Owens v. Colvin (CONSENT)

Filing 15

MEMORANDUM OPINION AND ORDER directing that, in accordance with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1278 fn. 2 (11th Cir. 2006), the plaintiff shall have sixty (60) days after he receives notice of any amount of past due benefits awarded to seek attorney's fees under 42 U.S.C. § 406(b), as further set out. Signed by Honorable Judge Charles S. Coody on 03/12/2015. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
JONATHON NOLON OWENS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Defendant.

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CIVIL ACTION NO. 1:14cv620-CSC
(WO)

MEMORANDUM OPINION and ORDER
I. Introduction
The plaintiff applied for supplemental security income benefits under Title XVI of the
Social Security Act, 42 U.S.C. § 1381 et seq., and disability insurance benefits pursuant to
Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., alleging that he was unable to
work because of a disability. His 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 also denied the claim. 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).2 See Chester v. Bowen,
792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court for review pursuant

1
2

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.

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.

to 42 U.S.C. §§ 405 (g) and 1383(c)(3). 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
should be reversed and remanded for further proceedings.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment 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.
To make this determination3 the Commissioner employs a five step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
disabled.
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4

3

A “physical or mental impairment” is one resulting from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.
4

McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI).
The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately

2

The standard of review of the Commissioner’s decision is a limited one. This court
must find the Commissioner’s decision conclusive if it is supported by substantial evidence.
42 U.S.C. § 405(g); Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir.
2007). “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.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004). A reviewing court may not look only to
those parts of the record which supports the decision of the ALJ but instead must view the
record in its entirety and take account of evidence which detracts from the evidence relied
on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986). 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,] . . . scrutinize the record in its entirety to determine
the reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating
claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
A. Introduction. Owens was 29 years old at the time of the hearing before the ALJ.

cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

3

(R. 35). He has completed the seventh grade in special education classes.5 (Id.).
Owens’ prior work experience includes work as a “driver helper.” (R. 23). Following
the administrative hearing, the ALJ concluded that Owens has a severe impairment of “mild
mental retardation.” (R. 15). The ALJ concluded that Owens was able to perform his past
relevant work as a driver’s helper, and thus, he was not disabled. (R. 23). In addition, the
ALJ concluded that Owens was not disabled because he has the residual functional capacity
to perform other work that is available in the national economy. (R. 24)
B. The Plaintiff’s Claims. Owens presents two issues for the Court’s review.
1.

The Commissioner’s decision should be reversed because the ALJ failed to
follow the “slight abnormality” standard by failing to find Mr. Owens’
psoriasis and obesity as severe impairments, as required by SSR 96-3p.

2.

The ALJ committed reversible error in failing to find Mr. Owens’ mild mental
retardation meets or equals the requirements of Listing 12.05C.

(Doc. # 12, Pl’s Br. at 6 & 9).
IV. Discussion
This court’s ultimate inquiry is 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). While a claimant has the burden of proving that he is
disabled, an ALJ has a basic duty to develop a full and fair record. Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003); Kelley v. Heckler, 761 F.2d 1538 (11th Cir. 1985).

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Owens’ school records also indicate that he was held back in first and fifth grades. (R. 54, 234-

236).

4

“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).
The ALJ must also state, with sufficient specificity, the reasons for his decision
referencing the plaintiff’s impairments.
Any such decision by the Commissioner of Social Security which involves a
determination of disability and which is in whole or in part unfavorable to such
individual shall contain a statement of the case, in understandable language,
setting forth a discussion of the evidence, and stating the Commissioner’s
determination and the reason or reasons upon which it is based.
42 U.S.C. § 405(b)(1) (emphases added).
The ALJ is not free to simply ignore medical evidence, nor may she pick and choose
between the records selecting those portions which support her ultimate conclusion without
articulating specific, well supported reasons for crediting some evidence while discrediting
other evidence. Marbury v. Sullivan, 957 F.2d 837, 839-41 (11th Cir. 1992). When there
is a conflict, inconsistency or ambiguity in the record, the ALJ has an obligation to resolve
the conflict, giving specific reasons supported by the evidence as to why she accepted or

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rejected one opinion or record over another. “In the absence of such a statement, it is
impossible for a reviewing court to determine whether the ultimate decision on the merits is
rational and supported by substantial evidence.” Cowart v. Schweiker, 662 F.2d 731, 735
(11th Cir. 1981).6 “Failure to do so requires the case be vacated and remanded for the proper
consideration.” Hudson v. Heckler, 755 F.2d 781, 785 (11th Cir. 1985). As will be
explained, the court concludes that the ALJ failed to fully and fairly develop the record
regarding whether Owens meets or equals Listing 12.05C.7 Accordingly, the court concludes
that the decision of the Commissioner should be reversed and this case remanded to the
Commissioner for further proceedings.
A.

