Harrell v. Astrue
Order that the decision of the Commissioner denying plaintiff's application for DIB and SSI benefits is not supported by substantial evidence and is therefore ORDERED that the case is REMANDED for proper consideration of Dr Blanton's opinion, unless the ALJ on remand determines that plaintiff ought to be examined by an agency medical expert and submit to further testing. Signed by Magistrate Judge Katherine P. Nelson on 12/6/2013. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN COLVIN, Acting
Commissioner of Social Security,1
) CIVIL ACTION NO. 2:13-00056-N
Plaintiff, Aaron Harrell, brings this action seeking judicial review of a final
decision of the Commissioner of Social Security denying his application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income Benefits (“SSI”) under
Titles II and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401-433 and 13811383c. Pursuant to the consent of the parties (doc. 19), 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.
came on for oral arguments on September 26, 2013, at which William T. Coplin , Jr.
appeared for the plaintiff and Assistant United States Attorney Patricia Beyer represented
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted
for Michael J. Astrue as the defendant in this suit. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
the Commissioner. Upon consideration of the administrative record (doc. 11), the
parties’ respective briefs (Docs. 13, 16), and the parties’ respective arguments, the
undersigned concludes that the decision of the Commissioner is REMANDED for proper
consideration of Dr. Blanton’s opinion, unless the ALJ on remand determines that Harrell
ought to be examined by an agency medical expert and submit to further testing.
Although Harrell’s actual applications were not available for inclusion in the
record (doc. 16 at n.2), the record indicates that plaintiff filed his applications for DIB
and SSI benefits on January 29, 2010 (Tr. 50, 51). Harrell claimed a disability onset of
January 1, 2006 due to ulcers and body pain (Tr. 27, 52, 53, 139). He was initially denied
on July 30, 2010 (Tr. 52-63). A hearing before the Administrative Law Judge (ALJ) was
held on August 10, 2011 (Tr. 25-49). An unfavorable decision was issued by the ALJ on
September 8, 2011, on the grounds, in sum, that Harrell could perform a range of light
work existing in significant numbers in the national economy (Tr. 10-24).
The Appeals Council denied Harrell’s request for review of the ALJ’s decision on
December 15, 2012 (Tr. 1-6), making the ALJ’s decision the Commissioner’s final
decision for purposes of judicial review. See 20 C.F.R. § 422.210(a).2 Harrell now
timely appeals from that decision and all administrative remedies have been exhausted.
All citations to the Code of Federal Regulations (C.F.R.) are to the 2013 edition.
Issues on Appeal.
Whether the ALJ erred in rejecting the opinion of Harrell’s retained
examining consultant, Donald W. Blanton, Ph.D.?
Whether the ALJ erred by failing to find that Harrell is disabled under
Standard of Review.
Scope of Judicial Review.
In reviewing claims brought under the Social Security Act, this Court's role is a
limited one. Specifically, the Court's review is limited to determining: 1) whether the
decision is supported by substantial evidence, and 2) whether the correct legal standards
were applied. See, 42 U.S.C. § 405(g); Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155,
1158 (11th Cir. 2004) (per curiam); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2001); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). Thus, a court may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the Commissioner. Miles v. Chater, 84
F.3d 1397, 1400 (11th Cir. 1996); Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).
Rather, the Commissioner's findings of fact must be affirmed if they are based upon
substantial evidence. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); Chater, 84
F.3d at 1400; Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991). Substantial
evidence is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Crawford,
363 F.3d at 1158; Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
Substantial evidence “is more than a scintilla, but less than a preponderance,” Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). See also, Martin, 894 F.2d at 1529
(“Even if the evidence preponderates against the Secretary's factual findings, we must
affirm if the decision reached is supported by substantial evidence.”). In determining
whether substantial evidence exists, a court must view the record as a whole, taking into
account evidence favorable as well as unfavorable to the Commissioner's decision. Lynch
v. Astrue, 358 Fed.Appx. 83, 86 (11th Cir. 2009); Martino v. Barnhart, 2002 WL
32881075, * 1 (11th Cir. 2002); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Even where there is substantial evidence to the contrary of the ALJ's findings, the ALJ’s
decision will not be overturned where “there is substantially supportive evidence” of that
decision. Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991).
The ALJ is responsible for determining a claimant's RFC, an ingrained principle of
Social Security law. See 20 C.F.R. § 416.946(c) (“If your case is at the administrative
law judge hearing level under § 416.1429 or at the Appeals Council review level under §
416.1467, the administrative law judge or the administrative appeals judge at the Appeals
Council (when the Appeals Council makes a decision) is responsible for assessing your
residual functional capacity.”) “Residual functional capacity, or RFC, is a medical
assessment of what the claimant can do in a work setting despite any mental, physical or
environmental limitations caused by the claimant's impairments and related symptoms.”
Peeler v. Astrue, 400 Fed.Appx. 492, 493 n. 2 (11th Cir. Oct.15, 2010), citing 20 C.F.R. §
416.945(a). See also, Hanna v. Astrue, 395 Fed.Appx. 634, 635 (11th Cir. Sept.9, 2010)
(“A claimant's RFC is ‘that which [the claimant] is still able to do despite the limitations
caused by his ... impairments.’”)(quoting Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th
Cir.2004). “In making an RFC determination, the ALJ must consider all the record
evidence, including evidence of non-severe impairments.” Hanna, 395 Fed.Appx. at 635
(citation omitted); see also 20 C.F.R. § 416.945(a)(1) (“We will assess your residual
functional capacity based on all the relevant evidence in your case record.”); 20 C.F.R. §
416.945(a)(3) (“We will assess your residual functional capacity based on all of the
relevant medical and other evidence.”). The regulations provide, moreover, that while a
claimant is “responsible for providing the evidence [the ALJ] ... use[s] to make
a[n][RFC] finding[,]” the ALJ is responsible for developing the claimant's “complete
medical history, including arranging for a consultative examination(s) if necessary,” and
helping the claimant get medical reports from her own medical sources. 20 C.F.R. §
416.945(a)(3). In assessing RFC, the ALJ must consider any statements about what a
claimant can still do “that have been provided by medical sources,” as well as
“descriptions and observations” of a claimant's limitations from her impairments,
“including limitations that result from [ ] symptoms, such as pain[.]” Id.
