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Aydell v. Berryhill

United States District Court, M.D. Louisiana

March 1, 2019

TROY JOSEPH AYDELL
v.
NANCY A. BERRYHILL

          NOTICE

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Plaintiff, Troy Joseph Aydell (“Plaintiff”), brought this action under 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying his application for disability insurance benefits (“DIB”).[1] Plaintiff has filed an Opening Brief, [2] the Commissioner has filed an Opposition Memorandum, [3] and Plaintiff has filed a Reply.[4]

         Based on the applicable standard of review under § 405(g) and the analysis which follows, the undersigned recommends that the Commissioner's decision be AFFIRMED.

         I. Procedural History

         Plaintiff filed an application for DIB[5] alleging disability beginning November 2, 2013[6]due to, inter alia, back and neck problems as well as psychological issues.[7] Plaintiff's claim was initially denied on September 11, 2015.[8] Thereafter, Plaintiff requested a hearing before an ALJ.[9]A hearing was held on September 2, 2016 at which Plaintiff, represented by counsel, testified.[10]

         On October 27, 2016, the ALJ issued a notice of unfavorable decision.[11] Plaintiff requested review by the Appeals Council.[12] On September 8, 2017, the Appeals Council denied Plaintiff's request for review.[13] On October 19, 2017, Plaintiff filed his Complaint.[14] Accordingly, Plaintiff exhausted his administrative remedies before timely filing this action for judicial review and the ALJ's decision is the Commissioner's final decision for purposes of judicial review.[15]

         II. Standard of Review

         Under 42 U.S.C. § 405(g), judicial review of a final decision of the Commissioner denying disability benefits is limited to two inquiries: (1) whether substantial evidence exists in the record as a whole to support the Commissioner's findings, and (2) whether the Commissioner's final decision applies the proper legal standards.[16] If the Commissioner fails to apply the correct legal standards, or provide a reviewing court with a sufficient basis to determine that the correct legal principles were followed, it is grounds for reversal.[17]

         III. The ALJ's Decision

         A claimant has the burden of proving that he or she suffers from a disability, which is defined as a medically determinable physical or mental impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful activity.[18] The regulations require the ALJ to apply a five-step sequential evaluation to each claim for benefits.[19] In the five-step sequence used to evaluate claims the Commissioner must determine whether: (1) the claimant is currently engaged in substantial gainful activity; (2) the claimant has a severe medically determinable impairment(s); (3) the impairment(s) meets or equals the severity of a listed impairment in Appendix 1 of the regulations; (4) the impairment(s) prevents the claimant from performing past relevant work; and, (5) the impairment(s) prevents the claimant from doing any other work.[20]

         The burden rests upon the claimant throughout the first four steps of this five-step process to prove disability.[21] If the claimant is successful at all four of the preceding steps then the burden shifts to the Commissioner to prove, considering the claimant's residual functional capacity (“RFC”), age, education and past work experience, that he or she is capable of performing other work.[22] If the Commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove that he or she cannot, in fact, perform that work.[23]

         Here, the ALJ determined that Plaintiff was not disabled within the meaning of the Social Security Act from November 2, 2013 (the alleged onset date) through his date of decision (October 27, 2016). Although the ALJ determined that Plaintiff suffered from severe impairments of degenerative disc disease with radiculopathy, affective disorder, and anxiety disorder, [24] the ALJ found that such severe impairments did not render Plaintiff disabled. After determining that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment, [25] the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to “perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)” except that Plaintiff was “limited to understanding, remembering, and carrying out simple and routine tasks” and limited to “occasional interaction with others, including the general public, co-workers, and supervisors.”[26]Further, and significant to Plaintiff's appeal, the ALJ also found that Plaintiff “has a limited education and is able to communicate in English.”[27] Considering Plaintiff's age, education, work capacity, and RFC, the ALJ found that there were jobs in the national economy that Plaintiff could perform. Specifically, the ALJ found that Plaintiff could perform the representative occupations of cleaner, hand packager, and vehicle and equipment cleaner - each considered light, unskilled work - and therefore Plaintiff was not disabled.[28]

