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Louis J. Avery v. Michael J. Astrue

December 19, 2012


The opinion of the court was delivered by: Magistrate Judge Daniel G. Martin


Plaintiff Louis J. Avery (Avery) seeks review of the final decision of the Commissioner of Social Security denying his claim for supplemental security income (SSI). The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and filed cross-motions for summary judgment. Because the ALJ's decision is not supported by substantial evidence, the denial of benefits is reversed and this case is remanded for further proceedings consistent with this opinion.

I. Background

Avery was born on October 24, 1985 and suffers from mental impairments. (R. 214). At age six, Avery was removed from his home because of abuse and became a ward of the state in foster care. (R. 332). During the administrative hearing, Avery's counsel represented that throughout Avery's childhood, his mother used crack cocaine. (R. 60). Avery also has a history of substance abuse. (R. 371). At age 12, Avery was diagnosed with depressive disorder, not otherwise specified, impulse control disorder and severe psychological and environmental problems after he threatened to kill his foster parents and the other children in the home and to set the building on fire. (R. 332-34). The medical expert hired by the Social Security Administration to testify at the hearing described Avery's childhood as "very traumatic," with several incidents in which he was abused, neglected, and struck out in a hostile fashion. (R. 60).

Avery was expelled from high school in the ninth grade and has no work history. (R. 35, 250). Avery does not have a driver's license and does not use public transportation because he gets lost. (R. 40, 371). At the time of the May 27, 2012 hearing, Avery lived in an apartment with his sister and her three children. (R. 33-34). Avery applied for SSI on April 10, 2007, alleging he became totally disabled on March 29, 2007 because of a learning disability and mental illness. (R. 214-19, 246). Avery's application was denied at the initial and reconsideration levels due to his failure to attend two scheduled consultative psychological evaluations. (R. 84-88, 89-92).

Under the required five-step analysis used to evaluate disability, the ALJ found that Avery had not engaged in substantial gainful activity since the alleged onset date of March 29, 2007 (step one); his borderline intellectual functioning, with polysubstance abuse, a learning disorder, not otherwise specified by history, and antisocial personality disorder were severe impairments (step two); but that they did not qualify as a listed impairment (step three). (R. 21, 23). The ALJ determined that Avery retained the residual functional capacity (RFC) to perform light work except no climbing ladders, ropes, or scaffolds, no work at unprotected heights, no commercial driving, no contact with the general public, minimal contact with supervisors, and no complex or detailed tasks. (R. 23). Avery has no past relevant work (step four). (R. 26). The ALJ concluded there were jobs that exist in significant numbers in the economy that Avery could perform considering his age, education, and residual functional capacity, including office or house cleaner jobs (step five). (R. 26-27).

The Appeals Council denied Avery's request for review on August 25, 2010. (R. 1-5). Avery now seeks judicial review of the final decision of the Commissioner, which is the ALJ's ruling. O'Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010).

II. Discussion

Under the Social Security Act, a person is disabled if he has an "inability to engage in any substantial gainful activity by reason of a 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 twelve months." 42 U.S.C. § 423(d)(1)(a). In order to determine whether a claimant is disabled within the meaning of the Act, the ALJ conducts a five-step sequential inquiry: (1) whether the claimant is currently unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals any of the listings found in the regulations, see 20 C.F.R. § 404, Subpt. P, App. 1 (2004); (4) whether the claimant is unable to perform his former occupation; and (5) whether the claimant is unable to perform any other available work in light of his age, education, and work experience. 20 C.F.R. § 404.1520(a) (2004); Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). "An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled." Clifford, 227 F.3d at 868 (quoting Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985)).

Judicial review of the ALJ's decision is limited to determining whether the ALJ's findings are supported by substantial evidence, based upon a legal error, or too poorly articulated to permit meaningful review. Hopgood ex rel. v. L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In its substantial evidence review, the court critically reviews the entire administrative record but does not reweigh the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its own judgment for that of the Commissioner. Clifford, 227 F.3d at 869. An ALJ's credibility determination is generally entitled to deference and will not be overturned unless it is patently wrong. Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010).

The ALJ denied Avery's claim at step five, finding that Avery retains the residual functional capacity to perform a range of light work. Avery raises three main challenges to the ALJ's decision:

(1) the ALJ erred at step three in declining to find that his condition met the criteria of Listings 12.05 and 12.08; (2) the ALJ erred in assessing Avery's residual functional capacity; and (3) the ALJ failed to properly evaluate Avery's credibility. The Court finds that the ALJ's decision is not supported by substantial evidence because it is based on an incomplete RFC determination and an unsound adverse credibility finding.

A. Step Three Determination

Avery first challenges the ALJ's adverse step three determination as to Listings 12.05 (mental retardation) and 12.08 (personality disorders). Under a theory of presumptive disability, a claimant is eligible for benefits at step three if he has a condition that meets or equals an impairment found in the "Listing of Impairments" (listings). Maggard v. Apfel 167 F.3d 376, 379 (7th Cir. 1999). The listings specify the criteria for impairments that are considered presumptively disabling. Id. at 380. A claimant may also demonstrate presumptive disability by showing that his impairments are accompanied by symptoms that are equal in severity to those described in a specific listing. Id. To meet or equal a listed impairment, the claimant must satisfy all the criteria of the listing. Id. The claimant bears the burden at step three of proving that his condition meets or equals a listed impairment. Id. In making a step three determination, the ALJ "must discuss the listing by name and offer more than a perfunctory analysis of the listing." Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004).

