BROWN v. COLVIN

Filing 13

ORDER re 1 Complaint filed by TABBARIS LEON BROWN. Plaintiff's application is remanded to the Commissioner of Social Security pursuant to Sentence Four of Section 205(g) of the Social Security Act for further proceedings consistent with this Order. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 6-5-15. (mpm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
TABBARIS LEON BROWN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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CASE NO. 3:15-CV-1-MSH
Social Security Appeal

ORDER
The Social Security Commissioner, by adoption of the Administrative Law
Judge’s (ALJ’s) determination, denied Plaintiff’s application for disability benefits,
finding that he was not disabled within the meaning of the Social Security Act and
Regulations. Plaintiff contends that the Commissioner’s decision was in error and seeks
review under the relevant provisions of 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c). All
administrative remedies have been exhausted. Both parties filed their written consents
for all proceedings to be conducted by the United States Magistrate Judge, including the
entry of a final judgment directly appealable to the Eleventh Circuit Court of Appeals
pursuant to 28 U.S.C. § 636(c)(3).
LEGAL STANDARDS
The court’s review of the Commissioner’s decision is limited to a determination of
whether it is supported by substantial evidence and whether the correct legal standards
were applied. Walker v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987) (per curiam).

“Substantial evidence is something more than a mere scintilla, but less than a
preponderance. If the Commissioner's decision is supported by substantial evidence, this
court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.
3d 1206, 1210 (11th Cir. 2005) (internal quotation marks omitted). The court’s role in
reviewing claims brought under the Social Security Act is a narrow one. The court may
neither decide facts, re-weigh evidence, nor substitute its judgment for that of the
Commissioner.1 Moore v. Barnhart, 405 F. 3d 1208, 1211 (11th Cir. 2005). It must,
however, decide if the Commissioner applied the proper standards in reaching a decision.
Harrell v. Harris, 610 F.2d 355, 359 (5th Cir. 1980) (per curiam). The court must
scrutinize the entire record to determine the reasonableness of the Commissioner’s
factual findings.

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

However, even if the evidence preponderates against the Commissioner’s decision, it
must be affirmed if substantial evidence supports it. Id.
The Plaintiff bears the initial burden of proving that he is unable to perform his
previous work. Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). The Plaintiff’s burden
is a heavy one and is so stringent that it has been described as bordering on the
unrealistic. Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981).2 A Plaintiff
seeking Social Security disability benefits must demonstrate that he suffers from an
1

Credibility determinations are left to the Commissioner and not to the courts. Carnes v.
Sullivan, 936 F.2d 1215, 1219 (11th Cir. 1991). It is also up to the Commissioner and not to the
courts to resolve conflicts in the evidence. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th Cir.
1986) (per curiam); see also Graham v. Bowen, 790 F.2d 1572, 1575 (11th Cir. 1986).

2

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decision of the former Fifth Circuit rendered
prior to October 1, 1981.
2

impairment that prevents him from engaging in any substantial gainful activity for a
twelve-month period. 42 U.S.C. § 423(d)(1). In addition to meeting the requirements of
these statutes, in order to be eligible for disability payments, a Plaintiff must meet the
requirements of the Commissioner’s regulations promulgated pursuant to the authority
given in the Social Security Act. 20 C.F.R. § 404.1 et seq.
Under the Regulations, the Commissioner uses a five-step procedure to determine
if a Plaintiff is disabled. Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004); 20
C.F.R. § 404.1520(a)(4). First, the Commissioner determines whether the Plaintiff is
working.

Id.

If not, the Commissioner determines whether the Plaintiff has an

impairment which prevents the performance of basic work activities. Id. Second, the
Commissioner determines the severity of the Plaintiff’s impairment or combination of
impairments. Id. Third, the Commissioner determines whether the Plaintiff’s severe
impairment(s) meets or equals an impairment listed in Appendix 1 of Part 404 of the
Regulations (the “Listing”).

Id.

Fourth, the Commissioner determines whether the

Plaintiff’s residual functional capacity (“RFC”) can meet the physical and mental
demands of past work. Id. Fifth and finally, the Commissioner determines whether the
Plaintiff’s residual functional capacity, age, education, and past work experience prevent
the performance of any other work. In arriving at a decision, the Commissioner must
consider the combined effects of all of the alleged impairments, without regard to
whether each, if considered separately, would be disabling. Id. The Commissioner’s
failure to apply correct legal standards to the evidence is grounds for reversal. Id.

3

ISSUES
I.

Whether the ALJ properly evaluated Plaintiff’s mental impairment(s) and
determined that Plaintiff does not meet either Listing 12.05B or 12.05C.

II.

Whether the ALJ adequately explained the reasoning for his evaluation of a
consultative examiner’s opinion and incorporated it into the RFC.
Administrative Proceedings
Plaintiff applied for supplemental security income on November 17, 2011 alleging

that he has been disabled to work since January 31, 2008. Tr. 11, ECF No. 10-2.
Plaintiff’s application was denied initially and on reconsideration, and Plaintiff timely
requested a hearing before an ALJ. The ALJ conducted a hearing on July 24, 2013. Id.
Following the hearing, the ALJ issued an unfavorable decision on August 23, 2013. Tr.
11-22.

