Ware v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 1/31/2014. (JLC)

FILED
2014 Jan-31 PM 02:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
DIANN WARE o/b/o J.P.,
Plaintiff,
v.
CAROLYN W. COLVIN,1
ACTING COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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) Case No.: 7:12-CV-3663-VEH
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MEMORANDUM OPINION
Plaintiff Diann Ware, on behalf of her minor son J.P., brings this action
pursuant to Title XVI of the Social Security Act. She seeks review of a final
adverse decision of the Commissioner of the Social Security Administration
(“Commissioner”), who denied her application for Supplemental Security Income
(“SSI”).2 Ms. Ware timely pursued and exhausted her administrative remedies
Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Acting Commissioner
Carolyn W. Colvin should be substituted for Commissioner Michael J. Astrue as the Defendant
in this suit. (“Any actions instituted in accordance with this subsection shall survive
notwithstanding any change in the person occupying the office of Commissioner of Social
Security or any vacancy in such office.”).
2
In general, the legal standards applied are the same regardless of whether a claimant
seeks Disability Insurance Benefits (“DIB”) or SSI. However, separate, parallel statutes and
regulations exist for DIB and SSI claims. Therefore, citations in this opinion should be
1
1

available before the Commissioner. The case is ripe for review under 42 U.S.C. §
405(g).3
FACTUAL AND PROCEDURAL HISTORY
J.P. was nine years old at the time of the second administrative hearing
before the Administrative Law Judge (“ALJ”) and had completed the third grade.4
(Tr. 56). Ms. Ware claims that her son became disabled on February 15, 2006, due
to: attention deficit hyperactivity disorder (“ADHD”) and headaches. (Tr. 198,
56-58).
Alice Ware, Ms. Ware’s mother, protectively filed a Title XVI application
for SSI on behalf of J.P. on August 30, 2007. (Tr. 188). On December 5, 2007,
the Commissioner initially denied these claims. (Tr. 101). Ms. Ware then filed a
written request for a hearing on January 2, 2008. (Tr. 104-06). An ALJ, Geoffrey
S. Casher, held a hearing on April 24, 2009. (Tr. 40). He issued a decision
denying Ms. Ware’s application on July 8, 2009. (Tr. 91).
On August 17, 2009, Ms. Ware, through her attorney, requested a review of
the decision to address additional evidence. (Tr. 132). The Appeals Council

considered to refer to the appropriate parallel provision as context dictates. The same applies to
citations of statutes or regulations found in quoted court decisions.
3
42 U.S.C. § 1383(c)(3) renders the judicial review provisions of 42 U.S.C. § 405(g) fully
applicable to claims for SSI.
4
At the hearing, the mother testified that J.P. was only eight years old. Id. However, the
ALJ confirmed that J.P.’s birthday is February 15, 2001, and the hearing was held on July 28,
2010. (Tr. 56, 70).
2

remanded the case back to an ALJ on October 26, 2009. (Tr. 92). Another ALJ,
Charles A. Thigpen, conducted a hearing on the matter on July 28, 2010. (Tr. 53).
On September 17, 2010, he issued an opinion concluding J.P. was not disabled and
denying benefits. (Tr. 35). Ms. Ware timely petitioned the Appeal Council to
review the decision on October 25, 2010.5 (Tr. 11). On July 11, 2012, the Appeals
Council denied a review on her claim. (Tr. 5-8). The Appeals Council then set
this denial aside to consider additional information and re-denied Ms. Ware’s
request for review on August 22, 2012. (Tr. 1-4).
On October 22, 2012, Ms. Ware filed a Complaint with this court. (Doc. 1).
The Commissioner answered on January 28, 2013. (Doc. 6). Ms. Ware filed a
supporting brief (Doc. 8) on March 14, 2013, and the Commissioner responded
with her own brief (Doc. 9) on April 15, 2013. With the parties having fully
briefed the matter, the court has carefully considered the record and reverses the
decision of the Commissioner.
STANDARD OF REVIEW
The 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.

