CHARLES S. COODY, Magistrate Judge.
The plaintiff applied for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., and disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that he was unable to work because of a disability. His application was denied at the initial administrative level. The plaintiff then requested and received a hearing before an Administrative Law Judge ("ALJ"). Following the hearing, the ALJ also denied the claim. The Appeals Council rejected a subsequent request for review. The ALJ's decision consequently became the final decision of the Commissioner of Social Security (Commissioner).
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); Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007). "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); Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004). A reviewing court may not look only to those parts of the record which supports 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, 1180 (11th Cir. 1986). The court "may not decide the facts anew, reweigh the evidence, or substitute . . . [its] judgment for that of the [Commissioner]." Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (alteration in original) (quotation marks omitted).
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
Owens' prior work experience includes work as a "driver helper." (R. 23). Following the administrative hearing, the ALJ concluded that Owens has a severe impairment of "mild mental retardation." (R. 15). The ALJ concluded that Owens was able to perform his past relevant work as a driver's helper, and thus, he was not disabled. (R. 23). In addition, the ALJ concluded that Owens was not disabled because he has the residual functional capacity to perform other work that is available in the national economy. (R. 24)
(Doc. # 12, Pl's Br. at 6 & 9).
This court's ultimate inquiry is whether the Commissioner's disability decision is supported by the proper legal standards and by substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987). While a claimant has the burden of proving that he is disabled, an ALJ has a basic duty to develop a full and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); Kelley v. Heckler, 761 F.2d 1538 (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).
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000).
The ALJ must also state, with sufficient specificity, the reasons for his decision referencing the plaintiff's impairments.
42 U.S.C. § 405(b)(1) (emphases added).
The ALJ is not free to simply ignore medical evidence, nor may she pick and choose between the records selecting those portions which support her ultimate conclusion without articulating specific, well supported reasons for crediting some evidence while discrediting other evidence. Marbury v. Sullivan, 957 F.2d 837, 839-41 (11th Cir. 1992). When there is a conflict, inconsistency or ambiguity in the record, the ALJ has an obligation to resolve the conflict, giving specific reasons supported by the evidence as to why she accepted or rejected one opinion or record over another. "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 v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981).
Listing 12.05, Intellectual disability, provides, in pertinent part, that a claimant is disabled if he meets the following criteria:
See 20 C.F.R. Pt. 440, Subpt. P. App. 1, Listing 12.05C.
"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., ___ F. App'x. ___, 2015 WL 150733, *2 (11th Cir. 2015) (No. 13-15347).
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 v. Heckler, 755 F.2d 1513, 1517 (11th Cir. 1985). In this Circuit, "a claimant need not present evidence that [he] manifested deficits in adaptive deficits manifested prior to the age of twenty-two, when [he] presented evidence of low IQ test results after the age of twenty-two." Monroe, 504 F. App'x. at 810 quoting Hodges v. Barnhart, 276 F.3d 1265, 1266 (11th Cir. 2001). See also Burt v. Barnhart, 151 F. App'x. 817, 819 (11th Cir. 2005).
On February 16, 2011, Owens underwent a psychological consultative examination. He was administered the Wechsler Adult Intelligence Scale for Adults — IV by Dr. Robert Kline, a licensed clinical psychologist. (R. 334-36). Owens obtained a verbal comprehension IQ score of 66, a perceptual reasoning scale I.Q. score of 63, a working memory scale IQ score of 60, a processing speed scale I.Q. score of 53, and a general ability scale I.Q. score of 60, and a full scale I.Q. score of 55. Dr. Kline indicated that the test results were valid and accurate. (R. 334). Throughout his evaluation, Dr. Kline noted that Owens "struggled with basic concentration tasks," and he "struggled with many of the test instructions and directions." (Id.). Dr. Kline opined that Owens' general cognitive abilities, reasoning abilities, and nonverbal reasoning abilities were "in the extremely low range." (R. 334-35).
(R. 335). Finally, Dr. Kline offered the following opinion.
