Fowler v. Social Security Administration

Filing 17

OPINION AND ORDER: The Court denies Fowler's request for relief and affirms the Commissioner's decision. Signed by Judge J. Leon Holmes on 2/19/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
DESTIN ODELL FOWLER
v.

PLAINTIFF
No. 5:12CV00424 JLH

CAROLYN COLVIN, Acting Commissioner,
Social Security Administration

DEFENDANT

OPINION AND ORDER
On February 17, 2010, Destin Odell Fowler applied for supplemental security income and
alleged disability beginning January 27, 2010. Tr. 146. He identified no triggering event for the onset
of disability, but his onset date corresponds to his rehab for marijuana and alcohol addiction. Tr. 299317. After his application was denied, Fowler obtained legal representation. Tr. 63, 64. He learned
that he might qualify for additional benefits based on his father’s death, applied for childhood
disability benefits, and changed his onset date to February 17, 2009, to conform to the rules for
childhood disability benefits. Tr. 150-51, 157. See 20 C.F.R. § 404.350(a)(5) (“You are entitled to
child’s benefits on the earnings record of an insured person … who has died if — (1) You are the
insured person’s child [and] you are 18 years old or older and have a disability that began before you
became 22 years old . . . .”).
After the Commissioner denied the applications, Tr. 67, Fowler sought a hearing before an
ALJ, Tr. 70. On March 29, 2011, an ALJ held a hearing; on April 15, 2011, the ALJ issued an
unfavorable decision, concluding that Fowler is not disabled under the Social Security Act. Tr. 16,
29. Fowler asked the Commissioner’s Appeals Council to review the decision and argued that he is
disabled due to mental retardation. Tr. 10, 263. The Appeals Council denied review. Tr. 1. The

