Lard v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Karon O Bowdre on 11/20/2020. (JLC)

FILED
2020 Nov-20 AM 10:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

NATHANIEL LARD,

Claimant,
v.
ANDREW SAUL,
ACTING COMMISONER
OF SOCIAL SECURITY,
Respondent.

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CIVIL ACTION
NO. 7:19-CV-1829-KOB

MEMORANDUM OPINION
I. INTRODUCTION
On January 11, 2016, the claimant, Nathaniel Lard, filed an application for supplemental
social security income under Title XVI of the Social Security Act. (R. 27). The claimant alleged
disability beginning on June 15, 2015. (R. 27). He alleges disability because of attention deficit
hyperactive disorder (ADHD), explosive personality disorder, and intellectual disorder. (R. 30).
The Commissioner denied the claimant’s application on July 26, 2016, and the claimant filed a
request for a hearing before an Administrative Law Judge on September 22, 2016. (R. 27). The
ALJ held a video hearing on February 9, 2018. (R. 27). Following the hearing, the ALL
requested that the claimant undergo a further consultative evaluation with Dr. David W. Blanton
on March 28, 2018. Then, on April 27, 2018, the claimant requested further psychological
evaluation, including objective IQ testing. (R. 27, 240).

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In a decision dated October 22, 2018, the ALJ denied the claimant’s request for further
psychological evaluation and found that the claimant was not disabled under the Social Security
Act and, therefore, ineligible for social security benefits. (R. 38).
After the decision, Dr. Jonathan Goff evaluated the claimant at the request of the
claimant’s attorney. The claimant submitted Dr. Goff’s report to the Appeals Council as part of
his request for review. The Appeals Council found that Dr. Goff’s report did not show a
reasonable probability of changing the outcome of the ALJ’s decisions and denied the claimant’s
request for review on September 13, 2019. (R. 1-3).
Consequently, the ALJ’s decision became the final decision of the Commissioner of the
Social Security Administration. (R. 3). The claimant has exhausted his administrative remedies,
and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons
stated below, this court REVERSES AND REMANDS the decision of the Commissioner.
II. ISSUES PRESENTED
Whether the Appeals Council erred in finding that Dr. Goff’s opinion did not create a
reasonable probability of changing the ALJ’s decision.1
III. STANDARD OF REVIEW
The standard for reviewing the Commissioner’s decision is limited. This court must
affirm the ALJ’s decision if she applied the correct legal standards and if substantial evidence
supports her factual conclusions. 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).

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The claimant raised two other issues regarding whether he met Listing 12.05B and whether the ALJ failed to fully
and fairly develop the record. However, because this court will reverse on this issue, it will not address those other
issues.

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“No . . . presumption of validity attaches to the [ALJ’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 ALJ’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 reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (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(d), 416.927(d).
Whether the claimant meets a Listing and is qualified for Social Security disability benefits is a
question reserved for the ALJ, and 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). 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 substantial
evidence in the record supports it.
The court must “scrutinize the record in its entirety to determine the reasonableness of the
[ALJ]'s factual findings.” Walker, 826 F.2d at 999. A reviewing court must not only look 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).

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IV. LEGAL STANDARD
Refusal to Review based on Post-Hearing Evidence
Generally, new evidence may be admissible at each stage of the administrative process.
Washington v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th Cir. 2015); See also
20C.F.R. § 404.900(b). When the claimant submits evidence to the Appeals Council that is
“new, material, and chronologically relevant,” the Appeals Council must consider it.
Washington, 806 F.3d at 1317. Evidence counts as “new” if it is noncumulative. Clough v. Soc.
Sec. Admin., Comm’r, 636 F. App’x 496, 498 (11th Cir. 2016). Evidence counts as “material” if
a reasonable possibility exists that the evidence would change the administrative result.
Washington, 806 F.3d at 1321.
Medical examinations that are conducted after an ALJ’s decision may still be
chronologically relevant if they relate back to a time on or before the ALJ’s decision.
Washington, 806 F.3d at 1321. If the Appeals Council considers the evidence and adds it to the
record, it may deny review without articulating detailed findings. Parks v. Comm'r, SSA, 783
F.3d 847 (11th Cir. 2015). When the Appeals Council erroneously refuses to consider evidence,
it commits legal error and remand is appropriate. Id.
Intellectual Disorder under 12.05B
Listing 12.05 “paragraph B” sets out criteria for establishing an intellectual disorder. To
meet Listing 12.05 “paragraph B,” the claimant must satisfy the following three requirements:
1. Significantly subaverage general intellectual functioning evidenced by a
or b:
a. A full scale (or comparable) IQ score of 70 or below on
an individually administered standardized test of general
intelligence; or