(R. 336).
On August 6, 2012, Owens underwent another psychological evaluation at the request of the Social Security Administration. (R. 357-363). He was again administered the Wechsler Intelligence Scale for Adults — IV. (R. 358). He obtained a verbal comprehension scale I.Q. score of 68, a performance scale I.Q. score of 69, a working memory scale I.Q. score of 69, a processing speed scale I.Q. score of 74, and a full scale I.Q. score of 64. (R. 358-59). Dr. Randall Jordan, a licensed clinical psychologist, opined that Owens' scores were "consistent with premorbid estimates and past historical abilities," and estimated his intelligence to be in the mild mental retardation range. (R. 358-59). Dr. Jordan noted that Owens' subscale scores were significantly lower than his peers, and that his daily living skills were "compromised by intellectual function." (R. 359). Finally, Dr. Jordan offered the following diagnostic impression.
To address specific areas of emphasis please read below:
(R. 359).
Because the Listing requires first "a valid verbal, performance, or full scale IQ of 60 through 70," both the 2011 and 2012 test results fall within the parameters of section 12.05C. Thus, the plaintiff has the requisite IQ score to meet the first prong of the listing.
The ALJ, however, concluded that Owens does not meet or equal the criteria of Listing 12.05C because he has not demonstrated that he has the requisite deficits in adaptive functioning necessary to satisfy the introductory paragraph of § 12.05. (R. 18).
(R. 18).
In an effort to clarify the Listing, the Introduction to Listing 12.00 MENTAL DISORDERS, 20 C.F.R. Pt. 404, Subpt. P. App. 1, 12.00, explains that the Commissioner "will find that you have a listed impairment if the diagnostic description in the introductory paragraph and the criteria . . . of the listed impairment are satisfied." Id. (emphasis added). Unfortunately, the Administration did not define either the diagnostic elements to be satisfied within the introductory paragraph or the standard by which to measure those elements. However, the Listing's plain language compels a conclusion that to meet or equal Listing § 12.05, a claimant is required to demonstrate some measure of deficits in adaptive functioning.
In a recent unpublished opinion, the Eleventh Circuit refers to the Social Security Administration's own manual in an effort to more specifically determine "adaptive functioning."
Hickel v. Comm'r of Soc. Sec., 539 F. App'x. 980, 983 fn.4 (11th Cir. 2013) (No. 13-11172).
In determining that Owens does not the requisite deficits in adaptive functioning, the ALJ culled the record for selective references, ignoring comments that did not support her conclusions. For example, the ALJ found that Owens "lived independently, cares for his personal needs independently, cooks, shops and goes to church." (R. 18). She ignores, however, his testimony that he does not drive, he has never taken public transportation, and he allows the cashier at the grocery store to make change for him. (R. 37-38). Owens further testified that he could make macaroni and cheese in the microwave, but he cannot cook on the stove because he "tend[s] to leave everything on high, and then [he] burn[s] the stuff up." (R. 39). Owens has never operated a washer or a dryer. (Id.) Owens has lived with his mother or his fiancee; he has never lived independently. The ALJ is not free to simply ignore medical evidence, nor may she pick and choose between the records selecting those portions which support her ultimate conclusion. Marbury, 957 F.2d at 840-84.
More importantly, the ALJ ignores the opinions of Drs. Kline and Jordan that Owens' intellectual abilities are in the extremely low range and he is significantly lower than his same age peers. (R. 332-36, 357-60). Both psychologists opined that Owens could not manage benefits, and Dr. Jordan opined that Owens could not live independently. (R. 336, 359).
