Adkins v. Astrue, No. 3:2009cv01111 - Document 13 (S.D.W. Va. 2010)
Court Description: PROPOSED FINDINGS AND RECOMMENDATIONS. The Court recommends that the District Court confirm and accept the findings herein and grant the plaintiff's 10 motion for judgment on the pleadings, deny defendant's 11 motion for judgment on th e pleadings, reverse the final decision of the Commissioner, remand this action pursuant to sentence four of 42:405(g) for further administrative proceedings, and dismiss this action from the docket of the Court. This case no longer referred to Magistrate Judge Cheryl A. Eifert. Objections to Proposed F&R due by 12/20/2010. Signed by Magistrate Judge Cheryl A. Eifert on 12/3/2010. (cc: attys) (gan) (Modified on 12/6/2010 to add link to #10 and #11 briefs and clarify text) (mkw).
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Adkins v. Astrue Doc. 13 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION KEN N ETH W AYN E AD KIN S, Plain tiff, v. CIVIL ACTION N O. 3 :0 9 -0 1111 MICH AEL J. ASTRU E, Co m m is s io n e r o f So cial Se cu rity, D e fe n d an t. PROPOSED FIN D IN GS AN D RECOMMEN D ATION S This is an action seeking review of the decision of the Com m issioner of the Social Security Adm inistration (hereinafter the “Com m issioner”) denying Claim ant’s applications for disability insurance benefits (“DIB”) and supplem ental security incom e (“SSI”), under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 40 1-433, 13811383f. This case was referred to the undersigned United States Magistrate J udge by standing order for subm ission of proposed findings of fact and recom m endations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). The case is presently pending before the Court on the parties’ cross-m otions for judgm ent on the pleadings. (Docket Nos. 10 and 11). The undersigned United States Magistrate J udge has fully considered the evidence and the argum ents of counsel. For the reasons set forth below, the undersigned proposes and recom m ends that the United States District J udge find that 1 Dockets.Justia.com the decision of the Com m issioner is not supported by substantial evidence and should be rem anded for further proceedings pursuant to sentence four of 42 U.S.C. § 40 5(g). I. Pro ce d u ral H is to ry Plaintiff, Kenneth Wayne Adkins (hereinafter “Claim ant”), has applied for social security benefits five tim es, including the instant m atter. According to a prior adm inistrative decision, he filed concurrent DIB and SSI applications on March 26, 1992, and again on Septem ber 29, 1998, all of which were denied at the initial level and not pursued further. (Tr. at 35). He later applied for DIB and SSI on Novem ber 13, 20 0 1, alleging disability beginning on J uly 31, 20 0 1;1 these applications were denied on Decem ber 26, 20 0 2, after an adm inistrative hearing. Id. Claim ant next filed DIB and SSI applications on J anuary 31, 20 0 3, alleging a disability onset date of Decem ber 27, 20 0 2, which were denied by decision dated April 30 , 20 0 4.2 (Tr. at 35-43). On May 17, 20 0 4, Claim ant filed his present applications for DIB and SSI, alleging that he becam e unable to work on J uly 31, 20 0 1 due to conditions involving his “legs, back, arm s/ hands…nerves” and the fact that he was a “slow learner.”3 (Tr. at 6870 , 386-387, and 76). These applications were denied initially (Tr. at 46-50 and 395397) and upon reconsideration. (Tr. at 53-55 and 399-40 1). Claim ant then filed a tim ely request for a hearing before an Adm inistrative Law J udge. (Tr. at 56). A hearing was held on Novem ber 10 , 20 0 5 before the Honorable Algernon W. Tinsley (hereinafter the The decision states an onset date of J uly 31, 20 0 2 on the first page and J uly 31, 20 0 1 on the second page. (Tr. at 35-36). Clearly, the 20 0 1 date is the accurate one. 1 Claim ant initially alleged a disability onset date of J uly 31, 20 0 2, but m odified that date in view of the prior adjudication of no disability through Decem ber 26, 20 0 2. 2 3 This date was also am ended to an onset date of May 1, 20 0 4 to account for the April 30 , 20 0 4 decision of no disability. 2 “ALJ ”). (Tr. at 40 2-467). The ALJ issued a partially favorable decision on Decem ber 28, 20 0 6, finding that the Claim ant had been under a disability between May 1, 20 0 4 and October 18, 20 0 5. (Tr. at 10 -23). The ALJ further found that the Claim ant had im proved m edically beginning on October 18, 20 0 5 and was no longer disabled as of that date. Id. The ALJ ’s decision becam e the final decision of the Com m issioner on August 7, 20 0 9 when the Appeals Council denied Claim ant’s request for review. (Tr. at 5-7). The Appeals Council did, however, incorporate additional evidence that it had received into the record. (Tr. at 8). On October 10 , 20 0 9, Claim ant brought the present civil action seeking judicial review of the adm inistrative decision pursuant to 42 U.S.C. § 40 5(g). (Docket No. 2). The Com m issioner filed his Answer on Decem ber 21, 20 0 9. (Docket No. 7). The parties filed their briefs in support of judgm ent on the pleadings on J uly 12, 20 10 and August 11, 20 10 . (Docket Nos. 10 and 11). II. Su m m ary o f Fin d in gs by th e ALJ Under 42 U.S.C. § 423(d) (5) and § 1382c(a)(3)(H)(i), a claim ant for disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any m edically determ inable im pairm ent which can be expected to last for a continuous period of not less than 12 m onths” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations establish a “sequential evaluation” for the adjudication of disability claim s. 20 C.F.R. § 416.920 (20 0 8). If an individual is found “not disabled” at any step, further inquiry is unnecessary. § Id. 416.920 (a). 