ALJ’s decision became the Commissioner’s final decision for the purpose of judicial review. Id.
Fowler commenced this action on November 8, 2012, to seek judicial review.
Scope of judicial review. When reviewing a decision denying an application for disability
benefits, the Court must determine whether substantial evidence supports the decision and whether
the Commissioner made a legal error. See 42 U.S.C. § 405(g) (requiring court to determine whether
Commissioner’s findings are supported by substantial evidence and whether Commissioner conformed
with applicable regulations); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“We will uphold the
Commissioner’s decision to deny an applicant disability benefits if the decision is not based on legal
error and if there is substantial evidence in the record as a whole to support the conclusion that the
claimant was not disabled.”). Substantial evidence is more than a mere scintilla of evidence; it means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009). In determining whether substantial evidence
supports the Commissioner’s decision, the Court must consider evidence detracting from the decision
as well as evidence supporting the decision, but the Court may not reverse the decision simply
because substantial evidence supports a contrary decision. Sultan v. Barnhart, 368 F.3d 857, 863
(8th Cir. 2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
The disability-determination process. The Commissioner’s regulations set forth a five-step
process for evaluating disability claims. See 20 C.F.R. § 404.1520.
In step one, the ALJ decides whether the claimant is currently engaging in substantial
gainful activity; if the claimant is working, he is not eligible for disability insurance
benefits. In step two, the ALJ determines whether the claimant is suffering from a
severe impairment. If the claimant is not suffering a severe impairment, he is not
eligible for disability insurance benefits. At the third step, the ALJ evaluates whether
the claimant’s impairment meets or equals one of the impairments listed in Appendix
1 of the regulations (the “listings”). If the claimant’s impairment meets or equals one
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of the listed impairments, he is entitled to benefits; if not, the ALJ proceeds to step
four. At step four, the ALJ determines whether the claimant retains the “residual
functional capacity” (RFC) to perform his or her past relevant work. If the claimant
remains able to perform that past relevant work, he is not entitled to disability
insurance benefits. If he is not capable of performing past relevant work, the ALJ
proceeds to step five and considers whether there exist work opportunities in the
national economy that the claimant can perform given his or her medical impairments,
age, education, past work experience, and RFC. If the Commissioner demonstrates
that such work exists, the claimant is not entitled to disability insurance benefits.
McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011) (internal citations omitted). The claimant bears
the burden of proving disability. If he shows he cannot do his past relevant work, the Commissioner
must show work exists that the claimant can do. Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir.
1992).
Fowler’s work and medical history. Fowler applied for disability benefits at age 22. He
maintains he has never held a full-time job on a sustained basis. He reported that he stopped working
on February 20, 2007, due to his condition, Tr. 169, 171, 183, but he actually works part-time for
his grandfather’s plumbing business, Tr. 334, 336, 385-86, 408. His earnings are unreported because
he receives cash. Tr. 386. See id. at p. 315 (reporting earnings of $1200 in the month prior to
applying for disability benefits).
Fowler has no significant medical history. He claims chronic left knee pain from a high school
injury. The record includes no treatment record for a knee injury. School officials tested Fowler’s
intelligence throughout his schooling. Fowler’s scores are consistent with borderline intellectual
functioning.
Fowler alleges worsening depression and anxiety since age 19, when his father died. Tr. 329,
336, 349-50. Initially, he claimed he cannot work due to chronic knee pain, asthma, major depressive
disorder, anxiety disorder, attention deficit hyperactivity disorder, and borderline intellectual
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functioning. Tr. 169. He insists he cannot function amongst unfamiliar people. Tr. 219. Before the
Appeals Council, he relied on mental retardation.
The Commissioner’s decision. At step one of the disability-determination process, the ALJ
determined Fowler has done no substantial gainful activity since February 17, 2009. Tr. 18. At step
two, the ALJ determined Fowler’s ability to work is impaired by the left knee, depression, anxiety,
attention deficit hyperactivity disorder, and borderline intellectual functioning. Tr. 18. At step three,
the ALJ found Fowler does not meet the severity requirements for a listed impairment. Tr. 23. At
step four, the ALJ determined Fowler can do medium work that involves short, simple instructions,
occasional contact with the public, and occasional coworker or supervisor interaction. The ALJ
excluded assembly line work and forced-pace work. Tr. 24. Because a vocational expert identified
available work, Tr. 28, 49-50, the ALJ determined work exists that Fowler can do and concluded that
Fowler is not disabled under the Social Security Act. Tr. 28. The Appeals Council declined to
review his claim of mental retardation.
Fowler’s allegations of error. Fowler maintains the Commissioner’s determination that he
does not meet listing 12.05C is unsupported by substantial evidence. Listing 12.05C is one of the
ways of proving disability based on mental retardation. He did not raise the issue of mental
retardation before the ALJ, but faults the ALJ for not considering listing 12.05C. Because his earliest
IQ scores support mental retardation, Fowler maintains the ALJ should have reconciled his various
IQ scores. He also contends the Appeals Council should have considered his most recent IQ scores
for medical equivalence.
At step three of the disability-determination process, the ALJ compares the claimant’s severe
impairments with impairments in the Commissioner’s regulations. 20 C.F.R. § 416.920(a)(4)(iii).
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If the claimant has an impairment that meets or medically equals a listed impairment, the ALJ will find
the claimant is disabled. One of the requirements of listing 12.05C is a “valid verbal, performance,
or full scale IQ of 60 through 70….” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C (2011). The
requirement refers to the Wechsler Intelligence Scales in which “Verbal and Performance IQ scores
are added together and are then converted to an overall Full Scale IQ score.” 2 William Arthur
Atkins, The Gale Encyclopedia of Mental Health 1648 (3d ed.).
At the time of the ALJ’s decision, the record included four sets Wechsler IQ scores:
age 7

age 10

age 13

age 23

verbal

75

81

81

83

performance

68

81

74

79

full scale

69

79

76

79

Tr. 415, 426, 441, 352. Only the first set of scores — at age 7— includes a score between 60 and
70; subsequent score sets do not. The subsequent scores are consistent with borderline intellectual
functioning, not mental retardation. The consistency is highly probative of Fowler’s claim because
“a person’s IQ is presumed to remain stable over time in the absence of any evidence of a change in
a claimant’s intellectual functioning.” Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001). The
consistency of the subsequent score sets — all indicating borderline intellectual functioning —
implicated no need for score reconciliation or consideration of mental retardation because intellectual
functioning remained unchanged.
The record also included IQ scores at age 17. Those scores flowed from a newer, less timeconsuming method — the Reynolds Intellectual Assessment Scales. Fowler’s composite intelligence
index was 85; this score placed his IQ as “below average.” Tr. 461. The score is significant because

