Brown v. Astrue (CONSENT)

Filing 15

MEMORANDUM OPINION. Signed by Honorable Judge Terry F. Moorer on 10/15/12. (Furnished to SSA Appeals and SSA Chief Judge.)(scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
LOIS BROWN, on behalf of
M.J.A.B.,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 1:11cv859-TFM
(WO)

MEMORANDUM OPINION
I. PROCEDURAL HISTORY
This case is about a child with a troubled history: (1) his birth mother suffered from
a drug addiction; (2) he was dropped on his head as an infant; (3) he was diagnosed with
shaken-baby syndrome; and (4) he has struggled throughout most of elementary school,
despite receiving special education accommodations from teachers and the guidance of his
college-educated grandmother and guardian. (R. 281.) The plaintiff, Lois Brown, filed this
lawsuit on behalf of her minor grandchild, M.J.A.B., challenging a final judgment by
Defendant Michael J. Astrue, Commissioner of Social Security, in which he determined that
M.J.A.B. is not “disabled” and, therefore, not entitled to child supplemental security income
benefits. On June 3, 2008, the plaintiff filed on behalf of M.J.A.B. an application for
supplemental security income benefits. The plaintiff’s application was denied at the initial
administrative level.

The plaintiff then requested and received a hearing before an

Administrative Law Judge (“ALJ”).

Following the hearing, the ALJ determined that

M.J.A.B. is not disabled. The Appeals Council rejected a subsequent request for review. The
ALJ’s decision consequently became the final decision of the Commissioner of Social
Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The
parties have consented to the undersigned United States Magistrate Judge rendering a final
judgment in this lawsuit. The court has jurisdiction over this lawsuit under 42 U.S.C. §§
405(g) and 1383(c)(3).2 Based on the court’s review of the record in this case and the briefs
of the parties, the court concludes that the decision of the Commissioner is due to be
REVERSED and REMANDED.
II. STANDARD OF REVIEW
An individual under 18 is considered disabled “if that individual has a medically
determinable physical or mental impairment, which results in marked and severe functional
limitations, and which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
1382c(a)(3)(C)(I) (1999). The sequential analysis for determining whether a child claimant
is disabled is as follows:
1.

If the claimant is engaged in substantial gainful activity, [s]he is not
disabled.

2.

If the claimant is not engaged in substantial gainful activity, the

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No.
103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social
Security matters were transferred to the Commissioner of Social Security.
2

Title 42 U.S.C. §§ 405(g) and 1383(c)(3) allow a plaintiff to appeal a final decision of the
Commissioner to the district court in the district in which the plaintiff resides.

2

Commissioner determines whether the claimant has a physical or
mental impairment which, whether individually or in combination with
one or more other impairments, is a severe impairment. If the
claimant’s impairment is not severe, [s]he is not disabled.
3.

If the impairment is severe, the Commissioner determines whether the
impairment meets the durational requirement and meets, medically
equals, or functionally equals in severity an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. If the impairment satisfies this
requirement, the claimant is presumed disabled.

See 20 C.F.R. § 416.924(a)-(d) (1997).
The Commissioner’s regulations provide that if a child’s impairment or impairments
are not medically equal, or functionally equivalent in severity to a listed impairment, the
child is not disabled. See 20 C.F.R. § 416.924(d)(2) (1997). In determining whether a child's
impairment functionally equals a listed impairment, an ALJ must consider the extent to
which the impairment limits the child’s ability to function in the following six “domains” of
life: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting
and relating with others; (4) moving about and manipulating objects; (5) caring for oneself;
and (6) health and physical well-being. Shinn ex rel. Shinn v. Comm'r of Soc. Sec., 391 F.3d
1276, 1279 (11th Cir. 2004); 20 C.F.R. § 416.926a(b)(1). A child’s impairment functionally
equals a listed impairment, and thus constitutes a disability, if the child’s limitations are
“marked” in two of the six life domains, or if the child's limitations are “extreme” in one of
the six domains. Shinn, 391 F.3d at 1279; 20 C.F.R. § 416.926a(d).
In reviewing the Commissioner’s decision, the court asks only whether his findings
concerning the steps are supported by substantial evidence. Dyer v. Barnhart, 395 F.3d

3

1206, 1210 (11th Cir. 2005). Substantial evidence is “more than a scintilla,” but less than a
preponderance: it “is such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158–59 (11th
Cir. 2004) (quotation marks omitted). The court “may not decide the facts anew, reweigh
the evidence, or substitute . . . [its] judgment for that of the [Commissioner].” Phillips v.
Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir. 2004) (alteration in original) (quotation marks
omitted).

