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Hopgood v. Barnhart

United States District Court, N.D. Texas
Dec 16, 2003
NO. 3-02-CV-1824-M (N.D. Tex. Dec. 16, 2003)

Opinion

NO. 3-02-CV-1824-M

December 16, 2003


FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE


Plaintiff Henry A. Hopgood seeks judicial review of a final decision of the Commissioner of Social Security denying his application for disability insurance and supplemental security income ("SSI") benefits under Titles H and XVI of the Social Security Act, 42 U.S.C. § 401, et seq. For the reasons stated herein, the hearing decision should be reversed.

I.

Plaintiff alleges that he is disabled as a result of knee and low back pain, diabetes, and limited intellectual functioning. After his application for disability insurance and SSI benefits was denied initially and on reconsideration, plaintiff requested a hearing before an administrative law judge. A hearing was held on July 5, 2000. At the time of the hearing, plaintiff was 45 years old. He has an eighth grade education and past work experience as a helper for a flooring company. Plaintiff has not engaged in substantial gainful activity since March 3, 1996.

This was the second administrative hearing on plaintiffs claim for disability insurance and SSI benefits. The first decision was vacated by the Appeals Council and remanded for consideration of opinion evidence from an examining source. (See Tr. at 68-86, 90-92).

The ALJ found that plaintiff was not disabled and therefore not entitled to disability insurance or SSI benefits. Although the medical evidence established that plaintiff suffered from severe impairments, the judge concluded that the severity of those impairments did not meet or equal any impairment listed in the social security regulations. The ALJ further determined that plaintiff could not return to his past relevant work, but had the residual functional capacity to perform a wide range of light duty jobs that existed in significant numbers in the national economy. Plaintiff appealed this decision to the Appeals Council. The Council affirmed. Plaintiff then filed this action in federal court.

II.

In a single ground of error, plaintiff contends that the ALJ improperly determined that his mental impairment did not meet or equal section 12.05C of the listing of impairments.

A.

Judicial review in social security cases is limited to determining whether the Commissioner's decision is supported by substantial evidence and whether the proper legal standards were used to evaluate the evidence. See 42 U.S.C. § 405(g); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is defined as "relevant evidence that a reasonable mind might accept to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Austin v. Shalala, 994 F.2d 1170, 1174 (5th Cir. 1993). It is more than a scintilla but less than a preponderance. Richardson, 91 S.Ct. at 1427. The district court may not reweigh the evidence or substitute its judgment for that of the Commissioner, but must scrutinize the entire record to ascertain whether substantial evidence supports the hearing decision. Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).

A disabled worker is entitled to monthly social security benefits if certain conditions are met. 42 U.S.C. § 423(a). The Act defines "disability" as the inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or last for a continued period of 12 months. Id. § 423(d)(1)(A); Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985). The Commissioner has promulgated a five-step sequential evaluation process that must be followed in making a disability determination:

1. The hearing officer must first ascertain whether the claimant is engaged in substantial gainful activity. A claimant who is working is not disabled regardless of the medical findings.
2. The hearing officer must then determine whether the claimed impairment is "severe." A "severe impairment" must significantly limit the claimant's physical or mental ability to do basic work activities. This determination must be made solely on the basis of the medical evidence.
3. The hearing officer must then determine if the impairment meets or equals in severity certain impairments described in Appendix 1 of the regulations. This determination is made using only medical evidence.
4. If the claimant has a "severe impairment" covered by the regulations, the hearing officer must determine whether the claimant can perform his past work despite any limitations.
5. If the claimant does not have the residual functional capacity to perform past work, the hearing officer must decide whether the claimant can perform any other gainful and substantial work in the economy. This determination is made on the basis of the claimant's age, education, work experience, and residual functional capacity.
See generally, 20 C.F.R. § 404.1520(b)-(f). The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5,107 S.Ct. 2287, 2294 n. 5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).

