Acoff v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner be REVERSED and that this action be REMANDED for further administrative proceedings not inconsistent with this Order, as further set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 8/9/2016. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
MALIKA DANIELS ACOFF,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 15-0644-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling
denying a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 11).

The parties filed written consent and this

action was referred to the undersigned Magistrate Judge to
conduct all proceedings and order judgment in accordance with 28
U.S.C. § 636(c), Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b)
(see Doc. 11).

Oral argument was heard on August 9, 2016.

After considering the administrative record, the memoranda of
the parties, and oral argument, it is ORDERED that the decision
of the Commissioner be REVERSED and that this action be REMANDED
for further administrative proceedings not inconsistent with
this Order.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and

1

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).

Substantial

evidence 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 most recent administrative
determination, Acoff was twenty-eight years old, had completed
an eighth-grade education (Tr. 549), and had no relevant
previous work experience (Tr. 521).

Plaintiff alleges

disability due to intellectual disability, attention deficit
disorder, cluster B personality disorder, depressive disorder,
psychosis NOS, folliculitis decalvans, headache disorder, and
peripheral vascular disease (Doc. 11 Fact Sheet).
The Plaintiff applied for SSI on October 25, 2005,
asserting a disability onset date of October 1, 2005 (see Tr.
27; Tr. 221-23).

An Administrative Law Judge (hereinafter ALJ)

denied her benefits, determining that Acoff could perform
specific light work jobs (Tr. 97-107).

Plaintiff requested

review of the hearing decision by the Appeals Council (see Tr.
27, 156-61).
While that review was pending, Acoff filed a new SSI

2

application (Tr. 241-44).

On May 8, 2009, the State agency

found Plaintiff disabled as of April 6, 2009 on her second
application (see Tr. 27).
On October 26, 2009, on review of the first SSI
application, the Appeals Council entered an order that combined
the two applications and remanded them to an ALJ to gather
additional evidence and reconcile the two decisions (Tr. 11718).

On March 24, 2011, the ALJ found that in spite of her

severe impairments, Acoff was not disabled and could work, with
some limitations; he named specific light and medium jobs that
she could perform (Tr. 599-624).

The Appeals Council denied

Plaintiff’s request for review (Tr. 1-5).
Acoff filed a civil action in the United States District
Court for the Middle District of Alabama.

On March 6, 2014,

United States Magistrate Judge Wallace Capel, Jr. found that the
ALJ had failed to properly consider whether Plaintiff had met
the requirements of Listing 12.05; the action was remanded for
further proceedings and judgment was entered (Tr. 631-41).
On August 27, 2015, the ALJ, on remand, found that Acoff
had multiple severe impairments, but that she was not disabled
and could perform specific light- and medium-exertion level jobs
(Tr. 480-523).

He specifically found that she did not meet the

requirements of Listing 12.05 (Tr. 518).
Plaintiff brought this action, claiming that the opinion of

3

the ALJ is not supported by substantial evidence.
Acoff alleges that:

Specifically,

(1) She meets the requirements of Listing

12.05; and (2) the ALJ did not properly explain how he chose the
evidence upon which he relied (Doc. 11).

Defendant has

responded to—and denies—these claims (Doc. 14).

The Court’s

summary of the relevant evidence of record follows.
On October 3, 2005, Acoff went to Cahaba Center for Mental
Health, reporting depression and several childhood problems; the
Therapist noted poor self-esteem and judgment (Tr. 340).
(Tr. 338-43).

On October 24, Plaintiff reported being in

special classes as a child and the reason she quit school; she
was taking GED classes, but could not sit still or concentrate
(Tr. 339).

She had been to a job fair (id.).

On November 7,

Psychiatrist Winston Pineda examined Acoff and noted depressed
affect, but no evidence of a thought disorder; memory and
concentration were grossly intact (Tr. 341-42).

The Doctor

estimated her intellectual functioning to be below average to
borderline.