3 The first inquiry under the sequence is whether a claimant is currently engaged in substantial gainful em ploym ent. Id. § 416.920 (b). If the claimant is not engaged in substantial gainful employm ent, the second inquiry is whether claim ant suffers from a severe im pairm ent. Id. § 416.920 (c). If a severe im pairm ent is present, the third inquiry is whether such im pairm ent m eets or equals any of the im pairm ents listed in Appendix 1 to Subpart P of the Adm inistrative Regulations No. 4. Id. § 416.920 (d). If it does, the claim ant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is whether the claim ant's im pairm ents prevent the perform ance of past relevant work. Id. § 416.920 (e). By satisfying inquiry four, the claim ant establishes a prim a facie case of disability. Hall v. Harris, 658 F.2d 260 , 264 (4th Cir. 1981). The burden then shifts to the Com m issioner, McLain v. Schw eiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the claim ant is able to perform other form s of substantial gainful activity, considering claim ant's rem aining physical and m ental capacities and claimant's age, education and prior work experience. 20 C.F.R. § 416.920 (f). The Com m issioner m ust show two things: (1) that the claim ant, considering claim ant’s age, education, work experience, skills and physical shortcom ings, has the capacity to perform an alternative job, and (2) that this specific job exists in the national econom y. McLam ore v. W einberger, 538 F.2d 572, 574 (4th Cir. 1976). When a claim ant alleges a m ental im pairm ent, the Social Security Adm inistration (“SSA”) “m ust follow a special technique at every level in the adm inistrative review.” 20 C.F.R. § 40 4.1520 a. First, the SSA evaluates the claim ant’s pertinent signs, sym ptom s, and laboratory results to determ ine whether the claim ant has a m edically determ inable 4 m ental im pairm ent. If such im pairm ent exists, the SSA docum ents its findings. Second, the SSA rates and docum ents the degree of functional lim itation resulting from the im pairm ent according to criteria specified in 20 C.F.R. § 40 4.1520 a(c). That section provides as follows: (c) Rating the degree of functional lim itation. (1) Assessm ent of functional lim itations is a com plex and highly individualized process that requires us to consider m ultiple issues and all relevant evidence to obtain a longitudinal picture of your overall degree of functional lim itation. We will consider all relevant and available clinical signs and laboratory findings, the effects of your sym ptom s, and how your functioning m ay be affected by factors including, but not lim ited to, chronic mental disorders, structured settings, m edication, and other treatm ent. (2) We will rate the degree of your functional lim itation based on the extent to which your im pairm ent(s) interferes with your ability to function independently, appropriately, effectively, and on a sustained basis. Thus, we will consider such factors as the quality and level of your overall functional perform ance, any episodic lim itations, the am ount of supervision or assistance you require, and the settings in which you are able to function. See 12.0 0 C through 12.0 0 H of the Listing of Im pairm ents in appendix 1 to this subpart for m ore inform ation about the factors we consider when we rate the degree of your functional lim itation. (3) We have identified four broad functional areas in which we will rate the degree of your functional lim itation: Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decom pensation. See 12.0 0 C of the Listing of Im pairm ents. (4) When we rate the degree of lim itation in the first three functional areas (activities of daily living; social functioning; and concentration, persistence, or pace), we will use the following five-point scale: None, m ild, m oderate, m arked, and extrem e. When we rate the degree of lim itation in the fourth functional area (episodes of decom pensation), we will use the following four-point scale: None, one or two, three, four or m ore. The last point on each scale represents a degree of lim itation that is incom patible with the ability to do any gainful activity. 5 Third, after rating the degree of functional lim itation from the claim ant’s im pairm ent(s), the SSA determ ines the severity of the lim itation. A rating of “none” or “m ild” in the first three functional areas (activities of daily living, social functioning, and concentration, persistence or pace) and “none” in the fourth (episodes of decom pensation) will result in a finding that the im pairm ent is not severe unless the evidence indicates that there is m ore than m inim al lim itation in the claim ant’s ability to do basic work activities. 20 C.F.R. § 40 4.1520 a(d)(1). Fourth, if the claim ant’s im pairm ent is deem ed severe, the SSA com pares the supportive m edical findings, along with the im pairm ent’s rating, degree, and attendant functional lim itations, to the criteria of the m ost sim ilar listed m ental disorder to determ ine if the severe im pairm ent m eets or equals the listed m ental disorder. 20 C.F.R. § 40 4.1520 a(d)(2). Finally, if the SSA finds that the claim ant has a severe m ental im pairm ent, which neither m eets nor equals a listed m ental disorder, the SSA assesses the claim ant’s residual functional capacity (RFC). 