Easley v. Commissioner of Social Security

Filing 17

ORDER REVERSING COMMISSIONER'S DECISION AND REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g). Signed by Judge James D. Todd on 3/24/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
ROY LEE EASLEY,
Plaintiff,
VS.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 12-2466-JDT

ORDER REVERSING COMMISSIONER’S DECISION AND
REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g)

This action was filed by the Plaintiff, Roy Lee Easley, to obtain judicial review of the
defendant Commissioner’s final decision denying his applications for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and for
Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq.
Plaintiff’s applications for benefits were denied initially and upon reconsideration by the
Social Security Administration. At the Plaintiff’s request, a hearing was held before an
Administrative Law Judge (“ALJ”) on November 16, 2010. (R. 24-33.) On January 25,
2011, the ALJ issued a decision finding that Plaintiff was not disabled. (R. 10-19.) The
Appeals Council denied Plaintiff’s request for review on April 16, 2012. (R. 1-5). Thus, the
ALJ’s decision became the final decision of the Commissioner.

Pursuant to 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final
decision made by the Commissioner after a hearing to which he or she was a party. The
reviewing court may “enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security, with
or without remanding the cause for a rehearing.” Id. Judicial review is limited to
determining whether or not there is substantial evidence in the record as a whole to support
the Commissioner’s decision, and whether the correct legal standards were applied. See 42
U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Lindsley v.
Comm’r of Soc. Sec., 560 F.3d 601, 604–08 (6th Cir. 2009); Kyle v. Comm’r of Soc. Sec., 609
F.3d 847, 854 (6th Cir. 2010).
Substantial evidence is evidence that a reasonable mind would accept as adequate to
support a conclusion. Perales, 402 U.S. at 401; Lindsley, 560 F.3d at 604-05; Kyle, 609 F.3d
at 854. The Commissioner, not the reviewing court, is charged with the duty to weigh the
evidence, to make credibility determinations, and to resolve material conflicts in the
testimony. See Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). In addition, if the
decision is supported by substantial evidence, it should not be reversed even if substantial
evidence also supports the opposite conclusion. See Foster v. Halter, 279 F.3d 348, 353 (6th
Cir. 2001); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
Plaintiff was born on April 28, 1967, and received a special eduction high school
diploma. (R. 18, 27, 310.) He has past relevant work experience as a production assembler.

2

(R. 18.) Plaintiff alleged that he became disabled on October 15, 2008, due to a lower back
injury. (R. 117.)
In his decision, the ALJ found that Plaintiff met the non-disability insured status
requirements and had not engaged in substantial gainful activity since his alleged disability
onset date. (R. 12.) The ALJ also found that Plaintiff’s borderline intellectual functioning,
degenerative lumbar disc disease with radiculopathy, and depression were severe
impairments but that his impairments did not, either singly or in combination, meet or
medically equal a listed impairment in 20 C.F.R., Part 404, Subpart P, Appendix 1. (R.
12-16.) The ALJ determined that Plaintiff’s medically determinable impairments could
reasonably be expected to cause his symptoms, but his statements regarding the intensity,
persistence, and limiting effects of his symptoms were not fully credible. (R. 16-17.) The
ALJ further found that Plaintiff had the residual functional capacity to perform light work
except that he was limited to only occasional climbing of ladders, ropes, and scaffolds; could
understand, remember, concentrate, and attend to the completion of low-level detailed tasks;
and had some, but not substantial, difficulties in relating to the general public, interacting
with co-workers and supervisors, and adapting to changes in work-like settings. (R. 16-18.)
Given Plaintiff’s residual functional capacity, the ALJ determined he could not perform his
past relevant work. (R. 18.) However, considering Plaintiff’s age, education, work
experience and residual functional capacity, and using the Medical-Vocational Guidelines
(“grids”) as a framework for decision-making, there are jobs that exist in significant numbers

3

in the national economy that he can perform. (R. 18-19). Accordingly, Plaintiff was not
under a disability at any time through the date of the decision. (R. 19.)
The Social Security Act defines disability as the inability to engage in substantial
gainful activity. 42 U.S.C. § 423(d)(1). The initial burden of going forward is on the
claimant to show that he is disabled from engaging in her former employment; the burden
then shifts to the Commissioner to demonstrate the existence of available employment
compatible with the claimant’s disability and background. Id.; see Felisky v. Bowen, 35 F.3d
1027, 1035 (6th Cir. 1994). The claimant bears the ultimate burden of establishing an
entitlement to benefits. Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993).
In determining disability, the Commissioner conducts a five-step sequential analysis,
as set forth in 20 C.F.R. § 404.1520 and § 416.920:
1.
2.
3.

4.
5.

An individual who is engaging in substantial gainful activity will not
be found to be disabled regardless of medical findings.
An individual who does not have a severe impairment will not be found
to be disabled.
A finding of disability will be made without consideration of vocational
factors if an individual is not working and is suffering from a severe
impairment which meets the duration requirement and which meets or
equals a listed impairment found in 20 C.F.R. Part 404, Subpart. P,
Appendix 1.
An individual who can perform work that he has done in the past will
not be found to be disabled.
If an individual cannot perform his past relevant work, other factors
including age, education, past work experience, and residual functional
capacity will be considered to determine if other work can be
performed.