Pineda’s assessment was to rule out depressive

disorder NOS and rule out attention deficit disorder; he
prescribed Ritalin.1
On February 8, 2006, at the request of the Social Security
Administration (hereinafter SSA), Psychologist Nina E. Tocci

1Error! Main Document Only.“Ritalin is a mild central nervous system

stimulant” used to treat Attention Deficit Disorders.
Desk Reference 1896-98 (52nd ed. 1998).

4

Physician's

examined Acoff who was oriented in four spheres; she had fair
attention and poor concentration (Tr. 345-47).

Plaintiff had a

poor fund of information and comprehension; she had scattered
thought organization though content was appropriate to mood and
circumstances.

Acoff reported difficulty sleeping and daily

crying; she had poor insight and only fair social judgment.
Tocci found her functioning within the mentally retarded range
of intellectual ability.

The Psychologist administered the

Wechsler Adult Intelligence Scale-Third Edition (hereinafter
WAIS-III) on which Plaintiff achieved a verbal scale IQ of 61, a
performance scale IQ of 55, and a Full Scale IQ of 54,
classified to be in the mentally retarded range.

Though Acoff

was distracted and impatient during the test, Tocci said her
effort was fair and she considered the test results to be valid;
she indicated, however, that her scores could be depressed by
her emotional status.

The Psychologist diagnosed Plaintiff to

have depressive disorder NOS and mental retardation and
suggested she had a GAF of 65;2 she thought Acoff’s prognosis was
poor.
On February 28, at the request of SSA, Psychologist Eugene
E. Fleece reviewed the record as of that time and, without

2A GAF score between 61 and 70 indicates “[s]ome symptoms OR some

difficulty in social, occupational, or school functioning, but
generally functioning pretty well, has some meaningful interpersonal
relationships.” See
https://depts.washington.edu/washinst/Resources/CGAS/GAF%20Index.htm

5

benefit of examining Acoff, expressed the opinion that the IQ
tests were unreliable and that Plaintiff might be malingering
(Tr. 348).

Fleece went on to complete a Psychiatric Review

Technique Form indicating that Acoff could suffer from a
depressive disorder, NOS, but that mental retardation could be
ruled out; the Psychologist found her to have moderate
limitations in her daily living activities, maintaining social
functioning, and in maintaining concentration, persistence, or
pace (Tr. 349-62).

Fleece also completed a Mental Residual

Functional Capacity (hereinafter RFC) Assessment in which he
indicated that Plaintiff had a number of moderate limitations
but that she was markedly limited in her ability to understand,
remember, and carry out detailed instructions (Tr. 363-66).
On March 1, 2006, Doctor Peter A. Szmurlo at Cahaba Center
noted that Acoff was not on any medication, but that she could
not afford it; the Ritalin did not help when she was taking it
(Tr. 385).

Cymbalta was prescribed.3

On April 27, Plaintiff

reported taking her medicines and doing ok, though she was angry
all the time; the diagnosis was major depression (Tr. 384).

On

January 25, 2007, Acoff reported being off of her medications
for two months (Tr. 383).

On January 29, Plaintiff returned and

complained of depression and anxiety and reported medication

3Cymbalta is used in the treatment of major depressive disorder.

Error! Main Document Only.Physician's Desk Reference 1791-93 (62nd ed.
2008).

6

non-compliance (Tr. 391).

On February 14, Psychiatrist Timothy

Baltz examined Acoff who reported being out of medications for a
couple of weeks; she was depressed (Tr. 382).
On March 19, Acoff reported to the Cahaba Center that she
was doing much better since restarting her medications (Tr.
389).

On May 14, she reported being depressed, irritable all

the time, and angry; Plaintiff reported being calmer when she
took her medication (Tr. 381, 388).

On September 11, Plaintiff

brought back depression medications and asked to be put back on
her Cymbalta (Tr. 380).

