WILLIAM E. CASSADY, Magistrate Judge.
Social Security Claimant/Plaintiff Kerry A. Washam brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner of Social Security (the "Commissioner") denying his applications for supplemental security income ("SSI") under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Doc. 13 ("In accordance with the provisions of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the parties in this case consent to have a United States Magistrate Judge conduct any and all proceedings in this case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings.")).
Upon consideration of the briefs of the parties, (Docs. 9-10), the administrative record, (Doc. 8), (hereinafter cited as "(R. [page number(s) in lower-right corner of transcript])"), and the arguments presented during the hearing held on February 16, 2017, it is determined that the Commissioner's decision is due to be
Washam was born on March 22, 1993, (R. 207 [SSA Ex. 8E]). The highest grade of school Washam attained was eleventh grade at Leflore Magnet High School in Mobile, Alabama, and while there, he attended special education classes. (R. 174 [SSA Ex. 2E]). Washam was employed from January 2011 to June 2012 as a stocker and cashier at a store and from June 2012 to February 2013 as a dish washer at a restaurant, (R. 175 [SSA Ex. 2E]), and also was employed as a brick mason and at a nursery, (R. 40).
Washam filed applications for SSI
Washam requested review of the ALJ's decision by the Appeals Council for the SSA's Office of Disability Adjudication and Review. (R. 8-10). The Appeals Council denied Washam's request for review on March 23, 2016, which made the ALJ's the final decision of the Commissioner. (R. 1-6). On May 19, 2016, Washam filed this action pursuant to § 405(g)
"In Social Security appeals, [the Court] must determine whether the Commissioner's decision is supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations and internal quotations omitted). The Court "may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [Commissioner]." Id. (citations omitted). "Even if the evidence preponderates against the Commissioner's findings, [the Court] must affirm if the decision reached is supported by substantial evidence." Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citing Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986); MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986); and Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). "Yet, within this narrowly circumscribed role, [the Court does] not `act as automatons.'" Bloodsworth, 703 F.2d 1233, 1239 (11th Cir. 1983) (citing Ware v. Schweiker, 651 F.2d 408, 411 (5th Cir. 1981), cert. denied, 455 U.S. 912, 102 S.Ct. 1263, 71 L. Ed. 2d 452 (1982)). The Court "must scrutinize the record as a whole, [Ware, 651 F.2d at 411]; Lewis v. Weinberger, 515 F.2d 584, 586-87 (5th Cir. 1975), to determine if the decision reached is reasonable, Simmons v. Harris, 602 F.2d 1233, 1236 (5th Cir. 1979), and supported by substantial evidence, Scharlow v. Schweiker, 655 F.2d 645, 648 (5th Cir. 1981)." Bloodsworth, 703 F.2d at 1239.
"In contrast to the deferential review accorded to the [Commissioner's] findings of fact, the [Commissioner's] conclusions of law, including applicable review standards are not presumed valid." Martin, 894 F.2d at 1529 (citing MacGregor, 786 F.2d at 1053; Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983), Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982); Smith v. Schweiker, 646 F.2d 1075, 1076 (5th Cir. Unit A June 1981). "The [Commissioner's] failure to apply the correct legal standard or to provide the reviewing court with sufficient basis for a determination that proper legal principles have been followed mandates reversal." Martin, 894 F.2d at 1529 (citing Gibson v. Heckler, 779 F.2d 619, 622 (11th Cir. 1986); Bowel v. Heckler, 748 F.2d 629, 635-36 (11th Cir. 1984); Smith, 707 F.2d at 1285; Wiggins, 679 F.2d at 1389; Ambers v. Heckler, 736 F.2d 1467, 1470 (11th Cir. 1984)).
Winschel, 631 F.3d at 1178 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); Phillips v. Barnhart, 357 F.3d 1232, at 1237-39 (11th Cir. 2004)).
1. "The [ALJ] committed reversible error in violation of Social Security Ruling 96-6p in not finding Plaintiff disabled under Listing 12.05(D)." (Doc. 9, at 1).
2. "The [ALJ] reversibly erred in failing to ask the Vocational Expert a hypothetical question that encompassed all of the Plaintiff's mental and physical limitations in violation of Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985)." (Doc. 9, at 2).
