Hogue v. Colvin

Filing 27

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner of Social Security denying plaintiff benefits is REVERSED and REMANDED pursuant to sentence four of 42:405(g). Signed by Magistrate Judge Katherine P. Nelson on 4/29/2014. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
CHRISTOPHER HOGUE,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Civil Action No. 2:13-00375-N

MEMORANDUM OPINION AND ORDER
Plaintiff Christopher Hogue brings this action, pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner
of Social Security denying his application for supplemental security income (“SSI”).
The parties have consented to the exercise of jurisdiction by the undersigned United
States Magistrate Judge for all proceedings in this Court pursuant to 28 U.S.C. §
636(c). (See Doc. 26.)
Upon consideration of the administrative record (“R.”) (Doc. 14), Hogue’s brief
(Docs. 15, 16), the Commissioner’s brief (Doc. 19), and the arguments presented at
the hearing held April 15, 2014 (see Docs. 22, 23, 25), the Court has determined that
the Commissioner’s decision denying Hogue benefits should be REVERSED and
REMANDED for further proceedings not inconsistent with this decision.1

Any appeal taken from this memorandum opinion and order and
simultaneously entered separate judgment shall be made directly to the Eleventh Circuit
Court of Appeals. (See Doc. 26.)
1

I.

Procedural Background

Hogue filed an application for SSI on December 3, 2010 (R. 164-169), alleging
a disability onset date of June 2, 2010 (see R. 164); this date was subsequently
amended (see R. 163) to December 1, 2010.2 His application was initially denied.
(See R. 108-112.)

A hearing was then conducted before an Administrative Law

Judge on April 4, 2012.

(See R. 41-81.)

On May 29, 2012, the ALJ issued a

decision finding Hogue not disabled (R. 10-40), and Hogue sought review from the
Appeals Council. The Appeals Council issued its decision declining to review the
ALJ’s determination on May 24, 2013 (see R. 1-9)—making the ALJ’s determination
the Commissioner’s final decision for purposes of judicial review, see 20 C.F.R. §
404.981—and a complaint was filed in this Court on July 22, 2013 (see Doc. 1).
II.

Standard of Review and Claims on Appeal

In all Social Security cases, a plaintiff (also sometimes referred to herein as a
claimant) bears the burden of proving that he or she is unable to perform his or her
previous work.

Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986).

In

evaluating whether a plaintiff has met this burden, and thus proven that he or she is
disabled, the examiner (most often an ALJ) must consider the following four factors:
(1) objective medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the plaintiff’s age, education, and work
history. Id. An ALJ, in turn,

Hogue was previously found to be disabled for a closed period of time, from
December 25, 2008 through June 1, 2010. (See R. 94-104.)
2

2

uses a five-step sequential evaluation to determine whether the
[plaintiff] is disabled, which considers: (1) whether the claimant is
engaged in substantial gainful activity; (2) if not, whether the claimant
has a severe impairment; (3) if so, whether the severe impairment
meets or equals an impairment in the Listing of Impairments in the
regulations; (4) if not, whether the claimant has the [residual functional
capacity, or] RFC[,] to perform her past relevant work; and (5) if not,
whether, in light of the claimant’s RFC, age, education and work
experience, there are other jobs the claimant can perform.
Watkins v. Commissioner of Soc. Sec., 457 Fed. App’x 868, 870 (11th Cir. Feb. 9,
2012) (per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f);
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted).
If a plaintiff proves that he or she cannot do his or her past relevant work, it
then becomes the Commissioner’s burden to prove that the plaintiff is
capable—given his or her age, education, and work history—of engaging in another
kind of substantial gainful employment that exists in the national economy.

Id.;

Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999); Sryock v. Heckler, 764 F.2d 834,
836 (11th Cir. 1985). Finally, but importantly, although “the [plaintiff] bears the
burden of demonstrating the inability to return to [his or] her past relevant work,
the Commissioner of Social Security has an obligation to develop a full and fair
record.”

Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).

The task for this Court, then, is to determine whether the Commissioner’s
decision to deny a plaintiff benefits is supported by substantial evidence.
Substantial evidence is defined as more than a scintilla, and means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

3

“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.”
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

Courts are precluded,

however, from “deciding the facts anew or re-weighing the evidence.”

Davison v.

Astrue, 370 Fed. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).

And, “[e]ven if the evidence

preponderates against the Commissioner’s findings, [a court] must affirm if the
decision reached is supported by substantial evidence.”

Id. (citing Crawford v.

Commissioner of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)) (emphasis
added).
On appeal to this Court, Hogue claims two reasons require a finding that the
Commissioner’s decision to deny him benefits is in error (i.e., is not supported by
substantial evidence):
(1)

The ALJ erred by rejecting the January 31, 2012 opinion of Hogue’s
treating physician, Dr. Timberlake; and

(2)

The ALJ erred by rejecting the opinion of Dr. Blanton regarding
Hogue’s cognitive limitations and, accordingly, failed to find he meets
Listing 12.05C.

The Court finds that Hogue’s second asserted error requires remand to the
Commissioner. There is therefore no need to consider his first claim. Cf. Salter v.
Astrue, No. CA 11–00681–C, 2012 WL 3817791, at *2 (S.D. Ala. Sept. 4, 2012)
(“Because the Court determines that the decision of the Commissioner should be
reversed and remanded for further proceedings based on the plaintiff’s second claim,
regarding the RFC determination, there is no need for the Court to consider the
4

plaintiff’s other claims.” (citing Robinson v. Massanari, 176 F. Supp. 2d 1278, 1280 &
n.2 (S.D. Ala. 2001); Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985)
(“Because the ‘misuse of the expert’s testimony alone warrants reversal,’ we do not
consider the appellant’s other claims.”))).
III.

Analysis

As to the ALJ’s consideration of Hogue’s cognitive limitations, in sum, Hogue
asserts that, in light of the opinion of Dr. Donald Blanton (R. 288-291), the ALJ erred
by not considering whether Hogue meets Listing 12.05(C).
A.

Listings Generally.

At the third step of the sequential evaluation, the ALJ found that Hogue “does
not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 . . . .”

(R. 15.)

Pertinent to the issue now before the Court, the ALJ

also noted
with regard to the psychological limitations, the severity of [Hogue’s]
mental impairment does not meet or medically equal the criteria of
listings 12.02, 12.04, 12.06, and 12.07. The 12.07 listing is used
because an examining psychologist[3] diagnosed pain disorder based on
observations of over concern about the knee issues. Listing 12.02,
rather than 12.05 was used because while there is some evidence of
intellectual limitations, there is evidence of adaptive functioning
not consistent with use of 12.05.
(R. 15-16 (emphasis added).)
“A claimant is conclusively presumed to be disabled if he meets or equals the
At oral argument, counsel for Hogue clarified that Dr. Blanton is not a
psychologist, but is rather a licensed professional counselor and a psychometrist.
3

5

level of severity of a listed impairment, or Listing.”

Perkins v. Commissioner, Soc.

