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Johnathon E. Taylor v. Michael J. Astrue

September 9, 2011


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act (the "Act"). 42 U.S.C. § 405(g). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


Plaintiff was born in 1979, has a tenth-grade education, and has only worked previously for two weeks at a car wash. (Administrative Record ("AR") 157, 159, 164, 899, 900.) On October 7, 1999, Plaintiff filed an application for SSI alleging disability beginning September 10, 1999, due to seizures, a mental disorder, and borderline IQ. (AR 26, 157.)

A. Medical Evidence

On September 20, 1999, Plaintiff was a pedestrian involved in an accident with a motor vehicle. (AR 28, 283, 295, 315, 325.) Plaintiff was nineteen years old at the time and was taken to the University Medical Center Emergency Room in Fresno for treatment. (AR 325.) Plaintiff suffered injuries to his right femur, which required surgical placement of a rod into Plaintiff's leg. (AR 273, 283-84, 302.) Plaintiff also suffered a left epidural hematoma, which required neurosurgery and temporary placement of an intracranial monitoring bolt. (AR 273-74, 279, 288, 292-96.) Plaintiff was discharged on October 6, 1999, after a sixteen-day hospitalization. (AR 273.) Follow-up rehabilitation took place through December 1999 at Valley Children's Hospital. (AR 275, 319-26.)

Lynne Reinfurt, Ph.D., conducted a psychological evaluation of Plaintiff on March 30, 2000, after Plaintiff was referred by the Department of Social Services Disability Evaluation Division. (AR 337-40.) Dr. Reinfurt interviewed Plaintiff, who told the doctor that he had been drinking heavily and smoking marijuana in the previous two years. (AR 337.) Plaintiff also told the doctor that he "had some problems with the law," including an arrest for being a passenger in a stolen car, and several outstanding warrants. (AR 337.) Dr. Reinfurt observed that Plaintiff's speech was slow but coherent, marked by poor grammar and constricted vocabulary, and his posture was slumped. (AR 338.) Several tests were administered by Dr. Reinfurt, including the Wechsler Adult Intelligence Scale, Third Edition ("WAIS-III"), the Bender Visual Motor Gestalt Test ("Bender-Gestalt Test"), and the Wechsler Memory Scale III ("WMS-III"). (AR 338.) WAIS-III testing results established that Plaintiff's Verbal IQ was 69, his Performance IQ was 76, and his Full Scale IQ was 70. (AR 338.) These scores indicated, in Dr. Reinfurt's opinion, that Plaintiff was within the intellectual functioning range of "Mildly Deficient to Borderline." (AR 338.) For the Bender-Gestalt Test, Dr. Reinfurt observed that Plaintiff's test results fell within the normal range. (AR 339.) For the WMS-III, Dr. Reinfurt opined that Plaintiff's memory score of 53 was deficient and "slightly lower than would be [predicted] from the IQ score," but Plaintiff's score on the Working Memory Index was "quite strong" at 80. (AR 338.) Dr. Reinfurt concluded that Plaintiff would be able to "recall and implement simple instructions," that Plaintiff would not do well in "a workplace that is fast-paced, loosely structured, or demanding of social adeptness," and recommended that Plaintiff attend rehabilitation sessions and vocational training. (AR 339.) Dr. Reinfurt made no Axis II Diagnosis; for Axis I, she diagnosed a probable premorbid language disorder, an unspecified cognitive disorder, and depression due to brain injury.*fn2 (AR 339.)

Plaintiff was assaulted near his mother's house on December 31, 2000, when he was struck on the left side of his head. (AR 28, 378, 384, 935-38.) Because Plaintiff's mother was concerned about his welfare, Plaintiff immediately went to live with his sister in Reno, Nevada. (AR 938.) Following the assault, Plaintiff suffered expressive dysphagia and was brought to the Washoe Medical Center Emergency Room in Reno on January 3, 2001. (AR 378-79.) After being diagnosed with a small left hemorrhagic contusion, Plaintiff stayed in the hospital until January 9, 2001, for observation. (AR 389, 456.) Plaintiff worked with a speech therapist in the hospital and attended outpatient speech therapy after being discharged. (AR 456, 462-82.)