"At the first step, the ALJ must consider the claimant's current working situation. If the claimant is `doing substantial gainful activity, [the ALJ] will find that [the claimant is] not disabled.'" Phillips, 357 F.3d at 1237 (alterations in original) (quoting 20 C.F.R. § 404.1520(a)(4)(i) & (b)). "If however, the claimant is not currently `doing gainful activity' then the ALJ moves on to the second step." Phillips, 357 F.3d at 1237. At the first step, the ALJ determined that Washam had "not engaged in substantial gainful activity since February 25, 2013, the application date." (R. 17). The ALJ noted that Washam "worked after the application date but this work activity did not rise to the level of substantial gainful activity." (R. 17).
Phillips, 357 F.3d at 1237 (alterations in original). At Step Two, the ALJ determined that Washam had the following severe impairment: "borderline intellectual functioning." (R. 17).
Phillips, 257 F.3d at 1238 (alterations in original). At Step Three, the ALJ found that Washam "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments" in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926. (R. 17).
Phillips, 357 F.3d at 1238-39 (alterations in original) (footnote omitted). At the fourth step, the ALJ assessed that Washam had the RFC:
(R. 18). The ALJ determined Washam is "capable of performing all of his past relevant work." (R. 20). Accordingly, the ALJ found that Washam "has not been under a disability, as defined in the Social Security Act, from February 23, 2013, through the date of [the ALJ's] decision." (R. 22).
Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (footnote omitted).
Washam argues the ALJ reversibly erred when he did not consider whether Washam met Listing 12.05(D).
20 C.F.R. 404, Subpart P, Appendix I, § 12.05 (2015), amended by 81 F.R. 66138-01 (2016). Washam argues he meets Listing 12.05 because he was "given a Full IQ score of 63 by both Dr. Carney and Dr. Starkey, and [his] mother spoke of [his] difficulties in his completion of daily activities," and his mother stated he "has been a slow learner his entire life with her always having to keep him on task and focused on the information being presented" as well as he "does not follow through on instructions, fails to finish schoolwork, has difficulty organizing tasks, and is often forgetful about daily activities." (Doc. 9, at 4).
In order to make a finding of mental retardation, an ALJ is required to take into account the results of intelligence tests and medical reports, and, then, compare those results with daily activities and behavior to determine consistency. See Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986) ("The listing requires the Secretary to take into account the intelligence test and the medical report. Moreover, the test results must be examined to assure consistency with daily activities and behavior. Thus, in the instant case, it was proper for the ALJ to examine the other evidence in the record in determining whether Popp was in fact mentally retarded."); see also Strunk v. Heckler, 732 F.2d 1357, 1360 (7th Cir. 1984) ("The plaintiff has failed to supply this court, nor have we found any case law requiring the Secretary to make a finding of mental retardation based solely upon the results of a standardized intelligence test in its determination of mental retardation.").
The ALJ "may reject the opinion of any physician when the evidence supports a contrary conclusion." Bloodsworth, 703 F.2d at 1240. Accord, e.g., Anderson v. Comm'r of Soc. Sec., 427 F. App'x 761, 763 (11th Cir. 2011) (per curiam) (unpublished). However,
Washam was administered two IQ tests. (R. 251-63 [SSA Ex. 4F]; R. 277-81 [SSA Ex. 6F]). On June 17, 2013, Pamela Starkey, Psy. D., tested Washam for mental retardation. (R. 277-81 [SSA Ex. 6F]). Dr. Starkey determined Washam's full scale IQ to be 63, and she stated the results of the test "may underestimate [Washam's] true ability due to attention/concentration problems (a prior ADHD diagnosis was reported)"
On May 18, 2013, Jack C. Carney, Ph. D., performed an adult mental examination of Washam. (R. 252-56 [SSA Ex. 3F]). Dr. Carney concluded that Washam functioned in the "Mental Retardation range of intelligence" based on an interview and a mental status examination. (R. 255 [SSA Ex. 3F]). Dr. Carney was provided with records by Disability Determination Service ("DDS") that suggested Washam's full scale IQ was "71[,] which is in the Borderline Range of functioning." (R. 255 [SSA Ex. 3F]). Based on Washam's low achievement scores, Dr. Carney opined Washam functioned in the "Mental Retardation range on a daily basis." (R. 255 [SSA Ex. 3F]). Dr. Carney did not perform a full scale IQ test and concluded Washam performed at a lower level than opined by Drs. Starkey and Davis, who performed full scale IQ tests and concluded Washam performed at a higher level than opined by Dr. Carney. (Compare R. 255 [SSA Ex. 3F] with R. 279 [SSA Ex. 6F] & R. 261 [SSA Ex. 4F]). The ALJ assigned "significant weight" to Dr. Carney's report but assigned no weight to Dr. Carney's statement that Washam's prognosis was not favorable. (R. 19-20).
