No. CA 99-0654-BH-C
September 27, 2000
George W. Harris, Esq., P. 0. Box 20936, Tuscaloosa, AL 35402
Patricia Nicole Beyer, Esq., U.S. Attorney's Office, 63 S. Royal St., Rm. 600, Mobile, AL 36602
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, plaintiffs' proposed report and recommendation and motion to remand, the Commissioner's proposed report and recommendation, and the arguments of the parties at the September 19, 2000 hearing before the Magistrate Judge, it is determined that this cause is not due to be remanded pursuant to 42 U.S.C. § 405 (g) for consideration of new evidence first submitted to the Appeals Council and because plaintiff raises no other issues, the Commissioner's decision denying benefits should be affirmed.
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), its analysis of the remand issue is governed by 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."
Remands pursuant to sentence six of § 405(g) can be ordered in only two situations: where the Commissioner "requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency." Shalala v. Schaefer, 509 U.S. 292, 297 n. 2, 113 S.Ct. 2625, 2629 n. 2, 125 L.Ed.2d 239 (1993) (citations omitted). In Keeton v. Department of Health Human Services, 21 F.3d 1064, 1067 (11th Cir. 1994), the Eleventh Circuit held that "new evidence first submitted to the Appeals Council is part of the administrative record that goes to the district court for review when the Appeals Council accepts the case for review as well as when the Council denies review." Thus, under 42 U.S.C. § 405 (g), this Court may remand this case to the Commissioner of Social Security for consideration of new evidence if the court finds that the new evidence is material and that good cause exists for Small's failure to incorporate this evidence into the record in the proceedings before the ALJ. In other words, in order to be entitled to a remand the plaintiff must establish that: (1) there is new, noncumulative evidence; (2) the evidence is material, that is, relevant and probative so that a reasonable probability exists that it would change the administrative result; and (3) good cause exists for the failure to incorporate the evidence into the record in the proceedings before the ALJ. Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998), cert. denied, 525 U.S. 1124, 119 S.Ct. 907, 142 L.Ed.2d 905 (1999); see also Keeton, supra, 21 F.3d at 1067-1068.
The evidence submitted by plaintiff to the Appeals Council consists of a neuropsychological evaluation conducted by Dr. John R. Goff, a clinical neuropsychologist, on March 9, 1998 (Tr. 184-190) and a mental medical source statement completed by Dr. Goff on November 10, 1998 (Tr. 191-193). In denying the plaintiffs' request for review of the ALJ's decision, the Appeals Council noted that it had considered this additional evidence but concluded that it did not provide a basis for changing the hearing decision. (Tr. 4)
The plaintiff contends that the Appeals Council erred in failing to remand his case to the ALJ for consideration of the evidence supplied by Dr. Goff and asks this Court to do that which the Appeals Council should have done and remand this case to the ALJ for consideration of this new and material evidence. The defendant concedes that this evidence is new, in that it came into existence following the ALJ's denial of benefits, and that good cause exists for the plaintiffs' failure to submit the evidence to the ALJ. (Doc. 16, at 5) However, it is the defendant's contention that this additional evidence is cumulative and also not material. ( See id.) The undersigned agrees with the defendant's arguments and therefore, recommends the affirmance of the Commissioner's decision denying benefits.
The undersigned agrees with Judge Acker's well-reasoned decision in Porter v. Shalala, 1994 WL 686920 (N.D.Ala. 1994), that evidence is new and noncumulative if it "sheds new light on ill-developed" psychological/medical issues, see Id. at *2, citing Cherry v. Heckler, 760 F.2d 1186 (11th Cir. 1985), or if it raises psychological/medical issues "not previously addressed in the record," see Id., citing Milano v. Bowen, 809 F.2d 763 (11th Cir. 1987).
It is all too clear to the undersigned that the evidence supplied by Dr. Goff does not raise psychological issues not previously addressed in the record because the prehearing psychological examination conducted by Dr. Vonceil Smith and the post-hearing psychological examination of Dr. Joe Dixon both produced IQ scores suggestive of mild mental retardation (Tr. 131 154), with Smith diagnosing borderline intellectual functioning but noting that mild mental retardation needed to be ruled out (Tr. 132) while Dixon's firm impression was of borderline intelligence (Tr. 155). Moreover, the ALJ specifically discussed the reports of Drs. Smith and Dixon within the context of Listing 12.05 (C), and otherwise, and specifically found, based upon the evidence, that plaintiff has borderline intellectual functioning rather than mild mental retardation as suggested by some of the IQ scores reported by Smith and Dixon and further, even if Small were found to meet the first prong of 12.05(C) he does meet the second prong and he would be capable of performing his past relevant work. ( See Tr. 12-22)
Listing 12.05(C) is a listing for mental retardation requiring "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing additional and significant work-related limitation of function[.]"
