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New v. Commissioner of Social Security

United States District Court, W.D. Tennessee, Eastern Division

September 6, 2017

JAMIE EMERSON NEW, JR., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING THE DECISION OF THE COMMISSIONER AND REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G)

          S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff Jamie Emerson New, Jr., filed this action to obtain judicial review of Defendant Commissioner's final decision denying his application for child disability insurance benefits under Title II of the Social Security Act, (“the Act”), 42 U.S.C. 402(d). The application was denied initially and upon reconsideration by the Social Security Administration. Plaintiff then requested a hearing before an administrative law judge (“ALJ”), which was held on November 29, 2012. On February 12, 2013, the ALJ issued a decision, finding that Plaintiff was not entitled to benefits. The Appeals Council denied Plaintiff's request for review, and, thus, the decision of the ALJ became the Commissioner's final decision. For the reasons set forth below, the decision of the Commissioner is REVERSED, and the action is REMANDED for additional testimony pursuant to sentence four of 42 U.S.C. § 405(g).

         Under 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision made by the Commissioner after a hearing to which he was a party. “The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.”[1] The Court's review is limited to determining whether there is substantial evidence to support the Commissioner's decision, [2] and whether the correct legal standards were applied.[3]

         Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[4] It is “more than a mere scintilla of evidence, but less than a preponderance.”[5] The Commissioner, not the Court, is charged with the duty to weigh the evidence, to make credibility determinations and resolve material conflicts in the testimony, and to decide the case accordingly.[6] When substantial evidence supports the Commissioner's determination, it is conclusive, even if substantial evidence also supports the opposite conclusion.[7] “[W]hen there is not substantial evidence to support one of the ALJ's factual findings and his decision therefore must be reversed, the appropriate remedy is not to award benefits. The case can be remanded under sentence four of 42 U.S.C. § 405(g) for further consideration.”[8]

         Pursuant to sentence four, a district court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” The court may immediately award Plaintiff benefits “only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits.”[9] “A judicial award of benefits is proper only where the proof of disability is overwhelming or where the proof of disability is strong and evidence to the contrary is lacking.”[10] These factors are not present in this case, and, therefore, an immediate award of benefits is not appropriate. However, a remand pursuant to sentence four of § 405(g) is appropriate because all essential issues have not been resolved.

         Plaintiff was born on February 15, 1983. He received special education services for the mentally retarded through the Jackson-Madison County School System. He has no gainful employment and was in prison for seven years. Plaintiff alleges disability based on mental retardation (now called intellectual disability). Plaintiff lives with his uncle due to the death of his father. Plaintiff alleges that he is entitled to child disability insurance benefits on his deceased father's account.[11] The relevant period in this case runs between Plaintiff's alleged onset of January 1, 2001, and his twenty-second birthday on February 13, 2005.

         The ALJ made the following findings: (1) Plaintiff had not attained age twenty-two as of January 1, 2001, his alleged onset date; (2) Plaintiff has not engaged in substantial gainful activity since his alleged onset date; (3) prior to attaining age twenty-two, Plaintiff had the following severe impairment: borderline intellectual functioning; (4) prior to attaining age twenty-two, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments; (5) prior to attaining age twenty-two, Plaintiff had the residual functional capacity to perform a full range of work at all exertional levels, with the following nonexertional limitations: he could understand and remember simple one-two step tasks but could not make independent decisions at an executive level; he could sustain concentration and persistence for simple one-two tasks during an eight-hour workday with customary breaks; he could interact with supervisors, coworkers, and the public within the restrictions above; he could set goals and adapt to infrequent changes; (6) Plaintiff has no past relevant work; (7) Plaintiff was seventeen, which is defined as a younger individual, on his alleged disability onset date; (8) Plaintiff has a limited education and is able to communicate in English; (9) transferability of job skills is not an issue in this case because Plaintiff does not have past relevant work; (10) prior to attaining age twenty-two, considering his age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform; (11) Plaintiff was not under a disability, as defined in the Act, at any time prior to the date he attained the age of twenty-two.[12]

         “Under Section 402(d) of Title 42 of the United States Code, a person is eligible for child insurance benefits if that person files an application, is unmarried and under 18 years of age or suffers from a disability incurred before reaching age 22, and was dependent upon an eligible wage-earner who died, became disabled, or was entitled to old age insurance.”[13] The statutory standard for determining disability under this section is the same standard as that used in adult disability claims.[14]

         The Social Security Act defines disability as the inability to engage in substantial gainful activity.[15] The claimant bears the ultimate burden of establishing entitlement to benefits.[16] The initial burden of going forward is on the claimant to show that he or she is disabled from engaging in his or her former employment; the burden of going forward then shifts to the Commissioner to demonstrate the existence of available employment compatible with the claimant's disability and background.[17]

         The Commissioner conducts the following, five-step analysis to determine if an individual is disabled within the meaning of the Act:

1. An individual who is engaging in substantial gainful activity will not be found to be disabled regardless of medical findings.
2. An individual who does not have a severe impairment will not be found to be disabled.
3. A finding of disability will be made without consideration of vocational factors, if an individual is not working and is suffering from a severe impairment which meets the duration requirement and which meets or equals a listed impairment in Appendix 1 to Subpart P of the regulations.
4. An individual who can perform work that he or she has done in the past will not be found to be disabled.
5. If an individual cannot perform his or her past work, other factors including age, education, past work experience and residual functional capacity must be considered to determine if other work can be performed.[18]

         Further review is not necessary if it is determined that an individual is not disabled at any point in this sequential analysis.[19] Here, the sequential analysis proceeded to the fifth step. The ALJ found that, although Plaintiff had no past relevant work, there were other jobs existing in significant numbers in the national economy that Plaintiff could perform.

