Opinion
Civ. No. 99-2720, SECTION "LLM".
March 30, 2000.
ORDER AND REASONS
Plaintiff Anne Conley Viener seeks judicial review pursuant to Section 405(g) of the Social Security Act (the "Act") of the final decision of the Commissioner of Social Security Administration (the "Commissioner"), which denied her claim for supplemental security income benefits ("SSI") under Title XVI, §§ 1602 and 1614(a)(3)(A) of the Act, 42 U.S.C. § 1381 (a). Plaintiff and defendant filed timely cross-motions for summary judgment. Record Doc. Nos. 7, 8.
1. PROCEDURAL HISTORY
Viener applied for SSI on September 27, 1996, alleging disability since June 26, 1980, because of "Mild Moderate Severe Learning Disorder." (Tr. 77-82, 83). The Commissioner denied her application initially and on reconsideration. (Tr. 59-62, 65-67). Plaintiff requested a hearing before an administrative law judge ("ALJ"), which was held on May 7, 1998. (Tr. 23-56). The ALJ denied Viener's application on June 12, 1998. (Tr. 23-56). After the Appeals Council denied review on July 8, 1999, the ALJ's decision became the final decision of the Commissioner for purposes of this Court's review.
2. STATEMENT OF ISSUES ON APPEAL
Plaintiffs request for judicial review raises the following issues:
A. Whether or not the ALJ ignored plaintiffs "second impairment" in evaluating her disability under Listing 12.05(C).
B. Whether or not the ALJ failed to give proper weight to the opinion of plaintiffs treating physician, and
C. Whether or not the ALJ failed to analyze contrary vocational opinion in lay evidence.
3. ALJ' S FINDINGS RELEVANT TO ISSUES ON APPEAL
The Commissioner made the following findings relevant to the issues on appeal:
A. The medical evidence establishes that the claimant has borderline mental functioning which is severe within the meaning applicable regulatory provision.
B. The medical evidence establishes that the claimant does not have an impairment, or combination of impairments, which meet or equal a Listed Impairment in Appendix I.
C. The claimant retains the residual functional capacity to perform work at any exertional level but with non-exertional limitations which include functional illiteracy and moderate limitations in the ability to understand, remember and carry out detailed instructions, maintain attention and concentration for extended periods and realistically set goals or make plans independent of others.
D. There are a significant number of occupations in the state and national economy, which a person with the above described limitations can perform.
E. The claimant was not under a "disability" as defined in the Social Security Act, at any time since her alleged date of onset through the date of this decision. ( 20 C.F.R. § 416.920 (f)).
4. ANALYSIS
A. Standards of Review
The function of this Court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence is more than a scintilla but less than a preponderance and 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); Spellman, 1 F.3d at 360. This Court may not reweigh the evidence, try the issues de novo or substitute its judgment for the Commissioner's. Id.; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
The Commissioner is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible. See Arkansas v. Oklahoma, 503 U.S. 91 (1992). Despite this Court's limited function, it must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists to support it. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Any findings of fact by the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
To be considered disabled and eligible for DIB, plaintiff must show that she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423 (d)(1)(A), 1382c(a)(3)(A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. § 404.1501 to 404.1599 Appendices, §§ 416.901 to 416.998 (1995). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity.Id. §§ 404.1520, 416.920; Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Moore v. Sullivan, 895 F.2d 1065, 1068 (5th Cir. 1990). The five-step inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled. 20 C.F.R. § 404.1520 (b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment. he or she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c).
Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520 (d), 416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant's age, education and work experience are considered to see whether he or she can meet the physical and mental demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide certain tables that reflect major functional and vocational patterns. When the findings made with respect to claimant's vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not disabled. Id. § 404. Subpt. P, App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical-Vocational Guidelines").
The claimant has the burden of proof under the first four parts of the inquiry. Id. If she successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy, which the claimant is capable of performing. Greenspan, 38 F.3d at 236; Kraemer v. Sullivan, 885 F.2d 206, 208 (5th Cir. 1989). When the Commissioner shows that the claimant is capable of engaging in alternative employment, "the ultimate burden of persuasion shifts back to the claimant." Id.; accord Selders, 914 F.2d at 618.
The Court "weight[s] four elements of proof when determining whether there is substantial evidence of disability: (I) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) [her] age, education, and work history." Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995). "The Commissioner, rather than the courts, must resolve conflicts in the evidence." Id.
