Opinion
CA 00-0787-BH-C
April 18, 2001
REPORT AND RECOMMENDATION
Plaintiff brings this action pursuant to 42 U.S.C. § 1383 (c)(3), seeking judicial review of a final decision of the Commissioner of Social Security denying his claim for supplemental security income both as a child and as an adult. This action has been referred to the Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Upon consideration of the administrative record, plaintiff's proposed report and recommendation, defendant's proposed report and recommendation, and the parties' arguments at the April 12, 2001 hearing before the Magistrate Judge, it is determined that the decision to deny benefits should be reversed and this cause remanded to the Commissioner of Social Security for further proceedings not inconsistent with this decision.
Plaintiff alleges disability due to mild mental retardation. The Administrative Law Judge (ALJ) made the following relevant findings:
SSI CHILD
1. The claimant was 12 years of age when his application was filed and he is now 18.
2. The claimant is not engaging in substantial gainful activity.
3. The claimant has had the following medically determinable impairment of borderline intellectual functioning.
4. The claimant does not meet the requirements of any listing applicable to his documented impairments.
5. The claimant's medically determinable impairment is not medically equivalent of any listing.
6. The claimant's impairment [is] not functionally the equivalent of any listing.
7. The claimant's allegations and those of his mother of disabling impairments are not credible.
8. "Other factors" as set forth in Regulation 416.924c, considered in combination with other aspects of the claimant's impairment(s), did not cause "marked and severe" functional limitations.
9. The claimant does not have a medically determinable physical or mental impairment, or combination of impairments, which results in "marked and severe" functional limitations.
10. The claimant has not been disabled, as that term is defined in the Act, prior to the age of 18.SSI ADULT
11. The claimant has not engaged in substantial gainful activity since turning age 18.
12. The medical evidence establishes that the claimant has borderline intellectual functioning but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.
13. The claimant's allegations and that of his mother as to the determination and extent of his subjective complaints are not credible.
14. The claimant has the residual functional capacity to perform the physical exertion requirements of work except for but (sic) that does not involve complex instructions. There are no nonexertional limitations ( 20 C.F.R. § 416.945).
15. The claimant has no past relevant work history.
16. The claimant turned age 18 as of May 15, 1999, which is defined as a younger individual ( 20 C.F.R. § 416.963).
17. The claimant has an eleventh grade education with a ninth grade special education ( 20 C.F.R. § 416.964).
18. Given the claimant's young age, the issue of transferable work skills to the skilled or semiskilled work functions of other work is not material ( 20 C.F.R. § 416.968).
19. Based on an exertional capacity, and the claimant's age, education, and work experience, section 416.969 of Regulations No. 16 and Rule 204.00, would direct a conclusion of "not disabled."
20. The claimant was not under a "disability," as defined in the Social Security Act, at any time since May 15, 1999, the date he turned 18, through the date of this decision ( 20 C.F.R. § 416.920 (f)).
It appears that the ALJ intended to apply Rule 204.00 of the grids as a framework for decision making. ( See Tr. 24 ("Having independently evaluated all the evidence of record, the testimony of the claimant and the claimant's mother, and considering the claimant's impairment within the framework of Rule 204.00, the undersigned finds as of the date he turned age 18, he retained the residual functional capacity to perform a significant number of jobs which exist in significant numbers in the national economy."))
(Tr. 24-26 (footnote added)) The Appeals Council affirmed the ALJ's decision (Tr. 5-6) and thus, the hearing decision became the final decision of the Commissioner of Social Security.