20 C.F.R. § 40 4.1520 a(d)(3). The Regulation further specifies how the findings and conclusion reached in applying the technique m ust be docum ented at the ALJ and Appeals Council levels as follows: At the administrative law judge hearing and the Appeals Council levels, the written decision issued by the adm inistrative law judge and the Appeals Council m ust incorporate the pertinent findings and conclusion based on the technique. The decision m ust show the significant history, including exam ination and laboratory findings, and the functional lim itations that were considered in reaching a conclusion about the severity of the m ental im pairm ent(s). The decision m ust include a specific finding as to the degree of lim itation in each functional areas described in paragraph (c) of this section. 20 C.F.R. § 40 4.1520 a(e)(2). 6 In this particular case, the ALJ found that the April 20 0 4 decision on Claim ant’s preceding applications was final and binding. (Tr. at 13). Therefore, the ALJ adjusted the date of Claim ant’s alleged onset to May 1, 20 0 4, one day following the prior unfavorable decision, to avoid re-adjudicating the period covered by the form er ruling. Id. At the first step of the analysis, the ALJ determ ined that Claim ant m et the insured status requirem ents as of May 1, 20 0 4 and had not engaged in substantial gainful activity since that date. (Tr. at 17, Finding Nos. 1 and 2). Under the second inquiry, the ALJ found that Claim ant suffered from severe im pairm ents of back, leg, arm , and hand pain. (Id. at Finding No. 3). At the third inquiry, the ALJ concluded that Claim ant did not have an im pairment or combination of im pairm ents that m et or m edically equaled an im pairm ent listed in 20 C.F.R. Part 40 4, Subpart P, Appendix 1. (Id. at Finding No. 4). The ALJ then found that Claim ant had the residual functional capacity (hereinafter “RFC”) to “lift/ carry 50 pounds occasionally and 25 pounds frequently and inability to perform gross or fine m anipulation.” (Tr. at 17, Finding No. 5). As a result, Claim ant could not return to his past relevant work as a sem i-tractor trailer driver, defined as a m edium , sem i-skilled position; a pizza driver, defined as a light, unskilled position; an industrial cleaner, defined as a m edium , unskilled position; and a window fram e m achine trim m er/ wrap m achine operator, defined as light, unskilled work. (Tr. at 18, Finding No. 6). The ALJ considered that Claim ant was defined as a younger individual aged 1844, that he had a lim ited education, that he could com m unicate in English, and that his acquired job skills did not transfer to other occupations within the RFC assessed for the 7 period of May 1, 20 0 4 through October 17, 20 0 5. (Id., Finding Nos. 7-9). On this basis, there were no jobs that existed in significant num bers in the national econom y that Claim ant could have perform ed for that period and Claim ant was disabled, as defined by the Social Security Act, from May 1, 20 0 4 through October 18, 20 0 5. (Tr. at 18-19, Finding Nos. 10 and 11). However, the ALJ found that Claim ant’s m edical condition im proved and that beginning October 18, 20 0 5, he did not have an im pairm ent or combination of im pairm ents that equaled an impairm ent listed in Appendix 1. (Tr. at 19, Finding Nos. 12 and 13). The ALJ based this conclusion upon treatm ent notes from October 20 0 5 that suggested that Claim ant’s bilateral carpal tunnel syndrom e and overall pain sym ptom s had im proved. (Tr. at 19). Consequently, the ALJ found that beginning on October 18, 20 0 5, Claim ant had the RFC to “lift/ carry 50 pounds occasionally and 25 pounds frequently.” (Tr. at 20 , Finding No. 14). The ALJ stated that Claim ant’s m edical im provem ent related to his ability to work and, although he could not perform his past relevant work as of October 18, 20 0 5, transferability of job skills was not m aterial to the determ ination of disability because the Medical-Vocational Rules supported a finding of “not disabled.” Relying upon the testim ony of the vocational expert, the ALJ determ ined that Claim ant could perform jobs such as bench worker, assem bler, hand packager, product inspector, kitchen helper, and laundry worker, all of which existed in significant num bers in the national econom y. (Tr. at 21-22, Finding Nos. 15-18). As such, the Claim ant’s disability ended on October 18, 20 0 5. (Tr. at 22, Finding No. 19). 8 III. Sco p e o f Re vie w The issue before the Court is whether the final decision of the Com m issioner is based upon an appropriate application of the law and is supported by substantial evidence. In Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1972) the Fourth Circuit Court of Appeals defined substantial evidence as the following: Evidence which a reasoning m ind would accept as sufficient to support a particular conclusion. It consists of m ore than a m ere scintilla of evidence but m ay be som ewhat less than preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” Blalock v. Richardson, supra at 776, quoting Law s v. Celebrezze, 368 F.2d 640 , 642 (4th Cir. 1966). Additionally, the Com m issioner, not the court, is charged with resolving conflicts in the evidence. Hay s v. Sullivan, 90 7 F.2d 1453, 1456 (4th Cir. 1990 ). The Court will not re-weigh conflicting evidence, m ake credibility determ inations, or substitute its judgm ent for that of the Com m issioner. Id. However, the Court m ust not abdicate its “traditional function” or “escape [its] duty to scrutinize the record as a whole to determ ine whether the conclusions reached are rational.” Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). The ultim ate question for the Court is whether the decision of the Com m issioner is well-grounded, bearing in m ind that “[w]here conflicting evidence allows reasonable m inds to differ as to whether a claim ant is disabled, the responsibility for that decision falls on the [Com m issioner].” W alker v. Bow en, 834 F.2d 635, 640 (7th Cir. 1987). The Court decides “not whether the claim ant is disabled, but whether the ALJ ’s finding of no disability is supported by substantial evidence.” Johnson v. Barnhart, 434 F. 3d 650 ,653 (4 th Cir. 20 0 5), citing Craig v. Chater, 76 F.3d585, 589 (4 th 9 Cir. 20 0 1). Even given the lim ited scope of review, a careful exam ination of the record reveals that the ALJ failed to properly consider Claim ant’s m ental im pairm ents and, therefore, the Com m issioner’s decision is not supported by substantial evidence. IV. Claim an t’s Backgro u n d Claim ant was 27 years old at the tim e of the adm inistrative hearing. (Tr. at 40 7). He “started,” but did not com plete, the ninth grade. (Tr. at 40 7-40 8). He was placed in special education classes beginning in the third grade and repeated the third and sixth grades. (Tr. at 40 8). His past relevant em ploym ent included driving a sem i-tractor trailer, delivering pizzas, cleaning septic tanks, and operating a window fram e trim m ing m achine and a wrapping m achine. (Tr. at 463). V. Th e Me d ical Re co rd The Transcript of Proceedings has been reviewed in its entirety. (Docket No. 8). However, because the undersigned finds that the Com m issioner’s decision is not supported by substantial evidence in regard to Claimant’s alleged m ental im pairm ents, the discussion of the m edical evidence will be confined to the records which are germ ane to Claim ant’s m ental health and intellectual capabilities. On that note, the record contains num erous evaluations com pleted by exam ining and non-exam ining agency sources, as well as treatm ent records and evaluations com pleted by Claim ant’s psychiatric providers. This evidence is discussed in turn below. A. Evalu a tio n s by Age n cy So u rce s On August 10 , 20 0 4, the Departm ent of Disability Services (hereinafter “DDS”) retained licensed psychologist, Robert G. Martin, M.A., to perform a m ental status exam ination, intelligence testing, and psychological evaluation of Claim ant. (Tr. at 16410 171). Mr. Martin noted that the quality of inform ation that Claim ant provided during the interview was “questionable,” although he confirm ed that Claim ant was “cooperative” and “answered all questions posed to him .” (Tr. at 164, 167). When providing history, Claim ant described a dysfunctional childhood with episodes of abuse. (Tr. at 165). He denied any psychiatric hospitalizations, psychotropic m edications, outpatient counseling, or episodes of substance abuse. (Tr. at 166). As far as his educational history, Claim ant told Mr. Martin that he had com pleted the eighth grade, but had never obtained a GED, because he “took the test four tim es and failed each tim e.” (Tr. at 166). Mr. Martin adm inistered the Weshler Adult Intelligence Scale-III, and Claim ant received a verbal IQ score of 71, a perform ance IQ score of 75, and a full scale IQ score of 70 . Mr. Martin considered these scores to be valid and noted that they fell within the borderline range of intellectual functioning. (Tr. at 170 ). He further found that Claim ant read at a fourth grade level, spelled at a second grade level, and perform ed arithm etic at a third grade level. Id. Mr. Martin noted the following: D IAGN OSTIC IMPRESSION S AXIS I: AXIS II: AXIS III: 30 0 .0 0 Anxiety Disorder NOS V62.89 Borderline Intellectual Functioning Frequent dizziness, leg, back, arm , and hand pain, and arthritis per claim ant report. ASSESSMEN T: The diagnosis of Anxiety Disorder NOS is based on claim ant’s report of frequent worry, difficulty controlling worry, difficulty falling asleep, and irritability and m ay be related to the large am ount of caffeine he consum es on a daily basis. The diagnosis of Borderline Intellectual Functioning is based on a valid full scale IQ score of 70 . Based on m ental status data, im m ediate m em ory is within norm al lim its, recent m em ory is severely deficient, and rem ote m em ory is m ildly deficient. Attention and concentration are moderately deficient based on perform ance on the Digital Span subtest. Task persistence and pace are within norm al lim its 11 based on perform ance during psychological testing. Social functioning is m ildly deficient based on observed behavior during the interview. Id. On October 4, 20 0 4, DDS psychologist, Frank Rom an, Ed.D., com pleted a Psychiatric Review Technique form . (Tr. at 175-188). Dr. Rom an found that a RFC assessm ent was necessary and diagnosed Claim ant with a 12.0 2 Organic Mental Disorder of borderline intellectual functioning and a 12.0 6 Anxiety Disorder. (Tr. at 176 and 180 ). Dr. Rom an did not note any pertinent sym ptom s, signs, or laboratory findings that substantiated the presence of the im pairm ents. Id. However, he noted the evidence which he considered. (Tr. at 187). On a scale of “none,” “m ild,” “m oderate,” “m arked,” and “extrem e,” Dr. Rom an found that Claim ant had a “m ild” restriction of activities of daily living and difficulties