Henderson v. Commissioner of Social Security

Filing 21

OPINION AND ORDER reversing the Commissioner's decision and remanding with instructions. Signed by Magistrate Judge Monte C. Richardson on 9/19/2016. (MEH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LINDA GAIL HENDERSON,
Plaintiff,
v.

Case No. 8:15-cv-1433-T-MCR

CAROLYN W. COLVIN, Commissioner of
the Social Security Administration,
Defendant.
_________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for a period of disability, Disability Insurance
Benefits, and Supplemental Security Income. Plaintiff alleges she became
disabled on June 15, 2011. (Tr. 232-47.) Plaintiff’s claim was denied initially and
on reconsideration. (Tr. 136-48, 152-63.) A hearing was held before the
assigned Administrative Law Judge (“ALJ”) on August 9, 2013, at which Plaintiff
was represented by a non-attorney representative. (Tr. 31-52.) The ALJ found
Plaintiff not disabled from June 15, 2011, the alleged onset date, through August
29, 2013, the date of the decision. (Tr. 12-25.)
Plaintiff is appealing the Commissioner’s decision that she was not
disabled from June 15, 2011 through August 29, 2013. Plaintiff has exhausted

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The parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Doc. 14.)

her available administrative remedies and the case is properly before the Court.
The undersigned has reviewed the record, the briefs, and the applicable law. For
the reasons stated herein, the Commissioner’s decision is REVERSED and
REMANDED.
I.

Standard of Review
The scope of this Court’s review is limited to determining whether the

Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). Where the Commissioner’s decision is supported by substantial evidence,
the district court will affirm, even if the reviewer would have reached a contrary
result as finder of fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937
F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th
Cir. 1991). The district court must view the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
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determine the reasonableness of the Commissioner’s factual findings).
II.

Discussion
Plaintiff raises two general issues on appeal. First, Plaintiff argues that the

ALJ failed to properly assess whether Plaintiff meets or medically equals Listing
12.05(B) and (C) in light of her prior IQ scores and severe impairments.
Specifically, Plaintiff contends that the ALJ erroneously failed to give due
consideration to her IQ scores of less than 60 so as to meet paragraph B of
Listing 12.05. Alternatively, Plaintiff contends that the ALJ failed to properly
recognize a valid IQ score of 70 with an additional and significant work-related
limitation of function in analyzing whether Plaintiff met paragraph C of Listing
12.05. Second, Plaintiff argues that the ALJ failed to properly consider the
opinions of consulting physician, Lapado Shyngle, M.D. Defendant contends that
the ALJ adequately discounted Plaintiff’s IQ scores and, in any event, that
Plaintiff failed to show that she had the requisite defects in adaptive functioning to
meet the requirements of Listing 12.05. Additionally, Defendant argues that the
ALJ properly discounted Dr. Shyngle’s opinions.
A.

Standard for Evaluating Intellectual Disability

Listing 12.05 provides in relevant part:
[I]ntellectual disability 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.
The required level of severity for this disorder is met when the
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requirements in A, B, C, or D are satisfied. . . .
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 . . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. Thus, for an impairment to meet the
requirements of Listing 12.05(C), there must be deficits in adaptive functioning
initially manifested prior to age 22, as well as both an IQ score in the range of 60
to 70 and a physical or other mental impairment. Id.
In 2001, the Eleventh Circuit held “there is a presumption that [intellectual
disability] is a condition that remains constant throughout life.” Hodges v.
Barnhart, 276 F.3d 1265, 1266 (11th Cir. 2001). Because of this, a plaintiff
generally “meets the criteria for presumptive disability under section 12.05(C)
when the claimant presents a valid [IQ] score of 60 to 70 inclusive, and evidence
of an additional mental or physical impairment that has more than ‘minimal effect’
on the claimant’s ability to perform basic work activities.” Lowery v. Sullivan, 979
F.2d 835, 837 (11th Cir. 1992) (citing Edwards by Edwards v. Heckler, 755 F.2d
1513, 1517 (11th Cir. 1985)) (emphasis added). Valid low IQ scores after the age
of 22 create a presumption that the plaintiff had deficits in adaptive functioning
manifested prior to age 22. Hodges, 276 F.3d at 1269. Even if a claimant
demonstrates low IQ scores, however, the Commissioner may rebut the
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presumption of mental impairment before age 22 by presenting evidence of
Plaintiff’s daily life. Id.
The Eleventh Circuit has recognized that “a valid [IQ] score need not be
conclusive of [intellectual disability] where the [IQ] score is inconsistent with other
evidence in the record on the claimant’s daily activities and behavior.” Lowery,
979 F.2d at 837 (citing Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986)).
However, “[a]lthough the ALJ is allowed some leeway to evaluate other evidence
when determining the validity of an [IQ] score, an ALJ may not consider a
claimant’s age, education, and work experience after the ALJ accepts the [IQ]
score as valid and finds that the claimant meets or equals the criteria of the listed
impairment.” Lowery, 979 F.2d at 837 (citing Ambers v. Heckler, 736 F.2d 1467,
1470 (11th Cir. 1984)).
B.

