Summary
finding claimant illiterate and noting that "[h]is driver's training examination was done orally."
Summary of this case from Kenneth S. v. SaulOpinion
Case No. 00-CV-10142-BC
July 15, 2002
The plaintiff filed the action now before the Court on April 14, 2000 seeking review of the Commissioner's decision denying the plaintiffs claim for a period of disability and disability insurance benefits. The case was referred to United States Magistrate Judge Charles E. Binder by this Court's predecessor, the Honorable Victoria A. Roberts, pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment seeking reversal of the decision of Administrative Law Judge (ALJ) John A. LaFalce, which became the final decision of the Commissioner, and a remand for an award of benefits. The defendant filed a motion for summary judgment seeking a reversal of the Commissioner's decision and a remand for further fact finding.
Magistrate Judge Binder filed a Report and Recommendation on December 21, 2000 recommending that the defendant's motion be denied. the plaintiff's motion be granted, and the case remanded for an award of benefits. The defendant filed timely objections to the Report and Recommendation. to which the plaintiff responded. and this matter is now before the Court. The Court has reviewed the file. the Report and Recommendation and the objections thereto, and has made a de novo review of the administrative record in light of the objections filed. The main issue in the case, viewing the record through the lens of the Magistrate Judge's Report and Recommendation, focuses on whether the Administrative Law Judge utilized the correct medical vocational guidelines (the "grids") as a guide in assessing whether the plaintiff was disabled within the meaning of 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A), which provides the following definition:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.42 U.S.C. § 423(d)(1)(A).
The ALJ utilized the five-step sequential analysis prescribed by the Commissioner. See 20 C.F.R. § 404.1520. At step two, the ALJ found that the plaintiff had severe impairments consisting of severe depression, diverticulosis, lumbar degenerative disc disease and degenerative arthritis, chronic gastritis and borderline intellectual functioning. None of these impairments alone or in combination met or equaled one of the listings in the regulations, but they did prevent the plaintiff from performing his previous work as a truck driver. At step five of the sequential analysis, the ALJ found that the plaintiff retained the residual functional capacity to perform a limited range of light work. As noted above, the ALJ utilized the Commissioner's grid rules as a guide in making that determination. The grid rule specifically applied by the ALJ was 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.10. This grid rule, applied to persons who are literate and able to communicate in English and whose previous job experience was unskilled, calls for a finding of "not disabled" for persons approaching advanced age who are capable of undertaking light exertional work and who have "limited or less" education.
The Magistrate Judge determined that the record did not contain substantial evidence that the plaintiff had "limited or less" education. Rather. the record, according to the Magistrate Judge, required a finding that the plaintiff is illiterate. Accordingly, the Magistrate Judge stated that the proper grid rule that should have been used for guidance was grid rule 202.09, which would yield the finding of "disabled" for persons exhibiting the plaintiffs characteristics who are illiterate. 20 C.F.R. pt. 404, Subpt. P, App. 2, Rule 202.09.
Of course, the Commissioner's findings are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla of evidence. lt means such relevant evidence as a rational mind might accept as adequate to support a conclusion." Lashley v. Sec'y of Health Human Servs., 708 F.2d 1048, 1053 (6th Cir. 1983) (citations omitted). However, a substantiality of evidence evaluation does not permit a selective reading of the record. "Substantiality of evidence must be based on the record taken as a whole. Substantial evidence is not simply some evidence, or even a great deal of evidence. Rather, the substantiality of the evidence must take into account whatever in the record fairly detracts from its weight." Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984) (internal quotes and citations omitted). See also Laskowski v. Apfel, 100 F. Supp.2d 474. 482 (E.D. Mich. 2000).
The ALJ quoted correctly the definition of illiterate as one who "cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name." See 20 C.F.R. § 404.1564(b)(1). The ALJ then concluded that the plaintiff was not illiterate because he was able to perform his past work as a truck driver, and because of "a number of other statements in the record" which purportedly supported this conclusion. Tr. at 21. The ALJ failed to point to any such other statements in the record, however.
The defendant has attempted to bolster the ALJ's findings by pointing to statements in the record that the plaintiff was able to keep a log book. although with some trouble, that the plaintiff attended school through the ninth or tenth grade, and that he was supposedly able to read a little bit. The Magistrate Judge found the position of the Commissioner untenable with respect to literacy, however, as does this Court after a review of the whole record.
In fact, after reviewing the record as a whole. it is inconceivable that any fair minded person could reach the conclusion that the plaintiff was anything but illiterate. He possessed no facility with the written English word. It is undisputed that the plaintiff was unable to complete special education classes in reading and spelling. He testified that he was unable to read a newspaper and no one contradicted that testimony. He also stated that when he worked as a truck driver, his employer would draw a map for him to follow and as a driver of a beverage truck he often drove repetitive routes. His driver's training examination was done orally and he was unable to fill out log books as part of his work. The plaintiff had to take his ten-year-old son with him to the store to read labels on cans. The plaintiffs girlfriend had to read his son's school papers for him. The plaintiff had to hire volunteers from the Literacy Council to read his mail and help him pay his bills. The objective testing placed him in a very low percentile and a reading level below the third grade. The plaintiff was even diagnosed as having a Developmental Reading Disorder by Dr. George Pestrue, a psychologist.
The Magistrate Judge concluded that the ALJ made his finding regarding plaintiffs literacy based upon the ALJ's own beliefs about the requirements of the plaintiffs prior job duties. In so doing, the ALJ turned a blind eye to the obvious evidence in the record. and this was error.
In his motion for summary judgment. the defendant concedes that the ALJ did not articulate the evidence that he used to support his conclusion that the plaintiff was literate, but contends that a remand for further fact finding is appropriate. The Magistrate Judge disagreed that further fact finding is required. as does the Court. There is no "inconsistent" evidence to be resolved with respect to the plaintiffs illiteracy. Rather, once the Magistrate Judge made the observation, correctly, that the only item supporting the ALJ's conclusion to the contrary was the ALJ's own assumptions, the actual evidence in the record itself on the question of illiteracy is uncontroverted.
Where proof of disability is strong and significant evidence to the contrary is lacking, the Commissioner's decision should be reversed and the Court is empowered to remand for an award of benefits. Mowrey v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). The Court believes that "all essential factual issues have been resolved and the record adequately establishes a plaintiffs entitlement to benefits." Faucher v. Sec'y of Health and Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation is ADOPTED.
It is further ORDERED that the defendant's motion for summary judgment [dkt #16] is DENIED.
It is further ORDERED that the plaintiffs motion for summary judgment [dkt #12] is GRANTED, the findings of the Commissioner are REVERSED, and the case is REMANDED for an award of benefits.