         IV. Plaintiff's Allegations of Error

         On appeal, Plaintiff focuses on the ALJ's determination that Plaintiff has a “limited education” and argues that Plaintiff should have been considered illiterate instead.[29] Plaintiff contends that illiteracy combined with Plaintiff's physical capabilities and age would result in a finding of disability under 20 C.F.R., Part 404, Subpart P, Appendix 2, Rule 201.17 (“Grid Rule 201.17”) or Rule 202.09 (“Grid Rule 202.09”).[30] Plaintiff also argues that the ALJ committed reversible error when the ALJ failed to obtain a May 24, 2012 Medical Source Statement (“the First MSS”) completed by his psychiatrist, Dr. Ron Taravella, and a January 23, 2013 Consultative Examination (the “CE”) completed by Dr. Donnell Ashford that would have supported his position that he is illiterate. If Plaintiff is illiterate, Plaintiff would be considered disabled pursuant to Grid Rule 201.17 or Grid Rule 202.09 whether he was limited to light work or sedentary work. Alternatively, if Plaintiff has an education of “limited or less, ” Plaintiff would be considered disabled only if limited to sedentary work, but not disabled if limited to light work. As substantial evidence supports the ALJ's finding that Plaintiff was not disabled, the final decision should be affirmed.

         V. Law and Analysis

         If substantial evidence supports the Commissioner's findings, they are conclusive and must be affirmed.[31] Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. It is more than a mere scintilla and less than a preponderance.[32] A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.[33] Conflicts in the evidence are for the Commissioner to decide, and if substantial evidence is found to support the decision, the decision must be affirmed even if there is evidence on the other side.[34] In applying the substantial evidence standard the court must review the entire record as whole, but may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner, even if the evidence weighs against the Commissioner's decision.[35] Here, as stated above, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to “perform light work…except that he is limited to understanding, remembering, and carrying out simple and routine tasks. Additionally, the claimant is limited to occasional interaction with others, including the general public, co-workers, and supervisors.”[36] Based on this RFC, Plaintiff's age, “limited” educational level, and work experience, the ALJ determined at step five of the sequential analysis that Plaintiff was not disabled.

         A. Substantial Evidence Supports the ALJ's Rejection of Plaintiff's Claim of Illiteracy

         Plaintiff argues that the ALJ should have considered Plaintiff to be illiterate and that had the ALJ so found, Plaintiff would be disabled pursuant to the Medical-Vocational Guidelines set out in 20 CFR, Part 404, Subpart P, Appendix 2 (the “Grid Rules”). Pursuant to 20 CFR § 404.1564, the Social Security Administration considers education as a vocational factor[37] and defines “illiteracy” as “the inability to read or write.”[38] A person is considered illiterate “if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.”[39] “A claimant is not per se disabled if he or she is illiterate;”[40] however, a claimant's educational level (including whether a claimant is illiterate) is considered at step five of the sequential analysis.[41]

         “The Grid Rules were promulgated to ‘improve both the uniformity and efficiency' of the step-five determination.”[42] The Supreme Court has explained that the Grid Rules

consist of a matrix of the four factors identified by Congress - physical ability, age, education, and work experience - and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy. Where a claimant's qualifications correspond to the job requirements identified by a rule, the guidelines direct a conclusion as to whether work exists that the claimant could perform. If such work exists, the claimant is not considered disabled.[43]

         Grid Rules 201.01-201.29 address individuals who are limited to sedentary work, while Grid Rules 202.01-202.22 are directed to individuals who are limited to light work. Pursuant to Grid Rule 201.17, an individual between the ages of 45-49 who can perform sedentary work, is illiterate or unable to communicate in English, and who has unskilled work experience or no previous work experience is considered disabled.[44] Under Grid Rule 202.09, an individual closely approaching advanced age who can perform light work, is illiterate or unable to communicate in English, and who has unskilled work experience or no previous work experience is considered disabled. In contrast, under Grid Rules 201.18 and 202.10, a claimant of the same profiles with but with an education of “limited or less - at least literate and able to communicate in English” is not considered disabled.[45]

