Bueno v. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER: The hearing decision is reversed and this case is remanded to the Commissioner of Social Security for further proceedings consistent with this opinion. (Ordered by Magistrate Judge David L Horan on 1/3/2017) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JONATHAN BUENO,

§
§
Plaintiff
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§
V.
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CAROLYN W. COLVIN,
§
Acting Commissioner of Social Security, §
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Defendant.
§

No. 3:15-cv-3975-BN

MEMORANDUM OPINION AND ORDER
Plaintiff Jonathan Bueno seeks judicial review of a final adverse decision of the
Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). For the reasons
explained below, the hearing decision is reversed.
Background
Plaintiff alleges that he is disabled due to speech problems and the inability to
speak. See Administrative Record [Dkt. No. 13 (“Tr.”)] at 167. After his applications for
disability insurance benefits and supplemental security income (“SSI”) benefits were
denied initially and on reconsideration, Plaintiff requested a hearing before an
administrative law judge (“ALJ”). That hearing was held on July 8, 2014. See id. at 3373. At the time of the hearing, Plaintiff was 19 years old. See id. at 40. He is a high
school special education graduate, and has no past work experience. See id. at 43, 48.
Plaintiff has not engaged in substantial gainful activity since May 7, 2013. See id. at
19.

The ALJ found that Plaintiff was not disabled and therefore not entitled to
disability or SSI benefits. Although the medical evidence established that Plaintiff
suffered from morbid obesity, borderline intellectual functioning, communication
disorder NOS, articulation disorder with reading disorder, and apraxia, the ALJ
concluded that the severity of those impairments did not meet or equal any impairment
listed in the social security regulations. See id. at 19, 24. The ALJ further determined
that Plaintiff had the residual functional capacity to perform a limited range of
medium work. See id. at 25. Relying on a vocational expert’s testimony, the ALJ found
that Plaintiff was capable of working as a diversified farm worker or cleaner – jobs that
exist in significant numbers in the national economy. See id. at 29.
Plaintiff appealed that decision to the Appeals Council. The Council affirmed.
Plaintiff then filed this action in federal district court. Plaintiff contends that the
ALJ’s determination that his speech impairment did not meet a listing was not
supported by substantial evidence. See Dkt. No. 16.
The Court determines that the hearing decision must be reversed and this case
remanded to the Commissioner of Social Security for further proceedings consistent
with this opinion.
Legal Standards
Judicial review in social security cases is limited to determining whether the
Commissioner’s decision is supported by substantial evidence on the record as a whole
and whether Commissioner applied the proper legal standards to evaluate the
evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014);
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Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “more than
a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
accord Copeland, 771 F.3d at 923. The Commissioner, rather than the courts, must
resolve conflicts in the evidence, including weighing conflicting testimony and
determining witnesses’ credibility, and the Court does not try the issues de novo. See
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994). This Court may not reweigh the evidence or substitute its
judgment for the Commissioner’s but must scrutinize the entire record to ascertain
whether substantial evidence supports the hearing decision. See Copeland, 771 F.3d
at 923; Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). The Court “may affirm
only on the grounds that the Commissioner stated for [the] decision.” Copeland, 771
F.3d at 923.
“In order to qualify for disability insurance benefits or [supplemental security
income], a claimant must suffer from a disability.” Id. (citing 42 U.S.C. § 423(d)(1)(A)).
A disabled worker is entitled to monthly social security benefits if certain conditions
are met. See 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage
in substantial gainful activity by reason of any medically determinable physical or
mental impairment that can be expected to result in death or last for a continued
period of 12 months. See id. § 423(d)(1)(A); see also Copeland, 771 F.3d at 923; Cook v.
Heckler, 750 F.2d 391, 393 (5th Cir. 1985). The Commissioner has promulgated a five-

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step sequential evaluation process that must be followed in making a disability
determination:
1.

The hearing officer must ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is working
is not disabled regardless of the medical findings.

