Long v. Social Security Administration, Commissioner
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/31/14. (SAC )
2014 Mar-31 PM 12:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
STEVEN C. LONG,
CAROLYN W. COLVIN
Commissioner of the Social
CIVIL ACTION NO.
On December 29, 2009, the claimant, Steven C. Long, filed applications for Disability
Insurance Benefits and Supplemental Security Income Payments, under Title II and Title XVI of the
Social Security Act. (R. 140, 135). The claimant alleges disability commencing on July 5, 2009
because of hypertension and gout. The Commissioner denied the claims on March 8, 2010. (R. 7081). After the Social Security Administration disapproved the claimant’s application, but before the
administrative hearing, the claimant filed a second disability report alleging additional disabilities
of pain, depression, high cholesterol, and diabetes. (R. 222).
The claimant filed a timely request for a hearing before an Administrative Law Judge, and
the ALJ held a hearing on May 26, 2011. (R. 82-87, 31-59). In a decision dated July 19, 2011, the
ALJ found that the claimant was not disabled as defined by the Social Security Act and, thus, was
ineligible for Disability Insurance Benefits and Supplemental Security Income Payments. (R. 9-30).
On August 28, 2012, the Appeals Council denied the claimant’s request for review; consequently,
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the ALJ’s decision became the final decision of the Commissioner of the Social Security
Administration. (R. 1-6). The claimant has exhausted his administrative remedies, and this court
has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
In his decision, the ALJ considered the claimant’s mental impairments, in comparison to
Listing § 12.05, because of a mental evaluation submitted before the hearing, and because of
testimony regarding the claimant’s educational history and mental inabilities given at the hearing.
(R. 15, 19, 22-24, 36-51, 352-355); 20 C.F.R. pt. 404, subpt. P, app. 1, pt. A §§ 12.00, 12.05 (2013)
[hereinafter Listing § 12.05, and as consistent with other sections following Part A of Appendix 1].
For the reasons stated below, this court reverses and remands the decision of the Commissioner.
II. ISSUE PRESENTED
The issue before the court is whether the ALJ erred in finding that the claimant did not meet
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
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reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971).
The court must keep in mind that opinions such as whether a claimant is disabled, the nature
and extent of a claimant’s residual functional capacity, and the application of vocational factors “are
not medical opinions, . . . but are, instead, opinions on issues reserved to the Commissioner because
they are administrative findings that are dispositive of a case; i.e., that would direct the determination
or decision of disability.” 20 C.F.R. §§ 404.1527(e), 416.927(d). Whether the Plaintiff meets the
listing and is qualified for Social Security disability benefits is a question reserved for the ALJ, and
the court “may not decide facts a new, reweigh the evidence, or substitute [its] judgment for that of
the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the
court were to disagree with the ALJ about the significance of certain facts, the court has no power
to reverse that finding as long as there is substantial evidence in the record supporting it.
However, 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 also must view the
record in its entirety and take account of 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 any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or can be
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expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To
make this determination, the Commissioner employs a five-step, sequential evaluation process:
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific impairments set
forth in 20 C.F.R. pt. 404, subpt. P, app. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next question,
or, on steps three and five, to a finding of disability. A negative answer to any
question, other than step three, leads to a determination of “not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); C.F.R. §§ 404.1520, 416.920.
To meet Listing § 12.05 for “mental retardation,”2 a claimant must meet the introductory
diagnostic description of the diagnosis to the extent that it further meets a level of severity detailed
in any one of the four sets of criteria that follow. Listings §§ 12.00, 12.05. The introductory
paragraph of § 12.05 requires that a claimant show “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.” Listing
§ 12.05; see also Perkins v. Comm’r, Soc. Sec. Admin., No. 13-12024, 2014 WL 223905, at *2 (11th
Cir. Jan. 22, 2014) (quoting Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997)) (the
Eleventh Circuit divided the introductory paragraph into three separate factors).
To fulfill the introductory description and meet the required level of severity through §
12.05(C), the claimant must show “[a] valid verbal, performance, or full scale IQ of 60-70 and a
“On August 1, 2013, . . . the [SSA] amended Listing 12.05 by replacing the words ‘mental retardation’ with ‘intellectual
disability.’ This change was made because ‘the term “mental retardation” has negative connotations,’ and ‘has become
offensive to many people.’ The [SSA] stated that the change ‘does not affect the actual medical definition of the disorder
or available programs or services.’ Because the amendment does not effect a substantive change, and to avoid confusion,
this opinion uses the term “mental retardation” used by the parties and the ALJ.” Hickel v. Comm’r of Soc. Sec., 539
F. App’x. 980, 982 n.2 (11th Cir. 2013) (citations omitted).
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physical or other mental impairment imposing an additional and significant work-related limitation
of function[.]” Listing § 12.05(C) (the SSA evaluates the additional impairment’s effect on
functional limitation according to the definition of a “severe impairment,” as used in step two of the
five step sequential evaluation process and defined in §§ 404.1520(c) and 416.920(c). Id. §
12.00(A)). Because the introductory description is generally satisfied by evidence proffered in
support of § 12.05(C), the Eleventh Circuit has held that “a claimant meets the criteria for
presumptive disability under section 12.05(C) when the claimant presents a valid I.Q. score of 60
to 70 inclusive, and evidence of an additional mental or physical impairment that has more than a
‘minimal effect’ on the claimant’s ability to perform basic work activities.” Smith v. Comm’r of Soc.
Sec., 535 F. App’x 894, 897 (11th Cir. 2013) (emphasis added) (quoting Lowery v. Sullivan, 979
F.2d 835, 837 (11th Cir. 1992)).
Because the IQ score is “essential” to meeting § 12.05(C), the Eleventh Circuit guides an ALJ
in how to properly consider an IQ score.
