Sewell v. Astrue

Filing 16

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 furtherproceedings not inconsistent with the Orders of this Court, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 7/31/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
CHARLES JAMES SEWELL,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,
Defendant.

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CIVIL ACTION 12-0761-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, 8).
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. 15).
argument was waived in this action (Docs. 13-14).

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
proceedings 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
forty-six years old, had completed a high school special
education (Tr. 56), and had previous work experience as a
warehouse worker and supervisor (Tr. 74-75).

In claiming

benefits, Plaintiff alleges disability due to mental
retardation, diabetes mellitus, and hypertension (Doc. 8 Fact
Sheet).
The Plaintiff filed applications for disability benefits
and SSI on November 20, 2009 (Tr. 132-37; see also Tr. 20).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that although Sewell could not
return to his past relevant work, there were specific light and
sedentary jobs that he could perform (Tr. 20-28).

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Plaintiff

requested review of the hearing decision (Tr. 14-15) 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, Sewell alleges

(1) The ALJ improperly discounted the opinions of his

treating physician; (2) the ALJ improperly rejected the opinions
of a consultative examining physician; and (3) the ALJ did not
properly consider whether he meets the requirements of Listing
12.05C (Doc. 8).

Defendant has responded to—and denies—these

claims (Doc. 9).
In his third claim, Plaintiff asserts that the ALJ did not
properly consider whether he meets the requirements for Listing
12.05C (Doc. 8, pp. 6-7).

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 (2013).

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.
At the evidentiary hearing before the ALJ, Plaintiff’s

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Attorney argued that his client might meet the requirements of
Listing 12.05C, but that he would not know until he could obtain
Sewell’s school records (Tr. 54-55).

The Attorney made it known

at that time that Plaintiff had completed high school, but had
been in special education classes since the fifth grade (Tr.
54).

Plaintiff confirmed these facts in his testimony before

the ALJ (Tr. 56).
School records revealed that Plaintiff underwent several IQ
tests (see Tr. 349-73).

In an evaluation conducted on March 29,

1976, Sewell took the Wechsler Intelligence Scale for ChildrenRevised (hereinafter WISC-R) and scored a verbal IQ score of 46,
a performance IQ score of 61, and a full scale IQ score of 49;
these scores would place Plaintiff in the mentally deficient
range of intellectual functioning (Tr. 360).

On October 2,

1978, Plaintiff again took the WISC-R, scoring a verbal IQ score
of 59, a performance IQ score of 69, and a full scale IQ score
of 61, placing him in the educable mentally retarded range of
intellectual functioning (Tr. 362-63).

On August 5, 1982,

Sewell took the Wechsler Adult Intelligence Scale-Revised and
obtained a verbal IQ of 70, a performance IQ of 70, and a full
scale IQ of 69; these scores placed him in the educable mentally
retarded range of intellectual functioning (Tr. 351).

The

tester expressed the opinion that this was a valid assessment of
Sewell’s abilities (id.).

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In his decision, the ALJ found that Plaintiff had severe
impairments of back pain, diabetes mellitus, and hypertension
(Tr. 22).

This finding, along with the IQ test scores from

Sewell’s school days, suggest that Plaintiff meets the
requirements of Listing 12.05C.
In the determination, the ALJ found that Plaintiff did not
meet any listed impairments (Tr. 23).

In making this finding,

the ALJ stated that he considered Listings 1.04, 4.00 et seq.,
and 9.00 et seq. (Tr. 23).

The ALJ did not, however, mention

any psychological or mental impairment anywhere in his
determination and failed to acknowledge—much less discuss—
Sewell’s school records within his determination.
The Government has argued that Plaintiff does not meet the
requirements of Listing 12.05C (Doc. 9, pp. 8-10).

The Court

notes that Defendant may be right in its argument.

However, the

ALJ made no findings in the matter.

Defendant implicitly admits

as much in its argument in failing to point to any finding made
by the ALJ with regard to this claim.

As such, the Court cannot

find that the ALJ’s decision is supported by substantial
evidence.

With this finding, the Court finds it unnecessary to

address the other claims raised by Plaintiff in this action.
Sewell has raised three different claims in bringing this
action.

The Court has found merit in Plaintiff’s claim that the

ALJ did not properly consider whether he meets the requirements

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of Listing 12.05C.

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 to determine if Plaintiff is mentally
retarded.

Judgment will be entered by separate Order.

DONE this 31st day of July, 2013.

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

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