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Rayson v. Berryhill

United States District Court, N.D. Texas, Dallas Division

March 3, 2017

MARK RAYSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Mark Rayson seeks judicial review of a final adverse decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). The hearing decision should be remanded for the reasons explained below.

         Background

         Plaintiff alleges that he is disabled due to a variety of ailments, including depressive disorder, adjustment disorder, somatoform disorder, and negativistic personality disorder. After his applications for disability insurance benefits and supplemental security income (“SSI”) benefits were denied initially and on reconsideration, Plaintiff requested a hearing before an administrative law judge (“ALJ”). That hearing was held on November 28, 2012. Shortly thereafter, the ALJ issued a decision finding Plaintiff to be disabled (the “2012 Decision”).

         The ALJ largely relied on Dr. George R. Mount's assessment of Plaintiff to reach this conclusion. Dr. Mount found that Plaintiff experienced “moderate” and “marked” deficits in several functions concerning “understanding and memory, ” “sustained concentration and persistence, ” “social interaction, ” and “adaptation” based on the results of psychometric tests he conducted on Plaintiff, including the Millon Clinical Multiaxial Inventory-III (the “MCMI-III”). See Administrative Record [Dkt. Nos. 9-11 (“Tr.”)] at 1107-08.

         In the 2012 Decision, the ALJ described the MCMI-III in largely positive terms. Citing the Social Security Administration's regulations, the ALJ explained that “[the MCMI-III] may permit a more accurate evaluation than the clinical findings or tests previously used to evaluate severity, even though it relies on self-report.” Tr. at 87 (citing 65 Fed. Reg. 50746, 50764-65 (August 21, 2000)).

         On July 7, 2013, the effectuation office returned the matter to the ALJ to reevaluate Plaintiff's applications in light of evidence that Plaintiff had engaged in substantial gainful employment. Plaintiff was offered another hearing on April 24, 2014.

         In the corresponding decision (the “2014 Decision”), the ALJ found that, although Plaintiff has worked intermittently since the alleged onset date, there has been a continuous 12-month period during which Plaintiff did not engage in substantial gainful activity.

         Given his age, education, and exertional capacity for light work, the ALJ nevertheless found that Plaintiff was not disabled under the Medical-Vocational Guidelines.

         The ALJ appears to attribute his change of a heart to a July 2013 policy change to the Social Security Administration's (“SSA”) Policy Operation Management System (the “POMS”) - an internal agency document used by SSA employees to process claims and that has persuasive authority. See 1 Soc. Sec. Law & Prac. § 1:27. In the 2014 Decision, the ALJ took notice of a policy change to the POMS, see Tr. at 20, which instructs the SSA “not [to] purchase symptom validity tests (SVT) to address symptom evaluation or issues of potential malingering as part of a [consultative exam], ” POMS DI 22510.006D.

         The ALJ concluded that, in light of this change to the POMS, he could not rely on the MCMI-III test results to support his decision, even though the MCMI-III was not purchased as part of a consultative exam. He appears to conclude either that the new POMS policy, by its own terms, does not allow ALJs to consider MCMI-III test results or that the policy indicates that MCMIs are unreliable and therefore inadmissible under the Daubert standard. See Gillespie v. Astrue, No. 1:13-cv-219, 2014 WL 1168872, at *9 n.3 (W.D. La. March 21, 2014) (explaining that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), establishes the requirements for the admissibility of expert testimony under Federal Rule of Evidence 702).

         The ALJ then found that Plaintiff was not disabled. Relying on a vocational expert's testimony, the ALJ concluded that Plaintiff was capable of working as a work ticket distributor (DOT 221.667-010), car checker (DOT 222.387-014), and deliverer (outside) (DOT 230.663-010) - even if he might not be able to perform past relevant work. See Tr. at 27.

         Plaintiff appealed the 2014 Decision to the Appeals Council. The Council affirmed.

         Plaintiff then filed this action in federal district court. Plaintiff contends that “the ALJ erred in refusing to consider the [MCMI-III test results] and the opinions based on such testing, ” Dkt. No. 14 at 14.

         The undersigned agrees. The hearing decision should be reversed and the case remanded to the Commissioner of Social Security for further proceedings ...


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