         Here, the ALJ determined that Plaintiff “has a limited education and is able to communicate in English” and provided the following explanation:

The claimant has a tenth grade education. He clarified at the hearing that he completed the ninth grade and started tenth grade, but did not finish. Additionally, although he argues he is illiterate, he is able to speak, understand, read, and write English.[46]

         “Limited education means ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs.”[47] The Social Security Administration generally considers “that a 7th grade through the 11th grade level of formal education is a limited education.”[48] During the September 2, 2016 hearing, Plaintiff testified that he completed ninth grade and “quit in the tenth.”[49] Although a claimant's formal schooling is not dispositive when determining educational level or literacy, it is a factor to be considered.[50] Moreover, while Plaintiff testified that he does not read because “I'm not very good at it, ”[51] he also represented in his Adult Disability Report that he could speak and understand English, read and understand English, and could write more than his name in English.[52] In light of Plaintiff's level of formal education, as well as his representation that he can read, write, and understand English in his submission to the Social Security Administration, the undersigned finds that substantial evidence supports the ALJ's determination that the Plaintiff has a limited education and is able to communicate in English. Because Plaintiff is not illiterate, Grid Rules 201.17 and 202.09 would not apply.[53]

         B. The ALJ Did Not Commit Reversible Error by Failing to Include the May 24, 2012 MSS from Dr. Taravella or January 23, 2013 CE from Dr. Ashford in the Administrative Record

          The First MSS and CE were completed in conjunction with a previous application for social security benefits and are not part of the administrative record for the instant claim. Plaintiff contends that the ALJ failed to follow certain procedures set forth in the Hearings, Appeals and Litigation Law Manual (“HALLEX”) that required the ALJ to obtain the First MSS and the CE.[54]Plaintiff primarily contends that the First MSS and CE support his position that he is illiterate;[55] however, in his reply brief, Plaintiff asserts that even if he is not “‘illiterate' as defined by the Rules and Regulations, ” the ALJ should have considered him to have a “learning impairment that is severe and significant.”[56] Plaintiff argues that the Commissioner had “an obligation to obtain medical exhibits in connection with prior applications, ”[57] and that “the unobtained records would have significantly affected the ALJ's ultimate determination since the records were highly supportive of the limitations suggested by the Claimant.”[58]

         Plaintiff cites the following portion of HALLEX regarding obtaining evidence in prior claims:

HO staff must consult with an ALJ about obtaining a prior claim(s) file when it may be necessary for a full adjudication of the issues before the ALJ. An ALJ will generally find that evidence in a prior claim(s) file is necessary for a full adjudication of the issues when the ALJ determines:
There is a need to establish a longitudinal medical, educational, or vocational history; or The impairment is of a nature that evidence from a prior claim(s) file could make a difference in establishing whether disability is present in the current claim.[59]

         “While HALLEX does not carry the authority of law, ” the Fifth Circuit has held that “‘where the rights of individuals are affected, an agency must follow its own procedures, even where the internal procedures are more rigorous that otherwise would be required.'”[60] Whether a violation of HALLEX procedure constitutes reversible error depends on whether “prejudice results from the violation.”[61] “Procedural perfection in administrative proceedings is not required, ”[62] and procedural improprieties “constitute a basis for remand only if such improprieties would cast into doubt the existence of substantial evidence to support the ALJ's decision.”[63] This Court “requires a showing that the claimant was prejudiced by the agency's failure to follow a particular rule before such a failure will be permitted to serve as the basis for relief from an ALJ's decision.”[64]“Prejudice can be established by showing that additional evidence would have been produced if the ALJ had fully developed the record, and that the additional evidence might have led to a different decision.”[65]

         “While the Fifth Circuit requires the Commissioner to heed his own procedures and regulations, the claimant must still establish that she was prejudiced by the agency's failure to follow a particular rule.”[66] Although Plaintiff is correct that the First MSS and the CE are not included in the administrative record for this claim, Plaintiff provides the substance of the two records in his brief. Assuming, arguendo, that the ALJ violated HALLEX I-2-1-13 by failing to obtain the First MSS and the CE, the undersigned considers whether Plaintiff has established he was prejudiced by this failure.