In addition, while Dr. Goffs' report might technically be regarded as shedding a modicum of new light on the issue of whether plaintiff functions at the mildly mentally retarded range of intellectual functioning as opposed to the borderline range of intellectual functioning, the insurmountable hurdle for Small is that he cannot show that the psychological issues in this case were ill-developed. On February 10, 1996, Dr. Vonceil Smith evaluated Small, in part, by administration of the Wechsler Adult Intelligence Scale-Revised (WAIS-R) (Tr. 131), and on March 4, 1997, Dr. Joe Dixon also evaluated plaintiff, in part, by administration of the WAIS-R (Tr. 154). As aforesaid, Dr. Smith diagnosed borderline intellectual functioning but noted that mild mental retardation needed to be ruled out (Tr. 132) and Dr. Dixon clearly stated that his impression of Small was one of borderline intelligence (Tr. 155). The reports of Drs. Smith and Dixon reflect that the issue of plaintiffs' intellectual functioning was well developed and therefore, this Court should not find the evidence supplied by Dr. Goff noncumulative solely because his diagnosis of small's psychological impairment is different from that found by the ALJ, particularly since the ALJ's determination of borderline intellectual functioning is supported by the substantial evidence of record before him at the time of the administrative decision.
Turning to the materiality prong of the new evidence standard, it is clear that "[t]o be material, the evidence must be relevant and probative so that there is a reasonable possibility that it would change the administrative outcome." Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986) (citations omitted). To be sure, this Court must find the evidence relevant and probative under Caulder since it pertains to a condition that Small raised throughout the administrative proceedings as a source of his disability. See Id. However, plaintiff has failed to demonstrate any reasonable possibility that this new evidence would change the administrative outcome because though it relates directly to Small's level of intellectual functioning, a principal impairment, there was a gracious amount of evidence supplied to the ALJ for him to make an informed decision about plaintiffs' level of intellectual functioning. See id. at 878 ("We find that there is a reasonable possibility that the new evidence would change the administrative outcome because it consists of medical evidence that relates directly to one of Caulder's principal alleged impairments, about which there was inadequate evidence presented to the ALJ."). The most that can be said about this new evidence is that on remand it would just offer another opinion of plaintiffs' level of intellectual functioning (mild mental retardation) and limitations arising therefrom which could be rejected based upon the contrary opinions of Drs. Smith and Dixon (borderline intellectual functioning) and Small's testimony that he left school in the ninth grade only because he was older and bigger than the other kids (Tr. 36 204), that he can read and write and has returned to school to earn his GED (Tr. 205), that the sole reason he cannot keep a job he has had in the past is because the jobs have irritated his back (Tr. 38-40, 48-49, 206 208), and that on occasion he enjoys playing basketball and football and attending basketball and football games (Tr. 213). In short, the ALJ had before him sufficient facts upon which to make an informed decision regarding Small's application for supplemental security income benefits and that decision is supported by substantial evidence. See Caulder, supra, 791 F.2d at 878. Accordingly, the undersigned does not hesitate in finding that there is no reasonable possibility that Dr. Goffs' evidence would change the administrative outcome.
Plaintiff takes issue with whether Dr. Dixon really diagnosed borderline intellectual functioning based upon the following statement made by Dixon: "Impressions are of Borderline intelligence absent significant impairment in adaptive skills and abilities." (Tr. 155) Plaintiff contends, based upon this statement, that Dixon did not diagnose mild mental retardation because he was not sure of the level of Small's adaptive functioning. However, the undersigned takes a different view of Dr. Dixon's statement. It is clear to the undersigned that Dr. Dixon's impression/diagnosis was one of borderline intelligence because of the very fact that he saw no significant impairment in adaptive skills and abilities. ( See id. ("He has the capacity to learn a vocation and could do well in a closely supervised setting at this time."); Tr. 153 ("Mr. Small presented stylishly dressed with jeans, T-shirt and gold jewelry. Hair was black and eyes brown. Mr. Small wore a goatee and mustache. Height and weight were proportional. Physique was average. He appeared his reported chronological age. Hygiene was clean and grooming neat with no signs of neglect. Vision and hearing were reported as WNL. Eye contact was appropriate and rapport satisfactory. Posture was normal and ambulation unassisted. Gross and fine motor skills appeared WNL. Orientation was intact X4. Sensorium was clear. Mr. Small presented as functioning within the Borderline to Low Average range of intelligence. Mr. Small mumbled when he spoke but was understandable. Vocabulary and word selection were consistent with education. Demeanor was cooperative but somewhat disinterested. Attitude was immature with adolescent range of interests expressed. Affect was euthymic and appropriate to conversational topics with mood normal by reported history.")) Accordingly, the undersigned finds no equivocation with Dr. Dixon's diagnosis.
