Opinion
Civil Action 00-0486-BH-M
January 23, 2001
REPORT AND RECOMMENDATION
In this action under 42 U.S.C. § 405 (g) and 1383(c)(3), Plaintiff seeks judicial review of an adverse social security ruling which denied claims for disability insurance benefits and Supplemental Security Income (SSI). The action was referred for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Oral argument was heard on January 22, 2001. Upon consideration of the administrative record, the memoranda of the parties, and oral argument, it is recommended that this action be remanded to the Social Security Administration for further action not inconsistent with the orders of this Court.
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 December 10, 1949. At the time of the administrative hearing, Taylor was forty-eight years old, had completed a ninth-grade education (Tr. 41), and had previous work experience as a garment inspector and poultry eviscerater (Tr. 53). In claiming benefits, Plaintiff alleges disability due to mental illness, mental retardation, asthma, and arthritis (Docs. 11, 16).
The Plaintiff filed applications for disability and 351 on July 29, 1996 (Tr. 85-87, 249-51). Benefits were denied following a hearing by an Administrative Law Judge (ALJ) who determined that although she could not perform her past relevant work, Taylor could perform work which was available in the national economy (Tr. 13-32). Plaintiff requested review of the hearing decision (Tr. 12) by the Appeals Council, but it was denied (Tr. 6-8).
Plaintiff claims that the opinion of the ALJ is not supported by substantial evidence. Specifically, Taylor alleges that: (1) The ALJ failed to properly develop the record with regard to her intellectual functioning; (2) the ALJ improperly assessed her mental limitations in reference to her depression; (3) the Appeals Council failed to properly consider newly-submitted evidence; and (4) she meets the requirements of Listing 12.05C (Docs. 11, 16).
Before examining the evidence, the Court notes that Defendant argues that certain evidence should not be considered because it was submitted to the Appeals Council after the ALJ rendered his opinion (Doc. 14, pp. 3-7). Defendant points to the evidence submitted by Psychologist Donald W. Blanton ( see Tr. 269-73).
It should be noted that "[a] reviewing court is limited to [the certified] record [of all of the evidence formally considered by the Secretary] in examining the evidence." Cherry v. Heckler, 760 F.2d 1186, 1193 (11th Cir. 1985). However, "new evidence first submitted to the Appeals Council is part of the administrative record that goes to the district court for review when the Appeals Council accepts the case for review as well as when the Council denies review." Keeton v. Department of Health and Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994). However, when the [Appeals Council] has denied review, we will look only to the evidence actually presented to the ALJ in determining whether the ALJ's decision is supported by substantial evidence." Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998), cert. denied, 119 S.Ct. 907 (1999).
Plaintiff has suggested that Falge has no precedential value, relying on Maroney v. Apfel, 57 F. Supp.2d 1250 (N.D. Ala. 1999). This Court, however, disagrees with the reasoning of Maroney, finding that Falge is not inconsistent with prior binding precedent; the Court specifically agrees with the opinions entered in Owens v. Apfel, 71 F. Supp.2d 1372 (N.D. Ga. 1999) and Zaldivar v. Apfel, 81 F. Supp.2d 1353 (N.D. Ga. 2000).
If, however, the Appeals Council accepts the case for review, we consider that new evidence as well, though it is to be examined differently from the balance of the evidence. See Falge, 150 F.3d at 1323. Keeton directs this Court to look at the new evidence and determine whether it meets the three-prong standard for remanding this action. Keeton, 21 F.3d at 1068. To make a determination of remand, "the claimant must establish that: (1) there is new, noncumulative evidence; (2) the evidence is `material,' that is, relevant and probative so that there is a reasonable possibility that it would change the administrative result, and (3) there is good cause for the failure to submit the evidence at the administrative level." Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986)
In examining the action at hand, the Court notes that the Appeals Council denied review of the additional evidence (Tr. 6-8). The Court further notes, however, that Plaintiff challenges the Appeals Council's decision to deny review of the new evidence (Docs. 11, 16). Therefore, the Court will review the evidence submitted to the Appeals Council to see if the Council properly denied review.
The Court finds that the three-prong standard has been met. The first prong, that the evidence is new and noncumulative, is satisfied as admitted by Defendant (Doc. 12, p. 4).
Defendant argues that the second prong is not satisfied, however. Specifically, Defendant asserts that the newly-submitted evidence is not material in that it is not probative, is not relative, and would not likely change the administrative result (Doc. 14, pp. 5-6). Defendant argues that Taylor has not claimed, until now, that she suffers from mental retardation, that there is no evidence to suggest that she suffers from mental retardation, and that the new evidence does not prove that she meets the disability listing.
