W. LEON BARFIELD, Magistrate Judge.
John Scott Foskey ("Plaintiff') appeals the decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under the Social Security Act. Upon consideration of the briefs submitted by both parties, the record evidence, and the relevant statutory and case law, the Court
Plaintiff applied for DIB on October 3, 2006, alleging a disability onset date of September 21, 2002. Tr. ("R"), pp. 169-73. The Social Security Administration denied Plaintiff's application initially, R. 75, 77-80, and on reconsideration, R. 76, 83-86. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"), and the ALJ held a video hearing on May 12, 2010. R. 35-70. At the hearing, the ALJ heard testimony from Plaintiff, who was represented by counsel, as well as a Vocational Expert ("VE"), Kenneth L. Bennett ("VE Bennett").
Applying the five-step sequential process required by 20 C.F.R. § 404.1520, the ALJ found:
R. 15-29.
When the Appeals Council denied Plaintiff's request for review, the Commissioner's decision became "final" for the purpose of judicial review. 42 U.S.C. § 405(g). Plaintiff then filed this civil action in the United States District Court for the Southern District of Georgia requesting reversal of the adverse decision. Plaintiff argues: (1) the ALJ erred by failing to find that he met Listing 12.05(C); (2) the ALJ failed to address his objections to a consultative examiner's report; and (3) the ALJ improperly used VE testimony because VE Bennett showed bias towards Plaintiff at the video hearing, the ALJ's hypothetical question to VE Bennett did not accurately present his limitations, and the ALJ failed to address VE Horton's testimony. (
Judicial review of social security cases is narrow and limited to the following questions: (1) whether the Commissioner's findings are supported by substantial evidence,
The Commissioner's factual findings should be affirmed if there is substantial evidence to support them.
The deference accorded the Commissioner's findings of fact does not extend to his conclusions of law, which enjoy no presumption of validity.
Plaintiff argues first that the ALJ erred by failing to find that he met Listing 12.05(C), which pertains to mental retardation. Pl.'s Br., pp. 14-20; Pl.'s Reply Br., pp. 1-5. The Commissioner, on the other hand, contends that substantial evidence in the record supports the ALJ's finding that Plaintiff did not meet Listing 12.05(C).
At step three of the sequential evaluation process, the Commissioner must determine whether a claimant meets or equals a disability described in the Listing of Impairments, which describes impairments that are considered severe enough to prevent a person from performing any substantial gainful activity.
At step three of his decision, the ALJ acknowledged that in a November 30, 2009 consultative psychological evaluation, Marvin L. Long, Ed.D., reported that Plaintiff had a full scale IQ of 67, which placed him in the "mental deficient — mild range" of cognitive functioning. R. 21, 525. Nevertheless, the ALJ found that Plaintiff did not satisfy Listing 12.05(C), stating:
R. 24-25 (citing R. 526).
Plaintiff argues that the ALJ failed to properly rebut the presumption that Plaintiff suffers from mental retardation based on his IQ score of 67.
As noted above, Listing 12.05(C) pertains to "Mental retardation," which "refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. The Listing further provides: "The required level of severity for this disorder is met when ... [there is] a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function."
The Court turns first to Plaintiff's argument that the ALJ "regurgitated" Dr. Long's report without providing any analysis as to whether Plaintiff suffers from mental retardation. PI. `s Br., pp. 16, 19. Although Plaintiff argues that the ALJ failed to properly support his step three finding, there is no requirement that an ALJ "mechanically recite the evidence" leading to his step three determination, and the Eleventh Circuit has held that an ALJ may make an implied finding that a claimant's impairments did not meet or medically equal the Listings.
In his decision, the ALJ discussed Dr. Long's findings at length, noting that Dr. Long reported Plaintiff to be "a slow learner" who "works slowly." R. 21-23 (citing R. 525, 531). He also observed that Dr. Long had to repeat instructions to Plaintiff "frequently and at times three or four times." R. 21, 525. Moreover, as noted above, the ALJ acknowledged Dr. Long's report that Plaintiff had a full scale IQ of 67. R. 21, 525. Further, the ALJ noted Dr. Long's finding that Plaintiff attained low scores on psychometric testing and understanding verbal concepts, although Plaintiff could communicate despite his restricted vocabulary. R. 21, 524-26. Plaintiff also reported that he finished high school at age 21, had to repeat "at least one grade, maybe more," and was enrolled in a combination of regular and special education classes. R. 21, 524.
