Opinion
Case No. 3:13-cv-144
04-29-2014
MICHAEL RILEY, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED;
(2) JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFF
AWARDING BENEFITS; AND (3) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore not entitled to supplemental security income ("SSI"). (See Administrative Transcript at PageID 66-74) (ALJ's decision).
I.
On November 9, 2009, Plaintiff filed an application for SSI, alleging disability since his birth (October 17, 1984), due to a learning disability, internal bleeding, a heart murmur, and chest pains. (PageID 66, 187-89, 227). His application was denied initially and upon reconsideration. (Id.)
A hearing was held before an ALJ on November 17, 2011. (PageID 87-109). Plaintiff appeared with his attorney and a vocational expert testified. (Id.) The ALJ denied the claim on January 26, 2012. (PageID 75). Specifically, the ALJ found that despite several mental impairments, Plaintiff could still perform a restricted range of unskilled work at all levels of exertion.
Plaintiff requested a review of the ALJ's decision. (PageID 589-590). The Appeals Council denied review. (Id.) Plaintiff then commenced this action in federal court pursuant to 42 U.S.C. Section 405(g) for review of the Commissioner's final decision. (Id.)
Plaintiff was born on October 17, 1984. (PageID 73). He attended school through tenth grade in special education classes, and has no past relevant work experience. (PageID 73, 231).
Plaintiff underwent an individualized education program ("IEP") when he was in the tenth grade. He was put on home instruction at the end of the year owing "to his acting out behavior and excessive absences from school." (PageID 208).
Past relevant work experience is defined as work that the claimant has "done within the last 15 years, [that] lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity. 20 C.F.R. § 416.965(a).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant has not engaged in substantial gainful activity since January 1, 2008, the alleged onset date (20 C.F.R. 404.1571 et seq., and 416.971 et seq.).(PageID 68-74).
2. The claimant has the following severe impairments: mood disorder or major depressive disorder, learning disorder and anxiety disorder.
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. part 404, Subpart P, Appendix 1 (20 C.F.R. 416.920(d), 416.925 and 416.926).
4. The claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: The claimant is limited to 1-2 step tasks in a low stress job with only occasional decision-making required and only occasional changes in work setting. He may only superficially interact with the public, co-workers and supervisors. Lastly, the claimant can only learn from demonstration.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on October 17, 1984 and was 25 years old, which is defined as a younger individual age 18-49, on the date the application was filed.
7. The claimant has a limited education and is able to communicate in English (20 C.F.R. 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 C.F.R. 416.968).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined by the Social Security Act, since November 9, 2009, the date the application was filed (20 C.F.R. 416.920).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and, therefore, was not entitled to SSI. (PageID 75). On appeal, Plaintiff argues that the ALJ erred in relying on the opinions of the non-examining state agency reviewers over the opinion and findings of Defendant's own consultative psychologist, Dr. Bonds.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 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). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found Plaintiff disabled. As the Sixth Circuit has explained:
The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm.Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that he is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present sufficient evidence to show that, during the relevant time period, he suffered an impairment, or combination of impairments, expected to last at least twelve months, that left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1. Physical Impairments
Plaintiff was seen in the emergency room on June 11, 2009 for lightheadedness, heaviness, and tightness in his chest as well as pain in his abdomen. (PageID 302). The impression was dizziness, anemia, and GI bleeding. (Page ID 305-306). Treatment records show he was treated for GERD, chest pain, and lightheadedness. (PageID 314, 345-352). Plaintiff continued to be treated for GI problems and rectal bleeding throughout 2010 and 2011. (PageID 422-424, 437-452). Plaintiff was seen in the ER in December 2010 for vomiting. (PageID 425-436). On February 4, 2010, Dr. Elizabeth Das reviewed Plaintiff's record at the request of the state agency and concluded that Plaintiff has no severe physical impairments. (PageID 344).
GERD stands for Gastroesophageal Reflux Disease which has symptoms of heartburn, sore throat, and dry cough.
