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Fitts v. Massanari

United States District Court, S.D. Alabama, Northern Division
Apr 5, 2001
CA 00-0624-BH-C (S.D. Ala. Apr. 5, 2001)

Opinion

CA 00-0624-BH-C

April 5, 2001


REPORT AND RECOMMENDATION


Plaintiff brings this action pursuant to 42 U.S.C. § 1383 (c)(3), seeking judicial review of a final decision of the Commissioner of Social Security denying his claim for supplemental security income benefits. This action has been referred to the Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B). Upon consideration of the administrative record, plaintiff's proposed report and recommendation, the Commissioner's proposed report and recommendation, plaintiff's response to the defendant's proposed report and recommendation, plaintiff's sentence-six motion to remand, the defendant's response to plaintiff's response and motion to remand, and the arguments of the parties at the March 23, 2001 hearing before the Magistrate Judge, it is determined that the decision to deny benefits should be reversed and remanded for further proceedings not inconsistent with this decision.

Plaintiff alleges disability due to mild mental retardation, post-traumatic stress disorder with anxiety, hypertension, "status-post closed nailing of left mid-femur fracture and application of external fixator pelvis with subsequent removal of external fixator and open reduction and internal fixation, pubic symphysis, with plate and screws in October 1995; status-post fracture of five ribs with lung contusion, pleural effusion, and post traumatic pulmonary insufficiency in October 1995; and status-post excision of right distal clavicle with removal of heterotopic bone[.]" (Tr. 28; see also Tr. 158) The Administrative Law Judge (ALJ) determined that although plaintiff is unable to perform his past relevant work, he:

retains the residual functional capacity to perform work at no more than the light level of exertion, including lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Further, the claimant is able to sit (with normal breaks) for a total of 6 hours in an eight hour workday, and he retains unlimited ability to push and/or pull (including operation of hand or foot controls), except as shown above for lifting and carrying. The claimant is moderately limited with regard to his ability to perform simple grasping and fine manipulation. He is moderately limited with regard to the performance of simple, repetitive tasks.

(Tr. 28-29, Finding No. 6) The ALJ then reached the following conclusion: "Although. the claimant's additional nonexertional limitations do not allow the performance of the full range of light work, using [Rule 202.17] as a framework for decision making, there are a significant number of jobs in the local and national economy which the claimant is able to perform, as described above in this decision." (Tr. 29, Finding No. 12) The Appeals Council affirmed the ALJ's decision (Tr. 5-6) and thus, the hearing decision became the final decision of the Commissioner of Social Security.

The relevant portion of the decision referenced by the ALJ in Finding of Fact 12 is the following: "The VE provided a representative sample of such jobs: Poultry Worker (unskilled, light) with 4, 300 jobs regionally and 261,000 nationally; Automatic Hand Packager (unskilled, light) with 1, 600 jobs regionally and 124,000 nationally; Carding Machine Operator (unskilled, sedentary) with 980 jobs regionally and 48,000 jobs nationally; and Stringing Machine Operator (unskilled, sedentary) with 1, 100 jobs regionally and 66,000 jobs nationally." (Tr. 27)

DISCUSSION

In all Social Security cases, the claimant bears the burden of proving that he is unable to perform his previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the claimant's age, education and work history. Id.. at 1005. Once the claimant meets this burden, as here, it becomes the Commissioner's burden to prove that the claimant is capable, given his age, education and work history, of engaging in another kind of substantial gainful employment which exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).

The task for the Magistrate Judge is to determine whether the Commissioner's decision to deny claimant benefits, on the basis that he can perform the reduced range of light and sedentary work identified by the vocational expert (VE) and is therefore not disabled within the framework of the grids, is supported by substantial evidence. Substantial evidence is defined as more than a scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). "In determining whether substantial evidence exists, we must view the record as a whole, taking into account evidence favorable as well as unfavorable to the [Commissioner's] decision." Chester v. Bowen, 792F.2d 129, 131 (11th Cir. 1986).

