Opinion
Civil Action 97-0318-AH-M
July 31, 2000
REPORT AND RECOMMENDATION
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff seeks judicial review of an adverse social security ruling which denied a claim for Supplemental Security Income (SSI). Oral argument was held on July 27, 2000. Upon consideration of the administrative record, oral argument, and the memoranda of the parties, it is recommended that the decision of the Commissioner be affirmed, that this action be dismissed, and that judgment be entered in favor of Defendant Kenneth S. Apfel and against Plaintiff Rachel Rembert on all claims.
This action was initially assigned to the undersigned Magistrate Judge to conduct all proceedings (Doc. 4). When neither party returned the "Request for Reassignment to a United States District Judge," they were "deemed to have consented to the trial and disposition of this case by the assigned United States Magistrate Judge" (Doc. 13, p. 1 n. 2). Originally, oral argument was waived and an order and judgment were entered in favor of Defendant Kenneth S. Apfel (Docs. 13-14). On appeal, the Eleventh Circuit Court of Appeals dismissed this action for a lack of jurisdiction, holding that the parties did not expressly consent to disposition by a Magistrate Judge (Doc. 16).
A District Judge has now been assigned to handle this action. The Undersigned has converted the Order originally entered to a Report and Recommendation (cf. Doc. 13). While the recommendations made regarding each claim are the same here as in the original Order, some reasoning has been added to address arguments made at oral argument subsequent to remand and to recognize a relatively new eleventh circuit court decision concerning the VE-DOT debate.
This Court is not free to reweigh the evidence or substitute its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported by evidence sufficient to justify a reasoning mind in accepting it; it is more than a scintilla, but less than a preponderance." Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting Jones v. Schweiker, 551 F. Supp. 205 (D. Md. 1982).
Plaintiff was born February 15, 1952. At the time of the most recent administrative hearing, Rembert was forty-four years old, had completed a tenth-grade education (Tr. 80), and had no relevant past work experience (Tr. 22, ¶ 5). In claiming benefits, Plaintiff alleges disability due to arthritis, mental retardation, diabetes mellitus, and multiple pain complaints (Doc. 7).
Plaintiff filed an application for SSI on September 14, 1993 (Tr. 102-06). Benefits were denied after a hearing by an Administrative Law Judge (ALJ) who determined that Rembert was capable of performing certain work in both the medium and sedentary classifications (Tr. 7-27). Plaintiff requested review of the hearing decision (Tr. 4-5) by the Appeals Council, but it was denied (Tr. 2-3).
Plaintiff claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, Rembert alleges that: (1) The ALJ did not follow the orders of the Appeals Council; (2) the ALJ did not properly consider all of the evidence of her mental impairments; (3) the ALJ improperly relied on the results from an old consultative examination; (4) the ALJ improperly determined that she was capable of performing medium work; and (5) the ALJ improperly relied on the testimony of a vocational expert (Docs. 7-8).
Rembert first claims that the ALJ did not follow the orders of the Appeals Council (Doc. 8, pp. 1-2). By way of background, the Court notes that the ALJ first rendered a decision on July 25, 1995, finding that Plaintiff could perform certain jobs which required a medium level of exertion (Tr. 173-86). On review, the Appeals Council, noting certain evidence of record regarding Plaintiff's mental abilities, remanded the case to the ALJ with instructions to "[o]btain additional evidence concerning the claimant's mental impairment in order to complete the administrative record in accordance with regulatory standards concerning consultative examinations and existing medical evidence" (Tr. 198-99).
Plaintiff argues that, because the ALJ did not obtain a consultative examination or add any other evidence to the record on remand, the ALJ failed to do as ordered and that this action should be remanded so that further evidence can be gathered concerning her mental impairments (Doc. 8, p. 2). Rembert points to social security regulations which state that "[t]he administrative law judge shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council's remand order." 20 C.F.R. § 416.1477(b) (1999). Plaintiff's attorney, for the first time in this Court, points to statutory and case law as supporting his assertion that the ALJ should have ordered a consultative psychiatric examination.
Plaintiff first raised the statutory and case cites at oral argument on July 27, 2000 in this Court though he stated that they were briefed on appeal to the eleventh circuit.
The Court notes initially that Plaintiff raised this issue following the ALJ's second decision, but the Appeals Council found no basis for reviewing that determination (Tr. 2-3, 6). It is apparent that, for whatever unspecified reason, the Appeals Council was satisfied with the ALJ's second decision and was unmoved by Rembert's claim of inadequacy.
