The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
AUBREY HARVEY PLAINTIFF
V. No. 4:24-CV-00177-JM-ERE
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION DEFENDANT
RECOMMENDED DISPOSITION
This Recommended Disposition (“RD”) has been sent to United States
District Judge James M. Moody, Jr. You may file objections if you disagree with the
findings and conclusions set out in the RD. Objections should be specific, include
the factual or legal basis for the objection, and must be filed within fourteen days. If
you do not object, you risk waiving the right to appeal questions of fact, and Judge
Moody can adopt this RD without independently reviewing the record.
I. Background
On May 9, 2016, Mr. Aubrey Harvey filed an application for benefits due to
epilepsy and seizures. Tr. 538, 613.
In October 2018, the first Administrative Law Judge (“ALJ”) issued an
adverse ruling. Tr. 214-234. Since then, there have been two remands by the Appeals
Council. Tr. 237-239, 270-271. Following the second remand, an ALJ held a hearing
on July 12, 2022, where Mr. Harvey appeared with his lawyer, and the ALJ heard
testimony from Mr. Harvey, Ms. Sara Barney,1 and a vocational expert (“VE”). Tr.
135-172.2 On February 20, 2023, the ALJ issued a decision finding that Mr. Harvey
was not disabled. Tr. 15-31. The Appeals Council denied Mr. Harvey’s request for
review, making the ALJ’s decision the Commissioner’s final decision. Tr. 1-6.
Mr. Harvey, who was thirty-five years old at the time of the July 2022 hearing,
completed the 11th grade and has no past relevant work experience. Tr. 107-108, 142.
II. The ALJ’s Decision3
The ALJ found that Mr. Harvey had not engaged in substantial gainful activity
since May 9, 2016, the application date. Tr. 17. The ALJ also concluded that Mr.
Harvey had the following severe impairments: epilepsy/seizures, closed right ankle
fracture, obesity, borderline intellectual function, depression, anxiety, and post-
traumatic stress disorder. Id. However, the ALJ concluded that Mr. Harvey did not
have an impairment or combination of impairments that met or equaled an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 18.
1 Ms. Barney has been friends with Mr. Harvey since they were 13 years old and considers
him family. After Mr. Harvey’s grandmother died, he needed a place to live and moved in with
Ms. Barney’s family. Tr. 122, 128.
2 There were four hearings on Mr. Harvey’s application for social security benefits
(7/25/2017, 03/12/2020, 01/06/2021, 7/12/22) because of the remands. Tr.41-134.
3 The ALJ followed the required sequential analysis to determine: (1) whether the claimant
was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe
impairment; (3) if so, whether the impairment (or combination of impairments) met or equaled a
listed impairment; and (4) if not, whether the impairment (or combination of impairments)
prevented the claimant from performing past relevant work; and (5) if so, whether the impairment
(or combination of impairments) prevented the claimant from performing any other jobs available
in significant numbers in the national economy. 20 C.F.R. § 416.920(a)-(g).
According to the ALJ, Mr. Harvey had the residual functional capacity
(“RFC”) to perform light work, with the following limitations: (1) no climbing
ladders, ropes, or scaffolds; (2) no exposure to unprotected heights, moving
mechanical parts, deep water, open flames, motor vehicles, or extreme heat; (3) only
simple, routine, repetitive work; (4) only usual work situations and routine work
changes; and (5) occasional social interaction with the public. Tr. 22.
In response to hypothetical questions incorporating the above limitations, the
VE testified that a substantial number of potential jobs were available in the national
economy, including small products assembler, cleaner housekeeper, and mail room
clerk. Tr. 30, 166. Accordingly, the ALJ determined that Mr. Harvey was not
disabled.
III. Discussion
A. Standard of Review
In this appeal, the Court must review the Commissioner’s decision for legal
error and determine whether the decision is supported by substantial evidence on the
record as a whole. Brown v. Colvin, 825 F.3d 936, 939 (8th Cir. 2016) (citing
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010)). “Substantial evidence” in
this context means “enough that a reasonable mind would find [the evidence]
adequate to support the ALJ’s decision.” Slusser v. Astrue, 557 F.3d 923, 925 (8th
Cir. 2009) (citation omitted). In making this determination, the Court must consider
not only evidence that supports the Commissioner’s decision, but also evidence that
supports a contrary outcome. Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015).
The Court will not reverse the Commissioner’s decision, however, “merely because
substantial evidence exists for the opposite decision.” Long v. Chater, 108 F.3d 185,
187 (8th Cir. 1997) (citation omitted).
