Clark v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 9/20/12. (SAC )
2012 Sep-20 AM 10:27
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
TONY J. CLARK,
MICHAEL J. ASTRUE,
Commissioner of the Social
CIVIL ACTION NO. 1:11-CV-02557-KOB
On October 22, 2008, the claimant, Tony Clark, applied for disability and disability
insurance benefits under Title II of the Social Security Act. (R. 10). The claimant alleges
disability commencing on February 15, 2007 because of mild mental retardation, anxiety and
depression, lumbar degenerative disc disease, and hypertension. (R.12, 333). The Commissioner
denied the claim on March 3, 2009. (R. 68). On April 6, 2009, the claimant filed a timely request
for a hearing before an Administrative Law Judge, and the ALJ held a video hearing on June 11,
2010 over which he presided from Greenville, South Carolina. (R. 10). In a decision dated
October 26, 2010, the ALJ found that the claimant was not disabled as defined by the Social
Security Act. (R. 7). In addition, the Appeals Council denied the claimant’s request for review on
October 26, 2010. (R. 1). The claimant has exhausted his administrative remedies, and this court
has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, the
court reverses and remands the decision of the Commissioner.
II. ISSUES PRESENTED
Whether the ALJ erred in his application of the legal standard for analyzing a
combination of mental and physical impairments under listing 12.05(C).
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the Commissioner’s decision if the Commissioner applied the correct legal standards and
if the factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g);
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. This court does not review the Commissioner’s factual determinations de novo.
The court will affirm those factual determinations that are supported by substantial evidence.
“Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971).
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner’s] factual findings.” Walker, 826 F.2d at 999. A reviewing court must not look
only to those parts of the record that support the decision of the ALJ, but must view the record in
its entirety and take account of the evidence that detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the
person cannot “engage in 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.” 42 U.S.C. § 432
(d)(1)(A) (2004). To make this determination, the Commissioner employs a five-step, sequential
(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 finding a 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); 20 C.F.R. §§ 404.1520, 416.920.
In this case, the claimant argues that she should have granted disability under section
12.05. To be considered for disability benefits under section 12.05, a claimant must at least have
(1) significantly subaverage general intellectual functioning; (2) deficits in adaptive behavior;
and (3) manifested deficits in adaptive behavior before age twenty-two. Crayton v. Callahan, 120
F.3d 1217, 1219-20 (11th Cir. 1997). The applicable regulations require the Commissioner of
Social Security to consider the combined impact of a claimant’s impairments when determining
whether the claimant meets or equals the second requirement under section 12.05(C) of the
Listing of Impairments. Davis v. Shalala, 985 F.2d 528, 530 (11th Cir. 1993). To establish a
disability under section 12.05(C), a claimant must establish: “a valid verbal, performance, or full
scale IQ score of 60 through 70 and a physical or other mental impairment imposing additional
and significant work-related limitation of function.” 20 C.F.R. Part 404, Subpart P, Appendix 1 §
12.05(C) (1992); see Edwards by Edwards v. Heckler, 755 F.2d 1513, 1517 (11th Cir. 1985)
(recognizing that “significant” under section 12.05(C) involves something more than slight or
minimal but less than “severe”). The Eleventh Circuit, however, has recognized that a valid IQ
score need not be conclusive of mental retardation where the IQ score is inconsistent with other
evidence in the record on the claimant’s daily activities and behavior. Popp v. Heckler, 779 F.2d
1497, 1499 (11th Cir. 1986).
The claimant completed the tenth grade and was forty-two years old at the time of the
administrative hearing. (R. 26). His past work experience includes employment as a dishwasher,
assembler, heavy equipment operator, rubber layer, and forklift operator. (R. 52). The claimant
alleges he is unable to work because of mild mental retardation, anxiety, depression, lumbar
degenerative disease, and hypertension. (R. 12, 333).
Physical and Mental Limitations
The claimant took an IQ test in high school on February 20, 1985 and received a verbal
score of 75, performance score of 76, and a full scale score of 75. (R. 323).