Listing § 12.00(D)(6) (explaining the need for
“standardized intelligence test results” in all cases, except when precluded as in § 12.05(A)). In
Hodges v. Barnhart, the Eleventh Circuit established that a valid IQ score creates a rebuttable
presumption of “a fairly constant IQ score throughout [his or] her life[,]” “absent evidence of sudden
trauma that can cause retardation.” 276 F.3d 1265, 1268 (11th Cir. 2001). The Hodges court applied
this presumption to the introductory requirement that a claimant must show deficits in adaptive
functioning before the age of twenty-two. Therefore, a claimant’s valid IQ score creates a rebuttable
presumption that he or she manifested deficits in adaptive functioning prior to the age of twenty-two.
Id. at 1268-1269 (the court also includes in this presumption that a “mental disability” arose before
the age of twenty-two, using the two phrases interchangeably).
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However, in Popp v. Heckler, the Eleventh Circuit held that “[t]he ALJ is required to
examine the results [of an IQ test] in conjunction with other medical evidence and the claimant’s
daily activities and behavior[;]” an IQ score alone is not conclusive evidence of a mental disability.
779 F.2d 1497, 1499-1500 (11th Cir. 1986) (emphasizing that an IQ score “must be examined to
assure consistency with daily activities and behavior”). The SSA also instructs an ALJ to look to
the narrative report that accompanies the test results, as it “should comment on whether the IQ scores
are considered valid and consistent with the developmental history and the degree of functional
limitation.” Listing § 12.00(D)(6)(a); see also Hickel v. Comm’r of Soc. Sec., 539 F. App’x 980, 984
n.6 (11th Cir. 2013). Therefore, the presumption enunciated in Hodges, that a claimant’s IQ score
evidences deficits in adaptive functioning before the age of twenty-two, may be rebutted when the
IQ score is inconsistent with record evidence of a claimant’s daily activities and behavior. Hodges,
276 F.3d at 1269; Lowery, 979 F.2d at 837.
While the burden rests with the claimant to prove a disability, the ALJ has a duty to develop
a full and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); 20 C.F.R. §
416.912(c). When the evidence shows that the claimant has a mental impairment, the ALJ may
determine that the claimant is not disabled “‘only if the [ALJ] has made every reasonable effort’ to
obtain the opinion of a ‘qualified psychiatrist or psychologist.’” McCall v. Bowen, 846 F.2d 1317,
1320 (11th Cir. 1988) (quoting 42 U.S.C.A. § 421(h)); see also 20 C.F.R. § 416.903(e). Because
the ALJ has a duty to develop the medical record fully and fairly, “it is reversible error for an ALJ
not to order a consultive examination when such an evaluation is necessary for him to make an
informed decision.” Holladay v. Bowen, 848 F.2d 1206, 1209-10 (11th Cir. 1988); see also Reeves
v. Heckler, 734 F.2d 519, 522 n.1 (11th Cir. 1984). The ALJ’s duty to order a consultative
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examination can be triggered when an inconsistency in the evidence exists or the medical record as
a whole does not support a determination on the disability claim. 20 C.F.R. § 416.903(a); 20 C.F.R.
§ 416.919. Further, the Eleventh Circuit holds that “[a]n ALJ . . . abuses his discretion when he
substitutes his own uninformed medical evaluations for those of a claimant’s treating physicians.”
Maybury v. Sullivan, 957 F.2d 837, 840 (11th Cir. 1991) (Johnson concurring).
The claimant was thirty-nine years old at the time of the administrative hearing and has a
high school education. (R. 16, 37). His past work experience includes employment as an industrial
paper winder helper, green lumber stacker, and industrial sweeper. (R. 50-51, 196, 197). The
claimant alleged disability beginning on July 5, 2009 because of high blood pressure3 and gout. (R.
14, 135, 140, 176, 181). After the Social Security Administration disapproved the claimant’s
application, but before the administrative hearing, the claimant filed a second disability report
alleging additional disabilities of pain, depression, high cholesterol, and diabetes. (R. 222). He has
not worked since July 2, 2009 and is currently receiving food stamps. (R. 16).
In the third grade, the claimant tested with no mastery in any of the categories in Reading and
Language, and in only three categories in Mathematics. (R. 244-246). In the fourth and fifth grades,
the claimant took the California Achievement Tests and scored with no mastery in any of the thirtysix to thirty-eight categories. (R. 242-243). In the sixth grade, the claimant took the Alabama
Competency Test and tested with no mastery in any of the fifty-three subjects, except “Literal Word
Meanings,” Context Clues,” “Logical Organization,” and “Perimeters & Areas.” (R. 241).
Later referred to as a diagnosis of “hypertension” in the record medical evidence, in the RFC Assessment, and in the
claim disapproval. The two terms are commonly interchangeable.
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The claimant attended North Sumter Junior High for grades seven to twelve. In the seventh
grade, the school placed the claimant in Remedial English and Vocational Education. The claimant
continued his Vocational Education classes in eighth and ninth grade. In the tenth grade, the school
placed the claimant in History and Science special education courses, and the claimant tested well
below average of the national percentile, in every category, on the Stanford Test of Academic Skills.
(R. 231, 237). In eleventh grade, the school placed him in English and Math special education
courses, and the claimant took the Alabama High School Graduation Exam twice and did not pass
either time. (R. 231, 236, 239).
The claimant continued in the English special education course
in the twelve grade. (R. 231). However, when the claimant took the same test that he took in the
eleventh grade again in the twelfth grade, the claimant’s score sheet noted that he passed, but
included no detailed categorical scores, as reported in his two previous eleventh grade score sheets.
The claimant was employed at McGregor Printing from 1995 to 1999 as a winder helper.