B. Mr. Harvey’s Arguments for Reversal
Mr. Harvey contends that the Commissioner’s decision is not supported by
substantial evidence, because the ALJ: (1) did not fully and fairly develop the record;
(2) erred at Step Three; (3) improperly assessed Mr. Harvey’s subjective complaints;
and (4) determined an erroneous RFC. Doc. 7 at 4-5. After carefully reviewing the
record as a whole, I recommend reversing the Commissioner’s decision and
remanding this case.
C. Analysis
Mr. Harvey asserts four reasons for reversal. The first one is meritless,4 but
the remaining three all involve in the ALJ’s failure to adequately account for Mr.
Harvey’s mental impairments.
4 There are two problems with Mr. Harvey’s argument that the ALJ failed to develop the
record because she “only ordered a neurological and normal psychological exam.” Id. at 11. First,
although Mr. Harvey requested a neuropsychological assessment, he conceded at the hearing that
“DDS is not paying for that . . . .” In fact, the Program Operations Manual Systems expressly
prohibits such an exam: “Do not purchase neuropsychological batteries. However, consider the
results of neuropsychological batteries when they are part of the medical evidence of record.” DI
24583.050 Using Psychological Tests to Evaluate Mental Disorders, SSA POMS DI 24583.050.
As to Mr. Harvey’s contention that the ALJ erred by rejecting his “credibility
as to his intellectual disability based upon boilerplate findings” about his pain
complaints, the Commissioner’s response is simply that “the ALJ applied the proper
legal standard, made express findings, and provided valid reasons for his assessment
of Plaintiff’s subjective complaints.” Doc. 9 at 16. But Mr. Harvey makes a valid
argument, which is strengthened by his two other arguments, as discussed below.
The ALJ’s opinion focused heavily on discrediting Mr. Harvey’s pain
complaints,5 while downplaying the primary issue in this case – Mr. Harvey’s
intellectual impairments. The ALJ’s detailed discussion of pain arguably related
only to a healed ankle wound. But Mr. Harvey’s intellectual impairments, not his
pain, are his biggest hurdles to gainful employment.
Second, Mr. Harvey now takes issue with the exam the ALJ ordered, but, at the hearing, counsel
did not object when the ALJ said she was “going to request a separate neurological CE.” Tr. 171.
5 For example, the ALJ’s findings on this point include the following:
[T]he claimant’s degree of pain relief seeking behavior and treatment is not
indicative of a degree of pain that would limit activities beyond the scope of the
residual functional capacity as determined in this decision.
[T]he claimant’s pain appears to be well controlled without prescription or over-
the-counter medications.
[T]here is no record that he takes anything for pain.
[T]he undersigned finds that the pain and discomfort factor is not of such
persistence or severity as to be disabling.
Tr. 27 (emphasis added).
Several things stand out about Mr. Harvey’s intellectual impairments. The
ALJ found that Mr. Harvey has only moderate limitations in his ability to maintain
pace. This appears to be based primarily, if not solely, on Dr. John Faucett’s 2022
exam noting that although Mr. Harvey “worked very slowly on timed tests of
Processing Speed, he was able to answer questions on the Arithmetic subtest
rapidly.” Tr. 20, 1341, 1343. The ALJ gave Dr. Faucett’s opinion “great weight”
and found it consistent with the record. Tr. 29. Oddly, the ALJ appears to interpret
the second part of the analysis as but Mr. Harvey “was able to answer questions on
the arithmetic subset rapidly.” Tr. 20. Answering rapidly does not mean Mr. Harvey
answered correctly. Notably, Mr. Harvey’s arithmetic subtest scaled score was a 3,
which is a very poor performance on this section of the testing.
Dr. Steve Shry’s 2017 report is consistent with Dr. Faucett’s opinion. Dr.
Shry found that Mr. Harvey was “significantly impaired in his ability to complete
tasks within acceptable time frames.” Tr. 987. Yet, the ALJ gave Dr. Shry’s opinion
only some weight. Tr. 28.
Both Dr. Faucett and Dr. Shry concluded that Mr. Harvey was not
exaggerating his symptomology. Tr. 987, 1343. Both also found that Mr. Harvey
tested at borderline intellectual functioning. However, Dr. Faucett found that the
total IQ score might underrepresent Mr. Harvey’s abilities. The ALJ relied heavily
on Dr. Faucett’s suspicion that Mr. Harvey’s full-scale WAIS-IV score of 65 (and
subset scores mostly 5 or below) “likely underestimate [Mr. Harvey’s] intellectual
ability to some extent.” Tr. 26, 1341. Whether Mr. Harvey’s IQ is borderline or
barely above does not change the fact that he “worked very slowly,” had a
“processing speed” of 62, and is “significantly impaired in his ability to complete
tasks within acceptable time frames” because of his mental impairments. Tr. 987.