Richardson v. Perales, 402 U.S. 389, 390 (1971);

McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Graham v. Bowen,
5

The petition, however, was not processed until February 8, 2011. (Tr. 10).
3

790 F.2d 1572, 1575 (11th Cir. 1983); Bloodsworth v. Heckler, 703 F.2d 1233,
1239 (11th Cir. 1983). This court must “scrutinize the record as a whole to
determine if the decision reached is reasonable and supported by substantial
evidence.” Bloodsworth, 703 F.2d at 1239. This court will determine that the
ALJ’s opinion is supported by substantial evidence if it finds “such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. Substantial evidence is “more than a scintilla, but less than a
preponderance.” Id. The court “may not decide facts anew, reweigh the evidence,
or substitute [its] judgment for that of the [Commissioner.]” Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (citation omitted). The ALJ’s legal conclusions,
however, are reviewed de novo, because no presumption of validity attaches to the
ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala,
985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the ALJ’s
application of the law, or if the ALJ fails to provide the court with sufficient
reasoning for determining that the proper legal analysis has been conducted, the
ALJ’s decision must be reversed. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46
(11th Cir. 1991).
STATUTORY AND REGULATORY FRAMEWORK
To qualify for SSI benefits an individual under age 18, defined as a child
under the Social Security Act, must be disabled as defined by the Social Security
4

Act and the Regulations promulgated thereunder.6 See 20 C.F.R. § 416.906. The
law defines children’s “disability” as “a medically determinable physical or mental
impairment or combination of impairments that causes marked and severe
functional limitations, and that can be expected to cause death or that has lasted or
can be expected to last for a continuous period of not less than 12 months.” Id.
In determining whether a child is disabled, the Regulations provide a threestep process. 20 C.F.R. § 416.924(a).

The Commissioner must determine in

sequence: (1) whether the child is engaged in substantial gainful activity, (2)
whether the child has an impairment or combination of impairments that is severe;
and (3) whether the child has an impairment that meets, medically equals, or
functionally equals the Listing of Impairments. Id.; see also Henry v. Barnhart,
156 Fed. App’x. 171, 173 (11th Cir. 2005) (citing 20 C.F.R. § 416.924(a); Wilson
v. Apfel, 179 F.3d 1276, 1277 n.1 (11th Cir.1999)). A medically determinable
impairment “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 416.908. Further, the impairment “must be
established by medical evidence consisting of signs, symptoms, and laboratory
findings, not only by [a claimant’s] statement of symptoms.” Id.

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499, as current through December 26, 2013.
5
6

Functional equivalence is found if the child’s impairment or combination of
impairments results “in ‘marked’7 limitations in two domains of functioning or an
‘extreme’8 limitation in one domain . . .” 20 C.F.R. §416.926a(a). In order to
determine whether a child’s status functionally equals the criteria for an
impairment listed in the Regulations, the ALJ must consider functionality in terms
of six domains: “(i) Acquiring and using information; (ii) Attending and
completing tasks; (iii) Interacting and relating with others; (iv) Moving about and
manipulating objects; (v) Caring for yourself; and (vi) Health and physical wellbeing.” 20 C.F.R. § 416.926a(b)(1)(i-vi). If the impairment(s) does not satisfy the
duration requirements, or does not meet, medically equal, or functionally equal one
of the Listings in the Regulations, a finding of not disabled will be reached and the
claim will be denied. See 20 C.F.R. § 416.924(d)(2).
FINDINGS OF THE ADMINISTRATIVE LAW JUDGE
First, the ALJ found that J.P. was a school-age child and had not engaged in
substantial gainful activity since August 30, 2007, the application date. (Tr. 18).
He then found that J.P. had the following severe impairments: ADHD and
headaches. Id. However, he concluded that J.P. did not have an impairment or
A “marked” limitation in a domain is found when a child’s impairment(s) seriously
interfere with the ability to independently initiate, sustain, or complete activities. 20 C.F.R. §
416.926a(e)(2)(i).
8
An “extreme” limitation in a domain is found when a child’s impairment(s) very
seriously interfere with the ability to independently initiate, sustain, or complete activities. 20
C.F.R. § 416.926a(e)(3)(i).
6
7

combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
Next, the ALJ determined that J.P. did not have an impairment or
combination of impairments that functionally equaled one of the listed
impairments. Id. Thus, the ALJ ultimately determined that J.P. had not been under
a disability, as defined in the Social Security Act, since August 30, 2007, through
the date of the decision. (Tr. 35).
ANALYSIS
The court may reverse a finding of the Commissioner if it is not supported
by substantial evidence. 42 U.S.C. § 405(g). “This does not relieve the court of its
responsibility to scrutinize the record in its entirety to ascertain whether substantial
evidence supports each essential administrative finding.” Walden v. Schweiker,
672 F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103,
1106 (5th Cir.1980)).9 However, the court “abstains from reweighing the evidence
or substituting its own judgment for that of the [Commissioner].” Id. (citation
omitted).
The Commissioner may also be reversed if the record shows that she has
failed to follow the proper legal framework. See Lewis v. Callahan, 125 F.3d
Strickland is binding precedent in this Circuit. See Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent all decisions of the
former Fifth Circuit handed down prior to October 1, 1981).
7
9

1436, 1439 (11th Cir. 1997) (“[The court] review[s] the Commissioner’s decision
to determine if it is supported by substantial evidence and based on proper legal
standards.”) (emphasis added). Moreover, in contrast to the substantial evidence
standard, “[n]o similar 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 (citing Wiggins v. Schweiker, 679
F.2d 1387, 1389 (11th Cir. 1982)).
The court agrees with Ms. Ware’s contentions that (1) the Commissioner’s
decision is not supported by substantial evidence and (2) the ALJ failed to consider
whether J.P. met the requirements for Listing 112.05D.
I.

The ALJ’s determination that J.P.’s impairment(s) did not functionally
equal one of the Listings is not supported by substantial evidence.
In his decision, the ALJ adopted nonexamining, medical expert Dr. Doug

McKeown’s “designations of the functional domains for [J.P.].” (Tr. 28). Dr.
McKeown’s designations, and thus the ALJ’s, provided that J.P. had no limitation
in acquiring and using information, less than marked limitations in attending and
completing tasks, less than marked in interacting and relating with others, no
limitations in moving an manipulating objects, no limitations in the ability to care
for himself, and no limitations in heal and physical well-being. (Tr. 65-66, 30-35).

8

The ALJ’s credibility findings demonstrate the lack of substantial evidence
to support the functional domain analysis.

Additionally, J.P.’s academic records

do not provide substantial evidence to support the ALJ’s decision.
A.

The ALJ’s decision to discredit the opinions of two examining
physicians was not supported by substantial evidence.

After discussing the evidence, the ALJ first gave the testimony of Dr.
McKeown “substantial weight.” (Tr. 28). Next, the ALJ afforded the opinion of
Dr. Donald W. Blanton, the consultative examiner, substantial weight because he
was “qualified to offer an opinion regarding the claimant’s mental status[,] and his
opinion is generally consistent with Dr. McKeown’s opinion and the record.” (Tr.
29). It is not clear whether the ALJ then gave the state agency consultant’s opinion
“some” weight or “substantial” weight. Id. (“The undersigned [ALJ] gives some
substantial [sic] to the opinion of [the] state agency consultant.”).

The ALJ

justified this decision because the consultant’s opinion was “generally consistent
with Dr. McKeown’s opinion and the record.” Id.
Finally, the ALJ determined that the opinions of examining physicians Drs.
Melissa F. Jackson and John R. Goff were entitled to little weight. He rejected Dr.
Goff’s opinion because “[h]is evaluation is not totally consistent with the medical
evidence and the opinion of Dr. McKeown.” Id. He similarly discredited Dr.

9

Jackson’s evaluation because it was “not totally consistent with Dr. McKeown.”
Id.
“Generally, [the Commissioner] give[s] more weight to the opinion of a
source who has examined [the claimant] than to the opinion of a source who has
not examined [the claimant].” 20 C.F.R. § 404.1527(c)(1). The Commissioner
will also consider other factors, such as supportability and consistency with the
record, in determining the weight to give a medical opinion. See 20 C.F.R. §
404.1527(c)(3)-(6). She may then reject a medical opinion if the evidence supports
a contrary finding.