Sec. Admin., --- Fed. App’x ----, 2014 WL 223905, at *1 (11th Cir. Jan. 22, 2014) (per
curiam) (citing Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997)). Under
the law of this Circuit, a claimant bears the burden of proving that he or she has
an impairment that meets or is medically equivalent to a listed impairment. See
Bell v. Bowen, 796 F.2d 1350, 1353 (11th Cir. 1986) (“We hold that when a claimant
contends that he has an impairment meeting the listed impairments entitling him to
an adjudication of disability under regulation 404.1520(d), he must present specific
medical findings that meet the various tests listed under the description of the
applicable impairment or, if in the alternative he contends that he has an
impairment which is equal to one of the listed impairments, the claimant must
present medical evidence which describes how the impairment has such an
equivalency.”); accord Perkins, 2014 WL 223905, at *1 (“The claimant bears the
burden of demonstrating that he meets a Listing.” (citing Barron v. Sullivan, 924
F.2d 227, 229 (11th Cir.1991))); see also Wilson v. Barnhart, 284 F.3d 1219, 1224
(11th Cir. 2002) (“To ‘meet’ a Listing, a claimant must have a diagnosis included in
the Listings and must provide medical reports documenting that the conditions meet
the specific criteria of the Listings and the duration requirement. . . . To ‘equal’ a
Listing, the medical findings must be ‘at least equal in severity and duration to the
listed findings.’”).
B.

Listing 12.05(C).

To establish presumptive disability under section 12.05(C), a claimant must
6

present evidence of “[a] valid verbal, performance, or full scale IQ of 60 through 70
and a physical or other mental impairment imposing additional and significant
work-related limitation of function[,]” 20 C.F.R. Part 404, Subpart P, Appendix 1 §
12.05(C),4 and “also satisfy the ‘diagnostic description’ of mental retardation in
Listing 12.05[,]”5 Cooper v. Commissioner of Soc. Sec., 217 Fed. App’x 450, 452 (6th
Cir. Feb. 15, 2007) (citing Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001)); see also
Grant v. Astrue, 255 Fed. App’x 374, 375 (11th Cir. Nov. 13, 2007) (per curiam) (“The
mental retardation Impairment Listing in § 12.05C requires the claimant to
demonstrate [1] a ‘significant subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested during the development
period; i.e., the evidence demonstrates or supports onset of the impairment before

Several of the various tests for determining IQ scores have been modified
since the Listings were created. See, e.g., Isaac ex rel. J.D.M. v. Astrue, No. 1:12–97–C,
2012 WL 5373435, at *4 (S.D. Ala. Oct. 30, 2012). For example, the Wechsler Adult
Intelligence Scale (the “WAIS”), one common test—and the test used in this case—is now on
the fourth edition (the “WAIS-IV”). While the WAIS-IV continues to measure “full scale
IQ,” it no longer measures verbal IQ or performance IQ per se. Instead, a verbal
comprehension index score is the functional equivalent of verbal IQ, and a perceptual
reasoning index score is the functional equivalent of performance IQ. See Thibeault v.
Commissioner of Soc. Sec., No. 8:13–cv–586–T–MCR, 2013 WL 6498390, at *5 (M.D. Fla.
Dec. 11, 2013) (citing Martin v. Commissioner of Soc. Sec., No. SAG–12–1130, 2013 WL
4512071, at *2 (D. Md. Aug. 22, 2013); Smith v. Astrue, No. 11–948–CJP, 2012 WL 2990064,
at *3 (S.D. Ill. July 20, 2012)).
4

“Mental 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. “‘Adaptive functioning’
refers to a person’s ability to perform activities of daily living and social functioning.”
Fischer v. Barnhart, 129 Fed. App’x 297, 301-02 (7th Cir. Feb. 11, 2005) (citation omitted).
And, in this Circuit, a claimant who presents a valid IQ score of 60 to 70 is entitled to the
presumption that he manifested deficits in adaptive functioning before the age of 22. See
Hodges v. Barnhart, 276 F.3d 1265, 1266, 1268-69 (11th Cir. 2001).
5

7

age 22,’ as well as [2] a ‘valid verbal, performance, or full scale IQ of 60 through 70
and [3] a physical or other mental impairment imposing an additional and
significant work-related limitation of function.’” (quoting §§ 12.00A, 12.05, 12.05(C))
(emphasis added)).
Presumptive disability pursuant to Listing 12.05(C) is rebuttable, however,
and the Commissioner is charged with determining whether there is sufficient
evidence to rebut the presumption. Perkins, 2014 WL 223905, at *2 (“A valid IQ
score does not have to be conclusive of mental retardation where the IQ score is
inconsistent with other record evidence regarding the claimant’s daily living
activities and behavior.”).6

