Cooper v. Social Security Administration
MEMORANDUM OPINION AND ORDER that the Commissioner's decision is reversed and remanded for action consistent with this opinion; this is a "sentence four" remand. Signed by Magistrate Judge Beth Deere on 10/26/12. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
MONTY L. COOPER, JR.
CASE NO.: 4:11CV00606 BD
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration
MEMORANDUM OPINION AND ORDER
Plaintiff Monty L. Cooper, Jr. brings this action for review of a final decision of
the Commissioner of the Social Security Administration (“Commissioner”) denying his
claim for Supplemental Security Income (“SSI”) benefits under Title XVI of the Act. For
reasons that follow, the decision of the Administrative Law Judge (“ALJ”) is reversed
Mr. Cooper protectively filed his application for SSI on April 13, 2009, alleging an
onset date of April 13, 2009. (Tr. 34, 68) He claims disability due to antisocial
personality disorder, and patella-femoral syndrome of the right knee. (Tr. 28-29, 68-69)
His claims were denied initially and on reconsideration. (Tr. 72-75, 79-80) At Mr.
Cooper’s request, the Administrative Law Judge(“ALJ”) held a hearing on January 5, 2010. (Tr.
24-66) On June 21, 2010, the ALJ issued a decision denying benefits, and on June 13, 2011, the
The parties have consented to the jurisdiction of the Magistrate Judge. (Docket
Appeals Council denied Mr. Cooper’s request for review. (Tr. 1-3, 11-19) Thus the ALJ’s
decision became the Commissioner’s final decision for purposes of judicial review.
Mr. Cooper was 34 years old at the time of the hearing. (Tr. 129) He had a sixth-grade
education. (Tr. 58, 235) He attempted seventh grade but never completed it. (Tr. 58) He had
past work experience as a furniture mover. (Tr. 40-41, 178) At the time of the hearing, Mr.
Cooper lived with his mother most of the time but occasionally stayed with a friend. (Tr. 131)
At the hearing, Mr. Cooper could not remember his mother’s mailing address or his son’s
birthday. (Tr. 30, 32) He testified that he gets anxious around people, cannot raise his son alone,
overcooks food when trying to use the microwave, cannot count change or pay bills, does not
shop, and does not have a valid drivers license. (Tr. 37-39, 46, 50-53) He also testified that he
had taken the GED exam three or four times but had failed each time. (Tr. 33)
Decision of the Administrative Law Judge:
In his decision,2 the ALJ determined that Mr. Cooper had not engaged in
substantial gainful activity since his alleged onset date and that his antisocial personality
disorder, learning disorder, and right knee injury were “severe impairments,” as that term
The ALJ followed the familiar five-step analysis, determining: (1) whether the
claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a
severe impairment; (3) if so, whether the impairment (or combination of impairments)
met or equaled a listed impairment; (4) if not, whether the impairment (or combination of
impairments) prevented the claimant from performing past relevant work; and (5) if so,
whether the impairment (or combination of impairments) prevented the claimant from
performing any other jobs available in significant numbers in the national economy. 20
C.F.R. § 416.920(a)-(g).
is used in social security disability cases. (Tr. 13) He considered listed impairments
12.08 and 12.09, but found that Mr. Cooper did not have an impairment, or combination
of impairments, meeting or medically equaling a “listed” impairment. (Tr. 13-14) 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), .925, and .926)
The ALJ determined that Mr. Cooper retained the residual functional capacity to
lift and carry fifty pounds occasionally and twenty-five pounds frequently, sit for about
six hours during an eight-hour workday, and stand and walk for almost six hours during
an eight-hour workday. Additionally, he found that Mr. Cooper was able to understand,
remember, and carry out simple, routine, and repetitive tasks and respond appropriately
to supervision and usual work situations; but he could have only occasional contact with
co-workers and no contact with the general public. Further, the claimant could perform
low-stress work (defined as occasional decision making and occasional changes in
workplace settings). (Tr. 14)
The ALJ concluded that Mr. Cooper could not perform any of his past relevant
work, but that he could perform other jobs that exist in significant numbers in the
national economy, such as packing machine operator, industrial cleaner, and sewing
machine operator. (Tr. 19-20)
Standard of Review
In reviewing the Commissioner’s decision, this Court must determine whether
there is substantial evidence in the administrative record to support the decision. 42
U.S.C. § 405(g). “Substantial evidence is evidence that a reasonable mind would find
adequate to support the ALJ’s conclusion.” Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir.