in m aintaining social functioning; a “m oderate” difficulty in m aintaining concentration, persistence, or pace; and no episodes of decom pensation of extended duration. (Tr. at 185). Dr. Rom an docum ented that records from the Board of Education verified that Claim ant had been in special education classes at school and that his IQ was in the “80 ’s in 1994.”4 (Tr. at 188). On the sam e date, Dr. Rom an com pleted a m ental RFC assessm ent. (Tr. at 189192). On a scale of “not significantly lim ited,” “m oderately lim ited,” “m arkedly lim ited,” “no evidence of lim itation,” and “not ratable on available evidence,” he found that Claim ant was “not significantly lim ited” in fourteen of the areas listed, “m oderately” lim ited in five areas, and that there was “no evidence of lim itation” in one area. (Tr. at Presum ably Dr. Rom an found Claim ant’s borderline intelligence, as reflected in the 20 0 4 IQ testing, to establish a 12.0 2 im pairm ent rather than a 12.0 5 im pairm ent largely based upon the school board records. Unfortunately, those records were not m ade a part of the transcript. 4 12 189-190 ). Dr. Rom an noted that Claim ant’s lim itations did not m eet or equal a m ental im pairm ent listing and that he was able to perform activities of daily living and follow routine repetitive work activities in a low stress setting. (Tr. at 191). On February 7, 20 0 5, DDS reviewer, J oseph Kuzniar, Ed.D., com pleted a Psychiatric Review Technique form . (Tr. at 276-289). Dr. Kuzniar found that a RFC assessm ent was necessary and diagnosed Claim ant with a 12.0 2 Organic Mental Disorder, a 12.0 4 Affective Disorder, and a 12.0 6 Anxiety-related Disorder. (Tr. at 276). However, Dr. Kuzniar did not respond to the sections related to either of the first two diagnoses and only responded to the section related to the Affective Disorder. (Tr. at 277, 279, and 281). He also did not respond to the section where he was asked to rate Claim ant’s functional lim itations. (Tr. at 286). As far as the Claim ant’s intelligence level, Dr. Kuzniar noted that IQ scores in 1994 reflected a verbal IQ of 82; a perform ance IQ of 84; and a full scale IQ of 81. (Tr. at 288). Dr. Kuzniar also referenced IQ scores taken in 20 0 3 that reflected a verbal IQ of 73; a perform ance IQ of 89; and a full scale IQ of 81. He com m ented that these scores were “given m ore weight” than the 20 0 4 IQ scores, although he does not specify the reason for that decision. (Tr. at 288). Because the actual 1994 and 20 0 3 test results are not contained in the transcript, the record before the Court is unclear as to whether these scores were considered valid and consistent with the developm ental history and degree of functional lim itation present at those tim es. On the sam e date, Dr. Kuzniar com pleted a m ental RFC assessm ent. (Tr. at 290 293). He rated Claim ant “not significantly lim ited” in nine areas, “m oderately lim ited” in four areas, and noted that there was “no evidence of lim itation” in seven areas. (Tr. at 13 290 -291). He added that Claim ant could understand, rem em ber, and carry out “1-3 step instructions within a low social interaction dem and work setting.” (Tr. at 292). B. Tre atin g Me n tal H e alth Care So u rce s The records docum ent Claim ant’s treatm ent at Prestera Center for Mental Health Services (“Prestera”) from October 5, 20 0 4 through October 24, 20 0 5. (Tr. at 252-275, 294-30 0 , and 338-345). On October 5, 20 0 4, as part of his intake assessm ent, J am es Mitchell, a case manager at Prestera, com pleted a twelve page “West Virginia Assessm ent: Version 6 Care Connection Form ” regarding Claim ant. (Tr. at 257-269). Mr. Mitchell noted that Claim ant had severe depression and anxiety; a history of poor anger control; severe withdrawal; and poor concentration. Id. He further docum ented m oderate dysfunction in self care and com m unity living; m arked dysfunction in social, interpersonal and fam ily activity; m arked dysfunction in concentration and task perform ance; and m ild dysfunction in m aladaptive, dangerous or im pulsive behaviors. Id. Thereafter, Claim ant began outpatient counseling and treatm ent with psychotropic m edications. (Tr. at 252-275, 294-30 0 , and 338-345). On February 11, 20 0 5, Claim ant was evaluated at Prestera by clinical psychologist Paul A. Mulder, Ph.D., and supervised psychologist Katie Dawson, M.A., who together perform ed a clinical interview, m ental status exam ination, Beck Depression Inventory, and Weschler Adult Intelligence Scale (Tr. at 294-30 0 ). In his interview, Claim ant reiterated that he dropped out of school in the ninth grade at age 18. He stated, “I just got tired and fed up, they were gonna hold m e back in the 9 th grade so I quit.” (Tr. at 296). He told the exam iners that he had been held back in 3 rd and 6 th grades, receiving m ainly D’s and F’s, and had been in “learning disabled” classes since 3 rd grade. Id. The 14 Beck Depression Inventory revealed that Claim ant suffered from m oderate to severe depression. On the Weschler test, he received a full scale IQ score of 77, a perform ance IQ score of 84 and a verbal IQ score of 74. He appeared to be functioning in the borderline range of intelligence. (Tr. at 299). Based on their evaluation, Dr. Mulder and Ms. Dawson concluded the following: D IAGN OSIS: AXIS I: 296.32 Major Depressive Disorder, Recurrent, Moderate. AXIS II: V62.89 Borderline Intellectual Functioning AXIS III: Chronic pain per client report. (Tr. at 30 0 ). The