Dr. M.R. McClellan examined the claimant on December 4, 1995 after a car accident on
April 15, 1995. He noted that the claimant reported having mid to low back and leg pain since
the trauma of the accident. Further, he reported that his objective findings of tenderness and
limitation of range of motion in the claimant’s back and the claimant’s subjective complaints
were consistent with those seen after the trauma of a motor vehicle accident. He recommended
physical therapy as treatment for the claimant. (R. 420-21).
The claimant frequently visited Dr. Ronald J. Wheeler, a chiropractor, during the period
November 18, 1994 to August 2, 2001, often visiting the doctor monthly or bimonthly and
complaining of upper and lower back pain. (R. 211-28). Furthermore, the claimant also visited
Dr. Wheeler from April 21, 2004 to January 27, 2005, complaining of lower back pain with the
same frequency. (R. 229-54).
The claimant went to Northeast Alabama Regional Medical Center nine times between
December 1, 2003 and March 8, 2007, complaining of severe back pain. (R. 263-304).
The claimant visited Patient First Healthcare on September 15, 2006 and October 1, 2006,
complaining of high blood pressure. At this time, he reported that he drank twelve cans of beer
per weekend and smoked three packs of cigars per weekend. (R. 257-60).
In an April 11, 2008 report filed with the Social Security Administration, the claimant
stated that he could not read or write. He noted that, as a child, he was able to memorize stories,
which is how he “got by” in school. He indicated that his depression began after the loss of his
job in February 2007. Because of his depression, he stated that he had increased his beer
consumption to as much as a twelve-pack each day. Furthermore, he indicated that his back pain
started after his car accident about five years ago. He noted that doctors have told him he may
have a herniated disc, and he believes he may have arthritis in his back. To relieve his pain, he
says he uses a heating pad and over-the-counter medication. He reports that he has had high
blood pressure for about ten years. However, while he admitted that medication he has taken in
the past has controlled this condition, he can no longer afford the medication. (R. 130-31).
On April 20, 2008, Tywaunja Clark, the claimant’s estranged wife, completed a DDS
Daily Activities Questionnaire on claimant’s behalf. According to the answers on that
questionnaire, the claimant cannot read, even on a first grade level. He was in Special Education
classes in school and received his driver’s test verbally to obtain his driver’s license. Based on
the questionnaire responses, claimant’s inability to read has caused him to lose several jobs. For
example, he quit one job because he was embarrassed that he was unable to fill out a form;
another after his coworkers laughed at him upon discovering that he could not read; and another
after he was sent twice to fetch a certain cleaning solution and returned each time with the wrong
item because he was not able to read the label. (R. 132-35).
Also on April 20, 2008, Tywaunja Clark completed a separate DDS Physical Activities
Questionnaire on the claimant’s behalf. That questionnaire reflect that since the claimant’s back
injury, he “doesn’t do much of anything.” He occasionally cuts the grass or bushes but does not
do household chores. Often, doing yard work causes his back injury to flare up. According to the
questionnaire answers, because of the claimant’s back pain, he can stand for only ten minutes; he
cannot walk at all; he can sit for only an hour; and he can perform most activities for only twenty
minutes before he needs to take a break. (R. 145-50).
The third questionnaire completed on April 20, 2008 by Tywaunja Clark on the
claimant’s behalf was a DDS Drug and Alcohol Use Questionnaire. According to the
questionnaire responses, the claimant drinks alcohol daily, averaging “about a six pack of beer a
day (two of them).” His estranged wife reported that he buys beer with “every penny” that his
children give him. She noted that when he drinks he has a “very nasty attitude” and a “nasty
mouth” and that alcohol changes his personality. She further indicated that in 1987, he was
admitted to Regional Medical Center because he was an alcoholic, had become depressed, and
tried to kill himself. (R. 151-52).
On a prior disability report for the Social Security Administration, the claimant reported
that he “can work good with [his] hands,” but since he cannot read, he often cannot complete
training activities. He has had trouble holding down a job because many jobs now involve
computers, and people often find out he cannot read, which embarrasses him. (R. 154).
