Morales v. Apfel, 98-5022

• Decision Date: 25 April 2000
• Docket Number: No. 98-5022,No. 99-1938,98-5022,99-1938
• Citation: 225 F.3d 310,2000 WL 1196330
• Parties: (3rd Cir. 2000) WILLIAM MORALES, Appellant v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY (D.C. Civ.) Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 310

225 F.3d 310 (3rd Cir. 2000)

WILLIAM MORALES, Appellant v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY (D.C. Civ. No. 98-5022)

No. 99-1938

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: April 25, 2000

Filed August 22, 2000

On Appeal From the United States District Court For the Eastern District of Pennsylvania District Judge: Honorable Anita B. Brody

Counsel for Appellant: ERIC J. FISCHER, ESQUIRE (ARGUED) Breyer Office Park, Suite 110 8380 Old York Road Elkins Park, PA 19027

Counsel for Appellee: John M. Sacchetti Regional Chief Counsel Patricia M. Smith Deputy Chief Counsel Nicholas R. Cerulli (ARGUED) Kelly C. Connelly David M. Frazier Assistant Regional Counsel Office of the General Counsel Region III Social Security Administration P.O. Box 41777 Philadelphia, PA 19101, Michael R. Stiles United States Attorney John Pease Assistant United States Attorney Eastern District of Pennsylvania 615 Chestnut Street Suite 1250 Philadelphia, Pennsylvania 19106-4476

Before: BECKER, Chief Judge, WEIS, and OAKES,^* Circuit Judges.

OPINION FOR THE COURT

OAKES, Senior Circuit Judge.

William Morales appeals the decision of the United States District Court for the Eastern District of Pennsylvania (Brody, Judge) approving and adopting the Report and Recommendation of the United States Magistrate (Scuderi, M.J.) affirming the Commissioner of Social Security's conclusion that Morales is not entitled to Disability Insurance Benefits (DIB) or Supplemental Security Income (SSI) under Titles II and IV of the Social Security Act, 42 U.S.C. SS 401-433, 1381-1383f. Because the Commissioner's decision is not supported by substantial evidence, we reverse the district court.

BACKGROUND

I. Procedural History.

Morales filed applications for DIB and SSI on July 31, 1990, claiming disability starting August 15, 1989. His application was initially denied on September 12, 1990, and denied again on April 27, 1993, upon reconsideration by the agency responsible for disability determinations. More than two and a half years later, on May 12, 1993, the Appeals Council denied Morales's application. Thereafter, Morales, now represented by counsel, filed a request for an administrative hearing which took place approximately a year later on June 15, 1994. The Administrative Law Judge (ALJ) denied Morales's application based on Morales's work activity between May and September 1991 which the ALJ determined disqualified Morales from DIB entitlement. The Appeals Council denied Morales's request for review of the ALJ's decision. Morales filed a civil action in the United States District Court for the Eastern District of Pennsylvania. The Commissioner conceded the inadequacy of his prior administrative evaluation and on September 28, 1995, the district court remanded the case for further evaluation.

A supplemental administrative hearing was held on April 9, 1997. On May 13, 1997, a second ALJ denied Morales's application, finding that Morales was not disabled because he could perform his past relevant work at all times after his alleged disability onset date. The Appeals Council denied Morales's appeal. Morales filed a second civil action in the United States District Court for the Eastern District of Pennsylvania. A United States Magistrate Report and Recommendation issued on August 16, 1999, endorsing the Commissioner's denial of benefits, was adopted, without opinion, by the district court on September 23, 1999. This appeal followed.

II. Facts.

Morales was born on December 1, 1960, and his life has been marked by mental health problems and drug and alcohol abuse. At the age of eight, Morales began to abuse alcohol accompanied by marijuana, L.S.D., Valium, and other drugs. Morales testified at the hearing that he had completed a seventh-grade education, but had repeated the grade three times.¹ Morales last worked as a landscaper for four months in 1991, when he earned $3462. Morales's other past relevant work includes jobs as a laborer and a packing line worker.

On August 19, 1987, when Morales was twenty-six-years old, he was diagnosed with a Dependent Personality Disorder² and polysubstance dependence. Psychotherapy records completed by Morales's treating psychiatrist, Roger Erro, M.D., indicate that Morales is depressed, thinks often of killing himself, and gets violently angry.

There is evidence in the record of Morales's drug and alcohol dependence. On October 10, 1990, Morales received treatment for drug and alcohol abuse. At the administrative hearing, he testified that he drank a lot and once in a while used cocaine. His attorney conceded that Morales has a continuing major drug and alcohol problem.