In reviewing the propriety of a decision that a claimant is not disabled, the court's function is to ascertain whether the record as a whole contains substantial evidence to support the Commissioner's final decision. The court weighs four elements to determine whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) subjective evidence of pain and disability; and (4) the claimant's age, education, and work history. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995), citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991). The ALJ has a duty to fully and fairly develop the facts relating to a claim for disability benefits. Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the resulting decision is not substantially justified. Id. However, procedural perfection is not required. The court will reverse an administrative ruling only if the claimant shows that his substantive rights were prejudiced. Smith v. Chater, 962 F. Supp. 980, 984 (N.D. Tex. 1997).

B.

Plaintiff alleges that he suffers from a mental impairment that meets or equals section 12.05C of the listing of impairments. Under this listing, a mental impairment is per se disabling when the claimant: (1) has a valid verbal, performance, or full-scale IQ score of 60 to 70 that manifests itself prior to age 22; and (2) has a physical or other mental impairment that imposes an additional and significant work-related limitation on functioning. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C. Intelligence testing performed by Dr. Merle R. Walker III, a licensed psychologist, showed that plaintiff had a verbal IQ score of 68, a performance IQ score of 80, and a full-scale IQ score of 73. (Tr. at 272). Where more than one IQ score is in evidence, the Commissioner must use the lowest score for comparison to the listing. See 20 C.F.R. Pr. 40-4, Subpt. P, App. 1, § 12.00D. Nevertheless, the ALT discredited the results of this test:

Contrary to the Commissioner's argument, a claimant is not required to obtain a diagnosis of mental retardation in order the satisfy the first prong of section 12.05C. Rather, the listing defines mental retardation in terms of various limitations that indicate "a significantly sub-average general intellectual functioning with deficits in adaptive behavior." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.

I do not find the test scores to be a valid indicator of the claimant's level of functioning. Mr. Hopgood testified that he worked as a tile installation helper and finisher for some twenty-six years, the last year of which he worked alone. His work involved the use of a buffer and drum sander. He indicated that he got along with others and followed instructions from the lead man. The claimant's own assertions of his abilities are inconsistent with Dr. Walker's assessment.

(Tr. at 18).

An ALJ is not required to accept IQ scores when they are inconsistent with the claimant's daily activities and behavior. See Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998); Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991); Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986). However, in this case, the ALJ failed to fully and accurately describe plaintiffs work history and the conditions of his employment. The record shows that plaintiff was functionally illiterate when he quit school at age 16. (Tr. at 22, 364, 395-96). Because his father worked for Trinity Flooring Company and was friends with the foreman, plaintiff got a job as his father's helper. (Id. at 347, 360). He never worked for another employer and never advanced to a higher position in more than 25 years with the company. (Id. at 360-61). The only job plaintiff ever performed alone was waxing finished floors. (Id. at 347-48). One supervisor stated that it took plaintiff two and a half times longer than other employees to learn the job. (Id. at 277). Bonnie Conner, a vocational expert, described plaintiffs work environment as "protected." Conner acknowledged that plaintiff would not have gotten the job or been given so much time to learn the relevant job tasks had his father not worked for the company. (Id. at 456). This testimony is consistent with the Commissioner's own interpretation of the regulations, which recognizes that a person with an IQ between 60 and 69 requires closer supervision in carrying out simple instructions than individuals with higher IQs. See SSR 85-16, 1985 WL 56855 at *3 (SSA 1985).

Not all federal courts have adopted this reasoning. See, e.g. Berryman v. Massanari, 170 F. Supp.2d 1180, 1185 (N.D. Ala. 2001) (ALJ may not reject an IQ score absent competent medical evidence showing its invalidity); Howard v. Sullivan, 1990 WL 16787 at * 4 (N.D. 111. Feb. 6, 1990), quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00D (noting that regulations provide that IQ tests should be "administered and interpreted by a psychologist or psychiatrist qualified by training and experience to perform such an evaluation") (emphasis in original).