On October 30, Plaintiff returned to

Cahaba Center, articulating depression, anxiety, and
irritability (Tr. 403).

On November 8, Dr. Baltz examined Acoff

who reported being depressed and suicidal as well as violent
with her husband; Baltz diagnosed her to have dysthymic
disorder, indicated a possible cluster B personality disorder,
and prescribed an antipsychotic, Cymbalta, and a sedative (Tr.
399).

On February 18, 2008, the Psychiatrist reported

Plaintiff’s mood swings, insomnia, and thoughts of hurting
herself or others; he changed her antipsychotic medication to
Geodon4 and prescribed Ambien5 (Tr. 429).

On that same day,

February 18, 2008, Psychiatrist Baltz completed a form

4Geodon is used in the treatment of schizophrenia.

Error! Main
Document Only.Physician's Desk Reference 2507-09 (62nd ed. 2008).
5AmbienError! Main Document Only. is a class four narcotic used

for the short-term treatment of insomnia. Physician's Desk Reference
2799 (62nd ed. 2008).

7

indicating that Acoff had a number of moderate limitations, but
that she was markedly limited in her ability to do the
following:

get along with co-workers or peers; understand,

remember, and carry out complex instructions; maintain regular
attendance and be punctual within customary tolerances; complete
a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods;
respond appropriately to supervision; and respond appropriately
to changes in the work setting (Tr. 374-76).

It was Baltz’s

opinion that these limitations had existed for more than a year.
On April 14, Acoff reported sleeping better but was still
stressed, angry, and emotional (Tr. 428).

Eight days later,

Plaintiff complained that her medicine was making her sick;
Prolixin6 and Xanax7 were prescribed (Tr. 427).

On July 14,

Acoff reported that she had been off of her medications for a
month, but had started taking them again and was doing better
(Tr. 426).

On October 13, she had quit taking Cymbalta and

Xanax; Dr. Baltz prescribed Trazodone8 (Tr. 425).

He added

6Error! Main Document Only.Prolixin “is an antipsychotic medication

used to treat schizophrenia and psychotic symptoms such as
hallucinations, delusions, and hostility.” See
http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a682172.html
7Error! Main Document Only.Xanax is a class four narcotic used for

the management of anxiety disorders. Physician's Desk Reference 2294
(52nd ed. 1998).
8Error! Main Document Only.Trazodone is used for the treatment of

8

“psychotic disorder NOS, maybe schizophrenic prodrome” to her
diagnosis.

On April 2, 2009, Psychiatrist Baltz noted that

Acoff indicated increased depression (Tr. 423).
On May 1, John R. Goff, Neuropsychologist, after reviewing
certain—but not all—records provided to him by Plaintiff’s
Attorney, completed a report detailing fallacies in the
evaluation of Acoff’s mental impairments by various sources (Tr.
408-12).

Goff’s report indicated that Acoff could be mentally

retarded, but that a full and proper evaluation had not been
completed.
On May 7, Psychologist Fleece, again without benefit of
examination, completed a Psychiatric Review Technique form based
on the evidence of record in which he indicated that Acoff
suffered from psychosis NOS, dysthymic disorder, and a cluster B
personality disorder (Tr. 451-64).

He indicated Plaintiff had

marked difficulties in maintaining concentration, persistence,
or pace and moderate limitations in daily living activities and
in maintaining social functioning.

Fleece also completed a

Mental RFC indicating that Acoff had some moderate limitations,
but that she was markedly limited in the following:

her ability

to perform activities within a schedule; maintain regular
attendance and be punctual within customary tolerances; the
ability to complete a normal workday and workweek without

depression.

Physician's Desk Reference 518 (52nd ed. 1998).

9

interruptions from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length
of rest periods; and the ability to interact appropriately with
the general public (Tr. 465-68).

