CHARLES S. COODY, Magistrate Judge.
Plaintiff Randy Hill ("Hill") challenges the Commissioner's denial of disability and supplemental security income benefits. A brief recitation of the procedural history of the case is necessary to understand the court's resolution of this matter.
Hill applied for disability insurance benefits
On April 15, 2010, the court remanded the case to allow the ALJ to more fully develop the record regarding the plaintiff's intellectual and mental impairments. Hill v. Astrue, 1:09cv01-CSC at 5 (M.D. Ala. 2010). "There is sufficient evidence in the record from which the ALJ should have concluded that it was necessary to secure additional evidence regarding the plaintiff's intellectual functioning before rendering a decision regarding his disability." Id. at 8.
On May 16, 2011, another administrative hearing was held before a different ALJ who in a new opinion dated July 7, 2011, denied Hill benefits. (R. 340). On July 13, 2012, the Appeals Council determined that the ALJ's residual functional capacity assessment was erroneous.
(R. 340).
The Appeals Council remanded the matter to the ALJ for further proceedings to (1) obtain addition evidence regarding Hill's impairments; (2) address all medical evidence and provide reasons supporting the weight assigned to those opinions; (3) further consider Hill's maximum residual functional capacity by specifically evaluating the treating and consultative physicians' opinions; and (4) if warranted, secure further evidence from a vocational expert. (R. 341).
After another hearing on October 5, 2012, the ALJ concluded that Hill has severe impairments of "degenerative disc disease of the cervical spine and lumbar spine, joint effusion of the right knee, hypertension, adjustment disorder with depression, alcohol dependence, and borderline intellectual functioning (20 CFR 404.1520(c) and 416.920(c))." (R. 214). The ALJ further concluded that Hill could not perform his past relevant work as butcher and brick layer helper. (R. 228). Nonetheless, the ALJ concluded that Hill was not disabled because "there are jobs that exist in significant numbers in the national economy that the claimant can perform." (Id.).
The plaintiff appealed the ALJ's decision to the Appeals Council, requesting the Appeals Council again review the ALJ's decision. The Appeals Council rejected the request for reconsideration, and the ALJ's February 2013 decision became the final decision of the Commissioner.
The case is now before the court for review pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3). Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties have consented to the United States Magistrate Judge conducting all proceedings in this case and ordering the entry of final judgment. Based on the court's review of the record in this case and the briefs of the parties, the court concludes that once again the decision of the Commissioner should again be reversed and this case remanded to the Commissioner for further proceedings.
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person is unable to
To make this determination,
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The standard of review of the Commissioner's decision is a limited one. This court must find the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of the record which support the decision of the ALJ but instead must view the record in its entirety and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Hill was 40 years old at the alleged date of onset of disability and 50 years old at the time of the 2012 hearing before the ALJ. He has a tenth grade education but he was in special education classes. (R. 19, 32, 129). His prior work experience includes work as a brick mason's helper and a butcher.
The ALJ found that Hill was unable to perform his past relevant work but concluded that he
(R. 217).
Finally, the ALJ concluded that because there exists jobs in significant number in the national economy that Hill could perform such as silverware wrapper, garment folder, and rag sorter,
As stated by Hill, he presents two issues for the Court's review:
(Doc. # 12, Pl's Br. at 3).
A disability claimant bears the initial burden of demonstrating an inability to return to his past work. Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990). In determining whether the claimant has satisfied this burden, the Commissioner is guided by four factors: (1) objective medical facts or clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability, e.g., the testimony of the claimant and his family or friends; and (4) the claimant's age, education, and work history. Tieniber v. Heckler, 720 F.2d 1251 (11th Cir. 1983). The ALJ must conscientiously probe into, inquire of and explore all relevant facts to elicit both favorable and unfavorable facts for review. Cowart v. Schweiker, 662 F.2d 731, 735-36 (11th Cir. 1981). The ALJ must also state, with sufficient specificity, the reasons for her decision referencing the plaintiff's impairments.
42 U.S.C. § 405(b)(1) (emphases added). Within this analytical framework, the court will address the plaintiff's claims.
The law in this circuit is well-settled that the ALJ must accord "substantial weight" or "considerable weight" to the opinion, diagnosis, and medical evidence of the claimant's treating physician unless good cause exists for not doing so. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986); Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir. 1985). The Commissioner, as reflected in his regulations, also demonstrates a similar preference for the opinion of treating physicians.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 CFR § 404.1527 (d)(2)). It is not only legally relevant but unquestionably logical that the opinions, diagnosis, and medical evidence of a treating physician whose familiarity with the patient's injuries, course of treatment, and responses over a considerable length of time, should be given considerable weight.
The ALJ may reject the opinion of any physician when the evidence supports a contrary conclusion. Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). However, the ALJ must articulate the weight given to a treating physician's opinion and must articulate any reasons for discounting the opinion. Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987).
