MacLean v. Colvin, (S.D. Fl. June 11, 2018) (Magistrate Judge William Mathewman)

Included: Plaintiff’s Memorandum of Law in Support of Motion for Summary Judgment, Plaintiff’s Reply Brief, Report and Recommendation, and Order

Issues Briefed:

1. 1)  The Appeals Council committed reversible error in failing to remand this matter to the ALJ for consideration of the newly submitted evidence.

2. 2)  The ALJ’s determination that Mr. MacLean does not have an impairment that meets the requirements of Listing 12.05C is not based on substantial evidence.

3. 3)  The ALJ’s credibility finding is not supported by substantial evidence.

4. 4)  The Commissioner failed to sustain her burden of establishing that there is other work in the national economy that Mr. MacLean could perform.

In MacLean, an intellectual disability case, the court held that the Appeals Council adopted the ALJ’s decision without adequately addressing a post-hearing “critical letter” written by the claimant’s father, “describing his son’s work activity with the father’s company.” Slip op. at 25, 29. As the court explained:

At multiple stages of the ALJ’s decision, the ALJ pointed to Plaintiff’s steady employment at his part-time job to support the ALJ’s contention that Plaintiff is capable of working and can do a full-time job. The ALJ also relied on the fact that Plaintiff “said he completed high school and received a diploma” in determining that Plaintiff’s symptoms are not as severe as Plaintiff has alleged. The ALJ also pointed to Plaintiff’s ability to obtain a learner’s permit. The ALJ also relied on this information when he determined what weight to give the credibility of both Plaintiff and the State Agency Psychological Consultant. In fact, the ALJ pointed to both Plaintiff s education and work history in determining that Plaintiff is capable of making an adjustment to work that exists in significant numbers in the national economy.

Id. at 30 (record citations omitted).

However, the detailed letter from the Plaintiff s father explained that Plaintiff was:

in special education since the age of three, only received a Special Education Diploma with the help of his father, cannot drive to gas stations as part of his employment (although he obtained a learner’s permit), cannot complete job applications on his own, was unable to find a real job in the community as opposed to “make-work” provided by a loving father, and was unable to complete simple tasks assigned to him by his father.

Id. at 32. Thus, the court concluded that the “Appeals Council failed to fairly and fully consider this new information and failed to remand this case back to the ALJ for consideration of the new and material evidence.” Id.

The court also observed that according to the father’s letter, it appeared Plaintiff was “off- task for a certain period of time during Plaintiff’s employment with his father” which was “significant because in response to a hypothetical from the ALJ, the vocational expert testified that if a hypothetical claimant, with the same limitations as Plaintiff, was off-task for 20% of the workday, the hypothetical individual would not be capable of performing any work in the region or national economy.” Id. at 31. The court concluded that there was a reasonable possibility that the ALJ's decision would have been different if “he had considered the father's letter or heard from the father and fairly considered the new evidence” and the Appeals Council reversibly erred when it failed to remand this case to consider this new and material evidence. Id. at 31-32. “In light of the new evidence, the ALJ’s decision is not supported by substantial evidence in the record as a whole.” Id.

The court next held that it could not find, “based upon the record, that the ALJ’s finding that Plaintiff did not meet the criteria required by 12.05C of the Listing of impairments was supported by substantial evidence.” Id. at 33-38. The court observed that in “Plaintiff’s most recent evaluation, he achieved a valid IQ score of 69, which creates a rebuttable presumption that the claimant manifested deficits in adaptive functioning before age 22.” Id. at 36. In rejecting the ALJ’s findings, the court went on to state:

Additionally, the ALJ relied on the fact that Plaintiff was able to complete high school and receive a high school diploma in making his determination. However, Plaintiff did not attend “regular” high school, but instead attended special needs schools since the age of three. Plaintiff also did not earn a “regular” diploma but instead a “Special Diploma Option 2” from Believers Academy, a school for learning disabled students.

School records and evaluations demonstrate that Plaintiff had “trouble making inferences,” had “obvious” problems in providing organized oral explanations and expressing ideas in written form, playing cooperatively, and making friends. Plaintiff’s Individual Education Plan showed that Plaintiff needed accommodations and services in school related to communication, schedule, career preparation, independent living, career education, and topics like math and reading. Further school records show that Plaintiff had significant weaknesses in reading, math and writing skills, including scoring mostly below the one percentile during testing in 2009. In light of Plaintiff’s school records, evaluations, and the new and material evidence submitted to the Appeals Council by Plaintiff, the Court is unable to find that the ALJ's decision was supported by substantial evidence.

Id. at 36-37 (record citations omitted).

Finally, the court held that “there is a reasonable possibility” that the new and material evidence submitted to the Appeals Council “would also impact the ALJ’s decision in determining the Plaintiff’s credibility and the Plaintiff’s residual functional capacity.” Id. at 38. Thus the court also recommended that the Commissioner should re-evaluate Plaintiff’s credibility finding and RFC. Id.