This position included helping someone else, who operated the machine, to lift and stack rolls of
paper onto and off of a paper winder. (R. 152, 197). From June 2000 to July 2009, the claimant was
employed with Westervelt Lumber as a green lumber stacker. This position included operating a
machine that cut wood by lifting and pulling wood from the machine to stack on a table. (R. 167,
196). In 2008, while working at Westervelt, the claimant also worked as an industrial sweeper at
Wal-Mart, sweeping and cleaning the floors. (R. 50, 154, 159).
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Dr. Katona first diagnosed the claimant with high blood pressure, headaches, and obesity on
February 7, 2005, and hypertension on February 28, 2005, at Riverside Family Medicine. (R. 272,
271). For about three years, Dr. Katona treated the claimant for hypertension, high blood pressure,
and headaches, usually prescribing the medication Hyzaar. (R. 267-280). After Hill Hospital
diagnosed the claimant with gout, as described in detail below, Dr. Katona also began treating the
claimant for gout on March 6, 2008. The claimant reported that he walked better after visiting Hill
Hospital. This March visit with Dr. Katona was the claimant’s last visit, as reported in the record.
Dr. Houston first clearly diagnosed the claimant with gout (gouty arthritis) on June 27, 2008
in the emergency department of Hill Hospital for Sumter County. (R. 287). However, Dr. Houston
also noted that the claimant’s gout diagnosis first derived from the claimant’s previous visit to the
emergency department on June 23, 2008. The specific diagnoses by Dr. Gordon, four days prior to
the claimant’s visit with Dr. Houston, are unclear. (R. 290). The claimant visited Hill Hospital
again and until March 22, 2009. (R. 281-296). The claimant primarily complained of pain in his
right wrist and in both of his feet. The physicians treated the claimant with prescription medication,
including Mobic, Allopurinol, Bactrim, Medrol, Ultram, and Celebrex.
The claimant additionally sought treatment for his gout from Dr. Lessman of Fitz Ferald &
Perret Clinic from March 24, 2009 to March 30, 2009. Over the course of three visits, Dr. Lessmann
noted that the claimant had gout throughout his ankles, his knees, and in his left wrist, and prescribed
medications to help with the pain, to stop the current attack, and to prevent future outbreaks. (R.
298-303). Although the claimant’s swelling decreased, and he stated that the pain improved, Dr.
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Lessmann referred the claimant to Dr. Tropeano for further and continued treatment for the
claimant’s gout. (R. 298).
The claimant visited Dr. Tropeano of Tropeano Orthopaedics & Sports, for continued
treatment of his gout and the pain it caused, from April 1, 2009 to May 13, 2009. (R. 307-311). Dr.
Tropeano doubled the doses of some of the claimant’s medications to reduce the pain and swelling
caused by the claimant’s gout in his left wrist. (R. 311). Although Dr. Tropeano’s treatment helped
reduce the pain and swelling in one of the claimant’s feet, the claimant’s left wrist continued to be
problematic. (R. 309). Dr. Tropeano also took the claimant off of work for two weeks to see
improvement with the claimant’s wrist pain and swelling. (R. 307-308)
The claimant sought further treatment for his gout, hypertension, and obesity from Certified
Registered Nurse Practitioner Terre Moore of the Blackbelt Clinic of Livingston, from May 22, 2009
to July 29, 2009. (R. 313-323). CRNP Moore saw the claimant four times, and treated the
claimant’s gout with prescription medication, and injections given on two separate visits. (R. 313,
317, 320, 323).
Dr. Walton, of Sumter County Health Center, first saw the claimant on November 13, 2009,
when he sought treatment for a fall four days prior to the visit. At this initial appointment, Dr.
Walton diagnosed the claimant with uncontrolled hypertension, head trauma, cervical strain, and
obesity. Dr. Walton noted that the claimant’s medical history seemed to include arthraligas (joint
pain), gout, hypertension, and obesity. (R. 325). On January 28, 2010, Dr. Walton included in his
assessment that the claimant had a history of gouty arthritis. (R. 330). On April 29, 2010, Dr.
Walton officially diagnosed the claimant with Type II Diabetes Mellitus. (R. 347). For about three
years, the claimant consistently complained of foot and wrist pain, and Dr. Walton consistently
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treated the claimant for hypertension and obesity, and since the date of diagnosis, diabetes and gouty
arthritis. (R. 325-330, 337-350, 357-358). Aside from treating with prescription medications, Dr.
Walton also suggested x-rays, a consultation at a nerve center, and various surgical remedies, but the
claimant never followed through because of the large financial obligations. (R. 330, 337, 341, 343,
345, 350). The claimant continued treatment with Dr. Walton until May 20, 2011. (R. 357).
Dr. Donald W. Blanton, Ph.D. first diagnosed the claimant with mild mental retardation on
March 23, 2011 at Selma Family Medicine Center of the School of Medicine at the University of
Alabama at Birmingham. (R. 355). The claimant visited Dr. Blanton for a consultative mental
evaluation at the request of the claimant’s attorney. Dr. Blanton administered the Wechsler Adult
Intelligence Scale-IV, an IQ test. The claimant obtained a Verbal Comprehension score of 66, a
Perceptual Reasoning score of 65, a Working Memory score of 74, a Processing Speed score of 68,
and a Full Scale IQ score of 62. (R. 353). Dr. Blanton also administered the Wide-Range
Achievement Test (Revised III), in which the claimant tested at a second grade level in Reading and
Spelling, and a third grade level in Arithmetic. (R. 354).
Dr. Blanton stated the following, in narrative of his medical testing and evaluation:
In summary, Steven C. Long . . . scored in the mild range of mental retardation on the
administration of the WAIS-IV. This score was felt to be a valid estimate of his
current level of intellectual functioning, as there were no distracting factors during
the testing session, and he appeared to put good effort into his work. Academic
achievement testing reveals that his academic skills would be of very limited use to
him in a vocational setting making retraining difficult. Although he does appear to
be having chronic pain, he does not appear to be having any significant psychological
problems at this time. . . . It is my opinion based upon my examination and testing
today, that Steven C. Long has marked limitations that seriously interfere with his
ability to perform work related activities on a day to day basis in a regular work
setting in the following areas:
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Understanding detailed or complex instructions.