2.

The hearing officer must determine whether the claimed
impairment is “severe.” A “severe impairment” must significantly
limit the claimant’s physical or mental ability to do basic work
activities. This determination must be made solely on the basis of
the medical evidence.

3.

The hearing officer must decide if the impairment meets or equals
in severity certain impairments described in Appendix 1 of the
regulations. The hearing officer must make this determination
using only medical evidence.

4.

If the claimant has a “severe impairment” covered by the
regulations, the hearing officer must determine whether the
claimant can perform his or her past work despite any limitations.

5.

If the claimant does not have the residual functional capacity to
perform past work, the hearing officer must decide whether the
claimant can perform any other gainful and substantial work in
the economy. This determination is made on the basis of the
claimant's age, education, work experience, and residual functional
capacity.

See 20 C.F.R. § 404.1520(b)-(f); Copeland, 771 F.3d at 923 (“The Commissioner
typically uses a sequential five-step process to determine whether a claimant is
disabled within the meaning of the Social Security Act. The analysis is: First, the
claimant must not be presently working. Second, a claimant must establish that he has
an impairment or combination of impairments which significantly limit [her] physical
or mental ability to do basic work activities. Third, to secure a finding of disability
without consideration of age, education, and work experience, a claimant must
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establish that his impairment meets or equals an impairment in the appendix to the
regulations. Fourth, a claimant must establish that his impairment prevents him from
doing past relevant work. Finally, the burden shifts to the Secretary to establish that
the claimant can perform the relevant work. If the Secretary meets this burden, the
claimant must then prove that he cannot in fact perform the work suggested.” (internal
quotation marks omitted)); Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007) (“In
evaluating a disability claim, the Commissioner conducts a five-step sequential
analysis to determine whether (1) the claimant is presently working; (2) the claimant
has a severe impairment; (3) the impairment meets or equals an impairment listed in
appendix 1 of the social security regulations; (4) the impairment prevents the claimant
from doing past relevant work; and (5) the impairment prevents the claimant from
doing any other substantial gainful activity.”).
The claimant bears the initial burden of establishing a disability through the
first four steps of the analysis; on the fifth, the burden shifts to the Commissioner to
show that there is other substantial work in the national economy that the claimant
can perform. See Copeland, 771 F.3d at 923; Audler, 501 F.3d at 448. A finding that the
claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. See Copeland, 771 F.3d at 923; Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four elements
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to determine whether there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) subjective
evidence of pain and disability; and (4) the claimant’s age, education, and work history.
See Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the
resulting decision is not substantially justified. See id. However, the Court does not
hold the ALJ to procedural perfection and will reverse the ALJ’s decision as not
supported by substantial evidence where the claimant shows that the ALJ failed to
fulfill the duty to adequately develop the record only if that failure prejudiced Plaintiff,
see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) – that is, only if Plaintiff’s
substantial rights have been affected, see Audler, 501 F.3d at 448. “Prejudice can be
established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a
different decision.” Ripley, 67 F.3d at 557 n.22. Put another way, Plaintiff “must show
that he could and would have adduced evidence that might have altered the result.”
Brock v. Chater, 84 F.3d 726, 728-29 (5th Cir. 1996).
Analysis
At step three, the ALJ found that Plaintiff does not have an impairment that
meets or medically equals the severity of one of the listed impairments in the social
security regulations. See Tr. at 23. Plaintiff contends that this finding is not supported

