Williams v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER entered.. Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be REVERSED and that this action be REMANDED for further procedures not inconsistent with the orders of this Court, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 5/27/2011. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ANDRE T. WILLIAMS,

:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 10-0611-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 13).

The parties filed written consent and this

action has been referred to the undersigned Magistrate Judge to
conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc.
17).

Oral argument was waived in this action (Doc. 19).

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be REVERSED and that this action be REMANDED for further
procedures not inconsistent with the orders of this Court.
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This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205
(D. Md. 1982).
At the time of the administrative hearing, Plaintiff was
thirty-seven years old, had completed less than a high school
education (Tr. 70-73, 227), and had previous work experience as
a commercial or industrial cleaner (Tr. 77).

In claiming

benefits, Plaintiff alleges disability due to mental retardation
and depression (Doc. 13 Fact Sheet).
The Plaintiff protectively filed an application for SSI on
May 8, 2008 (see Tr. 10).

Benefits were denied following a

hearing by an Administrative Law Judge (ALJ) who determined that
although he could not perform his past relevant work, Williams
was capable of performing limited medium work jobs existing in
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the national economy (Tr. 10-23).

Plaintiff requested review of

the hearing decision (Tr. 6) by the Appeals Council, but it was
denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
alleges that:

Specifically, Williams

(1) The ALJ erred in giving determinative weight

to the conclusions of a non-examining medical expert
(hereinafter ME) psychologist; and (2) the ALJ failed to
consider whether Plaintiff’s IQ scores were medically equivalent
to Listing 12.05 (Doc. 13).

Defendant has responded to—and

denies—these claims (Doc. 14).

The relevant medical evidence of

record follows.
On June 4, 1985, a report was completed by a School
Psychologist which indicated that Williams had undergone
examination because of poor academic performance; Plaintiff was
not quite thirteen years old and was attending sixth-grade
alternative classes (Tr. 174-75).

On the California Achievement

Test, Williams was reading at a 4.6 grade level and performing
math at a 4.8 grade level; his language abilities were at a 4.9
grade level while he could spell at a 4.1 grade level.

On the

WISC-R, Plaintiff had a verbal IQ score of 80 while his
performance IQ score was 70, placing him in the borderline
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intellectual functioning level range of intelligence.

Results

from the Wide Range Achievement Test showed that Williams was
reading at the beginning third-grade level, spelling at the
beginning fifth-grade level, and performing arithmetic at the
ending third-grade level.

The Bender Gestalt Visual Motor Test

results suggested a perceptual motor developmental age of a
person between the ages of eight years, six months and eight
years, eleven months.
On February 27, 1991, Dr. Harold J. Fuller examined
Plaintiff and noted that he rarely made eye contact and appeared
to be painfully shy; Williams admitted to being “a little
depressed” (Tr. 237; see generally Tr. 236-38).

Plaintiff

admitted suicidal ideation, though he had no current plans to
hurt himself; he was alert and oriented.

Insight was good and

intelligence was estimated to be low average.

Fuller’s

diagnosis was severe depression, perhaps with psychotic
features.
On January 26, 2005, Psychologist Annie Formwalt examined
Williams who told her he could not work because of depression;
his affect was normal and appropriate to content of thought and
conversation (Tr. 240-42).

He did not appear anxious and was of

euthymic mood; he was oriented in four spheres.
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Thought

processes were grossly intact as there were no loose
associations, tangential, or circumstantial thinking; Williams
had poor insight and understanding of himself.
poor and estimated intelligence was average.

Judgment was

Formwalt’s

diagnostic impression was dysthymic disorder; it was the
Psychologist’s impression that he would have a favorable
response to treatment, including psychotherapy, within six-totwelve months.
On July 20, 2008, Psychologist J. M. Jackson examined
Williams who reported that he had been depressed for a long
time; Plaintiff’s mood and affect were appropriate and he did
not seem anxious (Tr. 245-48).

He was oriented to person, time,

and place; there were no signs of confusion, loose associations,
tangential, or circumstantial thinking.

There were no

hallucinations, delusions, or other distortions of thinking or
preoccupation; he denied suicidal or homicidal ideation.
Williams had limited judgment and little insight into himself
and his condition.

Jackson provided no diagnosis, finding that

Plaintiff was only superficially cooperative and unmotivated to
provide accurate, detailed information.
On December 14, 2009, Psychologist John W. Davis examined
Williams who reported problems of depression, nervousness, and
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arthritis (Tr. 284-291); Davis noted that Plaintiff “showed a
good degree of cooperation” (Tr. 284).

