UNITED STATES DISTRICT COURT

 NORTHERN DISTRICT OF TEXAS

 LUBBOCK DIVISION

ARNOLDO MARTINEZ, §

§

 Plaintiff, §

§

v. § CIVIL ACTION NO.

§ 5:05-CV-0163-C

 § ECF

JO ANNE B. BARNHART, § 

Commissioner of Social Security, §

§

Defendant. §

 REPORT AND RECOMMENDATION

Plaintiff Arnoldo Martinez seeks judicial review of a decision of the Commissioner

of Social Security denying his application for Disability Insurance Benefits (DIB) and

Supplemental Security Income (SSI). The United States District Judge, pursuant to

28 U.S.C. § 636(b), referred this case to the United States Magistrate Judge for report and

recommendation, proposed findings of fact and conclusions of law, and a proposed judgment.

After reviewing the administrative record and the arguments of both parties, this court

recommends that the court reverse the Commissioner’s decision. 

I. Administrative Record

Martinez filed his applications for DIB and SSI alleging he was unable to work

because of pain in his waist, back, and hands. (Tr. 81.) He also alleged that he suffered from

depression and experienced anger and anxiety. (Tr. 94, 97.) Physicians have diagnosed

Martinez with various psychological disorders including alcohol and cannabis dependency;

 

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A GAF score is an assessment of an individual’s psychological, social, and occupational functioning based on a hypothetical

continuum of mental health and mental illness. AMERICAN PSYCHIATRIC ASS'N DIAGNOSTIC AND STATISTICAL

MANUAL OF MENTAL DISORDERS at 34 (4th ed. 2000) (DSM-IV). An individual assigned GAF scores ranging from 40

to 50 would be expected to experience serious to major impairments in social and occupational functioning. Id. 

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personality disorder Not Otherwise Specified (NOS); major depressive disorder; anxiety

disorder NOS; paranoid personality disorder, posttraumatic stress disorder, chronic; and

delusional disorder, persecutory type. (Tr. 10, 180, 211, 263, 266.) Physicians have

determined his Global Assessment of Functioning (GAF) score to range from 40 to 50.1

(Tr. 175, 217, 263, 266.) 

Martinez stated in application documents and at the hearing that he was depressed;

had difficulty controlling anger; experienced difficulty getting along with people; “ran away”

his friends; felt the “world crumbling all around”; indicated that non-specified persons

intentionally caused him stress and “wore [him] out”; and that things that upset him the most

were false accusations and lies. (Tr. 94, 96, 99, 324.) It is unclear from the medical records

when Martinez’s emotional problems first surfaced, but his problems with paranoia and

delusional thinking are attributed to a situation that occurred with employees of the La Joya

Independent School District in Mission, Texas. (See Tr. 175, 215, 266.) 

Martinez explained to physicians that school officials mistreated his children because

of a personal vendetta against him which began thirty years earlier when he was a student in

the school district and intervened in a situation to stop the principal’s brother from abusing

a small child. (Tr. 175.) He claimed that in 1997-98 three coaches at the elementary school

mistreated and assaulted his son, who is learning disabled, and that the school principal

 

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mentally abused the child. (Tr. 175, 215.) 

Martinez claimed that he filed criminal charges against the coaches and principal, that

the charges were dropped, and that he was therefore forced to initiate his own investigation.

He claimed that police had tampered with evidence, that a report from the Texas Department

of Health and Safety had been changed, and that an attorney for the school district had lied.

(Id.) According to Martinez, a restraining order was entered in 1999 which prohibited him

from appearing near the school district and its teachers and coaches. He appealed the entry

of the restraining order but was unsuccessful; he believed that “they fixed the court” and that

a judge mishandled the case. (Tr. 175-76, 215.) In sum, Martinez believed that employees

of the school district, the city manager, the district attorney, the city police, and judges

conspired against him. (Tr. 215.) He claimed, however, that he “had gotten” some of the

employees of the school district – the district had terminated the employment of one of the

coaches, a superintendent, and six other employees. (Tr. 176, 215.) 

Although the situation with the school district employees occurred in the late 1990's

and Martinez and his family subsequently moved to Lubbock, Texas, Martinez continued an

obsession with the events that occurred in Mission, Texas, and reported to mental health

providers in October 2001, July 2002, and May 2004, that his problems of depression, stress,

and anxiety stemmed from those events and continued to plague him. (Tr. 175-80, 215-18,

263.) A therapist at Texas Tech University reported that Martinez continued to focus his

efforts on rectifying the past events and proving to others that the events transpired.