On April, 28, 2008, Dr. C.K. Jin of Anniston Medical Clinic, P.C. completed a Disability
Determination of the claimant. He reviewed the evidence provided by the DDS and used those
findings in his overall assessment of the patient. He wrote that the claimant’s back problems of
the past eight to nine years were likely due to lumbago or lumbar disc disease, although the
claimant has never had an x-ray of his back. Further, he noted that while the claimant has an
eight-year history of high blood pressure, he cannot afford to pay for his medication. In addition,
he wrote that the claimant reported to drinking a twelve-pack of beer each day and using dip
tobacco but not smoking cigarettes. Dr. Jin wrote that the claimant has “remarkable back
problems” and is “not able to do anything because of severe pain.” He recommended that an
orthopedic doctor should evaluate the claimant to determine if he had lumbar disc disease. (R.
Dr. Morton Rickless of the Orthopedic Clinic completed an x-ray of the claimant on May
19, 2008. He noted that the claimant had no evidence of a fracture or dislocation in his lumbar
spine, and his vertebrae seemed to be well aligned. His assessment was that the x-rays looked
normal for a lumbar spine with minimal arthritic changes. (R. 329).
Dr. Dana Davis completed a psychological evaluation of the claimant on May 21, 2008 at
the request of the DDS. She stated that while the claimant was cooperative, polite, and pleasant,
he had below average intelligence and abstract thinking. She assessed the claimant with a verbal
IQ of 71, a performance IQ of 70, and a full scale IQ of 68. In addition, she diagnosed him with
hypertension, arthritis, and mild mental retardation, which she noted was consistent with the
claimant’s difficulty working in a school setting. Further, she wrote the claimant had no
significant emotional problems. (R. 331-34).
On May 28, 2008, on a DDS Vocational Rationale Form, the DDS reported that the
limitations outlined in the claimant’s RFC assessment were consistent with the physical and
mental requirements of the claimant’s past relevant work as a dishwasher. (R. 161).
On May 29, 2008, Dr. Robert Estock completed a Mental RFC Assessment of the
claimant. He noted the following abilities of the claimant were moderately limited: the ability to
understand and remember detailed instructions, the ability to carry out detailed instructions, the
ability to maintain attention and concentration for extended periods of time, and the ability to
respond appropriately to changes in the work setting. He wrote the claimant was capable of
understanding and remembering simple instructions over an eight-hour workday with routine
breaks even though the claimant was mildly mentally retarded. Dr. Estock later completed a
Psychiatric Review Technique Form on the claimant as well, noting the claimant had difficulties
maintaining concentration, persistence, and pace. (R. 335-37, R. 340-48).
The claimant visited Dr. Ataur Rehman at the Northeast Alabama Regional Medical
Center on September 13, 2008, complaining of chest pain in the emergency room. The doctor
diagnosed him with hypertension and did not note anything else unusual about the claimant’s
health. (R. 354).
In an undated disability report, the claimant reported that his intellectual functioning
limited his ability to work because it causes him embarrassment and prevents him from reading
and writing. He also reported that he had “a lot of pain in [his] back.” (R. 168). Furthermore, he
reported in a Work History Report on January 9, 2009, as part of his current disability claim, that
he would like to work, but because of his inability to read, he is still unable to work as a
dishwasher. He claimed that he would not be able to know which solutions were used in the
dishwashers or read the directions to start the machine. Furthermore, he reported that he has
arthritis, severe high blood pressure, and severe back pain. (R. 183).
In a Function Report from January 9, 2009, the claimant reported that he could not stand
or hold anything for long periods of time because his hands “swell up something awful” because
of his arthritis. Furthermore, because his hands are often swollen, he cannot do much yard work
and cannot go outside if the weather is very cold. In addition, he wrote that he was accustomed to
hiding his illiteracy but because of an increase in the use of technology in the workplace, he
cannot hide it anymore and is ashamed of it. He can follow directions if someone reads them to
him in order and only two to three steps at a time. He gets confused otherwise. (R. 186-89).
Dr. Sathyan Iyer examined the claimant on February 24, 2009 at the request of the DDS.