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b. A full scale (or comparable) IQ score of 71-75
accompanied by a verbal or performance IQ score (or
comparable part score) of 70 or below on an individually
administered standardized test of general intelligence; and
2. Significant deficits in adaptive functioning currently manifested by
extreme limitation of one, or marked limitation of two, of the following
areas of mental functioning:
a. Understand, remember, or apply information (see
12.00E1); or
b. Interact with others (see 12.00E2); or
c. Concentrate, persist, or maintain pace (see 12.00E3); or
d. Adapt or manage oneself (see 12.00E4); and
3. The evidence about your current intellectual and adaptive functioning
and about the history of your disorder demonstrates or supports the
conclusion that the disorder began prior to your attainment of age 22.
20 C.F.R. Pt. 404, Sub. P, App. 1, § 12.05.

For the purposes of determining general intellectual functioning under 12.05(B)(1), an IQ
test must meet contemporary standards of validity, reliability, normative data, and scope of
measurement and must be administered by a “qualified specialist.” 20 C.F.R. Pt. 404, Sub. P,
App. 1, § 12.05. A “qualified specialist” must be properly certified in the State where the IQ test
was performed, and have the training and experience to administer, score, and interpret
intelligence tests. Id. When the claimant’s record includes multiple IQ scores, the regulations do
not address which IQ score the ALJ should adopt in her analysis. Wilbon v. Comm'r of Soc. Sec.,
181 F. App'x 826 (11th Cir. 2006).
V. FACTS
At the time ALJ rendered her final decision, the claimant was twenty-seven years old. He
graduated from high school with an occupational diploma, after failing the graduation exam eight
times. Following high school, the claimant attended community college, where he earned a
certificate in industrial maintenance. The claimant has no past relevant work experience within

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the meaning of the Social Security Act; however, the claimant worked in a paper mill and a car
factory for a short period of time. The claimant alleges disability because of attention deficit
hyperactive disorder (ADHD), explosive personality disorder, and intellectual disorder. (R. 30,
36, 223-25)
Mental Impairments
Records of the claimant’s intelligence testing reach back to his childhood. The claimant
first took the Universal Nonverbal Intelligence Test on November 23, 2002 when he was around
eleven-years-old. Dr. Johnathan Goff administered the test, which measures exclusively
nonverbal intelligence. The claimant scored an 82 on the memory component, a 69 on the
reasoning component, a 76 on the symbolic component, and a 74 on the non-symbolic
component, yielding a full-scale IQ score of 72. Two months later, on January 22, 2003, Dr. Goff
administered the Wechsler Intelligence Scale for Children (WISC-III) to the claimant. The
claimant scored a 63 on the verbal component and a 71 on the performance component, yielding
a full-scale IQ score of 63. (R. 412-13).
On March 27, 2009, Roger D. Hunter, M.S., a licensed professional counselor
administered the Universal Nonverbal Intelligence Test to the claimant, who was around
eighteen years old at the time, at the request of the claimant’s school. The purpose of this test
was to provide insight into the appropriate academic placement for the claimant. Mr. Hunter
reported that the claimant was cooperative, that his level of motivation was good, and that he
appeared to provide his best effort. The claimant received a full-scale IQ score of 82 on the test,
placing him in the 12th percentile of the general population. He scored an 88 on the memory
component, a 79 on the reasoning component, an 85 on the symbolic component, and an 82 on
the non-symbolic component. Based on these results, Mr. Hunter stated that there was a 90%

