Shelton v. Commissioner of Social Security

Filing 19

ORDER re 3 Complaint filed by Roy Edward Shelton. This matter is reversed and remanded to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. §405(g). Signed by Chief Judge Linda R Reade on 03/10/16. (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

ROY EDWARD SHELTON,
Plaintiff,

No. 14-CV-0122-LRR

vs.
CAROLYN W. COLVIN, Commissioner
of Social Security,

ORDER

Defendant.

TABLE OF CONTENTS
I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III.

PRINCIPLES OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV.

FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Shelton’s Education and Employment Background . . . . . . . . . . . . .
B.
Vocational Expert’s Testimony from Administrative
Hearing Held on May 9, 2014 . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Shelton’s Relevant Medical History . . . . . . . . . . . . . . . . . . . . . . .

4
4
5
6

V.

CONCLUSIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
ALJ’s Disability Determination . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Objections Raised By Claimant . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Listing 12.05C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
RFC Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Reversal or Remand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10
10
12
12
16
18

VI.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

I. INTRODUCTION
This matter comes before the court on the Complaint (docket no. 3) filed by Plaintiff
Roy Edward Shelton on November 17, 2014, requesting judicial review of the Social
Security Commissioner’s decision to deny his applications for Title II disability insurance
benefits and Title XVI supplemental security income (“SSI”) benefits. Shelton asks the
court to reverse the decision of the Social Security Commissioner (“Commissioner”) and
order the Commissioner to provide him disability insurance benefits and SSI benefits. In
the alternative, Shelton requests the court to remand this matter for further proceedings.
II. PROCEDURAL BACKGROUND
On August 8, 2012, Shelton applied for both disability insurance benefits and SSI
benefits. In his applications, Shelton alleged an inability to work since May 6, 2008 due
to degenerative arthritis and a bulging disc in his lower back, and a learning disability.
Shelton’s applications were denied on November 29, 2012. On March 27, 2013, his
applications were denied on reconsideration. On May 9, 2014, Shelton and his attorney
appeared via video conference before Administrative Law Judge (“ALJ”) Eric S. Basse
for an administrative hearing.1 Shelton and vocational expert Vanessa May testified at the
hearing. In a decision dated September 16, 2014, the ALJ denied Shelton’s claims. The
ALJ determined that Shelton was not disabled and not entitled to disability insurance
benefits or SSI benefits because he was functionally capable of performing work that exists
in significant numbers in the national economy. Shelton appealed the ALJ’s decision. On
October 27, 2014, the Appeals Council denied Shelton’s request for review.
Consequently, the ALJ’s September 16, 2014 decision was adopted as the Commissioner’s
final decision.

1

At the administrative hearing, Shelton was represented by attorney William P.
Gordon. On appeal, Shelton is represented by attorney Ruth M. Carter.
2

On November 17, 2014, Shelton filed this action for judicial review. On January
29, 2015, the Commissioner filed an Answer (docket no. 7). On March 31, 2015, Shelton
filed a Brief (docket no. 12) arguing that there is not substantial evidence in the record to
support the ALJ’s finding that he is not disabled and that he is functionally capable of
performing other work that exists in significant numbers in the national economy. On June
2, 2015, the Commissioner filed a responsive brief (“Commissioner’s Brief”) (docket no.
14) arguing that the ALJ’s decision was correct and asking the court to affirm the ALJ’s
decision. On June 8, 2015, Shelton filed a Reply Brief (docket no. 15).
III. PRINCIPLES OF REVIEW
The Commissioner’s final determination not to award disability insurance benefits
following an administrative hearing is subject to judicial review. 42 U.S.C. § 405(g). The
court has the authority to “enter . . . a judgment affirming, modifying, or reversing the
decision of the Commissioner . . . with or without remanding the cause for a rehearing.”
Id. The Commissioner’s final determination not to award SSI benefits is subject to judicial
review to the same extent as provided in 42 U.S.C. § 405(g). 42 U.S.C. § 1383(c)(3).
The court “must affirm the Commissioner’s decision if it is supported by substantial
evidence on the record as a whole.” Bernard v. Colvin, 774 F.3d 482, 486 (8th Cir. 2014)
(quoting Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006)). Substantial evidence is
defined as “less than a preponderance of the evidence, but is ‘such relevant evidence a
reasonable mind would find adequate to support the commissioner’s conclusion.’” Grable
v. Colvin, 770 F.3d 1196, 1201 (8th Cir. 2014) (quoting Davis v. Apfel, 239 F.3d 962,
966 (8th Cir. 2001)). In determining whether the ALJ’s decision meets this standard, the
court considers “all of the evidence that was before the ALJ, but [does] not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). “The findings of the
Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive
. . . .” 42 U.S.C. § 405(g). The court not only considers the evidence which supports the