         Plaintiff contends that the ALJ erred at step three of the sequential analysis in finding that, prior to attaining age twenty-two, he did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. At step three, claimants are conclusively presumed to be disabled if they suffer from an infirmity that appears on the Agency's list of impairments or that is at least equal in severity to those listed.[20]The list identifies and defines impairments that are of sufficient severity as to prevent any gainful activity.[21] A person with such an impairment or an equivalent necessarily satisfies the statutory definition of disability.

         The burden of proof at the listing level of the sequential evaluation process is on the claimant. In order for a claimant to show that his impairment matches a listing, the impairment must meet specified medical criteria.[22] “An impairment that manifests only some of those criteria, no matter how severely, does not qualify.”[23] Additionally, “[f]or a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is ‘equivalent' to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar impairment.”[24] “A claimant cannot qualify for benefits under the ‘equivalence' step by showing that the overall functional impact of his unlisted impairment or combination of impairments is as severe as that of a listed impairment.”[25]

         Here, Plaintiff contends that he meets or equals Listing 12.05(C) which defines mental retardation and provides:

Mental retardation 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.[26]

         In order to meet Listing 12.05(C), a claimant's impairment must satisfy the diagnostic description in the introductory paragraph to 12.05 and the criteria in paragraph C of 12.05 (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....)[27]Thus, Listing 12.05(C) involves three criteria: (1) intellectual disability (f/k/a mental retardation), i.e., significantly subaverage general intellectual functioning with deficits in adaptive behavior[28] initially manifested before the age of twenty-two; and (2) an IQ of 70 or below; and (3) a physical or other mental impairment imposing an additional and significant work-related limitation of function.[29] A claimant may meet or equal Listing 12.05(C) only if he meets or equals all three elements.[30]

         In the present case, the ALJ determined that there was “insufficient evidence in the record to establish the claimant met or equaled the requirements of either 12.05(A), (B), (C) or (D) during the pertinent period.”[31] She acknowledged that Plaintiff had several IQ tests scores below 70 but found that Plaintiff did not have the deficits in adaptive functioning or the “other” required impairment sufficient to meet Listing § 12.05. The ALJ believed that Plaintiff's level of adaptive functioning was not consistent with the presence of an intellectual disability, in part, because Plaintiff could care for his own personal needs, cook, perform household chores, attend church, use public transportation, and read newspapers.

         The Court finds that the determination that Plaintiff did not show deficits in adaptive behavior before the age of twenty-two is not supported by substantial evidence. The record is replete with evidence contrary to the ALJ's finding. For example, Plaintiff exhibited signs of delusional and paranoid thinking at the age of twelve and was diagnosed with psychosis.[32]According to medical records from Joseph Montgomery, M.D., Plaintiff had a rambling demeanor and claimed that he had possession of gold worth one million dollars and that other boys had killed a person looking for this gold.[33]

         The Memphis City School System psychologist noted that Plaintiff met the special education criteria for mental retardation and that his adaptive functioning was severely limited.[34]Plaintiff had a development age of five years. He showed marked inappropriate behavior, including threatening teachers, had temper tantrums and violent outbursts, paced and ranted for hours, and collected bottles of urine.[35] Records from an in-patient stay at Charter Lakeside Hospital showed aggression, impulsivity, acting out, and a poor integrated personality.[36]

         Plaintiff's adaptive functioning was measured by administration of the Vineland Adaptive Behavior Scales. Plaintiff's adaptive behavior scores were extremely low with a composite score poorer than 99% of the population.[37] Additionally, Plaintiff was in prison during at least part of the relevant time period. As noted by Plaintiff, incarceration for aggravated assault is evidence of a deficit in adaptive behavior.

         Dr. Gregory Meeks, Ph.D., diagnosed schizotypal disorder and mild mental retardation as follows:

Plaintiff also meets the DSM-IV criteria for Schizotypal Personality Disorder because he displays a pervasive pattern of social and interpersonal deficits marked by a reduced capacity for interpersonal relationships as well as by cognitive or perceptual distortions and eccentricities of behavior, as manifested by:
1. Bizarre fantasies and preoccupations
2. Odd thinking and speech
3. Suspiciousness or paranoid ideation 4. Behavior that is odd, eccentric or peculiar 5. Lack of close ...

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