Yet the ALJ also noted Dr. Long's observation that Plaintiff's "overall general ability is in the borderline range when everything is considered." R. 22, 526. Specifically, the ALJ observed that Plaintiff had normal scores on cognitive diagnostic battery ("CDB") testing, which "is an assessment of decision-making [and] adjusting to changing demands," and Plaintiff's CDB scores led Dr. Long to "suggest ruling out true mental retardation."
The ALJ further stated, "Dr. Long reported that [Plaintiff's] prognosis would be seen as guarded primarily because of the multitude of physical problems [Plaintiff] reported. Dr. Long opined that [Plaintiff] would be restricted to basic labor and semi-skilled type jobs," but would not be precluded from working. R. 22 (citing R. 528) (emphasis added). The ALJ also noted that Dr. Long found that Plaintiff was capable of handling funds, had mild limitations in his ability to understand, remember, and carry out simple instructions or make judgments on simple work-related decisions, and that Plaintiff had moderate limitations in his ability to understand, remember, and carry out complex instructions or make judgments on complex work-related decisions. R. 22, 531.
In addition to his reliance on Dr. Long's suggestion of ruling out true mental retardation in favor of general overall capacity in the borderline range, R. 25, 526, the ALJ also noted that Plaintiff was able to care for his eight-year old son and performed a variety of chores around the home, R. 21, 26, 525. The ALJ further noted that Plaintiff reported being independent in his activities of daily living, had a driver's license, and was able to shop and travel without a companion for assistance. R. 19, 20, 24, 53, 513, 517.
Although Plaintiff asserts that the ALJ merely "regurgitated" Dr. Long's report, the record reflects that the ALJ thoroughly considered that report, as well as numerous other pieces of evidence, before finding that Plaintiff's IQ score of 67 was inconsistent with his daily activities and behavior. Thus, even assuming that Plaintiff's IQ score of 67 was valid, the ALJ properly considered the record evidence before rebutting the presumption that Plaintiff suffers from mental retardation based on that score.
Plaintiff argues, however, that even if the ALJ properly considered Dr. Long's report rather than simply regurgitating it, the ALJ erred in relying on this report to rebut the presumption of mental retardation. Pl.'s Br., p. 18. Specifically, Plaintiff takes issue with the ALJ's use of Dr. Long's CDB exam to rebut the presumption that Plaintiff is mentally retarded because "Dr. Long does not explain what the CDB exam is, what the range is[,] and what [Plaintiff's] score was on this exam." Pl.'s Br., p. 18. Moreover, Plaintiff argues that the Regulations make no provision for the CDB exam as a valid intelligence test for evaluating Listing 12.05(C), and thus it was error for the ALJ to rely on it as evidence.
Contrary to Plaintiff's assertions, however, the ALJ noted Dr. Long's statement that the CDB "is an assessment of decision-making [and] adjusting to changing demands" and that Plaintiff scored in the normal range on this exam, which suggested ruling out true mental retardation. R. 22 (citing R. 527-28). Thus, whatever the scale of the CDB may be, it is clear that Plaintiff's score falls within the normal range of that scale. Further, as the Commissioner correctly asserts, Comm'r's Br., pp. 6-7, IQ tests are only one factor to be used when assessing Listing 12.05(C), and the psychological examiner's narrative report should also assess the validity and consistency of the IQ scores with a claimant's degree of functional limitation. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(D)(6)(a). Here, Dr. Long did exactly that by noting that although Plaintiff had obtained IQ scores indicating mental retardation, other testing and evidence led Dr. Long to suggest ruling out mental retardation and conclude that Plaintiff was not precluded from working. R. 528. Notably, Plaintiff cites no authority to support his argument that simply because a diagnostic test is not listed in the Regulations, the ALJ is therefore precluded from relying on a medical source's interpretation of such testing.
In addition, the Court does not agree with Plaintiff's assertion that Dr. Long provided conflicting information that the ALJ should have resolved. Dr. Long administered a variety of mental exams which tested Plaintiff's aptitude in several different areas of cognitive functioning.
As Dr. Long's opinion provided an adequate basis for the ALJ to determine whether Plaintiff's IQ scores were consistent with a finding of mental retardation, there was no need for the ALJ to seek additional information from Dr. Long.
In sum, the Court concludes that the ALJ properly rebutted the presumption that Plaintiff suffers from mental retardation despite the IQ scores reported in Dr. Long's November 2009 psychological examination report.