The court must, however, conduct an “exacting examination of the

[Commissioner's] conclusions of law.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990).
III. INTRODUCTION
A. The Commissioner’s Decision
M.J.A.B. was 11 years old at the hearing before the ALJ. (R. 47.) The plaintiff
alleges that, on August 1, 2003, M.J.A.B. became disabled due to depression, attention deficit
hyperactivity disorder, lower intelligence, speech therapy, and slow learning. (R. 39-40, 206.)
The ALJ, in his opinion, followed the regulations’ three steps as listed above when he
analyzed M.J.A.B.’s claim. After doing so, he concluded that M.J.A.B. is not disabled and,
therefore, denied her claim for supplemental social security benefits. Under the first step,
the ALJ found that M.J.A.B. is not engaged in substantial gainful activity. At the second
step, the ALJ found that M.J.A.B. has severe impairments of attention deficit hyperactivity
disorder (ADHD), anxiety disorder, borderline intellectual functioning, and a learning
disorder. (R. 14.) At step three, the ALJ found that M.J.A.B.’s impairments, when
4

considered singularly or in combination, do not meet or medically equal in severity the
criteria for any impairment listed at 20 CFR, part 404, Subpart P, Appendix 1, including
Listing 112.05, Mental Retardation. (R. 14-15.)
In addition, the ALJ concluded that M.J.A.B.’s impairments do not functionally equal
a Listing. (R. 15-24.) Specifically, the ALJ found that M.J.A.B. has “a marked limitation
in the domain of acquiring and using information.” (R. 19.) Relying on assessments by Dr.
Simpson and Dr. Jordan, teachers, and standardized test scores, the ALJ determined that
M.J.A.B. reads below his grade level, requires special education assistance in the classroom,
and has received full scale IQ scores between 55 and 79 on multiple administrations of the
WISC intelligence test. (R. 19.)

However, because “his IEP report for the 2008-2009

school year stated that the [Comprehensive Test of Nonverbal Intelligence (CTONI)] was
used as a result of verbal and nonverbal discrepancies on other IQ testing” and the results of
the CTONI “showed that the claimant obtained a standardized test score of 86, a pictorial IQ
of 79 and a geometric IQ of 96," the ALJ found that M.J.A.B.’s functional limitations were
marked and not extreme. (Id.)
The ALJ concluded that M.J.A.B. has “less than marked limitation in attending and
completing tasks.” (R. 20.) He further concluded that M.J.A.B. has no limitation in the
domains of interacting and relating to others, moving about and manipulating objects, and
health and physical well-being. (R. 20-24.) The ALJ concluded that M.J.A.B. does not have
an extreme limitation in one area of functioning, nor does he have a marked limitation in two
areas of functioning. (R. 24.) Consequently, the ALJ determined that M.J.A.B. is not
5

disabled. (R. 25.)
B. The Medical and School Records
In February 2005, Dr. Randall Jordan, a psychologist, conducted a psychological
evaluation of M.J.A.B. (R. 281-282.) M.J.A.B.’s grandmother reported that M.J.A.B. is
behind academically, has attention problems, and that “on birth mother’s side of the family
there is a lengthy history of mental illness, mental retardation, crack use, etc.” (R. 281.)
During the evaluation, M.J.A.B. took the Weschler Intelligence Scale for Children, Third
Edition (“WISC-III”). On the WISC-III, he achieved a verbal IQ score of 81, a performance
IQ score of 81 and a full scale IQ score of 79. (R. 282.) Dr. Jordan found:
Overall, a more aggressive approach to treatment would be initiation of
stimulant medications. It is very difficult to ascertain if this child has low IQ
or ability and this is making him inattentive or if he is inattentive and this is
making cognition difficult. It may be one of those questions that really cannot
be answered unless treatment is initiated.
(R. 282.) Dr. Jordan’s diagnostic impression was attention deficit disorder, provisional, and
borderline intellectual functioning, provisional. (Id.)
During the 2005-2006 school year, M.J.A.B. was reevaluated for special education
services. (R. 242-248.) Upon reviewing the results of testing, classroom observation, and
work samples, school officials determined that M.J.A.B. was eligible to receive special
education services for his specific learning disabilities. (R. 248.) His records reflect that he
“had to constantly be reminded to attend to the tasks at hand [and] would call words without
sounding them out and had trouble blending sounds into words.” (R. 244.) In addition, his
work samples included “[m]ostly failing grades across all academic areas and [p]oor
6

handwriting skills.” (R. 245.)
In February 2006, M.J.A.B. had a psychological evaluation by Dr. David C. Ghostley,
a consultative psychologist. (R. 287-288.) Dr. Ghostley noted:
Today, his grandmother presented with a WISC-IV evaluation that
shows his Full-Scale IQ to be 59 (Extremely Low Range). The WISC-IV test
results also indicate composite scales as follows: Verbal Comprehension-59,
Perceptual Reasoning-71, Working Memory-74, and Processing Speed-73.
[M.J.A.B.] was also diagnosed with Learning Disorder NOS. It is also
noteworthy that his non-verbal intelligence was measured at 86 which places
him in the Low Average Range there.
(R. 287.) Dr. Ghostley’s diagnostic impression was Learning Disorder NOS and borderline
intellectual functioning, rule out mild mental retardation. (R. 288.) Dr. Ghostley also found
that “[M.J.A.B]’s ability to function in an age-appropriate manner, cognitively,
communicatively, socially, adaptively, behaviorally, and in concentration, persistence, and
pace is moderately to markedly impaired by Mental Slowness and Learning Disabilities.”
(Id.)
During the first quarter of second grade, M.J.A.B. received a B in Reading, a C in
Mathematics, a D in Language and Spelling, and an N in Writing. (R. 256.) Over the course
of the 2007-2008 academic year, however, his grades steadily improved. M.J.A.B. received
A’s and B’s during the third and fourth quarters of school. (Id.)
On January 25, 2007, M.J.A.B. sought treatment from his pediatrician, Dr. Jeffrey
Tamburin, for an “ADD/ADHD follow up.” (R. 295.) The grandmother reported that
M.J.A.B. was doing “much better on Adderall” and that his grades were improving. (R.
295.) Dr. Tamburin assessed attention deficit disorder with hyperactivity and prescribed a
7