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probability that the claimant’s IQ score fell between 77 and 89. Mr. Hunter affirmed his belief
that these test results were valid and reliable and concluded that the claimant would be successful
in a mainstream classroom. (R. 244-45).
From 2010-2012 when he was around nineteen and twenty years old, the claimant
received medication and counseling for his attention deficit hyperactive disorder and his
intermittent explosive disorder. In his progress notes, Dr. Douglas observes that the claimant was
becoming less prone to “explosive” anger. (R. 343).
Throughout 2016, the claimant underwent talk therapy with a clinical social worker, who
relayed the claimant’s positive report on his ability to manage his anger. The claimant stated that
he was doing well and that his symptoms had improved. According to treatment records, the
claimant also stated that he had worked out his anger issues. However, the claimant experienced
increased anger in April 2017, though his symptoms appeared to improve after his medications
were increased in October 2017. (R. 481-492).
After filing an application for supplemental social security income, the claimant had a
consultative examination on June 5, 2016 with Dr. Nina E. Tocci at the request of the Social
Security Administration. Dr. Tocci noted that the claimant appeared appropriately groomed,
displayed sad facial expressions and fleeting eye contact, and exhibited a cooperative attitude
toward the examiner. She described the claimant’s affect as appropriate, normal, and stable. Dr.
Tocci also observed that the claimant exhibited fair social judgement in his consideration of two
hypothetical social dilemmas. (R. 402).
Dr. Tocci found that the claimant demonstrated “poor fund of information and
comprehension.” The claimant incorrectly stated the number of days in a year, the number of

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months in a year, the number of quarters in a dollar, and the number of items in a dozen. The
claimant also incorrectly stated the animal from which wool is derived.
Dr. Tocci also assessed the claimant’s memory and concentration. The claimant could
repeat three words and recall them after five- and thirty- minute intervals. He could repeat six
digits forward and four digits backwards. While the claimant could identify the current President
of the United States, he could not identify the last President of the United States or the current
Governor of Alabama. Dr. Tocci observed that the claimant demonstrated fair concentration, but
could not calculate change and could not perform “serial threes” backwards or “serial fours”
forward. The claimant could spell “world” and “earth” forward, but could not spell these words
backwards. The claimant could name five animals, but could not name five colors. Dr. Tocci
observed that the claimant appeared to be functioning within “the borderline range of intellectual
disability.” (R. 403).
Dr. Tocci also reported on the claimant’s daily life and activities. She noted that the
claimant typically does nothing during the day “except clean up and stuff.” She further noted that
the claimant attends church and has a driver’s license but no car. Dr. Tocci reported that, during
the examination, the claimant stated that the longest he has held a job was for two weeks and that
he has been fired on several occasions because of his ADHD symptoms. Dr. Tocci’s diagnostic
impressions were that the claimant had ADHD and an adjustment disorder with disturbance of
conduct. (R. 402, 403).
On June 30, 2016, Dr. Tocci administered the Weschler Adult Intelligence Scale to the
claimant. The claimant received a verbal comprehension score of 68, a perceptual reasoning
score of 71, a working memory score of 63, and a processing score of 81, yielding a full-scale IQ

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score of 59. Dr. Tocci deemed these results invalid, however, because the claimant reportedly
rushed directions and models and evinced limited effort. (R. 408).
Following the ALJ hearing, the Social Security Administration requested that the
claimant undergo another consultative evaluation. Dr. Donald W. Blanton examined the claimant
on March 28, 2018. Dr. Blanton observed that the claimant was appropriately dressed and
exhibited normal affect. The claimant complained of anxiety, but was not visibly anxious.
However, Dr. Blanton also stated that the claimant reported depressed mood and previous
episodes of suicidal thoughts. The claimant also reported visual hallucinations prior to taking
medications. Dr. Blanton found that the claimant could name the President of the United States
and perform arithmetic using his fingers. Based on his examination, Dr. Blanton estimated that
the claimant’s intelligence was far below average and that his judgement was ill-suited for work
and financial decisions. (R. 576).
Dr. Blanton also reported on the claimant’s daily activities. According to Dr. Blanton’s
notes, the claimant lives with his family and has no other friends. He is able to cook and clean,
and spends most of his day watching television. He attends church and occasionally shoots a
basketball in the yard. He does not attend parties or clubs, cannot handle money well, and has a
cell phone, but does not know how to text.
Dr. Blanton concluded that the claimant had marked limitations in his ability to
understand and remember complex instructions, carry out complex instructions, and to make
judgements on complex work-related decisions. Additionally, Dr. Blanton found that claimant
had marked limitations in his ability to interact with coworkers and supervisors. (R. 576, 57879).