In her 2021 opinion, the same ALJ noted that Mr. Harvey “tried to work at
Cat’s Claws but was unable to keep up with the quota and kept making errors.” Tr.
253. In her 2023 opinion, the ALJ did not address Mr. Harvey’s inability to meet
quota. However, the comments from the 2021 opinion are consistent with the
findings by Dr. Faucett and Dr. Shry, which both support Mr. Harvey’s subjective
complaints about being unable to perform a job.
The ALJ also discussed Dr. Sonia Cox’s September 2022 exam, which noted
that Mr. Harvey had “some difficulties with commands that required left-right
orientation” and “severely decreased calculations and related attention to tasks” in
the exam. Tr. 25, 28, 1331, 1336. Dr. Cox also concluded that Mr. Harvey’s
“intellectual functioning level [would] impact his ability to obtain and maintain
employment.” Tr. 1336. The ALJ made no mention of this relevant finding or its
consistency with the opinions of Dr. Shry and Dr. Faucett. Nor did the ALJ address
the entirely consistent testimony of Ms. Barney, who lives with Mr. Harvey and
observes him daily.
The ALJ noted that Mr. Harvey could perform counting serial sevens on one
exam. Tr. 20. Yet, on another exam, Mr. Harvey was unable to correctly recite either
serial sevens or serial twos. Tr. 1331.
Mr. Harvey’s mental impairments and their real-world effects must be
considered in a work-like setting, not in the abstract. At the very least, an ALJ must
explain how Mr. Harvey could overcome his mental impairments and still be able to
perform the jobs cited by the VE. Again, the ALJ found only moderate limitations
in concentrating, persisting, or maintaining pace. Tr. 20. Then, with minimal
explanation, the ALJ limited Mr. Harvey to simple, routine, repetitive tasks, and the
ability to respond to usual work situations and routine work changes. Tr. 22. These
limitations do not account for Mr. Harvey’s well-documented issue of maintaining
pace. As noted above, the ALJ recognized this very issue (Mr. Harvey “worked very
slowly on the timed tests of the Processing Speed composite”) but summarily
dismissed it because Mr. Harvey “answered quite rapidly during the Arithmetic
subtest.” Tr. 1343. But the ability to quickly give a wrong answer to a math question
does not resolve Mr. Harvey’s clearly established pace problem. On this record, the
ALJ provided insufficient analysis of Mr. Harvey’s pace limitations.
Ms. Barney testified at the hearing about Mr. Harvey’s activities of daily
living (“ADLs”) and his seizures. Tr. 122-129. She testified that although Mr.
Harvey had some independence, he needed constant reminders and was, preferably,
not left alone at home. Even though her testimony was entirely consistent with the
medical evidence in the record, the ALJ dismissed it, noting that Ms. Barney was
“not medically trained to make exacting observations as to the date, frequency types,
and degrees of medical signs and symptoms, or the frequency or intensity of unusual
moods or mannerisms.” Tr. 29. Ms. Barney’s observations required no medical
expertise; rather, they were observations by someone who interacts with Mr. Harvey
daily and is in a position to observe firsthand the effects of his mental impairments.
Ultimately, the ALJ said she would consider Ms. Barney’s observations to the extent
that they were consistent with the record. Tr. 29. The purported reason for
discounting them at all is troubling, especially since Ms. Barney’s observations were
entirely consistent with the record.
Mr. Harvey, who first started drawing benefits in second grade,6 is an adult
individual with an 11th grade education (in special education classes), with
borderline intelligence, poor reading and math skills, who has never lived alone,
can’t drive, has to have others explain the mail he receives from Social Security,
requires constant reminders of his ADLs, plays only simple video games, goes
fishing, and watches TV but has problems following the plot. Tr. 145, 151-152, 783.
6 There were breaks in Mr. Harvey’s receipt of benefits, but they appear to be unrelated to
him actually qualifying for benefits.
Considering these issues along with the nominal assessment of Mr. Harvey’s pace,
the ALJ failed to adequately explain her reasons for not applying a more restrictive
RFC.
IV. Conclusion
As set out above, the ALJ’s RFC failed to adequately consider the record as a
whole. Accordingly, the ALJ’s decision is not supported by substantial evidence.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision be
REVERSED, and the case be REMANDED for further review.
Dated 20 August 2024.
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