Carrying out detailed or complex instructions.
Remembering detailed or complex instructions.
Use judgment in detailed or complex work-related decisions.
This patient demonstrates deficits in adaptive functioning likely manifested prior to
age 22 in the following areas: self care, health and safety, functional academic skills.
The Administrative Hearing
After the Commissioner denied the claimant’s request for disability insurance benefits and
supplemental security income, the claimant requested and received a hearing before an ALJ. (R. 8,
31-59, 70-81, 82-87). At the hearing, the claimant testified that he is unable to work primarily
because of a cyst and gout causing pain in his wrists, and because of diabetes causing pain in his feet,
limiting his ability to hold and grip items, and affecting his ability to walk, sit, and stand. The
claimant reported that on an average day, depending on the weather, he has a pain level of seven-tonine out of ten in both his wrists and feet. (R. 40-41).
According to his testimony, the claimant’s pain in his wrists and feet prevents him from
functioning normally. He lives with his parents, and his mother completes all the household chores.
The claimant is unable to wash the dishes or complete any yard work, and he often drops his
medicine. Although he used to ride horses, the claimant’s daily activities now consist of watching
television, sitting in the yard, and sometimes going to the grocery store. On trips to the grocery store,
the claimant stated that he can only walk around the store for two to five minutes before having to
retreat to the car to sit. The claimant also testified that he is unable to sleep through the night and
that he does not rest well. (R. 43, 47-49).
As to the pain in his feet, the claimant stated that he walks with a limp, can only walk about
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half a block, can only stand for about five to ten minutes, and lies down for four to six hours out of
an eight hour day with his feet elevated to reduce the pain. However, the claimant also testified that
he can only sit down for about thirty minutes before needing to stand. The claimant feels numbness,
burning, and the sensation of pins sticking the bottom of his feet. The claimant stated that his feet
will swell and start to burn if he keeps his shoes on. When asked about the effectiveness of the
injections given by Dr. Walton, the claimant stated that they only eased the pain some. Dr. Walton
also prescribed Lyrica and then Neurontin, which worked about the same according to the claimant.
The claimant testified that he has headaches two to three days out of a week. To reduce the
pain from the headaches, he takes Tylenol and goes to a room by himself with no noise or light. The
claimant also stated that he takes medication for high blood pressure, diabetes, cholesterol, and
additionally takes ibuprofen, an acid pill, and medication for his sinuses. (R. 47).
In review of the claimant’s mental capabilities, the claimant’s attorney asked about his
educational history, work history, and any assistance that he received in his applications to work and
receive disability benefits. In the seventh grade, the claimant testified that the school placed him in
remedial English. The claimant also stated that he failed Science in the seventh grade, but the school
still passed him to eighth grade. In eighth and ninth grade, the claimant stated that he took
vocational educational classes. The claimant stated that in the tenth grade the school placed him in
special education classes for History and Science. In the eleventh grade, the claimant testified that
the school placed him in special education classes for English and Math; he remained in the special
education course for English in the twelve grade. Additionally, the claimant testified that he took
the driver’s license test five or six times before he passed. (R. 39-40).
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As to the claimant’s work history, he stated that he did not operate a machine while employed
with McGregor Printing, but was a machine helper and only helped with a paper winder, always
having someone with him while helping to wind rolls of paper. In application for work at McGregor
Printing, the claimant stated that a current employee helped him fill out the application. In response
to clarifying questions by the vocational expert about the claimant’s work at Westervelt, the claimant
testified that he operated a machine that stacks lumber after it has been cut. When the claimant
applied for work at Westervelt, he stated that the temp service helped him fill out the application
because he could not do it himself. After testifying that he worked at Westervelt for nine years, the
claimant stated that he stopped working in July of 2009 because his medical problems, specifically
his gout, caused him to have too many absences. (R. 38). The claimant again clarified his work for
the vocational expert when he stated that the work he did as an industrial sweeper was cleaning and
sweeping the floors at Wal-Mart. (R. 50). When the claimant applied for disability benefits, he
testified that he had a friend help him read and fill out the application. (R. 45-46).
A vocational expert, Dr. Robert John Beadles, Jr., testified concerning the type and
availability of jobs the claimant was able to perform. (R. 49-50, 51-58). After obtaining clarification
from the claimant on the type of work completed, Dr. Beadles categorized the claimant’s work
history according to the Dictionary of Occupational Titles. The jobs included a green lumber
stacker, light and semi-skilled; a winder helper, medium and semi-skilled; and an industrial sweeper,
medium and unskilled. (R. 51). The ALJ then asked the vocational expert four hypothetical
questions about the claimant’s ability to perform work in the national and regional economy.
For the first question, the ALJ instructed Dr. Beadles to assume a hypothetical person with
the claimant’s age, education, prior work experience, who can perform work at the light exertional
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level with the following physical limitations: must alternate sitting and standing, at will, to relieve
pain or discomfort; must elevate feet 12 to 18 inches, at will; cannot climb ladders, ropes, or
scaffolds; can frequently climb ramps and stairs; can frequently balance, kneel, crouch, crawl, and
stoop; can frequently reach, handle, finger, and feel; must avoid concentrated exposure to extreme
heat and cold; can have concentrated exposure to vibration, humidity, and wetness; and must avoid
all hazardous machinery and unprotected heights. (R. 51-52). The ALJ also asked Dr. Beadles to
assume the hypothetical person had the following “moderately limited” mental abilities:
understanding and remembering detailed instructions; carrying out detailed instructions; and
sustaining an ordinary routine without special supervision. (R. 52-53).