The Court has also reviewed the newly-cited statutory and case law and finds Rembert's arguments unconvincing. Statutory law states the following:
An initial determination . . . that an individual is not under a disability, in any case where there is evidence which indicates the existence of a mental impairment, shall be made only if the Secretary has made every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment.42 U.S.C. § 421(h). McCall v. Bowen, 846 F.2d 1317 (11th Cir. 1988), acknowledges this statutory section.
The Court notes, however, that the ALJ did order a consultative psychological examination which was performed by Donald W. Blanton, Ph.D. (Tr. 187-90). Rembert's objection is that the ALJ did not seek new consultative evidence following the Appeals Council's order of remand. The Court does not, however, understand § 421(h) or McCall to address that issue and finds no other law addressing it either.
Defendant's attorney argued that the ALJ satisfied the Appeals Council's order in gathering evidence not already available by eliciting testimony from the Plaintiff regarding her mental impairment ( see Tr. 75-100; cf. Tr. 36-74). The Court notes that some additional evidence regarding Rembert's reasons for leaving school and the fact that there was no special education classes at her school were added for consideration by the ALJ at the second hearing (Tr. 80).
While sympathetic to Plaintiff's call for remand in light of § 416.1477(b), the Court believes that it would ultimately be a waste of time and resources in light of the Court's conclusions regarding the other claims Rembert raises in this action. More specifically, because the Court agrees with the ALJ's conclusion that Plaintiff does not satisfy the requirements for Listing 12.05C, as will be discussed later, this Court will not remand the action for the gathering of additional evidence.
Plaintiff next claims that the ALJ did not properly consider all evidence of her mental impairments. Rembert specifically argues that the ALJ failed to give proper credit to the scores she made on an IQ test, failed to properly examine her school record grades and tests, and that she meets the requirements of Listing 12.05C (Doc. 8, pp. 2-5). Section 12.05C of the Listings requires "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function." 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.05C (1999).
On August 7, 1995, Psychologist Blanton administered the WAIS-R to Rembert who scored a verbal IQ score of 74, a performance IQ score of 70, and a full scale IQ score of 71 (Tr. 188-89). In summarizing his interview and test results, Blanton stated that he thought Plaintiff's scores were "fairly valid estimates of her current level of intellectual memory functioning" (Tr. 190). The ALJ stated that he understood the Psychologist's characterization of the scores as "fairly valid" to mean that he "harbored some doubt about the validity of the scores" (Tr. 19). The ALJ then found that Rembert's academic performance did not demonstrate intellectual deficiencies and concluded that the IQ scores did not reflect her actual intellectual abilities and that she did not meet the requirements of Listing 12.05C (Tr. 19).
The Court does not interpret Blanton's statement of "fairly valid" to indicate doubt as to the validity of the Plaintiff's IQ scores as does the ALJ. Nevertheless, the Court agrees with the ALJ's conclusion that Rembert's academic performance did not demonstrate mental retardation. While Plaintiff's overall school grades reveal below-average functioning, they do not reflect an individual that is incapable of performing; in fact, Rembert's marks from eighth grade demonstrate above-average performance ( see Tr. 192-94).
Though the Court does not agree with this finding, it cannot say that it is not supported by substantial evidence.
As further support, Plaintiff points to low scores she made on the California Mental Maturity and Achievement Battery (Doc. 8, pp. 3-4; see Tr. 195). Rembert specifically noted that she "scored in the eighth percentile in vocabulary, the third percentile in fundamental mathematics, the sixth percentile in language mechanics, and the third percentile in spelling" (Doc. 8, pp. 3-4; see also Tr. 195). On the remaining indices from that test, Rembert scored in the twenty-third percentile in verbal mental maturity, the fifteenth percentile in non-verbal mental maturity, the twenty-sixth percentile in reading comprehension, and the twenty-fifth percentile in mathematic reasoning (Tr. 195).
Social Security regulations require that an individual trying to establish disability through mental retardation demonstrate that he or she suffered intellectual functioning deficits before the age of twenty-two. 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.05 (1999). The regulations further state that "IQs of 70 and below are characteristic of approximately the lowest 2 percent of the general population." 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.00D (1999).
Rembert had scores on the California Mental Maturity Test which suggested that her abilities in two areas — fundamental mathematics and spelling — were approximately among the lowest 3 percent of the general population. Though Plaintiff did poorly on those two scales, and came very close to testing in the "lowest 2 percent" contemplated by the regulations, the balance of her scores do not reflect such poor intellectual abilities. Though lower than average, Rembert's other scores on the California test do not indicate mental retardation.