last treatm ent note from Prestera that is included in the record indicates that Claim ant’s depression was successfully controlled by m edication, but that he experienced difficulty falling asleep. (Tr. at 338). Prestera advised him to continue taking Paxil as directed, to ask for an increase in Neurontin, and to return for follow-up treatm ent in “2 ½ m onths.” Id. VI. Claim an t’s Ch alle n ge s to th e Co m m is s io n e r’s D e cis io n Claim ant asserts that the final decision of the Com m issioner is not supported by substantial evidence because the ALJ did not (1) address Claim ant’s psychological im pairm ents or (2) consider the totality of the evidence when finding that Claim ant’s condition im proved to the point that he could return to substantial gainful em ploym ent on October 18, 20 0 5. (Pl.'s Br. at 10 -11). The Com m issioner asserts that (1) it was Claim ant’s burden to prove that he was entitled to benefits and (2) the ALJ ’s finding that Claim ant had m edically im proved to 15 the point that he could perform m edium work is well supported by the evidence. (Def.'s Br. at 6-9). Regarding Claim ant’s alleged m ental im pairm ents, the Com m issioner argues that Claim ant failed to prove that the error was harm ful and that none of the m edical source opinions dem onstrate work-preclusive m ental lim itations. (Def.'s Br. at 7, Fn. 3). VII. D is cu s s io n When a claim ant alleges a m ental im pairm ent, the Social Security Adm inistration “m ust follow a special technique at every level in the adm inistrative review process.” 20 C.F.R. §§ 40 4.1520 a(a) and 416.920 a(a); see Brooks v. Astrue, 20 0 9 WL 899440 , *2 (S.D.W.Va.,20 0 9); see also W iley v. Astrue, 20 0 8 WL 4446679, *5 (S.D.W.Va. 20 0 8). This technique is expressly designed to (1) identify the need for additional evidence to determ ine im pairm ent severity; (2) consider and evaluate functional consequences of the m ental disorder relevant to the Claim ant’s ability to work; and (3) organize and present the findings in a clear and concise manner. 20 C.F.R. § 40 4.1520 a(a). Integral to com pletion of the special technique is proper docum entation of the process. 20 C.F.R. § 40 4-1520 a(e). At the hearing level, the ALJ “m ust first evaluate [the claim ant’s] pertinent sym ptom s, signs and laboratory findings” to ascertain whether the claimant has a m edically determ inable m ental im pairm ent. 20 C.F.R. 40 4.1520 a(b)(1). If a m edically determ inable m ental im pairm ent exists, then at step two, the ALJ m ust rate the degree of functional lim itation resulting from the im pairm ent. 20 C.F.R. 40 4.1520 a(b)(2). To accom plish this, the ALJ m ust analyze the degree of lim itation observed in each of four broad functional categories. Id. The ALJ m ust then docum ent his findings and conclusions. 20 C.F.R. 40 4.1520 a(e) requires the ALJ to prepare a decision that: 16 . . .incorporates the pertinent findings and conclusions based on the technique. The decision m ust show the significant history, including exam ination and laboratory findings, and the functional lim itations that were considered in reaching a conclusion about the severity of the m ental im pairm ent(s). Th e d e cis io n m u s t in clu d e a s p e cific fin d in g as to th e d e gre e o f lim itatio n in e ach o f th e fu n ctio n al are as d e s cribe d in p aragrap h ( c) o f th is s e ctio n .” (em phasis added). Continuing the sequential evaluation, using the special technique, at step three of the process, the ALJ is required to determ ine the severity of the m ental im pairm ent based upon the extent of the functional lim itations. Here, Claim ant alleged m ental im pairm ents, including depression, anxiety and borderline intellectual functioning. When he applied for benefits, he asserted that he was unable to work, in part, due to the fact that he was a “slow learner” and because of his “nerves.” (Tr. at 76). In addition, during the adm inistrative hearing, the ALJ questioned Claim ant about his treatm ent at Prestera. (Tr. at 411). Claim ant responded that he was being treated for anxiety and depression and that he attem pted to decrease his visits to once per m onth, but Prestera advised him to resum e treatm ent at a frequency of two to three tim es per m onth. Id. Claim ant also discussed that as a result of taking Neurontin, a m edication that he was prescribed to help him sleep, he felt sedated and was even less able to concentrate. (Tr. at 413). Claim ant stated that he did not com plete the ninth grade, that he could only “som ewhat” read and write, that he could not perform arithm etic, and that he never received a “GED.” (Tr. at 424-425). Moreover, the objective m edical evidence substantiated the existence of these claim ed m ental im pairm ents. On August 10 , 20 0 4, a licensed psychologist stated that Claim ant’s full scale IQ was 70 and that this score was valid. (Tr. at 170 ). He diagnosed Claim ant with an organic m ental disorder of borderline intellectual functioning and 17 anxiety disorder. Id. On October 4, 20 0 4, another psychologist perform ed a Psychiatric Review Technique and corroborated diagnoses of borderline intellectual functioning and anxiety disorder. (Tr. at 176 and 180 ). On February 7, 20 0 5 a third psychiatric source com pleted a Psychiatric Review Technique, corroborating the diagnoses of an organic m ental disorder and anxiety-related disorder and adding a diagnosis of affective disorder. (Tr. at 276). On October 5, 20 0 5, a case m anager at