Fleece further indicated that

she would miss three or more days a month because of her
psychological disorder and that her contact with the general
public should be infrequent.
Though Acoff had seen a Therapist at Cahaba regularly in
the intervening period, she saw Dr. Baltz again on September 3,
2009 and reported increased energy, a more stable mood, and that
she was sleeping better (Tr. 417-22).

Acoff saw a Therapist

three times over the next four months, through January 14, 2010,
and reported that she was feeling better about herself and her
circumstances; she indicated that she wanted to return to work
(Tr. 414-16).

On February 17, 2010, Psychiatrist Baltz examined

Acoff who reported that she was doing well so long as she took
her medicine; he made no changes in her treatment and scheduled
the next appointment for five months later (Tr. 448).
On March 31, Psychologist Richard S. Reynolds examined
Plaintiff who reported attending special education classes
through the eighth grade and quitting due to pregnancy (Tr. 43234).

Acoff was oriented in four spheres; her thoughts were

logical and associations were tight.
been hearing voices for a while.

10

She stated that she had

Remote memory was intact;

judgment, insight, and decision-making abilities appeared
impaired by psychosis.

The Plaintiff took the Minnesota

Multiphasic Personality Inventory-2 (hereinafter MMPI); Reynolds
opined that Acoff’s “ability to understand, carryout, to
remember instructions, and to respond appropriately to
supervision, co-workers, [and] work pressures in a work setting
appear[ed] impaired by Psychosis, NOS” (Tr. 434).

The

Psychologist completed a mental medical source statement in
which he found Plaintiff moderately limited in doing most
everything, but markedly limited in the ability to make
judgments on complex work-related decisions (Tr. 436-38).
On April 1, 2010, Plaintiff reported frustration with some
family issues; her mental status was considered stable (Tr.
446).

She continued to receive regular Prolixin injections (Tr.

444-45).

On May 3, Dr. Baltz completed a mental source form in

which he indicated that Acoff would have marked limitations in
her ability to do the following:

interact appropriately with

the general public; get along with co-workers or peers;
understand, remember, and carry out complex instructions and
repetitive tasks; maintain attention and concentration for
extended periods; perform activities within a schedule, maintain
regular attendance and be punctual within customary tolerances;
sustain a routine without special supervision; complete a normal
workday and workweek without interruptions from psychologically-

11

based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; respond
appropriately to supervision and changes in the work setting;
and respond to customary work pressures (Tr. 440-42).

The

Psychiatrist indicated that Plaintiff had suffered these
limitations for more than a year.
On May 25, 2010, W. Lee Stutts, Psychologist, administered
the WAIS-III on which Acoff scored a verbal IQ of 64, a
performance IQ of 63, and a full scale IQ of 61, scores in the
mild range of mental retardation (Tr. 450).

Stutts indicated

that the results appeared to be valid as Plaintiff had put forth
good effort.
On September 6, Doug McKeown, Ph.D., at the request of the
SSA, reviewed the medical records available and, without benefit
of examining her, completed a set of interrogatories concerning
Acoff’s mental impairments (Tr. 470-76).

McKeown summarized the

medical evidence and questioned the conclusions of Dr. Baltz and
Neuropsychologist Goff.

He found that the evidence did not

support a mental retardation diagnosis either before or after
the age of twenty-two; furthermore, Plaintiff had not satisfied
the requirements for any mental disability.

McKeown suggested

that Acoff had mild restriction of daily living activities,
moderate difficulties in maintaining social functioning; and
moderate difficulties in maintaining concentration, persistence,

12

and pace.

The Psychologist indicated that Plaintiff was capable

of performing simple tasks, but should have only limited contact
with the general public; she had some moderate limitations, but
was markedly limited in her ability to function independently.
On September 23, 2010, Dr. Baltz reported a normal exam;
treatment remained the same (Tr. 798).

On February 21, 2011,

the Psychiatrist noted that Acoff was exercising and had lost
some weight; she was a little depressed (Tr. 797).

