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McCullough v. Commissioner of Social Security Administration

United States District Court, N.D. Mississippi, Aberdeen Division

February 27, 2019




         William Boyce McCullough seeks judicial review pursuant to 42 U.S.C. § 405(g), of the decision of the Commissioner of Social Security (“Commissioner”) denying his application for disability insurance benefits. The parties have consented to have the magistrate judge decide any motions, conduct any hearings and enter judgment in this case, with any appeal direct to the Fifth Circuit Court of Appeals. Presently before the court is the Commissioner's motion to remand the case for further administrative proceedings. The plaintiff urges the court to reverse the decision and award benefits. In this opinion, the court refers to a reversal with remand for further administrative proceedings as a remand, and a reversal with a judgment awarding benefits as a reversal.

         The court, after considering the motion, responses and briefs, finds that the motion to remand for further administrative proceedings should be denied. The decision of the Commissioner is reversed and benefits shall be awarded, with remand only for the calculation of benefits.


         This is the plaintiff's second judicial appeal of the Commissioner's denial of disability benefits. McCullough, filed an application for social security disability benefits on September 21, 2012, alleging onset of disability beginning on January 1, 2009. McCullough's date last insured (DLI) is March 31, 2009. Because this case involves a claim for disability insurance benefits (DIB), but not supplemental security income, there must be proof that McCullough was disabled not later than the end of March 2009, before his insured status expired. McLendon v. Barnhart, 184 Fed.Appx. 430, 431 (5th Cir. 2006).

         The application was denied initially and on reconsideration. On March 14, 2013, McCullough requested a hearing. More than a year later, on September 14, 2014, the Administrative Law Judge (ALJ) held the first hearing. The ALJ found McCullough failed to prove he was disabled before his DLI. In spite of medical proof of some long-term right-sided spasticity and weakness secondary to a stroke in 1996 and a later serious left leg injury in 2006, the ALJ found the plaintiff had no severe impairments at Step Two. The ALJ ignored medical evidence of McCullough's cognitive limitations, not even mentioning its existence. Testing by Dr. Brian Thomas, a neuropsychologist, showed McCullough's full-scale IQ was only 62. Thomas opined, based on his testing and evaluation of McCullough, and history from his cousin, Mary Adcock, that his work history was likely primarily attributable to the accommodation provided to him while working for the family business. The Appeals Council affirmed the ALJ's decision on March 4, 2015. On April 29, 2015, the plaintiff filed his first appeal, more than three years after the initial application.

         In the first appeal, in Civil Action No. 1:15-cv-80-DAS, after the plaintiff filed his brief, the Commissioner, confessing error in the failure of the ALJ to consider or discuss the medical evidence of McCullough's cognitive difficulties, moved to remand for further proceedings. Its motion to remand was granted on the day the motion was filed—November 5, 2015.

         After remand, the Appeals Council directed the ALJ to consider all evidence in the record, including Dr. Thomas' report and the report of Dr. Joe Edward Morris which had been submitted to the Appeals Counsel and showed that McCullough had a full-scale IQ of 52. The Appeals Council noted that the later testing and diagnosis should be considered because it could indicate impairment prior to the DLI.

         A second hearing was scheduled for September 29, 2016. The ALJ issued a decision on October 31, 2016, again finding that McCullough was not disabled. He found that the record failed to establish that McCullough had any severe cognitive impairments prior to the DLI. In an unusually long delay, the Appeals Council affirmed the latest decision on April 5, 2018. The plaintiff filed this action on April 19, 2018.

         In a repetition of the first appeal, the plaintiff filed his brief, and the Commissioner, yet again, has moved to remand the case for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). This motion confesses prejudicial error in the administrative proceedings, though this time the Commissioner fails to specify the error or errors confessed.

         This time, the plaintiff opposes the motion to remand, instead asking the court to reverse and render the Commissioner's decision and order the award of benefits. The plaintiff argues the evidence in the record, including the reports from the examining psychologists, clearly establish that he meets the Listings applicable to intellectual disability at step three, specifically 20 C.F.R. Pt. 404, Subpt. P. App, 1 § 12.05. He urges the court that a further remand for a third set of administrative proceedings will only serve to unduly delay his receipt of benefits.

         In support of the motion to remand, the Commissioner argues that the record evidence does not conclusively establish McCullough's disability as of his date last insured and additional fact determinations reserved to the Commissioner need to be made, necessitating further administrative proceedings.


         A claimant has the burden of proving he suffers from a disability, which the Social Security Act defines as a mental or physical impairment, or combination of impairments, that precludes the claimant from any substantial gainful employment, and that is expected to result in death or that has, or is expected, to last least one year. 42 U.S.C. § 216 (i) and 223 (d). In determining disability, the Commissioner, through the ALJ, works through a five-step sequential process. See, 20 C.F.R. § 404.1520 (2012).

         The burden rests on the claimant throughout the first four steps of this five-step process to prove disability. If the claimant is successful in sustaining the burden at each of the first four levels, the burden then shifts to the Commissioner at step five. Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).

         First, the claimant must prove he is not currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b) (2012).

         Second, the claimant must prove his impairment is “severe” in that it “significantly limits his physical or mental ability to do basic work activities....” 20 C.F.R. § 404.1520(c)(2012). An impairment is not severe “only if it is a slight abnormality which has such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work irrespective of age, education, or work experience” Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985).

         At step three the ALJ must conclude the claimant is disabled if he proves that his impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1, § § 1.00-114.02 (2011). If a claimant's impairment meets certain criteria, then claimant's impairments are of such severity that they would prevent any person from performing substantial gainful activity. 20 C.F.R. § 404.1525 (2012). Mershel v Heckler, 577 F.Supp. 1400, 1405, n.15 (S.D.N.Y. 1984) (The Listing of Impairments … does not provide the exclusive definition of disability under the Act; it provides only a catalogue of ‘automatic' disabilities.”)

