Reed v. Social Security Administration, Commissioner

Filing 23

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioner is REVERSED and this action is REMANDED to the Commissioner of the Social Security Administration for further proceedings consistent with this memorandum opinion and order as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/30/2014. (AHI )

FILED
2014 Jun-30 PM 02:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
STACY REED,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No. CV-13-S-1268-W

MEMORANDUM OPINION AND ORDER OF REMAND
Claimant, Stacy Reed, commenced this action on July 9, 2013, pursuant to 42
U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and
thereby denying his claim for a period of disability, disability insurance, and
supplemental security income benefits. For the reasons stated herein, the court finds
that the Commissioner’s ruling is due to be reversed, and this case remanded to the
Commissioner for further proceedings.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.

Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant contends that: (1) the ALJ erred in not finding that claimant meets Listing
4.02; (2) the ALJ erred in evaluating the side effects of claimant’s medications; and
(3) the Appeals Council erred in failing to find that claimant meets Listing 12.05C.
Upon consideration of the record and the parties’ briefs, the court finds merit in
claimant’s third argument, and concludes that remand is warranted for the
Commissioner to give further consideration to claimant’s disability status under
Listing 12.05C.
Claimant asserts that the Appeals Council should have found him disabled
under Listing 12.05C based on a consultative report submitted for the first time to the
Appeals Council.
When a claimant submits new evidence to the AC [i.e., Appeals
Council], the district court must consider the entire record, including the
evidence submitted to the AC, to determine whether the denial of
benefits was erroneous. Ingram[v. Commissioner of Social Security
Administration], 496 F.3d [1253,] 1262 [(11th Cir. 2007)]. Remand is
appropriate when a district court fails to consider the record as a whole,
including evidence submitted for the first time to the AC, in determining
whether the Commissioner’s final decision is supported by substantial
evidence. Id. at 1266-67. The new evidence must relate back to the
time period on or before the date of the ALJ’s decision. 20 C.F.R. §
2

404.970(b).
Smith v. Astrue, 272 F. App’x 789, 802 (11th Cir. 2008) (alterations supplied).
Donald W. Blanton, Ph.D., evaluated claimant on March 28, 2012. Dr. Blanton
observed, among other things, that claimant’s insight was limited, and his judgment
was “considered fair for work and financial type decisions.”1 Dr. Blanton also
administered the Wechsler Adult Intelligence Scale IV exam, which resulted in a
verbal comprehension sore of 63, a perceptual reasoning score of 71, a working
memory score of 69, a processing speed score of 76, and a full scale IQ score of 64,
placing claimant in the mild range of mental retardation.2 Dr. Blanton felt as though
claimant’s scores were “a valid assessment of his current level of intellectual
functioning as there ware no distracting factors during the testing session and he
appeared to put forth good effort into his work.”3 Academic achievement testing
revealed that claimant was “functionally illiterate.”4 Dr. Blanton concluded that
claimant had
marked limitations that seriously interfere with his ability to function
and perform work related activities on a day to day basis in a routine
work setting in the following areas:
(1)
1

Tr. 508.

2

Tr. 509.

3

Tr. 510.

4

understanding detailed or complex instructions

Id.
3

(2)

carrying out detailed or complex instructions

(3)

remembering detailed or complex instructions

(4)

using judgment in detailed or complex work related
decisions

(5)

respond[ing] to customary work pressures

(6)

maintain[ing] attention, concentration and pace for a period
of at least two hours.5

Dr. Blanton opined that claimant’s mental retardation was a lifelong condition, and
that claimant “demonstrate[d] deficits in adaptive functioning due to his mental
retardation manifested prior to age 22 in the following areas: (1) Communication[;]
(2) Work[;] (3) Health [and] Safety[; and] (4) Functional Academic Skills.”6
The Appeals Council received Dr. Blanton’s report and made it part of the
administrative record.7 Even after considering the report, however, the Appeals
Council “found no reason under [its] rules to review the Administrative Law Judge’s
decision,” and it accordingly denied claimant’s request for review.8 Claimant argues
that decision was in error, because he believes Dr. Blanton’s report establishes his
disability under Listing 12.05C, which addresses mental retardation.
Listing 12.05C states as follows:
5

Id. (alterations supplied).

6

Tr. 511 (alterations supplied).

7

Tr. 5-6.

8

Tr. 1 (alteration supplied).
4

Mental Retardation. Mental retardation refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
....
C.
A valid verbal, performance, or full scale IQ of 60 through
70 and a physical or other mental impairment imposing an additional
and significant work-related limitation of function[. . . .]
20 C.F.R. pt. 404, subpt. P, appx. 1, § 12.05 (listings) (all italics in original).
The Commissioner does not dispute (nor could she) that claimant has IQ scores
between 60 and 70 and a physical impairment imposing an additional and significant
work-related limitation of function.9 Indeed, the ALJ found claimant to be limited to
a reduced range of sedentary work due to the severe limitations of congestive
cardiomyopathy, degenerative disc disease of the cervical spine, obesity,
hypertension, and asthma.10 Even so, the Commissioner argues that claimant has
failed to satisfy the preliminary criteria for the listing because he has not
demonstrated deficits in adaptive functioning.
The Social Security Administration’s Program Operations Manual
9