Plaintiff also argues that he satisfies the additional impairment prong of Listing 12.05(C) because the ALJ determined at step two of the sequential evaluation process that Plaintiff's degenerative disc disease, chronic serious otitis media, recurrent kidney/uteral stones, mixed mood disorder, anxiety disorder, and borderline intellectual functioning were "severe" impairments. Pl.'s Br., pp. 19-20; R. 17. Plaintiff cites to
In sum, the ALJ's finding at step three of the sequential evaluation process that Plaintiff did not meet or equal any of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 — including Listing 12.05(C) — is supported by substantial evidence. Accordingly, Plaintiff is not entitled to relief on this issue.
Plaintiff also argues that he raised several objections to a consultative examination report provided by Vasudev V. Kulkarni, M.D., on which the ALJ relied in his opinion, yet the ALJ did not rule on Plaintiff's objections in his decision. Pl.'s Br. p. 25 (citing R. 501-17). Plaintiff objects that it is unclear whether Dr. Kulkarni prepared the report, that there is no description of what objective or clinical tests were done or what records were reviewed during the exam, and that the report "fails to list any diagnoses or medically determinable impairments."
Contrary to Plaintiff's assertions, and as the Commissioner correctly notes, Comm'r's Br., p. 17, Dr. Kulkarni's name and signature appears numerous times on the examination report. R. 501, 503, 507, 513, 517. Although Plaintiff asserts that "[t]here is an illegible signature," Pl.'s Br., p. 25, he does not indicate which signature he is referring to, nor does it appear to the Court that any of the signatures are inconsistent or suspect in any way. Furthermore, the report indicates that Dr. Kulkarni tested Plaintiff's range of motion, conducted strength testing, assessed Plaintiff's physical work capabilities, and conducted a thorough physical exam of Plaintiff's systems. R. 504-17. Finally, contrary to Plaintiff's assertions, Dr. Kulkarni's report provides several diagnoses, including "chronic pain" in the right upper extremity and low back, history of hearing loss, history of mitral valve prolapse, and history of kidney stones. R. 517. in short, Plaintiff's argument regarding Dr. Kulkarni's examination report is wholly without merit, and he is not entitled to relief on this issue.
Plaintiff also raises several arguments with regard to VE testimony provided in this case. Specifically, Plaintiff argues that VE Bennett exhibited bias towards him at the video hearing. Pl.'s Br., p. 21. Plaintiff also argues that the ALJ did not properly use VE Bennett at the video hearing because the hypothetical question presented by the ALJ did not accurately present Plaintiff's limitation in his reading ability or all of the environmental restrictions assessed in Dr. Kulkarni's consultative examination.
By contrast, the Commissioner argues that Plaintiff's argument regarding bias on the part of VE Bennett is unsupported by the record. Comm'r's Br., p. 11 n.5. Moreover, the Commissioner asserts that substantial evidence supports the ALJ's findings on the skill level of Plaintiff's past relevant work and that Plaintiff could have performed work that existed in substantial numbers in the national economy through his date last insured.
First, the Court addresses Plaintiff's argument that VE Bennett exhibited bias towards him at the hearing. According to Plaintiff, although his attorney did not object to VE Bennett's testimony at the video hearing, Plaintiff's attorney later submitted objections to his testimony, asserting that VE Bennett exhibited bias following a discussion of the skill level of Plaintiff's past relevant work as a manufactured building repairer:
Pl.'s Br., p.21;R. 68-69, 311.
However, as the Commissioner correctly points out, Plaintiff misquotes VE Bennett. Comm'r's Br., p. 11 n.5. The hearing transcript reflects that after the ALJ solicited testimony from Plaintiff regarding the manner in which he performed work as a manufactured home builder, the following exchange occurred:
R. 68-69. Thus, VE Bennett never stated that "assuming [Plaintiff] was telling the truth, he guessed he would have to change his answer," as Plaintiff's attorney represents. Moreover, the plain meaning of the language of the quoted exchange is not consistent with Plaintiff's interpretation. Rather, an objective reading of VE Bennett's response indicates that VE Bennett was simply responding to the ALJ's request that he make an assumption about the skill level of Plaintiff's past relevant work based on Plaintiff's explanation for how he performed that work. Moreover, to the extent that Plaintiff takes issue with the tone of VE Bennett's response, Pl.'s Br., p. 21, he fails to make a showing adequate to give rise to a finding of bias on the part of VE Bennett, particularly because VE Bennett's testimony on this issue was favorable to Plaintiff. Indeed, Plaintiff cites no Regulations or case law to support his argument that VE Bennett demonstrated bias. Accordingly, Plaintiff is not entitled to relief on this issue.