Dr. Beadles stated that this individual could not perform any of the claimant’s past relevant
work, nor could this individual perform any work in the national or regional economy because of the
elevation level required. (R. 53).
The ALJ then posed the second hypothetical by adjusting the elevation requirement to just
twelve inches. Dr. Beadles stated that this elevation would still “affect the job performance,
especially for assembly-type work with limitations.” (R. 53).
The ALJ then asked a third hypothetical, suggested by Dr. Beadles, and adjusted the elevation
to eight to ten inches, with the above limitations remaining the same. Dr. Beadles stated that this
person could find work in the national and regional economy, as a gate guard, a packer, and a sorter,
all able to be performed in a sit-stand or neutral body position. (R. 54).
For the fourth hypothetical, the ALJ added the following limitation:
Due to a combination of medical conditions and associated pain as well as mental
impairments, the individual’s unable to sustain sufficient concentration, persistence,
or pace to do even simple, routine tasks on a regular and continuing basis, for eight
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hours a day, five days a week, for a forty-hour work week or an equivalent work
(R. 54-55). Dr. Beadles stated that with this additional limitation, the individual would not be able
to perform any work in the national or regional economy. (R. 55).
The claimant’s attorney asked Dr. Beadles what percentage of time a job requires a worker
to stay on task and how this requirement might affect a worker’s need to change positions, and
ability to sit and stand at will. Dr. Beadles stated that a worker needs to be at a job 100% of the time.
As to the jobs Dr. Beadles suggested earlier, the need to sit and stand would not affect work as a gate
guard or a sorter, but that if the packer job was on an assembly line, like any production-type job,
then it “probably could impact that job.” (R. 55-58).
The claimant’s attorney additionally asked Dr. Beadles about the longevity of a person’s
position in an unskilled job, and how many absences the job would tolerate after a probationary
period. Dr. Beadles concluded that the job would tolerate “probably two, at best,” before the person
is let go, “and those would require some type of documentation.” (R. 58). Dr. Beadles also stated
that, based on the claimant’s testimony of his pain and what was needed to alleviate the pain, the
claimant could not be competitively employed. (R. 58).
The ALJ’s Decision
On July 19, 2011, the ALJ issued a decision finding that the claimant was not disabled under
the Social Security Act. (R. 9, 12-26). The ALJ did find that the claimant met the insured status
requirements of the Social Security Act through December 31, 2014, and that the claimant had not
engaged in substantial gainful activity since the alleged onset of his disability on July 5, 2009. The
ALJ also found that the claimant had the following severe impairments:
hypertension; diabetes mellitus, Type II; borderline intellectual functioning; mild mental retardation;
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migraine headaches; and obesity. The ALJ found these impairments to be severe, “significantly
limit[ing] [the claimant’s] physical or mental ability to do basic work activities,” as defined in
sections 404.1520(c) and 416.920(c). 20 C.F.R. §§ 404.1520(c), 416.920(c) (2013). (R. 14). The
ALJ then stated that he considered “the credible, objective medical evidence and the claimant’s
subjective symptomology,” and compared the claimant’s impairments to Listings §§ 4.03, 9.08,
12.05, and 14.09. (R. 15). The ALJ concluded that the “claimant does not have an impairment or
combination of impairments that meets or medically equals one of the listed impairments.” Id.
The ALJ next considered the claimant’s opinion evidence, and subjective allegations of pain
and other symptoms, to “the extent [that the] symptoms can reasonably be accepted as consistent
with the objective medical evidence and other evidence.” (R. 15). He determined that the claimant
had “the residual functional capacity to perform less than the full range of light work as defined in
20 CFR 404.1567(b) and 416.967(b),” and that
[H]e must alternate sitting and standing and be able to elevate feet 8 to 10 inches to
relieve pain and discomfort; no climbing ladders, ropes, or scaffolds; frequent
climbing ramps and stairs; frequent balancing, kneeling, crouching, crawling,
stooping; frequent reaching, handling, fingering, feeling; avoid concentrate exposure
to extreme heat and cold, vibration, humidity/wetness; avoid all hazardous machinery
and unprotected heights; moderately limited in abilities to: 1) understand and
remember and carry out detailed instructions; and 2) sustain an ordinary routine
without special supervision.
(R. 15). The ALJ found that the impairments “could reasonably be expected to cause the alleged
symptoms,” but the claimant’s assertions of his symptoms were not credible regarding their
“intensity, persistence and limiting effects” beyond the ALJ’s assessment of his residual functional
capacity. (R. 20).
The ALJ supported his assessment by reviewing the claimant’s medical history at Hill
Hospital’s emergency department, with Dr. Hornsby; Fitz Gerald & Perret Clinic, with Dr.
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Lessmann; Tropeano Orthopaedics & Sports, with Dr. Tropeano; Blackbelt Clinic of Livingston,
with Certified Registered Nurse Practitioner Terre Moore; Sumter County Health Center, with Dr.
Walton; and Selma Family Medicine Center, with Dr. Blanton. Following the review of the
claimant’s medical history, the ALJ examined each of the seven impairments he previously found
to be severe, finding each non-disabling.
Specifically, as to the claimant’s severe impairment of borderline intellectual functioning, the
ALJ reviewed the claimant’s educational history in special education courses and his scores on the
WRAT-III test, administered by Dr. Blanton. (R. 22). The ALJ found the claimant to have
“adequate adaptive functioning” and this impairment to be non-disabling because the claimant “has
a driver’s license and drives[,] . . . goes to the store sometimes[,] . . . [and] has worked in a number
of semi-skilled jobs.” Id. As to the claimant’s severe impairment of mild mental retardation, the
ALJ noted that this impairment was not mentioned at the hearing and that his IQ score of 62 only
“placed the claimant in the mild range of mental retardation at the time of testing.” Id. (emphasis
added). The ALJ found this impairment to be non-disabling because on application for disability
the claimant only alleged gout and high blood pressure, and because of the claimant’s “great work
history.” (R. 23) (citing to record evidence of the claimant’s earnings summaries (R. 149-155, 160)).