In determining a claimant's RFC, the ALJ considers a claimant's “ability to meet
the physical, mental, sensory, or other requirements of work, as described in paragraphs
(b), (c), and (d) of this section.” 20 C.F.R. § 416.945(a)(4).
(b) Physical abilities. When we assess your physical abilities, we first
assess the nature and extent of your physical limitations and then determine
your residual functional capacity for work activity on a regular and
continuing basis. A limited ability to perform certain physical demands of
work activity, such as sitting, standing, walking, lifting, carrying, pushing,
pulling, or other physical functions (including manipulative or postural
functions, such as reaching, handling, stooping or crouching), may reduce
your ability to do past work and other work.
(c) Mental abilities. When we assess your mental abilities, we first assess
the nature and extent of your mental limitations and restrictions and then
determine your residual functional capacity for work activity on a regular
and continuing basis. A limited ability to carry out certain mental activities,
such as limitations in understanding, remembering, and carrying out
instructions, and in responding appropriately to supervision, coworkers, and
work pressures in a work setting, may reduce your ability to do past work
and other work.
(d) Other abilities affected by impairment(s). Some medically determinable
impairment(s), such as skin impairment(s), epilepsy, impairment(s) of
vision, hearing or other senses, and impairment(s) which impose
environmental restrictions, may cause limitations and restrictions which
affect other work-related abilities. If you have this type of impairment(s),
we consider any resulting limitations and restrictions which may reduce
your ability to do past work and other work in deciding your residual
20 C.F.R. § 416.945(b), (c) & (d). See also Kennedy v. Astrue, 2012 WL 2873683, * 7-8
(S.D. Ala. July 13, 2012).
Statutory and Regulatory Framework.
The Social Security Act's general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line. Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must prove “disability” within the
meaning of the Social Security Act, which defines disability in virtually identical
language for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20
C.F.R. §§ 404.1505(a), 416.905(a). A person is entitled to disability benefits when the
person is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental
impairment” is one that “results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§
404.1520, 416.920 (2010). The Eleventh Circuit has described the evaluation to include
the following sequence of determinations:
(1) Is the person presently unemployed?
(2) Is the person's impairment(s) severe?
(3) Does the person's impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). See also Bell v. Astrue, 2012
WL 2031976, *2 (N.D. Ala. May 31, 2012); Huntley v. Astrue, 2012 WL 135591, *1
(M.D. Ala. Jan. 17, 2012).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
Step 5, the burden shifts to the Commissioner, who must then show there are a significant
number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant's
Residual Functional Capacity (RFC). Id. at 1238–39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242–43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P, app. 2 (“grids”), or hear testimony
from a vocational expert (VE). Id. at 1239–40.
Unlike the other mental disorders listings in the regulations, Listing 12.05
contains an introductory paragraph, or a “diagnostic description,” with criteria the
claimant must meet in addition to meeting one of the “four severity prongs” for mental
retardation. See Randall v. Astrue, 570 F.3d 651, 659-60 (5th Cir. 2009); Wall v. Astrue,
561 F.3d 1048, 1062 (10th Cir. 2009); Novy v. Astrue, 497 F.3d 708, 709 (7th Cir. 2007);
Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006); Foster v. Halter, 279 F.3d 348,
354 (6th Cir. 2001). The Eleventh Circuit has recognized the distinction with respect to
Listing 12.05 as follows:
Listing 12.05, the listing category for mental retardation, begins with an
introductory paragraph, which states that “[m]ental retardation refers to
significantly subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental 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, § 12.05. The listing further provides that the
“required level of severity for this disorder is met when the requirements in A, B,
C, or D are satisfied.” Id. Subsection C requires a claimant demonstrate “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.” Id. at § 12.05(C). Section 12.00A states in pertinent part that
“[l]isting 12.05 contains an introductory paragraph with the diagnostic description
for mental retardation. It also contains four sets of criteria (paragraphs A through
D). If your impairment satisfies the diagnostic description in the introductory
paragraph and any one of the four sets of criteria, we will find that your
impairment meets the listing.” Id. at § 12.00A (emphasis added).
We have determined that, to be considered for disability benefits under
Listing 12.05, a claimant must at least (1) have significantly subaverage general
intellectual functioning; (2) have deficits in adaptive functioning; and (3) have
manifested deficits in adaptive behavior before age 22. Crayton v. Callahan, 120
F.3d 1217, 1219 (11th Cir. 1997). In addition, for presumptive disability under
12.05C, the claimant must have (1) a valid IQ score of 60 through 70 inclusive,
and (2) an additional mental or physical impairment significantly affecting the
claimant's ability to work. Id. at 1219-1220.
Pettus v. Astrue, 226 Fed. Appx. 946, 948 (11th Cir. Apr. 5, 2007). In Humphries v.
Barnhart, the Eleventh Circuit held:
Here, substantial evidence supports the ALJ's finding that Humphries' impairments
do not meet or equal the Listing 12.05(C) because, despite her IQ of 65, she does
not have deficits in her adaptive functioning. Humphries worked in a school
cafeteria for 21 years, and served as the manager for about 15 years. As manager,
Humphries gave the five employees under her supervision daily lists of tasks,
ensured breakfast and lunch were prepared on time, and ordered groceries for the
183 Fed. Appx. 887, 890 (11th Cir. June 8, 2006). A rebuttable presumption exists that
any claimant who has demonstrated a valid IQ score under 70 has also “manifested
deficits in adaptive functioning before the age of 22” and therefore satisfies the criteria
for Listing 12.05(C); the presumption must then be rebutted by the Commissioner with
evidence that, despite a valid IQ score of 60 through 70, the claimant does not have
deficits in adaptive functioning. Grant v. Astrue, 255 Fed. Appx. 374, 375 (11th Cir. Nov.
13, 2007). See also Frank v. Astrue, 2011 WL 6111692, *2-4 (S.D. Ala. Dec. 8,
2011)(“[T]he law in this Circuit is clear that where, as here, a claimant has presented a
valid IQ score of 60 to 70, she is entitled to the presumption that she manifested deficits
in adaptive functioning before the age of 22 [and] [t]o establish a disability under section
12.05(C), a claimant must present evidence of a valid verbal, performance, or full-scale
I.Q. score of between 60 and 70 inclusive, and of a physical or other mental impairment
imposing additional and significant work-related limitation of function.”).