He diagnosed the claimant with possible degenerative joint disease of the lumbar spine with
restricted range of motion and stiffness of the lower back. He also noted the claimant’s
hypertension was not controlled. In addition, he commented that in his current condition, the
claimant would have significant impairment of functions involving standing, climbing, working
at heights, lifting, and carrying. (R. 368-70).
Dr. Michelle Warren completed a Physical RFC Assessment of the claimant on March 2,
2009 at the request of the DDS. She noted the claimant could occasionally lift twenty pounds,
frequently lift ten pounds and stand and sit for about six hours in an eight-hour workday. She
noted the claimant was limited in his upper extremities and had postural limitations in his ability
to climb, balance, stoop, kneel, crouch, and crawl. Dr. Warren commented that while the
claimant complained of severe pain in his back, x-rays showed minimal changes in his spine.
Thus, she considered his statements of pain to be only partially credible and not totally consistent
with her objective findings. She did not give significant weight to the Medical Source Opinion of
Dr. Iyer because of its inconsistencies with her assessment of the claimant. (R. 387-94).
Dr. Robert Estock completed another Mental RFC Assessment of the claimant on March
2, 2009 at the request of the DDS. He noted the same limitations as in his prior assessment. (R.
In examining these new reports, the DDS concluded on March 2, 2009 that the claimant
was able to return to his past relevant work as a rubber layer. (R. 192).
The claimant visited Dr. Gloria Browne at Tolbert Health Care on May 12, 2009,
complaining of chronic back pain, pain in his feet, hypertension, and depression. She noted
significant tenderness in his back and limitation in the range of motion of his spine. She
diagnosed him with chronic lumbago, major depressive disorder, and hypertension. At follow-up
visits to Tolbert Health Care on June 16, 2009 and March 19, 2010, Dr. Carey Goodman assessed
the claimant with the same chronic medical ailments. (R. 422-29).
Dr. Carey Goodman also completed a physical capacity evaluation of the claimant on
September 27, 2010. She reported the claimant could sit for two hours at a time, stand for two
hours at a time, and walk for two hours at a time. He could do all of these activities only once
each in an eight-hour day. He could lift and carry up to twenty pounds and frequently up to
twenty-five pounds. He could occasionally push and pull with his arms, legs, and feet. In
addition, he could occasionally bend, squat, crawl, climb, and reach. Furthermore, he had a
moderate restriction of activities involving an inability to drive automotive equipment and mild
restriction of activities involving moving machinery, dust, fumes, and gases. His disability in his
hands limits his abilities to manipulate and control machinery. Dr. Goodman assessed the
claimant with moderate pain that would cause some handicap in the performance of his work,
although he wrote that the claimant should be able to tolerate it. Because of this pain, the
claimant would likely have to miss three or more days each month from work. (R. 439-41).
The ALJ Hearing
At a hearing held on June 11, 2010, the claimant’s attorney showed the ALJ a note from
December 14, 1995, demonstrating that a motor vehicle accident started the claimant’s back pain.
He claimed the pain has gotten progressively worse since that time. Further, the claimant’s
attorney moved to reopen the prior denial of May 29, 2008, since less than twelve months
elapsed between that date and the claimant’s second denial on March 3, 2009. (R. 21-23).
The claimant testified that the last job he worked was at Brown Brothers. He could not
recall when this job was, but he noted that he has not worked at all since February 2007. The
claimant stated that at Brown Brothers, he drove heavy equipment until his back began hurting
him too badly. He says he worked there for about three years. (R. 27).
Before Brown Brothers, the claimant testified he worked at Mabby, a bus company. He
stated that he “put the rubber inside the bus” for about three years. In addition, as part of the job,
claimant said he was required to keep a book log. He testified he quit working there after several
employees discovered that he could not read and played a trick on him. In addition, he claims that
he could not have continued working in that job regardless of the trick the other employees
played on him because the company had started requiring its employees to pick up larger rolls of
rubber, which he was not able to lift. (R. 28-29).
After working for the bus company, the claimant testified that he worked as a dishwasher
for about a month. He stated that he left this job because he could not do the lifting the job
required. Further, he testified that while he loaded and unloaded trucks in his youth, he would not
be able to return to that type of job now because of his back problems. (R. 29-30).