2. Psychological and Intellectual Impairments
Plaintiff's primary impairments are psychological. He has a history of learning disabilities, social difficulties, homelessness, and unemployment. Plaintiff was in special education during school due to learning problems. (PageID 315). He repeated the first grade. (PageID 200). During his eighth grade year, Plaintiff read at the 7.4 grade level and comprehended at the 5.6 grade level. Plaintiff performed math calculation at the 5.0 grade level, math reasoning at the 5.5 grade level, and written expression at the 3.9 grade level. (PageID 201). His Full Scale IQ score in the eighth grade was 87. (PageID 202).
In the tenth grade, Plaintiff was put on home instruction owing "to his acting out behavior and excessive absences." (PageID 208). Plaintiff quit school after the tenth grade. (PageID 592). As an adult, Plaintiff's work history consists of three short-lived jobs. Plaintiff lived with his grandmother who raised him until she died in 2009. (PageID 315). Plaintiff does not know how to cook (except to make a sandwich), and he does not know how to drive. He has never paid bills and has problems counting money to pay for items. (PageID 318).
Plaintiff's mother was a drug addict, he did not know his father, and he was raised by his grandmother. (PageID 488).
a. Dr. Bonds
On January 19, 2010, Dr. Bonds examined Plaintiff at the request of the state agency. Dr. Bonds administered the Wechsler Adult Intelligence Scale-IV IQ tests (WAIS-IV). Plaintiff required assistance completing his background history form, because of his reading comprehension difficulties. (PageID 315).
Dr. Bonds noted that Plaintiff is unable to live on his own and is homeless when not living with family members. (PageID 315). Although Plaintiff's thought processes were normal, Dr. Bonds observed that Plaintiff was depressed. He was a loner with few friends. Plaintiff related that he had problems with his temper and was in a fight one week before the examination. He heard voices on occasion. (PageID 318). With respect to daily living activities, sometimes he took the trash out and did dishes, but he did not know how to cook except for making a sandwich. He did not drive or pay bills, and had trouble paying for items because he had problems counting money. (Id.) Plaintiff's Full Scale IQ score was 58. Plaintiff's intellectual functioning is in the extreme low range between 55 and 63. (PageID 320). Plaintiff's GAF score was 50. Dr. Bonds found that the Plaintiff is unable to live independently, make important decisions about his future, or manage his own funds without supervision. (PageID 319). Dr. Bonds concluded that Plaintiff had a single episode major depression disorder and mild mental retardation. She found Plaintiff markedly impaired in his ability to relate to others including peers, supervisors, and the public. Plaintiff would have difficulty taking criticism and handling interpersonal problems. His mental ability to understand, remember, follow directions, and withstand work stress and pressure was markedly impaired. (PageID 321).
It was noted that Plaintiff had a "history of poor impulse control, tends to make poor choices and does not think of consequences before acting." (PageID 495).
Mild mental retardation is associated with an IQ in the range of 50-55 to approximately 70. See American Psychiatric Association: Diagnostic & Statistical Manual of Mental Health Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). Borderline intellectual functioning is associated with an IQ in the 71-84 range. Id. at 740.
The global Assessment of Functioning ("GAF") is a numeric scale (0 through 100) used by mental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults, e.g., how well or adaptively one is meeting various problems in living. A score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work).
A single episode major depressive disorder is defined as a period of extreme depression occurring only once.
b. Dr. Swain
On January 27, 2010, the State agency's non-examining psychologist, Dr. Jennifer Swain, reviewed Plaintiff's record. Dr. Swain rejected Dr. Bonds' findings, noting that Plaintiff's IQ scores were higher when he was in the eighth grade. (PageID 325). Dr. Swain found that Plaintiff had an organic mental disorder, an affective disorder, mental retardation, and a learning disorder. She opined that Plaintiff's restriction in his daily activities, social functioning, concentration, persistence of pace, ability to live independently, carry out instructions, and deal with criticism and change, etc. were only moderately restricted and limited. (PageID 337, 340-341).
Dr. Swain concluded that Plaintiff's social functioning is not markedly impaired because "he stays with friends, was friendly and cooperative at the [consulting examination] and established rapport easily . . . ." (PageID 343). His ability to deal with work stress was not markedly impaired because he "has had no episodes of extended decompensation." Dr. Swain concluded that although Plaintiff has been "homeless since his grandmother died, he manages to care for his basic needs." (Id.) She concluded that Plaintiff "can perform routine tasks in a setting where there are no strict production demands, duties that are relatively static, and social interaction is superficial . . . ." (Id.)
c. Dr. Paul Tangeman
On August 11, 2010, Dr. Paul Tangeman reviewed Plaintiff's record. Like Dr. Swain, Dr. Tangeman did not evaluate Plaintiff. Dr. Tangeman agreed with Dr. Swain's review and concluded that Dr. Bonds' IQ test results were underestimates when compared to Plaintiff's high school IQ tests. (PageID 358-359, 361).