Prestera found Claim ant to have Major Depressive Disorder, Recurrent and Moderate, with resulting m oderate to m arked dysfunction in several functional categories. (Tr. at 257-269). Finally, on February 11, 20 0 5, a clinical psychologist at Prestera found Claim ant to have a full scale IQ score of 77 on the Weschler scale, with diagnoses of Major Depressive Disorder and borderline intellectual functioning by. (Tr. at 299-30 0 ). Unquestionably, the record validates the existence of m edically determ inable m ental im pairm ents of borderline intellectual functioning, depression, and anxiety. Accordingly, the ALJ should have evaluated Claim ant’s m ental im pairm ents using the special technique outlined in 20 C.F.R. § 40 4.1520 a. However, as reflected in his opinion, he neither explicitly, nor im plicitly, invoked the special technique. At the first step of the evaluation, the ALJ should have reviewed and docum ented the pertinent sym ptom s, signs, and laboratory findings outlined above, which supported the existence of m edically determ inable m ental im pairm ents. 20 C.F.R. § 40 4.1520 a. Both the agency sources and Claim ant’s treating m ental health specialists supplied m ore than adequate inform ation that Claim ant suffered from mental im pairm ents. Yet, despite these opinions and their supporting docum entation, the ALJ ’s decision 18 inexplicably disregarded them . (Tr. at 17-21). He m ade no m ention of the existence of m edically determ inable m ental im pairm ents. The ALJ sim ilarly failed to acknowledge, assess, and docum ent the lim itations resulting from Claim ant’s m ental im pairm ents at step two of the evaluation. Id. The ALJ dispensed with his m andate to rate the degree of functional lim itation in each of the four broad categories described in 20 C.F.R. § 40 4.1520 a(c). His decision is devoid of any m ention of this task, which, in itself, is a violation of the regulations. 20 C.F. R. § 40 4.1520 a(e). Having failed to fully evaluate and clearly docum ent the functional lim itations, if any, that flowed from Claim ant’s m ental im pairm ents, the ALJ was hard-pressed to accurately rate the degree of severity of the im pairm ents, as required at step three of the special technique. In fact, the ALJ avoided this dilem m a by sim ply overlooking the need to assign a severity rating to Claim ant’s m ental im pairm ents. He did not refute their existence, downplay their intensity, or argue their m inim al im pact on Claim ant’s allegations of disability. He sim ply m ade no m ention of them , at all, in his discussion of Claim ant’s im pairm ents. (Tr. at 17). This defect of process irreversibly tainted the rem ainder of the ALJ ’s sequential evaluation, including his determ ination as to whether Claim ant’s im pairm ents, separately or in com bination, met or equaled a listed im pairm ent. The ALJ , without providing any rationale, again overlooked Claim ant’s m ental im pairm ents in this analysis, as though he was unaware of the record before him . He did not discount the opinions and evidence, he just ignored them . For exam ple, the ALJ did not address Claim ant’s August 10 , 20 0 4 full scale IQ score of 70 . This score, in com bination with the 19 ALJ ’s finding that Claim ant suffered from severe physical im pairm ents of “back, leg, arm and hand pain” arguably could m eet Listing 12.0 5C, which is satisfied by “[a] valid verbal, perform ance, or full scale IQ of 60 through 70 and a physical or other m ental im pairm ent im posing an additional and significant work-related lim itation of function.” 20 CFR Part 40 4, Subpart P, Appendix 1. The ALJ provided no insight in his decision as to how, or if, he considered the com bined effect of Claim ant’s severe m usculoskeletal im pairm ents with his depression, anxiety, and borderline intelligence. (Tr. at 17, 19). Instead, the ALJ only addressed Claim ant’s m usculoskeletal im pairm ents. (Tr. at 19). “When faced with a com bination of m ultiple physical and m ental im pairm ents, the Com m issioner should ‘consider the com bined effect of all. . .im pairm ents without regard to whether any such im pairm ent, if considered separately, would be of sufficient severity.’ 20 C.F.R. § 40 4.1523.” Alderm an v. Chater, 40 F.Supp.2d 367 (N.D.W.Va. 1998). “It is axiom atic that disability m ay result from a num ber of im pairments which, taken separately, m ight not be disabling, but whose total effect, taken together, is to render claim ant unable to engage in substantial gainful activity.” W alker v. Bow en, 889 F.2d 47, 50 (4 th Cir. 1989). Contrary to this principle, the ALJ lim ited his evaluation to Claim ant’s physical capabilities, failing to consider the im pact of the docum ented m ental im pairm ents on Claim ant’s overall ability to perform basic work activities. The ALJ first m entioned Claim ant’s m ental im pairm ents late in his decision. After the ALJ had concluded that Claim ant was physically im proved beginning on October 18, 20 0 5, he assessed Claim ant’s RFC for the second time. At this point, the ALJ discussed the Claim ant’s m ental im pairm ents; prim arily, in relation to Claim ant’s credibility. The ALJ stated the following: 20 The claim ant testified to having problem s with anxiety and depression. He stated that he has been going to Prestera for treatm ent. However, he cannot rem em ber when he started receiving treatm ent. … The claimant testified that he com pleted the 8 th grade and attended learning disability classes. The claim ant reported