The record before the ALJ demonstrates that Plaintiff, in seeking disability benefits, stated more than once that her mind wanders (Tr. 88, 89, 105). An administrative worker noted Taylor's "blank, confused facial expression" (Tr. 95). The record demonstrates that Plaintiff has only a ninth-grade education (Tr. 41) and performed low, semi-skilled work with no transferable skills ( see Tr. 53)
The ALJ ordered a consultative psychological examination by Blanton, the same psychologist who provided the disputed evidence, but told Blanton not to perform testing ( see Tr. 156-57); nevertheless, even without the testing, Blanton suggested that Plaintiff's IQ fell within the range of 65-80 (Tr. 157). This suggested IQ range is clearly a red flag that there is possible mental retardation. See 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.05C (1998). Blanton's subsequent examination, the evidence in dispute, revealed IQ scores as follows: a verbal IQ score of 64, a performance IQ score of 63, and a full scale IQ score of 61 (Tr. 270).
The introductory notes to Section 12.05 state that "[m]ental retardation refers to a significantly sub-average general intellectual functioning with deficits in adaptive behavior initially manifested during the development period (before age 22)." 20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.05 (2000). Subsection C 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 (2000).
Defendant notes that Blanton characterized the test results as "fairly valid" (Tr. 271). What Defendant fails to acknowledge is that Blanton found that "there were no distracting factors during the testing session and that she appeared to put good effort into her work" (Tr. 271). The Psychologist further noted that "[b]ased upon her fund of knowledge, vocabulary, and prior education experience, this appears to be a lifelong condition and is unlikely to change in the next six to twelve months." Id. The Court finds the Appeals Council's repudiation of the test results because Blanton stated that they were "fairly valid" is without foundation.
Defendant argues that Taylor had seen a psychiatrist for several years for depression and psychotic ideation and that there was never mention of mental retardation (Doc. 14, p. 5). While this is true, the Court finds merit with Plaintiff's argument that "[t]here is no reason to expect [the psychiatrist] to diagnose mental retardation in connection with treatment for depression" (Doc. 16, p. 2). It is this Court's experience that mental intelligence testing is done by psychologists — not psychiatrists.
Defendant also argues that Plaintiff has not shown, as required in Listing 12.05C, that Taylor has demonstrated that her mental retardation was manifest by the time she was twenty-two years of age. Blanton's opinion suggests otherwise. This is not much evidence but, when it is considered along with the facts that Taylor finished nine years of school and worked at unskilled jobs, it provides enough for the issue to be considered further.
The Court finds that the new evidence is material and that there is a reasonable likelihood that consideration of it would change the administrative result. Plaintiff apparently meets the Listing requirements of an IQ in the 60's and "a physical or other mental impairment imposing additional and significant work-related limitation of function" in that the ALJ found she suffers other severe impairments (Tr. 19). While there is a question as to whether Taylor has demonstrated that mental retardation was manifest by the time she was twenty-two years of age, an examining psychologist has suggested that such proof exists. At the very least, this question should be further examined.
The third prong requires that Plaintiff show that "there is good cause for the failure to submit the evidence at the administrative level." Defendant argues that this prong has not been met, suggesting that Taylor procrastinated in obtaining the evidence (Doc. 14, p. 6).
The Court notes that Plaintiff changed attorneys a month after the ALJ's decision was entered (Tr. 10-11). Less than a month later, the new attorney sent Taylor back to Blanton, the psychologist who initially examined her, for intelligence testing. The Court finds good cause exists for Plaintiff's late submission of this evidence to the Appeals Council in that it did not exist at the time of the hearing and that Plaintiff had a new attorney who obtained the evidence in a relatively short period of time. Plaintiff has satisfied the third prong.
The Court would not suggest that a claimant can go out and get a new attorney following an unfavorable ALJ decision and that that opens the floodgates to submit all of the new evidence desired. But on this set of facts, the Court finds that good cause exists.
The Court further notes that it is not determining that Plaintiff meets the requirements of Listing 12.05C. The Court is determining, however, that the Appeals Council did not properly consider the new evidence and that such evidence should have triggered a remand to the ALJ for consideration of the evidence.
In summary, the Court finds that the Appeals Council's decision to deny review of the ALJ's determination after consideration of the new evidence was improper. Therefore, it is recommended that the action be reversed and remanded to the Social Security Administration for further administrative proceedings consistent with this opinion, to include at a minimum, consideration of Plaintiff's claim for mental retardation under Listing 12.05C.
Therefore, it is recommended that the motion be granted and that this action be remanded for further administrative proceedings pursuant to sentence six of 42 U.S.C. § 405 (g). See Melkonyan v. Sullivan, 501 U.S. 89, 100 n. 2 (1991). It is further recommended that the Clerk statistically close this file once this action has been remanded.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the clerk of court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge. See 28 U.S.C. § 636 (b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) ( en banc). The procedure for challenging the findings and recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636 (b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation" within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable where proceedings tape recorded) . Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.