It was Small's testimony that he obtained the position at Wal-Mart by applying for same and being hired and that he lost the position because of the problems he was having with his back. (Tr. 47-48)
This is particularly the case since Dr. Goff is nothing if not equivocal in reaching a diagnosis of mild mental retardation. "[T]he essential feature of Mental Retardation is significantly subaverage general intellectual functioning . . . accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety. . . . The onset must occur before age 18 years. . . ." THE DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS OF THE AMERICAN PSYCHIATRIC ASSOCIATION, 39 (4th ed. 1994); see also 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05 ("Mental retardation refers to a significantly subaverage general intellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22)."). In other words, the clinical definition of mental retardation has three essential features: "`(1) significantly subaverage general intellectual functioning, (2) resulting in, or associated with, deficits or impairments in adaptive behavior, (3) with onset before the age of 18.'" Fairchild v. Lockhart, 744 F. Supp. 1429, 1454 (E.D.Ark. 1989) (citation omitted), aff'd, 900 F.2d 1292 (8th Cir.), cert. denied, 497 U.S. 1052, 111 S.Ct. 21, 111 L.Ed.2d 834 (1990).
Plaintiff was born on April 28, 1974 (see, e.g., Tr. 204), thereby making him 18 on April 28, 1992 and 22 on April 28, 1996. When evaluated by Dr. Goff plaintiff was 23 years of age yet the clinical neuropsychologist was only able to conclude that Small "is currently functioning within the mildly retarded range of psychometric intelligence." (Tr. 189) Neither this equivocal statement, the remainder of Dr. Goff s evaluation, or the evidence supplied post-hearing by plaintiffs' counsel clearly establishes that Small's alleged mild mental retardation has an onset date before the age of 22, much less 18. More importantly, Dr. Goffs' equivocal conclusions regarding likely deficits or impairments in adaptive behavior are insufficient to support the mild mental retardation diagnosis particularly in light of the contrary evidence contained in the record. Dr. Goff concluded in his report: "The patient seems to me to demonstrate significant deficits in terms of social skills, vocational skills and academic skills; therefore, I think he meets the criteria for an MR diagnosis." (Tr. 189 (emphasis supplied); see also id. ("The patient is 23 years old. He still lives with his mother. I would suspect that there are some inadequacies in terms of his basic interactive skills in the community. He definitely has academic deficits as well; therefore, the patient would seem to me to meet the criteria for a diagnosis of mild mental retardation.")) Goffs' conclusions regarding deficits in adaptive behavior are not only mere guesses, as underscored by the neuropsychologist's equivocal remarks, but also suffer from a lack of support in the record which clearly establishes, as aforesaid, that plaintiff can read and write and is presently earning his GED, successfully applied for and was hired for several jobs, successfully worked at numerous occupations before problems with his back caused the discontinuation of employment, and on occasion enjoys playing basketball and football or going to basketball or football games. Therefore, the undersigned perceives no reason to remand this cause for consideration of the new evidence supplied to the Appeals Council as there is no reasonable probability that it would change the administrative result.
Because plaintiff raises no issue other than a Keeton new evidence issue and the undersigned has determined that the Appeals Council did not err in failing to remand this cause to the ALJ for consideration of the evidence supplied by Dr. Goff and in denying plaintiffs' request for a review of the ALJ's decision, the Commissioner's decision denying Small benefits is due to be affirmed.
The Magistrate Judge recommends that the Commissioner's decision denying claimant supplemental security income benefits be affirmed.
ORDERAfter due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the recommendation to which objection is made, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636 (b)(1)(B) and dated September 27, 2000, is ADOPTED as the opinion of this Court.
In accordance with the order entered on this date, it is hereby ORDERED, ADJUDGED, and DECREED that the decision of the Commissioner of Social Security denying claimant benefits be affirmed.