Pinter v. Astrue

• Decision Date: 25 September 2012
• Docket Number: CAUSE NO. 3:11-CV-417-CWR-FKB
• Parties: PATRICIA PINTER PLAINTIFF v. MICHAEL J. ASTRUE, DEFENDANT Commissioner, United States Social Security Administration
• Court: U.S. District Court — Southern District of Mississippi

PATRICIA PINTER PLAINTIFF

v.MICHAEL J. ASTRUE, DEFENDANT Commissioner, United States Social Security Administration

CAUSE NO. 3:11-CV-417-CWR-FKB

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION

Dated: September 25, 2012

ORDER

Before the Court are the plaintiff's motion for summary judgment, Docket No. 11, the Social Security Administration's motion to affirm the Commissioner's decision, Docket No. 13, and the United States Magistrate Judge's Report and Recommendation, Docket No. 16. The Magistrate Judge recommends affirming the denial of disability benefits. Id. The plaintiff has objected, Docket No. 17, the government has responded, Docket No. 18, and the matter is ready for review.

The Court has reviewed the administrative record and compared it with the Social Security Administration's final decision denying disability benefits, which in turn is based upon the Administrative Law Judge's (ALJ) written decision denying benefits. This review reveals a serious disconnect between the record evidence and the government's determination.

For one, the ALJ's decision contains several pages of factual "findings" untethered to any evidence in this record. Reading the ALJ's decision, one is led to believe that claimant Patricia Pinter displays "excellent adaptive functioning" and has unremarkable abilities on dozens of indicators. These include basic abilities ranging from understanding public transportation and browsing the internet, to more advanced abilities like the capacity "to stand back and to observe and size up others by what they do and how they seem (body language, gestures, expressions, and the like) rather than simply by what they say and direct [sic]."

While Pinter may have some of these abilities, there is no basis for them in our record. These findings are simply not based on Patricia Pinter's case. As a result, conclusions derived from these findings are like the proverbial house built on a foundation of sand.

The Social Security Administration's procedural and evidentiary errors were not confined to one part of its decision. At step two, for example, the ALJ failed to evaluate whether Pinter hasborderline intellectual functioning (BIF), a diagnosis suggested by the government's own medical consultant. Later, the ALJ concluded that Pinter's depression had passed, when the evidence uniformly shows otherwise. As a result of just these two issues, the ALJ never considered the effect of the plaintiff's (possible) BIF or her (actual) depression on her ability to work successfully. There are other errors, as well, which will be discussed below.

The bottom line is that the ALJ's conclusions are unreliable because they are insufficiently grounded in evidence. Accordingly, the plaintiff's objection will be sustained and the case will be remanded to the Social Security Administration for a new hearing.

I. Procedural History

In 2008, Patricia Pinter filed an application for Social Security disability insurance benefits and supplemental security income. R. 11.¹ She claimed a disability onset date in 2006. Id. Her application was denied, after which a hearing was held by an ALJ in 2010. Id. The ALJ denied benefits in a written decision, id., and the Social Security Appeals Council affirmed, id. at 1. This suit followed.

In April 2012, after full briefing, the Magistrate Judge recommended affirming the Social Security Administration's decision. Docket No. 16. This Court's review commenced upon the filing of the plaintiff's objections and the government's response. Docket Nos. 17-18.

II. Standard of Review

"On judicial review, the ALJ's determination that a claimant is not disabled will be upheld, if the findings of fact upon which it is based are supported by substantial evidence on the record as a whole, and if it was reached through the application of proper legal standards." Loza v. Apfel, 219 F.3d 378, 389 (5th Cir. 2000) (citations omitted). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Audler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007) (quotation marks and citation omitted). "In applying the substantial evidence standard, we scrutinize the record to determine whether such evidence is present." Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citation omitted). "We may not reweigh the evidence or substitute our judgment for that of theCommissioner." Audler, 501 F.3d at 447 (citation omitted).