Syrock v. Heckler, 764 F.2d 834, 835 (11th Cir. 1985).

However, “[t]he opinions of nonexamining, reviewing physicians, ... when
contrary to those of examining physicians are entitled to little weight in a disability
case, and standing alone do not constitute substantial evidence.” Lamb v. Bowen,
847 F.2d 698, 703 (11th Cir. 1988) (quoting Sharfarz v. Bowen, 825 F.2d 278, 280
(11th Cir. 1987)).
First, the court notes the ALJ’s outright adoption of Dr. McKeown’s
functional assessment and specific reference to his testimony in every physician
credibility determination. (Tr. 28-29). This strongly suggests that the ALJ erred
by relying solely on Dr. McKeown’s opinion to discredit the two examining
physicians’ reports and to make his functional domain findings. See Lamb, 847

10

F.2d at 703.

Regardless, substantial evidence does not support these

determinations.
1. Dr. Melissa Jackson
On August 10, 2009, Ms. Prince – J.P.’s school counselor – referred him to
Dr. Jackson at the West Alabama Mental Health Center (“WAMHC”) for an
assessment of his intellectual and academic functioning.

(Tr. 414).

In her

summary, Dr. Jackson stated:
On a measure of intellectual functioning, [J.P.] obtained a full scale IQ of
67, which falls in the Extremely Low range. He obtained a Total
Achievement score of 61, which falls into the Very Low range. His
academic achievement is consistent with his intellectual functioning. In
addition to below average intellectual functioning, [J.P.] also demonstrates
concurrent deficits in his present adaptive functioning. His ability to meet
the standards expected for his age is lacking in all areas of adaptive
functioning including communication (i.e., receptive, expressive, written),
daily living skills (i.e., personal, domestic, community), and socialization
(i.e., interpersonal relationships, play and leisure time, coping skills).
Id. J.P.’s IQ and Total Achievement score were “equal to or better than 1% of his
same-aged peers.” (Tr. 418, 419). Dr. Jackson diagnosed J.P. with mild mental
retardation10 and gave him a Global Assessment of Functioning (“GAF”) score of
55.11 (Tr. 416).
The proper nomenclature is now “intellectual disability.” The “actual medical
definition of the disorder,” however, has not changed. Hickel v. Comm'r of Soc. Sec., 13-11172,
2013 WL 5778956, at *1 n.2 (11th Cir. Oct. 28, 2013) (citing 78 Fed.Reg. 46,499, 46,500-01).
11
“GAF scores between 51 and 60 reflect moderate symptoms, including moderate
difficulty in social, occupational, or school settings.” Wind v. Barnhart, 133 Fed. App'x 684,
687 (11th Cir. 2005) (citing American Psychiatric Ass'n, Diagnostic and Statistical Manual of
Mental Disorders at 34 (4th ed. 2000)).
11
10

In his testimony, Dr. McKeown does not specifically discuss Dr. Jackson’s
evaluation. He does cite a “school evaluation that was done, apparently in July of
2009 that indicated an IQ of 67.” (Tr. 63). Presumably, he is referring to Dr.
Jackson’s examination at the WAMHC. However, despite Dr. Jackson’s mental
retardation diagnosis, he testified that “for his long-term treatment at West
Alabama Mental Health, the only diagnosis they have for him is … [ADHD].”12
(Tr. 65).

He also overlooks at least four separate Psychiatric Assessments at

WAMHC noting mild mental retardation.13 See (Tr. 497, 503, 519, 522). Dr.
McKeown’s review of the record cannot provide evidence to discredit Dr.
Jackson’s opinion when Dr. McKeown failed to review Dr. Jackson’s actual
diagnosis and findings.
The ALJ also noted other “objective evidence” supported discrediting Dr.
Jackson’s opinion.

(Tr. 29). Specifically, he noted J.P.’s functional abilities,

academic performance, and Individualized Educational Program (“IEP”) placement
established a higher level of adaptability functioning.

However, as discussed

below, this evidence does not provide substantial evidence to support the ALJ’s
findings.