The second prong of Listing 12.05(C) requires evidence of “a physical or other
mental impairment imposing an additional and significant work-related limitation of
function.” Etheridge v. Astrue, 2009 WL 3233899, *10 (S.D. Ala. Sept. 29, 2009). This
once meant that the “work-related limitation of function” must be “significant,” but it
need not be a “severe impairment” as defined at Step 2. However, as explained in Black
v. Astrue, 678 F.Supp.2d 1250, 1262 (N.D. Ala. 2010):
Under an earlier version of this Listing, our circuit interpreted this as
something that is “significant” but less than a “severe impairment” as
defined at Step 2. Edwards by Edwards v. Heckler, 755 F.2d 1513, 1515
(11th Cir.1985) (emphasis added). But (citation omitted), this was modified
in 2000 and the introductory paragraph of Listing 12.00 now equates this
criterion with a “severe” impairment as intended at step 2 and governed by
20 C.F.R. §§ 404.1520(c) and 416.920(c).
678 F.Supp.2d at 1262. Consequently, the claimant must do more than merely cite to an
ALJ’s finding that a particular condition is a “severe impairment” for purposes of Step 2
of the sequential evaluation.
Listing 12.05(C) requires a claimant to demonstrate “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.” Pettus, 226 Fed. Appx. at
948. In order to determine the severity of a mental impairment within the context of
12.05(C), the Commissioner is required, at all levels of the administrative process, to
apply the “special technique” of review set forth in 20 C.F.R. §§ 404.1520a and
416.920a. Taylor v. Astrue, 2009 WL 5184402, *3 (M.D. Ala. Dec. 23, 2009), citing
Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007), and Binion v. Astrue, 2008 WL
4493238 (M.D. Ala. Oct. 3, 2008). This “special technique” is described as follows:
Under the “special technique,” after determining whether or not the claimant
suffers from some mental impairment(s), the Commissioner then rates the degree
of functional limitation resulting from the impairment(s). The Commissioner rates
the degree of limitation imposed in four distinct “functional areas” including:
“activities of daily living; social functioning; concentration, persistence, or pace;
and episodes of decompensation.” § 404.1520a(c)(3). The Commissioner uses a
five-point scale (none, mild, moderate, marked, and extreme) in rating the first
three functional areas, and a four-point scale (none, one, two, three, and four or
more) in rating episodes of decompensation. If the degree of limitation found in all
of the first three areas is “none” or “mild,” and there are no periods of
decompensation, then the Commissioner will generally find the impairment not
severe. 20 C.F.R. § 1520a(d)(1). If the ALJ's scoring of the claimant's limitations
compels a finding that the claimant's mental impairment(s) is severe, the ALJ then
proceeds to determine “if it meets or is equivalent in severity to a listed mental
disorder.” § 1520a(d)(2).
The Commissioner is required to document his application of the special review
technique at all stages in the administrative adjudication of a disability claim. 20
C.F.R. § 1520a(e). During the initial stages of review, application of the “special
technique” is facilitated by the completion of a Psychiatric Review Technique
Form (“PRTF”) by a qualified professional. During review by the ALJ, the ALJ is
required “to complete a PRTF and append it to the decision, or incorporate its
mode of analysis into [the ALJ's] findings and conclusions. Failure to do so
requires remand.” Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005).
Importantly, the ALJ is required to document his or her application of the
technique as to each of the given functional areas, and failure to do so precludes
judicial review of the ALJ's decision. Id. Failure to properly apply the special
review technique requires remand even if the ALJ's ultimate finding that the
claimant is not disabled is supported by substantial evidence. Id. See also Binion,
2008 WL 4493238 at *4.
Taylor, 2009 WL 5184402 at *3-4. In other words, the mere existence of physical or
mental impairments, even if supported by sufficient medical evidence, does not reveal the
extent to which they limit claimant’s ability to work or undermine an ALJ’s
determination in that regard. “[T]he ‘severity’ of a medically ascertained disability must
be measured in terms of its effect upon ability to work, and not simply in terms of
deviation from purely medical standards of bodily perfection or normality.” Russell v.
Astrue, 331 Fed.Appx. 678, 681 (11th Cir. Jun. 15, 2009), quoting McCruter v. Bowen,
791 F.2d 1544, 1547 (11th Cir. 1986). Such is the purpose of the “special technique”
described above, which “requires separate evaluations on a four-point scale of how the
claimant's mental impairment impacts four functional areas: “activities of daily living;
social functioning; concentration, persistence, or pace; and episodes of decompensation”
and must be incorporated in the ALJ’s findings and conclusions. Moore, 405 F.3d at
1213-14, citing 20 C.F.R. §§ 404.1520a-(c)(3-4) and (e)(2).
IV. Findings of Fact and Conclusions of Law.
A. Statement of Facts.
Harrell was born on September 15, 1958, and was 47 years old on his alleged
onset date, and 52 years old on the date on which the ALJ issued her opinion (Tr. 104).
The disability report reflects that Harrell completed the 12th grade in May of 1977 and did
not attend special education classes (Tr. 140). This report also indicates that Harrell
could read and understand English (Tr. 138). This typed report has not been signed by
Harrell and does not indicate who prepared the report (Tr. 145). It does, however, appear
to be part of the Disability Report prepared by the Social Security Field Office (Tr. 134137) prepared by a Field Office employee, E. Clark, on February 11, 2000 (Tr. 137).
At the hearing, Harrell initially testified that he went to the 11th grade in school,
but then conceded that it might have been just the ninth grade (Tr. 40).4 Harrell’s school
records show that Harrell attended R.C. Hatch High School. In the 7th grade, he
received the grade of “S” in all classes except English, in which he received a “U”. In the
8th grade, he made “A” in music, “D” in social studies, and “F” in English, math and
science, but was promoted to the 9th grade. In the two semesters of 9th grade, he made
“C” and “D” respectively in physical education, “D” in social studies, and “F” in English
and science. He repeated the 9th grade and made “F” in algebra and “0” in English, social
studies, science, physical education and biology. (See, Tr. 168-169).