At the request of Plaintiff's attorney, a psychological evaluation of Plaintiff was conducted by Valerie Forward, Ph.D., during December 2001 and January 2002. (AR 365-71.) Dr. Forward noted that during her interviews with Plaintiff he had slow, soft speech with poor grammar and a limited vocabulary. (AR 366.) Plaintiff had a lethargic and depressed demeanor with slumped posture and poor eye contact. (AR 366.) Dr. Forward noted that Plaintiff said he helped around the house with basic chores, housekeeping, and cooking. (AR 367.) Multiple tests were administered by Dr. Forward, including the Bender-Gestalt test, the Wide Range Achievement Test III ("WRATIII"), the Personality Assessment Inventory ("PAI"), the Beck Depression Inventory II ("BDI-II"), the Rotter Incomplete Sentence Blank Adult ("RISB"), and the Kinetic Family Drawing test ("KFD"). (AR 368-70.)

The test results were as follows. The Bender-Gestalt test was within normal limits, but had indicators of depression according to Dr. Forward. (AR 368.) The WRAT-III revealed Plaintiff as having a third-grade reading level, a first-grade spelling level, and a fifth-grade mathematics level. (AR 368.) The PAI indicated that Plaintiff had a functional impairment due to sensory and motor dysfunction. (AR 368.) This test also showed elevated indicators of depression and aggression. (AR 369.) The BDI-II indicated that Plaintiff was suffering from mid-level depression. (AR 369.) The RISB indicated Plaintiff was experiencing feelings of depression, anger, self-doubt, and worthlessness. (AR 370.) The KFD test revealed that Plaintiff had a distant relationship with his family. (AR 370.) The Axis I diagnosis revealed that Plaintiff was suffering from major depression, personality change due to a brain injury, cognitive disorder, and relational problems due to his brain injury. (AR 370.) The Axis II diagnosis indicated that Plaintiff had borderline intellectual functioning, and the Axis III diagnosis revealed that Plaintiff had a post traumatic brain injury and a seizure disorder. (AR 370.) Dr. Forward concluded by opining that Plaintiff should not work because of his aggressive and depressive condition and recommended that Plaintiff attend therapy. (AR 370-71.)

On July 18, 2002, Peggy Jackson-Salcedo, Ph.D., conducted a psychological evaluation of Plaintiff. (AR 495.) Plaintiff's attorney provided medical documents and cumulative school records to Dr. Jackson-Salcedo. (AR 495-96.) Dr. Jackson-Salcedo performed some tests on Plaintiff, including the Minnesota Multiphasic Personality Inventory 2 ("MMPI-2"), the WRAT-III, and the Trail Making Test ("TMT"). (AR 502-05.) Plaintiff's results on the MMPI-2 were only of questionable utility due to the fact that Plaintiff did not pay enough attention to the test. (AR 503.) Plaintiff's WRAT-III results indicated that Plaintiff had a third-grade reading level, a second-grade spelling level, and a third-grade mathematics level. (AR 505.) The TMT showed that Plaintiff's intelligence was "seriously impaired." (AR 506.) Dr. Jackson-Salcedo also reviewed Plaintiff's cumulative school records and found that Plaintiff had a history of poor academic performance, he repeated the first grade, and dropped out before completing 11th grade. (AR 501.) She concluded that Plaintiff "could understand, remember, and carry out simple, repetitive instructions and duties," and recommended therapy. (AR 510-11.)