Deficits in Adaptive Functioning

Listing 12.05, Intellectual disability, provides, in pertinent part, that a claimant is
disabled if he meets the following criteria:
§ 12.05. Intellectual disability. Intellectual disability refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of impairment before age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied . . .
C. A valid verbal, performance, or full scale I.Q. of 60 through 70 and a

6

See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), adopting as binding
precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.
7

Because the court concludes that this matter must be remanded for further proceedings because
the ALJ erred in her determination of the Listing 12.05C issue, discussion of Owens’ first issue is
unnecessary.

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physical or other mental impairment imposing additional and significant workrelated limitation of function.
See 20 C.F.R. Pt. 440, Subpt. P. App. 1, Listing 12.05C.
“The structure of the listing for intellectual disability (12.05) is different from that of
the other mental disorders listings.” 20 C.F.R. Pt. 404, Subpt. P. App. 1, 12.00 MENTAL
DISORDERS.
To meet listing 12.05 (“intellectual disability”), “claimant must at least (1)
have significantly subaverage general intellectual functioning; (2) have deficits
in adaptive behavior; and (3) have manifested deficits in adaptive behavior
before age 22.” Crayton, 120 F.3d at 1219. These requirements are referred
to as the listing’s “diagnostic criteria.” See 20 C.F.R. pt. 404, subpt. P., app.
1, § 12.00 (“Listing 12.05 contains an introductory paragraph with the
diagnostic description for [intellectual disability].”) In addition to satisfying
the diagnostic criteria, a claimant must meet one of the four severity
requirements in paragraphs A through D of the listing. See id. § 12.05. Under
paragraph C, the only paragraph at issue here, a claimant must show that [he]
has both “[a] valid, verbal, performance, or full scale IQ score of 60 through
70 and a physical or other mental impairment imposing an additional and
significant work-related limitation of function.”
Frame v. Comm’r, Soc. Sec. Admin., — F. App’x. —, 2015 WL 150733, *2 (11th Cir. 2015)
(No. 13-15347).
Consequently, “a claimant meets the criteria for presumptive disability under section
12.05(C) when the claimant presents a valid IQ score of 60 to 70 inclusive, and evidence of
an additional mental or physical impairment that has more than ‘minimal effect’ on the
claimant’s ability to perform basic work activities.” See Monroe v. Comm’r of Soc. Sec., 504
F. App’x. 808, 810 (11th Cir. 2013) quoting Lowery v. Sullivan, 979 F.2d 835 (11th Cir.
1992). See also Edwards v. Heckler, 755 F.2d 1513, 1517 (11th Cir. 1985). In this Circuit,

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“a claimant need not present evidence that [he] manifested deficits in adaptive deficits
manifested prior to the age of twenty-two, when [he] presented evidence of low IQ test
results after the age of twenty-two.” Monroe, 504 F. App’x. at 810 quoting Hodges v.
Barnhart, 276 F.3d 1265, 1266 (11th Cir. 2001). See also Burt v. Barnhart, 151 F. App’x.
817, 819 (11th Cir. 2005).
On February 16, 2011, Owens underwent a psychological consultative examination.
He was administered the Wechsler Adult Intelligence Scale for Adults - IV by Dr. Robert
Kline, a licensed clinical psychologist.

(R. 334-36).