Doc. no. 22 (Commissioner’s brief), at 15-16 (“For the purposes of this response, the
Commissioner assumes Plaintiff’s full scale IQ score of 64 is valid and that he has an additional
impairment that causes a significant work-related functional limitation.”).
10

Tr. 17.
5

System (POMS) states that the phrase “adaptive functioning” refers to
“the individual’s progress in acquiring mental, academic, social and
personal skills as compared with other unimpaired individuals of his/her
same age.” POMS DI 24515.056(D)(2). Similarly, the American
Psychiatric Association states that the phrase refers to how effectively
an individual copes with the common demands of life and how well the
individual meets the standards for personal independence expected of
someone in her particular age group, sociocultural background, and
community setting. Diagnostic and Statistical Manual of Mental
Disorders IV–TR, at 42 (4th ed. 2000); see also Talavera v. Astrue, 697
F.3d 145, 153 (2d Cir. 2012) (explaining that the phrase “adaptive
functioning” in Listing 12.05 refers to an individual’s ability to cope
with the challenges of ordinary life).
Hickel v. Commissioner of Social Security, 539 F. App’x 980, 983 n.4 (11th Cir.
2013). Claimant contends that Dr. Blanton’s diagnosis of mild mental retardation
necessarily encompasses a finding of deficits in adaptive functioning.11 It is true that,
as a result of his IQ scores, claimant is entitled to a presumption that he experienced
deficits in adaptive functioning prior to age 22. Hodges v. Barnhart, 276 F.3d 1265,
1266 (11th Cir. 2001) (“[A]claimant need not present evidence that she manifested
deficits in adaptive functioning prior to the age of twenty-two, when she presented
evidence of low IQ test results after the age of twenty-two.”) (alteration supplied).
That presumption, however, is rebuttable. Id. at 1268-69. “‘[A] valid I.Q. score need
not be conclusive of mental retardation where the I.Q. score is inconsistent with other

11

See doc. no. 19 (claimant’s brief), at 7 (“According to the Diagnostic and Statistic Manual
of Mental Disorders, Fourth Edition (DSM), the diagnosis of mild mental retardation cannot be made
in the absence of adaptive deficits. (DSM, p. 46). Therefore, Dr. Blanton’s diagnosis presumes the
presence of adaptive deficits.”).
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evidence in the record on the claimant’s daily activities and behavior.’” Hickel, 539
F. App’x at 983-84 (quoting Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992))
(alteration supplied). See also Popp v. Heckler, 779 F.2d 1497, 1500 (11th Cir. 1986)
(holding that, if there is a question as to the validity of the IQ test results, “[t]he ALJ
is required to examine the results in conjunction with other medical evidence and the
claimant’s daily activities and behavior”) (alteration supplied).
Here, the other evidence in the record concerning claimant’s daily activities
and behavior is mixed. On the one hand, Dr. Blanton’s report stated that claimant’s
IQ scores were accurate, that he was functionally illiterate, and that he exhibited
limited insight. Dr. Blanton also opined that claimant had marked limitations in at
least work-related six functional areas, and that he had “deficits in adaptive
functioning” in the areas of communication, work, health and safety, and functional
academic skills. The report constitutes strong evidence to support the presence of
adaptive limitations. Although Dr. Blanton was only a one-time, consultative
examiner, his opinion still is entitled to some weight, insofar as it is well-reasoned
and consistent with the record. See 20 C.F.R. § 404.1527(d) (providing that, in
considering what weight to give any medical opinion, regardless of whether it is from
a treating or non-treating physician, the Commissioner should evaluate: the extent
of the examining or treating relationship between the doctor and patient; whether the

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doctor’s opinion can be supported by medical signs and laboratory findings; whether
the opinion is consistent with the record as a whole; the doctor’s specialization; and
other factors).
On the other hand, claimant testified that he completed the twelfth grade in
school, and there is no indication from his school records that he was in special
education classes, although he did receive low grades, and he had to attend summer
school to pass English during his twelfth-grade year.12 Claimant also testified to a
varied, but fairly significant, work history, although most of the work he identified
was unskilled.13 In his Function Report, he reported some daily activities, although
they were fairly limited. He stated that he could take care of his own personal
hygiene needs, make sandwiches, and do laundry or cleaning for approximately 20
minutes at a time. He could drive, go out alone, shop for food, pay bills, and count
change, but he could not use a checkbook or savings account. The only social
activity he listed was church.14
Given this conflicting evidence regarding the extent of claimant’s adaptive
functioning, the court concludes that further development of the record is necessary.
Remand is warranted for further consideration of Dr. Blanton’s report, and for the

12

Tr. 203-04.

13

See Tr. 32-37, 60.

14

Tr. 178-83.
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attainment of any additional medical or factual evidence necessary for the further
evaluation of claimant’s adaptive limitations. After evaluating any additional
evidence obtained, the ALJ is directed to enter findings about the extent of claimant’s
adaptive limitations.
Based on the foregoing, the decision of the Commissioner is REVERSED, and
this action is REMANDED to the Commissioner of the Social Security
Administration for further proceedings consistent with this memorandum opinion and
order.
The Clerk of Court is directed to close this file.
DONE this 30th day of June, 2014.

______________________________
United States District Judge

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