At step three, the ALJ found that Avery does not have an impairment or combination of impairments that meets or medically equals a listed impairment. (R.21). Listing 12.05(C) requires a "valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function." The ALJ considered Avery under Listing 12.05(C) and concluded that he did not meet the criteria. One of the reasons the ALJ offered for finding that Avery did not meet Listing 12.05(C) was the lack of a valid verbal, performance, or full scale IQ score of 60 through 70. (R. 22-23).

Substantial evidence supports the ALJ's finding that Avery's IQ scores were "less than fully valid." (R. 22). Dr. Robert V. Prescott, a psychologist, determined that Avery had a verbal comprehension score of 66, a perceptual reasoning score of 71, a working memory score of 58, a processing speed of 53, and a full-scale score of 54. (R. 373). Dr. Prescott observed that Avery "did not appear to be making his best effort" during testing, noted that Avery's recent substance abuse "may have adversely affected him as well," and pined that it was "likely that the obtained test scores probably underestimate his level of functioning." (R. 373, 375). The ALJ recognized that Avery scored below 70 on the WAIS IV and WRAT IV tests administered by Dr. Prescott, but reasoned that the scores were of "questionable validity" because Dr. Prescott observed that Avery was not making his best effort during the testing and Avery admitted drinking the day before and the day of the consultative evaluation. (R. 22, 371). The ALJ also noted that Avery used marijuana the day before the exam. Id. The medical expert (ME) confirmed that the entire psychological consultative evaluation "was of really questionable validity." (R. 53). The ME testified that both the effects of drug and alcohol use the day before and day of the examination and the lack of acceptable effort "contaminated the results of the cognitive evaluations." Id.*fn1 The ME found that Avery's condition does not meet or medically equal a listed impairment. (R. 56).

The ALJ found that Avery did not meet the requirements of Listing 12.08. (R. 21). This particular listing requires, among other things, that the claimant have marked limitations in at least two of the following: activities of daily living; maintaining social functioning; maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. The ALJ considered whether these "paragraph B" criteria of Listing 12.08 were satisfied.

(R. 21-22). The ALJ found that Avery has moderate restrictions in activities of daily living because he can take care of his own personal grooming and perform simple tasks. (R. 21). He noted that Avery has a learning disorder and is slow in performing math calculations. Id. The ALJ concluded that Avery has moderate difficulties in social functioning because he had been diagnosed with an anti-social personality disorder and dislikes people. Id. The ALJ noted that Avery has three kids and is able to maintain a relationship with them. Id. With regard to concentration, persistence, or pace, the ALJ found that Avery has moderate difficulties because he has a learning disorder and the consultative examiner noted limitations in concentration during the March 2010 examination.

(R. 22). The ALJ also found that Avery has experienced no episodes of decompensation. Id. As to Listing 12.08, Avery offers a two-sentence argument in his opening memorandum:

"The record establishes that Plaintiff meets or equals . . . Section 12.08. In the alternative, the combination of impairments is medically equivalent to the Listings." (Doc. 19 at 7). Avery does not specify how his impairments met or medically equal the criteria of Listing 12.08. In his reply brief, Avery states that "[t]he ME clearly found that the Plaintiff met the requirements of Section 12.08(A) and had a marked limitation in his ability to maintain social functioning." (Doc. 25 at 6).

Substantial evidence supports the ALJ's conclusion that Avery's condition does not meet Listing 12.08(B). The ME found that Avery is moderately impaired in terms of activities of daily living and concentration, persistence, and pace. (R. 59). As to maintaining social functioning, the ME opined that overall Avery is moderately impaired but in a threatening situation, he is markedly impaired. Id. The ME noted no documented episodes of decompensation. Id. The ME opined that Avery's condition does not meet or medically equal a listed impairment. (R. 56). Avery focuses his challenge on the ALJ's finding that his limitations in the domain of "social functioning" were less than marked, but he must meet two criteria under section B to satisfy listing 12.08. Because there were no evaluations in the record that found more severe impairments with regard to the other "B criteria" of Listing 12.08 than the ME and the ALJ provided, any error by the ALJ regarding the social functioning domain would be harmless error that does not change the outcome. Keys v. Barnhart, 347 F.3d 990, 994 (7th Cir. 2003) (stating "the doctrine of harmless error . . . is fully applicable to judicial review of administrative decisions.").

B. RFC Determination

Avery challenges the ALJ's residual functional capacity (RFC) determination on the ground that it did not sufficiently account for his impaired social functioning. "The RFC is the maximum that a claimant can still do despite his mental and physical limitations." Craft v. Astrue, 539 F.3d 668, 675-76 (7th Cir. 2008). Social functioning refers to a claimant's "capacity to interact independently, appropriately, effectively, and on a sustained basis with other individuals." 20 C.F.R. Pt. 404, Supbt P, App. 1 § 12.00(C)(2). This includes the ability to "get along with family members, friends, neighbors, grocery clerks, landlords, and bus drivers." Id. Social functioning in work situations may involve "interactions with the public, responding appropriately to persons in authority (e.g., supervisors), or cooperative behaviors involving co-workers." Id.

The ALJ found that Avery has moderate difficulties in social functioning. (R. 21). The ALJ stated that Avery has been diagnosed with anti-social personality disorder and he does not like people. Id. The ALJ also noted that Avery has three children and found that he has been able to maintain a relationship with them. Id. The ALJ accounted for Avery's difficulties in social functioning by finding ...

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