This Court's review of the Commissioner's application of legal principles, however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

The claimant contends that the ALJ committed the following errors: (1) he erred in identifying plaintiff's education as high school and in finding that he possessed transferable work skills; (2) he erred in disregarding the report of the only examining psychologist; and (3) he erred in failing to find that plaintiff's impairments meet Listing 12.05 (C). In addition, plaintiff has filed a motion to remand for consideration of new evidence. (Doc. 18) Because the undersigned is convinced that errors made by the ALJ in this case require a remand pursuant to sentence four of 42 U.S.C. § 405 (g), there is no need to consider plaintiff's sentence-six motion to remand for consideration of new evidence other than to note, the obvious, that plaintiff's counsel can submit this evidence to the ALJ on remand for his thorough consideration.

The undersigned would note at the outset, prior to touching upon any of the issues raised by the plaintiff, that a simple comparison of the ALJ's findings to the vocational expert's testimony reflects a clear need to reverse and remand this case for further proceedings. The VE clearly testified that an individual who was limited to only occasional simple grasping and fine manipulation could not perform the four unskilled light and sedentary jobs relied upon by the ALJ in this case ( compare Tr. 52-53 with Tr. 27 29) while an individual who could perform simple grasping and fine manipulation on a frequent basis could perform those jobs (Tr. 53). Instead of finding that plaintiff was capable of performing either frequent or occasional simple grasping and fine manipulation, however, the ALJ specifically finds that plaintiff "is moderately limited with regard to his ability to perform simple grasping and fine manipulation." (Tr. 29; see also Tr. 27 (same)) Because the VE gave no testimony regarding the effect of a moderate limitation of simple grasping and fine manipulation on the ability to perform the four unskilled light and sedentary jobs he identified, this Court simply has no basis upon which to find that the ALJ's decision that plaintiff can perform work which exists in substantial numbers in the national economy (i.e., the four unskilled light and sedentary jobs identified by the VE) is supported by substantial evidence since by definition moderate would necessarily have to fall between occasional and frequent. While this alone supplies a sufficient basis upon which to remand this case, the undersigned also recommends a remand for at least one other reason which was touched upon by the plaintiff.

Frequent means "happening or appearing often or at close intervals, " WEBSTER'S II New Riverside University Dictionary, 506 (1994); moderate means "of average or medium quantity, quality, or extent," Id.. at 761; and occasional means "occurring from time to time: INFREQUENT[,]" Id.. at 812.

One of the issues raised by the plaintiff is that the ALJ erred in failing to find him disabled under Listing 12.05(C). While the plaintiff immediately focuses his attention upon that listing's two prongs, the undersigned notes that the ALJ made an error more fundamental regarding the listings in that he never once mentioned Listing 12.05, specifically 12.05(C), in his decision denying benefits (see Tr. 15-30) even though he clearly recognizes the applicability of Listing 12.05 to this case on the Psychiatric Review Technique Form (PRTF) attached to that very decision (Tr. 31-33). In fact, the ALJ's decision and failure to mention Listing 12.05 therein is irreconcilable with the PRTF. For instance, the first two pages of the PRTF reflect the presence of mental retardation, more specifically mild mental retardation (Tr. 31 32) and, in addition, the first page of the form reflects the following: "RFC Assessment Necessary (i.e., a severe impairment is present which does not meet or equal a listed impairment)[.]" (Tr. 31) Therefore, the PRTF is clear on its face that plaintiff has mild mental retardation and that same is a severe impairment. (Tr. 31-33) Consequently, it was error for the ALJ to fail to include mild mental retardation in the list of severe impairments ( compare Tr. 31 with Tr. 28, Finding No. 3), see McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986) ("Step two is a threshold inquiry. It allows only claims based on the most trivial impairments to be rejected."); Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984) (holding that an impairment can be considered not severe "only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience"), as was it for him to fail to analyze the evidence in light of the specific requirements of Listing 12.05, most particularly 12.05(C). It cannot be gainsaid that under 12.05(C) plaintiff has a physical impairment "imposing additional and significant work-related limitation of function[,]" ( compare Tr. 28, Finding No. 3 with Tr. 113-119 122-134) nor can it be denied that the record contains evidence of a valid verbal, performance or full scale IQ score of 60 through 70 (Tr. 157) given the ALJ's PRTF finding of the presence of mild mental retardation (Tr. 32; see also Tr. 31). Therefore, on remand, the sole focus of the

