Azella v. Luckey v. Commr. of Social Security

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 18, 2009
No. 08-16267 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-01105-CV-ORL-28-KRS
AZELLA V. LUCKEY,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
Commissioner, Social Security,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 18, 2009)
Before TJOFLAT, BIRCH and PRYOR, Circuit Judges.
PER CURIAM:
Azella Luckey (“Luckey”) appeals the district court’s order affirming the
Administrative Law Judge’s (“ALJ”) denial of her second application for
supplemental security income (“SSI”) under the Supplemental Security Income for
the Aged, Blind and Disabled Program, 42 U.S.C. § 1381, et seq. (“the Act”).
Luckey argues that: (1) the Commissioner of Social Security (“Commissioner”)
failed to automatically reinstate her SSI benefits following her release from prison;
(2) the Commissioner was bound by the ALJ’s previous decision to award Luckey
benefits under the Act in accordance with the doctrine of res judicata; (3) the ALJ
erred in finding that Luckey did not have a paranoid personality disorder that was a
severe impairment and that he failed to state with specificity the weight he
accorded to each medical opinion in the record and the reasons therefor; and (4) the
ALJ erred by using an incorrect legal standard to determine Luckey’s residual
functional capacity (“RFC”) and her ability to perform jobs in the national
economy. At the outset, we conclude that we do not have jurisdiction to entertain
Luckey’s first argument. We are persuaded by her third argument, find no merit in
her second and do not reach her fourth. Accordingly, we VACATE and
REMAND.
I. BACKGROUND
Luckey filed her first application for SSI on 23 February 1999, alleging a
disability onset date of 19 March 1998. R1-11 at 14. In June 2000, an ALJ found
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Luckey disabled within the meaning of the Social Security Act and awarded her
the appropriate benefits. Id. at 48-49. That ALJ found that Luckey suffered from
severe impairments diagnosed as congenital abnormality of the left leg, a
congenitally abnormal left foot with abnormal motion and physical findings, a
congenitally abnormal placed fourth toe on the right foot, severe scoliosis, allergic
rhinitis, and a paranoid personality disorder. Id. at 48. The Social Security
Administration (“SSA”) later terminated Luckey’s benefits after her incarceration
in July 2002. Id. at 14, 107. Luckey never sought review over the suspension or
termination of her previously awarded benefits through the administrative agency
process.
In August 2003, after being released from prison, Luckey filed a new
application for SSI benefits, alleging a disability onset date of 1 July 2002. Id. at
82-86, 160. Her application was denied through the reconsideration level. Id. at
52, 56. In response, Luckey requested a hearing before an ALJ. Id. at 59.
At the time of the hearing in 2006, Luckey was twenty-eight years old and
had held two jobs since she had been declared disabled in June 2000. Id. at 24, 26.
She previously had worked as a motel maid and fast food restaurant cashier but
quit each job due to the pain occasioned by all of the “standing and walking
around.” R1-11 at 25-26, 35. She had attended school through the ninth grade
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and had been enrolled in special education classes. Id. at 26-27.
Luckey told the ALJ that she suffers from a birth defect which causes one
leg to be shorter than the other. This condition results in considerable problems
with sitting, standing, and walking. Id. at 27-29. Luckey also maintained that she
has difficulty lifting heavy objects and occasionally experiences seizures if
overheated or angry. Id. at 29. In addition, she was suspicious of people, did not
trust them, tried to stay away from them, and angered easily. Id. at 30-31.
According to Luckey, in a typical day, she would dress herself, lie on her back, and
get up when it was time to cook or eat. Id. at 32-33. She was not on any
medication or seeing any doctors because she had no money or transportation. Id.
at 33. Luckey’s worst pain was concentrated in her leg, ankle, and foot. Id.
The record contained the following medical evidence. In October 1997, Dr.
