Summary
In Boyce v. Chater, 114 F.3d 1175 (Table), 1997 WL 314723, at *1 (4th Cir. 1997), the Fourth Circuit rejected the plaintiff's argument that the ALJ should have classified him as "illiterate" in applying the Medical-Vocational Guidelines because "the ALJ gave specific reasons for his determination."
Summary of this case from Elmore v. Comm'r of Soc. Sec. Admin.Opinion
No. 2:95CV129-S-A.
Filed Date: February 25, 1999.
OPINION
This cause is before the court upon objection by the plaintiff to the Magistrate Judge's report and recommendation affirming the decision of the Secretary. Sylvester Boyce filed this action seeking judicial review of denial of disability insurance benefits and supplemental security income.
FACTS
Sylvester Boyce, a former unskilled agricultural worker, first attempted to secure disability benefits in October of 1992. Boyce's claimed disabilities included shortness of breath, kidney problems, high blood pressure, conditions relating to his feet, and depression. After denial of his application at the initial and reconsideration stages, Boyce sought review from an administrative law judge. Upon hearing the matter on November 29, 1994, the ALJ issued his findings and decision that Boyce was not entitled to either the disability insurance benefits or the supplemental security income. Boyce requested review by the Appeals Council which was denied. Thereafter, Boyce retained other counsel and filed the present cause in this court seeking judicial review and a determination that the administrative decision was erroneous and that benefits be awarded. Plaintiff's counsel submitted additional evidence, Boyce's school records and results of current mental/psychological testing, which establishes the plaintiff's IQ well below the per se disability score of 59. The school records indicate that his fifth grade education required, in actuality, eight years and that, additionally, Boyce was tested in 1970 for the Otis-Lennon Mental Ability Test for which he scored an IQ score of 55. The results of the current mental and psychological testing reveal a Verbal IQ score of 49, a Performance IQ of 54, and a Full Scale IQ of 47 for Boyce.
Boyce initially complained of swelling and pain upon walking and standing. As a child, he sustained a gunshot wound to his right foot. During the course of his application for benefits, Boyce fractured his left foot which required surgery.
Boyce, apparently in confusion, presented erroneous information regarding his education in his application for benefits by entering a "10" to represent the highest level of attendance and by entering "5-70" for the correlating date. In reality, Boyce repeated the first grade three times and the fourth grade twice. He was socially promoted from the third and fifth grades. In May of 1970, Boyce was completing the fifth grade and, thereafter, quit school in the sixth grade at the age of 15. Apparently, Boyce began full-time work as a farm laborer in 1970 when he quit the sixth grade.
STANDARD OF REVIEW
The court's review of the Commissioner's decision is limited to determining whether the decision is supported by substantial evidence and whether the proper legal standards were applied to evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) ( per curiam). "The Commissioner's decision is entitled to great deference, and will not be disturbed unless the reviewing court cannot find substantial evidence in the record to support the Commissioner's decision or finds that the Commissioner made an error of law." Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). "If the Commissioner's findings are supported by substantial evidence, then the findings are conclusive and the Commissioner's decision must be affirmed." Martinez, 64 F.3d at 173. The report and recommendation of the magistrate judge is reviewed de novo.
In determining whether substantial evidence supports the decision, the Court must review all evidence in the record to ascertain whether it contains "such relevant evidence as a reasonable mind might accept as adequate to support the conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied, 115 S.Ct. 1984 (1995). An ALJ's findings must be supported by more than a scintilla of evidence; however, they may be supported by less than the weight of the evidence. Ripley, 67 F.3d at 555 . Additionally, the ALJ must consider all relevant evidence and may not select and discuss only that evidence that favors his ultimate conclusion. Richardson, 402 U.S. at 401. To make a finding of "no substantial evidence," the court must conclude that there is a "conspicuous absence of credible choices" or "no contrary medical evidence." Dellolio v. Heckler, 705 F.2d 123, 125 (5th Cir. 1983), quoting Hemphill v. Weinberger, 483 F.2d 1137 (5th Cir. 1973).