For example, in Lowery v. Sullivan, 979 F.2d 835 (11th

Cir. 1992), the Eleventh Circuit recognized that a valid IQ score is not necessarily
conclusive of mental retardation where the score is inconsistent with other evidence
of a claimant’s daily activities, see id. at 837. And in the context of 12.05(C), the
Eleventh Circuit held:
To 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. See 20 C.F.R. Part 404, Subpart P, Appendix 1
§ 12.05(C) (1992). . . .
Generally, a claimant meets the criteria for presumptive disability
under section 12.05(C) when the claimant presents a valid I.Q. score of
60 to 70 inclusive, and evidence of an additional mental or physical
In Perkins, the Eleventh Circuit made it clear that an ALJ may “consider
evidence of [a claimant’s] work experience and adaptive functioning.” Id.; see id. at *3
(noting Perkins’s past work was classified as skilled or semiskilled and included managing
others).
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8

impairment that has more than “minimal effect” on the claimant’s
ability to perform basic work activities. See Edwards by Edwards v.
Heckler, 755 F.2d 1513, 1517 (11th Cir. 1985). This court, however,
has recognized that a valid I.Q. score need not be conclusive of
mental retardation where the I.Q. score is inconsistent with other
evidence in the record on the claimant’s daily activities and behavior.
Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986) (rejecting a claim
of section 12.05(C) mental retardation where the claimant’s I.Q. score
of 69 was inconsistent with evidence that he had a two-year college
associate’s degree, was enrolled in a third year of college as a
history major, and had worked in various technical jobs such as
an administrative clerk, statistical clerk, and an algebra
teacher).
Id. at 837 (emphasis added).
C.

Hogue presumptively meets Listing 12.05(C).

Here, the ALJ recognized the following severe impairments: pain disorder
with anxiety and depression; limited intellectual functioning capacity; and left knee
status post cartilage replacement surgery. (See R. 15.) Thus, Hogue has physical
or other mental impairments that impose an additional and significant
work-related limitation of function.

See Edwards, 755 F.2d at 1515 (“That

‘significant’ involves something more than ‘minimal’ but less than ‘severe’ follows
from the regulations. . . . The impairment referred to in § 12.05(C) is something less
than ‘severe’ as defined in § 404.1520(c).” (citations omitted)); see also Grisby v.
Astrue, No. CV 11–06355–MAN, 2012 WL 3029766, at *4 (C.D. Cal. July 24, 2012)
(“By finding this impairment to be ‘severe,’ the ALJ necessarily concluded that this
impairment has more ‘than a minimal effect on [plaintiff’s] ability to work.’” (quoting
Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996))); cf. R. 35 (“Dr. Blanton
diagnosed [Hogue] with mild anxiety and depression, which I have accepted as

9

severe.”). Hogue has also presented a valid full scale IQ score of 67.7

(See R. 290).

And it is the opinion of Dr. Blanton that Hogue has mild mental retardation and
deficits in adaptive functioning in communication, work, and functional academic
skills. (See R. 291.) Thus, Hogue has carried his “burden of demonstrating that he
meets a Listing[,]” Listing 12.05(C), Perkins, 2014 WL 223905, at *1, and “is entitled
to [the rebuttable] presumption” of disability. Frank v. Astrue, No. CA 2:11–00215–
C, 2011 WL 6111692, at *4 (S.D. Ala. Dec. 8, 2011) (“[I]t is clearly error to not
consider Listing 12.05(C) and, given the evidence before the ALJ, first find that a
claimant is presumptively disabled. Under the correct framework—which the ALJ
should apply on remand—the plaintiff is entitled to this presumption and the
burden falls on the Commissioner to rebut it.”).
D.