The ALJ appears to have also made this mistake when he stated “there is no Mental
Retardation diagnosis” from WAMHC. (Tr. 27).
13
The confusion likely exists because J.P.’s ADHD counselors only listed ADHD on
Axis II. See, e.g., (Tr. 527).
12
12

2. Dr. John Goff
On April 22, 2009, Dr. Goff performed a psychological evaluation on J.P.
J.P. “obtained a full scale IQ score of 68. That score falls within the mildly
retarded range.” (Tr. 408). Despite this, Dr. Goff opined, “I really do not think
this young fellow is mentally retarded, but he has a very substantial language
problem.” Id. He further stated that:
[J.P.] is currently technically functioning within the mentally retarded range
of psychometric intelligence. He has a very substantial language problem[,]
and I think he has a language based learning disability or an expressive
language disorder. He can engage in casual conversation, but he has a great
deal of difficulty in any sort of structured setting[,] and he does not
understand basic language concepts. The combination of the attention
problems and his language difficulties represent a substantial problem for
this young fellow. I think the attention problem is being treated, but he is
not getting much in the way of results. I do not know that the language
problem has even been identified at this point, but it is having a negative
impact upon his acquisition of basic academic skills.
During this examination this young fellow did not function in an age
appropriate manner in terms of his cognition or communication. He has
difficulties paying attention and some difficulties expressing himself, which
reflect negatively on his ability to deal with social issues and situations.
There are obvious difficulties in regard to concentration, persistence and
pace, even in the “on-medication” condition.
(Tr. 409-10).

Dr. Goff diagnosed J.P. with Attention-Deficit Hyperactivity

Disorder, moderate to severe expressive language disorder and “[d]eferred” a
diagnosis of intellectual disability under Axis II.14
“Axis II is for reporting Personality Disorders and Mental Retardation.” Jackson ex
rel. K.J. v. Astrue, 734 F. Supp. 2d 1343, 1374 n.5 (N.D. Ga. 2010) (quoting American
Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders at 28 (4th ed. 2000)).
13
14

Dr. Goff also completed a Broad Functional Limitations form. He opined
that J.P. had marked limitations in acquiring and using information, attending and
completing tasks, and interacting and relating with others; no limitations in moving
about and manipulating objects; less than marked limitations in caring for himself;
and no limitations in health and physical well-being. (Tr. 411-12).
Dr. McKeown’s testimony does not provide substantial evidence, alone or in
combination, to reject Dr. Goff’s opinion. Discussing Dr. Goff’s opinion, Dr.
McKeown testified:
And the IQ from Dr. Goff was 68, but he deferred a diagnosis on [Axis II].
And, I’m not sure why. But he did give him a diagnosis on [Axis I] of
[ADHD]. It’s very possible that the reason that he deferred a diagnosis on
[Axis II] and didn’t consider mental retardation was because his
achievement testing was consistent with low average abilities.
(Tr. 63).
Dr. McKeown misrepresents Dr. Goff’s diagnosis. Dr. Goff deferred an
Axis II diagnosis because he believed J.P. suffered from a “moderate to severe
language disorder.” (Tr. 410). Furthermore, Dr. Goff noted that “we do see delays
regarding his academic achievement” and that his language problem “was having a
negative impact upon his acquisition of basic academic skills.” (Tr. 409). Dr.
McKeown also does not mention or address the fact that Dr. Goff stated that J.P.
had marked limitations in acquiring and using information, attending and
completing tasks, and interacting and relating with others. (Tr. 411). Dr. Goff’s
14