The ALJ’s Decision

The ALJ found that Plaintiff had severe impairments, including carpal
tunnel syndrome, degenerative disc disease, major depressive disorder, and pain
disorder. (Tr. 14.) However, the ALJ found that “claimant 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 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).” (Tr. 15.) In further analyzing Plaintiff’s intellectual impairments, the
ALJ stated the following:
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As for the “paragraph B” criteria, they are not met because the
claimant does not have a valid verbal, performance, or full
scale IQ of 59 or less. The records do include education
records, which include a report from a psychological
evaluation from April 1976. Wechsler Intelligence Scale for
Children – Revised (WISC-R) returned a full-scale score of 55.
Although this testing meets the criteria of section “B,” repeat
testing from when the claimant was 17 years of age, returned
a full-scale IQ score of 72. Given that this testing was closer
to adult age than the earlier testing, this supports a finding that
the latter score is likely a more valid reflection of the claimant’s
cognitive abilities.
Finally, the “paragraph C” criteria of listing 12.05 are not met
because the claimant does not have 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. As noted
previously, the school records include reports of multiple
WISC-R testing. The first two sets of tests, occurring when the
claimant was 10 and [13] years of age, respectively, returned
IQ scores ranging between 55 and 72. However, testing from
when the claimant was 17 years of age returned IQ scores of
70 to 76. The claimant did described [sic] limitations in her
ability to handle finances and complete applications.
However, even if the lower scores were considered valid, the
limitations suggested by these scores are contradicted by the
claimant’s ability to pass a written driving test, obtain a high
school diploma, and her lengthy history of warehouse work
performed at substantial gainful activity levels. Altogether,
there is little to support finding that claimant meets any of the
criteria of Listing 12.05.
(Tr. 17) (internal citations omitted.)
The ALJ then determined that Plaintiff had the residual functional capacity
to perform light work with limitations. (Id.) Continuing on with the evaluation, the
ALJ determined that Plaintiff could not perform her past relevant unskilled work

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as a warehouse worker, but could perform jobs that exist in significant numbers in
the national economy, such as a production worker, laundry sorter, and folder.
(Tr. 23-24.) The ALJ ultimately concluded that Plaintiff was not disabled. (Tr.
24.)
C.

Analysis

Upon review, the Court cannot conclude that the ALJ applied the correct
legal standards for evaluating intellectual disability, thereby warranting remand.
As an initial matter, the ALJ properly rejected Plaintiff’s ten (10) and thirteen (13)
year-old IQ scores of 59 or less (Tr. 297-301) for purposes of analyzing whether
Plaintiff meets paragraph B of Listing 12.05, as those scores have become stale.
See 20 C.F.R. pt. 404, Subpt. P, App. 1 § 112.00D(10) (providing guidance on
the evaluation of childhood IQ testing and stating that “IQ test results obtained
between the ages 7 and 16 should be considered current . . . for 2 years when
the IQ score is 40 or above”); see also Robinson v. Astrue, Case No.: 8:11-cv2741-T-TGW, 2013 WL 544857 at *5 (M.D. Fla. Jan. 25, 2013) (“In these
circumstances, the test scores were only valid for two years. Since the plaintiff’s
IQ scores when he was eight are not valid with respect to child’s benefits, a
fortiori, they are not valid for a claim of adult benefits.”) (internal citations omitted).
However, the ALJ improperly evaluated the validity of Plaintiff’s IQ scores under
paragraph C of Listing 12.05.
As stated above, a plaintiff generally “meets the criteria for presumptive
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disability under section 12.05(C) when the claimant presents a valid [IQ] score of
60 to 70 inclusive, and evidence of an additional mental or physical impairment
that has more than ‘minimal effect’ on the claimant’s ability to perform basic work
activities.” Lowery, 979 F.2d at 837 (emphasis added). Here, the ALJ reasoned
that Plaintiff did not meet the paragraph C criteria “because [she] does not have 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.” (Tr. 17.) As recognized by the ALJ, however, Plaintiff received a
verbal IQ score of 70 at the age of 17. (Tr. 17 (“[T]esting from when the claimant
was 17 years of age returned IQ scores of 70 to 76.”); 303-05.) The ALJ failed to
address in the decision why this verbal IQ score of 70 does not constitute a valid
IQ score to meet the criteria under paragraph C. See Hodges, 276 F.3d at 1266
(stating that “there is a presumption that [intellectual disability] is a condition that
remains constant throughout life”); see also 20 C.F.R. pt. 404, Subpt. P, App. 1 §
112.00D(10) (“Generally, the results of IQ tests tend to stabilize by the age of 16.
Therefore, IQ test results obtained at age 16 or older should be viewed as a valid
indication of the child’s current status, provided they are compatible with the
child’s current behavior.”).
The Eleventh Circuit has indicated that the failure of an ALJ to fully address
the validity of a claimant’s IQ score is a critical omission:
“Although the ALJ is allowed some leeway to evaluate other
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evidence when determining the validity of an IQ score, an ALJ
may not consider a claimant’s age, education, and work
experience after the ALJ accepts the [IQ] score as valid and
finds that the claimant meets or equals the criteria of a listed
impairment.” Lowery, 979 F.2d at 837. It is therefore critical
that an ALJ specifically address and resolve the validity of an
[IQ] score; if the [IQ] score is valid and meets or equals the
criteria of a listed impairment, the ALJ can go no further.
However, if the ALJ determines that the [IQ] score is not valid,
then the ALJ must go further.
Thomas v. Barnhart, Case No.: 04-12214, 2004 WL 3366150 at *2-3 (11th Cir.
Dec. 7, 2004) (noting additionally that the ALJ failed to consider the validity of the
plaintiff’s IQ score of 69 and that a reversal with remand to the Secretary is
warranted where the ALJ fails to apply the correct legal standards) (emphasis
added).2
Here, the ALJ failed to fully consider the validity of Plaintiff’s verbal IQ
score of 70. Both the ALJ and the Commissioner (in her brief) ignore Plaintiff’s IQ
score of 70 in recognition that a higher, valid full-scale score of 72 was rendered
at the same time. (See Tr. 17 (“[R]epeat testing from when the claimant was 17
years of age, returned a full-scale IQ score of 72. Given that this testing was
closer to adult age than the earlier testing, this supports finding that the latter
score is likely a more valid reflection of claimant’s cognitive abilities.”) (internal
citations omitted); Doc. 17 at 7 (“The ALJ correctly noted that Plaintiff’s only valid
full scale IQ score, obtained when she was 17 years old, was a 72 and thus does
2

