United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN, UNITED STATES MAGISTRATE JUDGE
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.
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”).
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.
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)).
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
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.
his age, education, and exertional capacity for light work,
the ALJ nevertheless found that Plaintiff was not disabled
under the Medical-Vocational Guidelines.
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
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).
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
appealed the 2014 Decision to the Appeals Council. The
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.
undersigned agrees. The hearing decision should be reversed
and the case remanded to the Commissioner of Social Security
for further proceedings ...