Owens obtained a verbal

comprehension IQ score of 66, a perceptual reasoning scale I.Q. score of 63, a working
memory scale IQ score of 60, a processing speed scale I.Q. score of 53, and a general ability
scale I.Q. score of 60, and a full scale I.Q. score of 55. Dr. Kline indicated that the test
results were valid and accurate. (R. 334). Throughout his evaluation, Dr. Kline noted that
Owens “struggled with basic concentration tasks,” and he “struggled with many of the test
instructions and directions.” (Id.). Dr. Kline opined that Owens’ general cognitive abilities,
reasoning abilities, and nonverbal reasoning abilities were “in the extremely low range.” (R.
334-35).
Mr. Owens’s ability to sustain attention, concentrate, and exert mental control
is in the extremely low range (WMI = 60). Mr. Owens’s ability in processing
simple or routine visual material without making mistakes is in the extremely
low range when compared to his peers (PSI = 53).
(R. 335). Finally, Dr. Kline offered the following opinion.
Results of the immediate administration of the intellectual assessment revealed
that Mr. Owens was functioning at mild range and (sic) retardation. This is
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consistent with his presentation, his history of academic difficulty, and his
reported problems with some forms of independent functioning. Considering
what is known about mental retardation and similar forms of cognitive
impairment, it is anticipated that Mr. Owens’ difficulties will continue for the
foreseeable future.
As Mr. Owens’s disability application is also based on the presence of physical
limitations and chronic pain, it is recommended that a qualified physician be
consulted who can comment on the extent and severity of these reported
symptoms and the impact that these may have on his ability to secure and
maintain gainful employment.
. . . Mr. Owens is not capable of managing benefits.
(R. 336).
On August 6, 2012, Owens underwent another psychological evaluation at the request
of the Social Security Administration. (R. 357-363). He was again administered the
Wechsler Intelligence Scale for Adults - IV. (R. 358). He obtained a verbal comprehension
scale I.Q. score of 68, a performance scale I.Q. score of 69, a working memory scale I.Q.
score of 69, a processing speed scale I.Q. score of 74, and a full scale I.Q. score of 64. (R.
358-59). Dr. Randall Jordan, a licensed clinical psychologist, opined that Owens’ scores
were “consistent with premorbid estimates and past historical abilities,” and estimated his
intelligence to be in the mild mental retardation range. (R. 358-59). Dr. Jordan noted that
Owens’ subscale scores were significantly lower than his peers, and that his daily living skills
were “compromised by intellectual function.” (R. 359). Finally, Dr. Jordan offered the
following diagnostic impression.
Prognosis for a favorable response in the next 6-12 months is guarded because
of the chronic nature of problems and issues. The claimant was motivated and
cooperative with the examination process. Evidence of malingering was not
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present.
To address specific areas of emphasis please read below:
*

In terms of managing finances, the claimant cannot manage their
financial affairs in a manner consistent with same age peers

*

The history of illness does suggest historic lifetime difficulties day-today function was not significantly better at one time based upon school
work or vocation.

*

The claimant cannot function independently.

*

The claimant can hear and understand normal conversation without
great difficulty.

*

In terms of vocation, the claimant’s ability to carry out and remember
instructions of a simple, one-step nature is not compromised. The
claimant cannot do multi-step tasks even with some degree of
supervision.

*

In terms of vocation, the claimant’s ability to respond well to
coworkers, supervision, and everyday work pressure is not
compromised due to psychiatric issues. Physical issues do not seem to
be the primary limiting factor. Medical care is needed.

(R. 359).
Because the Listing requires first “a valid verbal, performance, or full scale IQ of 60
through 70,” both the 2011 and 2012 test results fall within the parameters of section 12.05C.
Thus, the plaintiff has the requisite IQ score to meet the first prong of the listing.8
8

Because Owens presented valid IQ scores between 60 and 70, he is entitled to a presumption that
the disability onset occurred before the age of 22. Hodges v. Barnhart, 276 F.3d 1265, 1268 (11th Cir. 2001)
(“[A]bsent evidence of sudden trauma that can cause retardation, the IQ tests create a rebuttable presumption
of a fairly constant IQ throughout [the claimant’s] life.”). The Commissioner did not rebut this presumption,
and there is no evidence of that Owens’ intellectual disability was caused by sudden trauma after the age of
22. In fact, the evidence supports a conclusion that Owens has suffered from mild mental retardation long
before he reached age 22. He repeated first and fifth grades; he attended special education classes; and he
dropped out of school in the seventh grade. He lived with his mother until he moved in with his fiancee. He