2007). In reviewing the record as a whole, the Court “must consider the evidence which
detracts from the Commissioner’s decision, as well as the evidence in support of the
decision,” but the decision cannot be reversed, “simply because some evidence supports a
conclusion other than that of the Commissioner.” Pelkey v. Barhart, 433 F.3d 575, 578
(8th Cir. 2006).
Mr. Cooper claims that the ALJ’s findings are not supported by substantial
evidence because the ALJ failed to evaluate whether he met listing 12.05 for mental
retardation.3 The Court agrees.
“Mental retardation,” as defined by Social Security Listing 12.05, refers to
“significantly sub-average general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e., the evidence
At the hearing, Mr. Cooper’s lawyer argued that he met listing 12.05C. (Tr. 29)
In his opinion, the ALJ referenced only listings 12.08 and 12.09.
demonstrates or supports onset of the impairment before age 22.” 20 C.F.R. Part 404,
Subpart P, Appendix 1, Section 12.05. The required level of severity for this disorder is
met when the requirements in paragraphs A, B, C, or D are satisfied.
Under Listing 12.05C, a claimant suffers from the required severity level if he
shows “[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional and significant work-related limitation of
function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C; Maresh v. Barnhart, 438 F.3d
897, 899 (8th Cir.2006).
As Mr. Cooper acknowledges, an ALJ’s failure to mention a particular listing is
harmless error if substantial evidence shows that the listing was not met. See Goose v.
Apfel, 238 F.3d 981, 984 (8th Cir. 2000) The evidence here, however, indicates that the
Commissioner had previously awarded Mr. Cooper SSI benefits, but benefits were lost
when Mr. Cooper was incarcerated. (Tr. 235, 334-26)
In 1997, before Mr. Cooper turned 22, Steve A. Shry, Ph.D., estimated that Mr.
Cooper had an intelligence quotient (IQ) of 69 or lower and diagnosed mild mental
retardation. (Tr. 354-55) In 2000, Dr. Shry administered the Wechsler Adult Intelligence
Scale III (WAIS III) test to Mr. Cooper. Mr. Cooper’s scores were 58 on the verbal test
and 55 on the performance test, giving him a full scale score of 52 and bringing him
within the low end of the mildly mentally retarded range. Additionally, during the same
evaluation, Dr. Shry found evidence of two or more areas with significant limitations in
adaptative functioning. (Tr. 356-59) Dr. Shry considered the IQ test a valid and reliable
indicator of Mr. Cooper’s current functioning level. (Tr. 358) A person’s IQ score
usually does not improve with age and is presumed to remain stable over time. Muncy v.
Apfel, 247 F.3d 728, 734 (8th Cir. 2001).
In 2005, Nancy J. Toombs, M.D., evaluated Mr. Cooper. She administered the
WAIS-III test. Mr. Cooper scored 66 on the verbal test and 57 on the performance test,
with a full scale IQ of 59. (Tr. 376) Dr. Toombs did not believe the test scores were an
accurate estimate of Mr. Cooper’s overall intellectual functioning, but estimated his IQ to
be in the high 60s to low 70s range. (Tr. 376) Dr. Toombs’s diagnostic impressions were
at Axis I, rule out anxiety disorder; at Axis II, antisocial personality disorder; at Axis III,
“mild MR versus borderline intellectual functioning.” (Tr. 376) She found his main
problem to be getting along with authority. (Tr. 377)
Dr. Shry administered the WAIS III to Mr. Cooper again in 2009. His verbal score
was 68, his performance score was 67 and his full scale score was 65. (Tr. 291) Dr. Shry
found that Mr. Cooper was not adequately motivated and that the REY screening
indicated the possibility of malingering. (Tr. 293)
Considering Mr. Cooper’s prior IQ scores within the listing range, Dr. Toombs’s
diagnosis of antisocial personality disorder and either mild mental retardation or
borderline intellectual functioning, and the ALJ’s conclusion that Mr. Cooper’s knee
injury was a severe impairment, there is substantial evidence in the record warranting an
evaluation by the ALJ as to whether Mr. Cooper met listing 12.05C.4
After consideration of the record as a whole, the Court concludes that the
Commissioner’s decision is not supported by substantial evidence. Therefore, the
Commissioner’s decision is reversed and remanded for action consistent with this
opinion. This is a “sentence four” remand within the meaning of 42 U.S.C. § 405(g) and
Melkonyan v. Sullivan, 501 U.S. 89 (1991).
IT IS SO ORDERED this 26th day of October, 2012.
UNITED STATES MAGISTRATE JUDGE
The Court acknowledges that the ALJ’s opinion discussed Mr. Cooper’s IQ scores
but did so only in the context of evaluating his credibility. (Tr. 15-16)
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