Williams v. Astrue

Filing 26

MEMORANDUM OPINION AND ORDER entered, GRANTING 22 Motion to Alter Judgment. It is ORDERED that the decision of the Commissioner be REVERSED and REMANDED for further proceedings not inconsistent with the Orders of this Court, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 7/28/2011. (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

Defendant has filed a Motion to Alter the Judgment under
Fed.R.Civ.P. 59(e) (Docs. 22-23).
the Motion (Doc. 25).
is GRANTED.

Plaintiff has responded to

After consideration, Defendant’s Motion

After further consideration, the Court,

nevertheless, ORDERS that the decision of the Commissioner be
REVERSED and that this action be REMANDED for further
proceedings not inconsistent with the Orders of this Court.
Rule 59(e) provides the opportunity for a party to motion
for the court to alter or amend a judgment, so long as the
motion is filed within twenty-eight days.
Defendant has met this requirement.

Fed.R.Civ.P. 28(e).

To grant the Motion,

Defendant must demonstrate “newly-discovered evidence or
manifest errors of law or fact.”

See In re Kellogg, 197 F.3d
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1116, 1119 (11th Cir. 1999).
In the Motion, Defendant asserts that the Court’s holding
“controverts the plain language of the administrative
regulations setting forth the requirements of mental
retardation” (Doc. 23, p. 1).

Defendant further asserts that

“the Court’s broad application of Hodges v. Barnhart, 276 F.2d
1265, 1266 (11th Cir. 2001), is inconsistent with Eleventh
Circuit precedent construing Hodges narrowly, as establishing
only a rebuttable presumption” (Doc. 23, p. 1).
In the Memorandum Opinion and Order (hereinafter Order),
entered on May 27, 2011, the Court determined that Plaintiff had
satisfied the requirements of Listing 12.05C of the Listing
requirements for disability in the social security regulations
(Doc. 20).

The Court entered judgment based on the conclusions

made in that Order (Doc. 21).
In the Order, the Court summarized the relevant medical
evidence and specifically noted that Williams had scored a
Performance IQ score on the WISC-R which met the 12.05C
requirement of an IQ score between 60 and 70 (Doc. 20, p. 10;
see also Tr. 174-75).1

The Court also noted that school records

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The ALJ specifically found that there is no “sufficient credible
evidence to establish IQ scores in the mentally retarded range” (Tr.
16). The Court finds that this determination was incorrect.

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indicated that Plaintiff was taking alternative classes in the
sixth grade.

Id.

Then the Court, citing Hodges v. Barnhart,

276 F.3d 1265, 1266 (11th Cir. 2001), found that Williams had
“satisfied the requirement of proving that he suffered deficits
in adaptive functioning prior to the age of twenty-two” (Doc.
20, p. 11).
The Court has reread Hodges and the regulations applicable
to this discussion and finds Defendant’s argument persuasive.
Though Hodges held “that there is a presumption that mental
retardation is a condition that remains constant throughout
life,” Hodges, 276 F.3d at 1266, this is a rebuttable
presumption.

When the Court found that Williams’s IQ score

satisfied the 12.05C requirement, it is true that Plaintiff did
not then need to “present evidence that []he manifested deficits
in adaptive functioning prior to the age of twenty-two.”
Hodges, 276 F.3d at 1266.

However, this did not mean that

Williams had satisfied all of the Listing requirements as
Defendant still had the opportunity to rebut the presumption by
showing that he does not suffer from deficits in adaptive
functioning.
Therefore, the Court acknowledges that a re-examination of
the law surrounding Listing 12.05C, and Hodges specifically,
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leads to the inescapable conclusion that the Court, in its
Memorandum Order of May 27, 2011 (Doc. 20), was in error.
Specifically, the Court committed error in not acknowledging
that the presumption, in Hodges, that Williams’s mental
retardation, based on an IQ score, was a condition that remains
constant throughout life, is rebuttable.

The Court further

acknowledges that it entered judgment in this action based on
that error (Doc. 21).