B. Factual Background
Plaintiff Anne Viener, who was 21 years old at the time, testified at her hearing on May 8, 1998 before the ALJ, as did her father and mother, Mr. And Mrs. Viener (often referred to in the transcript as "WIT 1" and "WIT 2"), and vocational expert (VE) Robert Strader. (Tr. 25-56). Claimant was accompanied by her parents but was not represented by an attorney or any other representative. The ALJ explained their right to have an attorney present and offered an ajournment if they wanted one, but they declined and waived their right to an attorney or other representative and elected to proceed. (Tr. 26-28). Claimant testified that she was working at a restaurant at the time of the hearing. Before that, she had volunteered at a day care center for a few months. (Tr. 29-30). She began working there in November of 1997 as a hostess, part time (around 20 hours a week). (Tr. 29-33, 36).
Claimant testified that she has asthma, for which she takes Ventolin with a pump. She said her asthma acts up when she does a lot of activity, but was unable to say how often she experienced asthma attacks. (Tr. 33-34). She is a borderline diabetic, and gets "a little bit of headaches," about once a month. (Tr. 34-35).
Claimant's father testified that claimant can't make change for a dollar, and that they applied for SSI at the suggestion of"vocational rehab." (Tr. 42). The father also testified that she can write her name, but she could not write a sentence. (Tr47).
The VE testified that there were only two kinds of jobs claimant could perform based on the ALJ's hypothetical: maid (4, 600 in the state), and hand packing (1, 800 in the state). Mr. Viener, in questioning the ME, explained that he had been in the education field for 30 years and that he would say she is in about the second grade level at this point. (Tr. 51). He also stated his daughter was more like a greeter at the restaurant than a hostess; she doesn't do things like make lists of people for seating or reservations, and they have cut her hours there from 20 a week to six a week. (Tr. 53-55).
C. Medical Evidence
This Court has reviewed the transcript, medical records and the ALJ's summary of the medical evidence (Tr. 14-18), and makes the following observations and findings:
When Anne was 3 years old, testing was conducted at Southeastern Louisiana University in Hammond for diagnostic evaluation to determine her current level of academic and intellectual abilities. Her classification was listed as non-categorical/ preschool handicapped-severe speech impaired. (Tr. 119). This report was dated July 1, 1980, when the child was 3 years old. This special education evaluation was performed at the Special Education Clinic at Southeastern Louisiana University in Hammond, Louisiana. It was noted that due to Anne's short attention span an articulation test was not administered. However, information observed indicated that Anne has a severe articulation disorder. Her rate, rhythm, fluency, and voice quality were within normal limits. It was also noted that Anne's communication skills are severely delayed. Again they noted that Anne had a severe articulation disorder and a mild delay in the acquisition of language skills. Anne's demeanor was described as generally active, and her tasks approach reflected difficulty with attention and concentration and control of impulses. (Tr. 120-121). It was further noted that her approach toward problem solving reflected difficulty with attention and concentration along with some impulsivity. It was also noted that her adaptive behavior as measured by the Vineland Social Maturity Scale indicates a social age of 3.8. At the time of the testing, Anne was 3.7 years of age. (Tr. 122).
In 1986, when Anne was ten years old, a Tangipahoa Parish Pupil Appraisal Services form was completed by plaintiffs teacher. Her problems were listed as "distractable, unable to follow oral or written instructions," and "unable to express herself in complete correct sentences. She cannot follow oral or written instructions. She is unable to complete assignments on her own." (Tr. 266).
In 1987, a "Reevaluation Integrated Report" was prepared by Tangipahoa Parish Public Schools. Anne's teacher stated that she is unable to complete many simple assignments without constant supervision. Anne had difficulty following written instructions that are commensurate to her level of functioning. Academically, Anne had much difficulty expressing thoughts in written form. (Tr. 206). It was noted in the report that Anne had been given a Woodcock-Johnson Psycho-Educational Battery, Part II in January of 1986, with results indicating a "severe deficit" in reading and mathematics. (Tr. 208).
Anne was evaluated by Louisiana Rehabilitation Services when she was 19 or 20 years old on January 22, 1996. The examiner found that Anne was a 19 year old single white female who was classified as functioning in the borderline range of intelligence, with an overall score of 72 on the IQ, a verbal score of 70 and a performance scale score of 77. Anne was found to have functional limitations in the areas of mobility, self-direction, interpersonal skills, communication and work skills. In the area of self-direction, Anne showed a severe limitation in that she lacked the judgement to follow the logical steps necessary to reach her goal. She had never worked and would be unable to work independently at that point in time, according to the examiner. (Tr. 136). Her testing indicates that she scored below the 3rd grade level in reading, recognition and spelling, and lower 5th grade level in math computation. Her reading comprehension was in the upper 3rd grade level while her writing fluency was in the mid 2nd grade level. In the area of work skills, she will have a severe deficit as she will require special supervision and accommodations not typically made for other workers in order to maintain a job. She is unable to follow written directions as her reading level is below the third grade. It was noted that Anne had never had any experience in the workforce, but that she had expressed that she would like to go to work. (Tr. 136).