Harrell was last employed cutting grass at golf course for 5-6 years, which was
unskilled work as performed, according to the vocational expert who testified in this case
(Tr. 32, 43). Although the record may show “a significant work history from 1975 to
2005 in the unskilled category” (Tr. 18), the most Harrell ever made was $14,790.75 in
1990. See, Tr. 116 (sets forth Harrell’s annual earnings for 1975 to 2005).5
In the report of Donald W. Blanton, Ph.D., it is also reported that Harrell “stopped school in the
eleventh grade and never obtained a GED” (Tr. 282). Dr. Blanton does not indicate that he had access and
reviewed any of Harrell’s school records. He does, however, opine that Harrell “was not a particularly
good historian” with respect to his own history of illness (Tr. 281).
In 1975, he only earned $64. The next year he earned $182.10; then $658.46 in 1977.
Thereafter, it was not until 1985 that his earnings rose to a high of $5,858.54. His annual salary exceeded
$10,000 in only six of these “many years” of unskilled work, which included $10,021.08 in 1989,
$14,790.75 in 1990 (followed by a drop to $1,116 in 1991, only $673.76 in 1992 and $4,762.56 in 1993),
$10,225.49 in 1994 (following by income ranging from $3,281.55 to $7,668.22 between 1995 and 1999),
$11,906.17 in 2000, $11,846.52 in 2001 and $10,906.25 in 2002. The last three years in which he was
employed, he earned $280.43 in 2003, $43.75 in 2004, and $2,770.44 in 2005. (Tr. 116).
From May 2-5, 2004, Harrell was hospitalized for “infective gastroenteritis”
(inflammation of the lining of the intestines caused by a virus, bacteria, or parasites)6 (Tr.
172-85). The admitting physician, Akhtar Jamil, M.D., noted that Harrell had previously
had surgery for a perforated ulcer in 1992, which involved a partial gastrectomy (surgical
removal of all or part of the stomach)7 (Tr. 172). Harrell was found, on testing, to have
renal salt wasting (inappropriate loss of sodium in the urine)8 (Tr. 172). Harrell received
IV fluids and “gradually his sodium [level] improved” (Tr. 172). He also received antibiotic medications, which were continued after discharge, and he improved (Tr. 173).
During this hospitalization, Harrell was also seen by Charles L. Lett, M.D., who
performed an “upper GI Endoscopy” (Tr. 176)9 to rule out “active peptic ulcer disease
and gastrointestinal bleeding” (Tr. 175). Dr. Lett noted that Harrell suffered from
“gastritis” but found no bleeding or ulcerations (Tr. 176).
Harrell was treated on a number of occasions for abdominal pain and cramps
between December 8, 2008 and June 1, 2010 (Tr. 209-211, 215-220, 250-261, 267-272,
278-279). In addition, treatment notes dated November 17, 2009, indicate that Harrell
“An upper gastrointestinal (UGI) endoscopy is a procedure that allows your doctor to look at the
interior lining of your esophagus, your stomach, and the first part of your small intestine (duodenum)
through a thin, flexible viewing instrument called an endoscope.” http://www.webmd.com/digestivedisorders/upper-gastrointestinal-endoscopy.
complained of a knot on his left flank and was found to have a large grape-sized cyst
diagnosed as a “Lipoma” (Tr. 272). Harrell returned to the clinic on December 7, 2009
with complaints of left sided pain and shortness of breath (Tr. 271). He reported that the
cyst had become larger (Tr. 271). On March 17, 2010, Jim Allen, M.D. noted in his
treatment notes that Harrell had been sent on his last visit to a general surgeon for
evaluation of his Lipoma but he did not keep the appointment because it required a $204
co-pay (Tr. 267).
On June 23, 2010, James O. Colley, M.D., examined Harrell in connection with
his application for benefits. Harrell’s chief complaints were abdominal pain, low back
pain, and bilateral knee pain. He reported that he underwent a partial gastrectomy for
peptic ulcer disease in 1992, and had experienced stomach pain ever since (Tr. 223). He
said that he injured his back at work 15 years previously, and his back pain was always
present (Tr. 224). He complained of bilateral knee pain with swelling, with the right knee
being worse than the left, and attributed his knee pain to a horse kicking his knee 10 years
earlier (Tr. 224). He also complained of poor vision and reported that he needed glasses,
but could not afford them (Tr. 224-25). Dr. Colley performed a Snellen’s test10 and
reported Harrell’s results as “[w]ithout lenses: Left 20/100; right: 20/200 [and] [w]ith
pinhole: Left 20/70; right 20/200” Tr. 225). Dr. Colley further reported that Harrell
“could see fingers correctly with his left eye from five feet away, but was unable to see
A Snellen’s test is a “test for visual acuity using a Snellen chart.” http://www.medicaldictionary.thefreedictionary.com/Snellen+test.
fingers correctly from five feet away with his right eye” (Tr. 225-226). Dr. Colley
diagnosed Harrell as having the following:
• Status post partial gastrectomy in 1992 for peptic ulcer disease complicated
by occasional episodes of gastritis, doubt obstruction; possible right lower
quadrant possible partial small bowel obstruction.
• Mild degenerative disk disease of the lumbosacral spine.
• Mild degenerative joint disease of the right knee.
• Poor visual acuity.
The only Physical Residual Functional Capacity Assessment in the record, which
was completed by a physician, is the assessment by a non-examining state agency
physician, Gregory K. Parker, M.D., completed on July 7, 2010, based upon his review of
Harrell’s medical records (Tr. 230-237). Dr. Parker concluded that Harrell could lift and
carry 20 pounds occasionally and 10 pounds frequently; sit about six hours in an eighthour workday; stand and/or walk about six hours in an eight-hour workday; frequently
balance and climb ramps and stairs; occasionally stoop, kneel, crouch, crawl, and climb
ladders, ropes, and scaffolds; never work in exposure to hazards; and never work in
concentrated exposure to environmental irritants (Tr. 230-32, 234). Dr. Parker also
indicated that Plaintiff could not obtain a driver’s license, read normal print, or make
change because of his inability to accurately identify paper money. He found Plaintiff’s
ability to do near work was limited to very gross tasks requiring handling of large objects
only (Tr. 233).