3

ALJ’s decision but also the evidence that detracts from his or her decision. See Perks v.
Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012).
In Culbertson v. Shalala, the Eighth Circuit Court of Appeals explained:
This standard is “something less than the weight of the
evidence and it allows for the possibility of drawing two
inconsistent conclusions, thus it embodies a zone of choice
within which the [Commissioner] may decide to grant or deny
benefits without being subject to reversal on appeal.”
Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (quoting Turley v. Sullivan, 939
F.2d 524, 528 (8th Cir. 1991)). In Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011),
the Eighth Circuit further explained that a court “will not disturb the denial of benefits so
long as the ALJ’s decision falls within the available zone of choice. An ALJ’s decision
is not outside the zone of choice simply because [a court] might have reached a different
conclusion had [the court] been the initial finder of fact.” Buckner, 646 F.3d at 556
(quoting Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008)). Therefore, “even if
inconsistent conclusions may be drawn from the evidence, the agency’s decision will be
upheld if it is supported by substantial evidence on the record as a whole.” Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); see also Cline v. Colvin, 771 F.3d 1098,
1102 (8th Cir. 2014) (“As long as substantial evidence in the record supports the
Commissioner’s decision, [the court] may not reverse it because substantial evidence exists
in the record that would have supported a contrary outcome, or because [the court] would
have decided the case differently.” (quoting Krogmeier v. Barnhart, 294 F.3d 1019, 1022
(8th Cir. 2002))).
IV. FACTS
A. Shelton’s Education and Employment Background
Shelton was born in 1972. He completed the tenth grade and dropped out of school
in the eleventh grade. Shelton testifed that while in school, he was enrolled in special
education classes beginning in elementary school. After the eleventh grade, he had no
4

further education or training. In the past, Shelton worked as a commercial cleaner,
production helper, floor cleaner, paint sprayer/sandblaster and material handler.
B. Vocational Expert’s Testimony from Administrative
Hearing Held on May 9, 2014
At the administrative hearing, the ALJ provided vocational expert Vanessa May
with a hypothetical for an individual who is capable of:
sedentary work . . . so we’re basically in the usual six of eight
sitting, two of eight, ten pounds. Can occasionally climb,
balance, stoop, kneel, crouch and crawl, probably no ladders,
ropes, scaffolds. That sounds I think reasonable considering
his cane, should avoid concentrated exposure to cold, capable
of simple routine tasks and also environments that have []very
few workplace changes. So I’m talking about a, you know,
very routine, repetitive sorts of tasks. No contact with the
public. They can be around, but no, no interaction with the
public to do your job tasks, can interact with coworkers and
supervisors okay, but probably not in large groups, so no large
groups of coworkers. No requirement to read instructions or
write reports, in fact probably no reading requirement at all
other than very, very basic simple things. No requirement for
mathematical calculations, although some simple addition and
subtraction would be okay.
Administrative Record at 51. The vocational expert testified that under such limitations,
Shelton would be precluded from his past relevant work, but could perform the following
jobs: (1) document preparer, (2) ticket counter and (3) sorter. The ALJ continued his
questioning of the vocational expert:
Q:

A:
Q:

Okay. So, if the person—add in avoid exposure to—or
concentrated exposure to pulmonary irritants such as
fumes, gases, dusts, so forth. That will change those
jobs?
No.
That—those—are those jobs available to someone who
is illiterate?

5

A:
Q:

A:

Yeah, for the most part [they are] just jobs that can be
identified by demonstration.
Okay. If the person needs to lie down for oh, say 25
percent of the workday due to pain, but needs to recline
say for—well, say 20 percent of the workday at
unscheduled times. Any jobs?
No.