thirty-day supply of Adderall XR. (Id.) During a well-child exam on August 28, 2007,
M.J.A.B.’s grandmother reported that M.J.A.B. was a “slow starter in second grade.” (R.
298.) Dr. Tamburin assessed:
314.01 - Attention Deficit Disorder w/Hyperact. The patient’s status
has improved. The patient’s quality of school work is consistent and
unchanged, has signs consistent with normal appetite and no significant weight
loss noted, has normal sleep patterns with no difficulty sleeping, demonstrates
normal behavior at school, displays normal and appropriate behavior at home.
The patient uses currently prescribed medication(s) on weekdays only.
(R. 299.)
During a follow-up appointment with Dr. Tamburin on October 24, 2007, M.J.A.B’s
grandmother reported the following history:
. . . [M.J.A.B.] was off medication over the summer. Has now gone 3 months
of school off medications and not doing well. He is fidgety and inattentive and
not following directions. Teachers say he is horribly behind. When he is on
the medication he does really really well. A student. Eats and sleeps fine on
medication.
(R. 300.) Dr. Tamburin’s assessment was attention deficit disorder with hyperactivity. (Id.)
Dr. Tamburin determined that M.J.A.B. should restart his prior dosage of Adderall and
encouraged his grandmother to “keep follow ups and to keep up with his meds so we do not
get so far behind in school.” (Id.)
In third grade, M.J.A.B. was reevaluated for special education services. (R. 231-241.)
The IEP team determined that, during the 2008 to 2009 school year, M..J.A.B. should receive
at least 60 minutes of special education services in both Mathematics and Reading in the
class room each day and 30 minutes of small group instruction in the resource room between

8

one and five times per week in Mathematics as needed. (R. 233-234.) In addition, the team
determined that M.J.A.B. should receive the following accommodations: (1) proximity
seating; (2) extended length of time for assignments; (3) shorter assignments; (4) frequent
checks for understanding; and (5) tests read orally in all subject areas as needed. (Id.)
On March 21, 2008, M.J.A.B. returned to Dr. Tamburin for a follow-up appointment,
complaining of behavior problems. (R. 302.) Dr. Tamburin found:
. . . The patient’s status has improved. The patient’s quality of school work
is improved, behavior at school has improved, displays normal and appropriate
behavior at home. Meds help him focus and help with hyperactivity. He is
followed by Jeff Justice for counseling. That is helping. Gmom thinks that he
may have some learning disability. School and Jeff Justice doing some testing.
Gmom says he is getting meds regularly. Not sure how that is possible since
he has had only two Rx’s since October 2007.
(Id.) Dr. Tamburin prescribed Adderall and recommended that M.J.A.B. continue to receive
counseling. (Id.)
On May 30, 2008, M.J.A.B. had a psychological evaluation by Dr. Robert S. Kline
III, a clinical psychologist.3 (R. 304.) M.J.A.B. was administered the WISC and the
Woodcock-Johnson Tests of Academic Achievement (“WJ”). On the WISC, M.J.A.B.’s
scores ranged from low average to extremely low ranges. (R. 304-305.) For example, he
achieved a verbal score of 59, a perceptual reasoning score of 77, a working memory score
of 65, and a processing speed score of 85. (R. 305.) His full scale IQ score was 65, which
places him in the extremely low range of functioning with the score falling in the first

3

In his report, Dr. Kline noted that he did not conduct a formal diagnostic and clinical interview with
M.J.A.B. (R. 304.)

9

percentile of his peer group. (Id.) Dr. Kline found that “it is believed that his overall score
represents little more than a mathematical average of his vastly fluctuating abilities in the
component areas.” (Id.) On the WJ, Dr. Kline found that M.J.A.B.’s low-range scores were
“generally consistent with overall academic difficulty and specifically with learning
problems in math and both receptive and expressive written language.” (R. 306.)
On July 9, 2008, M.J.A.B. went for an initial visit with Dr. Murtuza Kothawala, a
pediatric neurologist, at Southeast Neurology. (R. 366.) Dr. Kothawala reviewed Dr.
Kline’s testing and determined that M.J.A.B’s IQ score appeared to be around 67. (R. 366367.) Upon conducting an examination, Dr. Kothawala assessed a “10-year-old boy with
mild to moderate cognitive impairment, ADHD, and possible depression. . . . The probable
cause of the cognitive impairments is this boy could be either genetic abnormality, prenatal
or postnatal injury, which can result in mild to moderate cognitive impairment.” (R. 367.)
The neurologist recommended that M.J.A.B. continue taking Adderall and Paxil. (Id.)
On July 9, 2008, M.J.A.B. also went to Southeast Psychiatric Services for an initial
evaluation. (R. 335.) Dr. Meghani’s assessment was a learning disorder; attention deficit
disorder by history; rule out Depression Disorder; and questionable head injury/shaken baby
as a child. (R. 339.) The psychiatrist prescribed Paxil. (Id.) On July 26, 2008, M.J.A.B.
returned to Dr. Meghani for a follow-up examination. The psychiatrist noted M.J.A.B.’s
symptoms of depressive disorder had improved. (R. 334.)
M.J.A.B. returned to Dr. Kothawala’s office for a follow-up visit on August 8, 2008.
(R. 368.) The grandmother reported that M.J.A.B. was taking his medication and attending
10