         With respect to the First MSS, Plaintiff contends that Dr. Taravella “noted that the claimant does appear to be of sub-average intellect” and assigned “marked” limitations in the following areas:

ability to understand, remember and carry out detailed instructions; ability to accept instructions and respond appropriately to criticism from supervisors; ability to maintain attention and concentration for extended periods; ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; ability to complete a normal workday or workweek without interruption from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; ability to be aware of normal hazards and take appropriate precautions.[67]

         With respect to the CE, Plaintiff contends that Dr. Ashford:

observed that the claimant reported performing poorly in school- D's and F's. He noted that he failed at least two grades and further noted that the claimant “has problems with written instructions” and will bring someone with him to fill out paperwork. It was also noted that the claimant reported that he has someone “figure his bills” for him. Also significant, the claimant was administered the WRATIII and achieved a reading subtest at the fourth grade level. He further reported that while the findings were consistent with a mood disorder, “it is not clear how well he understood the items.” Dr. Ashford concludes: “I think he would have some difficulty sustaining effort and persisting at a normal pace over the course of a routine forty hour workweek. I think he might also experience some difficulty tolerating the stress/pressure associated with day-today work activities and demands.”[68]

         Although Plaintiff argues that the First MSS and the CE should have been considered by the ALJ and would have supported Plaintiff's claim of illiteracy, the undersigned finds that Plaintiff has failed to show that the failure to include the records (even assuming inclusion was required) prejudiced Plaintiff.

         With respect to Dr. Taravella's First MSS, a second MSS completed by Dr. Taravella dated April 23, 2016 was included in the administrative record and reflects similar purported “marked” limitations in similar areas.[69] The ALJ did consider the April 23, 2016 MSS and gave that MSS “little weight” based on the legible portions of Dr. Taravella's own records and a finding that “Dr. Taravella's extreme limitations are not consistent with the record as a whole, including minimal objective findings, reports of improvement or good control with treatment, and the claimant's care of his wife.”[70] The undersigned agrees that legible portions of Dr. Taravella's treatment notes do not reflect the extreme limitations noted in the April 23, 2016 MSS (or, for that matter, the First MSS).[71] Moreover, Dr. Lindenmayer's medical records before and after the November 2, 2013 onset date uniformly reflect normal mental status exams, [72] Plaintiff testified during the September 2, 2016 hearing that he had never been hospitalized or admitted for psychiatric care, [73] and the undersigned agrees that the record reflects a level of caregiving by Plaintiff of his wife that is inconsistent with extreme intellectual limitations.[74] Finally, while Plaintiff cites Dr. Taravella's statement in the First MSS that Plaintiff appears to be of “sub-average intellect, ” that conclusion is directly contradicted by Dr. Taravella's April 23, 2016 MSS, in which he came to the opposite conclusion.[75]

         With respect to the CE, the undersigned finds that even taking Plaintiff's characterization of that document as true, Plaintiff has likewise not shown any prejudice stemming from the ALJ's failure to include the CE in the record. Plaintiff contends that Dr. Ashford reported Plaintiff performed poorly in school, had problems with written instructions, and scored at ¶ 4th grade level on a reading subtest. Assuming this educational level is correct, it would not support Plaintiff's claim that he is illiterate, which, as noted above, is defined as “the inability to read or write.”[76]Further, it appears that the RFC as developed by the ALJ does account for the difficulties Plaintiff may have in understanding instructions because the RFC provides that Plaintiff is “limited to understanding, remembering, and carrying out simple and routine tasks.”[77] Accordingly, the undersigned finds that Plaintiff has not established any prejudice stemming from the ALJ's purported violations of HALLEX.

         C. Substantial Evidence Supports the ALJ's Determination that ...


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