Irvin v. Astrue

Filing 23

MEMORANDUM OPINION AND ORDER entered, Oral argument was waived in this action 22 . 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 action not inconsistent with the Orders of the Court, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 9/26/2011. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
KENDRICK IRVIN,

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

CIVIL ACTION 11-0075-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
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. 21).
argument was waived in this action (Doc. 22).

Oral

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 action
not inconsistent with the Orders of the Court.
1

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
twenty-nine years old, had less than a high school education
(see Tr. 51), and had previous work experience as a commercial
truck driver (Tr. 51).

In claiming benefits, Irvin alleges

disability due to chest pain, headaches, and mild mental
retardation (Doc. 14 Fact Sheet).
The Plaintiff filed applications for disability benefits
and SSI on August 26, 2008 (Tr. 143-49; see Tr. 11).

Benefits

were denied following a hearing by an Administrative Law Judge
(ALJ) who determined that although Irvin could not return to his
past relevant work, there were specific light and sedentary jobs
2

which he could perform (Tr. 11-25).

Plaintiff requested review

of the hearing decision (Tr. 6-7) 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.
that:

Specifically, Irvin alleges

(1) The ALJ improperly rejected the opinion of an

examining psychologist; (2) the ALJ erred in finding that he did
not meet the requirements of Listing 12.05C; (3) the ALJ
improperly found that Plaintiff’s testimony was not credible;
and (4) the ALJ erred in relying on factually incorrect
testimony from the vocational expert (Doc. 13).

Defendant has

responded to—and denies—these claims (Doc. 17).

The relevant

evidence of record follows.1
School records indicate that Plaintiff took the Stanford
Achievement Test (hereinafter SAT) in the first and second
grades and measured, generally, below average with some average
scores and, rarely, an above average score (Tr. 345-48).
Plaintiff repeated the second and fourth grades; he was passed
on from the third, fifth, and sixth grades, taking each year
only once, though he, generally had failing grades (Tr. 354).
In the seventh grade, Irvin failed social studies and science

1

Because of the specific claims raised, it is unnecessary to

3

and had D’s in reading and English; although records indicate
that he was retained, he apparently attended the ninth grade the
next year where there was little, if any, improvement (Tr. 353).
That would appear to have been the last year he attended school.
There was nothing in the school records to indicate that Irvin
had been in a special education curriculum (see Tr. 340-54).
On December 2, 2008, Psychologist Donald W. Blanton
examined Irvin and found his thoughts and conversation to be
logical; associations were in tact with no confusion (Tr. 23639).

Affect was appropriate, but flat; no psychomotor

retardation was noted.

There was no evidence of hallucinations,

delusion or persecutory-type fears; likewise, there was no
evidence of phobias or obsessive compulsive traits of
significance.

Irvin was alert; insight was limited and judgment

was considered fair.

The Wechsler Adult Intelligence Scale-III

was administered and Plaintiff received a verbal IQ score of 73,
a performance IQ score of 69, and a Full Scale IQ score of 69,
placing him in the mild range of mental retardation.

The

Psychologist’s impression was that Irvin suffered from the
following:

pain disorder with anxiety and depression; rule out

dementia with head injury; mild mental retardation; history of

summarize all of the evidence.

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head injury and heart problems by self report; chronic pain; and
that he had a GAF of 50.
The ALJ found that Irvin was capable of performing
specified light work and sedentary jobs (Tr. 25).

In reaching

this decision, the ALJ found that Plaintiff did not meet the
requirements of any Listing (Tr. 15-18).

She also found that

Plaintiff’s testimony was not credible (Tr. 19) and that the
opinions and conclusions of Psychologist Blanton were unworthy
of “great weight” (Tr. 23).

This concludes the evidence that

will be summarized herein.
Plaintiff claims that he meets the requirements for Listing
12.05C.

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
impairment before age 22.”

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

Appendix 1, Listing 12.05 (2011).

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 (2011).
5

The Court notes that, on the WAIS-III, Irvin scored
performance and full scale IQ scores of 69 (Tr. 239).

Though

the ALJ found that these scores “cannot be said to constitute
‘significantly’ subaverage generally intellectual functioning”
(Tr. 16), the scores clearly fall within the range of Listing
requirement 12.05C.
The ALJ found that Irvin had the following severe
impairments:

non-cardiac chest pain (costochondritis),

headaches, and borderline intellectual functioning.

This would

seem to satisfy the requirement of “a physical or other mental
impairment imposing an additional and significant work-related
limitation of function” in Listing 12.05C.
The remaining requirement to satisfy Listing 12.05C is for
Plaintiff to prove that he suffered “deficits in adaptive
behavior initially manifested during the development period.”
The Court notes that the ALJ specifically found that “even if
deficits in adaptive functioning existed, there is no way to
confirm their existence prior to the age of 22” (Tr. 16).
In reviewing the decision, the Court specifically notes the
following language from the ALJ:

The claimant testified that he was in
special education classes. However, there
are no records confirming that fact. On his
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application for benefits, the claimant
stated that he was not enrolled in special
education classes (Exhibit 7). Furthermore,
he stated that he completed the eleventh
grade in 1997, when he was 17 years old,
suggesting that he did not fail any grade.

(Tr. 16).
Irvin’s testimony at the evidentiary hearing was as
follows:

Q. All right. Mr. Irvin, you went
through the eleventh grade. Is that
correct?
A. I think it was between the ninth or
tenth. It’s one of the three.
Q.

Okay.

A. I think it was ninth or tenth if
I’m not mistaken.

(Tr. 51).

The Court acknowledges that a social security form,

both undated and unsigned, states that Plaintiff completed the
11th grade in 1997 (Tr. 200; see generally Tr. 194-202); however,
Irvin’s testimony at the hearing indicates otherwise.

More

important, though, school records clearly show that Irvin made
it to, at most, the ninth grade and that he failed at least two
grades along the way (see Tr. 353-54); the ALJ’s list of
exhibits show that this information was available, though it
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would appear it was not properly considered (Tr. 28; see
generally Tr. 26-29).
The ALJ also found that “[t]here is no record of childhood
IQ testing and elementary level standardized testing reveals
both average and subaverage results” (Tr. 16).

However, SAT

results from April 1988 testing show that twenty-four different
content clusters were measured, rated as either below average,
average, or above average; on those twenty-four measures, Irvin
received sixteen below average marks, seven average marks, and
one above average marks (Tr. 346).

From that same test, school

ability test scores rated Irvin as sixty-six on a one hundredpoint scale (id.).2

When the SAT was given again in April 1989,

Plaintiff scored twenty-one below average and nine average marks
on the content cluster measures; his School Ability test score
was sixty-one (Tr. 345).

The Court finds that the ALJ’s

statement that “elementary level standardized testing reveals
both average and subaverage results” is not an accurate
representation of the actual testing results.
Based on the ALJ’s failure to properly consider Irvin’s
school records, the Court cannot say that the decision is
supported by substantial evidence.

2

Though the Court cannot say

The Court notes that, for some unexplained reason, SAT scores

8

that Plaintiff satisfies the requirements of Listing 12.05C, the
Court can say that the evidence was not properly considered.
Based on review of the entire record, the Court finds that
the Commissioner's decision is not supported by substantial evidence.

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 as to whether or not Plaintiff can demonstrate
whether he suffered deficits in adaptive behavior initially
manifested during the development period.

Judgment will be

entered by separate Order.
DONE this 26th day of September, 2011.

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

from another student, Shaken Jackson, appear in the record (Tr. 347).

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