Additionally, the ALJ noted case law and rules that are to be followed if a claimant’s IQ score is to
meet the mental disorder listing. The ALJ did not include reference to the instant claimant and
specific facts relevant to the mental disorder listing. (R. 23).
Following the ALJ’s finding of “non-disabling” for each of the claimant’s seven severe
impairments, the ALJ considered the opinion evidence of Dr. Blanton, who was a consulting
physician. The ALJ accorded “little weight to Dr. Blanton’s assessment . . . .” because “[h]is opinion
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is inconsistent with the record as a whole based on the claimant’s work history and earnings history.”
Based on “the available objective evidence treatment records, the claimant’s activities, [and]
the available acceptable medical sources,” the ALJ found the claimant’s impairments limited his
work ability to perform at a light exertional level with the limitations discussed in detail in this
opinion. See supra pp. 14-15. The ALJ found the claimant is unable to return to his past relevant
work based on the claimant’s residual functional capacity and testimony of the vocational expert.
(R. 24). From the testimony of the vocational expert, and “consistent with the claimant’s medically
determinable impairments, functional limitations, age, education, and work experience,” the ALJ
found that the claimant is capable of “work that exists in significant numbers in the national [and
state] econom[ies].” (R. 24, 25). Based on the vocational expert’s testimony, the ALJ determined
that the claimant could perform the duties of a gate guard, a packer, and a sorter, all of which are a
light exertional level and are unskilled. Because the claimant retains the capacity to work, the ALJ
concluded the claimant is not disabled under the Social Security Act. (R. 25).
A. The ALJ Erred by Not Providing Substantial Evidence to Support His Conclusion that the
Claimant did Not Meet Listing 12.05(C)
1. Meeting the Listing Requirements of 12.05(C)
The claimant argues that the ALJ did not provide substantial evidence to properly find that
the claimant did not meet Medical Listing § 12.05(C), “mental retardation.” This court agrees and
finds that substantial evidence does not support the ALJ’s reasons for improperly discrediting the
medical opinion of Dr. Blanton, the IQ scores of the claimant, and his educational history.
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Additionally, this court considers the evidence relied upon by the ALJ in his RFC assessment in its
analysis, as there was no evidence provided by the ALJ at step three of the five-step sequential
For the claimant to meet Listing § 12.05(C), he must show that he has “significantly
subaverage general intellectual functioning with deficits in adaptive functioning” that manifested
before the age of twenty-two by providing the court with evidence of (1) “a valid verbal,
performance, or full scale IQ of 60 through 70” and (2) “a physical or other mental impairment
imposing an additional and significant work-related limitation of function.” Listing § 12.05(C).
Evidence of the claimant’s IQ score, and thus his presumptive deficits in adaptive functioning, may
be rebutted if the record evidence, including medical evidence, is inconsistent with his daily activities
and behavior. Popp v. Heckler, 779 F.2d 1497, 1499-1500 (11th Cir. 1986).
As to the first criteria outlined in Listing § 12.05(C), the claimant proffered evidence of a
valid full scale IQ score of 62, resulting from an IQ test administered by Dr. Blanton. (R. 353). This
IQ score raises the rebuttable presumption that the claimant manifested deficits in adaptive
functioning prior to the age of twenty-two, not only at the time of testing. Hodges v. Barnhart, 276
F.3d 1265, 1268-1269 (11th Cir. 2001); supra p. 5. The ALJ should consider the IQ score and its
accompanying narrative report in conjunction with other medical evidence, and the claimant’s daily
activities and behavior to rebut the presumption. Popp, 779 F.2d at 1499-1500; supra pp. 5-6.
In three separate instances, the ALJ articulated reasons for his finding that the claimant does
not meet Listing § 12.05(C). First, the ALJ found the claimant to have “adequate adaptive
functioning” because the claimant “has a driver’s license and drives[,] . . . goes to the store
sometimes[,] . . . [and] has worked in a number of semi-skilled jobs.” (R. 22). The record evidence
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indicates that the claimant has worked a total number of two semi-skilled jobs. (R. 24, 51, 186-197).
The ALJ also noted the claimant’s educational history and his scores on the WRAT-III, but made
no indication of this evidence’s impact on his analysis. (R. 22).
Second, the ALJ found the claimant’s mild mental retardation impairment to be non-disabling
because on his application for disability the claimant only alleged gout and high blood pressure, and
because the claimant has a “great work history.” (R. 23) (citing to record evidence of the claimant’s
earnings summaries (R. 149-155, 160)). The ALJ also noted that this impairment was not mentioned
at the hearing and that the claimant’s IQ score only “placed the claimant in the mild range of mental
retardation at the time of testing.” (R. 22) (emphasis added).
Third, the ALJ accorded “little weight” to Dr. Blanton’s opinion because it was “inconsistent
with the record as a whole based on the claimant’s work history and earnings history.” (R. 24).
Because Dr. Blanton was the administering physician of the IQ test taken by the claimant, this court
further concludes that the ALJ discredited and gave little weight to the IQ scores resulting from Dr.
Blanton’s examination of the claimant. The only reference to an IQ score that the ALJ made was
when he determined the claimant’s mild mental retardation impairment to be non-disabling, noting
the claimant’s IQ score at the time of testing, and case law and rules that should be followed when
considering a claimant’s IQ score, giving no analysis on this claimant’s IQ score of 62. (R. 22-23).