The claimant testified that going to a chiropractor has helped his back problems in the
past; however, now, since he is unemployed, he cannot afford to go to a chiropractor on a regular
basis. (R. 31).
The claimant stated that on a scale of zero to ten where zero is the least pain and ten is
unbearable pain that would put him in the emergency room, his pain when he first wakes up in
the morning is generally a ten. He noted that taking his medicine enables him to get his pain level
down to a five or a six for a period of about four to five hours. However, he claimed that if he
tries to do physical activity like walking, his pain level rises again. (R. 32-33).
In addition, the claimant testified that he could not even walk a city block before having
to sit down. He stated that he thinks he has arthritis in his ankle, which causes him a lot of pain.
The claimant indicated that doctors have given him medicine for his ankle, but he still has
“shooting pains going through it.” In addition, he noted that he believes he has arthritis in his
back and has problems bending, stooping, crawling, kneeling, and crouching. Yet, he stated that
he has no trouble sitting down for a period of one to two hours without leaning. (R. 33-34).
The claimant stated that he has had problems with depression because he has been unable
to work. He testified that he has worked two jobs for as long as he has been able to work, and
now that he is unable to work to take care of his family, he has been depressed. He noted that if
he were able to work, he would. He stated that he has been put on medication for depression but
cannot remember the name of the medication. In addition, he testified that he takes a pain
reliever for his back pain and a sleeping pill for sleeplessness caused by his depression.
Furthermore, the claimant noted that he must take a nap for about an hour each day after he takes
his pain medication. (R. 35-36).
While describing his daily activities, the claimant testified that, on a typical day, he takes
his wife to work and his grandson to school and then begins to cut the grass. He stated that it
takes him three days to cut the grass because he must take breaks often. After lunch each day, he
says he does basic household chores like laundry, cooking, and occasionally, mopping. (R. 3738).
Further, the claimant indicated that he did not score high enough on a test to get into the
army; has never received a GED; and has never attended any sort of vocational training. He
testified that he has a driver’s license and drives his wife thirty minutes each way to work each
day and his grandson twenty minutes each way to preschool each day. (R. 40).
The ALJ noted that the claimant’s last reported earnings were not at Brown Brothers but
from work at Lone Star Steak House as a part-time dishwasher. In addition, the ALJ asked about
the claimant’s past work at Boozer Laminated Beam Company where he largely transported
wood from one building to another. The claimant testified that while he was at Boozer, he went
to the chiropractor on a regular basis. (R. 42).
The ALJ further noted that while the claimant testified to taking medications for pain,
depression, and high blood pressure, no official list of medications exists in the record. (R. 44).
The claimant stated that he regularly uses the telephone to talk to his son and daughters,
goes to church each Sunday, and goes fishing on a regular basis. He testified that he does some
yard work: mowing a yard that is a quarter of an acre, using a weed eater, and keeping a small
garden. (R. 45-48).
In addition, the claimant indicated that when he goes to the store with his wife, he uses
“one of them riding things” to get around the store. He stated that he often uses a “massager
heating pad” for pain relief for his back. He testified that he drinks beer frequently, often
drinking four or five beers at a time, but his drinking has never interfered with his ability to work
during the day. (R. 50).
A vocational expert, Mr. Karl Weldon, testified that the claimant’s work as a dishwasher
and assembler would qualify as medium unskilled work, and his work as a heavy equipment and
forklift operator would qualify as medium semi-skilled work. (R. 51-52).
The ALJ presented several hypotheticals to Mr. Weldon, the vocational expert. In the first
hypothetical, the individual had a tenth grade education; was illiterate; had no severe physical or
functional physical limitations; had mental limitations but was still capable of understanding and
remembering and carrying out simple instructions over an eight-hour day with routine breaks;
needed changes in the workplace to be introduced slowly; and needed contact with other people
to be casual and non-confrontational. The vocational expert testified that this individual could
return to work as a dishwasher or heavy equipment operator. (R. 53).