Plaintiff began attending group therapy with the Center for Recovery, Empowerment, and Wellness ("CREW") in early 2004. (AR 644, 831.) These therapy sessions were intended to help Plaintiff ameliorate his aggression, depression, and negativity. (AR 644.) Plaintiff attended many meetings between January 2004 and March 2006. (AR 522-34, 551-642, 654-62, 666-726, 728-34, 742-49, 752-64, 766-86, 789-92.) Plaintiff also failed to attend many of the CREW meetings during the same time period, skipping at least twenty-six sessions. (AR 553, 560-62, 567, 575, 582-84, 591-92, 598, 602-04, 612, 616, 623, 626, 629, 630-32, 634, 640, 642, 724.) During his CREW sessions, Plaintiff attended multiple structured outings with the group. (AR 613, 615, 624.) Notations in Plaintiff's CREW records indicate that during meetings Plaintiff was often in a good mood, smiling and laughing with his peers and the staff. (AR 566, 655, 715, 770, 779.) On multiple occasions, Plaintiff talked about activities that he enjoyed, including attending the CREW Christmas party, visiting aquariums, museums, mountains, rivers, barbecues, and weddings, going camping, watching movies, playing with his daughters, and cooking. (AR 557, 571, 593, 655, 657, 669, 692, 700, 706, 708.) Further, during these sessions Plaintiff indicated his interest in returning to school and pursuing work. (AR 597, 669.) Plaintiff also discussed his seizures at CREW, noting that he had learned how to anticipate his seizures and that he did not have problems with seizures or mood swings if he took his medication. (AR 564, 599.) On one occasion, Plaintiff told his peers at CREW that he had a history of severe physical abuse from his mother. (AR 702.) On another occasion, Plaintiff shared with the group that he once purposely overdosed on his epilepsy medication, but said that he placed his mother in charge of his medication to prevent this from happening again. (AR 680.)

Richard Engeln, Ph.D., conducted a psychological evaluation of Plaintiff on March 19, 2004. (AR 522.) While being interviewed by Dr. Engeln, Plaintiff said that he has "never had any drug or alcohol issues," and was not on probation or parole. (AR 523.) Plaintiff described his seizures to Dr. Engeln, and noted that at the time he was taking Dilantin, Tegretol, and Motrin to control his seizures. (AR 523.) Dr. Engeln conducted a number of tests on Plaintiff. (AR 525.) On the WAISIII, Plaintiff scored a Verbal IQ of 72, a Performance IQ of 72, and a Full Scale IQ of 69. (AR 525.) Plaintiff's Bender-Gestalt results were characterized as high borderline. (AR 525.) Dr. Engeln found that Plaintiff's WRAT-III results showed that Plaintiff had a fourth-grade reading level, a second-grade spelling level, and a third-grade mathematics level. (AR 525-26.) Plaintiff's WMS-III scores indicated a moderate range of mental retardation, but Dr. Engeln noted that this probably reflected Plaintiff's "[c]oncentration issues." (AR 526.) Dr. Engeln diagnosed Plaintiff with depressive disorder, moderate to severe academic delay, and a seizure disorder controlled partially by medication. (AR 527.) Dr. Engeln concluded by opining that competitive job placement should be part of Plaintiff's mental health treatment process, stating that Plaintiff would be able to perform "one-to-two step simple job instructions." (AR 528.)

William Spindell, Ph.D., conducted a psychological evaluation of Plaintiff on July 7, 2006. (AR 728.) Dr. Spindell interviewed Plaintiff and noted that Plaintiff denied any prison, jail, or drug history. (AR 728.) Plaintiff underwent multiple tests administered by Dr. Spindell. (AR 729.) On the Bender-Gestalt test, Plaintiff's global score was 32. (AR 729.) Plaintiff completed both portions of the TMT without error. (AR 729.) Dr. Spindell noted that when performing the WMS, Plaintiff lacked motivation and "gave up rather easily on all tasks presented to him." (AR 729.) The WAISIII showed Plaintiff had a Verbal IQ of 71, a Performance IQ of 68, and a Full Scale IQ of 67. (AR 729.) Dr. Spindell noted that Plaintiff's effort was minimal on the WAIS-III; thus his IQ scores were probably lower than they would have been otherwise. (AR 729.) In conclusion, Dr. Spindell opined that Plaintiff was capable of several entry-level jobs, as long as explanations were very clear. (AR 730.) In reviewing Plaintiff's other medical records, Dr. Spindell noted that the records presented no reason to change his diagnosis and stated that they supported the finding that Plaintiff had adequate functional abilities for simple, repetitive tasks in the labor market. (AR 828.)