Because Hogue has carried his burden to demonstrate he meets
Listing 12.05(C), the ALJ’s failure to explicitly address the
Listing—acknowledge its applicability and consider whether
sufficient
evidence
rebuts
the
presumption
of
disability—requires remand.

As stated above, at step three of the sequential evaluation here, the ALJ
neither directly analyzed whether Hogue meets or equals the level of severity of
Listing 12.05(C) nor, consequently, did she directly present evidence to rebut the
presumption that he meets or equals that listing.

Instead, she stated she

The ALJ acknowledged that a full scale IQ score of 67 “placed [Hogue] in the
mild range of mental retardation” (R. 31), and while she did not directly question the
validity of Dr. Blanton’s testing, she did state that “the evaluation starts out demonstrating
that it is not fully credible” either because of a misstatement by Hogue or misunderstanding
by Dr. Blanton (R. 30). This apparent critique of Dr. Blanton’s report and opinion appears
to be undercut, however, by the ALJ’s decision to then “assign[] significant weight to Dr.
Blanton’s opinion.” (R. 35.)
7

10

considered “Listing 12.02, rather than 12.05 . . . because while there is some
evidence of intellectual limitations, there is evidence of adaptive functioning not
consistent with . . . 12.05” and that this decision would be “discuss[ed ] at greater
length below.”

(R. 16.) She then waits to her lengthy step four discussion (R.

17-35) to analyze the only IQ testing in the record, Dr. Blanton’s (see R. 30-33).
It has been held that “[b]y conflating the sequence, [an] ALJ undermine[s] the
reasons behind having an analysis of five separate steps.”

Mims v. Astrue, 701 F.

Supp. 2d 892, 906 (S.D. Tex. 2010). That may be true. Certainly, the failure of the
ALJ here to address Listing 12.05(C) head on at the third step and, instead, attempt
to address Dr. Blanton’s opinion—the evidence signaling the need to consider that
listing—in the context of her step-four RFC determination is confusing and makes
her decision difficult for a reviewing court to follow.

The ALJ should have discussed

the IQ testing as well as the evidence of adaptive functioning she contends belies
Hogue’s IQ score at the third step of the sequential evaluation.

She instead

appears to use Hogue’s adaptive skills (as well as his deficits, as noted in Dr.
Blanton’s opinion) at the fourth step, to shape the RFC. (See, e.g., R. at 34-35.8)
8

Among other things, the ALJ observed,

Dr. Blanton did state that [Hogue’s] mental retardation has been present
throughout his lifetime, and that [Hogue’s] emotional problems were likely to
increase if he was placed under stress especially that of a job [sic]. I reduced
[Hogue] to simple work as a result. . . . Furthermore, Dr. Blanton offered that
[Hogue] had marked limitations that seriously interfere with his ability ot
perform work related to activities on a day-to-day basis in a regular work
setting in understanding, carrying out, and remembering detailed or
complex instructions. He did not preclude simple work. . . .
(Id. (emphasis provided by the ALJ).)

11

This failure to apply “the correct framework” is error, which is not harmless because
it prevents the undersigned from determining whether the ALJ’s conclusions at the
third step are supported by substantial evidence.

Frank, 2011 WL 6111692, at *4.

Furthermore, although the ALJ considers the applicability of other Listings
(see R. 15-17), her failure to specifically address—and make specific findings as
to—Listing 12.05(C) is also an error requiring remand.

Compare Foster v. Astrue,

No. C 11–3063–MWB, 2012 WL 5386382, at *4-5 (N.D. Iowa Nov. 1, 2012) (although
“the ALJ expressly addressed Listings 12.02 (organic mental disorder) and 12.04
(affective disorder), [the ALJ] did not address Listing 12.05C,” which was in error
because the plaintiff “clearly [met] or equal[ed] two of the three criteria under
Listing 12.05C” and there was “evidence that may support a finding that [he met]
the third criterion”; the court remanded, instructing the ALJ to “conduct an analysis
of Listing 12.05C and make specific findings concerning Listing 12.05C”
(emphasis added)), with Dexter v. Astrue, No. 2:11–cv–213–GZS, 2012 WL 1636267,
at *2 (D. Me. May 6, 2012) (error for an ALJ not to mention specific listing being
considered, which is not harmless if “combined with a perfunctory analysis” (quoting
Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006))).
E.