The second hypothetical the ALJ presented to Mr. Weldon involved the same mental
limitations but added several physical limitations. In this hypothetical, the individual would be
“limited to light work, as defined in the social security regulations, his pushing and pulling will
be limited to frequent bilaterally, same weights for lifting and carrying [as] light work.
Posturally , there would be some limitation; he should never climb a ladder, rope or scaffold.
He could although however occasionally perform all [other] postural activities and he should
avoid concentrated exposure to hazards.” (R. 55). The vocational expert testified that the
individual in this hypothetical would be able to perform light unskilled work as a hand-packer or
assembler. (R. 55).
The ALJ presented a third hypothetical to the vocational expert imposing additional
physical limitations. In this hypothetical, the individual would be unable to walk a full city block
and would need to lie down for about one hour each day in an unscheduled break. The vocational
expert testified that no work would be available for such an individual. (R. 56).
The vocational expert further noted that none of the jobs listed under the first hypothetical
would require any reading. He stated that while the dictionary of occupational titles does presume
that everyone is literate in the national economy, he had taken the claimant’s illiteracy into
account when he indicated which jobs the claimant could perform. Furthermore, the vocational
expert testified that if the individual were unable to focus and concentrate for less than two hour
periods at a time, he would be unable to work. (R. 56-58).
The ALJ Decision
The ALJ found the claimant has not engaged in substantial gainful activity since February
15, 2007. In addition, he concluded that the claimant has the following severe combination of
impairments: borderline intellectual functioning, anxiety and depression, lumbar degenerative
disc disease, and hypertension. He determined that these impairments were more than slight and
in combination, did affect the claimant’s ability to function. (R. 12)
Based on the claimant’s work history and earnings record, the ALJ decided that the
claimant’s borderline intellectual functioning caused only a slight limitation in his ability to
perform unskilled work and thus, was not very severe. In addition, he noted that illiteracy is a
vocational not a medical factor and thus, is not a medically determinable impairment.
Furthermore, the ALJ found that the claimant’s anxiety and depression were severe. He then
noted that no indication in the record existed that the claimant was being treated for depression
by mental health experts, and the medicine prescribed by the treating physician seemed to control
the claimant’s depression. He stated that the examining psychologist found the claimant had no
evidence of a mental impairment aside from illiteracy and mild mental retardation. Further, using
the special technique, the ALJ determined that the claimant’s documented mental impairments in
combination have resulted in mild restriction of daily activities; mild restriction in social
functioning; moderate limitations in concentration, persistence, and pace; and no documented
episodes of decompensation. (R. 12-13).
The ALJ found that the claimant did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments. In addition, he
determined that the claimant has the RFC to perform a range of unskilled light work, except he
can never climb ladders, ropes, and scaffolds, only ramps and stairs. Furthermore, he can only
occasionally stoop, kneel, crouch, and crawl; frequently push and pull bilaterally; must always
avoid concentrated exposure to hazards; can remember and carry out simple instructions over an
eight-hour day with routine breaks; should have non-confrontational contact with coworkers,
supervisors, and the general public; and must have changes in the work place introduced slowly
due to his mental limitations and illiteracy. (R. 13).
In evaluating the claimant’s physical impairments using the three-part pain standard, the
ALJ determined that while the claimant’s medically determinable impairments could reasonably
be expected to cause the alleged symptoms, the claimant’s statements concerning the intensity,
persistence, and limiting effects of the symptoms were not credible to the extent they were
inconsistent with the RFC assessment. The ALJ noted that many of the x-rays of the claimant’s
back showed only minimal objective evidence of arthritic changes. However, Dr. Iyer found the
claimant had hypertension, and a severely reduced range of motion in his spine. Yet, the ALJ
gave little weight to Dr. Iyer’s opinion because he claimed it was not supported by objective
findings and was based on range of motion testing that was under the control of the claimant. In
addition, the ALJ discussed another doctor’s visit where the physical examination was
unremarkable but for a severely reduced range of motion in the lumbar spine. Furthermore, the
ALJ stated that the objective findings in the record showed only minimal degenerative changes
that were not capable of causing the amount of pain and limitation testified to by the claimant.
Because of these findings, the ALJ concluded that nothing in the medical evidence existed that
would preclude the claimant from performing at the stated RFC level. (R. 14-16).