Id. at 52.
C. Shelton’s Relevant Medical History
On September 7, 2010, Shelton met with Brian Jones, MPT, for a functional
capacity evaluation. Shelton returned to Jones on September 14, 2010 to complete the
evaluation. In his evaluation, Jones reviewed Shelton’s impairment history:
[Shelton] was initially injured in 2008 while working on the
dock at Pearson’s. He states he was lifting a heavy object
when he experienced immediate pain. He had limited therapy
at that time and later aggravated the initial back injury with a
fall on the ice New Year’s Eve 2009. Pain is now getting
worse in his back and travels down to his right buttock. . . .
There is pain and tingling at time[s] all the way to the foot.
Id. at 420. Shelton reported limitations in self-care requiring movement of his lower
extremities and trunk. He also reported limitations in his ability to walk, work and care
for his residence. According to Shelton, his pain level at rest is 8-9 out of 10, with 10
being the greatest amount of pain, and 10 out of 10 with activity. Muscle testing showed
“[u]pper extremity strength including grip appears to be normal and with equal ability on
left and right. Lower extremity . . . testing shows weakness on both sides with greater
weakness in right compared to left.” Id. at 420. Similarly, upper extremity range of
motion was within “normal” limits, but right lower extremity range of motion was
restricted when compared to left lower extremity. Upon testing, Shelton’s maximum
lifting ability was 20 pounds. Jones concluded that “[Shelton] provided good effort with
functional testing.” Id. at 421.

6

On October 6, 2010, Dr. Tracey Larrison, D.O., reviewed Shelton’s medical
records and provided Disability Determination Services (“DDS”) with a physical residual
functional capacity (“RFC”) assessment for Shelton. Dr. Larrison determined that Shelton
could: (1) occasionally lift and/or carry 20 pounds, (2) frequently lift and/or carry
10 pounds, (3) stand and/or walk with normal breaks for about six hours in an eight-hour
workday, (4) sit with normal breaks for a total of about six hours in an eight-hour workday
and (5) push and/or pull without limitations. Dr. Larrison also determined that Shelton
could occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl, but
never climb ladders, ropes or scaffolds. Dr. Larrison opined that Shelton should avoid
concentrated exposure to hazards such as machinery and heights. Dr. Larrison found no
manipulative, visual or communicative limitations.
On October 9, 2012, at the request of DDS, Shelton was referred to Dr. Harlan J.
Stientjes, Ph.D., for a psychological evaluation. In reviewing Shelton’s educational
background, Dr. Stientjes noted:
[Shelton] received special education services starting at 3rd
grade and was teased frequently. He dropped out of school in
11th grade, saying his girlfriends had done his homework prior
to that time. He has attempted to get a GED but cannot pass
the tests. Test results reportedly say he has a 3rd grade
reading level.
Id. at 596. In testing Shelton’s memory, attention and concentration, Dr. Stientjes found:
[Shelton] read slowly and laboriously, needing several words
supplied. Content recall was vague. . . . He was unable to
make any correct calculations in serial subtraction. He
repeated three words as requested and later remembered one
of them. Letter Number Sequencing score was at the 5th
percentile. He made two errors in repeating a sentence but
correctly followed a 3-step oral instruction.
Id. at 597. Upon examination, Dr. Stientjes diagnosed Shelton with major depressive
disorder and presumed borderline intellectual ability. Dr. Stientjes opined that Shelton’s
7

“[p]rospect of return to employment is comparatively weak. General cognitive ability may
be above level of impairment but not appreciably.” Id. at 598. Dr. Stientjes concluded:
[Shelton] can master simple routines but will likely require
more than typical repetitions. He can follow simple oral and
written instructions with external structures and prompts.
Carryover is likely to be inconsistent. He interacts acceptably
but presents as mildly manipulative and self-serving. Safety
judgment is basic. Change can be tolerated with assistance
from external sources for interpretations of specifics and
reminders.
Id. at 598.
On October 15, 2012, Shelton met with Dr. Robert J. Schultes, M.D., for a
consultative examination. Shelton reported low back pain for 4 years, degenerative
arthritis, difficulty bending, right lower extremity pain, a pinched nerve and bulging disc,
a learning disability since childhood and an inability to read and write. Shelton also
reported the following functional abilities:
[Shelton] states he can do the following. He can lift 5-10
pounds 1 hour per day secondary to low back pain. He can
carry 10 pounds 15 minutes per day secondary to low back
pain. He can stand 1 hour per day secondary to low back
pain. He can move about 1 hour per day secondary to low
back pain. He can walk 1/2 mile secondary to low back pain.
He can sit 20 minutes per day secondary to low back pain. He
cannot do any stooping secondary to low back pain. He can
climb 1 hour per day secondary to low back pain. He cannot
kneel secondary to low back pain. He can crawl 1 hour per
day. He can handle objects 2 hours per day secondary to
shakiness. He can see, hear, and speak 8 hours per day. He
can travel 1 hour per day. He has no[] problems with dust or
fumes. He cannot work in temperatures above 70 degrees
Fahrenheit secondary to dizziness, sweating, and then passing
out. He can work around other hazards.