In the Eleventh Circuit, “[u]npublished decisions are not binding precedent, but
they may be cited as persuasive authority.” 11th Cir. R. 36-2.
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not meet the criteria for Listing 12.05C, which requires a valid IQ score of 60
through 70.”) (internal citations omitted) (emphasis added).) In doing so,
however, the ALJ and the Commissioner incorrectly applied the Secretary’s own
regulation, which requires utilization of the lowest score when multiple-score tests
are administered. See 20 C.F.R. pt. 404, Subpt. P, App. 1 § 12.00 (c)(6)(c) (“In
cases where more than one IQ is customarily derived from the test administered,
e.g., where verbal, performance, and full scale IQs are provided in the Wechsler
series, we use the lowest of these in conjunction with 12.05."); Ambers v.
Heckler, 736 F.2d 1467, 1470 (11th Cir. 1984).
Compounding this error, the ALJ failed to address whether Plaintiff has a
physical or other mental impairment imposing an additional and significant workrelated limitation of function. Because the ALJ found that Plaintiff has other
severe mental and physical impairments, it appears that Plaintiff meets this
criteria of the Listing if considered. See, e.g., Davis v. Shalala, 985 F.2d 528, 535
n.3 (11th Cir. 1993) (“It is settled, however, that the presence of a more than
slight or minimal limiting impairment satisfies the second criteria of section
12.05(C), even if the impairment is treatable.”) (citing Edwards by Edwards, 755
F.2d at 1516).
To the extent the Commissioner argues that the ALJ implicitly accepted
Plaintiff’s IQ score of 70, but found it inconsistent with other evidence in the
record, such argument is unpersuasive. The ALJ does not refer to Plaintiff’s
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behavior or daily activities in his discussion of Listing 12.05(C) and confusingly
refers to “lower” IQ scores discounted in his discussion of the paragraph B
criteria. (Tr. 17.) As such, the Court is, at best, “faced with an ambiguous record
as it cannot verify whether the ALJ has undergone a Popp v. Heckler-style
analysis” of any inconsistency between Plaintiff’s IQ score and record evidence.
Richardson v. Colvin, Case No.: 6:12-cv-383-VEH, 2013 WL 4459850 at *8 (N.D.
Ala. Aug. 16, 2013). This ambiguity is underscored by the Commissioner’s
argument that the ALJ discounted Plaintiff’s intellectual disability based on the
lack of requisite deficits in adaptive functioning and not based on evidence
contradicting an otherwise valid IQ score. (See Doc. 17 at 7-8.)
Finally, the undersigned disagrees with the Commissioner to the extent that
she argues any error by the ALJ in evaluating Listing 12.05(C) is harmless
because the ALJ found Plaintiff lacking requisite deficits in adaptive functioning.
With the ALJ’s failure to give due consideration to Plaintiff’s IQ score of 70, and in
the absence of evidence of a sudden occurrence of intellectual disability, the
Court cannot determine whether the ALJ provided Plaintiff the rebuttable
presumption that she had deficits in adaptive functioning as legally required.3
See, e.g., Williams v. Colvin, Case No.: 1:13-cv-673-SRW, 2014 WL 4093104 at
*3 (M.D. Ala. Aug. 19, 2014) (“In other words, the ALJ determined that plaintiff