Without determining whether there was substantial evidence to show Washam had a full scale IQ of 60 through 70, Washam must have had at least two of the following in order to meet listing 12.05D: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. 20 C.F.R. 404, Subpart P, Appendix I, § 12.05D. This additional criteria is mirrored in the criteria required to meet listing 12.04B, compare 20 C.F.R. 404, Subpart P, Appendix I, § 12.04B with 20 C.F.R. 404, Subpart P, Appendix I, § 12.05D, under which the ALJ evaluated Washam, (R. 17). The ALJ determined Washam had "mild restrictions" in his activities of daily living; "mild difficulties" in social functioning; "moderate difficulties" with concentration, persistence, or pace; and had not experienced episodes of decompensation of extended duration. (R. 18). Therefore, the ALJ concluded Washam did not meet the criteria of listing 12.04B.
Washam argues that his mother, Karen Washam, stated she is "concerned for [Washam]'s ability to learn, stay focused, and function independent;" "[Washam] has been a slow learned his entire life with her always having to keep him on task and focused on the information being presented;" and "[Washam] does not follow through on instructions, fails to finish schoolwork, has difficulty organizing tasks, and is often forgetful about daily activities." (Doc. 9, at 4). As to activities of daily living the ALJ noted Washam could care for his pets including walking them, do yard work including mowing the yard, care for his personal needs, prepare simple meals, launder, vacuum, wash dishes, dust, mop, and wash cars. (R. 18; R. 36; & R. 189-91 [SSA Ex. 5E]). As to social functioning, the ALJ noted Washam could shop in stores for food, clothing, and personal items; play basketball; talk to friends on Facebook; play video games; and regularly attended social groups. (R. 18; R. 36; & R. 192-93 [SSA Ex. 5E]). As to concentration, persistence, or pace, the ALJ noted Washam stated he does not need special reminders to take care of his personal needs and grooming, and he was able to pay bills, count change, and complete a money order. (R. 18 & R. 190 & 192 [SSA Ex. 5E]). Finally, the ALJ noted there was no evidence of repeated episodes of decompensation of extended duration. (R. 18; see R. 1-292).
After a review of the whole record, it is determined that the ALJ's finding that Washam did not meet the criteria of listing 12.04B, which were required to meet listing 12.05D, is supported by substantial evidence, and Washam has failed to show that he met the criteria of listing 12.05D. Accordingly, reversal of the Secretary's decision based Washam's assertion of error in Claim 1 is unwarranted.
Jones v. Comm'r of Soc. Sec., 492 F. App'x 70, 72 (11th Cir. 2012).
The ALJ determined Washam had the RFC to "perform a full range of work at all exertional levels but with the following nonexertional limitations: he has the ability to understand and remember short and simple instructions. He can attend for short periods. Changes in the work setting should be gradual." (R. 18). At the oral hearing, the ALJ posed to the VE the following hypothetical:
(R. 42-43). At Step Two, the ALJ found Washam had the severe impairment of borderline intellectual functioning, (R. 17), which impairment was not comprehensively described by the ALJ in his hypothetical question to the VE, (see R. 42-43), and upon whose testimony he determined, at Step Four, Washam was capable of performing all of his past relevant work, (R. 20).
Accordingly, Washam's assertions of error in Claim 2 are sufficient to have this action reversed and remanded for further consideration.
In accordance with the foregoing analysis, it is
(R. 22; see R. 43-45). However, the VE testified, in response to Washam's attorney's hypotheticals, Washam would not be able to perform past relevant work or any other work. (R. 45).
