Havis v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 12/21/12. (CVA)

FILED
2012 Dec-21 PM 04:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JASON DEWAYNE HAVIS,
Plaintiff,
vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

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Civil Action Number
4:12-cv-01924-AKK

MEMORANDUM OPINION
Plaintiff Jason Dewayne Havis (“Havis”) brings this action pursuant to
Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). This court finds that the Administrative Law Judge’s
(“ALJ”) decision - which has become the decision of the Commissioner - is not
supported by substantial evidence and, therefore, REVERSES the decision
denying benefits to Havis.
I. Procedural History
Havis protectively filed applications for Disability Insurance Benefits and

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Supplemental Security Income Benefits on March 4, 2009, alleging a disability
onset date of December 25, 2008 due to emphysema, migraine headaches, and a
gunshot wound in his neck. (R. 170, 207). After the SSA denied Havis’s
applications, he requested a hearing before an ALJ. (R. 108, 113, 120). The ALJ
subsequently denied Havis’s claims, (R. 16-34), which became the final decision
of the Commissioner when the Appeals Council refused to grant review, (R. 1-5).
Havis then filed this action for judicial review pursuant to § 205(g) and §
1631(c)(3) of the Act, 42 U.S.C. § 405(g) and § 1383(c)(3). Doc. 1; see also doc.
9.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
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review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairments 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 twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
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psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “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.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
Lastly, where, as here, a plaintiff alleges disability because of pain, she must

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meet additional criteria. In this circuit, “a three part ‘pain standard’ [is applied]
when a claimant seeks to establish disability through his or her own testimony of
pain or other subjective symptoms.” Holt v. Barnhart, 921 F.2d 1221, 1223 (11th
Cir. 1991). Specifically,
The pain standard requires (1) evidence of an underlying medical
condition and either (2) objective medical evidence that confirms the
severity of the alleged pain arising from that condition or (3) that the
objectively determined medical condition is of such a severity that it
can be reasonably expected to give rise to the alleged pain.1
Id. However, medical evidence of pain itself, or of its intensity, is not required:
While both the regulations and the Hand standard require objective
medical evidence of a condition that could reasonably be expected to
cause the pain alleged, neither requires objective proof of the pain
itself. Thus under both the regulations and the first (objectively
identifiable condition) and third (reasonably expected to cause pain
alleged) parts of the Hand standard a claimant who can show that his
condition could reasonably be expected to give rise to the pain he
alleges has established a claim of disability and is not required to
produce additional, objective proof of the pain itself. See 20 CFR §§
404.1529 and 416.929; Hale [v. Bowen, 831 F.2d 1007, 1011 (11th
Cir. 1987)].
Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) (parenthetical
information omitted) (emphasis added). Moreover, “[a] claimant’s subjective
testimony supported by medical evidence that satisfies the pain standard is itself
sufficient to support a finding of disability.” Holt, 921 F.2d at 1223. Therefore, if
1

This standard is referred to as the Hand standard, named after Hand v. Heckler, 761
F.2d 1545, 1548 (11th Cir. 1985).
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a claimant testifies to disabling pain and satisfies the three part pain standard, the
ALJ must find a disability unless the ALJ properly discredits the claimant’s
testimony.
Furthermore, when the ALJ fails to credit a claimant’s pain testimony, the
ALJ must articulate reasons for that decision:
It is established in this circuit that if the [ALJ] fails to articulate reasons
for refusing to credit a claimant’s subjective pain testimony, then the
[ALJ], as a matter of law, has accepted that testimony as true. Implicit
in this rule is the requirement that such articulation of reasons by the
[ALJ] be supported by substantial evidence.
Hale, 831 F.2d at 1012. Therefore, if the ALJ either fails to articulate reasons for
refusing to credit the plaintiff’s pain testimony, or if the ALJ’s reasons are not
supported by substantial evidence, the court must accept as true the pain testimony
of the plaintiff and render a finding of disability. Id.
IV. The ALJ’s Decision
The court notes initially that the ALJ properly applied the five step analysis.
The ALJ first determined that Havis has not engaged in substantial gainful activity
since December 25, 2008, and therefore met Step One. (R. 21). The ALJ also
acknowledged that Havis’s gunshot wound to the right scapula with retained
bullet, headaches, chronic obstructive pulmonary disease (“COPD”), degenerative
joint disease of the lumbar spine (“DJD”), and diminished intellectual functioning
with a history of learning deficits were severe impairments that met Step Two. Id.
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The ALJ proceeded to the next step and found that Havis failed to meet or equal
one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, Appendix 1 and thus
did not satisfy Step Three. Id. at 22. Although he answered Step Three in the
negative, consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ
proceeded to Step Four where he determined that Havis
has the residual functional capacity to understand, remember, and carry
out instructions sufficiently to complete simple tasks; to lift and carry 25
pounds occasionally and 10 to 15 pounds frequently; to occasionally
crouch, crawl, reach overhead, and push/pull with the bilateral upper
extremities; and to otherwise perform light work as defined in 20 CFR
404.1567(b) and 415.967(b) that deals with things as opposed to people;
is goal-oriented rather than production-rate pace work; and does not
require concentrated exposure to temperature extremes, vibration, or
pulmonary irritants or the climbing of ladders, ropes, or scaffolds.
Id. at 25. With respect to the pain standard, the ALJ found that Havis’s “medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, [Havis’s] statements concerning his symptoms and their
intensity, persistence, and limiting effects are not credible to the extent they are
inconsistent with the above [RFC] assessment.” Id. at 26. Based on his RFC
assessment, the ALJ found that Havis is unable to perform any past relevant work.
Id. at 30. Finally, at Step Five, the ALJ determined that “there are jobs that exist
in significant numbers in the national economy that [Hill] can perform[,]” and,
thus, that Hill is not disabled. Id. at 30-31; see also McDaniel, 800 F.2d at 1030.
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V. Analysis
Havis contends that the ALJ erred by (1) failing to properly consider and
apply Listings 12.05B and C, and (2) substituting his opinion for that of the
examining medical expert. Doc. 9 at 7-16. For the reasons stated more fully
below, the court finds that the ALJ’s decision is not supported by substantial
evidence.
A.