(Tr. 265.) He reported new allegations from Martinez including his belief that police

 

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kidnapped his daughter and held a gun to her head, that his son had been suicidal because of

the events in Mission, Texas, and that he believed that his own medical problems could be

attributed to him swimming in chemicals as a child. (Tr. 266.) The therapist believed that

Martinez exhibited delusions of persecution, citing to Martinez’s allegation that “he was

‘pulled over’ by a police officer” which he believed was a result of him being “set up” by a

local judge. (Id.) Although the therapist initially believed that Martinez suffered from

posttraumatic stress syndrome and was not delusional, he later noted that Martinez insisted

on showing him documentation to verify his allegations and that as rapport increased,

Martinez’s claims of persecution became increasingly delusional. (Tr. 265, 268.) At that

time it was suspected that Martinez suffered from delusional disorder, persecutory type.

(Tr. 266, 268.) 

II. The Commissioner’s Decision

The Administrative Law Judge (ALJ) determined that Martinez was capable of

performing light exertional activity with restrictions that would accommodate his physical

and mental impairments. (Tr. 20.) In regard to the impact of Martinez’s mental impairments,

the ALJ determined that he was slightly impaired in his ability to understand, remember, and

carry out short, simple instructions; moderately restricted in his ability to understand and

remember detailed instructions; markedly limited in his ability to carry out detailed

instructions; and slightly impaired in his ability to make work-related decisions. (Id.)

In regard to the impact of his mental impairments on his ability to work with others, the ALJ

determined that Martinez was able to respond appropriately to supervision, co-workers, and

 

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work pressures; slightly impaired in his ability to interact appropriately with the public and

to respond appropriately to changes in work settings; and moderately restricted in his ability

to interact appropriately with supervisors and co-workers. (Tr. 20-21.) 

The ALJ stated that for large periods of time Martinez’s mental functioning was

adversely impacted by use of illegal drugs and by lack of appropriate treatment and that

Martinez’s ability to function, absent the use of drugs and alcohol and with appropriate

treatment, was accurately reflected in his residual functional capacity determination.

(Tr. 21.) Based on testimony from a vocational expert and using the Medical-Vocational

Guidelines as a framework for decision-making, he determined that Martinez could work as

an office helper and a small products assembler but that because of Martinez’s need to

alternate between sitting and standing, the number of jobs which exist in these professions

that Martinez could perform was reduced by fifty percent. (Tr. 24.) 

III. Martinez’s Arguments 

Martinez argues that the Commissioner’s decision that he is not disabled is incorrect

and contends that the Appeals Council failed to properly consider evidence he presented after

the hearing and that the ALJ erred in determining his residual functional capacity and in

determining that he could meet the requirements of jobs identified by the vocational expert.

IV. Discussion

Martinez submitted to the Appeals Council a document from his treating psychologist

at Texas Tech University dated April 5, 2005, which includes a summary of his treatment and

psychiatric diagnoses. (Tr. 10.) The psychologist noted that the Texas Tech Department of

 

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It should be noted that although the Appeal’s Council in Higginbotham included a brief notation that it had reviewed

the additional evidence (similar to the notation provided by the Appeals Council in this case), the Fifth Circuit Court of

Appeals did not remand the case on that ground. 405 F.3d at 337-38. Nothing in Higginbotham requires the court to

remand a claimant’s case based on the fact that the Appeals Council did not thoroughly discuss new evidence. Rather,

the decision in Higginbotham put to rest questions concerning whether an Appeals Council’s denial of review is subject

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Psychology had provided treatment for Martinez on a weekly basis since April 2004, that

Martinez’s principal diagnosis, delusional disorder, persecutory type, was the impetus for his

“difficulties of poor functioning”; that he was also diagnosed with posttraumatic stress

disorder and partner relational problem; and that he had been assigned a current GAF of 40.

(Id.) 

Martinez argues that the new evidence demonstrates that his mental impairments meet

the criteria of a listed impairment in the Commissioner’s regulations. He further argues that

the Appeals Council’s consideration of the new evidence is inadequate, pointing out that the

psychologist’s report is not mentioned in the notice of denial of review and that this was error

requiring remand. He cites Higginbotham v. Barnhart, 405 F.3d 332 (5th Cir. 2005)

in support of his arguments. 

Under Higginbotham, the evidence Martinez submitted to the Appeals Council is part

of the Commissioner’s final decision and subject to the court’s substantial evidence review.

405 F.3d at 337-38. The Appeals Council noted that it had considered the reasons Martinez

disagreed with the ALJ’s decision and found that “this information does not provide a basis

for changing [the] decision.” (Tr. 4-5.) Although the Appeals Council could have been

more clear as to the “information” it considered, the court should assume the Appeal’s

Council considered the new evidence.2

 

 

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to judicial review and directed that a reviewing court must consider new evidence submitted to the Appeals Council and

the Appeals Council’s review of the evidence. 405 F.3d at 337-38. Therefore, to the extent that Martinez contends that

the Appeals Council must, in every case, provide a detailed analysis of new evidence, his contention must be rejected.

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On the other hand, remand should issue for further consideration of the new evidence.