In summary, it was noted that Anne would be considered most severely disabled as she had deficits in the area of mobility, self-direction, interpersonal skills, communication and work skills which would limit her ability to regulate her behavior in a purposeful and predictable way and her relationships with her communication skills are impaired in that she will not be able to exchange and receive information in a meaningful way. Her work skills and capacity to perform job tasks and adapt to the attitudes and norms and expectations to be employed will also be impaired. Anne was determined to be able to benefit from the services of this agency, i.e. Louisiana Rehabilitation Services, and will be considered most severely disabled. (Tr. 136).
On January 23, 1996, Anne was advised by the Louisiana Rehabilitation Services that, based on medical evidence and an evaluation of her rehabilitation potential, she had been placed in "Selection Group I (The Most Severely Disabled)." (Tr. 269).
It should be noted that on October 1, 1996 Anne's parents acknowledged that they had received a copy of the "Educational Rights of Exceptional Children" and had approved the proposed placement. They also acknowledged that they realized that Anne would not participate in all aspects of the Louisiana Educational Assessment Program (LEAP) and will not receive a high school diploma as a result of this program decision. (Tr. 140). It is noted that Anne did receive a "Certificate of Achievement" from the state of Louisiana on May 22, 1997 stating that she had successfully completed the alternative to regular education program. (Tr. 170).
The medical evidence record includes a school function form provided by the Louisiana Disability Termination Services, which appears to have been a report made on October 4, 1996. (Tr. 113). The report was filled out by W. Pearl Ard who was a teacher at Pontchatoula High. For the child's current grade, she wrote "non-graded 4th year high school." She indicated that the child was in special education and had a severe language disorder, that she repeated 4th and 12th grades and that she had known the child for 5 years and seen her for 3 class periods, 5 days per week. The teacher noted that plaintiff received speech therapy. She further noted that Anne has mild verbal apraxia, characterized by difficulty pronouncing many common multi-syllable words. While she did indicate that 90% of the child's speech could be understood, she also indicated the child had difficulty expressing her needs, wants and ideas at an age appropriate manner. She stated that Anne was classified as "severe language disordered". She further stated that Anne has difficulty organizing and relating thoughts in a spontaneous verbal manner (at times). Though she is very verbal, weaknesses are observed in language form (syntax, grammar), content (vocabulary) and use (pragmatics). She further stated that while Anne has shown significant progress in therapy over the years, her language remains an identified deficit. (Tr. 114). In terms of behavior functioning, the teacher indicated that she shows deficits in that she makes excessive demands for attention and becomes easily frustrated on a daily basis and displays lack of motivation once or twice a week. Anne was noted to respond well to disciplinary action, to be able to perform self-help skills, and to get along well with her peers and with teachers and adults. In terms of concentration!persistence/pace, the teacher indicated that Anne was usually able to sustain an ordinary daily routine. She also noted, however, that Anne cannot concentrate very well with distractions. (Tr. 113-118).
Anne was reevaluated periodically throughout her attendance at school and was found to continually have a "severe language disorder, severe processing disorder and severe deficits in reading and math." (See Tr. 171, 181, 185, 200, 206, 213). It was determined again on October 1, 1996 that Anne would benefit from remaining in the special education program. Her parents acknowledged that this was so, and again acknowledged that they understood that she would not receive a high school diploma for this instruction. (Tr. 216).
There are three letters in the file from three different persons who are acquainted with the plaintiff. A letter from Options, The Key to Opportunities for Individuals with Developmental Disabilities, stated that Options is a private, non-profit organization that provides vocational and residential services to individuals with developmental disabilities. They provide a variety of services, which include Supported Employment. This service provides assessment, job seeking and job training services to developmentally disabled adults, who without this service would not be capable of obtaining and maintaining an independent job in the community. Anne Viener was assessed in July of 1997. The outcome of that assessment determination was that she was in need of Supported Employment Services. On the basis of this assessment, along with her psychological, it was decided that Anne would not be able to function independently in the working community without the assistance of this type of service. She will continue to need the support of a job coach to continue to work competitively in the community. It was signed by Michelle Moschitta, Supported Employment Specialist. (Tr. 163).
There was another letter from the Rector of Grace Memorial Episcopal Church in Hammond, Carl H. Stolley, Jr., dated April 29, 1998, who wrote on behalf of the plaintiff, stating that he had known her since she was a very little girl. He stated that she was developmentally disadvantaged, and that he had absolutely no doubt whatsoever that she will need financial assistance for the rest of her life. He also stated that this young lady does the very best she can with what she has, and when governmental assistance came into being, he believes it was people like this young lady that those in authority had in mind. (Tr. 164).