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On December 18, 2018, after the ALJ’s decision, Dr. Goff examined the claimant at the
claimant’s attorney’s request. Dr. Goff’s report was submitted to the Appeal Council as part of
the claimant’s request for review, but the Appeals Council denied the claimant’s request.
During Dr. Goff’s examination, the claimant stated that his jobs do not last long because
he is “too slow.” Dr. Goff noted the claimant had a history of struggling to get along with others
and “meltdowns,” which resulted in the claimant’s prior diagnosis of intermittent explosive
disorder. Dr. Goff observed that the claimant demonstrated sparse, awkward discourse.
Dr. Goff found that the claimant lived a sedentary and isolated existence and had at most
one friend outside of his family. Dr. Goff further noted that the claimant omitted some letters
when reciting the alphabet, was unable to perform serial three addition, and had poor memory for
verbal material.
Dr. Goff administered the Weschler Adult Intelligence Scale to evaluate the claimant.
The claimant received a verbal comprehension score of 70, a perceptual reasoning score of 69, a
working memory score of 66 and a processing speed score of 76, yielding a full-scale IQ score of
65. (R. 17). Dr. Goff’s final assessment was that the claimant had an intellectual disability, was
on the autistic spectrum, and had extreme limitation in his ability interacting with others.
The ALJ Hearing
After the Commissioner denied the claimant’s request for supplemental security income,
the claimant received a video hearing before an ALJ on February 9, 2018. At the hearing, the
claimant testified that he previously worked at a paper mill. The claimant explained that he
conducted a variety of simple tasks at the paper mill, including stacking heavy boxes of paper.
However, the claimant testified that he had difficulty getting along with others while working at
the paper mill. He stated that he was fired, but he was not exactly sure of the reasons for his

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termination. He asserts that he cannot find another job because he cannot adjust to new people.
(R. 51, 55, 56, 69).
The claimant lives in a mobile home with his mother, father, brother, nephew, and
cousin. He testified that he has no friends outside of his family members. The claimant's days
consist of sitting at home and watching television. The claimant said that he will watch whatever
show he find interesting, as well as movies and football. The claimant uses Facebook to
communicate with family members, but does not use Snapchat or Instagram. He does not play
video games, and claims never to have taken an interest in them. The claimant sometimes cleans,
but does not know how to cook. (R. 48, 56-60).
The claimant testified that he failed his high school graduation exam on eight separate
occasions. He stated that he was able to graduate with a “credit-based diploma.” After high
school, the claimant went on to take a certificate program in auto body repair at community
college. He attended twice a week for two years and successfully completed the program. While
in college, the claimant also obtained his driver’s license. The claimant noted that the driving
portion of the test was difficult for him and that he needed several attempts to pass. He answered
the written component of the driving test orally. The claimant testified that while he was in
college his mother drove him to school and that he now drives about twice a week. (R. 50, 63,
65).
The claimant has undergone mental health treatment for behavioral issues. He testified
that he continues to receive mental health treatment and take Adderall and Invega for his
conditions. By claimant’s own account, Invega helps him control his anger. He receives an
Invega injection every month from Dr. Fisher’s clinic. The claimant testified that he had never
been arrested, but he did recall one outburst of anger that led to the police being called on him.

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The claimant stated that he was upset and probably yelling, but that he did not engage in any
physical aggression. The ALJ noted that the claimant had also exchanged blows with his brother
and father in 2011. When the ALJ asked about the incident, the claimant stated that he did not
remember any altercation. (R. 50, 53, 60, 61, 64, 65).
The claimant testified that his reading, writing, and mathematical abilities were limited.
He noted that his mother handles whatever money he earns. When the ALJ asked the claimant
how many dollars he would have if he subtracted six dollars from thirteen dollars, the claimant
stated that he did not know the answer and he guessed incorrectly. When the ALJ asked the
claimant if he thought he could work, the claimant replied that getting along with others was
difficult. (R. 51, 59 62, 63, 64).
Lastly, a vocational expert, Mr. Steve Cosgrove, testified concerning the type and
availability of jobs that individuals similarly situated to the claimant could perform. The ALJ
asked Mr. Cosgrove to consider an individual with the same age, education, and work experience
as the claimant. She asked Mr. Cosgrove to assume the individual has the following limitations:
limited to performing simple, routine, and repetitive tasks; able to frequently interact with
supervisors, occasionally interact with coworkers, and never interact with the public; able to
have normal breaks; and not able to perform production rate work or assembly work. The ALJ
then asked what jobs this individual could perform. (R. 70-71).
Mr. Cosgrove replied that the individual could do the work of an unskilled general
laborer, which she characterized as heavy work with an SVP of 1. He also added that the
claimant could be a hand packer/packager, with 84,00 positions nationwide; a kitchen helper,
with 274,000 positions nationwide; or a warehouse worker, with 42,000 positions nationwide.
Mr. Cosgrove also added that the individual could still do these jobs if he missed one day per