The Fifth Circuit Court of Appeals has looked with disfavor and remanded decisions in

which the Appeals Council provided only a cursory review of new evidence that might have

changed the ALJ’s decision. See Smith v. Schweiker, 646 F.2d 1075, 1082 (5th Cir. 1981);

Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir. 1980); Higginbotham, 405 F.3d at 334. In this

case, the new evidence might have changed the ALJ’s decision. 

First, the new evidence may establish that Martinez’s delusional disorder meets the

criteria of Listing 112.03, the listing for schizophrenic, delusional (paranoid),

schizoaffective, and other psychotic disorders. 20 C.F.R. pt. 404, subpt. P. app. 1 § 112.03.

The last evidence before the ALJ regarding Martinez’s treatment for his mental impairments

was dated July 14, 2004. (Tr. 266-67.) That evidence indicates that Martinez’s

psychologists suspected that he suffered from the disorder but none of the evidence before

the ALJ included a confirmed diagnosis. The new evidence confirms the diagnosis and

establishes that Martinez suffered from delusions of the persecutory type. One of the criteria

in Listing 112.03 requires that the claimant suffer from delusions for at least six months. 20

C.F.R. pt. 404, subpt. P. app. 1 § 112.03 (A). The new evidence indicates that Martinez

experienced delusions for more than six months. (Tr. 10, 266-67.) 

 The new evidence also demonstrates that after the date of the last evidence in the

record that the ALJ considered, Martinez continued to undergo psychological treatment for

 

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An individual with a GAF score of 50 would be expected to experience serious impairments in social and occupational functioning,

while an individual with a GAF score of 40 would be expected to suffer from more severe symptoms and would be expected to

experience major impairments in social and occupational functioning. AMERICAN PSYCHIATRIC ASS'N DIAGNOSTIC AND

STATISTICAL MANUAL OF MENTAL DISORDERS at 34 (4th ed. 2000) (DSM-IV). 

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nine months, and despite continued treatment, his mental impairments did not improve.

In fact, the evidence suggests that his emotional and mental condition declined. The last

evidence before the ALJ included a report that Martinez’s GAF score was 50 and the new

evidence shows that his GAF score was 40.3

 The evidence also shows that he continued to

suffer from delusional disorder and other psychological disorders and that he exhibited “poor

functioning.” (Tr. 10, 266.) 

This evidence might have changed the ALJ’s findings regarding Martinez’s residual

functional capacity and his determination that Martinez could work. The ALJ stated that

Martinez’s mental functioning was adversely impacted by his use of illegal drugs and lack

of appropriate treatment. (Tr. 21.) He further stated that his residual functional capacity

determination accurately reflected Martinez’s ability to function, absent the use of drugs and

alcohol and with appropriate treatment. (Id.) The ALJ’s statement indicates that he believed

that with abstinence from drugs and alcohol and with appropriate treatment, Martinez could

work with the limitations included in his residual functional capacity finding. The new

evidence demonstrates, however, that Martinez’s condition did not improve despite almost

one full year of treatment. (Tr. 10, 263.) Further, the GAF score of 40 assigned to Martinez

in the new evidence and the diagnosis of delusional disorder indicate that he would

experience a major impairment in the ability to work, a lack of occupational functioning, and

 

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difficulties in working and interacting appropriately with co-workers and supervisors.

AMERICAN PSYCHIATRIC ASS'N DIAGNOSTIC AND STATISTICAL MANUAL OF

MENTALDISORDERSat 34, 323-25. This evidence detracts from the ALJ’s determination

that Martinez was only moderately restricted in his ability to interact appropriately with

supervisors and co-workers. 

 The new evidence provides insight into the severity and limitations caused by

Martinez’s mental impairments and his response to clinical treatment. Therefore, it should

have been considered in deciding the merits of his claim. Because neither the ALJ nor the

Appeals Council analyzed the additional evidence, the court should remand Martinez’s case

for consideration of the entire record, including the additional evidence submitted to the

Appeals Council. Higginbotham, 405 F.3d at 337; Smith, 646 F.2d at 1082; Epps, 624 F.2d

at 1273.

 

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V. Recommendation

Based on the foregoing discussion of the issues, evidence and the law, this court

recommends that the United States District Court reverse the Commissioner’s decision and

remand this case for further administrative proceedings. 

VI. Right to Object

Pursuant to 28 U.S.C. § 636(b)(1), any party has the right to serve and file written

objections to the Report and Recommendation within ten days after being served with a copy

of this document. The filing of objections is necessary to obtain de novo review by the

United States District Court. A party’s failure to file written objections within ten days shall

bar such a party, except upon grounds of plain error, from attacking on appeal the factual

findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto

Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).

Dated: March 27, 2006.

______________________________________

NANCY M. KOENIG

United States Magistrate Judge

 

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