The ALJ also relied on Owens' prior work as a delivery helper to conclude that he did not have deficits in adaptive functioning. The mere fact that Owens held a job is, as a matter of law, insufficient to support a finding that he did not have deficits in adaptive functioning. In Ambers v. Heckler, the court held that since Ambers met the Listing for mental retardation, "she is entitled to benefits regardless of the fact that she may be able to hold gainful employment as she did in the past." 736 F.2d 1467, 1468 (11th Cir. 1984). See also Powell v. Heckler, 773 F.2d 1572, (11th Cir. 1985) (fact that claimant had worked intermittently during the period at issue is not sufficient justification to deny benefits.). Owens' prior work experience is decidedly limited. The ALJ ignored Owens' testimony that he got the job as a delivery helper, and kept it as long as he did, because the owner of the company was a friend. As soon as a new owner bought the business, Owens was fired. In concluding that Owens' previous work history demonstrates that he does not have any deficits in adaptive functioning, the ALJ does not explain how, if at all, Owens' prior work experience as a delivery helper is inconsistent with mild mental retardation. See generally Black v. Astrue, 678 F.Supp.2d 1250 (N.D. Fla. 2010) (valid I.Q. scores between 60 and 70, special education classes, prior employment as a mushroom picker and reliance on family for help with complicated activities sufficient to demonstrate deficits in adaptive functioning manifested before age 22). Taking the ALJ's reasoning to its logical conclusion, no mentally retarded person is able to do even the most basic, unskilled work including manual labor. If that reasoning is correct, then any claimant who has ever been employed would be unable to demonstrate that he or she met the Listing for mental retardation. This is simply incorrect as a matter of law. See Ambers, supra.
The ALJ then compounded her error when she found that Owens had "higher functioning" than suggested by the test results. (R. 18). That finding was erroneous as a matter of law. Both psychologists who examined Owens and administrated the IQ tests opined that Owens' IQ scores accurately reflected his level of functioning. Thus, the ALJ substituted her judgment for the judgment of the psychologists which she may not do. See Allen v. Sullivan, 880 F.2d 1200, at 1202 (11th Cir. 1989). Consequently, the court concludes that the ALJ did not properly consider whether Owens had the requisite deficits in adaptive functioning sufficient to meet the diagnostic criteria of the introductory paragraph.
The ALJ also committed reversible error at step 2 of the sequential analysis because the ALJ did not have sufficient evidence before her to determine whether Owens' sleep apnea or restless leg syndrome constituted severe impairments. The severity step is a threshold inquiry which allows only "claims based on the most trivial impairment to be rejected." McDaniel, 800 F.2d at 1031. A physical impairment is defined as "an impairment that results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(3)(c). A severe impairment is one that is more than "a slight abnormality or combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work." Bowen v. Yuckert, 482 U.S. 137, 154 fn. 12 (1987) citing with approval Social Security Ruling 85-28 at 37a. The plaintiff has the "burden of showing her impairment is "severe" within the meaning of the Act." McDaniel, 800 F.2d at 1030.
In finding that the plaintiff's sleep apnea and restless leg syndrome were not severe impairments, the ALJ made the following findings.
(R.17-18).
While the ALJ is correct that, pursuant to SSR 96-4p, an impairment will not be considered disabling without some substantiating objective medical evidence, she failed in her duty to fully develop the record. On February 18, 2011, Owens underwent a physical consultative examination by Dr. Sam Banner. (R. 326-30). Dr. Banner suspected that Owens suffers from sleep apnea and restless leg syndrome. (R. 326). He suggested that Owens "needs
"[T]he severity of a medically ascertained disability must be measured in terms of its effect upon ability to work, and not simply in terms of deviation from purely medical standards of bodily perfection or normality." McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986); Gray v. Comm'r of Soc. Sec., 426 Fed. Appx. 751, 753 (11th Cir. 2011); Manzo v. Comm'r of Soc. Sec., 408 Fed. Appx. 265, 269 (11th Cir. 2011). Because sleep apnea and restless leg syndrome would affect Owens' ability to work,
Accordingly, this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion. 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 sixty (60) days after he receives notice of any amount of past due benefits awarded to seek attorney's fees under 42 U.S.C. § 406(b). See also Blitch v. Astrue, 261 F. App'x. 241, 242 fn.1 (11th Cir. 2008).
A separate final judgment will be entered.