DISCUSSION
A. SSI as an Adult . In Social Security cases in which a determination is made that a claimant has never engaged in substantial gainful activity, as here (Tr. 26), the Commissioner must bear the burden of proving that the claimant is capable of performing work that exists in significant numbers in the national economy. See Allen v. Sullivan, 880 F.2d 1200, 1201 (11th Cir. 1989) (citation omitted). The ALJ's articulation of specific jobs the claimant is capable of performing must be supported by substantial evidence. Id. (citation omitted). Substantial evidence is defined as more than a scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
This Court's review of the Commissioner's application of legal principles, however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
It is clear in this circuit that the Commissioner of Social Security must develop "a full and fair record regarding the vocational opportunities available to a claimant." Allen, supra, 880 F.2d at 1201 (citation omitted). The Commissioner must articulate specific jobs that the claimant can perform given his age, education and work history, if any, "and this finding must be supported by substantial evidence, not mere intuition or conjecture." See id. (citation omitted). One means by which the Commissioner meets this burden is by reliance on the medical-vocational guidelines ("grids"). Id. at 1201-1202 (citations omitted). Exclusive reliance upon the grids is inappropriate, however, "`"either when the claimant is unable to perform a full range of work at a given residual functional level or when a claimant has a non-exertional impairment that significantly limits basic work skills."'" Id. at 1202 (quoting Walker, supra, 826 F.2d at 1002-1003, in turn quoting Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir. 1985)). Normally, when nonexertional limitations are alleged "the preferred method of demonstrating that the claimant can perform specific work is through the testimony of a vocational expert." MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986); see Francis, 749 F.2d at 1566 ("The preferred method of demonstrating job availability when the grids are not controlling is through expert vocational testimony"). "`It is only when the claimant can clearly do unlimited types of work . . . that it is unnecessary to call a vocational expert to establish whether the claimant can perform work which exists in the national economy.'" Allen, 880 F.2d at 1202 (quoting Ferguson v. Schweiker, 641 F.2d 243, 248 (5th Cir. Unit A March, 1981)). Where nonexertional impairments are present "[t]he ALJ must`" make a specific finding as to whether the nonexertional limitations are severe enough to preclude a wide range of employment at the given work capacity level indicated by the exertional limitations."'" Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) ( quoting Johnson v. Shalala, 1993 U.S.Dist. LEXIS 8553 (S.D.Ala. May 27, 1993), in turn quoting Welch v. Bowen, 854 F.2d 436, 439 (11th Cir. 1988)).
In this case, the ALJ failed to follow the Eleventh Circuit's direction in Foote, supra, to make a specific finding regarding whether the nonexertional limitations are severe enough to preclude a wide range of work at all exertional levels because of his error in finding no nonexertional limitations. (Tr. 26, Finding No. 14 ("There are no nonexertional limitations[.]")) It is all too clear that borderline intellectual functioning is a nonexertional impairment. Muncy v. Apfel, ___ F.3d ___ 2001 WL 360626 *6 (8th Cir. April 12, 2001) ("Even assuming that Muncy's IQ score of 84 is valid, it nevertheless represents borderline intellectual functioning . . . . Such a score indicates a `significant nonexertional impairment that needed to be considered by the VE.'"); Holz v. Apfel, 191 F.3d 945, 947 (8th Cir. 1999) ("Holz's borderline intellectual functioning . . . was a significant nonexertional impairment that needed to be considered by the VE[.]"); Foreman v. Callahan, 122 F.3d 24, 26 (8th Cir. 1997) ("This Court . . . has `previously concluded that borderline intellectual functioning . . . is a significant nonexertional impairment that must be considered by a vocational expert.'"); Lucy v. Chater, 113 F.3d 905, 908 (8th Cir. 1997) ("We have previously concluded that borderline intellectual functioning, if supported by the record as it is here, is a significant nonexertional impairment that must be considered by a vocational expert."); see also Allen, supra, 880 F.2d at 1201 1202 (noting the ALJ's finding that one of plaintiff's severe impairments was borderline intellectual functioning and concluding that "[t]he ALJ should have elicited testimony from a vocational expert to interpret and evaluate appellant's medically documented non-exertional psychological and emotional limitations, which included serious limitations in the exercise of judgment, making occupational adjustments, dealing with work stresses, concentrating, understanding, remembering, and carrying out job instructions."). Because borderline intellectual functioning is a nonexertional impairment and the ALJ explicitly found that plaintiff can only perform work that does not involve complex instructions, clearly a nonexertional limitation, the ALJ erred to reversal first in finding that there are no nonexertional limitations and secondly in failing to make a finding about whether these limitations are severe enough to preclude a wide range of work and application of the grids. Moreover, it is clear to the undersigned that there exist additional nonexertional limitations on plaintiff's ability to perform work activity not discussed by the ALJ. For instance, on February 18, 1999, Dr. Gerald E. McCleary, completed a supplemental questionnaire as to residual functional capacity, in conjunction with his psychological evaluation of the plaintiff, and thereon concluded that Williams has a marked degree of difficulty in maintaining social functioning, often has deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner, has had repeated episodes of deterioration or decompensation in school or home settings which caused him to withdraw from that situation or experience an exacerbation of signs and symptoms, and has a marked limitation in his ability to respond appropriately to teachers, other students and customary school pressures. While the ALJ mentioned and accepted McCleary's assessment that plaintiff's "estimated level of intellectual functioning would be in the low average to borderline range[,]" (Tr. 17), he not once mentioned the limiting impact that impairment would have upon plaintiff in McCleary's estimation. Therefore, the undersigned recommends that this cause be remanded to the Commissioner for vocational expert testimony and the identification of what jobs, if any, plaintiff can perform in light of his nonexertional impairment and attendant limitations. In other words, plaintiff's borderline intellectual functioning and attendant limitations significantly limit basic work skills and must, therefore, be considered by a vocational expert.