assessment indicates that he believed J.P. did not have low average abilities. Dr.
McKeown’s review (or lack of review) of Dr. Goff’s opinion does not support his
rejection of it.
3. State Agency Consultant
On December 4, 2007, the state agency consultant concluded that J.P. had no
limitations in acquiring and using information, less than marked limitations in
attending and competing tasks, less than marked limitations in interacting and
relating with others, no limitations in moving about and manipulating objects, less
than marked limitations in caring for himself, and no limitations in health and
physical well-being. (Tr. 372-73).
In evaluating the opinion of a state agency consultant, the ALJ must consider
it as “as opinion evidence.” 20 C.F.R. § 404.1527(e)(2)(i). Thus, the opinion of a
nonexamining state agency medical consultant’s opinion is “entitled to little
weight.” Lamb, 847 F.2d at 703. Furthermore, the consultant determined that J.P.
had a lower level of functioning than the ALJ. He determined that J.P. had less
than marked limitations in caring for himself (Tr. 373), while the ALJ determined
that J.P. had no limitations in caring for himself. (Tr. 34).
The state agency determination was also performed before the bulk of the
evidence was introduced in the record. In December 2007, the record did not
contain the examining physicians’ reports, the teacher evaluations, or Ms. Ware’s
15

testimony.

It is based on J.P.’s grandmother’s function report and his early

treatment for ADHD at WAMHC. See (Tr. 372). Thus, this opinion does not
provide substantial evidence to support the ALJ’s decision.
4. Dr. Blanton
During the consultative examination with Dr. Blanton, J.P. received a full
scale IQ score of 70 with a verbal comprehension score of 69.

Dr. Blanton

concluded:
In summary [J.P.] … scored in the bottom of the borderline intelligence on
this administration of the WAIS-IV. This was felt to be a valid assessment
of his current level of intellectual functioning, as there were no distracting
factors during the testing session and the patient appeared to put good effort
into his work. Academic achievement testing reveals he is actually
performing above his intellectual level and no sign of a learning disability
was noted today. He does have symptoms of ADHD and appears helped by
his medication.
(Tr. 487). He diagnosed J.P. with borderline intelligence and ADHD. (Tr. 488).
The court recognizes that this diagnosis conflicts with Dr. Jackson’s
intellectual disability diagnosis and with Dr. Goff’s language disorder diagnosis.
Furthermore, it is “the province of the ALJ” to weigh this type of opinion evidence
and make credibility determinations. Moore v. Barnhart, 405 F.3d 1208, 1212
(11th Cir. 2005) (citation omitted). However, that is not what the ALJ did. He did
not mention Dr. Blanton’s diagnosis in his rejection of either Dr. Jackson’s or Dr.
Goff’s opinion. (Tr. 29). In fact, the ALJ did not find borderline intellectual
16

functioning to be a severe impairment15 or discuss its effect on J.P.’s functional
domains. (Tr. 19, 30-35). Furthermore, Dr. Blanton did not offer an opinion on
J.P.’s adaptive functioning. He did assign him a GAF score of 60, but the ALJ
assigned the score “little weight.” (Tr. 26).
The medical opinions in the record provide conflicting interpretations of
J.P.’s impairments and limitations that must be resolved by the Commissioner.
However, the opinion evidence does not provide substantial evidence for the
adoption of Dr. McKeown’s functional domain analysis. Dr. McKeown’s review
of the opinions of Drs. Jackson and Goff neglected their diagnoses and findings,
and Dr. Blanton’s opinion does not provide substantial evidence to support the
ALJ’s determinations.
B.

The Teacher Evaluations and J.P.’s Grandmother’s report do not
provide substantial evidence to support the decision of the
Commissioner.

The Commissioner argues that the ALJ also used “the reports of [J.P.’s]
teachers that were consistent with the evidence as a whole … and the portions of
[J.P.’s] Grandmother’s report that were consistent with the record” to discredit the
physicians’ opinions and support his decision. (Def.’s Br. 16). These opinions on
J.P.’s functional limitations do not support the ALJ’s decision.

This is an odd oversight, considering Dr. McKeown also noted J.P. suffered from
borderline intellectual functioning. (Tr. 65).
17
15

On February 17, 2009, Ms. Lee – J.P.’s second grade teacher – opined that
J.P. had some slight problems acquiring and using information, obvious problems
attending and completing tasks, and a few slight problems in interacting with
others. (Tr. 226-27). In May 2009, Ms. Lee completed another questionnaire
regarding his limitations. She stated that J.P. suffered from marked limitations in
acquiring and using information, attending and completing tasks, and interacting
and relating with others. (Tr. 249).
On January 22, 2010, Ms. Mills – J.P.’s third grade teacher –noted that J.P.
did not pay attention, follow directions, complete assignments, or participate in
class. (Tr. 22, 253-55). She stated that “[h]is functioning level is low without
assistance from the Resource Teacher.” (Tr. 255). On July 15, 2010, Ms. Prince
completed a teacher questionnaire. She stated that J.P.’s behavior was “not age
appropriate!”