Jeff Oatley (“Oatley”), a clinical psychologist, diagnosed Luckey with a paranoid
personality disorder as “indicated by suspiciousness, doubts loyalty of friends, will
not confide in others, is easily angered, and maintains anger towards others.” Id. at
270. In April 1999, Oatley reevaluated Luckey and maintained his diagnosis of
paranoid personality disorder. Id. at 267. In November 2003, Dr. Susan Conley, a
clinical psychologist, found that there was insufficient evidence to determine
whether a mental disorder affected Luckey’s RFC. Id. at 215, 227.
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In March 2004, Dr. Malcolm Graham (“Graham”), a clinical psychologist,
evaluated Luckey. Id. at 259. After conducting the Wechsler Adult Intelligence
Scale III (“WAIS-III”) test on Luckey, he opined that her score reflected “a
significant under-estimate of her overall level of intellectual functioning.” Id. at
261. He noted that her school records did not include an intellectual evaluation
“which may indicate that she was not in a class for the mildly mentally retarded.
At any rate, her IQ scores are suspect at the present time, but they indicate that she
is functioning in the mild range of mental retardation.” Id. at 261-62. He found
that her scores were “suspect” because “she did not always put forth a good effort
on many of the tasks.” Id. at 262. He also stated that during her evaluation,
Luckey had no problems in her attention, concentration, or recent or remote
memory. Id. He found that her performance on those tasks were “much higher
than what one would expect, considering her obtained level of intellectual
functioning.” Id. Nevertheless, Graham diagnosed Luckey with mild mental
retardation and probable anti-social personality disorder. Id. He also noted that
she was “at especially high risk for returning to anti-social behavior and/or the use
of drugs and alcohol.” Id. at 263.
In May 2004, Dr. Steven Wise, a psychologist, found that there was
insufficient evidence to determine whether a mental disorder affected Luckey’s
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RFC. Id. at 237, 249. He also noted that because her intelligence scores seemed
invalid there was no way to assess her current capacity with those test results. Id.
at 249. Luckey also submitted a statement from her sister-in-law, Jacqueline
Wiley. Id. at 169-77. Wiley stated that Luckey gets on her nerves and that she
could only spend about thirty minutes with her at any one time. Id. at 169. Wiley
also stated, “If you ask me, the girl got problems, and [an] attitude problem.” Id. at
173.
After considering all of the evidence, the ALJ found that Luckey had not
been under a disability as defined by the Act. Id. at 14. The ALJ applied the five-
step sequential evaluation process as defined in 20 C.F.R. § 416.920(a)(4)(i)-(v)
and made the following findings. Id. at 16-19. First, the ALJ determined that
Luckey had not engaged in substantial gainful activity during the relevant time
period. Second, the ALJ concluded that Luckey had severe impairments from a leg
deformity, back pain, and probable borderline intellectual functioning. The ALJ
noted that although a previous ALJ had found Luckey disabled, that decision was
predicated on a mental impairment of paranoid personality disorder. Id. at 18. The
ALJ stated that he was “not persuaded by the evidence of record that there is a
mental impairment present that would prevent her from performing all types of
work.” Id. at 18. The ALJ also noted that it was “suspect” that Luckey “no longer
6
required any medical treatment after she was granted disability benefits and
Medicare coverage for her congenital abnormalities or for her alleged mental
impairments.” Id. Third, the ALJ found that Luckey’s impairments, either singly
or in combination, did not meet any of the listed impairments in 20 C.F.R. § 404,
Appendix 1. Id. at 17. Fourth, the ALJ determined Luckey had a RFC for a
significant range of work at the light level of exertion but noted that due to her
probable borderline intellectual functioning, she was limited to unskilled work.
The ALJ also found that Luckey was unable to perform any past relevant work as a
motel maid or restaurant cashier. Finally, the ALJ found that a significant number
of jobs in the national economy existed that Luckey could perform given her age,
education, work experience, and RFC.
After the Appeals Council denied review, Lucky sought review in district
court. R1-1. The district court referred all motions to a magistrate judge. The
magistrate judge ordered supplemental briefing on the issue of whether Luckey’s
suspended benefits should have resumed following her release from jail, noting
that neither party had raised the issue. R1-15. After the additional briefing, the
magistrate judge recommended that the district court affirm the Commissioner’s
decision. R1-18 at 14. The magistrate judge also noted that Luckey had failed to
exhaust her administrative remedies regarding the suspension of her previous
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benefits. Id. at 10 n.4. The district court adopted the magistrate judge’s
recommendation and affirmed the decision of the Commissioner. R1-21.