8

Id. at 602-603. Upon examination, Dr. Schultes diagnosed Shelton with chronic low back
pain with right lower extremity radiculopathy, functional illiteracy, decreased range of
motion, strength, and ambulation, asthma and chest tightness.
On June 3, 2014, DDS, again, referred Shelton to Dr. Stientjes for a second
psychological evaluation. Upon meeting with Shelton, Dr. Stientjes found him to be
“vaguely” oriented to date. He was unable to read a passage from a book at the 4th grade
reading level. He made two errors in following a 3-step oral instruction. He had 25%
recall of a short story read to him. Dr. Stientjes administered the WAIS-IV intelligence
test to Shelton. Overall, Dr. Stientjes noted that Shelton demonstrated “modest” effort on
the test, but believed the results were “acceptable and valid for current decision making.”
Id. at 685. Dr. Stientjes further noted that Shelton “tends to be inattentive to specifics and
therefore does poorly on memory and processing speed tasks.” Id. Shelton’s full scale
IQ score was 72. Dr. Stientjes concluded:
Academic skills are very poor and likely impaired. General
cognitive ability was assessed and verbal and non-verbal
reasoning appear to be in the boderline to low average range.
Inattention and effort depress the working memory and
processing speed index scores. Overall functioning is
consistent with borderline intellectual functioning.
Id. at 686. Dr. Stientjes diagnosed Shelton with major depressive disorder, reading
disorder, math disorder, disorder of written expression and borderline general ability. Dr.
Stientjes opined that Shelton is moderately limited in the ability to: understand and
remember complex instructions, carry out complex instructions and make judgments on
complex work-related decisions. Dr. Stientjes also opined that Shelton is markedly limited
in the ability to: interact appropriately with supervisors and respond appropriately to usual
work situations and to changes in a routine work setting. Finally, Dr. Stientjes indicated
that Shelton would have difficulty with the capacity to remain focused and understand
written material due to his impairments.
9

V. CONCLUSIONS OF LAW
A. ALJ’s Disability Determination
The ALJ determined that Shelton is not disabled. In making this determination, the
ALJ was required to complete the five-step sequential test provided in the social security
regulations.

See 20 C.F.R. §§ 404.1520(a)-(g), 416.920(a)-(g); Bowen v. Yuckert,

482 U.S. 137, 140-42 (1987); Moore v. Colvin, 769 F.3d 987, 988 (8th Cir. 2014). The
five steps that an ALJ must consider are:
(1) whether the claimant is currently employed; (2) whether
the claimant is severely impaired; (3) whether the impairment
is or approximates an impairment listed in Appendix 1;
(4) whether the claimant can perform past relevant work; and,
if not, (5) whether the claimant can perform any other kind of
work.
Hill v. Colvin, 753 F.3d 798, 800 (8th Cir. 2014); see also 20 C.F.R. §§ 404.1520(a)(g), 416.920(a)-(g). “If a claimant fails to meet the criteria at any step in the evaluation
of disability, the process ends and the claimant is determined to be not disabled.” Pelkey,
433 F.3d at 577 (quoting Goff v. Barnhart, 421 F.3d 785, 789-90 (8th Cir. 2005)).
In considering the steps in the five-step process, the ALJ:
first determines if the claimant engaged in substantial gainful
activity. If so, the claimant is not disabled. Second, the ALJ
determines whether the claimant has a severe medical
impairment that has lasted, or is expected to last, at least
12 months. Third, the ALJ considers the severity of the
impairment, specifically whether it meets or equals one of the
listed impairments. If the ALJ finds a severe impairment that
meets the duration requirement, and meets or equals a listed
impairment, then the claimant is disabled. However, the
fourth step asks whether the claimant has the residual
functional capacity to do past relevant work. If so, the
claimant is not disabled. Fifth, the ALJ determines whether
the claimant can perform other jobs in the economy. If so, the
claimant is not disabled.

