District Court Remands After Finding Illiteracy

June 14, 2010

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

In Campbell v. Astrue, -- F. Supp.2d --, 2010 WL 1993851 (N.D.N.Y. May 17, 2010), Magistrate Victor Bianchini of the United States District Court for the Northern District of New York issued a Report and Recommendation, adopted by Chief Judge Norman Mordue, remanding an SSI case for further proceedings where the Administrative Law Judge’s (ALJ) decision to deny benefits was based on a finding of literacy that was not supported by substantial evidence. The District Court also found that the ALJ failed to adequately develop the record, improperly relied on a disability analyst’s opinion as medical evidence, and failed to consider all relevant evidence of mental impairments.

In 2005, the claimant applied for disability at age 49 based on obesity, lower back impairment, hypertension, hyperlipidemia, ventral hernia, gastrointestinal reflux disease, psoriasis, fatty liver, depression and anxiety, diabetes, and an inability to read or write. After an initial hearing at which the claimant testified, the ALJ held a supplemental hearing with a vocational expert (VE), and found the claimant was not disabled. He held the claimant’s diabetes, intellectual function, and obesity to be severe impairments, but that his depression and anxiety were non-severe. He also held that none of the claimant’s impairments met a listed impairment. While the ALJ considered Mr. Campbell’s subjective statements, he found the claimant to be “not credible.”

The ALJ granted little or no weight to the consultative examining physician’s opinion that the claimant had a moderate to marked limitation for prolonged standing or sitting and did not state what weight he afforded them. Instead, he relied on the VE’s testimony that a person with the claimant’s vocational limitations, work history, and RFC could perform the job of housekeeper and concluded that he was not disabled within the meaning of the Act. The ALJ did not consider, nor did he pose any hypothetical related to the claimant’s illiteracy. Instead, the ALJ relied on the claimant’s testimony that he read at a 7th grade level, despite numerous other references in the record to the claimant’s illiteracy.

The District Court cited the Social Security regulations (20 C.F.R. §§ 404.1564(b), 416.964(b)), stating an ALJ is only to use the numerical grade level completed by a claimant to determine educational ability if there is no other contradicting evidence, because it may not represent actual educational ability. While under the regulations a 7th grade through 11th grade level of formal education is only considered a limited education, the District Court found that the ALJ ignored repeated statements by the claimant that he could not read or write, and the record showed that he attended special education and had difficulties learning.

The record also showed that the claimant’s wife had to complete his disability forms. Under questioning by the ALJ, the claimant stated that he had a co-worker complete his reports when he worked in hotel maintenance, helped his children with arithmetic but his wife had to help with reading, was able to repair cars, despite not being able to read manuals, through experience and observation. The District Court stated that this was all evidence of record indicating that the claimant was functionally illiterate.

While the Commissioner pointed to evidence that Mr. Campbell could read a ruler, drive, help his children with math, and his admission of ability to recognize certain words, the court noted that these activities did not demonstrate the ability to “read or write a simple message such as instructions or inventory lists,” and fell short of the evidence required by the regulations to show literacy.

Although the consultative examiner psychologist testified that she tested the claimant’s IQ and was also informed that he was illiterate, she failed to assess his ability to read or write. The ALJ did not order further testing, despite an affirmative duty to develop the record, and thus the sole evidence of literacy came from the claimant’s statements. While the ALJ found that the claimant was not a credible witness regarding his own literacy, the District Court held that absence of credibility is not enough on its own to reject the testimony.

Whether the clamant was able to read or write is especially important in this case because the question is determinative of whether the claimant was disabled under the Medical Vocational Guidelines (the “Grid”.)  If he was illiterate, Rule 202.09 would have directed a finding of disabled, and in such a case a VE would have been unnecessary. SSR 83-14.

The District Court also stated that the residual functional capacity (RFC) should be reconsidered on remand, especially because the ALJ improperly relied on a disability analyst’s physical RFC assessment indicating the claimant could perform light work. The court held the ALJ mistakenly identified the analyst as a physician, but an analyst’s opinions are not entitled to evaluation as medical opinions. The ALJ also gave little or no weight to the consultative examining physician, who opined that Mr. Campbell had limitations in standing and sitting.

The District Court held that the ALJ improperly assessed the claimant’s mental impairments because he gave significant weight to opinions of a consultative psychologist, but did not mention or weigh the opinions of the State agency’s reviewing psychologist.  Despite the regulation’s requirements to do so, the ALJ did not explain why his findings were contrary to the conclusion by the psychologist that the claimant’s mental impairments are severe, or why he did not give weight or even discuss her opinions. See 20 C.F.R. §416.927(f)(2)(ii); SSR 96-6p.

Good decisions on the effect of illiteracy on a claimant’s ability to engage in substantial gainful activity are hard to come by.  We hope this case will provide some helpful authority, at least at the federal court level.  The Campbell case was handled by Louise Tarantino of the Empire Justice Center’s Albany office, and was referred by the Legal Aid Society of Northeastern New York. Thanks to Albany Law School summer intern Patrick Manning for his summary of the Campbell decision.