Even if the Court accepted the ALJ’s implicit Listing 12.05(C)
analysis, the adaptive skills she identifies are not necessarily
inconsistent with Hogue’s IQ score and, thus, are not sufficient
evidence to rebut the presumption of disability.

Assuming this Court may review the adaptive functioning the ALJ discussed
at step four—presumably the reason why she did evaluate Hogue pursuant to
Listing 12.05(C) at step three (see R. 16)—the adaptive skills the ALJ
12

(non-conclusorily) identified are not necessarily inconsistent with Hogue’s IQ score.
The ALJ identifies the following adaptive skills (R. 32):
•

Hogue “has friends and a girlfriend and [ ] has no difficulties in this
regard.
Thus he has exhibited no adaptive deficit in forming
relationships.”

•

The vocational expert’s testimony regarding Hogue’s past work history
is “not consistent with the conclusion of mental retardation.”9

•

Hogue “shops and knows how to handle money, which also is
inconsistent with a finding of adaptive deficits.”10

•

Hogue “knows how to prepare meals and do household chores. He
takes care of his son, which shows he has made adaptations in
functioning that are more significant than having responsibility for just
himself.”

•

Hogue previously played video games and used Facebook.

Elsewhere, the ALJ discussed that Hogue worked as a lifeguard, but cited
Hogue’s testimony that he never took the CPR test. (R. 19-20.) She also cited the
fact Hogue has a driver’s license (R. 31), and further observed that Hogue “is a well
spoken young man who, though he may not enjoy the written word as a medium of
communication, is nonetheless capable of it. . . .”

(R. 32.)

It is also very relevant

that Hogue repeated the fifth, sixth, and seventh grades before dropping out of
school during his second attempt at seventh grade. (See R. 224-225).
As indicated above, Listing 12.05(C) claims of mental retardation may be

9

The VE classified Hogue’s past relevant work as semi-skilled.

(See R. 72.)

Although Hogue agreed with the ALJ that when he did have money, he would
shop, he also testified that he has never had a checkbook or debit card. (See R. 49-50.) He
also testified that his father opened a checking account for him and that his father’s name
was also on the account. (See R. 50.)
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13

rejected where a claimant’s score is inconsistent with other evidence in the record.
See Lowey, 979 F.2d at 837 (citing Popp, 779 F.2d at 1499 (noting that in addition to
the IQ score, it is also appropriate to consider other evidence in the record, such as
medical reports, daily activities, and behavior)).

While “Popp is perhaps the

strongest case for finding that an IQ score below 70 does not necessarily meet
Listing 12.05C[, t]here are several other [decisions from courts in this Circuit] with
facts somewhat like Popp.”

Loveday v. Astrue, No. 1:10cv14-MP/WCS, 2010 WL

4942740, at *14 (N.D. Fla. Oct. 22, 2010), report & recommendation adopted by 2010
WL 4942733 (N.D. Fla. Nov 23, 2010).
From a previous review by this Court of decisions similar to Popp—in
Magistrate Judge Cassady’s decision in Frank, see 2011 WL 6111692, at *4-6—it is
apparent that the adaptive skills identified by the ALJ here are not necessarily
inconsistent with Hogue’s IQ score and, thus, are not sufficient evidence to rebut the
presumption of disability.
First, while a plaintiff’s relatively high level of educational attainment
(including vocational training) may be inconsistent with an IQ reflecting mental
retardation, Hogue’s level of education (dropping out in the seventh grade) is not
inconsistent with an IQ score of 70 or below. Next, past work requiring a level of
skill inconsistent with an IQ reflecting mental retardation undercuts such an IQ.
Examples of such work include managerial, supervisory, and technical positions.
Hogue’s past relevant work does not appear to be similar to such positions, as those
positions were discussed in Bischoff v. Astrue, No. 07-60969-CIV, 2008 WL 4541118,
14