III. Discussion

The Social Security Act defines disability as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). To receive disability benefits, a claimant's impairment or combination of impairments, see id. § 423(d)(2)(B), must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Id. § 423(d)(2)(A).

In arriving at a decision, the ALJ proceeds through the familiar five-step sequential evaluation process, determining whether:

(1) the claimant is presently working; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment listed in appendix 1 of the social security regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the impairment prevents the claimant from doing any other substantial gainful activity. If, at any step, the claimant is determined to be disabled or not disabled, the inquiry is terminated. The claimant bears the burden of showing she is disabled through the first four steps of the analysis; on the fifth, the Commissioner must show that there is other substantial work in the national economy that the claimant can perform.

Audler, 501 F.3d at 447-48 (citation omitted); see Greenspan, 38 F.3d at 236. "The ALJ's decision must stand or fall with the reasons set forth in the ALJ's decision, as adopted by the Appeals Council." Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (citation omitted).

Here, the ALJ found at step one that Pinter had not successfully worked since December 2006. R. 13. He then found that she suffered from the severe conditions of "seizures, depression/anxiety, and learning disability." Id. At step three, the ALJ determined that Pinter's impairments did not meet those listed in the CFR. Id. at 15. Finally, the ALJ concluded that Pinter could return with few restrictions to unskilled jobs she had done in the past (step four) and other jobs existing in the national economy (step five). Id. at 23-25.

The Court will discuss these steps in order, beginning with step two.

A. Learning Disability / Borderline Intellectual Functioning

At step two the ALJ determined that Pinter has a learning disability. Id. at 13. The finding was unusual because the evidentiary dispute the ALJ was charged with resolving was whether Pinter has borderline intellectual functioning (BIF) or is mildly mentally retarded.² Specifically, Dr. Boggs concluded that Pinter is of average to low average intelligence, id. at 389-90; Dr. Hudson, the government's medical consultant, thought Dr. Boggs' report supported a finding of BIF, id. at 441; and Dr. Schneider found Pinter to be mildly mentally retarded, id. at 440.³ The ALJ rejected Dr. Schneider's conclusions about mental retardation. Id. at 21. But he skirted a determination on BIF, instead diagnosing a learning disability based on Pinter's low verbal IQ score. Id.

This was problematic because none of the doctors had concluded that Pinter has a learning disability, not even those that diagnosed her with a low IQ. And a person's low intelligence does not automatically mean they have a learning disability. See 20 U.S.C. § 1401(30) (defining learning disability); 34 C.F.R. § 300.8(c)(10) (same); see, e.g., Klein Indep. Sch. Dist. v. Hovem, --- F.3d ---, No. 10-20694, 2012 WL 3155968, *1 (5th Cir. Aug. 6, 2012) (resolving IDEA claim brought by student who "demonstrated high intelligence (ultimately, a 142 IQ)" and had a learning disability).

The government argues that the ALJ's finding was properly based upon Pinter's self-reported learning disability. Docket No. 14, at 6. But Pinter was not qualified to make that objective, clinical assessment. See 20 C.F.R. § 416.908 ("A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms."); Prince v. Barnhart, 418 F. Supp. 2d 863, 868 (E.D. Tex. 2005) ("The only evidence of bone spurs is plaintiff's subjective testimony. By definition, that is insufficient to establish an impairment."). And it is troubling that the ALJ accepted Pinter's self-reported diagnosis when hefound almost everything else she said to be unreliable. See R. 24. "[T]he ALJ must consider all the record evidence and cannot 'pick and choose' only the evidence that supports his position." Loza, 219 F.3d at 393 (citations omitted).

The Fifth Circuit has cited with approval Judge Posner's admonition that

judges, including administrative law judges of the Social Security Administration, must be careful not to succumb to the temptation to play doctor. . . . The medical expertise of the Social Security Administration is reflected in regulations; it is not the birthright of the lawyers who apply them. Common sense can mislead; lay intuitions about medical phenomena are often wrong.

Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003) (quoting Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990)). Here, in the absence of medical evidence, the ALJ was not permitted to diagnose an alleged learning disability. That finding is not...