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mental retardation refers to “significantly subaverage general intellectual functioning.” 20 C.F.R. pt.
404, subpt. P, app. 1, § 12.05 (2011). “Below average” intellectual functioning does not suggest
“significantly subaverage general intellectual functioning.” Like the Wechsler scores, the Reynolds
scores implicated no need for score reconciliation or consideration of mental retardation. The ALJ
did not err in considering the IQ scores or the listings.
Fowler seeks to overcome the presumption of a stable IQ with new evidence in the form of
IQ testing at age 24. On testing done the day before the ALJ issued the unfavorable decision,
Fowler’s performance and full scale scores fell between 60 and 70. Tr. 477. Fowler submitted the
new scores to the Appeals Council as new evidence.
“Under [the Commissioner’s regulations], if a claimant files additional medical evidence with
a request for review prior to the date of the [Commissioner’s] final decision, the Appeals Council
MUST consider the additional evidence if the additional evidence is (a) new, (b) material, and (c)
relates to the period on or before the date of the ALJ’s decision.” Williams v. Sullivan, 905 F.2d
214, 216 (8th Cir. 1990). The age 24 score set is evidence that is new, relevant, and relates to the
period on or before the date of the ALJ’s decision — new, because the ALJ did not have the scores
at the time of the unfavorable decision; relevant, because the scores address Fowler’s intellectual
functioning; and relates to the relevant time period, because Fowler was tested on the day before the
ALJ’s decision.
The record shows the Appeals Council considered the scores because the Appeals Council
acknowledged receiving the additional evidence, added the additional evidence to the record, stated
that it considered the additional information, Tr. 1, reported that the new evidence did not provide
a basis for changing the ALJ’s decision, Tr. 2, and referred to the new evidence in an attachment to
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its order, Tr. 4-5. By doing so, the Appeals Council complied with the Commissioner’s regulations.
Accord Smith v. Astrue, No. 5:11-CV-160-JLH, 2012 WL 2232264, at * 5 (E.D. Ark. June 15,
2012); Baker v. Astrue, No. 5:10-CV-194-SWW, 2011 WL 4434530, at *2 (E.D. Ark. Sept. 23,
2011). “Where, as here, the Appeals Council considers new evidence but denies review, [the issue
is] whether the ALJ’s decision was supported by substantial evidence on the record as a whole,
including the new evidence.” Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007). The ALJ’s
decision in this case is supported by substantial evidence on the record as a whole, including the new
evidence, because the scores provide no basis for questioning the ALJ’s determination.
In addition to an IQ score between 60 and 70, meeting a mental retardation listing requires
evidence of “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. pt 404
subpt f, app 1, § 12.05 (2011). No evidence demonstrates or supports onset of the impairment before
age 22. Instead, the IQ scores at ages 10, 13, 17, and 23 demonstrate and support borderline
intellectual functioning during the developmental period.

In diagnosing mental retardation,

diagnosticians look for evidence of significant limitations occurring before age 18 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. Am.
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders, Text Revision, 41 (4th ed.).
By his own admission, Fowler’s symptoms began after he turned 18.
To the extent Fowler has deficits in adaptive functioning, those deficits flowed from the death
of his father. Fowler reported the onset of symptoms beginning around September 2007 (age 20).
Tr. 336. According to Fowler, he began experiencing extreme anxiety and mild depression after his
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father’s death. Tr. 336. He explained that his anxiety worsened to the point that he does not want
to leave home. Tr. 349-50. He complained about anxiety, panic attacks, lack of motivation, feelings
of hopelessness, memory problems, social phobia, depression, and an inability to focus, concentrate,
and interact with unfamiliar people. Tr. 319, 321, 329, 334, 349, 386. These deficits are not the kind
described for a developmental disorder like mental retardation. 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 112.00 (2011). Fowler’s symptoms are consistent with major, depressive disorder, anxiety
disorder, and attention deficit hyperactivity disorder.
Moreover, IQ scores must be valid to satisfy listing 12.05C. The Appeals Council could
properly reject the age 24 scores as invalid. The age 24 scores — obtained only 10 months and 21
days after the age 23 scores — were significantly lower than the age 23 scores:
5/24/2010
age 23

4/14/2011
age 24

change
in scores

verbal

83

72

-11

performance

79

64

-15

full scale

79

66

-13

Without evidence of an intervening event to explain the drop in scores, the age 24 scores do not rebut
the presumption of stable IQ — here, borderline intellectual functioning. A reasonable mind would
accept the evidence — especially the IQ scores at ages 10, 13, 17, and 23 — as adequate to support
the determination that Fowler is impaired by borderline intellectual functioning, not mental
retardation. The Appeals Council did not err in the consideration of new evidence.

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CONCLUSION
Having determined that substantial evidence supports the denial of Fowler’s application, and
the Commissioner made no legal error, the Court denies Fowler’s request for relief and affirms the
Commissioner’s decision.
IT IS SO ORDERED this 19th day of February, 2014.

___________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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