On July 26, 2010, Harrell underwent a consultative eye examination by Claiborne
Callahan Moore, M.D.11, who reported, in sum, that “with best correction” available,
Harrell could attain a 20/25 in both the right and the left eyes (Tr. 242). Without
correction, Dr. Moore reported that both Harrell’s eyes were 20/200 (Tr. 242). He further
reported that Harrell had “useful binocular vision in all directions” and had an excellent
prognosis “with glasses” (Tr. 242, 243). Attached to this report are two test results , each
of which the examiner reported to be “unreliable test; no pathology on exam to account
for this result” (Tr. 245, 246). Although Dr. Moore recommended glasses, there is no
evidence in the record that glasses were made available or that Harrell could afford to
On June 10, 2011, Donald W. Blanton, Ph.D., examined Harrell at the request of
his attorney (Tr. 281). Harrell’s chief complaint when he presented to Dr. Blanton was
“my stomach” (Tr. 281). He reported to Dr. Blanton that, since his 1992 stomach
surgery, he could not hold food down and often threw up (Tr. 281). He also reported back
and knee pain and that he received shots every six months for his back pain (Tr. 281).
Harrell also advised Dr. Blanton that he had no money for the surgery to remove the knot
of the left side of his body (the Lipoma) or to receive regular medical care (Tr. 281).
Harrell also complained of depression that started after he had to stop working because of
This name is obtained from the Index of Exhibits and the ALJ’s opinion (Tr. 14) because no
discernable name appears on the actual records (Tr. 242-246).
his physical problems (Tr. 281). Dr. Blanton reported that Harrell had a hard time
describing his illness and problems, and “was not a particularly good historian” (Tr. 281).
As to his personal and family history, Harrell did report that both of his parents died
when he was a baby and he was raised by his grandparents (Tr. 281-82). He further
reported that he had two siblings but that one had died of a heart attack in March of 2011,
about three months prior to this examination (Tr. 282). Harrell told Dr. Blanton that he
had stopped school in the eleventh grade, had worked cutting and planting grass on a golf
course for about five years until about five or six years ago (Tr. 282). He reported having
been married once, having four sons and one daughter, and being divorced for about 15
or 20 years (Tr. 282).
With respect to his daily activities, Harrell told Dr. Blanton that he lived with his
ex-mother-in-law, cooked some light meals, did yard work slowly, had a driver’s licence,
and was able to shop and handle money (Tr. 282). He reported spending most of his day
with his sons and dog (Tr. 282).
On examination, Dr. Blanton found that Harrell’s thoughts and conversation were
simple but logical, his associations were intact, and his affect was flat but appropriate (Tr.
282). He did not display any psychomotor retardation and there was no evidence of
hallucinations, delusions, or persecutory type fears (Tr. 282). Although Dr. Blanton
found Harrell to be alert and fully oriented, he observed that Harrell was a “somewhat
anxious appearing man” (Tr. 282). Dr. Blanton also reported that Harrell was “depressed
and he cries often” (Tr. 282). He further concluded that Harrell’s “insight was limited
and judgment was considered fair for work and financial type decisions” (Tr. 282).
Results of administration of the Wechsler Adult Intelligence Scale-Fourth Edition
(WAIS-IV) revealed a full scale Intelligence Quotient (IQ) of 60, indicating mild mental
retardation; a Verbal Comprehension Index (VCI) (formally referred to as Verbal IQ), of
58; and a Perceptual Reasoning Index (PRI) (formerly referred to as Performance IQ), of
65 (Tr. 283).12 Achievement testing showed Harrell’s arithmetic skills were at the 4th
grade level and his reading and spelling skills were at the 1st grade level (Tr. 283). Dr.
Blanton did not perform the Minnesota Multiphasic Personality Inventory, due to
Harrell’s low intellect and poor reading ability (Tr. 284). Dr. Blanton did, however,
perform the Beck Depression Inventory II by providing assistance in reading and reported
Harrell’s resolts as a total score of 26, which placed Harrell in the “moderately depressed
range” (Tr. 284). Dr. Blanton opined that the “depression problems likely related to
chrnic pain and illness” (Tr. 284).
Dr. Blanton’s diagnostic impressions, in accordance with the Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), included the
• AXIS I.
Pain Disorder With Depression.
• AXIS II.
Mild Mental Retardation.
• AXIS III.
Orthopedic Problems, GI Problems.
• AXIS IV.
Dr. Blanton reported that he felt Harrell’s score on the WAIS-IV test was “a valid assessment
of his current level of intellectual functioning as there were no distracting factors during the testing
session and he appeared to put good effort into his work” (Tr. 284).
• AXIS V.
(Tr. 284). Dr. Blanton also concluded that Harrell had marked limitations in
understanding, remembering, and carrying out detailed or complex instructions; using
judgment in detailed or complex work related decisions; and maintaining attention and
concentration and pace for a period of at least two hours (Tr. 284). In Dr. Blanton’s
opinion, Harrell’s depression had been present at the observed level for at least one year
and his mental retardation has existed throughout his life (Tr. 285). He also opined
that Harrell demonstrated deficits in adaptive functioning that manifested prior to age 22
in the areas of communication, self care, work, health safety, and functional academic
skills (Tr. 285).
Vocational Expert’s Testimony.
The ALJ asked the vocational expert, Michael McClanahan, Ph.D., to consider a
hypothetical individual with Harrell’s vocational profile who was limited to jobs with an
SVP14 of one or two that did not require reading or math calculations, who could lift 10
The Global Assessment of Functioning (GAF) Scale describes the overall psychological,
social, and occupational functioning resulting from mental illness, but without inclusion of any impaired
functioning caused by physical or environmental limitations. A GAF score of 51-- 60 indicates moderate
symptoms, or moderate impairment in these areas. Diagnostic and Statistical Manual of Mental Disorders,
American Psychiatric Association, 4th ed.1994, at 32. A global assessment of functioning score of 41-50
represents "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting)
[or] any serious impairment in social, occupational or school functioning (e.g. no friends, unable to keep a
job)." Id. at 32. See also, http://www.gafscore.com.