The determination that plaintiffs IQ score was invalid based on his work activities is not supported by substantial evidence. Dr. Walker stated that the test results were valid. (Tr. at 272). No other medical evidence contradicts that conclusion. It appears that the ALT merely substituted her own judgment for a competent medical opinion. This was error. See Berryman v. Massanari, 170 F. Supp.2d 1180, 1185 (N.D. Ala. 2001), quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996); Vasquez-Ortiz v. Apfel, 48 F. Supp.2d 250, 257 (W.D.N.Y. 1999), citing Balsamo v. Chater, 142 F.3d 75, 81(2d Cir. 1998).

The evidence further shows that plaintiffs limited mental functioning manifested itself before age 22, as required by the listing. Plaintiff received a total IQ score of just 60 on the California Mental Maturity Intelligence test, administered when he was 13 years old. (Tr. at 452; see also Plf. Br., Exh. A). Absent evidence of a change in intellectual functioning, a person's IQ is presumed to remain stable over time. See Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001) (citing cases). Dr. Walker also noted that plaintiffs limited intellectual functioning had been "lifelong." (Tr. at 273). This evidence conclusively establishes the first prong of section 12.05C.

C.

A presumptive disability finding under section 12.05C also requires proof that the claimant has "a physical or other mental impairment imposing additional and significant work-related limitation of function." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C. This additional impairment need not be disabling in itself. Warren v. Shalala, 29 F.3d 1287, 1291 (8th Cir. 1994); Branham v. Heckler, 775 F.2d 1271, 1275 (4th Cir. 1985). Some courts have held that this requirement is satisfied if the claimant has a "severe impairment" that significantly limits his physical or mental ability to do basic work activities. See, e.g. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997); Warren, 29 F.3d at 1291; Nieves v. Secretary of Health and Human Services, 775 F.2d 12, 14 (1st Cir. 1985); Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985). Other courts require the claimant to show that he cannot return to his past relevant work. See Flowers v. United States Department of Health and Human Services, 904 F.2d 211, 214 (4th Cir. 1990); Mowery v. Heckler, 111 F.2d 966, 972 (6th Cir. 1985).

The court need not reconcile these conflicting authorities because, under either standard, plaintiff meets the second prong of section 12.05C. The ALJ found that plaintiff suffered from severe physical impairments and could not return to his past relevant work. (Tr. at 18, 20, 22). Thus, either alone or in combination, these findings lead to the inescapable conclusion that plaintiff has "a physical or other mental impairment imposing additional and significant work-related limitation of function."

D.

Plaintiff asks the court to reverse the hearing decision and order the Commissioner to pay disability insurance and SSI benefits without a remand. Ordinarily, a social security case should be remanded for further proceedings when a hearing decision is reversed. However, the district court may direct an award of benefits where the uncontroverted evidence clearly establishes that the claimant is entitled to relief. See Cline v. Sullivan, 939 F.2d 560, 569 (8th Cir. 1991); Taylor v. Bowen, 782 F.2d 1294, 1298-99 (5th Cir. 1986); Green v. Shalala, 852 F. Supp. 558, 568 (N.D. Tex. 1994). Such is the case here. Plaintiff has been presumptively disabled since 1996. He has already endured two administrative hearings and the record contains all the evidence necessary to support an award in his favor. Under these circumstances, remand would only further delay the award of benefits to which plaintiff is entitled. See Cline, 939 F.2d at 569.

RECOMMENDATION

The hearing decision should be reversed. The Commissioner of Social Security should be ordered to pay disability insurance and SSI benefits to plaintiff as of March 4, 1996, his alleged onset date.


Summaries of

Hopgood v. Barnhart

United States District Court, N.D. Texas
Dec 16, 2003
NO. 3-02-CV-1824-M (N.D. Tex. Dec. 16, 2003)
Case details for

Hopgood v. Barnhart

Case Details

Full title:HENRY A. HOPGOOD, Plaintiff, VS. JO ANNE B. BARNHART, Commissioner of…

Court:United States District Court, N.D. Texas

Date published: Dec 16, 2003

Citations

NO. 3-02-CV-1824-M (N.D. Tex. Dec. 16, 2003)