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month for non-medical reasons. In response to follow-up questions by the attorney, Mr.
Cosgrove also stated that the individual in question could not do the jobs he listed if could not
deal with co-workers, follow simple instructions, or deal with changes in the work setting.
Additionally, Mr. Cosgrove testified that the individual would not be able to hold a job without
being able to maintain concentration and adequate pace for two hours. (R. 70-74).
After the hearing, the claimant requested that the ALJ order a comprehensive
psychological evaluation and objective IQ testing. (R. 240).
The ALJ Decision
On October 22, 2018, the ALJ denied the claimant’s request for further psychological
evaluation and issued a decision that the claimant was not disabled under the Social Security Act.
First, the ALJ determined that the claimant had not engaged in substantial gainful activity since
his alleged onset date, June 15, 2015. The ALJ noted that the claimant’s earnings after his
alleged onset date must exceed $1090 a month in 2015, $1130 a month in 2016, and $1170 a
month in 2017 to constitute substantial gainful activity. The claimant’s actual earnings after his
alleged onset date fell short of this mark: the claimant earned $129 a month in 2015, $363 a
month in 2016, and $678 a month in 2017. Thus, the ALJ concluded that the claimant had not
engaged in substantial gainful activity since his alleged onset date. (R.29-30).
Next, the ALJ found that the claimant had severe impairments of attention deficit
hyperactivity disorder (ADHD), explosive personality disorder, and intellectual disorder.
However, the ALJ determined that the claimant did not have an impairment or combination of
impairments that met or medically equaled the severity of an impairment listed in 20 CFR Part
404, Subpart P that deal with intellectual, personality and impulse control, and
neurodevelopment disorders.

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The ALJ first assessed whether the claimant’s mental impairments met the “paragraph B”
criteria under Sections 12.05, 12.08, and 12.11. The ALJ found that the claimant’s mental
impairments did not constitute any extreme or marked limitations in any of the specified areas of
mental functioning. Regarding understanding, remembering, and applying information, the ALJ
found that the claimant exhibited only a moderate limitation. The ALJ supported this conclusion
by citing evidence that the claimant could drive and play basketball; perform simple arithmetic,
spelling, and recall exercises; and could pass an orally administered driver’s license test. (R. 30).
Regarding claimant’s ability to interact with others, the ALJ concluded that the claimant
had only a moderate limitation. The ALJ supported this conclusion with evidence that the
claimant attended church twice a week and lived with others. Furthermore, the ALJ pointed out
that the claimant takes care of four dogs, has good relationships with his family, and appeared
cooperative and comfortable with his psychological evaluators. Finally, the ALJ noted that the
claimant responded well to medication and therapy for his anger management. (R. 30).
Turning to the claimant’s ability to concentrate, persist, and maintain pace, the ALJ
determined that the claimant had only a moderate limitation in this area. The ALJ highlighted the
fact the claimant is able to drive by himself, watch T.V., play games, and attend church twice a
week. The ALJ also emphasized that the claimant was able to attend community college and
obtain a certificate in auto body repair. Finally, the ALJ noted that the claimant takes Adderall to
assist his concentration. (R. 30-31).
Regarding adapting and managing one’s self, the ALJ found that the claimant had only a
mild limitation. To support this conclusion, the ALJ cited the fact that claimant could manage his
own self-care and personal hygiene with reminders, and get along with others. Furthermore, the