The Dictionary of Occupational Titles (DOT), in classifying each occupation, has a
category captioned Specific Vocational Preparation (SVP) which “is defined as the amount of lapsed time
required by a typical worker to learn the techniques, acquire the information, and develop the facility
needed for average performance in a specific job-worker situation.” Dictionary of Occupational Titles
1009 (4th ed. 1991). The scale ranges from one to nine with level one requiring only a short
pounds frequently and 20 pounds occasionally; sit for six hours in an eight-hour
workday; stand and walk for four hours in an eight-hour workday; never climb ladders,
ropes, or scaffolds; occasionally balance, stoop, and limb ramps and stairs; infrequently
kneel, crouch, or crawl and who was color blind with poor visual acuity so could not read
normal print or identify paper money, had to avoid hazards, vibration, and temperature
extremes, and was limited to gross tasks with large items (Tr. 46-47). Dr. McClanahan
testified that such an individual could not perform Harrell’s past work, but could perform
other unskilled light jobs, such as production assembler, electronics assembler,
and electronics worker (Tr. 47-48).
The Administrative Law Judge’s Decision.
The ALJ found, in sum, that Harrell was not disabled under the Act (Tr. 7-24). She
determined that he had severe impairments, including a history of partial gastrectomy,
history of peptic ulcer disease with history of upper gastrointestinal bleed, mild
degenerative changes of the lumbosacral spine and right knee, color blindness, and poor
visual acuity correctable by glasses, but that his impairments did not meet or equal the
criteria of any impairment listed at 20 C.F.R. pt. 404, subpt. P, app. 1 (the listings) so as
to be per se disabling (Tr. 12). She then found that Harrell’s subjective complaints were
not fully credible and that he could perform work with limitations consistent with those
the ALJ included in his hypothetical question to the vocational expert (Tr. 13) (compare
demonstration while a level nine occupation requires over ten years of preparation. Id. A surgeon has an
SVP of 9 while a thread-pulling-machine attendant has an SVP of 1. Id. at 070.101-094, 689.686-046.
Tr. 13 with Tr. 46-47). Relying on the testimony of Dr. McClanahan, the vocational
expert’s testimony, the ALJ found Harrell could not perform his past work, but could
perform other work existing in the national economy in significant numbers, such as
production assembler, electronics assembler, and electronics worker (Tr. 19-20). Thus,
the ALJ concluded that Harrell did not meet the Act’s disability criteria, and denied his
claims (Tr. 20).
The ALJ erred in discounting the opinion of plaintiff’s retained
examining consultant, Donald W. Blanton, Ph.D.
Plaintiff argues, in sum, that the ALJ erred in rejecting Dr. Blanton’s opinion
because it was fully supported by the evidence of record and he was the only mental
health professional to examine Harrell and the ALJ may not arbitrarily reject
uncontroverted medical testimony. (Doc. 13 at 3, citing Walden v. Schweiker, 672 F.2d
835, 839 (11th Cir. 1982) (citing Goodley v. Harris, 608 F.2d 234, 236 (5th Cir. 1979));
see also, Flynn v. Heckler, 768 F.2d 1273, 1275 (11th Cir. 1985) (reversing a decision in
which the Administrative Law Judge rejected uncontradicted opinions from two
examining physicians finding that the claimant was totally disabled). Dr. Blanton
examined and tested Harrell on June 10, 2011. The IQ test revealed “a valid full
scale IQ score of 60 and reading and spelling on the first grade level (Tr. 283).” Dr.
Blanton diagnosed “Mild Mental Retardation (Tr. 284).” He also noted that Harrell
“demonstrated adaptive deficits in communication skills, self care skills, work skills,
health safety skills and functional academic skills (Tr. 285).” Consequently, Harrell
further argues that the ALJ’s failure to properly credit Dr. Blanton’s opinion “resulted in
her failure to include mild mental retardation as a severe impairment, her failure to
include any mental limitations in the [RFC], and her failure to consider whether Mr.
Harrell meets Listing 12.05C.” (Doc. 13 at 4).
The Commissioner argues, in sum, that the ALJ properly rejected Dr. Blanton’s
opinion because he was not a treating physician and only met Harrell on one occasion
“at the request of Plaintiff’s attorney.” The Commissioner also argues that Dr.
Blanton’s test results were acknowledged, but the ALJ “gave it very limited weight
because it was not bolstered by the other evidence of record (Tr. 18).” The
Commissioner further notes that the ALJ based her rejection of Dr. Blanton’s
opinion on her finding that Harrell “had a long work history beginning before the
age of 22, . . . took care of himself, cooked meals, shopped, handled money and had a
drivers license (Tr. 18).” The Commissioner further contends that the ALJ’s
rejection of Dr. Blanton’s opinion is supported by the following:
Dr. Blanton, himself, found that [Harrell] was fully alert and oriented
and his thoughts and conversation were logical, his associations were
intact, and his affect was appropriate (Tr. 282).”
The ALJ not only concluded that “no other examining or treating
physician noted any evidence of mental retardation” but that Harrell
“displayed logical thoughts and conversations, and was consistently
able to accurately describe his symptoms and report his medical
history (Tr. 173-75, 186-87, 223-28, 267-69).”
(Doc. 16 at 11). The ALJ’s rationale for rejecting Dr. Blanton’s opinionincludes the
Harrell saw Dr. Blanton on his attorney’s referral to “generate
evidence for the current appeal” and not for treatment.
There is no documented treatment of Harrell for depression and “[his]
activity level has not been significantly impaired by ay [sic] alleged
[Harrell is not mildly mentally retarded because he] “reported having
an 11th grade education” and “School records do not indicate that [he] was in
special education. [His] grades were low and he repeated the ninth grade but
the subjects taken included Biology, Science, and Algebra.”
“The record also shows a significant work history from 1975 to 2005 in
the unskilled category with work activity at the substantial gainful level for
many years. [Harrell] testified that he cooked some light meals. He has a
driver’s license and is able to shop and handle money.”