B.
Plaintiff argues that the ALJ erred in relying on the opinions of the non-examining state agency reviewers over the consultative psychologist, Dr. Bonds, who actually evaluated and tested the Plaintiff.
An opinion from a medical source who has examined a claimant is given more weight than an opinion from a "nonexamining source." C.F.R. § 404.1502, 404.1527(c)(1). "The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of opinion and the individual become weaker." Soc. Sec. Rule No. 96-6p, 1996 WL 374180, at *2 (Soc. Sec. Admin. July 2, 1996). Other factors "which tend to support or contradict the opinion" may be considered in assessing any type of medical opinion. C.F.R. § 404.1527(c)(6). The opinion of a non-examining medical source can be given deference over the opinion of a consulting psychologist only where the non-examining source had access to the entire record and had a chance to observe the claimant during an administrative hearing. Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994).
Listing 12.05 requires a finding of disability based on the claimant's intellectual disability when the claimant exhibits: (1) significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period, i.e., the evidence demonstrates onset of the impairment before age 22; and (2) 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.
1. Intellectual Functioning
Plaintiff has a school history of learning and social difficulties which manifested prior to his attaining the age of 22. This finding is supported by substantial evidence which evidences sub-average educational performance since first grade in addition to special education classes. Accordingly, Plaintiff meets the first criteria of Listing 12.05.
2. IQ Scores
With respect to the second criteria, Plaintiff has two IQ scores; a Full Scale IQ score of 87 from 1999 resulting from the WISC-III administered when he was an eighth grader (15 years old), and a Full Scale IQ score of 58 from the examining doctor's administration of the WAIS-IV in 2010. The ALJ rejected the 2010 IQ score, because of the 1999 score.
"Generally, the results of IQ tests tend to stabilize by the age of 16." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(D).
Plaintiff's intellectual functioning was in the extreme low range between 55 and 63 (Page ID 320), and, based on those tests, Dr. Bonds concluded that Plaintiff's intellectual functioning was markedly impaired. (PageID 321).
The Social Security regulations provide that when there is more than one IQ score, the Commissioner must use "the lowest of these in conjunction with 12.05." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(D). Courts require the ALJ to reject the higher score. Muncy v. Apfel, 347 F. 3d 728, 731 (8th Cir. 2001). "[W]hen multiple I.Q. scores are available [from IQ tests administered at different times,] the Regulations prefer the lowest score." Ray v. Chater, 934 F. Supp. 347, 350 (N.D. Cal. 1996) (The ALJ erred in preferring claimant's 72 IQ score over a 67 IQ score from a test administered two years later). Moreover, adult IQ tests create a rebuttable presumption of a constant IQ throughout life. Hodges v. Barnhart, 276 F.3d 1265, 1268 (11th Cir. 2001). Thus, Plaintiff's adult Full Scale IQ score is probative as to his cognitive abilities. Accordingly, Plaintiff evidenced a valid full scale IQ score of less than 60.
See also Muncy, 247 F.3d at 734; Guzman v. Bowen, 801 F.2d 273, 275 (7th Cir. 1986); Talavera v. Astrue, 697 F.3d 145 (2d Cir. 2012)
3. Additional Work Related Limitations
a. Daily living restrictions
In concluding that Plaintiff's difficulties in daily living are only moderately restricted, the ALJ found that Plaintiff retains the ability "to make food, take out the trash, and wash dishes." The ALJ's conclusion contradicts the examining doctor's finding that Plaintiff "does not seem to be able to live independently, make important decisions about his future or manage his funds without some assistance." (PageID 318).
