RIDDLE v. ASTRUE

Filing 17

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 9/1/2011. 9/2/2011 ENTERED AND COPIES E-MAILED. (ems)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JEFFERY RIDDLE
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security

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CIVIL ACTION
NO. 10-5086

MEMORANDUM
J. WILLIAM DITTER, JR., Sr. J

September 1, 2011

Upon consideration of the brief in support of request for review filed by plaintiff
(Doc. No. 14), defendant’s response and plaintiff’s reply thereto (Doc. Nos. 15 & 16), I make the
following findings and reach the following conclusions:
1.
On October 31, 2007, Jeffery J. Riddle protectively filed an application for
supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. §§ 13811383f, alleging an onset date of October 31, 2007. (Tr. 109-115). Throughout the administrative
process, including a hearing held on June 23, 2009, before an ALJ, Riddle’s claims were denied.
(Tr. 14-24; 26-46; 83-87). After the Appeals Council denied review, pursuant to 42 U.S.C. §
405(g), Riddle filed his complaint in this court on September 27, 2010. (Tr. 1-4; Doc. No. 3).
2.
In his July 29, 2009, decision, the ALJ concluded, inter alia, that: (1)
Riddle had severe low back pain, depression, and drug and alcohol abuse; (2) his impairments
did not meet or equal a listing; (3) he had the RFC to perform medium work with some postural
limitations and only simple instructions or routine/repetitive work with accommodations for
lapses in concentration/attention, and limited contact with the public; (4) he could perform work
existing in significant numbers in the national economy; and (5) Riddle was not disabled. (Tr. 16
Findings 2 & 3; 17 Finding 4; 22 Finding 9; 24 Finding 10).
3.
The Court has plenary review of legal issues, but reviews the ALJ’s factual
findings to determine whether they are supported by substantial evidence. Schaudeck v. Comm’r
of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)). Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)); see also Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.
1979). It is more than a mere scintilla but may be less than a preponderance. See Brown v.
Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
4.
Riddle raises three arguments regarding the ALJ’s handling of his alleged
mental retardation: (1) that the ALJ erred by failing to find that he met Listing 12.05C (mental
retardation); (2) that the ALJ erred by failing to procure the opinion of a medical expert (“ME”)

regarding whether his impairments equaled a listing based on new evidence of mental
retardation1; and (3) that the ALJ erred by failing to find mental retardation a severe impairment.
All of these arguments succeed or fail based on whether the ALJ properly considered and
rejected evidence of alleged mental retardation submitted to him after the hearing but before he
rendered his decision. After due consideration of all of the arguments and evidence, I find that
the ALJ committed legal error in his analysis of this evidence. As a result, and as more fully
developed below, I must remand this case for further consideration.
Riddle did not raise mental retardation as an impairment in his application
for benefits or during the hearing. However, the record does contain school records showing
very poor results on the California Achievement Tests when he was 16, and during the hearing,
Riddle testified that he could not read or write and that he had a learning disability. (Tr. 44-45;
260). According to defendant, Riddle first alleged that he had “mild mental retardation”
following the June 23, 2009, hearing when he submitted to the ALJ a December 2008
psychoeducational evaluation from Dr. Robin P. Arnold of NHS Human Services. The
evaluation included results from the Wechsler Adult Intelligence Scale and the Wechsler
Individual Achievement Test. (Tr. 302-08). More specifically, the test results revealed that
Riddle had a full scale IQ score of 65 (falling in the extremely low range); a verbal IQ score of 64
(also falling within the extremely low range), and a performance IQ score of 73 (falling in the
borderline range).2 (Tr. 304-05). This report is the only recent evidence on intellectual
deficiencies and is the main piece of evidence relied on by Riddle in support of his claims.
An ALJ must consider impairments that the claimant says he or she has or
about which the ALJ receives evidence. 20 C.F.R. § 416.912(a). Although not terribly timely,
Riddle did allege mental retardation and did submit evidence in support thereof before the ALJ
rendered his decision. Therefore, the ALJ had a duty to consider mental retardation. The ALJ
did not mention mental retardation in his opinion nor did he review Listing 12.05C. However,
the ALJ did discuss the December 2008 psychoeducational evaluation and accorded it little
substantial weight. (Tr. 20). While defense counsel now attempts to manufacture a list of
reasons why the ALJ may have rejected the evidence,3 the only clear reason the ALJ gave for
rejecting the evaluation was that it appeared to the ALJ “that [Riddle] sought out this evaluation
for the sole purpose of assisting him to obtain social security disability benefits. [Riddle] did not
seek an evaluation/treatment for his health maintenance and improvement. It appears that he
1

W hen the ALJ receives additional medical evidence that may, in his/her opinion, change the state agency
medical expert’s opinion that a claimant’s impairments do not equal a listing, the ALJ must get an updated opinion
from an ME. S.S.R. 96-6p. Here, the state agency physician, who rendered his opinion before the new evidence was
available, opined that Riddle did not meet or equal any listing. (Tr. 204-16).
2

One of the requirements of Listing 12.05C is a valid verbal, performance or full scale IQ score of 60
through 70.
3

The law is clear that “‘[t]he grounds upon which an administrative order must be judged are those upon
which the record discloses that its action was based.’” Fargnoli v. Massanari, 247 F.3d 34, 44 (3d Cir. 2001)
(quoting SEC v. Chenery Corporation, 318 U.S. 80 (1943)). Therefore, I will not entertain defendants post hoc
reasoning and will focus only on the ALJ’s explanation.

2

sought the evaluation for his ulterior motives of obtaining disability benefits.” (Id.). Riddle does
not contest that he obtained the testing in order to support his application for benefits.
An ALJ may not reject objective medical evidence based on lay opinion or
speculation. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). Here, the ALJ based his
decision to reject the December 2008 testing results on pure speculation that Riddle had “ulterior
motives” in receiving the testing. The ALJ did not base his decision on contrary evidence since
there is no such evidence in the record. I conclude that the ALJ committed a legal error by
improperly rejecting the December 2008 psychoeducational evaluation from Dr. Arnold.
As a result, a remand is necessary. On remand, the ALJ shall re-evaluate
any evidence of mental retardation at each step of the sequential analysis and retain an ME if
necessary. The ALJ shall especially consider whether Riddle’s alleged mental retardation is
severe and whether the evidence establishes that Riddle meets Listing 12.05C.
An appropriate Order follows.