Although Harrell may have “reported” that he got to the 11th grade, there is no
physical evidence that he did. The only school records in evidence indicate that, in the 8th
grade, he made an “A” in music but made a “D” in social studies and an “F” in English,
math and science but was passed to 9th grade. (Tr. 41, 168) The records further reflect
that, in the 9th grade, he made a “D” in social studies and an “F” in English, algebra and
science and was made to repeat the 9th grade. It appears from the records that Harrell
dropped out of school during this repeat 9th grade since, in lieu of an actual grade, the
school officials recorded only a zero (“0”) as his subject “marks” (Tr. 41, 168). In
addition, the ALJ erred in concluding that there was no evidence that Harrell was in
special education. The records reflect that Harrell was given grades of “S” and “U”
during the 7th grade. (Tr. 41-42, 168). During the August 10, 2011 hearing, the ALJ
agreed that such scores were unusual in the 7th grade. (Tr. 41-42). The ALJ also
acknowledged that , when the grades changed to a scale from “A” to “F” in the 8th grade,
Harrell’s grades “turned to Fs and Ds.” (Tr. 42).15 In addition, no explanation is given
for the fact that the “Cumulative Record” form on which is recorded Harrell’s
“Scholarship Record” sets forth the grading scale solely as: A—Excellent, B—Good,
C—Fair, D—Poor, F—Failure, and I—Incomplete. (Tr. 168). Grades of “S” and “U”
are not defined on this form. (Tr. 168).
While the fact that Harrell has not sought treatment for depression may weigh
against a finding of depression, Dr. Blanton’s diagnosis was based on objective testing as
well as subjective observations. See, Tr. 284 (discussion of results from the Beck
Depression Inventory II, which “placed [Harrell] in the moderately depressed range.”)
The ALJ does not discuss or challenge this test. It could also be reasoned that, inasmuch
as Harrell did not have the funds to obtain the prescription eyeglasses that could correct
his vision problems or obtain his prescription medication at times (Tr. 224-25, 267, 281),
his failure to seek mental health treatment is likely due more to his financial situation
than to a supposition that his depression is nonexistent.
Although the record may show “a significant work history from 1975 to 2005 in
the unskilled category,” such work is not inconsistent with mild mental retardation and
The Commissioner speculated at oral arguments that there may have been other school records
from a different location and school, which would have been Harrell’s obligation to produce. This
contention is, however, inconsistent with the ALJ’s finding that Harrell had “a significant work
history from 1975 to 2005” (Tr. 18).
can be said to have occurred before Harrell’s other physical impairments became severe.
See also, Tr. 116 (sets forth Harrell’s annual earnings for 1975 to 2005).16
The ALJ may discount a medical source opinion for good cause where the medical
source’s opinion was not bolstered by the evidence, or where the evidence supported a
contrary finding. See Holloman v. Colvin, 2013 WL 2903287, *6 (M.D. Ala. June 13,
2013), citing Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also 20 C.F.R.
§§ 404.1527(c)(4) (An ALJ must consider whether an opinion is consistent with the
record as a whole). In this case, Dr. Blanton is the only mental health professional to
examine Harrell. There is no other medical opinion in this record relating to Harrell’s
mental health status. Thus, Dr. Blanton’s opinion is uncontroverted.
Additionally, the ALJ did not question the validity of the I.Q. score but essentially
questioned the presence of adaptive deficits. The ALJ rejected Dr. Blanton’s opinion that
Harrell was mildly mentally retarded on the basis, it seems, that Harrell had an 11th grade
education, was not in special education classes, took Biology, Science and Algebra and,
thereafter worked many years in unskilled jobs. It is, however, obvious that Harrell was
confused during his testimony about how far he had progressed in school (Tr. 40). The
only school records in evidence show that he did not progress past his repeat of the 9th
The most Harrell ever made was $14,790.75 in 1990. In 1975, he only earned $64. The next
year he earned $182.10; then $658.46 in 1977. Thereafter, it was not until 1985 that his earnings rose to a
high of $5,858.54. His annual salary exceeded $10,000 in only six of these “many years” of unskilled
work, which included $10,021.08 in 1989, $14,790.75 in 1990 (followed by a drop to $1116 in 1991, only
$673.76 in 1992 and $4762.56 in 1993), $10,225.49 in 1994 (following by income ranging from
$3281.55 to $7668.22 between 1995 and 1999), $11906.17 in 2000, $11846.52 in 2001 and $10,906.25 in
2002. The last three years in which he was employed, he earned $280.43 in 2003, $43.75 in 2004, and
$2770.44 in 2005. (Tr. 116).
grade first term and, although he took English, science/biology, and math/algebra classes,
he failed all of them.
The ALJ also provided no basis for finding that mild mental retardation precludes
the performance of unskilled work. The Social Security Regulations actually provide that
an IQ of 60 is not itself expected to render an individual completely disabled; an
additional impairment is required. (Listing 12.05C). See also, Durham v. Apfel, 34
F.Supp.2d 1373, 1380 (N.D. Ga. 1998)(“Mr. Durham has worked primarily as a heavy
laborer [and] [t]here is no evidence that these jobs are beyond the reach of a mildly
retarded individual. The ALJ never asked the VE if Mr. Durham's work history was
inconsistent with his low IQ.”); Loveday v. Astrue, 2010 WL 4942740 at *16 (N.D. Fla.
Oct. 22, 2010)(Plaintiff’s work as a laborer, tile setter, and doing lawn work not
inconsistent with diagnosis of mild mental retardation); Cobb v. Barnhart, 296 F.Supp.2d
1295, 1297-98 (N.D. Ala. 2003)(Plaintiff’s work as a cement finisher, a car wash detailer,
and a street sweeper not inconsistent with diagnosis of mild mental retardation). See
also, Burgans v. Astrue, 2010 WL 1254299 at *6 (M.D. Ala. March 26, 2010)(“The mere
fact that Burgans held a job is, as a matter of law, insufficient to rebut the presumption
that her subaverage intellectual functioning manifested before age 22.”). See, Tr. 116
(Harrell’s earning record).
Similarly, the ALJ’s reliance on the fact that Harrell can prepare light meals, has a
driver’s license, is capable of shopping and handling money,17 is insufficient grounds to
reject Dr. Blanton’s assessment. See, Alday v. Astrue, 2009 WL 347722, at *3-7 (N.D.
Fla. Feb. 11, 2009)(Daily activities of having a boyfriend, caring for a dog, sweeping and
doing some laundry, and walking grandchildren to school did not preclude finding of
mild mental retardation), citing Ross v. Apfel, 218 F.3d 844, 849 (8th Cir. 2000)(“The
ability to perform sporadic light activities does not mean that the claimant is able to
perform full time competitive work.”); Lewis v. Callahan, 125 F.3d 1436, 1441 (11th Cir.