ANALYSIS
To determine a disability, a five-step analysis is applied in which the burden rests upon the claimant throughout the first four steps to prove disability. Where a determination of disabled or not disabled cannot be ascertained with the first four steps, step five becomes the burden of the Commissioner to prove. 20 C.F.R. § 404.1520(a); Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994). "A finding that a claimant is disabled or not disabled at any point in the five-step process is conclusive and terminates the Secretary's analysis." Bowling, 36 F.3d at 435. To begin the analysis, the Commissioner reviews the claimant's present work activities. If a claimant is working and the work is substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). In step two, the effect or combined effects of the claimant's impairments are examined for severity and duration without consideration of age, education, and work experience. 20 C.F.R. § 404.1520(c). If the claimant does not have an impairment or impairments which significantly limits his physical or mental ability to perform basic work activities, the commissioner will find there is no severe impairment and, therefore, no disability. Id. Where the claimant has an impairment which meets the duration requirement and is listed in appendix 1 or is equal to a listed impairment, he will be found to be disabled without regard to age, education, and work experience under the third step. 20 C.F.R. § 404.1520(d). If a severe impairment is found but no decision can be made based upon the claimant's current work activity or on medical facts alone, the Commissioner reviews residual functional capacity as well as the physical and mental demands of the claimant's past relevant work. 20 C.F.R. § 404.1520(e). If the claimant is capable of performing past relevant work, a finding of not disabled is warranted. Id. At step five, the Commissioner evaluates residual functional capacity and the claimant's age, education, and past work experience to determine whether the claimant can perform other work. 20 C.F.R. § 404.1520(f). If the claimant has the residual functional capacity to perform other work, he is not disabled. Id.
The responsibility for deciding residual functional capacity rests with the Administrative Law Judge. 20 C.F.R. § 404.1546 .
"Other work" is defined as jobs that exist in significant numbers in the national economy. 20 C.F.R. § 404.1560(c) .
Residual functional capacity is defined as what the claimant can still do despite his limitations and is an assessment based upon all of the relevant evidence which may include the claimant's descriptions of limitations, such as pain, that go beyond the symptoms. 20 C.F.R. § 404.1545(a). The claimant's ability to meet certain demands such as physical demands, mental demands, sensory requirements, and other functions are considered. Id. Observations by treating physicians, psychologists, neighbors, family, and other persons may be used to determine the extent with which the impairment prevents the claimant from performing particular work activities. Id. Considered in tandem with residual functional capacity are the claimant's vocational factors of age, education, and work experience. 20 C.F.R. § 404.1560(c). Because the claimant's numerical grade level may not represent actual educational abilities, the determination of education is based upon literacy, fluency in English, and the claimant's ability to speak, to understand, to read, to write, and to perform simple calculations in arithmetic. 20 C.F.R. § 404.1564(b) and (b)(6).
To provide consistency with decisions regarding jobs available in the national economy, the administration adopted medical-vocational guidelines wherein jobs are classified by their exertional and skill requirements. The guidelines are applied in cases where the claimant is not engaged in substantial gainful activity and is prevented from performing past relevant work by a severe impairment. 20 C.F.R. § 404.1569. Because the guidelines do not cover all possible variations of factors, the guidelines may not be applied if one of the findings of fact about the person's vocational factors and residual functional capacity is not the same as the corresponding criterion of a rule. Id. For purposes of determining whether the criterion of a rule matches a claimant's findings of fact, limitations of functions are examined.
Limitations of function caused by impairments are classified as either exertional or non-exertional, or a combination of both. 20 C.F.R. § 404.1569a(a). Exertional limitations affect the individual's ability to meet the strength demands of a job while non-exertional impairments affect the individual's ability to meet the demands of jobs other than the strength demands. 20 C.F.R. § 404.1569a(b) and (c)(1). Where a claimant has only exertional limitations, the guidelines are applied. 20 C.F.R. § 404.1569a(b). However, where the claimant has only non-exertional limitations, the guidelines may not be applied. 20 C.F.R. § 404.1569a(c)(2). Where a combination of exertional and non-exertional impairments exist, as in the case at bar, the guidelines may only be applied if a conclusion of disability is directed. 20 C.F.R. § 404.1569a(d).
Examples of non-exertional limitations include (1) difficulty functioning because of nervousness, anxiety, or depression; (2) difficulty maintaining concentration or attention; (3) difficulty understanding or remembering detailed instructions. 20 C.F.R. § 404.1569a(c)(1) .
Here, the ALJ arrived at his determination of not disabled at step five. The ALJ determined that Boyce, while disabled with regard to present and past relevant work because of severe hypertension and musculoskeletal impairments to the feet, could perform other work. In his findings, the ALJ contended that Boyce had not alleged any symptoms which would preclude his ability to perform sedentary work. Sedentary work requires that the individual be free of non-exertional limitations. Relying heavily on the testimony of Boyce, the ALJ concluded that Boyce had the residual functional capacity to perform sedentary work. In his findings, the ALJ stated, "In discussing his impairments, the claimant admitted during his testimony that he had no impairment which would preclude sedentary work, if he could find a sedentary job." The examination of Boyce by the ALJ occurred as follows:
Q If you couldn't do the past job you did, what would prevent you from doing something else? Suppose you had a job where all you had to do was watch a television monitor, and if something went wrong on the television, you telephoned somebody and they'd go check it out? What would be wrong with doing — what would prevent you from doing a job like that?