school in special education classes. (Id.) She expressed her concerns about his loss of
appetite and decreasing grades. (Id.) Dr. Kothawala noted that an MRI and EEG were
normal, assessed ADHD and mild cognitive impairment, and recommended that he continue
taking his medication. (Id.) On September 8, 2012, M.J.A.B.’s father reported that “if
[M.J.A.B.] is off the medication he becomes very hyperactive and he is not able to
concentrate in school.” (R. 364.) Dr. Kothawala assessed ADHD, mild anxiety disorder, and
mild cognitive impairment. (Id.)
On September 12, 2008, M.J.A.B. returned to Dr. Meghani’s office. M.J.A.B.’s
grandmother reported that M.J.A.B. communicates better and that his teacher notices a
difference in his attention span when he is taking Adderall. (R. 332.)
During a well-checkup at Dothan Pediatric Clinic on September 19, 2008, a nurse
practitioner noted “[n]o academic problems, no behavior problems at school or at home.”
(R. 346.) The practitioner assessed adjustment disorder, NOS, attention deficit disorder with
hyperactivity, and learning difficulties. (R. 347.)
During a follow-up appointment with Dr. Kothawala on October 17, 2008, M.J.A.B.’s
father reported that M.J.A.B. was performing better in school. (R. 362.) Dr. Kothawala
assessed ADHD and mild anxiety and recommended that M.J.A.B. continue taking Adderall
and Paxil. (Id.) On November 17, 2008, M.J.A.B.’s father reported that M.J.A.B. was doing
well in school.

(R. 358.)

Dr. Kothawala assessed ADHD and mild anxiety and

recommended that M.J.A.B. continue taking his medication. (Id.) In December 2008,
M.J.A.B.’s grandmother reported that M.J.A.B. was having problems with Mathematics. (R.
11

360.) Dr. Kothawala recommended that M.J.A.B. continue taking Adderall and Paxil and
“discussed about Mathematics and dyslexia.” (Id.)
Achievement tests from March 2009 indicate M.J.A.B. scored at “Level II (Partially
Meets Standards)” in Reading and “Level I (Does Not Meet Standards)” in Mathematics.
(R. 257.) On the Stanford Achievement Test, he scored in the 11th percentile in Reading,
the 4th percentile in Mathematics, and the 2nd percentile in Language. (Id.)
M.J.A.B. returned for a follow-up appointment with Dr. Kothawala on April 24, 2009.
(R. 354.) The neurologist assessed ADHD, Cognitive Impairment, and Anxiety and
recommended that M.J.A.B. continue taking Adderall, Paxil, and Periactin. (Id.)
During a well check-up at Dothan Pediatric Clinic on November 11, 2009, a nurse
practitioner noted that M.J.A.B. was “[i]n 4th grade but not doing well academically, no
behavior problems noted at school or at home. Attends special education. Receives ST and
OT.” (R. 342.) The practitioner assessed learning difficulties and attention deficit disorder
without hyperactivity and recommended that M.J.A.B. continue taking Adderall and Paxil.
(R. 343.)
On December 17, 2009, M.J.A.B. returned to Dr. Kothawala’s office. (R. 356.) His
grandmother reported that M.J.A.B. “is doing very well in school and his medication is
working.” (R. 356.) Dr. Kothawala recommended that M.J.A.B. continue taking his
medication. (Id.)
Between June 2008 and December 2009, Jeffery C. Justice, MS, LPC, provided
counseling to M.J.A.B. on a routine basis. (R. 383-398.)
12

The counselor diagnosed

adjustment reaction NOS and hyperkinesis with developmental delay. (Id.) On several
occasions, the counselor noted that M.J.A.B. was passing academically with accommodations
in Math and Reading. (Id.) In a letter dated May 14, 2010, the counselor stated that
“M.J.A.B. appears to have a mood disorder with features associated with depression as well
as anxiety and possibly complications with delayed grief and bereavement regarding his
maternal great-grandmother who he was very close to passing away.” (R. 415.) In addition,
the counselor stated:
[M.J.A.B.] is attending Jerry Fain Elementary School in the 4th grade.
He is in special education and also receives accommodations with his having
his most academic difficulty with math. He has had additional tutoring and
assistance from teachers as well as his paternal grandmother, who is a college
graduate, in trying to assist him with multiplication and division problems to
no avail as he appears to lack adequate progress in this area. Possibly,
[M.J.A.B.] may have math as a learning disability.
(Id.) The counselor concluded that M.J.A.B. “does appear to have a psychiatric disorder of
a mood disorder, also having difficulty with academics within the school system, and overall
functioning within the home and family, with his peer group, as well as the community. As
I have seen [M.J.A.B.] bi-monthly, as his grandmother is very responsible in ensuring that
he makes his bi-monthly individual and family appointments, it would be this clinician’s
opinion that without ongoing mental health services, [M.J.A.B.] would regress and
deteriorate as far as his mental well-being and his overall functioning.” (R. 416.)
During the 2010-2011 academic year, school officials reevaluated whether M.J.A.B.
should continue to receive an individualized education program. School officials found:
. . . [M.J.A.B’s] teacher, Ms. Salter, reports that [M.J.A.B.] is a very
13