1997)(“Nor do we believe that participation in everyday activities of short duration, such
as housework or fishing, disqualifies a claimant from disability or is inconsistent with the
limitations recommended by Lewis's treating physicians.”); Parker v. Bowen, 793 F.2d
1177, 1180 (11th Cir. 1986)(when considering daily activities, the entire record must be
considered, including the claimant's testimony that she had to lie down after two hours of
such work); Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995)( the court must consider
the entire record when determining whether the evidence of a claimant's daily activities is
substantial evidence for the conclusion that she retains the residual functional capacity to
work, and a conclusory citation to a claimant's “daily activities” as a basis for failing to
believe her testimony as to pain was insufficient where there was a medical condition that
See Tr. 282, in which Dr. Blanton reports: “He has a driver’s license and is able to shop and
reasonably could have given rise to the pain described, and, although she testified that she
cooked and shopped for herself, she had trouble putting on her clothing).
For these reasons, this action must be remanded for proper consideration of Dr.
Blanton’s opinion, unless the ALJ on remand determines that Harrell ought to be
examined by an agency medical expert and submit to further testing.
The case must be remanded in order to determine whether
Harrell’s impairment met the requirements of Listing 12.05C.
Listing 12.05C requires, “A valid verbal, performance or full scale IQ score of 60
through 70 and a physical or other mental impairment imposing additional and significant
work-related limitation of function.” (20 CFR 404, Subpart P, Appendix 1, Listing
12.05C.) In this case, Dr. Blanton administered objective IQ and academic achievement
testing, finding a valid full scale IQ score of 60 and reading and spelling skills on the first
grade level. (Tr. 283). Dr. Blanton diagnosed Mild Mental Retardation. (Tr. 284). He
noted Mr. Harrell demonstrated adaptive deficits in communication skills, self care skills,
work skills, health safety skills and functional academic skills. (Tr. 285). For the reasons
set forth with respect to the first issue, Harrell argues that the ALJ erred because “the
evidence supports the presence of adaptive deficits.” (Doc. 13 at 4).
Harrell also argues that the second prong of Listing 12.05C is met because the
ALJ found that Harrell had the following severe impairments: “history of partial
gastrectomy; history of peptic ulcer disease with history of upper gastrointestinal bleed;
mild degenerative disc disease of lumbosacral spine and right knee ; color blind; and poor
visual acuity correctable by glasses.” (Tr. 12). The second prong of Listing 12.05(C)
requires “a physical or other mental impairment imposing additional and significant
work-related limitation of function.” A claimant satisfies the second half of listing
12.05C when the additional impairment’s effect on “a claimant’s ability to perform ‘basic
work activities’ is more than slight or minimal … but less than ‘severe.’” Edwards by
Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir. 1985), Edwards v. Heckler, 736 F.2d
625, 629 (11th Cir. 1984).
Although the ALJ acknowledged Dr. Blanton’s diagnosis of mild mental
retardation, she concluded that Harrell “had not shown deficits in adaptive functioning, as
required to meet Listing 12.05 (Tr. 18).” (Doc. 16 at 13). The Commissioner argues that,
based on the ALJ’s discussion regarding Harrell’s school record, even if deficits exists in
adaptive functioning in the area of functional academic skills, “Plaintiff points to no
evidence of deficits in any of the other skills areas.” (Doc. 16 at 13). The Commissioner
further argues that no such deficits exist because Harrell was able to “communicate his
past medical history and his symptoms to his physicians, well enough to receive
treatment,” he performed his own self care, cooked meals, shopped, handled money, had
a driver’s license, spent time interacting with relatives, and married and had four
children. Id. (record citations omitted). The Commissioner also cites to Harrell’s “prior
work experience.” (Doc. 16 at 14).
For the reasons cited above with respect to the first issue in this case, the
undersigned does not find that the ALJ properly rejected Listing 12.05C. However,
remand would give the ALJ an opportunity to seek a consultative mental health
examination to answer Dr. Blanton’s assessment, which is the only assessment of
Harrell’s mental health status in the record and not inconsistent with any other medical
For the reasons stated above, the Court concludes that the decision of the
Commissioner denying plaintiff’s application for DIB and SSI benefits is not supported
by substantial evidence and it is therefore ORDERED that the case REMANDED for
proper consideration of Dr. Blanton’s opinion, unless the ALJ on remand determines that
Harrell ought to be examined by an agency medical expert and submit to further testing.
In light of the foregoing, and the plain language of sentence four of 42 U.S.C. §
405(g), the undersigned Magistrate Judge recommends that this cause be reversed and
remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. See
Melkonyan v. Sullivan, 501 U.S. 89, 99-102 (1991)(Discussing distinction between
sentence four and sentence six remand under § 405(g)).18 A remand pursuant to
The Supreme Court has held that 42 U.S.C. § 405(g) provides only two kinds of remands: “(1)
remands pursuant to the fourth sentence, and (2) remands pursuant to the sixth sentence.” Melkonyan v.
Sullivan, 501 U.S. 89, 98 (1991). “The fourth sentence of § 405(g) authorizes a court to enter ‘a
judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the
cause for a rehearing’.” (Id.) With respect to sixth sentence of § 405(g), the Supreme Court held:
The district court does not affirm, modify, or reverse the Secretary's decision; it does not rule in
any way as to the correctness of the administrative determination. Rather, the court remands
because new evidence has come to light that was not available to the claimant at the time of the
administrative proceeding and that evidence might have changed the outcome of the prior
proceeding [and] . . . the Secretary must return to the district court to “file with the court any such
additional or modified findings of fact and decision, and a transcript of the additional record and
testimony upon which his action in modifying or affirming was based.”
Id., quoting 42 U.S.C. § 405(g), (internal citation omitted).
sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal
Access to Justice Act, 28 U.S.C. § 2412, and terminates this Court’s jurisdiction over this
matter. See Shalala v. Schaefer, 509 U.S. 292, 297 (1993)(A district court remanding a
case pursuant to sentence four of § 405 must enter judgment in the case and may not
retain jurisdiction over the administrative proceedings on remand.)
6th day of December, 2013.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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