Disability Based on Mental Disorder
Under § 12.00 of the Social Security Listings, a claimant may obtain

disability benefits by establishing one of several mental disorders. See 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.00. “The evaluation of disability on the basis of
mental disorders requires documentation of a medically determinable
impairment[], consideration of the degree of limitation such impairment[] may
impose on the individual’s ability to work, and consideration of whether these
limitations have lasted or are expected to last for a continuous period of at least 12
months.” Id. at §12.00A. Havis contends that he suffers from the disabling
condition of mental retardation, doc. 9 at 7, as specifically defined in § 12.05 –
“significantly subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested” prior to age 22. 20 C.F.R. Pt. 404, Subpt. P,
App.1, § 12.05 (emphasis added). “The required level of severity for this disorder
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is met when the requirements in [subparagraphs] A, B, C, or D are satisfied.” Id.
Havis contends that the ALJ erred by failing to find him disabled under
subparagraphs B and C of § 12.05. The court agrees.
1.

Listing 12.05B

Under Listing 12.05B, a claimant is disabled if he presents “[a] valid verbal,
performance, or full scale IQ of 59 or less[.]” 20 C.F.R. Pt. 404, Subpt. P, App.1,
§ 12.05B. In other words, presentation of a valid IQ score below 59 is sufficient
to demonstrate “significantly subaverage general intellectual functioning with
deficits in adaptive functioning” despite the claimant’s prior ability to engage in
substantial gainful activity with the impairment. See Ambers v. Heckler, 736 F.2d
1467, 1469 (11th Cir. 1984). However, even if a claimant presents an IQ score
below 59, an ALJ may properly find the claimant not disabled if the IQ score is
not valid or is inconsistent with other evidence of record. Lowery v. Sullivan, 979
F.2d 835, 837 (11th Cir. 1992).
In this case, Dr. Jack L. Bentley, Jr. performed psychological testing on
Havis on June 9, 2010, including the Wechsler Adult Intelligence Scale-III
(“WAIS-III”) test. (R. 291). Havis obtained a verbal IQ of 58, a performance IQ
of 58, and a full scale IQ of 54. Id. According to Dr. Bentley, “[t]hese results
place [Havis’] cognitive functioning in the Middle of the Lower End of the Mild
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Range of Mental Retardation.” Id. The record indicates further that Havis was in
“educable, mentally retarded” (“EMR”) classes in grades 7 through 12. Id. at 227229. However, despite Havis’s IQ scores and school records, and Dr. Bentley’s
statements, the ALJ found that Havis did not meet Listing 12.05B. Specifically,
the ALJ found that
the fact that the claimant received EMR services is not dispositive of
mental retardation or adaptive deficits. There are no IQ scores reflected
in the records submitted and no information concerning the testing
leading to his classification as EMR. Additionally, the same school
records that confirm EMR services also show that the claimant
successfully passed the math and language sections of the Alabama High
School Graduate Examination – a highly unlikely accomplishment for
an individual with a valid IQ falling in the low end of mild mental
retardation. Furthermore, the claimant’s history since high school is
inconsistent with significant deficits in adaptive functioning. The
claimant has a semi-skilled to skilled work history as a hotel
maintenance worker and, according to his own report, worked in a
supervisory capacity in that job. . . .
Additionally, the undersigned is not convinced that the IQ scores
produced at Dr. Bentley’s evaluation are valid. . . . [Dr. Bentley]
provides no information concerning the claimant’s effort and/or
motivation and voices no opinion as to the validity of the test results.
The undersigned finds it notable that while the claimant was reportedly
unable to define the words “repair” and “assemble” during this
evaluation, he used those terms in claims-related forms when describing
his former job duties. . . .
However, even if the IQ scores are accurate, the evidence of the
claimant’s daily life and adaptive functioning would rebut the
presumption of severe mental impairment.