This court finds that these three instances of evidentiary support given by the ALJ do not
constitute substantial evidence to support his finding that the claimant does not meet Listing §
12.05(C). As to the ALJ’s first line of reasoning in assessing the claimant’s adaptive functioning,
the ALJ did not include in his analysis the fact that the claimant took the driver’s license test five or
six times before he passed. (R. 40). The claimant further testified that he drives “very little,” and
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that a friend even drove the claimant to his administrative hearing. (R. 36-37). Simply because the
claimant has the state’s permission to drive and the ability to go to the store, the claimant’s activities
should not be construed to mean that the claimant takes part in these activities regularly. The
Eleventh Circuit has held that regularly occurring daily activities supports an ALJ’s finding that a
claimant lacks the requisite level of deficits in adaptive functioning. See Hickel v. Comm’r of Soc.
Sec., 539 F. App’x 980, 984 (11th Cir. 2013) (Hickel worked part-time at a nursery, drove herself
to work, and attended church regularly). The daily activities of the claimant are seldom and irregular
in occurrence. Therefore, this court finds that the daily activities did not provide substantial
evidence to support the ALJ’s finding regarding the claimant’s adaptive functioning.
Regarding the ALJ’s reasoning that the claimant worked in the past as evidencing that his
mild mental retardation impairment is non-disabling, the ALJ failed to acknowledge that, although
the claimant was employed and received compensation, the work did not require the claimant to
remember detailed or complex instructions, supervise others, or use judgment in important decisions.
While working at McGregor Printing, the claimant was a winder or machine helper. (R. 51). The
claimant helped someone else, who directed the claimant’s activity, to lift and stack rolls of paper
onto and off of a paper winder, a job consisting primarily of manual labor. (R. 51, 197). At WalMart, the claimant worked an unskilled job, merely sweeping and cleaning the floors. (R. 50-51).
The claimant’s last position, at Westervelt, was a green lumber stacker, operating a machine, but
only to the extent that the claimant took wood that the machine cut to carry and stack on a table,
again primarily manual labor. (R. 196). The claimant’s duties in these jobs do not support the ALJ’s
finding that these previous positions indicate that the claimant is not disabled by his mild mental
retardation impairment, in conjunction with his physical impairments. When a claimant works in
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a skilled position or manages others, the Eleventh Circuit has agreed with an ALJ’s finding that a
claimant’s adaptive functioning is not reflective of mental retardation. See Perkins v. Comm’r, Soc.
Sec. Admin., No. 13-12024, 2014 WL 223905, at *3 (11th Cir. Jan. 22, 2014) (Perkins worked as
a skilled cook and managed others). The claimant did not supervise others, nor did any of his duties
require him to remember and execute detailed or complex instructions. This court finds that the
claimant’s past employment does not constitute substantial evidence that his mild mental retardation
impairment is non-disabling, but instead, that the claimant’s past work is consistent with the mental
disability alleged. The claimant’s literal ability to work in the past, in primarily positions of manual
labor, is neither indicative of his intelligence level, nor his ability to function with his present
Considering the ALJ’s third assessment, regarding the credibility of Dr. Blanton’s medical
opinion and the inclusive IQ scores, the ALJ failed to support his decision to discredit Dr. Blanton’s
opinion with consistent medical evidence. (R. 24). Because no other medical opinion asserting
knowledge of the claimant’s mental abilities and limitations exists in the record, and because Dr.
Blanton’s narrative report accompanying the claimant’s IQ scores affirms the validity of the scores,
the ALJ erred when he disregarded Dr. Blanton’s medical opinion, finding it to be inconsistent with
the claimant’s work and earnings history.
For substantial evidence to exist and support an ALJ’s decision to discredit a medical opinion,
additional medical evidence must be present. The additional medical evidence must directly support
an ALJ’s choice to discredit one medical opinion from another, and it must be consistent with any
medical findings by an ALJ. In Perkins, the Eleventh Circuit found that substantial evidence
supported the ALJ’s decision to discredit a medical opinion when the ALJ found that the medical
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opinion was “inconsistent with other medical opinions,” as well as being based on “contrary claims
by [the claimant].” Perkins, 2014 WL 223905, at *3. In the present case, no other medical opinion
exists that provides knowledge as to the claimant’s mental abilities or limitations. Therefore, this
court finds that the ALJ did not provide substantial evidence to discredit Dr. Blanton’s medical
Additionally, when the Eleventh Circuit has found that an ALJ properly discredited or gave
less weight to an IQ score because the claimant’s daily activities and behavior were inconsistent with
the score, the ALJ also had considered supportive medical evidence. This supportive medical
evidence usually appears in the narrative report of the administering physician accompanying the IQ
test results. See Medical Listing § 12.00(D)(6)(a) (the SSA noting that the narrative report “should
comment on whether the IQ scores are considered valid and consistent with the developmental
history and the degree of functional limitation”). The ALJ’s conclusion in this case lacks the level
of evidence found by the Eleventh Circuit sufficient and to sustain rejection of a claimant’s IQ score.
For example, in Hickel, the claimant worked part time, drove, attended church regularly, took
special education classes, and graduated from high school. Hickel v. Comm’r of Soc. Sec., 539 F.
App’x 980, 984 (11th Cir. 2013). The ALJ properly found that the claimant lacked the required
level of deficits in adaptive functioning, rebutting the presumption raised by the IQ scores, because
five separate medical opinions attested to the claimant’s ability to function at a higher level than the
claimant’s IQ scores represented. Hickel, 539 F. App’x at 985.
In Smith, the ALJ properly discredited the claimant’s IQ scores because the administering
doctor believed that her scores underestimated her intelligence, and because of the claimant’s own
testimony that she had average intelligence, no problems in school, and no problems with
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abstraction, problem solving, or thought processes. Smith v. Comm’r of Soc. Sec., 535 F. App’x 894,
897-898 (11th Cir. 2013). The court stated: “[g]iven that the administering physician . . . felt that
Smith’s IQ scores underestimated her intelligence, the ALJ properly determined that Smith did not
present a valid IQ score of 60 through 70.” Smith, 535 App’x at 897.
