Elizondo v. Astrue

Filing 19

MEMORANDUM OPINION AND ORDER: the Commissioner's final administrative decision, which is the Administrative Law Judge's Hearing Decision, signed November 4, 2011, is REVERSED and the action is REMANDED to the Acting Commissioner for further administrative proceedings. Signed by Judge Andrew W. Austin. (kkc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MARY ANN SANCHEZ ELIZONDO,
v.
CAROLYN W. COLVIN,1
ACTING COMMISSIONER OF THE
SOCIAL SECURITY
ADMINISTRATION.

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A-13-CA-0081-AWA

MEMORANDUM OPINION AND ORDER
Before the Court are: Plaintiff Mary Ann Sanchez Elizondo’s Complaint seeking reversal
of the final decision of the Social Security Administration (Dkt. # 1); Defendant Carolyn W.
Colvin’s Answer (Dkt. No. 10); Plaintiff’s Brief in Support of Claim (Dkt. # 16); and Defendant’s
Brief in Support of the Commissioner’s Decision (Dkt. # 18). Also before the Court is the Social
Security record filed in this case (Cited as “Tr.”).

I. GENERAL BACKGROUND
Plaintiff Mary Ann Sanchez Elizondo (“Elizondo”) filed her application for a period of
disability and disability insurance benefits on February 23, 2010. Tr. at 15. Elizondo also filed a
Title XVI application for supplemental security income on February 23, 2010. Id. In both
applications, Elizondo alleged disability beginning on December 1, 2007. Id. Elizondo’s claims
were denied initially on July 6, 2010, and upon reconsideration on October 25, 2010. Tr. at 93-98,
112.

After Elizondo filed a written request for a hearing, a hearing was held before an

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On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of the Social
Security Administration following the expiration of Michael J. Astrue’s six-year term as
Commissioner.

Administrative Law Judge (“ALJ”) on April 21, 2011. Tr. at 15. A second hearing was held before
an ALJ on August 26, 2011. Id. On November 4, 2011, the ALJ issued a decision finding that
Elizondo was not disabled. After the Appeals Council declined to review Elizondo’s case on
October 11, 2012, the ALJ’s decision became the final administrative decision of the Commissioner
for purposes of the Court’s review pursuant to 42 U.S.C. § 405(g). Elizondo filed the instant lawsuit
on January 30, 2013, pursuant to 42 U.S.C. § 405(g), requesting that the Court reverse and remand
the ALJ’s decision for an award of benefits or, in the alternative, for further administrative
proceedings. Dkt. No. 16 at 12.
II. STANDARD OF REVIEW
The Social Security Act defines “disability” as an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment . . . which
has lasted or expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). To determine if a claimant is disabled and unable to engage in “substantial gainful
activity” the Social Security Commissioner employs a five-step analysis:
1.

a claimant who is working, engaging in a substantial gainful activity, will not be
found to be disabled regardless of the medical findings;

2.

a claimant will not be found to be disabled unless he has a “severe impairment”;

3.

a claimant whose impairment meets or is equivalent to an impairment listed in
Appendix 1 of the regulations will be considered disabled without the need to
consider vocational factors;

4.

a claimant who is capable of performing work that he has done in the past must be
found “not disabled”; and

5.

if the claimant is unable to perform his previous work as a result of his impairment,
then factors such as his age, education, past work experience, and residual functional
capacity must be considered to determine whether he can do other work.

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Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); 20 C.F.R. § 404.1520. A finding of no
disability at any step is conclusive and terminates the analysis. Greenspan v. Shalala, 38 F.3d 232,
236 (5th Cir. 1994), cert. denied, 514 U.S. 1120 (1995). The claimant has the burden of proof for
the first four steps; at step five, the burden initially shifts to the Commissioner to identify other work
the applicant is capable of performing. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). Then,
if the Commissioner “fulfills [his] burden of pointing out potential alternative employment, the
burden . . . shifts back to the claimant to prove that he is unable to perform the alternate work.” Id.
(citation omitted).
Judicial review of the Commissioner’s final decision under the Social Security Act, 42
U.S.C. § 405(g), is limited to two inquiries: (1) whether substantial evidence supports the
Commissioner’s decision, and (2) whether the Commissioner correctly applied the relevant legal
standards. Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997). Substantial evidence constitutes
more than a scintilla of evidence but less than a preponderance–in other words, “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Martinez v.
Chater, 64 F.3d 172, 172 (5th Cir. 1995).
The Court considers four elements of proof when determining whether there is substantial
evidence of a disability: (1) objective medical facts; (2) diagnoses and opinions of treating and
examining physicians; (3) the claimant’s subjective evidence of pain and disability; and (4) the
claimant’s age, education, and work history. Id. at 174. However, the Court cannot reconsider the
evidence, but may only scrutinize the record to determine whether it contains substantial evidence
to support the Commissioner’s decision. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). Thus,
the Court may not “reweigh the evidence in the record, nor try the issues de novo, nor substitute [its]
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judgment for the [Commisioner’s], even if the evidence preponderates against the [Commissioner’s]
decision.” Harrell v. Brown, 862 F.2d 471, 475 (5th Cir. 1988) (per curiam). If the Court finds
substantial evidence to support the decision, the Court must uphold the decision. See Selders, 914
F.2d at 617 (“If the . . . findings are supported by substantial evidence, they are conclusive and must
be affirmed.”); 42 U.S.C. § 405(g).

III. FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
After considering all of the evidence before her, the ALJ determined that Elizondo meets the
insured status requirements of the Social Security Act through June 30, 2011, and that she has not
engaged in substantial gainful activity since the alleged onset date of her disabilities, December 1,
2007, under 20 C.F.R. § 404.1571 et seq. and 20 C.F.R. § 416.971 et seq. Tr. at 18. The ALJ found
that Elizondo had severe impairments of (1) lumbar degenerative disc disease, (2) borderline
intellectual functioning, and (3) depression under 20 C.F.R. § 404.1520(c) and 20 C.F.R. §
416.920(c). Tr. at 18. However, the ALJ found that Elizondo did not have an impairment nor
combination of impairments that meets or medically equals the severity of any of the listed
impairments under the regulations. Id. The ALJ concluded that Elizondo has the residual functional
capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) and 20 C.F.R.
§ 416.971(a) with occasional balancing, stooping, kneeling, crouching, crawling, and climbing of
ramps or stairs, but should avoid unprotected heights, hazardous or moving machinery, and climbing
of ropes, ladders, or scaffolds. Tr. at 21. The ALJ found that Elizondo is able to perform simple,
routine, repetitive tasks in occupations requiring the levels of Reasoning, Math, and Language
(“RML”) described in the Dictionary of Occupational Titles, but that Elizondo should only have

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incidental contact with the public and only occasional interaction with coworkers. Id. Though the
ALJ found that Elizondo is unable to perform any past relevant work under 20 C.F.R. § 404.1565
and 20 C.F.R. § 416.965, considering her age, education, work experience and RFC, there are jobs
that exist in significant numbers in the national economy that the claimant can perform. Tr. at
28–29. Consequently, the ALJ found that Elizondo was not under a disability as defined by the
Social Security Act and denied Elizondo’s application for a period of disability and disability
insurance benefits as well as her application for supplemental security income. Tr. at 30.

VI. ANALYSIS
Elizondo alleges that the ALJ’s finding that she is not disabled is not supported by the
substantial evidence of the record and is the result of legal error. Specifically, Elizondo argues that
the ALJ (1) failed to follow the treating physician rule and give controlling weight to her physician,
(2) failed to obtain additional psychological and intellectual testing, and (3) erred in finding that
Elizondo retains the ability to perform other work existing in significant numbers in the national
economy.
Elizondo alleges that the ALJ was required to obtain additional standardized intelligence
testing to determine whether she was mildly mentally retarded or borderline in her intellectual
functioning abilities. In making this assertion, Elizondo relies on the federal regulation stating that
“[s]tandardized intelligence test results are essential to the adjudication of all cases of mental
retardation that are not covered under the provisions of 12.05A.” 20 C.F.R. Pt. 404, Subpt. P, App.
1. Elizondo claims that the ALJ failed to fully develop the record by failing to obtain additional

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psychological testing after the ALJ chose not to rely on the tests provided by Kelli Foulkrod. The
Court agrees. Listing 12.05, Mental Retardation provides in pertinent part:
Mental retardation 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 . . .
* * *
B.

A valid verbal, performance, or full scale IQ of 59 or less; or

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 or function. . . .

20 C.F.R. Ch. III, Pt. 404, Subpt. P, App. 1 at § 12.05. Thus, a “valid” IQ score is needed to properly
evaluate whether the claimant meets the Listing. Brown v. Astrue, 2012 WL 2133633, at * 6 (W.D.
La. May 25, 2012).
On May 7, 2011, Elizondo underwent a psychological evaluation with Kelli Foulkrod, M.S.,
a licensed psychological associate, at the request of her counsel. Tr. 499-504. Elizondo received
a verbal IQ score of 55, a nonverbal IQ score of 100, and a composite IQ score of 82 on the
Kaufmann Brief Intelligence Test, Second Edition (“KBIT2”). Tr. at 501. Based on the results of
the KBIT2, Ms. Foulkrod opined that Elizondo’s composite IQ score “is not an accurate description
of her ability due to the significant discrepancy between her verbal and nonverbal scores.” Id.
Elizondo also obtained scores in the “very poor” range on the Gray Oral Reading Test, Fourth
Edition (“GORT4"), divergent scores on the written expression sub-tests of the Wechsler Individual
Achievement Test, Third Edition (“WIAT3"), and an invalid result on the Minnesota Multiphase
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Personality Inventory-2 Restructured Form (“MMPI2-RF”). Ms. Foulkrod opined that these results
indicate Elizondo can read and understand individual words but cannot derive meaning from
sentences, that she is unable to communicate effectively in written form, and that she has a poor
reading ability. Tr. at 500-02. Based on these test results and her psychological evaluation, Ms.
Foulkrod gave Plaintiff a diagnostic impression of major depressive disorder, recurrent, mild mental
retardation, cocaine dependence (in full remission) and assessed Plaintiff a Global Assessment of
Functioning (“GAF”) of 35.2 Ms. Foulkrod further opined that Plaintiff’s physical limitations caused
by her back injury and her left leg “markedly impair her ability to work for extended periods over
the course of a day.” Tr. at 503. In addition, she found that Plaintiff’s “psychological symptoms of
a major depressive episode in combination with cognitive limitations caused by mild mental
retardation severely impair her abilities to self-motivate, self-direct, and sustain attention
productively and appropriately.” Tr. at 503-04.
The ALJ disregarded Ms. Foulkrod’s psychological assessment of Elizondo finding that “Ms.
Foulkrod is not an acceptable source for an opinion regarding the claimant’s ability to perform workrelated activities.” Tr. at 23. Specifically, the ALJ discounted Ms. Foulkrod’s assessment of
Elizondo’s poor language abilities because he found that she spoke in “complete, grammatically
correct sentences at both hearings.” Tr. 20. The ALJ also noted that the medical expert, Dr. Nancy