B. Administrative Proceedings

1. First Administrative Hearing and Decision

a. December 2002 ALJ Decision

Plaintiff's initial application for benefits was denied on December 23, 1999, and again on reconsideration on May 11, 2000. (AR 85-88, 91-94.) On July 13, 2000, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and in May 2002 a hearing was held before ALJ James Ross. (AR 95, 844-68.) ALJ Ross issued a decision denying benefits on December 16, 2002. In his decision, the ALJ determined that the opinion of Dr. Peggy Jackson-Salcedo was entitled to little weight. (AR 64.) The ALJ explained that, although Dr. Jackson-Salcedo was to be provided copies of the reports of the prior psychological evaluations, the "claimant's representative then corrupted the process by communicating ex parte with the consultative examiner" by providing Dr. Jackson-Salcedo copies of various pieces of evidence, including prior psychological evaluations. (AR 64.)

In considering whether Plaintiff met any Listing, the ALJ determined that "[t]he record as a whole supports the conclusion that the claimant's mental impairments do not meet or equal any mental impairment listed in section 12.00 of the Listing of Impairments. Clearly there is no evidence of marked limitations in the functional areas mentioned above or of repeated episodes of decompensation." (AR 63.) The ALJ concluded that Plaintiff had the residual functional capacity ("RFC") to perform simple, repetitive tasks not involving interaction with the public and that Plaintiff should observe seizure precautions.*fn3 (AR 64.) The ALJ then concluded that Plaintiff's non-exertional limitations did not significantly compromise his ability to perform unskilled work at all exertional levels; the ALJ relied on the Medical-Vocational Guidelines (the "Grids") to determine that there were jobs in the national economy that Plaintiff could perform. (AR 64.)

b. Review by the Appeals Council Granted

Plaintiff requested review of this decision by the Appeals Council ("AC"). The AC determined that the ALJ's December 2002 decision was erroneous on a number of grounds. First, the AC stated that the decision did not adequately address Dr. Reinfurt's opinion that Plaintiff had a need to be in a structured work setting and had possible limitations for relating to co-workers and supervisors. (AR 67.) The AC also noted that Plaintiff had IQ scores in the 69 to 70 range and that the record reflected that Plaintiff has multiple non-exertional limitations, but no vocational evidence concerning the effect of these limitations on Plaintiff's occupational base was developed. (AR 67.) The AC also determined that it was unclear whether Plaintiff's intellectual function was reduced because of brain injuries or represents a life-long condition. The AC found that the rationale for rejecting the opinions of Dr. Forward and Dr. Jackson-Salcedo was inadequate, and those opinions were to be reconsidered by the ALJ. (AR 67.)

2. Second Administrative Hearing and Decision

a. November 2004 ALJ Decision

On remand, ALJ Ross conducted a second hearing in October 2004 and subsequently issued a decision denying Plaintiff's claim on November 15, 2004. (AR 70-29, 869-94.) Plaintiff submitted a brief to the ALJ asserting, among other things, that he meets Listing 12.05(C) because he has borderline IQ as evidenced by objective testing, and he has other impairments that the ALJ has found to be severe. (AR 220-23.)