quiet and polite young man. His peers like him and he gets along well with
others. She also states that [M.J.A.B.] requires constant prompts to maintain
focus and complete his assignments. She feels that [M.J.A.B.] is capable of
demonstrating better on task behaviors with a little maturity. Ms. Salter feels
that [M.J.A.B.] will continue to need extra support to remain successful in the
general classroom setting.
[M.J.A.B.]’s independent level in reading is slightly below grade level.
[M.J.A.B.] benchmarked on his fourth grade DIBELS. The most recent
ThinkLink data reveal that [M.J.A.B.] is proficient on most reading content
standards at the fourth grade level. [M.J.A.B.] performs well with decoding but
struggles to comprehend questions associated with reading assignments,
directions, and tasks; especially those that require written responses. His
difficulty with reading comprehension adversely affects his ability to
comprehend reading related content areas across the curriculum. He will
require extra assistance on some assignments in the general education
classroom.
Math is [M.J.A.B.]’s weakest area. Classroom based performance
reveal that [M.J.A.B.] is not proficient with numbers/operations and
data/probability at the fourth grade level. Most recent STAR Math test scores
reveal [M.J.A.B.] scores approx. 1.9-2.0GE. These scores suggest Michael is
in an early state of learning basic math skills. He continues to need concrete
objects such as counters, number lines, and/or Touch Points to work math
problems. . . .
(R. 272.) The IEP team recommended that, in both Reading and Mathematics, M.J.A.B.
should receive 45 minutes of special education services, 45 minutes of supplementary aids
and services, and 45 minutes of accommodations. (R. 274-277.)
On February 11, 2010, M.J.A.B. had a psychological evaluation by Dr. Randall
Jordan, a consultative psychologist. (R. 401-402.) Dr. Jordan found as follows:
. . . Speech was understandable at 100% and did not reflect pressured
processes but was “soft” in nature. Affect was stable but was congruent with
mood, which might be described as pleasant but shy but appropriate to
situation. General concentration and memory skills appeared intact. Fund of
information . . . seemed somewhat below average based on baseline mental
14

status questions. Abstractions were somewhat concrete as the claimant could
say how simple items such as a banana and orange were similar and different
but not more complex ones such as work and play. Intelligence is estimated
to be in the Borderline range based on interview.
(R. 402.) On the WISC-IV, he achieved a verbal IQ score of 61, a performance IQ score of
69, a working memory IQ score of 65, and a full scale IQ score of 62. (R. 403.) On the
Wide Range Achievement Test-III, he received an 82 in Reading, an 80 in Spelling, and a
54 in Arithmetic. (Id.) Dr. Jordan also found that in the domains of development or
functioning, M.J.A.B has marked ability to acquire and use information, attend and complete
tasks, and care for oneself, less-than-marked ability to interact and relate with others, and no
limitation in moving and manipulating objects or physical well-being. (R. 405-407.) Dr.
Jordan determined:
Scores are consistent with Dr. Kline’s report in 2008 that language
based achievement scores are much better than arithmetic. Overall, language
achievement is much better than intelligence scores.
Overall, his functional abilities and achievement scores would point
towards borderline abilities than mentally retarded levels of achievement. It
may be that his shy nature prohibits his overall performance in the more
verbally and interactive intelligence test setting.
Daily Living Skills are somewhat compromised by intellectual function.
Psychiatric function does not interfere with these tasks. These skills are not
compromised by the claimant’s physical function. Activities of daily living
such as bathing and grooming are not limited. Socially, the claimant functions
in a fairly normal manner per self-report. The claimant spends the majority of
[his] day playing and at school. Overt social skill problems are not noted.
(R. 403.) Dr. Jordan’s diagnostic impression was attention deficit disorder, impulsive
subtype; and borderline intellectual functioning “based on functional performance and