Williams had “some

anxiety and depression about himself but [did] not have the
capacity for a full range of emotional qualities;” “emotional
responses [were] appropriate to the thought, content, and
situation of [the] evaluation” (Tr. 285).

His mood was

generally depressed; he was oriented in three spheres and had no
loose associations, tangential, circumstantial thinking, or
confusion.

Judgment and insight were fair.

Plaintiff underwent

testing and was cooperative, but did not put forth his best
effort so the results were not felt to be reliable or valid.

On

the WAIS-R, Williams scored a full scale IQ of 67, which would
place him in the mild mental retardation range of intelligence.
Davis’s overall diagnostic impression was malingering and the
prognosis was guarded.

It was the Psychologist’s opinion that

Plaintiff was moderately limited in his ability to understand,
remember, carry out, and make judgments on complex instructions.
On January 14, 2010, Psychologist Jennifer Jackson again
examined Williams and found him oriented in three spheres with
no signs of confusion, loose associations, tangential, or
circumstantial thinking; he had limited insight into himself and
his condition (Tr. 292-98).

Plaintiff underwent testing,
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putting forth good effort, which the examiner felt produced
reliable, valid, results.

On the WAIS-III, Williams had a

verbal IQ score of 71, a performance IQ score of 72, and a full
scale IQ score of 69, placing him in the mildly retarded range
of intelligence.

On the Beck Depression Inventory-II, results

indicated severe depression.

Plaintiff underwent two objective

tests used to measure effort and exaggeration of impairment/
symptoms; one test indicated less than optimal effort while the
other indicated that Williams put forth a valid effort without
any evidence of malingering.

The Psychologist’s diagnostic

impression was depressive disorder and mild mental retardation.
Jackson completed a mental residual functional capacity form
which indicated that Plaintiff had marked deficiencies of
concentration, persistence, or pace resulting in frequent
failure to complete tasks in a timely manner and that he was
moderately limited in the following abilities:

to respond to

customary work pressures; to understand, carry out, and remember
instructions in a work setting; and perform repetitive tasks in
a work setting.
At the evidentiary hearing, Psychologist Doug McKeown was
called as an ME who testified, by telephone, that school records
indicated that Plaintiff suffered from borderline intellectual
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functioning; Williams, did, however, get his GED (Tr. 51-61).
McKeown further summarized the medical evidence provided by Dr.
Fuller, Psychologists Formwalt, Jackson, and Davis.

It was the

Psychologist’s opinion that Plaintiff could not be evaluated
under Listing 12.05C because Williams’s mental retardation had
not been established by the time he was twenty-two years of age;
he also discounted disability under Listing 12.04 for depression
because Plaintiff had not had regular ongoing treatment (Tr.
53).

McKeown discounted Jackson’s opinion of marked impairments

for concentration, persistence, and pace (Tr. 54).

When

questioned by Williams’s attorney, the Psychologist admitted
that Davis had noted that the MMPI profile showed depression and
that those results were considered valid (Tr. 56-57).

McKeown

also stated that Jackson administered the WAIS-III, an older
scale than the WAIS-IV given by Davis; he volunteered the
testimony that Jackson had probably used the older test because
Williams had undergone testing with the newer test model just a
month earlier.

In any event, McKeown would dismiss the results

Jackson got on the WAIS-III as inaccurate (Tr. 58).

The

Psychologist also stated that the Beck Inventory, given by
Jackson, was not really a diagnostic tool and did not establish
depression in and of itself (Tr. 59).
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After further

questioning, the ME stated that he did not dispute the full
scale IQ score of 69, but that it did “not establish mental
retardation prior to the age of 22” (Tr. 61).
In her decision, the ALJ summarized the evidence and found
that Plaintiff suffered from the following severe impairments:
dysthymic disorder, mild depression, borderline intellectual
functioning, and obesity (Tr. 12).

The ALJ found that Williams

did not meet Listing 12.05 because “the evidence fails to
establish mental retardation prior to age 22” (Tr. 14).

In

assessing the evidence, the ALJ gave significant weight to the
opinions of Psychologist McKeown, great weight to the opinions
of Psychologist Davis, and little weight to Dr. Jackson’s
opinions (Tr. 20-21).

The ALJ also found that Williams’s

assertions of limitation were not credible to the extent alleged
(Tr. 19).