The ALJ further found that the claimant is unable to perform any past relevant work.
However, he noted that jobs still exist in significant numbers in the national economy that the
claimant can perform. For example, the ALJ stated that the claimant could work as a handpacker, assembler, or a grader. Because of these findings, the ALJ concluded the claimant was
not disabled. (R. 17).
The claimant argues that the ALJ’s determination was the result of an improper
application of a legal standard and was not supported by substantial evidence. This court agrees
and will reverse and remand this case for proper application of the law and proper consideration
of the evidence.
This court notes that not only did the ALJ improperly apply the applicable legal standard
in this case, he did not even mention the standard for establishing an impairment under listing
12.05(C) in the “Applicable Law” section of his opinion. To establish a disability under section
12.05(C), a claimant must present evidence of a valid verbal, performance, or full-scale IQ score
of between 60 and 70 inclusive, and of a physical or other mental impairment imposing
additional and significant work-related limitation of function. 20 C.F.R. Part 404, Subpart P,
Appendix 1 § 12.05(C) (1992). In addition, the general introduction on “mental retardation and
autism” provides that a section 12.05(C) claimant must demonstrate that the retardation is a
lifelong condition that manifested itself before age twenty-two. 20 C.F.R. Part 404, Subpart P,
Appendix 1 § 12.05 (1992).
Generally, 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. Edwards by Edwards v. Heckler, 755 F.2d 1513, 1517 (11th Cir.
1985). The Eleventh Circuit, however, has recognized that a valid IQ score need not be
conclusive of mental retardation where the IQ score is inconsistent with other evidence in the
record on the claimant’s daily activities and behavior. Popp v. Heckler, 779 F.2d 1497, 1499
(11th Cir. 1986) (rejecting a claim of section 12.05(C) mental retardation where the claimant’s
IQ score of 69 was inconsistent with evidence that he had a two-year college associate’s degree;
was enrolled in a third year of college as a history major; and had worked in various technical
jobs such as an administrative clerk, statistical clerk, and an algebra teacher). Although the law
gives the ALJ some leeway to evaluate other evidence when determining the validity of an IQ
score, an ALJ may not consider a claimant’s age, education and work experience after the ALJ
accepts the I.Q. score as valid and finds that the claimant meets or equals the criteria of a listed
impairment. See Ambers v. Heckler, 736 F.2d 1467, 1470 (11th Cir. 1984) (“consideration of the
fact that [claimant] could return to her past work is not a relevant inquiry once she has met the
Listing of Impairments in Appendix 1"); 20 C.F.R. § 404.1520(d).
In the instant case, the ALJ’s reasoning for his finding that the claimant is of borderline
intellectual functioning instead of mildly mentally retarded is ambiguous. The record indicates
that the claimant has a verbal IQ of 71, a performance IQ of 70, and a full scale IQ of 68. The
ALJ seems to have chosen the highest IQ score of 71 instead of taking the lowest score of 68 to
assess the claimant’s mental functioning. See Ambers v. Heckler, 736 F.2d 1467, 1470 (11th Cir.
1984). In addition, the ALJ never stated that the scores of 68 and 70, which would qualify the
claimant for 12.05(C) analysis, were invalid.
The ALJ in the present case incorrectly used the claimant’s past work history as a forklift
driver and heavy equipment operator to assess the claimant’s mental impairment. See Ambers,
736 F.2d at 1468 (holding that when a claimant meets the listing, she is entitled to benefits
regardless of the fact that she may be able to hold the same gainful employment as she did in the
past as a domestic). Once the ALJ accepts the claimant’s IQ score as valid, he may not consider
the claimant’s work experience in determining whether the claimant meets the listing. Id. Thus,
in the instant case, the ALJ erred in using the claimant’s past work experience to place him in the
category of borderline intellectual functioning instead of mild mental retardation.