The Court finds that Defendant’s Motion

to Alter the Judgment under Fed.R.Civ.P. 59(e) should be GRANTED
(Docs. 22-23) and amends the Memorandum Opinion and Order as
follows.
Having reached the conclusion that error was committed
previously, the Court needs to re-examine the ALJ’s decision as
to whether Defendant has rebutted the presumption of mental
retardation.

More specifically, the Court will examine the

ALJ’s findings regarding Williams’s adaptive functioning.
The ALJ, in her decision, stated the following:

Moreover, the claimant’s adaptive
functioning supports a finding that he is
not mentally retarded. He has no problems
caring for his personal needs (Exhibit 7E).
He is able to shop, pay bills, count change,
handle a savings account, and use a
checkbook/money orders. He can read and is
able to follow instructions. He also
completed a homestudy paralegal program
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through Professional Career Developmental
Institute (Exhibit 2F). The evidence does
not establish the claimant has the necessary
deficits in adaptive functioning to meet
Listing 12.05.

(Tr. 15).

The ALJ went on to note that Williams “earned his

high school diploma in a home school program and completed a
self study paralegal program” (Tr. 20).
The Function Report, cited by the ALJ, was completed by
Williams himself in which he states that he lives in a house
with his family (Tr. 198; see generally Tr. 198-205).

He

indicated that he could take a bath and put his clothes on by
himself; he cannot cook (Tr. 198).

He provides no care for any

family members or pets; he can take care of personal grooming
such as caring for his hair, shaving, feeding himself, and using
the toilet (Tr. 199).

He can do some cleaning without help or

encouragement (Tr. 200).

Williams states that he can pay bills,

count change, handle a savings account, and use a checkbook or
handle money orders (Tr. 201).

He goes to church regularly by

himself (Tr. 202); Plaintiff is able to follow written and
spoken instructions (Tr. 203).

Williams signed the form and

dated it as his birth date (Tr. 205; cf. Tr. 160).
The Court notes, however, that in spite of the Government’s
insistence that Plaintiff did not attend special education
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classes (Doc. 23, p. 8), school records clearly show otherwise.
Specifically, at age twelve, Williams was attending sixth-grade
alternative classes (Tr. 174-75).

The ALJ cited the same report

that the Government cites to the Court (medical report of Dr.
Jackson) (Tr. 15; cf. Tr. 246, 293), but never noted the school
records showing that Plaintiff was in alternative classes.
The Court also notes that the ALJ found that Plaintiff had
completed a high school education (Tr. 20, 22).

This conclusion

may be based on the Medical Expert McKeown’s statement that
Williams had received his GED (see Tr. 51); even though the ALJ
gave significant weight to the M.E.’s opinion (Tr. 21), this
particular fact appears to be incorrect.

What Plaintiff did

complete was a high school home study (Tr. 227), not recognized
as a GED by the American Council on Education.

See

http://www.acenet.edu/AM/Template.cfm?Section=GED_TS.
After re-examination of the evidence, the Court finds that
the ALJ’s decision is not supported by substantial evidence.
The Court has pointed out three specific errors in the ALJ’s
determination:

(1) that there is no “sufficient credible

evidence to establish IQ scores in the mentally retarded range”
(Tr. 16); (2) that Plaintiff went to school and attended only
regular classes; and (3) that Williams has a high school
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education.

While the ALJ has pointed to other things in the

record which demonstrate that Plaintiff is self-sufficient in
some ways, the Court cannot say that the ALJ’s determination, in
light of these errors, is supported by substantial evidence.
The Court wishes to be clear that it is not finding that the
ALJ’s ultimate decision is not correct; however, because of the
ALJ’s errors, the Court cannot find that she is.
Therefore, it is ORDERED that the action be REVERSED and
REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include at a minimum, a supplemental hearing for the gathering
of evidence regarding Plaintiff’s adaptive functioning.
Judgment will be entered by separate Order.

For further

procedures not inconsistent with this order, see Shalala v.
Schaefer, 509 U.S. 292 (1993).
DONE this 28th day of July, 2011.

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

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