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R.E.A. v. Berryhill

United States District Court, W.D. Louisiana, Shreveport Division

February 26, 2019

R.E.A. XXX-XX-7360
v.
NANCY A. BERRYHILL

          HICKS CHIEF JUDGE

          REPORT AND RECOMMENDATION

          MARK L. HORNSBY I U.S. MAGISTRATE JUDGE

         Introduction

         R.E.A. (“Plaintiff”) was born April 9, 1957, so he is now 62 years old. He has an IQ of 57 and limitations stemming from poor ability to maintain attention or engage in social interactions, mental health issues, and back pain. Counsel reports that Plaintiff is receiving SSI benefits based on a finding that he is currently disabled. This proceeding stems from an application for children's SSDI benefits, a separate program, for which Plaintiff may be eligible based on his late father's social security record. To prevail on the claim, Plaintiff must be able to show, among other things, that he was under a disability prior to attaining age 22.

         An ALJ conducted a hearing and issued a written decision that denied the claim. She reasoned that there were no medical or educational records supportive of any impairment prior to age 22, and she denied the claim on that ground. Tr. 11-14. The Appeals Council denied a request for review (Tr. 1-3), making the ALJ's ruling the Commissioner's final decision. Plaintiff then filed this civil action seeking judicial review pursuant to 42 USC § 405(g). For the reasons that follow, it is recommended that the Commissioner's decision be reversed and this case be remanded to the agency for further proceedings.

         Child's Insurance Benefits

         The Social Security Act affords a number of benefit programs for children. The claim at issue in this case is for benefits under a program that provides benefits to disabled, dependent children of wage earners, when the wage earners are entitled to old-age or disability benefits or have died. The program provides a source of income to children most likely to have relied on the deceased, disabled, or retired wage earner for support. The child of the wage earner can receive benefits at any age, so long as the child became disabled before age 22 and has remained disabled since. Bloch on Social Security, § 2:3.

         Plaintiff lived near his father, who looked after Plaintiff. The father died a few years before the current application was filed, and there is evidence to suggest that he was receiving social security retirement benefits before he died. An adult such as Plaintiff is entitled to child's benefits on the earnings record of an insured person who is entitled to old-age benefits or who has died if the applicant is unmarried, is the insured person's dependent child as defined in the regulations, and “you are 18 years old or older and have a disability that began before you became 22 years old.” 20 CFR § 404.350; 42 USC § 402(d). Plaintiff asserts the onset of disability by April 8, 1979, which was the day before he attained age 22.

         Relevant Evidence

         Plaintiff was represented by counsel at his hearing. Counsel reported that she subpoenaed multiple schools but had not been able to obtain any records; they had either been purged or lost. Plaintiff was asked his highest level of education, and he replied, “think the ninth.” (Current counsel represents in his brief that Plaintiff dropped out after the third week of the 9th grade.) Plaintiff never earned a GED or attended any other kind of school. He said he had a “problem understanding” in school and “never learned to read.” He cannot write a check, but he is able to call a phone number and provide his debit card number to pay a bill.

         Plaintiff lived in a trailer near his father until his father passed away a few years earlier. His mother had died many years before. Plaintiff's cousin and the cousin's family now live with Plaintiff. They help him review his mail and attend to his affairs. Plaintiff said he had not held a job in maybe 15 years, although he had worked for a couple of months helping a plumber five or six years before. His earnings records show that he never engaged in enough work to qualify as substantial gainful activity under the social security regulations. Plaintiff said that he was being treated and given medication for nerves and anxiety. Tr. 48-61.

         Jean Bell, Plaintiff's aunt, testified at the hearing that she recalled Plaintiff going to a mental health clinic in Shreveport. She called to get information about the visits, but the clinic said they no longer had the records. She said she knew that Plaintiff “took Ritalin through all his life.” She said she “went to the school board to get some records and everything that we saw there was nothing but failing grades, and--but they kept passing him anyway.” She recalled that his report card for the seventh grade had all F's, maybe a couple of D's and that Plaintiff “does not read or write” and “just never could learn.” She said, “This has been from childhood on.” Tr. 62-67.[1]

         Dr. Susan Tucker, Ph.D., a clinical psychologist, performed a consultative examination of Plaintiff in November 2016. Plaintiff was accompanied by a friend to the examination. Dr. Tucker reported that Plaintiff received special education services in school but dropped out in the 9th grade. His gait was unsteady due to a bad back (on which he had surgery), his fine motor skills were impaired due to involuntary movements with his hands, and his behavior was childlike. Plaintiff's speech was 80% comprehensible with moderate articulation errors. He seemed to rely on his friend for some of his history, and he had poor sustained concentration and short-term memory during the assessment. He could not read and had difficulty comprehending about 50% of Dr. Tucker's instructions.

         Dr. Tucker administered a Wechsler Intelligence Test. Plaintiff had a Full Scale IQ of 57, which is in the 0.2 percentile of people his age and falls within the mild mental disability range of intellectual functioning. Dr. Tucker concluded that Plaintiff has marginal ability for understanding and following through with simple repeated instructions, and he would have poor ability to maintain attention and perform simple work tasks for a two-hour block. He would also have difficulty with peers in a work setting given his minimal level of social interactions and problems handling the stress and pressure of a work setting. Tr. 324-30. Her report did not speak to Plaintiff's condition before age 22, and there is no indication that the agency asked her to opine on that critical issue.

         Standard of Review; ...


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