Moore v. Colvin

Filing 19

MEMORANDUM OPINION. Signed by Honorable Judge Terry F. Moorer on 9/23/14. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
PATRICK MOORE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 2:13cv790-TFM
(WO)

MEMORANDUM OPINION
I. PROCEDURAL HISTORY
The plaintiff, Patrick Moore (“Moore”), applied for supplemental security income
benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., on
December 7, 2010, alleging that he is unable to work because of a disability. Moore’s
application was denied at the initial administrative level. Moore then requested and received
a hearing before an Administrative Law Judge (“ALJ”). Following the hearing, the ALJ
determined that Moore 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
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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.

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
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 determination,3 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.”

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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.
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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.

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McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
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); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “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). A reviewing court may not look only to those parts of
the record which support 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 (11th Cir. 1986).
[The court must] . . . 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. INTRODUCTION
A. The Commissioner’s Decision
Moore was 22 years old at the time of the hearing before the ALJ and has completed
the tenth grade. (R. 51-52). Moore alleges that he became disabled on December 7, 2010,

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

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due to mental retardation, a learning disorder, functional illiteracy, developmental delays, and
back and shoulder pain. (R. 50, 57-58). After the hearing, the ALJ found that Moore suffers
from mild mental retardation. (R. 28). The ALJ found that Moore has no past relevant work.
(R. 39-40). Testimony from a vocational expert led the ALJ to conclude that a significant
number of jobs exist in the national economy that Moore could perform, including work as
a packager, kitchen helper, and garment folder. (R. 41). Accordingly, the ALJ concluded
that Moore is not disabled. Id.
III. ISSUES
The plaintiff presents the following issues for this court’s review:
(1)

The Commissioner’s decision should be reversed because the
ALJ erred in failing to determine that Moore’s mild mental
retardation meets Listing 12.05C.

(2)

The Commissioner’s decision should be reversed because the
ALJ erred in finding that Moore failed to suffer from an
additional medically severe mental impairment or combination
thereof.

(Doc. # 14, Pl’s Br., p. 4).
IV. DISCUSSION
Moore argues that the ALJ erred as a matter of law by failing to properly consider
whether he has a valid verbal, performance, or full scale I.Q. of 60 through 70 and a physical
or other mental impairment imposing an additional and significant work-related limitation
of function. Specifically, he argues that the ALJ failed to consider his mild mental
retardation in combination with his functional illiteracy, developmental delays, and
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adjustment disorder when determining he does not meet the requirements of Listing 12.05C.
A.

Mental Health Records

On February 17, 2006, Dr. Mary Arnold, a consultative psychologist, conducted a
mental health evaluation of Moore. (R. 231). Dr. Arnold noted that Moore lives with his
grandparents and that his grandmother appeared to be impoverished, participates in speech
therapy, and had several developmental delays, including potty training at five years of age,
that Moore had attended special education classes since sixth grade. Id. She also found that
Moore’s teeth are tarnished and “his top teeth are concave, which creates a malocclusion,”
and that his general demeanor is “naive.” (R. 232).
During the evaluation, Moore took the Weschler Adult Intelligence Scale, Third
Edition (“WAIS-III”). On the WAIS-III, he achieved a verbal index score of 71, a perceptual
reasoning index score of 74, and a full scale IQ score of 70. (R. 233). Dr. Arnold found that
Moore’s full scale IQ score falls within the mild range of mental retardation and that the
results of testing are considered to be a valid estimate of his current level of functioning. Id.
Dr. Arnold concluded that Moore’s “life style is consistent with [his] estimated ability,” that
he “requires supervision,” and that his WAIS-III scores are “at the low cutoff for the
borderline range.” Id. Her diagnostic impression is as follows:
DSM-IV

Axis I:
Axis II:

Axis III:
Axis IV:

Adjustment Disorder, NOS
Mild mental retardation
Functionally illiterate
Developmental Delay
Dental malocclusion
Socially naive
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Axis V:

GAF (current) = 50

(R. 234).
On January 31, 2011, Dr. Dimtcho V. Popov, a general internist, conducted a
consultative evaluation. (R. 249). Dr. Popov noted that Moore complained of back pain,
slurred speech, and difficulty concentrating. (R. 250). He diagnosed Moore as suffering
from unspecified back pain and specific delays in development. (R. 252). Dr. Popov also
found that Moore has “never [been] seen by neurology and it is not clear what type of work
up he had done” and that he “is not followed up by a PMD.” Id.
On February 1, 2011, Dr. Robert Estock, a non-examining psychiatrist, reviewed
Moore’s school records and Dr. Arnold’s opinion from 2006. (R. 273). Dr. Estock
completed a mental residual functional capacity assessment in which he found that Moore
can understand and remember simple instructions; can tolerate ordinary work pressures but
should avoid quick decision making, rapid changes, and multiple demands; would benefit
form regular rest breaks and a slowed pace but will still be able to maintain a work pace
consistent with the mental demands of competitive level work; contact with the public should
be casual; and can adapt to infrequent, well explained changes. (R. 259). Despite these
findings, however, Dr. Estock also noted that an “RFC is needed.” (R. 273).
B.