On June 23,

Plaintiff stated that she had stopped her weight loss program,
that she was alright, but that she had had thoughts of running
away (Tr. 796).

Dr. Baltz’s treatment continued as before with

the following diagnosis:

Psychotic Disorder NOS, low grade;

early onset dysthymic disorder; cluster B personality features;
and family history of major mental illness.
On February 8, 2013, Acoff was seen at Baptist Medical
Center East for tooth pain and migraines; she was treated with
Phenergan9 and Morphine and was prescribed Ultram10 and Norco11
(Tr. 837-56).
On December 4, 2013, following complaints of a headache, a

9Error! Main Document Only.Phenergan is used as a sedative, sleep aid,

or to treat nausea, vomiting, or pain.
http://www.drugs.com/phenergan.html
10Error! Main Document Only.Ultram is an analgesic “indicated for

the management of moderate to moderately severe pain.” Physician's
Desk Reference 2218 (54th ed. 2000).
11Norco is an opioid pain medication used to relieve moderate to

severe pain. See http://www.drugs.com/norco.html

13

CT of the head/brain was taken that revealed no acute
intracranial injury (Tr. 830-32).

Another CT two days later was

normal (Tr. 828-29).
On January 3, 2014, Acoff complained of neck pain radiating
into her upper back; x-rays of the cervical spine showed slight
reversal of the alignment curve, perhaps secondary to muscle
spasm (Tr. 817, 825-27).

The spine was otherwise normal.

An ultrasound examination on February 5 revealed
significant peripheral vascular disease; further evaluation was
recommended (Tr. 833-35).
On September 29, Acoff went to UAB Health Systems and was
treated for keloids on her scalp (Tr. 789-94).
This concludes the Court’s summary of the evidence.
In bringing this action, Plaintiff has raised two different
claims.

In the first, she argues that she meets the

requirements of Listing 12.05.

Acoff does not specifically

argue which subsection of the Listing she meets though, so the
Court will set out the full Listing:
Intellectual disability refers to a
significantly 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 age 22.
The required level of severity for this
disorder is met when the requirements in A,
B, C, or D are satisfied.

14

A. Mental incapacity evidenced by
dependence upon others for personal needs
(e.g. toileting, eating, dressing, or
bathing) and inability to follow directions,
such that the use of standardized measures
of intellectual functioning is precluded;
OR
B. A valid verbal, performance, or
full scale IQ of 59 or less;
OR
C. 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;
OR
D. A valid verbal, performance, or
full scale IQ of 60 through 70, resulting in
at least two of the following:
1. Marked restriction of activities of
daily living; or
2. Marked difficulties in maintaining
social functioning; or
3. Marked difficulties in maintaining
concentration, persistence, or pace; or
4. Repeated episodes of
decompensation, each of extended duration.
20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.05 (2016).
In addressing Acoff’s claim of disability from intellectual
disability, the ALJ summarized the record evidence from
Examiners and Non-Examiners alike; the summary included
Plaintiff’s testimony from three evidentiary hearings and two
lengthy passages from Psychologist Doug McKeown’s testimony,
given as a Medical Expert (herein ME) at two of those hearings.
The ALJ then reviewed the United States Supreme Court’s decision
holding that executions of mentally retarded individuals were

15

cruel and unusual punishment.
(2002).

Atkins v. Virginia, 536 U.S. 304

The ALJ quoted the definitions of mental retardation as

defined by the American Association of Mental Retardation and
the American Psychiatric Association (Tr. 491).

The ALJ then,

without discussing Listing 12.05, stated as follows:
Thus, in order to establish that
Claimant has intellectual disability, it
must first be determined whether Claimant
has significantly subaverage intellectual
functioning. Second, it must be determined
whether the significantly subaverage
intellectual functioning is accompanied by
significant limitations in adaptive
functioning in at least two of the skill
areas.
(Tr. 492) (emphasis added).

The ALJ reviewed Acoff’s IQ test

scores and found them invalid.