The Court next turns its attention to Plaintiff's argument that the ALJ improperly used VE Bennett at the video hearing because the ALJ's hypothetical question did not accurately present Plaintiff's limitation in his reading ability.
At step four of the sequential evaluation process, the ALJ found that Plaintiff was unable to perform his past relevant work but had the residual functional capacity to perform a range of heavy work, R. 26-28, as set forth in detail, supra, at pages 2-3. Because Plaintiff could no longer perform his past relevant work, the burden shifted to the Commissioner to show the existence of other types of substantial gainful employment that Plaintiff could perform given his age, education, previous work experience, and residual functional capacity. In this regard, the ALJ properly consulted a VE in conjunction with the Medical-Vocational Guidelines. At Plaintiff's video hearing, the ALJ submitted the following hypothetical to VE Bennett:
R. 62-63. The VE testified that such an individual would be capable of performing work as a recreation aide, cashier II, and counter attendant, each of which has a specific vocational preparation ("SVP") of two. R. 64. Next, Plaintiff's attorney modified the ALJ's hypothetical in the following way:
R. 64-65. VE Bennett responded that such a hypothetical individual would be able to perform the jobs of call-out operator, counter clerk, and surveillance system monitor, each of which has an SVP of two. R. 65-66.
After the video hearing, Plaintiff obtained and submitted to the ALJ a sworn statement from VE Horton, who provided testimony in response to questions by Plaintiff's counsel:
R. 317. VE Horton replied that, rather than a consideration of SVP, the more relevant consideration was whether someone with a reading level at a grade equivalence of 1.9 could satisfy the language development requirement of the DOT's General Educational Development ("GED") for a given job.
Plaintiff specifically takes issue with the reading level described in the ALJ's hypothetical question to VE Bennett: first, Plaintiff argues that Dr. Long's psychological evaluation, discussed above, shows that he has a deficiency in his reading ability and that his GED reading level is equivalent to 1.9.
Of course, the underlying assumptions of hypothetical questions must accurately and comprehensively reflect the claimant's characteristics, and a reviewing court must determine whether they are supported by substantial evidence.
Here, Plaintiff points to specific evidence to show that he suffers a limitation in his reading ability. First, Dr. Long's report shows that Plaintiff obtained deficient scores in tests of verbal comprehension and reading ability. R. 525-27. Moreover, although the ALJ correctly observed that Plaintiff passed the reading portion of the Georgia Test of Basic Skills when he was in 12th grade, R. 26, Plaintiff points out that his score was only in the 11th percentile, suggesting that his reading ability was, at the least, below average. Pl.'s Br., pp. 18, 24; R. 299. Indeed, the Court notes that Plaintiff only passed the reading portion of this exam after four failed attempts in the 10th and 11th grades. R. 299. Given this evidence, the Court does not agree with the ALJ's conclusion that since Plaintiff passed a test of basic reading skills when he was in 12th grade, he can therefore read at the 12th grade level.
The Commissioner makes a reasoned attempt at discrediting Plaintiff's alleged reading level of 1.9 in light of the other evidence in the record, namely that Plaintiff's past relevant work required a greater reading ability than a reading level of 1.9 would allow for. Comm'r's Br., pp. 18-19. It may well be, as the Commissioner argues, that in light of the overall record, Plaintiff's limitation in his reading ability is not supported to the extent he alleges and thus it does not belong in the ALJ's hypothetical. However, it is incumbent upon the ALJ to address Plaintiff's limitation in his reading ability, particularly in light of Dr. Long's finding that Plaintiff was deficient in verbal comprehension, reading, and writing, R. 525-27, so that the ALJ's reasons are clear for including or omitting this limitation when presenting hypothetical questions to the VE. Because the ALJ did not adequately support his finding that Plaintiff can read at the 12th grade level, it is not clear that his hypothetical to VE Bennett appropriately incorporated all of Plaintiff's impairments and limitations. Therefore, a remand is warranted so that the ALJ can consider the extent of Plaintiff's alleged reading impairment and, if necessary, make any adjustments to the list of impairments in the hypothetical presented to the VE,
Moreover, the ALJ's decision completely fails to mention VE Horton or her testimony, which, as Plaintiff persuasively argues, calls into question whether Plaintiff is capable of performing the jobs identified by VE Bennett during the video hearing. R. 317-18. As noted above, the ALJ's decision must be grounded in the entire record.
For the reasons set forth above, the Court
SO REPORTED and RECOMMENDED.