The last letter was from the administrator of Christ Academy, M. Zahn Martin. He stated that Anne was a student at his school, which he principled from 1987 through 1990. He asserted that Anne was a delightful student with a significant handicap that will be with her for the rest of her life. He also found that she will require special assistance to be able to lead a normal productive life in our community. (Tr. 165).
D. Legal Argument
Plaintiff first argues that the ALJ ignored plaintiffs "second impairment" in evaluating her disability under Listing 12.05(C).
12.05 Mental Retardation and Autism: Mental retardation refers to a significantly subaverage general intellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22). (Note: The scores specified below refer to those obtained on the WAIS, and are used only for reference purposes. Scores obtained on other standardized and individually administered tests are acceptable, but the numerical values obtained must indicate a similar level of intellectual functioning.) Autism is a pervasive developmental disorder characterized by social and significant communication deficits originating in the developmental period.
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied. . . .
C. 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.
The ALJ found that although plaintiff had a verbal IQ score of 70, she did not have a physical or other mental impairment imposing additional and significant work-related limitation of function. (Tr. 16). Significantly, however, the ALJ apparently mistakenly understood the testimony of plaintiffs mother, when he stated "[t]he claimant's mother testified that the claimant can make change, but still has difficulty reading." (Tr. 17). The transcript of the hearing clearly reveals that her parents both testified Anne could not make change, not even for a dollar. (Tr. 42, 52).
The court is assuming the ALJ prepared his decision based on his notes made at the hearing; there is no indication when the transcript was actually prepared, but transcripts are more than likely not prepared until after the ALJ's decision is rendered. Because the claimant was not represented by an attorney or representative familiar with the hearing process, it was quite confusing at times, and the ALJ did an excellent job of explaining plaintiff's rights, and giving her and her parents plenty of leeway in cross-examining the VE and testifying themselves in the process. considering the confusion, it is quite understandable that he might have incorrectly noted that plaintiff's mother said she was capable of making change.
The ALJ considered, as he is required to do under SSR 96-6p, the medical opinions by two state agency medical consultants (SAMC). Both concluded that claimant's impairment did not meet Listing 12.05. The ALJ asserted "[t]hese conclusions and opinions are consistent with, and well supported by the substantial evidence of record. Therefore, I have assigned substantial weight to their opinion." (Tr. 17). Unfortunately, he does not refer to any other evidence of record which could reasonably be read as substantial-support for the SMACs' opinions and conclusions.
The Court has "scrutinized" the record, as it is required to do under the law. Villa, 895 F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). Virtually all of the evidence in the record, except for the findings of the two SAMCs, strongly indicate that plaintiff, in addition to her verbal IQ score of 70, suffers from a mental impairment imposing additional and significant work-related limitation of function. A brief review of the medical evidence set forth above indicates that from the time she was three, Anne was diagnosed with a severe articulation disorder, with severely delayed communication skills, and with difficulty with attention and concentration, along with some impulsivity. At ten years old, she was found to be distractable, unable to follow oral or written instructions, unable to express herself in complete correct sentences, and unable to complete assignments on her own, and at eleven, unable to complete many simple assignments without constant supervision. She was reevaluated periodically throughout her attendance at school and was found to continually have a "severe language disorder, severe processing disorder and severe deficits in reading and math." (See Tr. 171, 181, 185, 200, 206, 213).
By the time Anne was 20 years old, she was found to have functional limitations in the areas of mobility, self-direction, interpersonal skills, communication and work skills. In the area of self-direction, Anne showed a severe limitation in that she lacked the judgment to follow the logical steps necessary to reach her goal. She had never worked and would be unable to work independently at that point in time, according to the state examiner for Louisiana Rehabilitation Services (LRS). He further found that in the area of work skills, she will have a severe deficit as she will require special supervision and accommodations not typically made for other workers in order to maintain a job. She is unable to follow written directions as her reading level is below the third grade. Based on medical evidence and this evaluation of her rehabilitation potential, she was placed in "Selection Group I (The Most Severely Disabled)" by LRS. (Tr. 269).
In short, there is overwhelming evidence in the record that plaintiff has "other mental impairment[s] imposing additional and significant work-related limitation of function," along with a verbal IQ of 70, such as to satisfy the criteria of Listing 12.05C.
CONCLUSION
There is no substantial evidence in the record to support the ALJ's decision that plaintiff did not meet Listing 12.05.C. Accordingly, IT IS ORDERED that plaintiffs Motion for Summary Judgment be and hereby is GRANTED, the Commissioner's decision REVERSED, and this case REMANDED to the SSA for further action to be taken in accordance therewith.
New Orleans, Louisiana, this 30 th day ofMarch, 2000.