15

achievement test, intelligence certainly falls in MR range.” (Id.) Dr. Jordan also determined
that “[i]ntelligence issues are and will be problematic” and that “[c]ontinued psychiatric and
medical care is needed.” (R. 404.)
On March 3, 2010, Dr. Kline conducted an additional psychological evaluation. (R.
418-424.) Dr. Kline noted that M.J.A.B. “appeared slightly depressed” and “overtly
anxious” and that he was taking his medication as prescribed. (R. 420, 423.) During the
evaluation, M.J.A.B. took the WISC-IV and the Woodcock-Johnson Tests of Academic
Achievement. (R. 422-423.) On the WISC-IV, he achieved a verbal IQ score of 65, a
perceptual reasoning IQ score of 59, and a full scale IQ score of 55. (R. 422.) Dr. Kline
assessed:
[M.J.A.B.] may experience great difficulty in keeping up with his peers in a
wide variety of situations that require age-appropriate thinking and reasoning
abilities. His ability to think with words is comparable to his ability to reason
without use of words. Both Michael’s verbal and nonverbal reasoning abilities
are in the Extremely Low range. He performed slightly better on verbal than
on non-verbal reasoning tasks, but there is no significant meaningful difference
between [M.J.A.B.’s] ability to reason with and without the use of words.
(R. 421.) Dr. Kline also found that M.J.A.B.’s ability to sustain attention, concentrate, and
exert mental control is in the borderline range and that his ability to process simple or routine
visual material without making errors is in the extremely low range when compared to his
peers. (R. 422.) Dr. Kline’s diagnostic impression was adjustment disorder, mixed,
complicated bereavement; math disorder; and mild mental retardation. (R. 424.) Dr. Kline
recommended that M.J.A.B. continue with his established regimen of psycho tropic
medication and counseling. (Id.)
16

On March 16, 2010, M.J.A.B. returned to Dr. Kothawala for a follow-up visit. The
grandmother reported that M.J.A.B. continued to have problems in school and was struggling
with mathematics. (R. 412.) Dr. Kothawala assessed ADHD, mild cognitive impairment, and
anxiety disorder and recommended that M.J.A.B. continue taking his medication. (R. 413.)
In a letter dated May 14, 2010, M.J.A.B.’s counselor advised:
[M.J.A.B.] is attending Jerry Fain Elementary School in the 4th grade.
He is in special education classes and also receives accommodations with his
having his most academic difficulty with math. He has had additional tutoring
and assistance from teachers as well as his paternal grandmother, who is a
college graduate, in trying to assist him with multiplication and division
problems to no avail as he appears to lack adequate progress in this area. . . .
(R. 415.) The counselor also assessed:
[M.J.A.B.] does appear to have a psychiatric disorder of a mood
disorder, also having academics within the school system, and overall
functioning within the home and family, with his peer group, as well as the
community. As I have seen [M.J.A.B.] bi-monthly individual, as his
grandmother is very responsible in ensuring that he makes his bi-monthly and
family appointments, it would be this clinician’s opinion that without ongoing
mental health services, [M.J.A.B.] would regress and deteriorate as far as his
mental well-being and overall functioning. [M.J.A.B.] could suffer greatly
without his medications and the stability, safety, and permanency that is trying
to be provided by his paternal grandmother, Lois Brown.
(R. 416.)
On September 30, 2010, Dr. Fred George, a clinical psychologist, conducted the
Vineland Adaptive Behavior Scales II testing. (R. 510.) Dr. George noted that the plaintiff’s
response to the testing was appropriate and the grandmother’s responses were “likely a
realistic representation of [M.J.A.B.’s] adaptive behavior.” (Id.) Dr. George assessed an
Adaptive Behavior Composite of 61, which falls below the 1st percentile in the mildly
17

retarded range of functioning. (Id.)
III. ISSUES
The plaintiff presents the following issues for this court’s review:
(1)

Whether the ALJ erred as a matter of law by failing to properly
evaluate M.J.A.B.’s mental condition pursuant to C.F.R. part 404,
Subpart P, Appendix 1 § 112.05D.

(2)

Whether the ALJ erred by discrediting every treating and
examining psychologist as well as M.J.A.B.’s counselor.

(Pl’s Br., Doc. # 12, p. 1).
IV. DISCUSSION
The plaintiff raises several issues and arguments related to this court’s ultimate
inquiry of whether the Commissioner’s disability decision is supported by the proper legal
standards and by substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987).
However, the court pretermits discussion of the plaintiff’s specific arguments because the
court concludes that the Commissioner erred as a matter of law, and thus, this case is due to
be remanded for further proceedings. Specifically, the court finds that the Commissioner
failed to properly evaluate whether M.J.A.B. meets Listing 112.05 at Step Three of the
sequential evaluation.
The plaintiff argues that the ALJ erred as a matter of law by failing to properly
consider whether M.J.A.B. has significantly subaverage general intellectual functioning with
deficits in adaptive behavior. The court agrees.
At Step Three, the ALJ determined:

18

The claimant’s impairments do not meet the requirements of Listing
112.02, 112.05 or 112.06. William H. Simpson, Ph.D. opined that the claimant
has neither met nor equaled any listing. (Exhibit 7F). The claimant does not
have marked limitations in two of the following: age-appropriate
cognitive/communicative function; age-appropriate social functioning; age
appropriate personal functioning; and concentration, persistence, or pace.
With regard to Listing 112.05, the claimant’s IQ testing also fails to
support the requirements of Listing 112.05. The claimant also had multiple
administrations of the WISC intelligence test.
However, during
administrations of the Wechsler Intelligence Test for Children (WISC) he
obtained a full scale IQ of 79 in 2005, a full scale IQ of 61 in 2006, a full scale
IQ of 65 in 2008, a full scale IQ score of 62 in 2010, and a full scale IQ score
of 55 also in 2010 (Exhibits 1F, 6F, 9F, 15E, 16F, and 20F). However, a
Comprehensive Test of Nonverbal Intelligence (CTONI) showed that the
claimant obtained a standardized score of 86, a pictorial IQ of 79, and
geometric IQ of 96. His IEP report for the 2008-2009 school year stated that
the CTONI was used as a result of the verbal and nonverbal discrepancies on
other IQ testing (Exhibit 15E). Moreover, Randall Green Jordan, Psy.D. also,
following the February 2010 administration of the WISC, diagnosed the
claimant as having only borderline intellect based on his functional
performance and achievement tests despite the intelligence testing
administered during his examination of the claimant (Exhibit 16F). The
claimant’s 2008 and 2010 Individualized Education Plans (IEP) both show that
the claimant required only resource room, small group instruction in 2008 for
math. His 2010-2011 assessment shows that the claimant will receive all
special education accommodations in the regular class room (Exhibit 15E and
21E). The claimant’s mental impairment does not cause the required deficits
in adaptive functioning to meet the requirements of Listing 12.05. Moreover,
the CTONI scores show clearly that he is not functioning at the mentally
retarded level.
(R. 14-15.)
“The structure for mental retardation (112.05) . . . is different from that of the other
mental disorders.” 20 C.F.R. Pt. 220, App. 1, 112.05 MENTAL DISORDERS. Listing 112.05
contains an introductory paragraph with the diagnostic description for mental retardation.
The Listing defines mental retardation as follows:
19

112.05 Mental Retardation: Characterized by significantly subaverage
general intellectual functioning with deficits in adaptive behavior.
The required level of severity for this disorder is met when the
requirements in A, B, C, D, E, or F are satisfied. . . .
D. A valid verbal, performance, or full scale IQ of 60 through 70 and
a physical or other mental impairment imposing additional and significant
limitation of function; . . .
20 C.F.R. Pt. 404, Subpt. P App. 1, Listing 112.05(D).
Consequently, a claimant meets the strictures of 112.05(D) by presenting evidence of
(1) significantly sub-average intellectual functioning with deficits in adaptive behavior; (2)
a valid IQ score of 60 to 70 inclusive; and (3) evidence of an additional mental or physical
impairment that imposes an additional and significant limitation of functioning. In this
Circuit, it is presumed that “mental retardation is a condition that remains constant
throughout life.” Hodges v. Barnhart, 276 F.3d 1265 (11th Cir. 2001). See also Burt v.
Barnhart, 151 Fed. App. 817, *2 (11th Cir. 2005).
First, the Commissioner concedes M.J.A.B.’s IQ scores below 70 are valid. (Def’s
Br., p. 9.) In addition, the record establishes that M.J.A.B’s IQ scores have gradually
worsened over the course of his childhood. For example, in 2005, M.J.A.B. achieved a full
scale IQ score of 79. (R. 282.) However, in 2006, his full scale IQ score fell to 59. (R. 287.)
In 2008, he achieved a full scale IQ score of 65. (R. 305.) In 2010, his full scale IQ score
dropped to 62. (R. 282, 287, 305, 403.) In addition, Dr. Robert Kline III, a clinical
psychologist, noted that M.J.A.B’s full-scale IQ score of 65 was an accurate refection of his
current abilities. (R. 304.) Thus, there is substantial evidence in the record establishing that

20

M.J.A.B. has a valid full-scale IQ score which falls within the 60 through 70 range.
The Commissioner also concedes that M.J.A.B. suffers from an additional mental or
physical impairment that imposes an additional and significant limitation of functioning. In
his analysis, the ALJ found that M.J.A.B. has severe impairments of attention deficit
disorder, anxiety disorder, borderline intellectual functioning, and learning disorder. (R. 14.)
The record also indicates that M.J.A.B. suffers from depression and adjustment disorder,
mixed, complicated bereavement, and that he has taken antidepressant medication on a
routine basis since the death of his great-grandmother. (R. 424.) Thus, M.J.A.B. meets the
subsection (D) requirement of Listing 112.05.
The parties disagree on whether M.J.A.B. has demonstrated additional deficits in
adaptive functioning in accordance with the introductory paragraph. Deficits in adaptive
functioning “refers to how effectively individuals cope with common life demands and how
well they meet the standards of personal independence expected of someone in their
particular age group, sociocultural background, and community settling.” DSM IV at 42.
Deficits in this area must be “significant” to meet Listing 112.05. 20 C.F.R. pt. 404, subpt.
P, app. 1, § 112.05.
When determining that M.J.A.B. “does not have marked limitations in two of the
following: age-appropriate cognitive/communicative function; age-appropriate social
functioning; age appropriate personal functioning; and concentration, persistence, or pace”
(R. 14), the ALJ improperly conflated his assessment of whether M.J.A.B. meets or
medically equals Listing 112.05 with a determination of whether he functionally equals the
21