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ALJ referenced evidence in the record that the claimant was appropriately groomed and
cooperative when interacting with psychological evaluators. (R. 31).
Thus, the ALJ found that the claimant had only moderate limitations in each of the four
areas of mental functioning specified in paragraph B. The ALJ concluded that because the
claimant had no marked or extreme limitations in those areas, his mental impairments did not
meet the paragraph B criteria for Sections 12.05, 12.08, and 12.11. (R. 31).
The ALJ found that the claimant’s condition did not satisfy the paragraph A criteria under
Section 12.05. The ALJ first determined that the claimant’s mental impairments did not
demonstrate below-average intellectual functioning through cognitive inability to participate in a
test of intellectual functioning. As evidence of his conclusion, the ALJ observed that the
claimant demonstrated sufficient intellectual functioning to participate in the standardized testing
administered by licensed professional counselor Mr. Hunter in 2009. Additionally, the ALJ
found that the claimant did not exhibit significant deficits in adaptive functioning, as evinced by
dependence on others for personal needs. The ALJ determined that the claimant’s adaptive
functioning deficits were only mild. The ALJ supported this conclusion by citing evidence that
the claimant could feed and dress himself, groom himself if given reminders, and use the
restroom without assistance. Because the claimant failed to meet these requirements, the ALJ
found that the claimant did not meet “paragraph A” criteria under Section 12.05. (R.31).
The ALJ then made additional findings on “paragraph B” criteria under Section 12.05.
The ALJ explained that to meet the “paragraph B” criteria of Section 12.05, the claimant must
have either (a) a full scale (or comparable) IQ score of 70 or below on an individually
administered standardized test of general intelligence or (b) a full scale (or comparable) IQ score

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of 71-75 accompanied by a verbal or performance score (or comparable part score) of 70 or
below on an individually administered standardized test of general intelligence. (R. 32).
The ALJ determined that the claimant failed to meet this IQ requirement. To support his
conclusion, the ALJ relied on Dr. Hunter’s finding that the claimant’s full-scale IQ was 82.
Moreover, the ALJ found that the results of claimant’s June 2016 intelligence test administered
by Dr. Tocci were not valid. The ALJ concurred with Dr. Tocci’s assessment that the claimant
did not apply adequate effort during the test to render the result accurate. Furthermore, she found
that the results of the test, which indicated claimant’s full-scale IQ score was 59, were
inconsistent with other evidence in the record, including his educational background, subjective
function report, and hearing testimony. (R.32).
Next, the ALJ determined that the claimant has the residual functional capacity to
perform a full range of work at all exertion levels, but with the following nonexertional
limitations: can perform simple, routine repetitive tasks; can make simple work-related
decisions; can have frequent contact with supervisors, occasional contact with coworkers, and no
contact with public; can be accommodated with normal breaks; and cannot perform production
rate or assembly work. In making this finding, the ALJ stated that she considered the claimant’s
symptoms and the extent to which these symptoms were consistent with other evidence in the
record. The ALJ found that the claimant’s medically determinable impairments could be
reasonably expected to cause his symptoms. However, the ALJ found that the claimant’s
statements concerning the intensity, persistence, and limiting effects of these symptoms were
inconsistent with medical and other evidence in the record.(R. 32-33).
First, the ALJ pointed out various aspects of the claimant’s daily life, work experience,
and education that suggest a greater degree of functional capacity than the claimant alleged.

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Regarding the claimant’s daily activities, the ALJ noted that the claimant can complete chores
when reminded, drive himself to work, shop for food and shoes, count change, and care for dogs.
The ALJ also noted that claimant enjoys television, attends church, and has good relationships
with his family, with whom he often interacts in person and via Facebook. Regarding claimant’s
work experience, the ALJ observed that while claimant had not performed work that amounted
to substantial gainful activity, he did manage to work in a paper mill and a car factory.
Additionally, the ALJ pointed out that the claimant earned a certificate in auto body repair in
community college and maintained a 2.38 GPA. (R. 33-34).
The ALJ also cited evidence that the claimant’s symptoms have been successfully
managed with medication and counseling. The ALJ referenced notes from Dr. Douglass
indicating that, from 2010-2012, the claimant was becoming less prone to outbursts of anger and
functioning well. The ALJ also cited evidence that talk therapy and anger management
counseling with a clinical social worker had positive results on the claimant’s symptoms. The
ALJ further noted that, in August 2016, the claimant stated that he was doing well and that his
symptoms had improved. According to treatment records, the claimant has also stated that he had
worked out his anger issues. While the ALJ recognized that the claimant experienced increased
anger issues in April 2017, the ALJ pointed out that those anger issues improved after the
claimant’s medications were increased in October 2017. The ALJ also highlighted claimant’s
testimony affirming that Adderall improved his ability to concentrate. (R. 34).
The ALJ placed great weight on the opinion of Dr. Blanton. Dr. Blanton noted that the
claimant could do simple calculations on his fingers and understand similes and proverbs. Dr.
Blanton also found that the claimant had mild limitations on his ability to understand, remember,
and carry out simple task instructions and make work-related decisions. However, Dr. Blanton