A Well, there wasn't anything prevent me from doing a job like that.
Q Or working in a convenience store?
A Well, I can't work on concrete on account of this other foot. Dr. Boyles told me when he operated on this foot, that I could work on no kind of concrete, period. Couldn't put no kind of concrete work on that foot — when he operated on it.
Q All right. But any job where you could sit down — is there any reason you couldn't do that?
A No, sir, there ain't no reason I couldn't do that. But I can't find one doing that.
Q I understand, but the question is — I mean, you're 38 years old. If you can do a sedentary job, which is one where you can sit most of the time, our criteria does not allow benefits to that type of individual. From what I see, I don't see an impairment that interferes with your ability to sit.
A All I'm saying about that — I don't know how to read and write.
Q You went to ten grades in school, and you don't know how to read and write?
A I don't — a lot of words I don't even knows how to spell.
Q Well, I understand a lot of words —
A I can, you know, I can read some things. And then some things, I can't. And I can't, you know, figure and add, nothing like there, subtract or do nothing like that.
Q All right. Go ahead. One thing, though, when you broke your ankle, how long was it before you were walking around?
No further questioning was conducted into the claimant's ability to perform sedentary work or the claimant's literacy level. In reaching his decision, the ALJ applied the vocational guidelines. See Hearing Decision of Administrative Law Judge dated January, 19, 1995.
Based upon his observations of Boyce during the hearing, the ALJ found that Boyce had a "marginal" education. Under the regulations, the education vocational factor is categorized as either illiterate, marginal, limited, or high school and above. 20 C.F.R. § 404.1564 .
As outlined above, inherent in the application of the guidelines by the ALJ, is the proposition that the findings of fact regarding Boyce's limitations of functions match the criterion of the particular rule in the guidelines applied by the ALJ. Furthermore, with regard to a finding of not disabled, the guidelines may be applied only where the limitations of function are exertional. Thus, the ALJ's determination was based upon the finding that there were no non-exertional limitations. To determine whether the ALJ applied the proper legal standard, to-wit the application of the guidelines, the court must examine the findings of the ALJ to ensure that all limitations both exertional and non-exertional were considered. The ALJ did not consider Boyce's claimed disability of depression, a non-exertional limitation. Indeed, one of the claimant's objections to the magistrate judge's report and recommendation is the omission of depression as a listed disability. Upon a full review of the records, it is clear that depression was considered early in the process. Several of the forms refer to depression, including the Commissioner's initial letter of denial entitled, the "Disability Determination Rationale" form dated February 6, 1993 which states, "Although you may be depressed at times, you are able to think, communicate, and act in your own interest." As stated previously, when a combination of exertional and non-exertional impairments are present, the guidelines may only be applied if a conclusion of disability is directed. Therefore, the court finds that the ALJ erred in his application of the guidelines without first considering Boyce's listed disability of depression.
Furthermore, the court notes that error may have occurred in the failure to fully develop the record in regard to Boyce's obvious deficiencies in mental capacity. When assessing mental abilities for residual functional capacity, the nature and extent of the claimant's mental limitations and restrictions are assessed to determine the individual's residual functional capacity for work activity on a regular and continuing basis. "A limited ability to carry out certain mental activities, such as limitations in understanding, remembering, and carrying out instructions, and in responding appropriately to supervision, co-workers, and work pressures in a work setting, may reduce your ability to do past work and other work." 20 C.F.R. § 404.1546(c). Additionally, all impairments, "even those that are not severe," are considered in assessing residual functional capacity. 20 C.F.R. § 404.1546(e). Boyce testified that he could not read, write, add, or subtract. The ALJ obviously suspected some mental deficiencies based upon his finding that Boyce had a "marginal" educational level, rather than the limited level as testified to by Boyce. Further development by the ALJ may have led to the conclusion that Boyce had the non-exertional limitations of difficulty maintaining concentration, 20 C.F.R. § 404.1569a(c)(1), and/or difficulty understanding or remembering detailed instructions, Id., as well as potentially uncovering Boyce's low IQ. Nonetheless, it is unnecessary for this court to decide whether the ALJ committed reversible error by not developing the testimony at the hearing.
As his best witness to his level of retardation, Boyce testified that he had a tenth grade education although he stated he could not read and write nor perform simple mathematical calculations, which should have raised a red flag as to his level of literacy.