         Fourth, the claimant bears the burden of proving he is incapable of meeting the physical and/or mental demands of his past relevant work. 20 C.F.R. § 404.1520(f) (2012). If the claimant is successful at all four of the preceding steps, the burden then shifts to the Commissioner to prove, considering the claimant's residual functional capacity, age, education and past work experience, that he is capable of performing other work. 20 C.F.R. § 404.1520(g)(1) (2012).

         If the Commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove that he cannot, in fact, perform that work. Muse, 925 F.2d at 789.

         This court's review of the Commissioner's decision is limited to an inquiry into whether there is ‘substantial evidence, on the record as a whole, to support the findings of the Commissioner, Richardson v. Perales, 402 U.S. 389, 401 (1971), and whether the correct legal standards were applied. 42 U.S.C. § 405 (g); Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Perales, 402 U.S. at 401 (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). The Fifth Circuit has further held that substantial evidence “must do more than create a suspicion of the existence of the fact to be established, but ‘no substantial evidence' will be found only where there is a ‘conspicuous absence of credible choices' or ‘no contrary medical evidence.'” Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).

         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. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The court may not reweigh the evidence, try the case de novo, or substitute its own judgment for that of the Commissioner, Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988), even if it finds that the evidence preponderates against the Commissioner's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5thCir. 1994); Harrell, 862 F.2d at 475.

         The court must, however, “scrutinize the record in its entirety to determine the reasonableness of the decision ... and whether substantial evidence exists to support it.” Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992). In assessing the administrative evidence, the court looks to all evidence in the record. There is a notable difference between “substantial evidence” and substantial evidence on the record as a whole.” Jackson v. Hartford Accident and Indemnity Co., 422 F.2d 1272, 1277 (8th Cir. 1970). Looking to see if there is “substantial evidence on the record as a whole” involves more scrutiny. “The substantiality of evidence must take into account whatever evidence in the record fairly detracts from its weight.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 488 (1951). If the Commissioner's decision is supported by the substantial evidence on the record as a whole and does not show an error of law, then it is a conclusive and must be upheld. Richardson, 402 U.S. at 390.


         A) Plaintiff's Work and Educational History

         There is some confusion in the record about McCullough's educational and work record. McCullough, who was born on December 23, 1961, reported at different times that he dropped out of high school; graduated high school; or attended and obtained a degree from a community college. He testified at the first hearing that he dropped out of school in the tenth grade because he was unable to get along with others. McCullough reported to one of the examining psychologists that he had been placed in special education classes in the fourth and fifth grades, though elsewhere in the record it is reported that he attended special education classes for four years through 1972. Two of McCullough's cousins, Mary Adcock and Glenn McCullough, Jr., provided affidavits stating McCullough dropped out of high school and his attendance at the community college was for the purposes of obtaining a GED, which he may have obtained. They attributed the erroneous report as a symptom of his mental limitations.

         All of McCullough's work experience has been doing unskilled, manual labor. The bulk of that work was as a laborer at family owned businesses for about seventeen years. McCullough claimed he was never fired from any job. Mary Adcock testified to McCullough's limited abilities to do even the simplest tasks at the family-business; to multiple serious disruptions caused by his inability to work with others, including family-member supervisors; and his family's attempts to accommodate him by moving him around to different jobs within the company. She said the family ultimately fired him anyway, and would have done so sooner, but for the family relationship.

         His other work experience was as a stage hand and helper setting up for special events and concerts, loading and unloading equipment. He had three months of performing some light janitorial work in 2008. McCullough's description of that janitorial job because of very light demands, is consistent with a sheltered, rather than a competitive job. His wage records also show multiple, very short-term jobs, after he was fired from the family business and before his last work in 2008.

         B Medical Evidence Physical Impairments

         The plaintiff suffers from physical, as well as cognitive impairments. His primary physical impairments are right-sided spasticity as a result of a stroke he suffered in 1996 and was treated for in 1997. McCullough also suffered a severe friction burn to his left lower leg in 2006, which took months to heal. For the purposes of this decision, a detailed exposition of these records is unnecessary. It is important to note that his treating neurologist never mentions any cognitive or other impact secondary to the cerebrovascular event, other than right-sided spasticity and weakness in his right upper and lower extremities. It is also significant that the ALJ, in his second decision, correcting one of his earlier errors, determined that McCullough's physical problems were severe impairments at step two, and further found that he had significant physical limitations secondary to the stroke and leg injury when assessing residual functional capacity.

         ii. Cognitive and Adaptive Deficits

         McCullough's claimed cognitive disorders and adaptive difficulties are set out in his testimony, the testimony of his cousin, Mary Adcock, her affidavit, and the affidavit of another cousin, Glenn McCullough, Jr., and the evaluations by the two examining psychologists.

         (a) Reports of Dr. Brian Thomas

         Dr. Thomas, a neuropsychologist examined McCullough on May 5, 2013, finding evidence of mental retardation. McCullough, the only historian at the examination, reported no family history of mental retardation or mental illness. He reported that he attended special education in the fourth and fifth grades, but never repeated a grade. He explained that he worked as a stage hand at Cole Entertainment on an as-needed basis. His primary employment was doing clean up and truck loading and unloading for the family business. McCullough claimed he had never been fired or arrested, nor used drugs or alcohol. He reported right-sided weakness from an earlier stroke. McCullough told Thomas he lived alone and had basic and advanced activities of daily living including ...

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