Although the record states that Plaintiff can make a sandwich, goes to the grocery store with his mother, sometimes takes out the trash, and washes dishes while he is living with family members, Plaintiff is homeless except when someone chooses to take him. There is no substantial evidence in the record that Plaintiff can live independently and do daily activities on a sustained basis. See 20 C.F.R. § 404.1520a(c) (2); 20 C.F.R. Part 404, Subpart P, Appendix 1, at 12.00.
See also Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013) (accompanying wife to grocery store, driving, and visiting with family was not substantial evidence to counter doctor's conclusion that Plaintiff was markedly impaired, because there was no substantial evidence to support the finding that Plaintiff could do these things on a sustained basis).
b. Social functioning restrictions
A week before his interview with Dr. Bonds, Plaintiff was in a fight. (PageID 318). Plaintiff was expelled from school in the ninth grade for fighting and school records show that he was put on home instruction due to his "acting out behavior and excessive absences from school" in the tenth grade. (PageID 205). Plaintiff testified that he does not like being with more than three to four people and prefers to stay in a room by himself. He does not like to ride the bus because he thinks people are talking about him and avers panic attacks and angry outbursts. (Id.) Plaintiff's testimony at the hearing is consistent with the examining doctor's finding that Plaintiff "would have difficulty taking criticism and handling interpersonal problems" and test results showing that Plaintiff's social judgment was below normal. (Page ID 319, 321).
The ALJ rejected the examining doctor's findings and conclusions, at least partly based on Plaintiff's relating to Dr. Bonds that he has no friends. The ALJ discredited Plaintiff's testimony, stating that Plaintiff "stays with friends periodically, in addition to living with family members, has a fiancé, and had a close relationship with his grandmother." (PageID 343). However, Plaintiff's social functioning can still be markedly impaired despite a relationship with his grandmother and fiancé. See Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 365 (6th Cir. 2013) (plaintiff's ability to visit his aunt and uncle, to receive visits from his neighbor, and accompany his wife to the grocery store each month did not undermine the doctor's opinion that plaintiff's ability to interact independently and appropriately with others on a sustained basis was markedly impaired).
In addition, the ALJ found that Plaintiff's difficulties in social functioning were only a moderate difficulty or limitation, because he was cooperative at the hearing and cooperated with the examining psychologist. However, evidence of Plaintiff's cooperation during the brief proceedings and one examination is not substantial evidence that his social functioning is not markedly impaired in other social settings and that he can interact on a sustained basis independently. See 20 C.F.R. § 404.1520a(c) (2); 20 C.F.R. Part 404, Subpart P, Appendix 1, at 12.00.
See also Gayheart, 710 F.3d at 365 and Listing 12.00E ("The result of a single examination may not adequately describe your sustained ability to function").
Accordingly, the ALJ erred in relying on the opinions of the non-examining state agency reviewers over Dr. Bonds. Substantial evidence supports a finding of disability under Listing 12.05.
III.
When, as here, the non-disability determination is not supported by substantial evidence, the Court must decide whether to reverse and remand the matter for rehearing or to reverse and order benefits granted. The Court has authority to affirm, modify or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991).
Generally, benefits may be awarded immediately "only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits." Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990); Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 782 (6th Cir. 1987).
The Court may award benefits where the proof of disability is strong and opposing evidence is lacking in substance, so that remand would merely involve the presentation of cumulative evidence or where the proof of disability is overwhelming. Faucher, 17 F.3d at 176. Such is the case here. Here proof of disability is overwhelming and remand will serve no purpose other than delay. In view of the extensive medical record evidencing disability, and the credible and controlling findings and opinions of examining physician Dr. Bonds, the ALJ failed to meet the burden of finding substantial evidence that Plaintiff is able to engage in substantial gainful activity. Instead, proof of disability is overwhelming.
While Plaintiff requested benefits beginning at birth, the record only supports a finding that he met Listing 12.05 as of the January 19, 2010 WAIS-IV testing.
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner, that Michael Riley was not entitled to supplemental security income is hereby found to be NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, and it is REVERSED; and this matter is REMANDED to the Commissioner for an immediate award of benefits beginning January 19, 2010. The Clerk shall enter judgment accordingly, and this case shall be closed.
Dr. Bonds determined that Plaintiff could not manage his own funds without supervision. (PageID 319). Accordingly, the Court encourages counsel to identify a receiver.
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IT IS SO ORDERED.
__________
Timothy S. Black
United States District Judge