3

Indeed, it does not appear that the ALJ even mentioned the rebuttable
presumption in his decision.
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does not satisfy Listing 12.05's ‘capsule’ definition of [intellectual disability] . . .
The problem with the ALJ’s analysis is that – if plaintiff’s IQ scores are valid and
indicative of her level of functioning at age 47 – she is entitled to a presumption of
deficits in adaptive functioning before age 22.”) (citing generally Hodges, 276
F.3d at 1265). It is also unclear whether the ALJ’s referenced evidence –
Plaintiff’s history of working at the unskilled position of warehouse worker, her
ability to pass a driving test, and her ability to obtain a special education high
school diploma – would suffice to rebut such presumption.4 See, e.g., Lowery,
979 F.2d at 838 (recognizing that a claimant’s attendance in special education
classes and evidence that the claimant can read at a third grade level while in
junior high were consistent with a longstanding deficit in intellectual performance);
Johnson v. Colvin, Case No.: CV 115-104, 2016 WL 3365312 at *5 (S.D. Ga.
May 26, 2016) (holding that the ALJ erred in relying on the plaintiff’s unskilled
work history because the unskilled jobs were not “beyond the reach of an
intellectually disabled person,” and listing cases holding same), adopted by 2016
WL 3407835 at *1 (S.D. Ga. June 16, 2016); Anderson v. Astrue, Case No.: 4:10-

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The undersigned is aware of the Eleventh Circuit’s holding in Perkins v. Comm’r
of Soc. Sec., 553 F. App’x 870 (11th Cir. 2014), that no legal error occurs when the ALJ
ultimately finds no deficits in adaptive functioning despite a valid IQ score. However,
Perkins and the Eleventh Circuit decisions cited by the Commissioner in support of such
proposition are distinguishable in that the ALJ’s in those cases fully addressed the
validity of the claimants’ IQ scores. See, e.g., Leslie v. Colvin, Case No.: 2:15-cv-286VEH, 2016 WL 3906430 at *6-7 (N.D. Ala. July 19, 2016) (providing a more thorough
discussion on this point of distinction). As discussed above, the ALJ failed to fully
consider the validity of Plaintiff’s verbal IQ score of 70 in the instant case.
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cv-91-PPS, 2011 WL 4899990 at *8 (N.D. Ind. Oct. 14, 2011) (“[P]ut in proper
context, the fact that Anderson can count change, volunteer at a nursing home,
and perform chores around the house is not necessarily persuasive evidence of
Anderson’s intellectual ability.”). The Court cannot conclude that the ALJ’s error
was harmless.
Accordingly, the Commissioner’s decision is due to be remanded because
the ALJ failed to state with any clarity his position with respect to the validity of
Plaintiff’s IQ score of 70. In light of this conclusion, the Court finds it unnecessary
to consider Plaintiff’s contention that the ALJ failed to properly consider the
opinions of Dr. Shyngle. Jackson v. Bowen, 801 F.2d 1291, 1294 n.2 (11th Cir.
1986). However, the ALJ will be directed to re-consider the opinions of Dr.
Shyngle should the ALJ get past step three on remand.
Accordingly, it is ORDERED:
1.

The Commissioner’s decision is REVERSED pursuant to sentence

four of 42 U.S.C. § 405(g) and REMANDED with instructions to the ALJ to: (a)
reconsider whether Plaintiff meets or medically equals the criteria of intellectual
disability in accordance with this opinion; (b) reconsider the opinions of Dr.
Shyngle, if necessary, and (c) conduct any further proceedings deemed
appropriate.
2.

The Clerk of Court is directed to enter judgment consistent with this

Order and close the file.
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3.

Plaintiff’s counsel is advised that, in the event benefits are awarded

on remand, any § 406(b) or § 1383(d)(2) fee application shall be filed within the
parameters set forth by the Order entered in Case No.: 6:12-124-Orl-22 (In re:
Procedures for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) &
1383(d)(2)). This Order does not extend the time limits for filing a motion for
attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.
DONE AND ORDERED at Jacksonville, Florida, on September 19, 2016.

Copies to:
Counsel of Record

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