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found that the claimant had moderate limitations on his ability to interact with the public and to
respond appropriately to usual work situations as well as changes in a routine work setting.
Moreover, Dr. Blanton found that the claimant had marked limitations in his ability to interact
with his supervisors and coworkers. The ALJ also highlighted that Dr. Blanton’s observation
that, while the claimant exhibited poor concentration, the claimant had not taken his medication
before the examination and that the claimant’s symptoms improved with Adderall.
The ALJ also placed some weight on Dr. Tocci’s report, which did not place any specific
functional limitations on the claimant, and little weight on the claimant’s aunt, who reported that
the claimant cannot pay attention for longer than 25 minutes, cannot handle stress well, and
fights with authority. (R. 35-36).
Next, the ALJ defined the claimant’s work experience, age, and education in terms of the
Medical-Vocational Guidelines. The ALJ found that the claimant had no past relevant work, and
therefore no potential issues with transferability of job skills to address. Additionally, the ALJ
found that the claimant’s age fell within the 18-49 range, making him a younger individual in the
context of the Medical-Vocational Guidelines. The ALJ also determined that the claimant has a
high school education and could speak English. (R. 36).
Finally, after considering the claimant’s residual function capacity, age, education, and
work in relation to the Medical-Vocational Guidelines, the ALJ identified several jobs that the
claimant was capable of performing. The ALJ cited the vocational expert’s testimony that the
claimant could be a hand packer/packager, with 84,00 positions nationwide, a kitchen helper,
with 274,000 positions nationwide, or a warehouse worker, with 42,000 positions nationwide.
Thus, the ALJ concluded that the claimant was not disabled within the meaning of the Social
Security Act. (R. 37).

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Evidence Submitted to the Appeals Council After the ALJ Decision
On December 18, 2018, after the ALJ’s decision, Dr. Goff examined the claimant at the
claimant’s attorney’s request. Dr. Goff’s report was submitted to the Appeal Council as part of
the claimant’s request for review, but the Appeals Council denied the claimant’s request.
During Dr. Goff’s examination, the claimant stated that his jobs do not last long because
he is “too slow.” Dr. Goff noted the claimant had a history of struggling to get along with others
and “meltdowns,” which resulted in the claimant’s prior diagnosis of intermittent explosive
disorder. Dr. Goff observed that the claimant demonstrated sparse, awkward discourse.
Dr. Goff found that the claimant lived a sedentary and isolated existence and had at most
one friend outside of his family. Dr. Goff further noted that the claimant omitted some letters
when reciting the alphabet, was unable to perform serial three addition, and had poor memory for
verbal material.
Dr. Goff administered the Weschler Adult Intelligence Scale to evaluate the claimant. The
claimant received a verbal comprehension score of 70, a perceptual reasoning score of 69, a
working memory score of 66 and a processing speed score of 76, yielding a full-scale IQ score of
65. (R. 17). He assessed the claimant to have marked limitations on his ability to use judgment
in detailed or complex work-related decisions and maintain attention for periods of at least two
hours as well as extreme limitations on his ability to respond appropriately to supervision, coworkers, and customary work pressures. His final assessment was that the claimant had an
intellectual disability, was on the autistic spectrum, and had extreme limitation in his ability
interacting with others.

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VI. DISCUSSION
The Appeal’s Council’s Refusal to Review the ALJ’s Decision
The claimant argues that the Appeals Council erred in finding that Dr. Goff’s opinion did
not create a reasonable probability of changing the ALJ’s decision in light of new evidence. This
court agrees.
The claimant requested a review of the ALJ’s decision and submitted a psychological
evaluation, performed by Dr. Goff, to the Appeals Council. Dr. Goff’s report includes a review
of the claimant’s medical record, a psychological examination, and the result of IQ tests given to
the claimant. At Dr. Goff’s evaluation, the claimant received a full-scale IQ score of 65 on the
Weschler Adult Intelligence Scale. This result suggests that the claimant meets 12.05(B)(1), and
it fills a significant evidentiary gap in the record by adding a recent IQ score.
Moreover, the claimant’s score of 65 on this IQ test strengthens other evidence in the
record that the claimant’s IQ score is in the disabled range, including a 2003 test on which the
claimant scored a full-scale IQ of 63. Thus, the submission of a new IQ score that meets
12.05(B)(1) has a reasonable probability of altering the ALJ’s determination of the claimant’s
IQ. (R. 17-21, 244-45, 412-413).
Additionally, the IQ score provided by Dr. Goff’s report in 2018 sheds significant doubt on
the ALJ’s assertion that the claimant’s IQ score is 82. The ALJ determined that the claimant has
a full-scale IQ of 82 based on a single test the claimant took in 2009. That test not only failed to
measure the claimant’s verbal intelligence, but was administered by a professional counselor
rather than a psychologist with a doctoral degree in the field. The ALJ relies solely upon this
particular test, despite the fact that it suggests an IQ significantly higher than other documented