He noted that Psychologist Tocci

thought the results of the test she administered were valid,
though she noted Acoff was distracted, impatient, and depressed
while taking it, exerting only fair effort so the scores could
be depressed (Tr. 492).

The ALJ accepted the ME’s pronouncement

that Tocci’s test scores were invalid as inconsistent with her
report and because Plaintiff had a driver’s license and managed
her own children (Tr. 492).

The ALJ then rejected Tocci’s test

results because an expert who helped design the MMPI, taken by
Acoff six years later by a different Examiner, had stated that a
particular score on a scale in that test indicated that the

16

test-taker was “faking bad;” the ALJ found that this score on
the MMPI strongly suggested that Plaintiff was malingering on
Tocci’s test as well (Tr. 492).12

The ALJ further noted that

Non-Examiner Goff had suggested the possibility that Acoff had
not put forth her best effort on Tocci’s test because she was
depressed (Tr. 493).

The ALJ returned to the ME’s dismissal of

the test results, this time because of Plaintiff’s limited
effort, her adaptive skills, and the fact that she completed the
MMPI, the test she allegedly “faked bad” on, because the MMPI
required reading and comprehension of the fifth grade level; the
ALJ did not, however, acknowledge the ME’s full statement:

“It

must be noted that personality measure is considered valid and
does require a reading and comprehension level of at least a
fifth grade level which would be consistent with mild mental
retardation”13 (Tr. 476; cf. Tr. 493) (emphasis added).
As to the second test, the ALJ noted that Stutts, the
Examiner, found the results valid.

The ALJ then noted that the

Psychologist had not conducted a clinical interview and did not
appear to know that Plaintiff may have malingered on a different
test administered by a different examiner on a different date

12The Court notes the ALJ’s reliance on this assertion six

different times in the decision (Tr. 488, 492, 494, 508, 512, 519).
13The ALJ later noted the ME’s testimony that Acoff’s

ability to complete the MMPI indicated she was functioning above
retardation (Tr. 676). Nevertheless, the Court notes the ME’s
inconsistency in this regard.

17

(Tr. 492).
The ALJ concluded his discussion of the test validity by
finding, in spite of the conflicting opinions, “neither set of
IQ scores is valid, whether due to attention deficit
hyperactivity disorder, depression, psychosis, malingering, or a
combination thereof” (Tr. 493).
Following this finding, the ALJ returned to Atkins and
reiterated the “requirements used by the professional community
to establish intellectual disability:”
The individual in question must have
significant subaverage intellectual
functioning that is accompanied by
significant limitations in adaptive
functioning in at least two of the following
skill areas: communication, self-care, home
living, social/interpersonal skills, use of
community resources, self-direction,
functional academic skills, work, leisure,
health and safety.
(Tr. 494) (emphasis added).

The ALJ then reviewed Plaintiff’s

school records, noting that there was no evidence that she had
received any special education services, been retained at any
grade level, and that she had made relatively good grades (Tr.
494).

The ALJ reviewed conflicts in Acoff’s testimony and in

things she told her various Examiners and found her not
credible, discounting her statements (Tr. 494-97).14

The ALJ

14The Court notes that Acoff has not challenged this finding.

18

then found that “[w]hile Claimant does have some deficits in
adaptive functioning, the evidence does not demonstrate that
those caused by her intellectual functioning are significant, as
required by the professional community” (Tr. 496) (emphasis in
original).
The ALJ then went on to review the balance of the medical
evidence and explain what weight he gave it.

Examiner

Reynolds’s opinion of Acoff’s abilities and limitations was
given substantial weight though his finding that psychosis was
the reason for these limitations was given little weight (Tr.
508).

Examining and treating Psychiatrist Baltz’s assessment

was rejected as “grossly and conspicuously inconsistent with his
own previous and subsequent treatment notes” Tr. 509).