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Further analysis is unnecessary if it is
determined that an individual is not disabled at any point in this sequential evaluation
4

process. Id.; see also Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 238 (6th Cir. 2002).
Here, the analysis proceeded to step five, where the ALJ determined there are jobs existing
in significant numbers in the national economy that the Plaintiff can perform based on age,
education, past work experience, and residual functional capacity.
Plaintiff contends that substantial evidence does not support the ALJ’s determination
that he does not meet Listing 12.05C, which provides:
12.05 Intellectual Disability: Intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements
in A, B, C, or D are satisfied.
....
C.
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;
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C.
At the administrative hearing, Plaintiff testified that he was in special education
classes “all through school.” (R. 27.) This is borne out by his school records. In a report
documenting pyschological testing1 that was administered to Plaintiff in 1982, when he was
in the ninth grade, the school pyschologist noted that Plaintiff had been enrolled in special
education during elementary school. The ninth grade testing showed that Plaintiff had a Full

1

The tests administered at that time were the Wechsler Intelligence Scale for ChildrenRevised and the Wide Range Achievement Test-1978 Norms. (R. 198.)
5

Scale IQ score of 68; therefore, he was certified as “Educable Mentally Retarded.” His
reading grade rating was 4.1, and his math grade rating was 3.3. (R. 198-205.)
In connection with his applications for disability benefits, Plaintiff was evaluated on
July 1, 2009, by Dr. William R. Sewell, Ph.D., a consultative psychologist. (R. 310-317.)
During the evaluation, with regard to his activities of daily living, Plaintiff reported that he
could microwave food for himself, but would sometimes go all day without eating. He did
not help his mother with chores. He visited with relatives during the day, watched television,
and went to bed around 10:00 p.m. (R. 311.) Plaintiff’s memory was intact, his abstract
reasoning was poor, his judgment reasonable, and his fund of information and vocabulary
was as expected for someone in the low average range of intelligence. (Id.)
Dr. Sewell administered the Wechsler Adult Intelligence Scale-IV (WAIS-IV) and the
Wide Range Achievement Test-revision IV. The intelligence testing resulted in a Full Scale
IQ score of 61. Dr. Sewell summarized the IQ testing as follows:
[Plaintiff’s] general cognitive ability, as estimated by the WAIS-IV, is in the
extremely low range (FSIQ = 61). Roy’s verbal comprehension and perceptual
reasoning abilities were both in the extremely low range (VCI = 68, PRI = 65).
Roy’s ability to sustain attention, concentrate, and exert mental control is in
the extremely low range (WMI = 69.) Roy’s ability in processing simple or
routine visual material without making errors is in the extremely low range
when compared to his peered (PSI = 65).
(R. 314.) Plaintiff’s achievement test scores were comparable, with both reading composite
and math computation scores at the 1% percentile. (R. 314-315.) Dr. Sewell concluded that
Plaintiff was “functioning in the mild mental retardation range of intelligent [sic]
cognitively.” (R. 315.) In assessing Plaintiff’s ability to do work-related activities, Dr.
6

Sewell stated that he could “complete several step non-skilled duties,” follow instructions
and rules, respond properly to supervisors and co-workers, exercise reasonable judgment, and
behave in an emotionally stable way. (Id.)
The ALJ’s discussion of whether Plaintiff met or equaled Listing 12.05 is internally
inconsistent. The ALJ first stated Plaintiff had the ability to drive, care for his own personal
needs, cook, attend church, socialize with his brother, and go shopping. Based on those
specific abilities, the ALJ found that Plaintiff had moderate, not mild, restrictions in three
areas: activities of daily living, social functioning, and the ability to maintain concentation,
persistence, and pace. However, the ALJ then stated, “despite the [Plaintiff’s] low IQ scores
and diagnosis of borderline intellectual functioning his adaptive functioning abilities remain
intact as evidenced by the above noted abilities and his extensive work history.” (R. 14.)2
That finding inexplicably dismisses the moderate functional restrictions just identified.
The ALJ also rejected the results of Plaintiff’s IQ testing and Dr. Sewell’s conclusion
that Plaintiff was mildly mentally retarded. Instead, he relied on Dr. Sewell’s opinion that
Plaintiff could perform the most basic work-related activities. The ALJ then once more
referred to Plaintiff’s daily activities: “The claimant is also noted to be capable of a variety
of activities of daily living such as caring for his own personal needs, managing money,
shopping, driving, and cooking; activities that exhibit a much higher level of functioning than

2

Merely having a long work history does not necessarily prove that a claimant has no
deficits in adaptive functioning. Many individuals with mild mental retardation are gainfully
employed, and Listing 12.05C does not require a claimant to demonstrate that he is so
functionally limited he was never able to hold a job.
7

testing results would indicate.” (R. 15.) This statement by the ALJ again fails to account for
the previous finding that Plaintiff was moderately restricted in his activities of daily living.3
The ALJ’s determination that Plaintiff did not meet Listing 12.05C is not supported
by substantial evidence. However, the evidence of disability in the record is not so
overwhelming that benefits should be awarded, see Faucher v. Sec’y of Health & Human
Res., 17 F.3d 171, 176 (6th Cir. 1994). The Commissioner is directed to re-evaluate this
case, which shall include making a clearer assessment of whether Plaintiff meets or equals
Listing 12.05C.
Therefore, Commissioner’s decision is REVERSED, and the case is remanded for
further proceedings under sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

3

The ALJ also strangely stated that Plaintiff “has required no mental health treatment for
his low intellectual functioning.” (R. 16.) Low intellectual functioning does not require
treatment.
8