(Tr. 298).

She estimated that J.P. had extreme limitations in

acquiring and using information and attending and completing tasks. (Tr. 300).
J.P.’s grandmother stated that J.P. could “deliver telephone messages, repeat
stories …, tell jokes or riddles accurately, and talk with family and friends.” (Tr.
28). She “reported that the claimant does not have any physical limitations.” Id.
However, she also noted that J.P. cannot explain why he did something, read and
understand simple sentences, write a simple story, tell time, make correct change,
tie his shoelaces, take a bath or shower without help, wash his hair, write in
18

longhand, obey safety rules (i.e. looking before crossing the street), and choose his
own clothes. (Tr. 211-15).
The ALJ gave “some weight” to Ms. Lee and Ms. Mills but “little weight” to
Ms. Prince.

(Tr. 29).

To discredit these opinions, the ALJ first cited Dr.

McKeown. Id. The ALJ also cited J.P.’s grades, his IEP report and unspecified
“other objective evidence.” Id. The ALJ also found the grandmother’s assessment
“partially credible” for unspecified reasons. Id.
Even assuming these credibility determinations are supported by substantial
evidence, the discredited reports cannot be a basis to reject the physicians’
opinions or to support the ALJ’s functional domain analysis. Misses Lee, Mills
and Prince all opined that J.P. suffered from greater functional limitations than the
ALJ.

J.P.’s grandmother also stated that J.P.’s impairments caused greater

limitations. For example, a school-age child should be able to “tell[] time[] and
mak[e] change” if he has no restrictions in acquiring and using information. 20
C.F.R. § 416.926a(g)(2)(iv). J.P.’s grandmother stated that he could not do these
things. (Tr. 211-15). Yet, the Commissioner attempts to use these reports to
discredit Drs. Jackson and Goff and to support his functional domain analysis.
The Commissioner unpersuasively argues that the ALJ used the parts “that
were consistent with the record.” (Def.’s Br. 16). The ALJ, then, should use that

19

part of the record to support his credibility determinations and functional domain
analysis, not the reports he found incredible.
C.

J.P.’s academic record does provide substantial evidence to
support the Commissioner’s decision.

The ALJ also cited J.P.’s academic performance to support his functional
domain analysis and credibility findings. Discussing J.P.’s academic progress, the
ALJ cited “notable improvements” from “the first to second nine weeks of the 2nd
grade.” (Tr. 22). He additionally pointed to various weekly evaluations from the
third grade demonstrating that J.P. “did not always earn poor grades.” (Tr. 23). He
noted that Ms. Lee stated that, with help, J.P. could academically perform at the
same level as other students and Ms. Mills opined he could do better if he tried. Id.
Furthermore, J.P.’s IEP stated that “continued placement in the regular education
classroom … would best suit his needs.” (Tr. 23).

Dr. McKeown also reported

that J.P.’s academic achievement testing “was solid average. He was reading
completely on grade level, spelling on grade level, and about three quarters of a
year behind on arithmetic.” (Tr. 64).
However, the IEP plan also reduced the number of concepts presented at a
time, broke assignments into shorter segments, allowed him to re-do any
unacceptable work, afforded him extra time to complete his work, and provided
thirty minutes of math and reading intervention and another thirty minutes of
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general instruction daily. (Tr. 283, 286). Many of J.P.’s records indicate that his
grades were “with accommodation” or the “teacher’s help.” (Tr. 296, 277). While
the ALJ correctly noted some good grades for J.P., the record also contains
numerous poor grades. See (Tr. 274, 275, 276, 277). Further, Ms. Prince reported
that J.P. was “not on level with reading and math,” had “grades … below other
students in the classroom,” and needed the special education teacher to complete
his work. (Tr. 298-99).
Like the medical diagnoses, the academic record contains somewhat
conflicting evidence as to the degree of J.P.’s functional limitations. However, it
does not provide substantial evidence to support a rejection of two examining
physicians’ opinions, three teacher evaluations, and J.P.’s grandmother’s function
report in favor of a state agency consultant without access to the majority of the
record and a nonexamining physician. Substantial evidence does not support the
ALJ’s functional domain analysis.
II.