10

The ALJ, however, concluded that Owens does not meet or equal the criteria of
Listing 12.05C because he has not demonstrated that he has the requisite deficits in adaptive
functioning necessary to satisfy the introductory paragraph of § 12.05. (R. 18).
During the period at issue, the claimant lived independently, cares for his
personal needs independently, cooks, shops, and goes to church (Exhibits 4E
and 5E). At the hearing, he testified that he lives with his girlfriend and her
two children, which shows he is able to establish and maintain relationships
which is inconsistent with the requisite deficits in adaptive functioning
(Hearing Testimony). Although the claimant testified that his girlfriend
performs most of the household chores, he and his mother stated in “Function
Reports” that he lived alone, cooked, shopped, and washed dished (sic)
(Exhibits 4E and 5E). Additionally, he reported at the consultative
examinations that he spends the majority of his day helping at home and he
assist (sic) with household chores and maintenance (Exhibits 11F and 7F). He
testified that he is able to follow some television shows and that his favorites
include CSI (Hearing Testimony). He is able to shower and bathe without
assistance and is able to use the microwave. Moreover, the claimant has had
several jobs and earned sufficient quarters of coverage to have insured status
under Title II, which shows he is able to complete applications and interview
(Exhibits 3D and 13E). Although he has not held most jobs for significant
length of time, he worked for Chandler Furniture from 2005 to 2006 and
earned about the amount of substantial gainful activity in 2006 (Exhibits 3D
and 13E). Although this was before the alleged onset of disability and the
claimant stated customers complained while doing this job, the ability to hold
a job at the level of substantial gainful activity for that length of time further
supports a finding that the claimant does not have the required deficits in
adaptive functioning (Exhibit 3D and Hearing Testimony).
Additionally, at the psychological consultative examinations, the claimant was
dressed and groomed appropriately (Exhibits 7F an 11F). He maintained
adequate eye contact. He was polite and cooperative. His speech was
spontaneous, normal, well articulated, and easily understood. His thought
expression was rational and logical, but simple and concrete. He was able to
complete the interview without distraction with no significant decline in
attention. Although he was unable to spell “world,” he was fully oriented. He

does not have a driver’s licence because he cannot pass the driving test.

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denied memory problems that interfere with his daily needs. His judgment was
not compromised. Although the results of the intelligence testing were within
the requirements of Medical Listing 12.05 B, C, and D, findings from the
mental status examinations indicate higher functioning that (sic) suggested by
the test results.
(R. 18).
In an effort to clarify the Listing, the Introduction to Listing 12.00 MENTAL
DISORDERS, 20 C.F.R. Pt. 404, Subpt. P. App. 1, 12.00, explains that the Commissioner “will
find that you have a listed impairment if the diagnostic description in the introductory
paragraph and the criteria . . . of the listed impairment are satisfied.” Id. (emphasis added).
Unfortunately, the Administration did not define either the diagnostic elements to be satisfied
within the introductory paragraph or the standard by which to measure those elements.
However, the Listing’s plain language compels a conclusion that to meet or equal Listing §
12.05, a claimant is required to demonstrate some measure of deficits in adaptive
functioning.
In a recent unpublished opinion, the Eleventh Circuit refers to the Social Security
Administration’s own manual in an effort to more specifically determine “adaptive
functioning.”
The Social Security Administration’s Program Operations Manual System
(POMS) states that the phrase “adaptive functioning” refers to “the
individual’s progress in acquiring mental, academic, social and personal skills
as compared to other unimpaired individuals of his/her same age.” POMS DI
24515.056(D)(2). Similarly, the American Psychiatric Association states that
the phrase refers to how effectively an individual copes with the common
demands of life and how well the individual meets the standards for personal
independence expected of someone in [his] particular age group, sociocultural
background, and community setting. Diagnostic and Statistical Manual of
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Mental Disorders IV-TR, at 42 (4th ed. 2000); see also Talavera v. Astrue, 697
F.3d 145, 153 (2d Cir. 2012) (explaining that the phrase “adaptive
functioning” in Listing 12.05 refers to an individual’s ability to cope with the
challenges of ordinary life.
Hickel v. Comm’r of Soc. Sec., 539 F. App’x. 980, 983 fn.4 (11th Cir. 2013) (No. 13-11172).
In determining that Owens does not the requisite deficits in adaptive functioning, the
ALJ culled the record for selective references, ignoring comments that did not support her
conclusions. For example, the ALJ found that Owens “lived independently, cares for his
personal needs independently, cooks, shops and goes to church.” (R. 18). She ignores,
however, his testimony that he does not drive, he has never taken public transportation, and
he allows the cashier at the grocery store to make change for him. (R. 37-38). Owens further
testified that he could make macaroni and cheese in the microwave, but he cannot cook on
the stove because he “tend[s] to leave everything on high, and then [he] burn[s] the stuff up.”
(R. 39). Owens has never operated a washer or a dryer. (Id.) Owens has lived with his
mother or his fiancee; he has never lived independently. The ALJ is not free to simply ignore
medical evidence, nor may she pick and choose between the records selecting those portions
which support her ultimate conclusion. Marbury, 957 F.2d at 840-84.
More importantly, the ALJ ignores the opinions of Drs. Kline and Jordan that Owens’
intellectual abilities are in the extremely low range and he is significantly lower than his same
age peers. (R. 332-36, 357-60). Both psychologists opined that Owens could not manage
benefits, and Dr. Jordan opined that Owens could not live independently. (R. 336, 359).
The ALJ also relied on Owens’ prior work as a delivery helper to conclude that he did