Listing 12.05C

Section 12.05 of the Listing of Impairments define mental retardation as “significantly
sub-average general intellectual functioning with deficits in adaptive behavior initially

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manifested during the developmental period; i.e. the evidence demonstrates or supports onset
of impairment before age 22.” See 20 C.F.R. Subpt P, App. 1, Listing 12.05(c). In addition
to this requirement, the Listings provide, in pertinent part, that a claimant is disabled if he
meets the following criteria:
§ 12.05. Mental Retardation . . . 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
physical or other mental impairment imposing additional and significant workrelated limitation of function.
Consequently, a claimant meets the strictures of 12.05C by presenting evidence of (1) a subaverage general intellectual functioning initially manifested prior to age twenty-two; (2) valid
IQ score of 60 to 70 inclusive; and (3) evidence of an additional mental or physical
impairment that has more than a “minimal effect” on the claimant’s ability to perform basic
work activities. Lowery v. Sullivan, 979 F.2d 835 (11th Cir. 1992); Edwards v. Heckler, 755
F.2d 1513, 1517 (11th Cir. 1985).
In his analysis, the ALJ recognized that Moore was diagnosed as suffering from mild
mental retardation before the age of twenty-two and has a valid full-scale IQ score of 70. (R.
32). The ALJ, however, found that Moore does not meet the Listing because “the record
does not contain evidence of a physical or mental impairment imposing additional and
significant work-related limitation of function.” (R. 33).

Moore argues that the ALJ’s

determination is not supported by the evidence because the ALJ failed to consider his
learning disability, developmental delays, and adjustment disorder in combination when
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determining he does not have a mental impairment which imposes an additional and
significant work-related functional limitation. The Commissioner asserts that functional
illiteracy and developmental delays are manifestations of mild mental retardation and are not
separate mental impairments.
The problem with the ALJ’s decision is that the ALJ did not consider Dr. Arnold’s
assessment that Moore suffers from an adjustment disorder when discussing Listing 12.05C.
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 v. Sullivan, 957 F.2d 837, 840-41 (11th Cir. 1992).
In addition, this court is unable to determine whether the ALJ’s opinion that Moore
does not meet Listing 12.05C is supported by substantial evidence because the ALJ failed to
develop the record concerning the extent of Moore’s mental health impairments.
Notwithstanding evidence in the record indicating Moore suffers from slurred speech and
difficulty concentrating, has never received an examination by a neurologist or undergone
neurological testing, has participated in special education classes, and has not received a
psychological evaluation since 2006,5 the ALJ took no steps to explore the severity of

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The medical records indicate that Moore has never worked and that his family is impoverished.
On remand, the court recommends that the ALJ consider Moore’s inability to afford medical treatment.
While failure to seek treatment is a legitimate basis to discredit the testimony of a claimant, it is the law in
this Circuit that poverty excuses non-compliance with prescribed medical treatment or the failure to seek
treatment. Dawkins v. Bowen, 848 F.2d 1211 (11th Cir. 1988).

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Moore’s condition by securing additional testing by a mental health specialist. Without
further developing the record, the ALJ relied on the opinion of a non-examining state
consultative psychiatrist, Dr. Estock, to conclude that Moore does not meet Listing 12.05C.
The record, however, indicates Dr. Estock recommended that an additional mental residual
functional assessment should be completed. It is error for the ALJ to fail to obtain additional
testing or otherwise develop the evidence, if that information is necessary to make an
informed decision. See Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988); Freel v.
Astrue, 2012 WL 628463, *6 (M.D. Fla. 2012) (“The ALJ is not required to order a
consultative examination or additional testing unless the record shows that such an
examination is necessary for the ALJ to render a decision.”).6 Consequently, on remand, the
ALJ shall consider whether ordering additional psychological testing and/or an assessment
by a mental health specialist would assist him in determining Moore’s disability status.
“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
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Moore complains of back pain throughout the record. (R. 60, 69, 181, 252, 276, 289, 295). The
court recognizes that an x-ray conducted on January 5, 2011, indicates no abnormalities. (R. 252, 291).
However, on January 31, 2011, Dr. Popov diagnosed Moore as suffering from unspecified back pain,
specifically noting that “pain meds ... do not help much.” (R. 252). On remand, the court suggests that the
ALJ consider whether ordering additional testing regarding the source of Moore’s back pain would assist
him in determining whether the combination of his mental and physical impairments have more than a
minimal effect on his ability to perform basic work activities.

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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 23rd day of September, 2014.

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

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