Listing.
The ALJ also failed to set forth sufficient reasons for finding that “the claimant’s
mental impairment does not cause the required deficits in adaptive functioning to meet the
requirements of Listing 12.05.”4 The ALJ merely concludes that “the claimant does not have
marked limitations in two of the following: age-appropriate cognitive/communicative
function; age-appropriate social functioning; age appropriate personal functioning; and
concentration, persistence, or pace.” (R. 14.) In doing so, the ALJ wholly fails to articulate
his specific reasons for determining that M.J.A.B. does not have additional deficits in
adaptive functioning. The Commissioner is tasked with the responsibility to “adopt
reasonable and proper rules and regulations to regulate and provide for the nature and extent
of the proofs and evidence and the method of taking and furnishing the same” in disability
cases. Heckler v. Campbell, 461 U.S. 458, 466 (1983) (quoting 42 U.S.C. § 405(a)). While
the regulations permit an ALJ to use “any of the measurement methods recognized and
endorsed by the professional organizations” to satisfy the elements of Listing 112.05, Mental
Retardation, see 67 Fed.Reg. 20018, 20022, basic due process mandates that the plaintiff be
advised of the measurement methods to be utilized and his/her requisite burden of proof.
Unquestionably, procedural due process is applicable to adjudicative administrative
proceedings such as Social Security disability hearings before an ALJ. Richarson v. Perales,
402 U.S. 389, 401-402 (1971). This is so because the right to a hearing necessarily implies

4

The court presumes the ALJ intended to discuss § 112.05.

22

the right to a fair hearing; in other words, “process which is a mere gesture is not due
process.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950). A
hearing at which a person is allocated a burden of proof of which the person has no notice
is not fair in any respect. The record is devoid of any evidence that the plaintiff had notice
that the ALJ intended to require him to demonstrate deficits in adaptive functioning in two
of the aforementioned areas to meet the Listing. Consequently, the court concludes that the
ALJ erred as a matter of law by failing to notify the plaintiff of the measurement
methodology he intended to utilize and to notify the claimant of her burden of proof
regarding the requisite deficits of adaptive functioning necessary to meet the Listing.
More importantly, the record is replete with evidence of M.J.A.B.’s continued
academic struggles, short attention span, and lack of age-appropriate thinking and reasoning
abilities. For example, the medical records from a clinical psychologist who has evaluated
M.J.A.B. on at least three occasions indicate that, even when M.J.A.B. takes his medication
as prescribed, his “general cognitive ability is within the Extremely Low range of intellectual
functioning.” (R. 420-421.) Dr. Kline assessed that “M.J.A.B. may experience great
difficulty keeping up with his peers in a wide variety of situations that require ageappropriate thinking and reasoning abilities,” that his ability to sustain attention, concentrate,
and exert mental control is in the borderline range, and that his ability to process simple or
routine visual material without making errors is in the extremely low range when compared
to his peers. (R. 421-422.) In addition, Dr. Kline found that M.J.A.B. suffers from mood
changes, depression, and grief. (R. 422.) Jeff Justice, M.J.A.B.’s counselor, also noted that
23

M.J.A.B. is in special education classes with accommodations and that he receives additional
tutoring and assistance from tutors and his grandmother “to no avail.” (R. 415.) School
records also indicate that, even with accommodations and special education assistance,
M.J.A.B.’s academic performance has steadily worsened over the course of his childhood.
(R. 245, 256, 272.)
Despite the longitudinal treatment history, the ALJ completely ignores evidence which
contradicts his finding that M.J.A.B.’s “mental impairment does not cause the required
deficits in adaptive functioning to meet the requirements of Listing 12.05.” (R. 15.) When
concluding that M.J.A.B. does not meet the Listing, the ALJ merely relies on the opinion of
Dr. William H. Simpson, a non-examining physician, and the diagnostic impression of Dr.
Randall Jordan, a consultative psychologist, that M.J.A.B. has “Borderline Intellectual
Functioning (based on functional performance and achievement test, intelligence certainly
falls in MR range).” (R. 403.) The ALJ is not free to simply ignore medical evidence, nor
may he pick and choose between the records selecting those portions which support his
ultimate conclusion without articulating specific, well supported reasons for crediting some
evidence while discrediting other evidence. Marbury, 957 F.2d at 840-841.
When determining M.J.A.B.’s mental impairment does not cause the required deficits
in adaptive functioning, the ALJ does not explain what weight he gives the evidence and why
he relies on some evidence but not other evidence. Without an explanation of the weight
accorded by the ALJ to all of the various medical opinions and other evidence, it is
impossible for a reviewing court to determine whether the ultimate decision on the merits of
24

the claim is rational and supported by substantial evidence.
“Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ’s
duty to investigate the facts and develop the arguments both for and against granting
benefits.” Sims v. Apfel, 530 U.S. 103, 110-111 (2000).
The SSA is perhaps the best example of an agency that is not based to a
significant extent on the judicial model of decisionmaking. It has replaced
normal adversary procedure with an investigatory model, where it is the duty
of the ALJ to investigate the facts and develop the arguments both for and
against granting benefits; review by the Appeals Council is similarly broad.
Id. The regulations also make the nature of the SSA proceedings quite clear.
They expressly provide that the SSA “conducts the administrative review
process in an informal, nonadversary manner.” 20 C.F.R. § 404.900(b).
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000).
For these reasons, the court concludes that the Commissioner erred as a matter of law,
and that the case should be remanded for further proceedings.
VI. CONCLUSION
Accordingly, this case will be reversed and remanded to the Commissioner for further
proceedings consistent with this opinion.
A separate order will be entered.
Done this 15th day of October, 2012.

/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

25

26