13

not have deficits in adaptive functioning. The mere fact that Owens held a job is, as a matter
of law, insufficient to support a finding that he did not have deficits in adaptive functioning.
In Ambers v. Heckler, the court held that since Ambers met the Listing for mental retardation,
“she is entitled to benefits regardless of the fact that she may be able to hold gainful
employment as she did in the past.” 736 F.2d 1467, 1468 (11th Cir. 1984). See also Powell
v. Heckler, 773 F.2d 1572, (11th Cir. 1985) (fact that claimant had worked intermittently
during the period at issue is not sufficient justification to deny benefits.). Owens’ prior work
experience is decidedly limited. The ALJ ignored Owens’ testimony that he got the job as
a delivery helper, and kept it as long as he did, because the owner of the company was a
friend. As soon as a new owner bought the business, Owens was fired. In concluding that
Owens’ previous work history demonstrates that he does not have any deficits in adaptive
functioning, the ALJ does not explain how, if at all, Owens’ prior work experience as a
delivery helper is inconsistent with mild mental retardation. See generally Black v. Astrue,
678 F.Supp.2d 1250 (N.D. Fla. 2010) (valid I.Q. scores between 60 and 70, special
education classes, prior employment as a mushroom picker and reliance on family for help
with complicated activities sufficient to demonstrate deficits in adaptive functioning
manifested before age 22). Taking the ALJ’s reasoning to its logical conclusion, no mentally
retarded person is able to do even the most basic, unskilled work including manual labor.
If that reasoning is correct, then any claimant who has ever been employed would be unable
to demonstrate that he or she met the Listing for mental retardation. This is simply incorrect
as a matter of law. See Ambers, supra.
14

The ALJ then compounded her error when she found that Owens had “higher
functioning” than suggested by the test results. (R. 18). That finding was erroneous as a
matter of law. Both psychologists who examined Owens and administrated the IQ tests
opined that Owens’ IQ scores accurately reflected his level of functioning. Thus, the ALJ
substituted her judgment for the judgment of the psychologists which she may not do. See
Allen v. Sullivan, 880 F.2d 1200, at 1202 (11th Cir. 1989). Consequently, the court
concludes that the ALJ did not properly consider whether Owens had the requisite deficits
in adaptive functioning sufficient to meet the diagnostic criteria of the introductory
paragraph.
B. Severe impairments of sleep apnea and restless leg syndrome.
The ALJ also committed reversible error at step 2 of the sequential analysis because
the ALJ did not have sufficient evidence before her to determine whether Owens’ sleep
apnea or restless leg syndrome constituted severe impairments. The severity step is a
threshold inquiry which allows only “claims based on the most trivial impairment to be
rejected.” McDaniel, 800 F.2d at 1031. A physical impairment is defined as “an impairment
that results from anatomical, physiological or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42
U.S.C. § 1382c(a)(3)(c). A severe impairment is one that is more than “a slight abnormality
or combination of slight abnormalities which would have no more than a minimal effect on
an individual’s ability to work.” Bowen v. Yuckert, 482 U.S. 137, 154 fn. 12 (1987) citing
with approval Social Security Ruling 85-28 at 37a. The plaintiff has the “burden of showing
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her impairment is “severe” within the meaning of the Act.” McDaniel, 800 F.2d at 1030.
In finding that the plaintiff’s sleep apnea and restless leg syndrome were not severe
impairments, the ALJ made the following findings.
The claimant has not been diagnosed with a medically determinable
impairment that would result in joint pain. Additionally, the claimant
complains of restless leg syndrome and sleep apnea. The regulations provide
that an “impairment” must result from anatomical, physiological, or
psychological abnormalities that can be shown by medically acceptable clinical
and laboratory diagnostic techniques (20 CFR 404.1508 and 416.908).
Although the regulations provide that the existence of a medically
determinable physical or mental impairment must be established by medical
evidence consisting of signs, symptoms, and laboratory findings, the
regulations further provide that under no circumstances may the existence of
impairment be established on the basis of symptoms alone. Thus, regardless
of how many symptoms an individual alleges, or how genuine the individual’s
complaints may appear to be, the existence of a medically determinable
physical or mental impairment cannot be established in the absence of
objective medical abnormalities; i.e., medical signs and laboratory findings
(SSR 96-4p). Prior to the alleged onset of disability, the claimant complained
of musculoskeletal pain resulting from acute injuries, but findings from
objective testing were normal (Exhibit 1F). He has not sought treatment for
chronic joint pain since the alleged onset date despite receiving treatment from
his primary care provider and the availability of treatment at the emergency
room (Exhibits 2F and 3F). At the consultative examination, the claimant
complained of joint pain, but findings from examination were normal (aside
from motor strength of 4/5 in the left lower extremity due to subjective knee
pain). Additionally, x-rays of the left knee were normal. Similarly, the
claimant has not sought treatment for restless leg syndrome or sleep apnea. No
objective tests or observations have been done to establish the etiology of these
complaints. No symptom or combinations of symptoms by itself can constitute
a medically determinable impairment. Accordingly, there are no medical signs
or laboratory findings to substantiate the existence of a medically determinable
impairment of (sic) related to the complaints of joint pain, restless legs, or
sleep apnea.
(R.17-18).
While the ALJ is correct that, pursuant to SSR 96-4p, an impairment will not be
16