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by substantial evidence because the ALJ failed to consider whether he meets the
requirements for Listing 2.09. See Dkt. No. 16 at 3-7.
During the step-three evaluation process, the ALJ compares the claimant’s
impairments with impairments considered severe enough to disable an individual. See
Loza v. Apfel, 219 F.3d 378, 390 (5th Cir.2000); 20 C.F.R. § 404.1520(d). Often referred
to as “the Listings,” the impairments are listed in Appendix 1 of the regulations. See
20 C.F.R. Part 404, Subpart P, app. 1. When an ALJ’s step-three determination is at
issue, the reviewing court must (1) determine whether the ALJ supported the stepthree determination with a discussion of the relevant evidence, and, if he failed to do
so, (2) determine whether the ALJ’s error was harmless. See Cadzow v. Colvin, No.
5:12-cv-225-C, 2013 WL 5585936, at *4 (N.D. Tex. Oct.10, 2013) (citing Audler, 501
F.3d at 448-49). Error is “harmless” when it does not compromise the ALJ’s ultimate
conclusion. See id. (citing Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988)). But, if
the uncontroverted evidence suggests that the claimant’s impairments meet the
requirements of a listing, the ALJ’s failure to provide the basis for his step-three
decision is error that requires remand. See Cadzow, 2013 WL 5585936, at *4 (citing
Audler, 501 F.3d at 449).
At step three, the ALJ must identify every Listing that could apply to the
claimaint. See Bentley v. Comm’r of the Soc. Sec. Admin., 3:10-cv-32-L, 2011 WL
903455, at *10 (N.D. Tex. Feb. 24, 2011) (citing Audler, 501 F.3d at 448). Here, the ALJ
determined that Plaintiff did not have a mental impairment that met or medically
equaled the requirements of Medical Listing 12.02, paragraphs B and C. But the ALJ
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did not address whether Plaintiff’s speech impairments met the requirements for
Medical Listing 2.09. See Tr. at 24-26.
Listing 2.09 requires a finding of disability when the claimant’s “loss of speech”
causes the “inability to produce by any means speech that can be heard, understood,
or sustained.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 2.09. “To speak effectively, an
individual must be able to produce speech that can be heard, understood, and
sustained well enough to permit useful communication in social and vocational
settings.” SSR 82-57, 1982 WL 31382, at *1 (S.S.A. Jan. 1, 1982). Audibility,
intelligibility and functional efficiency are necessary for speech proficiency. If any of
these attributes are missing, the overall speech function is not considered effective. See
id.
In his discussion of the evidence at step three, the ALJ noted that, in activities
of daily living, Plaintiff “has effectively engaged in his speech therapy classes”; in social
functioning, “Plaintiff did well when he was one-on-one with other people” during
vocational training with the Department of Assistive and Rehabilitative Services
(“DARS”) but “has had significant difficulty with his speech throughout the record due
to his impairments”; and that Plaintiff’s “persistence in speech therapy has been
excellent.” Tr. at 25. But the ALJ made these findings in his analysis of Plaintiff’s
mental impairments, and the Commissioner concedes that the ALJ did not specifically
mention Medical Listing 2.09 in his step-three analysis. The ALJ’s failure to consider
whether Plaintiff’s speech impairment met the criteria for disability under Listing 2.09
was error.
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But this error only warrants reversal if the claimant’s “substantial rights” were
affected. See Audler, 501 F.3d at 448. A claimant’s substantial rights are affected
where the claimant “would appear to have met [his] burden of demonstrating that [he]
meets the Listing requirements for” Section 103.03(C)(2). Id. at 449. In Audler, the
United States Court of Appeals for the Fifth Circuit determined that remand to the
Commissioner was required because the record contained medical reports with
uncontroverted findings that, if accepted by the ALJ, would have satisfied the criteria
for meeting the listing’s requirements. See id. at 448-49.
While Plaintiff claims that the evidence demonstrates that he met Listing 2.09,
see Dkt. No. 16 at 4-7, Defendant contends otherwise, see Dkt. No. 17 at 7-10. More
specifically, Defendant contends that the evidence demonstrates Plaintiff was able to
speak well enough at a rate to be sustained sufficiently to be heard, understood, and
permit useful communication in a social and work setting. See id. at 7.
Defendant argues that Plaintiff ignores a note made in a vocational adjustment
training evaluation that Plaintiff was observed conversing with another classmate at
breaks and lunch, see Tr. at 308, which was mentioned by the ALJ in his step-two
analysis, see id. at 20. In the same report, it was noted that Plaintiff’s speech
impairment interfered with him talking in front of other students, he would only talk
with the counselor one-on-one when no one else was present, he could not bring himself
to verbalize his responses to assignments but would let the instructor read his written
responses, and word fluency was difficult even though he often tried. The instructor