This concludes the relevant evidence of record.

Plaintiff has claimed that the ALJ erred in failing to
consider whether Plaintiff’s IQ scores were medically equivalent
to Listing 12.05.

The introductory notes to Section 12.05 state

that “[m]ental retardation refers to a significantly subaverage
general intellectual functioning with deficits in adaptive
behavior initially manifested during the development period;
i.e., the evidence demonstrates or supports onset of the
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impairment before age 22.”

20 C.F.R. Part 404, Subpart P,

Appendix 1, Listing 12.05 (2010).

Subsection C requires "[a]

valid verbal, performance, or full scale IQ of 60 through 70 and
a physical or other mental impairment imposing an additional and
significant work-related limitation of function."

20 C.F.R.

Part 404, Subpart P, Appendix 1, Listing 12.05C (2010).
The Court notes that when Plaintiff was in the sixth grade,
he had a performance IQ score of 70 on the WISC-R (Tr. 174-75).
Even though McKeown and the ALJ refer to this score as only
borderline intellectual functioning, as did the school, it
clearly meets the Listing requirement of an IQ score of 60
through 70.
School records also specifically state that Williams was
taking alternative classes in the sixth grade (Tr. 174-75).

The

Court notes that although the regulations require that Plaintiff
demonstrate that he suffered “deficits in adaptive behavior”
before he turned twenty-two, 20 C.F.R. Part 404, Subpart P,
Appendix 1, Listing 12.05 (2010), the Eleventh Circuit Court of
Appeals, in Hodges v. Barnhart, 276 F.3d 1265, 1266 (11th Cir.
2001), has held “that there is a presumption that mental
retardation is a condition that remains constant throughout
life.”

The Hodges Court further held “that a claimant need not
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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.”
Hodges, 276 F.3d at 1266.
Respondent has argued that Hodges is inapplicable here
because, in Hodges, there was no IQ testing for the claimant
before she turned twenty-two while, in this action, there are IQ
scores from when Williams was in the sixth grade (Doc. 14, p.
13).

Respondent further asserts that Hodges is based on the

reasoning of a prior case, Lowery v. Sullivan, 979 F.2d 835, 837
(11th Cir. 1992), which pre-dated revisions to this section of
the regulations (Doc. 14, p. 13 n.7).
The Court notes that Respondent offers no citations
demonstrating that Hodges is not good law.

That being the case,

the Court understands Hodges to instruct the Court to find that
Williams has satisfied the requirement of proving that he
suffered deficits in adaptive functioning prior to the age of
twenty-two.

The Court further notes that even though the ME and

the ALJ discounted the full scale IQ score of 69 Plaintiff
obtained on the WISC-III, the score provides further support
that this decision is correct.
The final requirement to meet Listing 12.05C is for
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Plaintiff to demonstrate “a physical or other mental impairment
imposing an additional and significant work-related limitation
of function."

The ALJ found that Plaintiff suffered from the

following severe impairments:

dysthymic disorder, mild

depression, borderline intellectual functioning, and obesity
(Tr. 12).
The Court notes that the Eleventh Circuit Court of Appeals
has held that for purposes of § 12.05C the second prong
requirement is met once there is a finding that the claimant has
an additional severe impairment because the requirement of
“significant work-related limitation of function” “involves
something more than ‘minimal’ but less than ‘severe.’”

Edwards

by Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985).

The

Edwards Court specifically held that “[o]nce a claimant is found
to have a ‘severe impairment’ within the meaning of §
404.1520(c), he is deemed disabled (he must also meet the
durational requirement), and the analysis comes to an end.”
Edwards, 755 F.2d at 1515.
The Court has reviewed the record and finds evidence which
suggests that Plaintiff has satisfied the requirements of
Listing 12.05C.

While the Court has reviewed the record

carefully and realizes that there is evidence at odds with this
12

conclusion, the Court, nevertheless, finds that the ALJ’s
decision is not supported by substantial evidence as Williams
has satisfied the requirements of Listing 12.05C.
Therefore, it is ORDERED that the action be REVERSED and
REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion.
Furthermore, it is ORDERED that a final judgment be entered
ordering remand in this action pursuant to sentence four of 42
U.S.C. ' 405(g).

See Melkonyan v. Sullivan, 501 U.S. 89 (1991).

For further procedures not inconsistent with this order, see
Shalala v. Schaefer, 509 U.S. 292 (1993).
DONE this 27th day of May, 2011.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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