Baltz’s

diagnosis of dysthymic disorder was given controlling weight
over the diagnoses of Examiner Szmurlo’s diagnosis of major
depressive disorder and Examining Psychologists Tocci’s and
Reynolds’s diagnosis of major depressive disorder (Tr. 512).
Only partial weight was given to the ME’s testimony and
responses to the interrogatories (Tr. 513).

Great weight was

given to the opinions of Fleece and the ME, both Non-Examiners,15
that Acoff’s impairments did not meet Listing requirements (Tr.
516).

Little weight was given to the opinions of Examiners

Tocci and Stutts and Non-Examiner Goff that Plaintiff had

15 McKeown never personally examined Acoff (see Tr. 678).

19

intellectual disability (Tr. 520).

The ALJ accepted the

testimony of the Vocational Expert that there were specific
medium-exertion jobs that Acoff could perform (Tr. 522).
In reviewing the ALJ’s opinion, the Court notes that the
ALJ never properly set out the requirements for Listing 12.05 in
spite of the fact that the court opinion, remanding this action
previously, specifically directed the analysis of this record
under that Listing (Tr. 631-41).

The ALJ discussed Atkins, but

the Court fails to see how it shed any light on the requirements
of Listing 12.05.

Though that discussion provided the ALJ the

opportunity to discuss the professional community’s current
thoughts in evaluating intellectual disability, the focus here
is whether or not Acoff met Listing 12.05 or any other Listing.
The discussion of the professional community’s thoughts enabled
the ALJ to ignore the specific introductory language in Listing
12.05C that reads as follows:

“Intellectual disability refers

to a significantly subaverage general intellectual functioning
with deficits in adaptive functioning initially manifested
during the development period.”

This language does not require

significant deficits in adaptive functioning—only deficits.

The

ALJ, however, repeatedly misstates this requirement.
The Court finds that the ALJ’s decision is not supported by
substantial evidence.

The Court finds the following problems

with the ALJ’s decision:

The ALJ declared test results from one

20

IQ test invalid, though considered valid by the administrator,
because a scale on a different type of test given by a different
Examiner indicated that Plaintiff may be faking and that this
“strongly suggested” that she was faking on the test she had
taken six years earlier; the ALJ declared the IQ test results,
in the test administered by Stutts, to be invalid because the
Psychologist did not perform a clinical interview and did not
know that Plaintiff might have faked her answers on a different
test at a different time; and the ALJ did not acknowledge that
the ME had admitted that being able to complete the MMPI
required the abilities of a fifth-grader and that someone
functioning at a fifth-grade level would be consistent with a
person suffering from mild mental retardation.
However, the main reason the Court finds that the ALJ’s
decision is not supported by substantial evidence is because the
ALJ misstated the requirements for Listing 12.05 as requiring
significant deficits in adaptive functioning.
of law.

This is an error

The Court further notes that the ALJ compounded this

error in finding that Acoff’s failure to demonstrate the
requisite adaptive deficits was one of the reasons he found the
test results were invalid (Tr. 493).

“Failure to apply the

correct legal standards or to provide the reviewing court with
the sufficient basis to determine that the correct legal

21

principles have been followed is grounds for reversal.16”
Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
Based on review of the entire record, the Court finds that
the ALJ has not applied the correct legal standard in setting
out the requirements for disability under Listing 12.05.

As

such, the ALJ’s decision cannot be said to be supported by the
substantial evidence of record.

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 and consideration of evidence,
including a new consultative psychological evaluation with
intelligence testing, regarding Plaintiff’s psychological
impairments.

The Court further DIRECTS the Social Security

Administration to assign this action to a new ALJ.

Judgment

will be entered by separate Order.
DONE this 9th day of August, 2016.

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

16

“Where an error of law has
the disposition of the case, this
and constitutional duty to review
agency by simply deferring to the
(footnote in original).

been made that might have affected
court cannot fulfill its statutory
the decision of the administrative
factual findings of the ALJ”

22