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GAF is a rating on a scale of 1 to 100 reflecting a clinician's judgment of an individual's
overall level of psychological, social, and occupational, but not physical, functioning. a standard
measurement of an individual’s overall functioning level “with respect only to psychological, social,
and occupational functioning.” Boyd v. Apfel, 239 F.3d 698, 701 n. 2 (5th Cir. 2001) (quoting
AMERICAN PSYCHIATRIC ASS’N , DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS
at 32 (4th ed. 2000)(DSM-IV)). Diagnostic and Statistical Manual of Mental Disorders, 32 (4th
ed.2000) (DSM-IV-TR). A GAF score of 31 to 40 indicates a “major impairment” in several areas,
such as work or school, family relations, judgment, thinking, or mood. Id.
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Tarrand, disagreed with Foulkrod’s assessment of Plaintiff. Id. Dr. Tarrand testified that because
Ms. Foulkrod did not use the “usual” IQ test used in disability evaluations (e.g, the Wechsler Adult
Intelligence Scale (“WAIS”) test), it was difficult for her to interpret the IQ scores. Tr. at 69-70.
Dr. Tarrand also opined that the scores Elizondo received on the non-standard tests were inconsistent
with Elizondo’s adaptive functioning capacity. Id. at 69. Dr. Tarrand testified that because there
was a significant difference between the verbal and performance IQ scores, it may indicate that
Plaintiff has a learning disability instead of mental retardation. Id. The ALJ found that Elizondo’s
low test scores assessed by Ms. Foulkrod could have been the result from “symptom exaggeration
or malingering.” Tr. at 20. Thus, the ALJ gave Dr. Tarrand’s opinions “great weight” and found that
Ms. Foulkrod’s IQ assessment “not valid.” Id.
The ALJ failed to fully and fairly develop the record regarding Elizondo’s intellectual
functioning in this case. The only IQ scores in the record were those obtained by Ms. Foulkrod’s
testing. While both the ALJ and the medical expert question the reliability of the IQ scores assessed
by Ms. Foulkrod, there were no other standardized IQ test results in the record and there was
evidence in the record showing that Elizondo had attended special education classes before dropping
out of high school, Tr. at 60. Accordingly, the ALJ should have ordered Elizondo to undergo further
IQ testing to properly evaluate whether Elizondo met Listing 12.05. Reyes v. Astrue, 2008 WL
2225672 at * 3 (“The ALJ does not have the discretion to ignore IQ evidence from a medical source
without some contravening medical evidence.”); Brown v. Astrue, 2012 WL 2133633, at * 6 (W.D.
La. May 25, 2012) (remanding case so that claimant could undergo additional testing to obtain a
valid IQ score where the IQ score in the record was unreliable since claimant smoked marijuana on
the day of testing).
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Based upon the foregoing, the Court finds that a sentence four remand under § 405(g) is
appropriate in this case in order to ensure that the Commissioner properly considers Plaintiff’s claim
of disability. See Buckner v. Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000) (finding that district court’s
remand should have been pursuant to sentence four, where purpose of the remand was to prompt
additional fact finding and further evaluation of the existing facts). Accordingly, IT IS HEREBY
ORDERED that the Commissioner’s final administrative decision, which is the Administrative Law
Judge’s Hearing Decision, signed November 4, 2011, is REVERSED and the action is
REMANDED to the Acting Commissioner for further administrative proceedings.
A district court remanding a case pursuant to sentence four of § 405(g) must enter judgment
in the case, and may not retain jurisdiction over the administrative proceedings on remand. See Istre
v. Apfel, 208 F.3d 517, 520-521 (5th Cir. 2000) (a sentence four remand must include a substantive
ruling affirming, modifying or reversing the Secretary’s decision). Therefore, the Court will enter
a final judgment in this case in a separate order.
SIGNED this 14th day of January, 2014.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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