In considering the AC's remand order and Plaintiff's brief, the ALJ again refused to give weight to Dr. Jackson-Salcedo's opinion and repeated the same findings from his first decision. (AR 77.) The ALJ also found that Plaintiff had "severe" conditions at the Second Step as defined by Social Security Ruling ("SSR") 85-28 for a history of petit mal seizures, an organic mental disorder with emotional lability and depression, and borderline intelligence.*fn4 However, the ALJ concluded without analysis that these impairments do not meet a Listing; the ALJ failed to consider whether Plaintiff met the requirements of Listing 12.05(C). (AR 74, 223.) The ALJ found that Plaintiff's mental impairments imposed only slight limitations on his ability to engage in daily living activities, a slight to moderate difficulty in maintaining social functioning, and slight to moderate difficulty in concentration, persistence, or pace. (AR 77.) The ALJ concluded that Plaintiff had the RFC for simple, repetitive tasks not involving interactions with the public and that Plaintiff could perform work at all exertional levels but with seizure precautions. (AR 78.) Considering testimony from a VE, the ALJ determined that there were jobs in significant numbers in the economy that Plaintiff can perform. (AR 78.)

b. Review by the Appeals Council Granted

Plaintiff again requested that the AC review the November 15, 2004, decision asserting that the ALJ had failed to adequately comply with the prior remand order. (AR 124-25, 133-37.) Specifically, Plaintiff asserted that the ALJ had failed to adequately consider whether Plaintiff meets Listing 12.05 for mental retardation. (AR 134 ("Considering that Full Scale IQ scores of 69-70 have been confirmed by four psychologists, and that both his severe depression and his seizures are well-documented, Johnathan Taylor should be granted SSI benefits immediately, pursuant to Listing 12.05C.").)

The AC again granted Plaintiff's request for review and remanded the matter to another ALJ for consideration. (AR 81-84.) Specifically, the AC noted that adequate consideration of the Listings had not been provided. (AR 81.) The AC determined that the ALJ's decision "does not reveal consideration of the guidance provided under sections 11.00F, 12.00c10, and 12.00c8 of 20 [C.F.R.] Part 404, Subpart P, Appendix 1[,] and it does not provide analysis addressing the requirements of applicable provisions of the Listing of Impairments at sections 11.18, 12.02, and 12.05." (AR 81.)

The AC also noted that the ALJ's decision contained the same rationale with regard to the medical opinions of Drs. Forward and Jackson-Salcedo as the first ALJ's decision that did not address the AC's concerns. (AR 81.) The AC's remand order required the ALJ to obtain a medical expert who would specifically address Listing 12.05, among other sections of the Listings. (AR 82.) The ALJ was ordered to consider all the medical opinions and describe the weight assigned to each. (AR 83.) The ALJ was also ordered to consider whether expert testimony from a VE was warranted and to pose a hypothetical to the VE reflecting the specific capacity and limitations established by the record as a whole. (AR 83.)

3. Third Administrative Hearing and Decision After Appeals Council Remand

a. Plaintiff's Brief to the ALJ

On August 17, 2006, Plaintiff submitted a brief to the ALJ. Among other arguments, Plaintiff specifically asserted that he meets the Listing for mental retardation pursuant to section 12.05(C). (AR 244.) Plaintiff asserted that his IQ scores were confirmed by five psychologists and the impairments of severe depression and continued seizures are "well-documented," and meet the second prong of Listing 12.05(C). (AR 244.)

b. August 2006 Hearing

On August 17, 2006, ALJ Bert Hoffman conducted a hearing. (AR 895-958.) Plaintiff testified that he still had memory and anger problems, but stated that it had been a few years since his last big seizure. (AR 904, 909, 910.) Plaintiff also testified that he had never gotten into trouble with the police. (AR 910.) When asked about his medications, Plaintiff testified that he took Dilantin and Tegretol for his seizures, Motrin for head pain, and Lexapro. (AR 916-17.) Plaintiff stated that these medications caused him to stumble and feel ...

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