Moreover, the ALJ's finding of no nonexertional limitations is internally inconsistent with his earlier finding that "[t]he claimant has the residual functional capacity to perform the physical exertion requirements of work except for [work] that does not involve complex instructions." (Tr. 26, Finding No. 14; see also Tr. 23 ("Having considered the foregoing evidence, the undersigned finds that the claimant's testimony as to the extent, intensity, and duration of subjective symptoms and resulting limitations is credible only to the extent that he is limited to performing routine and simple work activity.")) It cannot be gainsaid, as the ALJ implicitly recognizes in Finding No. 14, that the inability to perform work involving complex instructions is a nonexertional limitation on the ability to work and therefore, it was clear error for the ALJ to conclude that there are no nonexertional limitations in this case.
B. SSI as a Child . On August 22, 1996, the Personal Responsibility and Work Opportunity Act of 1996 was signed into law and provides in pertinent part as follows: "An individual under the age of 18 shall be considered disabled for the purposes of this subchapter if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and 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 12 months." 42 U.S.C. § 1382c(a)(3)(C)(i) (Cum.Supp. 1997). The new standard clearly is more stringent given Congress' decision, as stated in the House conference report, to confine the definition of childhood disability to the first three steps of the sequential evaluation process. Hart ex rel. Thomas v. Chater, 963 F. Supp. 835, 839 (W.D.Mo. 1997). The report reads in pertinent part as follows:
"The conferees intend that only needy children with severe disabilities be eligible for SSI, and the Listing of Impairments and other current disability determination regulations as modified by these provisions properly reflect the severity of disability contemplated by the new statutory definition . . . . The conferees are also aware that SSA uses the term `severe' to often mean `other than minor' in an initial screening procedure for disability determination and in other places. The conferees, however, use the term `severe' in its common sense meaning."Id. (quoting 142 Cong. Rec. H8829-92, 8913 (1996 WL 428614), H.R. Conf. Rep. No. 104-725 (July 30, 1996)); see also 20 C.F.R. § 416.924 (a) (1997) ("We follow a set order to determine whether you are disabled. If you are doing substantial gainful activity, we will determine that you are not disabled and not review your claim further. If you are not doing substantial gainful activity, we will consider your physical or mental impairment(s) first to see if you have an impairment or combination of impairments that is severe. If your impairment(s) is not severe, we will determine that you are not disabled and not review your claim further. If your impairment(s) is severe, we will review your claim further to see if you have an impairment(s) that meets, medically equals, or functionally equals in severity any impairment that is listed in appendix 1 of subpart P of part 404 of this chapter. If you have such an impairment(s), and it meets the duration requirement, we will find that you are disabled. If you do not have such an impairment(s), or if it does not meet the duration requirement, we will find that you are not disabled.").
The undersigned does not address the issues of whether plaintiff's impairment meets or is medically equal to a listed impairment because it is all too clear that the ALJ's finding that plaintiff's borderline intellectual functioning does not functionally equal a listed impairment is not supported by substantial evidence. First, the ALJ failed to assign a limitation "rating" (i.e., mild, moderate, marked or extreme) regarding plaintiff's cognitive/communication development/functioning. (Tr. 20) Moreover, in discussing each of the six broad areas of development or functioning to make a functional equivalence determination, the ALJ simply ignored certain pieces of evidence, such as Dr. McCleary's supplemental questionnaire as to mental residual functional capacity (Tr. 183-186) and the individualized functional assessment completed by plaintiff's teacher Dranetta Todd (Tr. 153-156), which support a finding of functional equivalence without rejecting that information or otherwise indicating why that information was not to be accorded the same weight as other evidence contained in the record. Accordingly, the child disability issue must also be remanded to the Commissioner for further consideration of functional equivalence.
CONCLUSION
The Magistrate Judge recommends that the decision of the Commissioner of Social Security denying plaintiff supplemental security income benefits, both as a child and as an adult, be reversed and remanded pursuant to sentence four of § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412. Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court's jurisdiction over this matter.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.