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Furman v. Colvin

United States District Court, D. South Carolina

January 23, 2017

Bobby Furman, Plaintiff,
Carolyn W. Colvin, Acting, Commissioner of Social Security, Defendant.


          Richard Mark Gergel, United States District Judge

         Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain relief from the final decision of the Commissioner of the Social Security Administration denying him Disability Insurance Benefits ("DIB") under the Social Security Act. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 DSC, this matter was referred to a United States Magistrate Judge for pretrial handling. The Magistrate Judge issued a Report and Recommendation ("R & R") on January 9, 2017, recommending that the Commissioner's decision be reversed and remanded to the agency because of the Administrative Law Judge's failure to consider the applicability of Listing 12.05(c). (Dkt. No. 23). The Commissioner has filed a reply indicating that she will not file objections to the R & R. (Dkt. No. 25). As explained more fully below, the Court reverses the decision of the Commissioner and awards benefits under Listing 12.05(c).

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the R & R to which specific objection has been made, and may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).

         The role of the federal judiciary in the administrative scheme of the Social Security Act is a limited one. Section 405(g) of the Act provides that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). "Substantial evidence has been defined innumerable times as more than a scintilla, but less than preponderance." Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes de novo review of factual circumstances that substitutes the Court's findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971).

         Although the federal court's review role is limited, "it does not follow, however, that the findings of the administrative agency are mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative action." Flack v, Cohen, 413 F.2d 278, 279 (4th Cir. 1969). "[T]he courts must not abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a sound foundation for the [Commissioner's] findings." Vitek, 438 F.2d at 1157-58.

         Under the five step sequential process under the Social Security Act, a claimant may establish his right to disability benefits at Step Three if he can demonstrate he meets the requirements for one of the listed impairments. 20 C.F.R, §404.1520(a)(4)(iii). Listing 12.05(c), which relates to a disability claim based upon mental retardation, provides that a claimant may establish his disability by demonstrating the onset of the impairment before age 22 and the presence of 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." 20 CFR pt 404, subpt. P, app. 1, 12.05(c). The Fourth Circuit has recognized mental retardation as a "life long condition" and "in the absence of any evidence of change in a claimant's intelligence functioning, it must be assumed that the claimant's IQ has remained relatively constant." Luckey v. U.S. Dept. Health & Human Servs., 890 F.2d 666, 668 (4th Cir. 1989). Any finding by the Commissioner that a claimant "suffers from a severe combination of impairments ... establishes] the second prong of 12.05(c)." Id. at 669, Furthermore, the Commissioner "may not rely upon previous work history to prove non-disability where the section 12.05(C) criteria are met." Id.

         Factual Background

         Plaintiffs application for disability benefits has languished in the administrative processes of the Social Security Administration for a decade. Plaintiff first applied for DIB in 2006, nearly eleven years ago. The initial administrative processing of this claim took more than three years, with an ALJ decision ultimately finding that the Plaintiff was not disabled. The decision was reversed and remanded by the Appeals Council for further review. A second ALJ decision was issued in 2011, again finding that the Plaintiff was not disabled. The Appeals Council again reversed the ALJ decision and directed that on remand the ALJ would, among other things, (1) "attempt to obtain another mental status consultative examination" that would include IQ testing; (2) evaluate further Plaintiffs mental impairment; and (3) obtain medical source statements concerning "what the claimant can do despite his impairments." Tr. 219. The Appeals Council further took the highly unusual step of directing that the case on remand be assigned to another ALJ. Tr. 220.

         The record on remand included from earlier hearings the results of multiple standardized tests administered to Plaintiff when he was in the public schools. This included a full scale IQ of 63 on the Wechsler Intelligence Scale administered in 1977, when the Plaintiff was seven years of age, and a full scale IQ of 64 on the Wechsler Intelligence Scale administered in 1986, when Plaintiff was sixteen years old. Tr. 780, 784, 876. Psychological evaluations of Plaintiff by school psychologists confirmed the validity and reliability of the IQ test results. One psychologist, in a 1986 report, concluded that Plaintiff fell into the Educable Mentally Handicapped range based on "mental ability" and "performance skills." Tr. 786. Another psychologist reached the same conclusion in a 1983 evaluation, finding that the testing appeared commensurate with Plaintiffs intellectual abilities. Tr. 788. Based on these findings, Plaintiff was maintained in special education programs for the mentally handicapped through most of his public school attendance until he dropped out in the ninth grade.[1]

         The Social Security Administration, as part of the processing of Plaintiff s disability application, sent the claimant to a psychologist, Trina D. Jackson, Psy.D., for testing, including IQ testing, in 2010. Dr. Jackson reported that she was unable to obtain a reliable result from the standardized tests because of Plaintiff s "questionable effort at testing." She stated that "malingering cannot be ruled out at this time." Tr. 884. She further observed, however, that Plaintiff did appear to have "legitimate difficulties" with the testing. Tr. 883. In fact, she concluded that "it is entirely likely that he suffers from some cognitive impairment given his history of special education and long-standing seizure disorder, the extent is unclear at this time." Id.

         Despite the fact that the Appeals Council directed the ALJ on remand to obtain another mental status examination to evaluate the claimant's IQ, the ALJ, apparently interpreting the directive as a suggestion, declined to order another evaluation. Instead, the ALJ concluded another evaluation was "unwarranted" because of the Plaintiffs work history and other factors. Tr. 20, 219. The ALJ did note, and did not question, the validity of Plaintiff s school testing showing a full scale IQ of 64. Tr. 20.

         The record also contained reports from two of Plaintiff s treating physicians, Dr. Thomas Stanley, a neurologist who treated Plaintiff for seizure disorder, syncope and dizziness, and Dr. Hector Esquivel, a long-serving family physician. Dr. Stanley provided opinions that Plaintiffs "dizziness and syncope preclude him from sedentary work" and that he was incapable of managing his own care without the assistance of his wife. Tr. 723, 775. Dr. Esquivel reached a similar conclusion, stating that due to his seizure disorder "he cannot work on a full time basis." Tr. 800. Although the Appeals Council directed the ALJ to obtain "medical source statements about what the claimant can do despite his impairments, " the record contains no evidence that any follow up with Plaintiffs treating physicians was undertaken by the ALJ. Tr. 219.

         After conducting a third administrative hearing in this disability claim on May 22, 2014, the ALJ issued an order dated June 27, 2014, finding that Plaintiff suffered from a number of severe impairments, including seizure disorder, syncope, sinus node dysfunction (status post-pacemaker), and borderline intellectual functioning. Tr. 18. At Step Three of the sequential process, the ALJ addressed a number of potential listings and concluded that Plaintiff failed to satisfy the requirements of any listing. The ALJ did not, however, address Listing 12.05, relating to disability resulting from mental retardation. The ALJ concluded that Plaintiff retained the residual functional capacity to perform light work and, on the basis, ultimately determined that he was not disabled under the Social Security Act. Tr. 21-25.

         The Appeals Council conducted no further review on this third ALJ decision and this became the final decision of the Commissioner. The case was thereafter timely appealed to this Court on December 15, 2015. The Magistrate Judge issued a R & R on January 9, 2017, recommending that this Court reverse and remand the ALJ's decision because of the ALJ's failure to address Plaintiffs eligibility for disability under 12.05(c). ...

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