In light of the ALJ's PRTF finding of the presence of mild mental retardation, as well as the ALJ's very general discussion of Dr. Donald Blanton's psychological report ( see Tr. 26 ("Concerning the claimant's alleged mental impairments, I find the opinions of Dr. Blanton unpersuasive. Specifically, Dr. Blanton's diagnoses of post traumatic stress disorder with anxiety, in partial remission; mild mental retardation; multiple medical problems relating to the accident; and a GAF score of 60 are not corroborated by other medical evidence contained in the record . . . . Although I acknowledge Dr. Blanton's qualifications as a specialist in the field of psychology, I note that there is no indication that the claimant reported subjective symptoms consistent with these diagnoses during his office visits with Dr. Brown, his treating physician. Also, Dr. Thead's examination of the claimant in April 1998 reflected no appearance of any emotional state in reaction to his illness . . . . As a result, I have given the opinions of Dr. Blanton regarding the effect of the claimant's alleged mental impairments less weight in my determination of the claimant's residual functional capacity.")), it is clear to the undersigned that the ALJ did not, and could not, ignore Blanton's mild mental retardation diagnosis. The reasons cited by the ALJ for giving less weight to Blanton's opinions regarding the effect of plaintiff's mental impairments (i.e., a lack of subjective symptoms or "appearance of any emotional state in reaction to his illness") are simply inapplicable to Blanton's mild mental retardation diagnosis. More to the point, the undersigned is unable to discern how a mild mental retardation diagnosis by a psychologist trained to make such a diagnosis after administration of a standardized test can somehow be diminished by the comments or notes of an orthopedic surgeon ( see Tr. 130) or internists/family physicians (see Tr. 131-134, 144-145 161-163) particularly where, as here, the ALJ acknowledges the presence of mild mental retardation.

ALJ's analysis of Listing 12.05(C) should be whether Fitts manifested deficits in adaptive behavior during the developmental period (i.e., before the age of 22).

In light of the foregoing, this cause should be reversed and remanded for further proceedings not inconsistent with this decision.

CONCLUSION

The Magistrate Judge recommends that the Commissioner's decision denying plaintiff benefits be reversed and remanded pursuant to sentence four of § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court's jurisdiction over this matter.

Though this Court's review of the denial of an application for supplemental security income falls squarely under 42 U.S.C. § 1383 (c)(3), remand is proper under 42 U.S.C. § 405 (g) because § 1383(c)(3) provides that "[t]he final determination of the Commissioner of Social Security after a hearing under paragraph (I) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title."

The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

I. Objection. Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the Clerk of this court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636 (b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)( en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636 (b)(1)(A), by filing a "Statement of Objection to Magistrate Judge's Recommendation' within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. § 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.


Summaries of

Fitts v. Massanari

United States District Court, S.D. Alabama, Northern Division
Apr 5, 2001
CA 00-0624-BH-C (S.D. Ala. Apr. 5, 2001)
Case details for

Fitts v. Massanari

Case Details

Full title:DAVID LEON FITTS, Plaintiff, v. LARRY G. MASSANARI, Acting Commissioner of…

Court:United States District Court, S.D. Alabama, Northern Division

Date published: Apr 5, 2001

Citations

CA 00-0624-BH-C (S.D. Ala. Apr. 5, 2001)