The Court also notes that Plaintiff testified that she quit school because she had a baby and had no one to tend to it (Tr. 80). She further testified that she attended regular classes at her school as there was no special education curriculum there. Id.
The Court finds that Plaintiff has not demonstrated that she was mentally retarded before she reached the age of twenty-two. The Court further finds that she has not satisfied the requirements for Listing 12.05C. As the Court finds that Plaintiff has not satisfied the first requirement of Listing 12.05C, it is unnecessary to discuss Rembert's "physical or other mental impairment imposing additional and significant work-related limitation of function" for purposes of this claim. See 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.05C (1999).
Plaintiff next claims that the ALJ improperly relied on an old consultative examination. Rembert specifically objects to the ALJ's reliance on the consultative examination because it was performed one and one-half years before the ALJ's decision "and was not based upon the full record" (Doc. 8, p. 6).
Without reviewing the specific findings made by Dr. Cynthia Teh in her examination, the Court notes that the ALJ stated the following: "Even though Dr. Teh's examination took place in November 1994, there is no indication that the claimant's condition has appreciably worsened since that time" (Tr. 18). The ALJ goes on to describe the medical evidence following Teh's examination, noting that Rembert's complaints of pain diminished and that she herself suggested that she might be able to perform seated work (Tr. 18). Plaintiff has pointed to nothing indicating that her medical condition had changed and that the ALJ's reliance on Teh's conclusions was misplaced. The Court knows of no law in this Circuit stating that medical evidence of a certain age can no longer be considered. This claim is of no merit.
Dr. The's report can be found at Tr. 162-66.
Rembert next claims that the ALJ improperly determined that she was capable of performing medium work (Doc. 8, p. 6). The Court notes that the ALJ found that Plaintiff could perform medium level work, but further found that she was capable of performing certain specified jobs at the light and sedentary exertional levels (Tr. 22-23, ¶¶ 10-12). Though Dr. Teh's conclusions do not support a finding that Rembert can perform medium exertion work, they do support a finding that she can perform light and sedentary level work. The Court finds substantial support for the ALJ's conclusion that Plaintiff can perform specified jobs at the light and sedentary level.
"Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work." 20 C.F.R. § 404.1567(c) (1999).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." 20 C.F.R. § 404.1567(b) (1999).
"Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a) (1999).
Because the Court finds that the ALJ's conclusion that Plaintiff can perform sedentary work is supported by substantial evidence, the Court finds that the ALJ's conclusion that Rembert can perform medium exertional work is, at most, harmless error.
Rembert's last claim is that the ALJ improperly relied on the testimony of a vocational expert (hereinafter VE). Plaintiff argues that the VE gave testimony which was in conflict with information provided in the Dictionary of Occupational Titles (hereinafter DOT (Doc. 8, p. 5). More specifically, Rembert asserts that because of problems with her fine visual acuity, bilateral dexterity, mental faculties, and her inability to exert much effort, she is unable to perform the specific jobs listed by the VE and ALJ. Id.
The Court notes that the ALJ, in posing his hypothetical to the VE, defined reaching to mean "arm's length reaching would be permitted, but no overhead reaching. No more than a very minimal amount of backward reaching or side reaching, but the job would basically be performed at arm's length" (Tr. 94). The VE's response was that "99 percent of the jobs that she would be qualified for that would require reaching would be straight-ahead forward reaching, not overhead, not to the back," indicating that she could still perform the factory hand worker and production inspector positions, both found at the sedentary level (Tr. 94-95).
The Social Security Regulations state that the Administration will take notice of various publications, including the DOT, and will use the services of VEs when needed. 20 C.F.R. § 404.1566(d and e) (1999). Plaintiff has not pointed to law supporting her position that the information from the DOT should be accepted over the testimony of the VE.
The Eleventh Circuit Court of Appeals has specifically held "that when the VE's testimony conflicts with the DOT, the VE's testimony `trumps' the DOT." Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir. 1999), cert. denied, 120 S.Ct. 1723 (2000). In reaching this decision, the Jones Court noted that the DOT states that it is not a comprehensive source of information and that it should be supplemented with local job information. Id. Because the VE was at the hearing and testified to hypotheticals which were specifically crafted to reflect Plaintiff's abilities, the Court finds that the ALJ's reliance on the VE is supported by substantial evidence.
Rembert has raised five different claims in this action. All are without merit. Upon consideration of the entire record, the Magistrate Judge finds "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401. Therefore, it is recommended that the Commissioner's decision be affirmed, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir. 1980), that this action be dismissed, and that judgment be entered in favor of Defendant Kenneth S. Apfel and against Plaintiff Rachel Rembert on all claims.