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concluded that Plaintiff has a communication problem and severe speech impediment
and articulation problems. See id. at 309.
Defendant also challenges Plaintiff’s reference to interrogatory answers provided
by Plaintiff’s speech therapist, Irene Burtis, because Plaintiff fails to acknowledge that
the ALJ gave very little weight to the interrogatory answers when determining
Plaintiff’s residual functional capacity (“RFC”). See id. at 28, 395-98. Ms. Burtis
diagnosed Plaintiff with apraxia, a motor speech disorder resulting in the “inability to
utilize motor planning to perform movement necessary for speech.” Id. at 395. Ms.
Burtis made her assessment based on both personally listening to Plaintiff’s speech
and on his history of performance in living situations. See id. Ms. Burtis further stated
that “intelligibility is the issue.” Id. As it relates to ability to articulate/intelligibility,
in her opinion, Plaintiff has difficulty with pronunciation, an individual unaccustomed
to hearing his speech will have difficulty understanding him more than 20% of the
workday, and Plaintiff demonstrates stimuability for correct production within the
structure of speech therapy and lacks the flexibility in speech repertoire to successfully
meet complexities and challenges of conversing spontaneously. See id. at 396. She
further opined that Plaintiff would be asked to repeat himself more than 20% of a
workday due to lack of flexibility of using another word or restating and would run the
risk of not being understood at all. See id. at 397. As it relates to rate of speech, she
noted that Plaintiff cannot speak clearly and distinctly with appropriate pauses and
emphasis, correct pronunciations, variations in word order, or using present and past

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tenses due to difficulties in producing the consonant clusters that form the word
inflections. See id.
The ALJ found that Plaintiff had the RFC to perform medium work but imposed
the limitations that Plaintiff can have no interaction with the general public, rare
interaction with coworkers and occasional interaction with supervisors and that
Plaintiff requires a work environment in which he deals with objects rather than
people. See id. at 25. In making the RFC determination, the ALJ gave Ms. Burtis’s
opinion moderate weight to the extent that Plaintiff will have difficulty communicating
with others but observed that Ms. Burtis “does not indicate that the claimant is
precluded from all communication.” Id. The ALJ otherwise gave Ms. Burtis’s opinion
very little weight to the extent that it could be interpreted to ascribe greater
limitations than were included in the RFC. See id.
Defendant argues that Plaintiff was not harmed by the ALJ’s failure to consider
Listing 2.09 because he “does not demonstrate, or even claim, that he is more limited
than the ALJ stated in the RFC assessment.” Dkt. No. 17 at 9.
But Plaintiff claims that he is completely disabled under the criteria of Listing
2.09. And, in addition to Ms. Burtis’s opinion, Plaintiff points to substantial evidence
in the record that Plaintiff’s speech was unintelligible. See Dkt. No. 16 at 4-7.
While the determination of whether the evidence in the record meets or
medically equals the requirements of the listing is the ALJ’s to make, the ALJ’s failure
to even consider the evidence in light of Listing 2.09 suggests that his determination

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was incomplete. The Court concludes that Plaintiff’s substantial rights were affected
by the ALJ’s failure to consider Listing 2.09.
Therefore, the ALJ’s opinion should be vacated, and this case remanded, so that
the ALJ can conduct a more thorough analysis of the evidence and whether it meets
the requirements found in Listing 2.09.
Conclusion
The hearing decision is reversed and this case is remanded to the Commissioner
of Social Security for further proceedings consistent with this opinion.
SO ORDERED.
DATED: January 3, 2017

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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