However, the Eleventh Circuit has recognized that a valid IQ score need not be
conclusive of mental retardation where the IQ score is inconsistent with other evidence in the
record on the claimant’s daily activities and behavior. See Popp v. Heckler, 779 F.2d 1497, 1499
(11th Cir. 1986). Yet, here, the ALJ has not presented substantial evidence to support his
decision that the claimant’s IQ score is inconsistent with other evidence in the record. He relies
heavily on his own observations of the claimant at the hearing, instead of the expert opinion of
Dr. Davis that diagnosed the claimant with mild mental retardation. Thus, the ALJ did not have
substantial evidence to conclude that the claimant’s IQ score was inconsistent with the other
evidence in the record.
The ALJ failed to assess whether the claimant’s impairment manifested before the age of
twenty-two as required under 12.05(C). In the instant case, the claimant presented a high school
IQ test taken on February 20, 1985 given by the special education program at his high school.
The claimant’s IQ on this test was in the borderline range, within a few points of his most recent
IQ scores, suggesting that the claimant’s mental impairment had manifested before the age of
twenty-two. In addition, a diagnosis of mild mental retardation at present is consistent with the
claimant’s illiteracy and his taking special education classes while in the Anniston City School
Additionally, the ALJ in this case did not analyze the claimant’s additional mental and
physical impairments in combination with his mental retardation, as he is required to do under
12.05(C). The ALJ failed to address whether an additional physical or mental impairment
imposes significant work-related limitations of function. To meet this requirement under
12.05(C), the additional physical or mental impairment need not be severe, only more than slight.
See Edwards by Edwards v. Heckler, 755 F.2d 1513, 1517 (11th Cir. 1985) (concluding that a
claimant with a valid IQ of 67 and chronic obstructive lung disease and exercise-induced asthma
satisfied the requirements for section 12.05(C) disability, even though the evidence established
that the additional impairments were not, of themselves, disabling because the claimant was
doing well with medications and controlling his exercise).
The ALJ did not analyze the claimant’s symptoms using the standard required in
12.05(C). Instead, he used the Eleventh Circuit’s three-part pain standard to determine if the
claimant’s pain symptoms were debilitating independent of the claimant’s mild mental
retardation, instead of in combination with his mental impairment. The ALJ should have
determined whether the claimant’s lumbar degenerative disc disease, anxiety, depression, and
hypertension had a more than slight or minimal effect on his ability to work, not whether they
rendered him completely unable to work independently of his mental defect. See Davis v.
Shalala, 985 F.2d 528, 532 (holding that a claimant’s alleged allergies and mild carpal tunnel
syndrome imposed more than a slight or minimal, even though less than a severe, limitation on
her functional abilities).
Therefore, in the instant case, the ALJ erred in his application of the legal standard for
meeting the 12.05(C) listing by failing to do the following: use the claimant’s lowest IQ score to
assess the claimant’s mental functioning; provide substantial evidence that the claimant’s IQ
scores are inconsistent with his daily activities; assess whether the claimant’s impairment
manifested before the age of twenty-two; and determine if the claimant’s physical impairments
constituted a significant as opposed to a severe impairment.
Because the first issue on appeal is meritorious, the court does not need to address any
further issues. However, the court notes that, upon remand, the ALJ should consider several other
matters that troubled this court and would also call into question whether substantial evidence
supports the remainder of the ALJ’s decision:
(1) whether the ALJ committed error when according little weight to the opinion of Dr.
Iyer although his diagnosis was supported by Dr. Iyer’s own objective findings, as well as a May
12, 2009 exam at Tolbert Health Care;
(2) whether the ALJ properly included yard work in the list of the claimant’s daily
activities without acknowledging that mowing his lawn takes the claimant over three days to
complete and causes him severe back pain; and
(3) whether the ALJ improperly rejected the testimony of the claimant and his doctor
regarding limitations to the claimant’s range of motion without stating explicit reasons for the
For the reasons stated, this court concludes that the ALJ failed to apply the appropriate
legal standard in 12.05(C) to assess whether the claimant has a listed impairment. Therefore, the
court will REVERSE the Commissioner’s decision and will REMAND it for the ALJ to
determine whether the claimant is entitled to Disability or Disability Insurance Benefits. The
court will enter a separate order to that effect simultaneously.
DONE and ORDERED this 20th day of September, 2012.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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