In this case, the ALJ gave the opinion of Hill's treating physician, Dr. Lance Dyess, little weight because, according to the ALJ, his opinion "is inconsistent with the record as a whole." (R. 227).
A review of the medical records demonstrates that the ALJ erred as a matter of law in her consideration of Dr. Dyess' opinion. In 2003, Hill was seen by Dr. Dyess for headaches and dizziness. (R.755). X-rays of Hill's spine demonstrated "spurs forming along the margins of the thoracic vertebral bodies," "narrowing of the C5-C6 inter-vertebral space with spurs forming along the margins of the bodies of C5 and C6," and "thoracic spondylosis." (R.756, 754, 163). In March 2007, Hill presented to the emergency room complaining of hallucinations.
(R. 737). He was seen by Dr. Dyess, and referred to mental health. (Id.). In November 2007, Hill presented to the emergency room because he was passing blood. (R. 731). X-rays suggested "degenerative disc disease of L5-S1." (R. 753, 734). He was referred to Dr. Dyess for a follow up appointment. (R. 731).
In February 2008, Hill presented to the emergency room complaining of low back pain and a head injury. (R. 727). He was seen but referred to Dr. Dyess for a follow up appointment. (Id.) A CT scan of the cervical spine revealed "narrowing of the C2-C3, C4-C5 and C5-C6 inter-vertebral spaces with spur formation." (R. 730). There was also "sclerosis and narrowing of the middle and lower cervical apophyseal joints." (Id.) Finally, "[t]here are spurs forming along the margins of the lumbar vertebral bodies. There is narrowing of the L5-S1 inter-vertebral space. There is sclerosis and narrowing of the apophyseal joints at the L4-L5 level." (Id.)
On June 28, 2008, Dr. Dyess saw Hill at the emergency room because he was stabbed trying to break up a fight between two women. (R. 718).
On November 16, 2008, Hill was admitted to the hospital through the emergency room to be treated by Dr. Dyess. (R. 720, 723).
On December 26, 2008, Dr. Dyess treated Hill at the hospital for atypical chest pain. (R. 708-10, 714, 700, 686-87).
On April 25, 2009, Dr. Dyess treated Hill at the emergency room for a head injury. (R. 632). Dr. Dyess ordered a CT scan of Hill's head and spine. (Id.) The CT scan of Hill's spine again revealed "narrowing of the C4-C5 and C5-C6 inter-vertebral spaces," spurs, and "[e]ncroachment of the neuro-formina bilaterally at the C5-C6 level." (R. 634).
On May 16, 2009, Dr. Dyess saw Hill in the emergency room for chest pain. (R. 627). A chest x-ray revealed "spurs forming along the margins of the lower thoracic vertebral bodies" and "thoracic spondylosis." (R. 631, 746).
On October 22, 2009, Dr. Dyess saw Hill at the emergency room for right knee pain and swelling. (R. 621). A scan revealed a "[l]arge joint effusion." (R. 626, 743, 817).
On November 11, 2009, Hill presented to the emergency room complaining of right knee pain. (R. 619).
On January 4, 2010, Dr. Dyess saw Hill at the emergency room when he presented complaining of chest pain. (R. 648). He was subsequently admitted by Dr. Dyess. (R. 655-57). After conservative treatment with medication, Hill was discharged and referred to a cardiologist. (R. 657).
On April 24, 2010, Dr. Dyess treated Hill at the emergency room for a laceration to his finger. (R. 617).
On July 10, 2010, Dr. Dyess ordered a CT scan of Hill's lumbar spine to treat his low back pain. (R. 740). The scan revealed "narrowing of the L5-S1 intervertebral space with
On August 26, 2010, Hill presented to the emergency room complaining of chronic back pain. (R. 802). Dr. Dyess treated him on that date. (R. 804)
Finally, on January 10, 2012, Hill presented to the emergency room complaining of headaches and dizziness. (R. 796). Although Hill was not seen by Dr. Dyess, he was instructed to return to the emergency room if needed and was told to follow up with Dr. Dyess. (R. 797).
The law is well-settled; the opinion of a claimant's treating physician must be accorded substantial weight unless good cause exists for not doing so. Jones, 810 F.2d at 1005. The ALJ discounted Dr. Dyess' opinion because she did not consider Dr. Dyess to be a treating physician, and because Dr. Dyess and Hill did not have an ongoing treatment relationship. As demonstrated by the medical records, the ALJ is simply wrong. It is apparent from a review of the records that Dr. Dyess saw Hill at least 12 times; significantly more than the one time in 2003 relied on by the ALJ to discredit Dr. Dyess. Dr. Dyess last saw Hill in August 2010 less than seven months prior to Dr. Dyess completing a physical capacities evaluation and clinical assessment of pain. Relying solely on Exhibit 9F, the ALJ ignored the medical records contained in Exhibit 8F which demonstrate that Dr. Dyess treated Hill on a regular, consistent basis. The reasons given by the ALJ to discount Dr. Dyess' opinion are, therefore, not supported by substantial evidence, and thus, this case must be remanded for further proceedings.
