable
decision on August 20, 2013, focusing principally on the 12.05D standards. The ALJ
concluded that Lennox did not meet the standards of 12.05D, that he was capable of
performing work as a ground maintenance worker, a janitor, or a dishwasher, that he was
therefore not disabled under the Social Security Act, and that he was not entitled to benefits.
The Appeals Council denied plaintiff’s request for review, so the ALJ’s decision is the final
decision of the Commissioner.
Discussion
The posture of this case is somewhat out of the ordinary. In his appeal to this court,
Lennox appears to shift to a different basis for his disability determination than that which
he urged before the ALJ. Here, he says his intellectual disability met or exceeded the

2

See counsel’s statement at page 69 of the record on appeal (“ROA” hereafter): “As you
know, this claim is essentially not on physical, but it’s on mental, the mental claim, and I guess,
as you know, we’re respectably [sic] submitting to the court that the claimant meets or exceeds
the listing on 12.05D or in the alternative under the grid rules of 203.01 and grid 203.02.”
2

standards for impairment under Listing 12.05, but relies on 12.05C rather than 12.05D. The
Commissioner doesn’t exactly object to that shift and, to some degree, all parties and the
R&R largely migrate to a discussion of 12.05C (“Part C”). Indeed, as the R&R accurately
states, “Plaintiff does not dispute the ALJ’s findings with respect to parts A, B, or D.” [Doc.
#18 at 8.] Then, notwithstanding that lack of dispute, the R&R goes through a relatively
detailed analysis of 12.05D (“Part D”) and concludes there is no evidence, or at least no
substantial evidence, to support the ALJ’s conclusions as to Part D. The R&R also addressed
an additional issue not raised by the plaintiff, concluding that the ALJ had erred by not
considering, in connection with his determination of plaintiff’s residual functional capacity
for step 5 purposes, the fact that by the time of the hearing the plaintiff was 50 years of age
and therefore “approaching advanced age” within the meaning of the regulations. See 20
C.F.R. § 220.128(c). As the plaintiff has not objected to either the Commissioner’s
determination as to Part D or the mechanics of the residual functional capacity determination,
the court declines to reverse the decision on those grounds.3 It is not this court’s job to raise
and construct plaintiff’s arguments for him.
With respect to whether the plaintiff is disabled under Part C,4 the court concludes

3

The court is less confident than the magistrate judge that there was no evidence to
support the ALJ’s Part D determination, but it is unnecessary to resolve the question here in
light of the court’s disposition of this appeal on other grounds.
4

Listing 12.05C requires, in addition to the “early onset” requirement which is not
disputed here, a showing that the claimant had “A valid verbal, performance or full scale IQ of
60 through 70 and a physical or other mental impairment imposing an additional and significant
work-related limitation of function . . . .”
3

resolution of that question requires that the decision be reversed and the case remanded for
further proceedings. Under the Social Security Act, an ALJ is required to discuss the
evidence and explain why he or she found the plaintiff not to be disabled. 42 U.S.C. §
405(b)(1); see also Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). That does not
require a discussion of every piece of evidence, but it does require some discussion of
significant probative and uncontroverted evidence that the ALJ declined to rely on. Clifton,
79 F.3d at 1010. Here, the opinions of Dr. Poyner addressing her additional diagnoses of
plaintiff’s condition are that type of evidence, but the ALJ’s opinion is silent as to why he
rejected them, discounted them, or otherwise declined to give them some effect in making
his determination. Further, the ALJ’s largely conclusory discussion of Part C leaves this
court unclear as to exactly what the basis for his conclusion as to that part was. The order
states, “In terms of the requirements in paragraph C, they are not met because the claimant
does not have a valid verbal, performance, or full scale IQ of 60 through 70 and a physical
or other mental impairment imposing an additional and significant work-related limitation
of function.” (ROA at 23). The subsequent discussion leaves the court unclear as to whether
this language means the ALJ thought the IQ requirement not to have been met,5 or the
necessary limitations of function to be lacking, or both. In these circumstances, where the
basis and reasoning for the decision is unclear, it is virtually impossible to conduct a

5

There is evidence in the record, mentioned in the decision, suggesting that plaintiff’s IQ
determination may have been affected by alcohol use, but the decision stops short of any explicit
determination that the plaintiff’s full scale IQ of 63 was invalid.
4

meaningful review of the sufficiency of the evidence to support the Commissioner’s
determination.
For these reasons, the court adopts the ultimate conclusion of the Report and
Recommendation, REVERSES the decision of the Commissioner, and REMANDS the case
for further proceedings consistent with this opinion. In any further proceedings, the
Commissioner should consider all 12.05 grounds then urged by plaintiff, as well as
applicable guidelines based on his then-determined age.
IT IS SO ORDERED.
Dated this 23rd day of November, 2015.

5