II. DISCUSSION
We first address Luckey’s contentions that the Commissioner failed to
automatically reinstate her SSI benefits following her release from prison and that
the Commissioner was bound by the ALJ’s previous decision to award Luckey
benefits under the Act in accordance with the doctrine of res judicata.
We review de novo whether a district court has jurisdiction over an appeal
from the Social Security Administration. Cash v. Barnhart, 327 F.3d 1252, 1255
n.4 (11th Cir. 2003) (per curiam). We also review the decision of an ALJ as the
Commissioner’s final decision when the ALJ denies benefits and the Appeals
Council denies review of the ALJ’s decision. Doughty v. Apfel, 245 F.3d 1274,
1278 (11th Cir. 2001). We review the Commissioner’s legal conclusions de novo
and consider whether the Commissioner’s factual findings are supported by
substantial evidence. Lewis v. Barnhart, 285 F.3d 1329, 1330 (11th Cir. 2002) (per
curiam).
The Social Security Act provides for judicial review over final decisions of
the Commissioner. See 42 U.S.C. § 405(g). However, if a claimant fails to raise
an argument before the administrative agency, we will not consider it on appeal.
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Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999) (per curiam). In this case,
Luckey did not raise any arguments regarding the loss of her previously awarded
benefits to the administrative agency. Luckey ultimately argued the issue only
when instructed to do so by the magistrate judge. As such, the administrative
agency never had an opportunity to address the issue. Therefore, we will not
consider it on appeal.
Likewise, we conclude that the doctrine of administrative res judicata is not
applicable in this case. Administrative res judicata applies when the agency has
made a “previous determination or decision . . . about [a claimant’s] rights on the
same facts and on the same issue or issues, and [that] previous determination or
decision [had] become final by either administrative or judicial action.” 20 C.F.R.
§ 404.957(c)(1); see also Cash, 327 F.3d at 1255. In 2000, an ALJ determined that
based on the facts surrounding that time period, Luckey had been disabled since
March 1998. R1-11 at 48. However, in the application at issue, Luckey alleged a
disability onset date of 1 July 2002. Id. at 82. Because the factual time period for
Luckey’s current application is different from her previous application,
administrative res judicata does not apply.
We now consider Luckey’s third argument that the ALJ erred in finding that
Luckey did not have a paranoid personality disorder that was a severe impairment,
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and that the ALJ failed to state with specificity the weight he accorded to each
medical opinion in the record and the reasons therefor. As previously noted, we
review the Commissioner’s legal conclusions de novo and consider whether the
Commissioner’s factual findings are supported by substantial evidence. Lewis,
285 F.3d at 1330. “Substantial evidence is less than a preponderance, but rather
such relevant evidence as a reasonable person would accept as adequate to support
a conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per
curiam). We are precluded from “deciding the facts anew, making credibility
determinations, or re-weighing the evidence.” Id.
“The ALJ must state specifically the weight accorded each item of evidence
and the reasons for his decision.” Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir.
1986). “In the absence of such a statement, it is impossible for a reviewing court to
determine whether the ultimate decision on the merits of the claim is rational and
supported by substantial evidence.” Cowart v. Schweiker, 662 F.2d 731, 735 (11th
Cir. 1981). We have made it abundantly clear that “[u]nless the [Commissioner]
has analyzed all evidence and has sufficiently explained the weight he has given to
obviously probative exhibits, to say that his decision is supported by substantial
evidence approaches an abdication of the court’s duty to scrutinize the record as a
whole to determine whether the conclusions reached are rational.” Id. (quotation
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marks and citation omitted).
The legal framework for cases arising out of the Social Security Act is quite
familiar to us.