The Appeals Council ultimately denied Plaintiff’s Request for Review on

November 10, 2014. Tr. 1-3. This appeal followed.
Statement of Facts and Evidence
After consideration of the written evidence and the hearing testimony in this case,
the ALJ determined that Plaintiff had not engaged in substantial gainful activity as
defined by the Act since November 17, 2011, the application date. Tr. 13. The ALJ
found that Plaintiff had the severe impairments of borderline intellectual functioning
(rule-out mild mental retardation), obesity, and asthma. Id. The ALJ then determined
that Plaintiff had no impairments or combination of impairments that met or medically
equaled any one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Tr. 14-16.

4

After consideration of the entire record, the ALJ found that Plaintiff retained the
residual functional capacity to perform a full range of work at all exertional levels with
nonexertional limitations. Tr. 16-20. Plaintiff had no past relevant work. Tr. 20. The
ALJ further found that Plaintiff was 28 years old on the alleged disability date, which is
defined as a younger individual age 18-49. Id. The ALJ found Plaintiff possessed a high
school education and the ability to communicate in English. Id.
Because the nonexertional limitations within the RFC assessment compromised
Plaintiff’s ability to work, the ALJ elicited testimony from a vocational expert (VE) that,
considering his education, age, work experience, and RFC, there were jobs which existed
in significant numbers in the national economy which Plaintiff could perform such as
picking table worker, basket filler, and packing floor worker. Tr. 21. The ALJ therefore
found that Plaintiff had not been under a disability as defined in the Act from November
17, 2011 through the date of the decision. Tr. 22.
DISCUSSION
In his brief on appeal, Plaintiff raises three issues about how the ALJ evaluated his
nonexertional impairment of borderline intellectual functioning. He also asserts in his
fourth contention that the ALJ failed to specify the weight given to the opinion of a
consultative psychologist. Pl.’s Br. 1-2, ECF No. 11. The Commissioner responds that
substantial evidence supports the ALJ’s decision and that correct legal principles were
applied in reaching the decision. Comm’r’s Br., ECF No. 12. Because the Court finds
merit in Plaintiff’s argument that the ALJ improperly disregarded a valid IQ score of 53,
only that issue is addressed herein.
5

On April 23, 2012, Plaintiff was evaluated by a consultative psychologist, John
Grace, Psy.D.

Tr. 454-60.

Prior to the evaluation, Dr. Grace had only the Adult

Disability Report to review. He did not have access to the school records that are in the
full record in this case. Tr. 455. Dr. Grace conducted a clinical interview and a mental
status examination and administered the Wechsler Adult Intelligence Scale-IV (WAISIV), the Wide Range Intelligence Test-4 (WRAT-4) and Bender Gestalt. Tr. 458-59. Dr.
Grace assessed Plaintiff with a full scale IQ of 53 with an estimate that retesting would
result in a score of 50 to 58 with 95% reliability. Dr. Grace specifically said that the full
scale 53 should be considered “the best representation of his overall intellectual abilities.”
He also said the 53 placed him in the 0.1 percentile among age peers and thus classified
Plaintiff’s intellectual ability as “extremely low” with “severely limited”

cognitive

deficits. Tr. 458, 460. Most important, Dr. Grace stated clearly in his written report that
“these results are considered to be a valid representation of his intellectual, academic,
behavioral and emotional functioning.” Tr. 458.
However,—and here is the core issue in this case—Dr. Grace also said “a
diagnosis of mild mental retardation should be ruled out as this diagnosis could be
definitively given without documentation regarding his academic and/or adaptive
functioning prior to the age of 18.” Tr. 458. The structure of the sentence indicates that
“not” should have been stated between “could” and “be.”

The ALJ relied on the

statement to find that Plaintiff has no diagnosis of mental retardation or intellectual
disability and thus did not meet the Listing 12.05B.
At the hearing, Plaintiff’s counsel requested that the school records be sent to Dr.
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Grace and that he be recontacted after he had reviewed them. Tr. 31. This is what should
have been done. Instead, the ALJ pointed out in his written decision that Plaintiff had
higher scores fifteen years earlier when tested through the Clarke County Schools, scores
which would not meet the listing in question. But he did not adequately address the
significant and determinative gap in the record evidence, despite being asked to do so.
He merely wrote that “(t)here is nothing in the records that would appear to explain such
a large discrepancy between IQ scores.”

Tr. 16.

Clearly, additional evidence is

necessary to properly evaluate Plaintiff’s claim. Johnson v. Barnhart, 138 F. App’x 266,
270 (11th Cir. 2005).3
CONCLUSION
WHEREFORE, for the foregoing reasons, it is ORDERED that Plaintiff’s case be
REMANDED to the Social Security Commissioner, under sentence four of Section
205(g) of the Social Security Act, for further proceedings consistent with this opinion.
On remand, the Commissioner is directed to consider the arguments raised in Plaintiff’s
brief and address the other issues contained therein.
SO ORDERED, this 5th day of June, 2015.
/s/ Stephen Hyles
UNTED STATES MAGISTRATE JUDGE

3

The error is compounded to some extent by the failure of the ALJ to state what weight he
afforded to the findings by Dr. Grace. The Commissioner should do so on remand.
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