The ALJ's failure to consider depression as a listed disability would ordinarily result in remand for determination of whether the depression constitutes a non-exertional limitation. However, the court finds that remand for this determination is unnecessary in that the only conclusion warranted upon remand is a finding of disabled. If the cause were remanded and even if the ALJ found that the depression does not rise to the level of a non-exertional impairment, he must then consider the school records and IQ testing of Boyce as issues relating to the claim. 20 C.F.R. § 404.983. Consideration of the results of the IQ tests, although 28 years apart, reveal that Boyce qualifies as per se disabled under the listings in Appendix1. "The required level of severity . . . is met . . . with a valid verbal, performance, or full scale IQ of 59 or less." Boyce was found to have an IQ of 55 in 1970 while the current testing revealed an overall score of 47. Even though Boyce did not claim retardation as a listed disability, the evidence does impact whether Boyce has the residual functional capacity to perform other work and, in turn, whether he is disabled. Clearly, his low IQ is a non-exertional limitation. If an individual's low IQ qualifies as a per se disability, then common sense dictates that it is a non-exertional limitation. Where an individual has both exertional and non-exertional limitations, the guidelines may only be applied where a finding of disabled is warranted. Application of the guidelines resulting in a finding of not disabled where both exertional and non-exertional limitations exist is a clear error of law. Because the ALJ determined that Boyce had a severe impairment and was limited to sedentary work, Rule 201.24 of table one, Pt. 404, Subpart P, App. 2, is applied. The rule indicates a finding of not disabled; however, a footnote cites to section 201.00(h) of Pt. 404, Subpart P, App. 2 which explains that a finding of disabled is not necessarily precluded. Included in this section are two examples in which disability may be found. Example 2 states:
Although an issue in the case, the court does not make a finding regarding remand based upon new and material evidence. Because this cause requires remand based upon the ALJ's failure to consider depression as an impairment, consideration of new and material evidence as a basis for remand is without application. While remand is inappropriate where no good cause exists for having failed to submit evidence earlier, 42 U.S.C. § 405(g), this statement of law has application where the evidence would have a direct bearing on the claimed disabilities. For instance, Boyce did not claim a disability based upon low intelligence. Rather, his listed disabilities were shortness of breath, kidney problems, high blood pressure, conditions relating to his feet, and depression. It would have made little sense for Boyce to have been under an obligation to submit school records and the results of IQ tests to substantiate the disabilities he claimed. The magistrate judge recommended that good cause did not exist for Boyce's failure to submit the evidence earlier to warrant remand. More properly, the focus should have been consideration of the newly submitted evidence on the claimant's residual functional capacity for which the ALJ carried the burden. Because the ALJ found Boyce not disabled at step five, the determination included assessment of Boyce's residual functional capacity as well as consideration of his age, education, and past work experience which would, quite naturally, include an assessment of his IQ.
An illiterate 41 year old individual with mild mental retardation (IQ of 78) is restricted to unskilled sedentary work and cannot perform vocationally relevant past work, which had consisted of unskilled agricultural field work; his or her particular characteristics do not specifically meet any of the rules in appendix 2, because this individual cannot perform the full range of work defined as sedentary. In light of the adverse factors which further narrow the range of sedentary work for which this individual is qualified, a finding of disabled is appropriate.
Pt. 404, Subst. P, App. 2 § 201.00(h). Therefore, should the cause be remanded the ALJ will find that Boyce is disabled.
Because of the length of time from Boyce's initial filing as well as the unrefuttable determination of disabled, the court finds that further delay in this proceeding is unjustified. See Martin v. Heckler, 748 F.2d 1027, 1036-37 (awarding benefits where medical history established per se disability and where little justification shown in extensive delay of proceedings). As analyzed by the court in the Northern District of Illinois:
An award of benefits is appropriate when substantial evidence on the record as a whole indicates that the claimant is disabled, and the weight of the evidence indicates that a remand would only delay the receipt of benefits while serving no useful purpose. (citations omitted) Reversal and an award of benefits is particularly indicated when administrative and judicial proceedings on the claim have already consumed a substantial amount of time (citation omitted) when the Secretary has had an opportunity to develop the record on an outcome-determinative issue and has failed to produce substantial evidence (citations omitted) or when it appears virtually impossible that the Secretary would be able to meet his burden of showing that the claimant can do jobs which exist in significant numbers in the national economy (citations omitted).Bell v. Bowen, 658 F. Supp. 533, 538-39 (N.D. Ill. 1987).
In accordance with an order issued contemporaneously, this cause is remanded solely for the purpose of determining the amount of benefits, including back benefits, Boyce should receive on both his claim for disability insurance benefits as well as supplemental security income.
An appropriate order shall be issued.