considered disabling without some substantiating objective medical evidence, she failed in
her duty to fully develop the record. On February 18, 2011, Owens underwent a physical
consultative examination by Dr. Sam Banner. (R. 326-30). Dr. Banner suspected that Owens
suffers from sleep apnea and restless leg syndrome. (R. 326). He suggested that Owens
“needs a medical evaluation and care. Possible sleep apnea should be evaluated.” (R.
329) (emphasis added). Although the consultative physician suggested further evaluation of
Owens’ physical condition, the ALJ did not require any further testing or examination.
Pursuant to 20 C.F.R. § 416.917, the ALJ is required to order additional medical tests when
the claimant’s medical sources do not give sufficient medical evidence to make a
determination as to disability. The ALJ failed to obtain additional testing or otherwise
develop the medical evidence. See Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988)
(ALJ is not required to order consultative examination unless the record establishes that such
an evaluation is necessary to make informed decision); Reeves v. Heckler, 734 F.2d 519 (11th
Cir. 1984) (error for ALJ not to order consultative examination where the evaluation is
needed to make an informed decision). The court is at a loss as to why the ALJ would order
a consultative examination but then would not request additional testing, particularly in light
of the examiner’s suggestion that more testing was needed.
“[T]he severity of a medically ascertained disability must be measured in terms of its
effect upon ability to work, and not simply in terms of deviation from purely medical
standards of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th
Cir. 1986); Gray v. Comm’r of Soc. Sec., 426 Fed. Appx. 751, 753 (11th Cir. 2011); Manzo
17

v. Comm’r of Soc. Sec., 408 Fed. Appx. 265, 269 (11th Cir. 2011). Because sleep apnea and
restless leg syndrome would affect Owens’ ability to work,9 the ALJ’s failure to secure
additional testing to ascertain the extent of these impairments requires that this case be
reversed and remanded for further proceedings. The ALJ could not make an informed
decision based on the record before her and thus, her decision is not supported by substantial
evidence.
V. Conclusion
Accordingly, this case will be reversed and remanded to the Commissioner for
further proceedings consistent with this opinion. It is further
ORDERED that, in accordance with Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273,
1278 fn. 2 (11th Cir. 2006), the plaintiff shall have sixty (60) days after he receives notice
of any amount of past due benefits awarded to seek attorney’s fees under 42 U.S.C. § 406(b).
See also Blitch v. Astrue, 261 F. App’x. 241, 242 fn.1 (11th Cir. 2008).
A separate final judgment will be entered.
Done this 12th day of March, 2015.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

9

The court notes that sleep apnea and/or restless leg syndrome, if established, would constitute a
physical impairment sufficient to satisfy the second prong of Listing 12.05C. The second prong of the listing
requires “evidence of an additional mental or physical impairment that has more than “minimal effect” on
the claimant’s ability to perform basic work activities.” Lowery, 979 F.2d at 837; Edwards, 755 F.2d at
1517.

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