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IQ test scores. The IQ score of 65 in Dr. Goff’s report adds to the evidence that the claimant’s
score of 82 is an outlier.
Moreover, unlike the IQ score obtained by a licensed professional counselor on which the
ALJ relies, the IQ score in Dr. Goff’s report was administered by a psychologist with a doctoral
degree and evaluated not only nonverbal intelligence, but also verbal intelligence. (R. 17-22,
244-45).
The IQ score in Dr. Goff’s report is also more consistent with the claimant’s demonstrated
academic abilities. The professional counselor, on whose report the ALJ relies, predicted that,
based on the claimant’s IQ of 82, he “should be successful in a mainstream classroom.” In fact,
the claimant failed his high school graduation exam eight times and never passed it. Dr. Goff’s
report, therefore, adds definitive weight to the evidence that the IQ score relied upon by the ALJ
is not representative of the claimant’s actual intelligence. (R. 244-45).
Several other features of Dr. Goff’s report also suggest that it has a reasonable probability
of changing the outcome of the ALJ’s decision. In the report, Dr. Goff concludes that the
claimant is intellectually disabled and autistic. Moreover, Dr. Goff finds that the claimant has
extreme limitations on his ability to respond appropriately to supervision, co-workers, and
customary work pressures. These findings contradict evidence that the claimant was
“cooperative,” which the ALJ highlighted in her decision. Also, Dr. Goff’s assessment of the
claimant’s difficulty interacting with others also comports with other evidence in the record,
including the claimant’s testimony that he has had the police called on him for a fit of yelling,
which the ALJ failed to mention in her decision. Additionally, Dr. Goff also found marked
limitations on the claimant in a number of domains of mental functioning, including the ability to
use judgment in detailed or complex work-related decisions and the ability to maintain attention

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for periods of at least two hours. These assessments bear directly on the requirements of Listing
12.05(B)(2) and have a reasonable probability of changing the outcome of the ALJ’s decision.
(R. 17-22, 61).
Dr. Goff’s report also adds significant weight to the evidence of the claimant’s profound
intellectual difficulties. Dr. Goff formally diagnosed the claimant with an intellectual disability,
and notably observed that the claimant omitted some letters when reciting the alphabet. He also
noted that the claimant had a poor memory for verbal material. These results contribute to the
evidence from Dr. Tocci’s evaluation, largely neglected by the ALJ’s decision, that the
claimant’s ability to understand, remember, and apply information is seriously limited. During
Dr. Tocci’s examination, the claimant could not correctly state the numbers of months in a year
or the number of quarters in a dollar. He could not calculate change or name the last U.S
President. He also failed to name five colors. Dr. Goff’s assessment bolsters that of Dr. Blanton,
who also diagnosed the claimant with an intellectual disability and found that the claimant had
poor judgement for work-related matters. (R. 402-05, 576).
Dr. Goff’s report provides the record with a recent IQ score, which it otherwise lacks.
The IQ score in Dr. Goff’s report corroborates other disability-range IQ scores in the record and
sheds significant doubt on the IQ score relied upon by the ALJ. Additionally, Dr. Goff’s report
provides an account of extreme limitations on the claimant’s mental function that bear directly
on the ALJ’s findings regarding 12.05(B)(2). The Appeals Council, therefore, erred in denying
review of the ALJ’s decision in light of post-hearing evidence.

VII. CONCLUSION
For the reasons above, this court concludes that the decision of the commission should be
REVERSED and REMANDED for action consistent with this opinion.

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The court will enter a separate order in accordance with the Memorandum Opinion.
DONE and ORDERED this 20th day of November, 2020.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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