Hill next argues that the decision of the Commissioner should be reversed because the ALJ failed to find that he meets Listing 12.05C, Intellectual disability.
On remand, the Commissioner secured a psychological evaluation of Hill. (R. 765-771). On September 22, 2010, Fred George, Ph.D., administered the Wechsler Adult Intelligence Scale for Adults — IV. Hill obtained a verbal comprehension IQ score of 68, a perceptual reasoning scale I.Q. score of 82, a working memory scale IQ score of 77, and a processing speed scale I.Q. score of 68. His full scale I.Q. score was 70. Dr. George indicated that the test results were valid and accurate. (R. 768).
The ALJ gave Dr. George's opinion great weight and incorporated his opinion of Hill's borderline functioning into her residual functional capacity assessment. (R. 228). At step three of the sequential evaluation process, the ALJ is required to determine whether the claimant's impairments meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1. See McDaniel, 800 F.2d at 1030. "The structure of the listing for intellectual disability (12.05) is different from that of the other mental disorders listings." 20 C.F.R. Pt. 404, Subpt. P. App. 1, 12.00 MENTAL DISORDERS.
Frame v. Comm'r, Soc. Sec. Admin., 596 F. App'x 908, 910-911 (11th Cir. 2015).
Consequently, "a claimant meets the criteria for presumptive disability under section 12.05(C) when the claimant presents a valid IQ score of 60 to 70 inclusive, and evidence of an additional mental or physical impairment that has more than `minimal effect' on the claimant's ability to perform basic work activities." See Monroe v. Comm'r of Soc. Sec., 504 F. App'x 808, 810 (11th Cir. 2013) quoting Lowery v. Sullivan, 979 F.2d 835 (11th Cir. 1992). See also Edwards by Edwards v. Heckler, 755 F.2d 1513, 1517 (11th Cir. 1985).
In this case, it appears that Hill has a valid verbal comprehension I.Q. score of 68 and a valid processing speed scale I.Q. score of 68. It also appears that Hill suffers "narrowing of the L5-S1 intervertebral space with
The Commissioner argues that Hill did not prove that he meets Listing 12.05C because Hill does not have a diagnosis of mental retardation and the ALJ's "discussion of the evidence" shows that Hill does not meet Listing 12.05C. (Doc. # 15 at 12). First, Listing 12.05C does not require a diagnosis of mental retardation; rather, it requires a "valid verbal, performance, or full scale IQ of 60 through 70." Hill's test results fall within the parameters of Listing 12.05C. Thus, the plaintiff plainly has the requisite IQ score to meet the first prong of the listing.
More importantly, however, the ALJ did not consider whether Hill meets the requirements of Listing 12.05C. The Commissioner argues that such consideration can be inferred from the ALJ's discussion of the evidence but the court disagrees. The Commissioner's argument is purely speculative. Neither the Commissioner nor the court can ascertain from the ALJ's decision whether or not the ALJ considered whether Hill meets Listing 12.05C because the ALJ makes no mention of Listing 12.05C. It is the responsibility of the Commissioner to determine whether Hill meets the requirements of Listing 12.05C, and her written decision must include sufficient reasoning to permit the court to determine that she has done so. "In the absence of such a statement, it is impossible for a reviewing court to determine whether the ultimate decision on the merits is rational and supported by substantial evidence." Cowart, 662 F.2d at 735. "Failure to do so requires the case be vacated and remanded for the proper consideration." Hudson v. Heckler, 755 F.2d 781, 785 (11th Cir. 1985).
"Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 110-111 (2000). In light of the inadequate treatment of Dr. Dyess and the ALJ's failure to consider whether Hill meets Listing 12.05C, the court cannot determine whether the ALJ's conclusion that the plaintiff is not disabled is based on substantial evidence. Accordingly, the decision of the Commissioner will be reversed and this case remanded to the Commissioner for further proceedings consistent with this opinion. A separate final judgment will be entered.
It is further
ORDERED that, in accordance with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1278 fn. 2 (11th Cir. 2006), the plaintiff shall have
(R. 23).
The vocational expert determined that his past relevant work was as a butcher at the skilled level. (R. 36). At the March 9, 2011 administrative hearing, the vocational expert determined that his past relevant work was as a meat cutter at the heavy, unskilled level. (R. 272). At the October 25, 2012 administrative hearing, the vocational expert testified that Hill's past relevant work was as a butcher at the skilled level. (R. 250).