The burden is primarily on the claimant to prove that he is
disabled, and therefore entitled to receive Social Security disability
benefits. The Commissioner uses a five-step process to determine
whether a claimant has met the burden of proving his disability. In
order to receive disability benefits, the claimant must prove at step
one that he is not undertaking substantial gainful activity. At step
two, the claimant must prove that he is suffering from a severe
impairment or combination of impairments. At step three, if the
claimant proves that his impairment meets one of the listed
impairments found in Appendix 1, he will be considered disabled
without consideration of age, education, and work experience. If the
claimant cannot prove the existence of a listed impairment, he must
prove at step four that his impairment prevents him from performing
his past relevant work. At the fifth step, the regulations direct the
Commissioner to consider the claimant’s residual functional capacity,
age, education, and past work experience to determine whether the
claimant can perform other work besides his past relevant work.
Doughty, 245 F.3d at 1278 (citations omitted).
Our present inquiry concerns the second step of the sequential evaluation
process – whether Luckey carried her burden of proving that she has a severe
impairment or combination of impairments and whether the ALJ stated, with
adequate specificity, “the weight [he] accorded each item of evidence and the
reasons for his decision.” Gibson, 779 F.3d at 623. In this case, the record
contains three mental health evaluations by two different examining doctors. In
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1997, Oatley diagnosed Luckey with a paranoid personality disorder noting that
she was suspicious, “doubts loyalty of friends, will not confide in others, is easily
angered, and maintains anger towards other.” R1-11 at 270. In April 1999, he
reevaluated Luckey and concluded that she still had a paranoid personality
disorder. Approximately five years later, in March 2004, Graham evaluated her
and diagnosed her with a “[p]robable anti-social personality disorder” noting that
she was “at especially high risk for returning to anti-social behavior and/or the use
of drugs and alcohol.” Id. at 262-63.
After a careful reading of the ALJ’s decision, we are compelled to conclude
that the ALJ failed to state, with the requisite specificity, the weight he accorded to
each piece of medical evidence in the record. First, it is unclear whether the ALJ
considered Oatley’s diagnoses of a paranoid personality disorder.1 The ALJ’s
comments regarding Oatley’s reports were limited to the following:
It should be noted that the prior Administrative Law Judge’s finding
of disabled was predicated upon the claimant’s mental impairment of
paranoid personality disorder. The undersigned is not persuaded by
the evidence of record that there is a mental impairment present that
would prevent her from performing all types of work.
1
We recognize the force of the argument that the ALJ was not required to consider
Oatley’s diagnoses because they pertained only to Luckey’s previous disability application. That
said, Oatley’s medical reports were part of the record evidence considered by the ALJ. As we
have noted, in order for us to provide meaningful appellate review, we must have some basis for
determining whether the ALJ considered Oatley’s reports, and, if so, what weight he accorded
them.
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Id. at 18. Moreover, although the ALJ referenced Graham’s report and relied upon
it for his determination that Luckey “is not mildly mentally retarded,” id. at 17, the
ALJ does not include that portion of Graham’s report in which Graham notes that
Luckey “is functioning in the mild range of mental retardation.” Id. at 262. Most
alarmingly, the ALJ omits Graham’s ultimate diagnosis altogether – “[p]robable
anti-social personality disorder.” Id. Without a more specific statement of the
ALJ’s considerations, we are unable to discharge our duty to scrutinize the record
in order to determine whether the ALJ’s severe impairment findings are rational
and supported by substantial evidence. See Cowart, 662 F.2d at 735. Accordingly,
we are obligated to vacate the judgment of the district court and remand the case
with instructions that it be returned to the Commissioner for further proceedings
consistent with this opinion.2
III. CONCLUSION
Luckey appeals the district court’s order affirming the ALJ’s denial of her
second application for SSI. Because we conclude that the ALJ failed to state with
specificity the weight he accorded to each medical opinion in the record and the
reasons therefor, we VACATE the judgment of the district court and REMAND
2
Given our conclusion, we do not reach Luckey’s fourth and final argument regarding
the ALJ’s application of an allegedly incorrect legal standard in his determination of Luckey’s
RFC and her ability to perform jobs in the national economy.
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with instructions that the case be returned to the Commissioner for further
proceedings consistent with this opinion.
VACATED and REMANDED.
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