Morales was incarcerated from 1989 to 1990 after a conviction for threatening a police officer. While in prison, he attempted suicide by cutting both his wrists. William Clovis, M.D., of Hahnemann University Correctional Mental Health Services Program consequently examined Morales and described him as depressed with suicidal plans, poor insight, and poor judgment. He diagnosed Morales with psychoneurotic depression, treated him with Xanax, Halcion, and later with Valium, and labeled his prognosis as fair.

After Morales applied for disability benefits, he was examined by a slew of psychologists and psychiatrists. He was first referred to Luis Bird, M.D., from the Pennsylvania Bureau of Disability Determination, who, after examining Morales filed a report on August 30, 1990. During the examination, Morales stated that since he had been out of jail, he could not sleep and had "crazy ideas about hurting himself." He also said that he had heard voices and had other hallucinations when he was in jail in January 1990. Dr. Bird noted Morales's mood was depressed and anxious. He also noted Morales had a difficult time with the cognitive part of the examination and that his general fund of knowledge was quite poor. He concluded that Morales has "an adjustment disorder with mixed emotional features" and an impaired ability to concentrate, perform activities within a schedule, make decisions, be aware of normal hazards, and function when under stress or change.

On April 13, 1993, Morales underwent a second psychiatric evaluation for the Pennsylvania Bureau of Disability Determination with Richard Jaffe, M.D. During this interview, Morales's sister acted as an interpreter. Dr. Jaffe's report indicates that Morales was treated weekly at a mental health center for the three years prior to the evaluation and took Xanax three times a day. Dr. Jaffe documented Morales's poor grooming and hygiene and reported that Morales's ability to get along with others appeared "markedly impaired." Relevant to Morales's ability to work, Dr. Jaffe opined that Morales appeared to be markedly irresponsible with a history of multiple firings due to poor performance on the job and poor interactions with others. He also reported that Morales's ability to attend to a task from beginning to end, to sustain a routine, to perform at a certain pace, to make decisions, to react to deadlines and schedules, and to maintain regular attendance is poor. Finally, he opined that Morales is likely to become physically abusive and threatening to others in conflict situations.

Dr. Jaffe also suggested that he suspected Morales was malingering³ during the examination. He reported that

[o]n attempting to test his sensorium, he was extremely uncooperative and appeared to be malingering on many responses. In comparing the current examination with that done by Dr. Bird, who was able to interview him in Spanish, it would appear that he was not making any efforts to answer questions correctly. He gave the incorrect day of the week and incorrectly said he was in Michigan, when asked where he was. He also reported being unable to remember his own birth date, which he was able to do with Dr. Bird before. He, likewise, was unable to recall three repeated items after several minutes, but the three answers he gave instead were similar to those asked. For example, he spontaneously remembered orange instead of red, and remembered chair instead of table. This suggested that he knew, in fact the correct responses and was deliberately giving incorrect answers.

Dr. Jaffe noted that evaluating Morales's cognitive ability was not possible "due to what appeared to be deliberate falsifying of responses on the part of the applicant." Despite notes that Morales was malingering, Dr. Jaffe diagnosed Morales with a personality disorder with both explosive and anti-social features. Dr. Jaffe's diagnosis is consistent with the Diagnostic and Statistical Manual of Mental Disorders which states that malingering is a symptom of Antisocial Personality Disorder. See Diagnostic and Statistical Manual of Mental Disorders, 646 (4th ed., Amer. Psych. Assn. 1994). He indicated that Morales's prognosis was "probably poor for any significant change over the next year, even with on-going counseling at the APM Mental Health Center."

Morales was next sent for cognitive testing to be evaluated by psychologist Marged Lindner, Ph. D., with his sister acting as interpreter. The resultant report filed on April 19, 1993, indicates that Morales's IQ score is 51 with a verbal score of 52 and a performance score of 55. These scores are in the range of mild mental retardation. See Diagnostic and Statistical Manual of Mental Disorders, 46 (4th ed., Amer. Psych. Assn. 1994). Dr. Lindner reported that Morales's "ability to perform work-related activities appears to be limited. He could understand, retain and follow certain kinds of instructions and perform simple repetitive tasks. His ability to relate to people is poor and his ability to tolerate pressure is poor." Like Dr. Jaffe, Dr. Lindner reported her doubt that Morales fully cooperated with the testing. However, she gave credit to her measure of Morales's IQ score.

Two reports assessing Morales's ability to perform work-related tasks are also in the...