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(R. 24-25).
With respect to Havis’s IQ scores, the court notes first that the ALJ’s
statement regarding Dr. Bentley’s failure to state whether he considered Havis’s
IQ test results valid is directly contradicted by the record. Albeit after the ALJ’s
finding, Dr. Bentley opined that
[h]aving administered the WAIS-III and WAIS-IV to many individuals
over the last 30 years, it is reasonably easy to discriminate the
individuals who are not making a reasonable effort on this phase of the
evaluation. Mr. Havis’s communication skills, general vocabulary and
results of the intelligence testing were all consistent with individuals
functioning in the Middle to Lower End of the Mild Range of Mental
Retardation. Mr. Havis certainly appeared to make a reasonable effort
and these results are judged to be both accurate and a reliable estimate
of his cognitive functioning.
Id. at 243. Moreover, Havis’s use of the terms “repair” and “assemble” on forms
describing his prior work experience does not necessarily undermine his inability
to abstractly define the terms during his evaluation with Dr. Bentley. Accordingly,
the record does not indicate that Havis’s IQ score is not valid and the ALJ’s
contrary finding was erroneous.
Next considering Havis’s school records, the court disagrees that these
records contradict a finding a disability under § 12.05C. Although it appears the
school did not perform an IQ test on Havis prior to graduation, “the [current] IQ
tests create a rebuttable presumption of a fairly constant IQ throughout [Havis’s]
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life.” Hodges, 276 F.3d at 1268. Therefore, despite Havis’s ability to pass the
math section of the Alabama Graduation Exam, the court presumes that Havis’s IQ
was below 59 during high school, especially since he failed the other portions of
the exam. Moreover, Havis’s school records support a finding of mental disability
because the school placed Havis in the “educable, mentally retarded” program.
(R.227-229).
Lastly, the ALJ purports to rebut Havis’s IQ score with evidence of Havis’s
prior work experience. Id. at 24. Just as in Ambers, “[t]his case presents an
unusual situation in that the claimant was gainfully employed in the past with [his]
impairments and upon cessation of gainful employment [otherwise] meets the
Secretary’s disability listing in Appendix 1, Part A, Section 12.05B[,]” namely, an
IQ score below 59. Ambers, 736 F.2d at 1469. The prior ability to engage in
gainful employment does not, however, defeat Havis’s current disability claim
under § 12.05B:
The language of the statute states that disability means ‘inability to
engage in any substantial gainful activity by reason of medically
determinable physical or mental impairment. . .’ 42 U.S.C.A. § 423. The
regulations, however, state that ‘[t]he Listing of Impairments describes,
for each of the major body systems, impairments which are considered
severe enough to prevent a person from doing any gainful activity.’ 20
C.F.R. § 404.1525(a); 20 C.F.R. § 416.925(a). If an individual’s
impairment ‘meets the duration requirement and is listed in Appendix
1 . . . we will find (the claimant) disabled . . .’ 20 C.F.R. § 404.1520(d);
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20 C.F.R. § 416.920(d). Therefore, upon cessation of employment, the
regulations support a finding of disability if one meets the listings, even
though the statute relates disability to the inability to work because of
the impairment.
Id. Based on this Eleventh Circuit precedent, the court finds that Havis’s prior
work experience does not foreclose his ability to obtain benefits for a mental
disability, even presuming the disability existing while he previously worked. No
other evidence in the record contradicts Havis’s alleged mental retardation and
Havis claim, instead, is bolstered by a valid IQ score below 59 and corresponding
school records. Therefore, the court declines to address Havis’s claim under
12.05C and finds that the ALJ erred in failing to find Havis disabled under Listing
12.05B.
VI. CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that Havis is not disabled is not supported by substantial evidence. Therefore, the
Commissioner’s final decision is REVERSED and the case is REMANDED to
the Commissioner to award Havis the benefits claimed.
DONE the 21st day of December, 2012.
________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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