at *20 (S.D. Fla. Oct 9, 2008) and Davis v. Astrue, Civil Action No. 2:07cv880-TFM,
2008 WL 2939523, at *3 (M.D. Ala. Jul 25, 2008); see also Perkins v. Colvin, No.
1:11–cv–182 (WLS), 2013 WL 997466, at *1-2 (M.D. Ga. Mar. 13, 2013), aff’d --- Fed.
App’x ----, 2014 WL 223905 (11th Cir. Jan. 22, 2014) (per curiam) (substantial
evidence supported Commissioner’s finding that Listing 12.05(C) not met where
“Plaintiff had substantial responsibilities and, by his own admission, took inventory,
managed other employees, and cooked and prepared food”).
Further, the ability to perform tasks required for or indicative of independent
living, standing alone, is not inconsistent with IQ scores lower than 70.

See Alday

v. Astrue, No. 5:08cv217-SPM/WCS, 2009 WL 347722, at *3-7 (N.D. Fla. Feb. 11,
2009) (rejecting the ALJ’s reliance on evidence that the claimant had a boyfriend, did
housework, took care of a pet, and helped with her grandchildren); Black v. Astrue,
678 F. Supp. 2d 1250, 1261 (N.D. Fla. 2010) (rejecting ALJ’s reliance on evidence
that the claimant could drive a motor vehicle for short distances, cook, take care of
her personal needs, and handle cash without a bank account).
Finally, Frank identified cases where there was evidence a plaintiff was
malingering during the IQ testing and where there was also a determination in the
record that a plaintiff was in the borderline level of intellectual functioning rather
that mildly retarded.11

As to Hogue, there is neither evidence of malingering nor a

See also Smith v. Commissioner of Soc. Sec., 535 Fed. App’x 894, 897 (11th
Cir. Sept. 11, 2013) (per curiam) (“[T]he record supports the conclusion that, due to her
limited effort during examination and apparent fatigue, Smith’s IQ scores were not valid
and underestimated her actual level of functioning. . . . [E]ven though even though she was
diagnosed with possible borderline intellectual functioning, this diagnosis alone was
11

15

determination (i.e., by a medical professional) other than that of mild mental
retardation.
IV.

Conclusion

It is accordingly ORDERED that the decision of the Commissioner of Social
Security denying Hogue benefits be REVERSED and REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for
further proceedings not inconsistent with this decision. The remand pursuant to
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, see Shalala v. Schaefer, 509 U.S. 292
(1993), and terminates this Court’s jurisdiction over this matter.

DONE and ORDERED this the 29th day of April, 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

insufficient to meet the criteria of Listing 12.05(C).”); Hickel v. Commissioner of Soc. Sec.,
539 Fed. App’x 980, 983-85 (11th Cir. Oct. 28, 2013) (per curiam) (“[T]hree medical sources . .
. all determined based on Hickel’s better-than-expected functional capacity that Hickel’s
mental impairment was more consistent with borderline intellectual functioning than mild
mental retardation.”); Siron v. Commissioner, Soc. Sec. Admin., --- Fed. App’x ----, 2014 WL
595287, at *2 (11th Cir. Feb. 18, 2014) (per curiam) (“[T]he evidence presented in cases
where we affirmed an ALJ’s rejection of an IQ score overwhelmingly indicated that the
claimant was not mentally retarded and likely attempted to tailor results to effect a desired
outcome, which is not the case here.”) (reversing and remanding district court decision
affirming Commissioner).

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