that he can read and write “som ewhat” and cannot do m ath problem s. He subsequently worked as a pizza delivery person, construction worker, laborer, and tractor trailer driver. … The claim ant testified that he has problem s with anxiety and depression, and he receives treatm ent from Prestera. However, the evidence of record shows that claim ant only received treatm ent for m ental im pairm ents from October 20 0 4 through Decem ber 20 0 4. (Tr. at 20 ). Although the ALJ finally acknowledged the conditions, he still only considered them in relation to Claim ant’s com plaints of physical pain, stating, “Given all of the above, the undersigned concludes that the claim ant’s allegations of disabling pain are deem ed excessive, not fully credible and are treated accordingly.” (Tr. at 21). Furtherm ore, he incorrectly recited the facts of Claim ant’s treatm ent at Prestera in his decision and failed to m ention the reports provided by the agency sources. In truth, Claim ant had treated at Prestera for over a year, and his treatm ent had not been term inated as of the last visit record. The ALJ likewise excluded consideration of the m ental impairm ents in the hypothetical questions that he posed to the vocational expert. As a result, no expert testim ony was elicited as to whether the im pairm ents of depression, anxiety and borderline intelligence would elim inate all or som e of the available jobs identified by the vocational expert. The Com m issioner argues that these oversights by the ALJ constitute harm less error. (Def. Br. at 7). However, it is im possible to logically reach that conclusion. As a corollary to the application of the sequential evaluation process, the ALJ m ust 21 adequately explain his analysis and conclusions so that a reviewing Court can determ ine whether the decision is supported by substantial evidence. “[T]he [Com m issioner] is required by both the Social Security Act, 42 U.S.C. § 40 5(b), and the Adm inistrative Procedure Act, 5 U.S.C. § 557(c), to include in the text of [his] decision a statem ent of the reasons for that decision.” Cook v. Heckler, 783 F.2d 1168, 1172 (4 th Cir. 1986). The ALJ ’s “decisions should refer specifically to the evidence inform ing the ALJ ’s conclusion. This duty of explanation is always an im portant aspect of the adm inistrative charge.” Ham m ond v. Heckler, 765 F.2d 424, 426 (4 th Cir. 1985). Unquestionably, the ALJ failed to fulfill that charge in regard to Claim ant’s m ental im pairm ents. For the reasons stated above, the ALJ ’s failure to fully and fairly consider Claim ant’s m ental im pairm ents cannot be viewed as harm less error. Instead, it casts into doubt the existence of substantial evidence to support the ALJ ’s decision. Having carefully considered the decision of the ALJ and the evidence of record, the undersigned finds that the ALJ failed to employ the “special technique” required to evaluate the m ental im pairm ent alleged by Claim ant; therefore, the decision of the Com m issioner was not supported by substantial evidence. 20 C.F.R. §§40 4.1520 a; see also Hardy v. Astrue, 20 10 WL 3341584 (N.D.W.Va.). Accordingly, the undersigned respectfully proposes that the District Court FIN D (1) that the ALJ failed to com ply with 20 C.F.R. § 40 4.1520 a, and (2) that this failure m andates a further finding that the final decision of the Com m issioner was not supported by substantial evidence. Finally, the undersigned proposes that the Court FIN D that this m atter should be remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 40 5(g). 22 VIII. Re co m m e n d atio n s fo r D is p o s itio n Based on the foregoing, the undersigned Magistrate J udge respectfully PROPOSES that the District Court confirm and accept the findings herein and RECOMMEN D S that the District Court GRAN T plaintiff’s Motion for J udgm ent on the Pleadings (Docket No. 10 ), D EN Y defendant’s Motion for J udgment on the Pleadings (Docket No. 11), REVERSE the final decision of the Com m issioner, REMAN D this m atter pursuant to sentence four of 42 U.S.C. § 40 5(g) for further adm inistrative proceedings, and D ISMISS this action from the docket of the Court. The parties are notified that this “Proposed Findings and Recom m endations” is hereby FILED , and a copy will be subm itted to the Honorable Robert C. Cham bers, United States District J udge. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Rules 6(d) and 72(b), Federal Rules of Civil Procedure, Plaintiff shall have fourteen days (filing of objections) and three days (m ailing) from the date of filing this “Proposed Findings and Recom m endations” within which to file with the Clerk of this Court, specific written objections, identifying the portions of the “Proposed Findings and Recom m endations” to which objection is m ade, and the basis of such objection. Extension of this tim e period m ay be granted by the presiding District J udge for good cause shown. Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Sny der v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thom as v. Arn, 474 U.S. 140 (1985); W right v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 23 727 F.2d 91 (4th Cir. 1984). Copies of such objections shall be provided to the opposing parties, J udge Cham bers and Magistrate J udge Eifert. The Clerk is directed to file this “Proposed Findings and Recom m endations” and to provide a copy of the sam e to counsel of record. FILED : Decem ber 3, 20 10 . 24
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