The ALJ did not follow the proper legal framework in his decision when
he failed to consider whether J.P. medically met Listing 112.05D.
In order to meet Listing 112.05D for intellectual disability, Ms. Ware “must

prove that her son meets both the requirements in the diagnostic description of the
introductory paragraph and the listed severity criteria in 112.05D.” Gray ex rel.
Whymss v. Comm'r of Soc. Sec., 454 Fed. App'x 748, 750 (11th Cir. 2011) (citing
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20 C.F.R. Pt. 404, Subpt. P, App. 1, 112.00A). The diagnostic description requires
“significantly subaverage general intellectual functioning with deficits in adaptive
functioning.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, 112.05.

Further, Listing

112.05D requires “[a] valid verbal, performance, or full scale IQ of 60 through 70
and a physical or other mental impairment imposing an additional and significant
limitation of function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1.
In determining that J.P. did not meet a Listing, the ALJ did not mention or
explain why J.P. did not meet Listing 112.05D. The Eleventh Circuit has stated:
[I]n order to make [the court’s] review meaningful, [the court] must be able
to determine what statutory and regulatory requirements the ALJ did in fact
apply—where [the court] cannot do that we must vacate and require a
remand to the [Commissioner] for clarification.
Jamison v. Bowen, 814 F.2d 585, 589 (11th Cir. 1987) (citation omitted) (holding
that the ALJ did not properly consider the claimant’s medical condition as a
whole). In an unpublished opinion, the Eleventh Circuit applied this reasoning to
the adult intellectual disability Listing:
[T]he ALJ said that there was no medical evidence supporting a finding of
listing-level severity as to any impairment, but in this explanation, the ALJ
did not mention the mental retardation [intellectual disability] listing,
Sheffield's IQ, Sheffield's educational history or current activities, or
Sheffield's argument from the hearing that he met the mental retardation
listing at § 12.05(C). On this record, we cannot effectively ensure that the
ALJ properly applied the relevant regulatory requirements. … Accordingly,
we vacate and remand for further findings.
Sheffield v. Comm'r of Soc. Sec., 513 Fed. App'x 840, 842-43 (11th Cir. 2013).
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In the present case, the ALJ did not mention Listing 112.05D, accept or
reject J.P.’s multiple IQ tests,16 consider whether his headaches and ADHD
qualified as an additional impairment, or discuss the diagnostic requirements for
the intellectual disability Listings.

The Eleventh Circuit, in an unpublished

decision, found that the ALJ’s Decision can contain an implicit finding, when
“substantial record evidence supports that [the claimant’s] condition did not
actually or functionally meet Listing 112.05.” Turberville ex rel. Rowell v. Astrue,
316 Fed. App'x 891, 893 (11th Cir. 2009) (citing to the ALJ’s functional domain
analysis and other “conclusions”). However, as discussed above, in this case the
ALJ’s explicit findings are not supported by substantial evidence. Therefore, the
court will “remand to the [Commissioner] for clarification.” Jamison, 814 F.2d at
589.
CONCLUSION
Based upon the court’s evaluation of the evidence in the record and the
parties’ submissions, the court concludes that the decision of the Commissioner is
not supported by substantial evidence and that she failed to apply the proper legal
standards in arriving at it. Accordingly, the decision of the Commissioner will be
reversed and remanded by separate order.
Although J.P. has three IQ scores meeting the listing’s requirements, these scores are
not conclusive indicators of intellectual disability. See Popp v. Heckler, 779 F.2d 1497, 1499
(11th Cir. 1986). The ALJ may accept or reject an IQ score based on the other evidence in the
record. Id.
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DONE and ORDERED this the 31st day of January, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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