The ALJ in Popp properly discredited the claimant’s IQ scores because, not only did the
claimant teach high school algebra and was about to complete the requirements for a bachelor of
science degree, two medical opinions were in conflict and both commented on the claimant’s
tendency to exaggerate answers and appear untruthful. Popp v. Heckler, 779 F.2d 1497, 1499-1500
(11th Cir. 1986).
The record in this case lacks such supporting evidence. Instead, Dr. Blanton stated the
following, in narrative of his medical evaluation: “Steven C. Long . . . scored in the mild range of
mental retardation on the administration of the WAIS-IV. This score was felt to be a valid estimate
of his current level of intellectual functioning, as there were no distracting factors during the testing
session, and he appeared to put good effort into his work.” (R. 352-355) (emphasis added). Dr.
Blanton does not suggest that the claimant was untruthful, attempted to embellish his answers to the
IQ test, or that the scores underrepresented the claimant’s true intelligence level, all factors which
the Eleventh Circuit have found supporting an ALJ’s rejection of an IQ score. See Popp, 779 F.2d
at 1500; see Smith, 535 F. App’x at 897; Hickel, 539 F. App’x at 985.
Furthermore, the facts surrounding the claimant’s daily activities and behavior are consistent
with Dr. Blanton’s opinion, and the record evidence as a whole. Unlike in Popp, the instant claimant
has no education or degree past high school, is not currently enrolled in higher education, and has
no history of teaching others any subject matter. See Popp, 779 F.2d at 1499-1500. Conversely, the
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claimant admits to taking multiple special education courses, having trouble reading, and receiving
help filling out his application for disability benefits, and two work applications. (R. 39, 45-46).
Therefore, this court finds that the ALJ did not provide substantial evidence to disregard the
claimant’s IQ scores resulting from Dr. Blanton’s examination because Dr. Blanton validated the
claimant’s IQ score in his narrative report, no additional medical evidence conflicted with Dr.
Blanton’s medical opinion, and no facts regarding the claimant’s daily activities and behavior are
inconsistent with Dr. Blanton’s opinion and the record evidence as a whole.
Rather than discrediting Dr. Blanton’s medical opinion and the inclusive IQ scores without
any basis in a conflicting medical opinion, the ALJ should have ordered a consultive examination
to quiet any doubts the ALJ held about the claimant’s mental disability. Because the ALJ has a duty
to develop the medical record fully and fairly, “it is reversible error for an ALJ not to order a
consultive examination when such an evaluation is necessary for him to make an informed decision.”
Holladay v. Bowen, 848 F.2d 1206, 1209-10 (11th Cir. 1988); see also Reeves v. Heckler, 734 F.2d
519, 522 n.1 (11th Cir. 1984). The ALJ’s duty to order a consultative examination can be triggered
when an inconsistency in the evidence exists or the medical record as a whole does not support a
determination on the disability claim. 20 C.F.R. § 416.903(a); 20 C.F.R. § 416.919.
If the ALJ ordered a consultive examination and the ALJ found that the opinion conflicted
with Dr. Blanton’s opinion, substantial evidence might exist to support the ALJ’s decision to accord
less weight to Dr. Blanton’s opinion and the inclusive IQ score. But, by simply rejecting a medical
opinion regarding mental functioning, with no other existing medical opinion, the ALJ improperly
placed himself in the shoes of a physician. See Maybury v. Sullivan, 957 F.2d 837, 840 (11th Cir.
1991) (Johnson concurring) (“[a]n ALJ . . . abuses his discretion when he substitutes his own
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uninformed medical evaluations for those of a claimant’s treating physicians.”) Although Dr.
Blanton is not a treating physician in the instant case, he is the administering physician and the only
physician to provide an opinion as to the claimant’s mental disability.
As to the second criteria required in Listing § 12.05(C), this court finds that substantial
evidence exists to support a finding that the claimant has physical impairments that impose an
additional and significant work-related limitation of function. See Listing § 12.05(C). The ALJ
found the claimant to have seven severe impairments that affect his ability to work. (R. 14). The
ALJ found that the severity of these impairments imposed “an additional and significant workrelated limitation of function.” Listings §§ 12.00(A), 12.05(C). Because the SSA defines the
standard in the second criteria of Listing § 12.05(C) the same as the definition of severity at step two
of the five-step sequential evaluation process, based upon the ALJ’s own finding of seven severe
impairments, this court finds that substantial evidence supports a finding that the claimant meets the
second criteria of Listing § 12.05(C). See Listing § 12.05(A); 20 C.F.R. §§ 404.1520(c), 416.029(c).
2. Other Concerns.
The claimant also argues that the Commissioner improperly found that the claimant has
boderline intellectual functioning as a severe impairment at step two of the five-step sequential
evaluation process because this finding is not supported by the record medical evidence and it
directly conflicts with the ALJ’s finding that the claimant’s mild mental retardation is also a severe
impairment. (Plaintiff’s Brief 6-8); supra pp. 16-17. Because the first issue on appeal is
meritorious, the court does not find it necessary to address the second issue. However, on remand,
the court urges the ALJ to consider whether substantial evidence exists, based on medical evidence,
to find that the claimant suffers from the medical impairment of boderline intellectual functioning.
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For the above reasons, this court finds that the ALJ failed to provide substantial evidence
to support his conclusion that claimant does not have an impairment or combination of impairments
that meets or medically equals one of the medical listings, specifically Listing § 12.05(C).
Therefore, this court will REVERSE and REMAND the Commissioner’s decision for the ALJ to
determine whether the claimant is entitled to Disability Insurance Benefits or Supplemental Security
This court will enter a separate Order to that effect simultaneously.
DONE and ORDERED this 31st day of March, 2014.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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