Fuqua v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 4/12/2013. (JLC)

FILED
2013 Apr-12 PM 01:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION

TERRY LEE FUQUA,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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) Case No.: 3:12-CV-0111-VEH
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MEMORANDUM OPINION
The plaintiff, Terry Lee Fuqua, brings this action pursuant to the
provisions of section 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g),
seeking judicial review of a final adverse decision of the Commissioner of the Social
Security Administration (the Commissioner) denying his application for Social Security
Benefits. Plaintiff timely pursued and exhausted his administrative remedies available
before the Commissioner. Accordingly, this case is now ripe for judicial review under
205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The sole function of this court is to determine whether the decision of the
Commissioner is supported by substantial evidence and whether proper legal standards
were applied. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). To that
end this court “must scrutinize the record as a whole to determine if the decision

reached is reasonable and supported by substantial evidence.” Bloodsworth, at 1239
(citations omitted). Substantial evidence is “such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Bloodsworth, at 1239.
DISCUSSION
The plaintiff alleges he is disabled under listing 12.05C based upon IQ
testing performed by Dr. Crowder, Ph.D., at the request of plaintiff’s attorney. Doctor
Crowder reported IQ scores as follows:
Verbal

Performance

Full Scale

66

70

65

Record 249. Dr. Crowder diagnosed the plaintiff as having “mild mental retardation to
borderline general intellectual ability.” Record 249.
Listing 12.05C requires that a claimant have a “ valid verbal,
performance, or full-scale IQ of 60 through 70 and a physical or other mental
impairment imposing additional and significant work-related limitation of function.”
Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993)(quoting Listing 12.05C).
In addition to a valid IQ score meeting the requirements of Listing
12.05C, a plaintiff must also satisfy the diagnostic description in the introductory
paragraph of Listing 12.05C. See, Listing 12.00A (“If your impairment satisfies the
diagnostic description in the introductory paragraph and any one of the four sets of

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criteria, we will find that your impairment meets the listing.”) The diagnostic
description in the introductory paragraph to Listing 12.00 defines mental retardation:
Mental Retardation 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 the impairment before age 22.”
Listings 12.05. The plaintiff argues Dr. Crowder’s report, in combination with his low
back pain, satisfies the requirements of Listing 12.05C. He argues the ALJ’s finding
that he did not meet Listing 12.05C was, therefore, not supported by substantial
evidence.
The ALJ, Cynthia G. Weaver, gave little weight to the assessment and IQ
testing done by Dr. Crowder. R. 16. She did not make an explicit finding as to whether
the IQ scores reported by Dr. Crowder were valid. However, she did find the plaintiff’s
testimony and reported activities were not consistent with mild mental retardation:
By his own testimony the claimant testified that he graduated high school
and never failed any grades and his ability to live alone, pass a drivers’
test and drive a car, take care of personal needs, and maintain his home is
totally inconsistent with [mild mental retardation].
R. 16-17. This suggests the ALJ found the plaintiff did not meet Listing 12.05C
because he did not meet the diagnostic criteria for mental retardation.
The Diagnostic and Statistical Manual of Mental Disorders (“DSM”)
offers guidance in determining whether the diagnostic description of Listing 12.05 has
been met. The DSM description of Mild Mental Retardation contains the following:

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By their late teens, they can acquire academic skills up to approximately
the sixth-grade level. During their adult years, they usually achieve social
and vocational skills adequate for minimum self-support, but may need
supervision, guidance, and assistance, especially when under unusual
social or economic stress. With appropriate supports, individuals with
Mild Mental Retardation can usually live successfully in the community,
either independently or in supervised settings.
DSM-IV-TR at 43. Therefore, the ALJ placed too much emphasis on the plaintiff’s
ability to live independently in finding he was not mentally retarded.
In support of his appeal, the plaintiff attached additional evidence to his
reply brief. The proffered evidence consists of a decision by ALJ Ricky V. South,
finding the plaintiff disabled since September 10, 2010.1 In that decision, ALJ South
found the plaintiff met Listing 12.05C. ALJ South relied heavily upon the report from
Dr. Crowder that ALJ Weaver gave little weight. His decision does not reference any
other evidence relevant to the issue of whether the plaintiff meets Listing 12.05C.
Confronted with two ALJ decisions reaching contradictory results
apparently based upon the same evidence, and because the ALJ placed excessive weight
upon the plaintiff’s ability to live independently, the court is of the opinion that this
case should be remanded under sentence four of 42 U.S.C. § 405(g) for further
development of the record. On remand, the Commissioner shall consider additional
evidence, order consultative examinations, and conduct such further hearings as she
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This is the date of the ALJ’s decision in the present case.

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deems appropriate in order to determine whether the plaintiff is disabled under Listing
12.05C.
An appropriate order will be entered contemporaneously herewith.
DONE and ORDERED 12 April 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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