10

Kluesner v. Astrue, 607 F.3d 533, 537 (8th Cir. 2010). At the fourth step, the claimant
“bears the burden of demonstrating an inability to return to [his] or her past relevant
work.” Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010) (quoting Pate-Fires v. Astrue,
564 F.3d 935, 942 (8th Cir. 2009)). If the claimant meets this burden, the burden shifts
to the Commissioner at step five to demonstrate that “the claimant has the physical residual
capacity to perform a significant number of other jobs in the national economy that are
consistent with [his or] her impairments and vocational factors such as age, education, and
work experience.” Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir. 2012) (quoting Holley
v. Massanari, 253 F.3d 1088, 1093 (8th Cir. 2001)). The RFC is the most an individual
can do despite the combined effect of all of his or her credible limitations. See 20 C.F.R.
§§ 404.1545(a), 416.945(a)(1); Toland v. Colvin, 761 F.3d 931, 935 (8th Cir. 2014). The
ALJ bears the responsibility for determining “a claimant’s RFC based on all of the relevant
evidence, including the medical records, observations of treating physicians and others,
and an individual’s own description of [his or her] limitations.” Myers v. Colvin, 721 F.3d
521, 527 (8th Cir. 2013) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000));
20 C.F.R. §§ 404.1545, 416.945.
The ALJ applied the first step of the analysis and determined that Shelton had not
engaged in substantial gainful activity since May 6, 2008. At the second step, the ALJ
concluded from the medical evidence that Shelton had the following severe impairments:
degenerative disc disease of the lumbar spine, COPD/asthma, major depression, math
disorder, reading disorder, disorder of written expression and history of polysubstance
dependence in remission. At the third step, the ALJ found that Shelton did not have an
impairment or combination of impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. At the fourth step, the ALJ determined Shelton’s RFC as follows:
[Shelton] has the residual functional capacity to perform
sedentary work . . . with the following additional limitations:
occasionally climb, balance, stoop, kneel, crouch and crawl;
11

never climb ladders, ropes or scaffolds; avoid concentrated
exposures to cold; very simple, routine, repetitive tasks; few
workplace changes; no contact with the public to perform job
tasks; can interact with coworkers and supervisors but not in
large groups; no more than basic reading; and no writing of
reports as requirements of the job; no math calculations other
than simple addition and subtraction; no exposures to
pulmonary irritants.
Administrative Record at 12. Also at the fourth step, the ALJ determined that Shelton is
unable to perform his past relevant work. At the fifth step, the ALJ determined that based
on his age, education, previous work experience and RFC, Shelton could work at jobs that
exist in significant numbers in the national economy. Therefore, the ALJ concluded
Shelton was not disabled.
B. Objections Raised By Claimant
Shelton argues that the ALJ erred in two respects. First, Shelton argues that the
ALJ erred by failing to consider whether he was presumptively disabled because his
impairment of borderline intellectual ability equals Listing § 12.05C for mild mental
retardation. Second, Shelton argues that the ALJ’s RFC assessment is flawed because the
record was not fully and fairly developed and it is not based on substantial evidence in the
record.
1.

Listing 12.05C

Listing 12.05C provides in pertinent part:
Intellectual disability:
Intellectual 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
requirements in A, B, C, or D are satisfied.
...
12

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. In Maresh v. Barnhart, 438 F.3d 897 (8th
Cir. 2006), the Eighth Circuit summarized the requirements of Listing 12.05C as follows:
a claimant must show: (1) a valid verbal, performance, or full
scale IQ of 60 through 70; (2) an onset of the impairment
before age 22; and (3) a physical or other mental impairment
imposing an additional and significant work-related limitation
of function.
Id. at 899.
Here, Shelton scored a full IQ score of 72. Clearly, Shelton does not meet the first
requirement of Listing 12.05C, as his full IQ score is not between 60 and 70. Due to
Shelton’s full IQ score being above 70, the ALJ apparently believed that he was not
required to address Listing 12.05 in his decision. While there is no error in the ALJ’s
implicit conclusion that Shelton does not meet the requirements of Listing 12.05C, Shelton
argues that the ALJ erred because he did not address whether his impairments equaled
Listing 12.05C. Shelton is correct.
In Shontos v. Barnhart, 328 F.3d 418 (8th Cir. 2003), the Eighth Circuit pointed
out that the Commissioner issued instructions for determining medical equivalence in the
Program Operations Manual System (“POMS”). Id. at 424. The applicable POMS
provision for determining medical equivalence and mental retardation under Listing
12.05C states in pertinent part:
Listing 12.05C is based on a combination of an IQ score with
an additional significant mental or physical impairment. The
criteria of this paragraph are such that a medical equivalence
determination would very rarely be required. However,
slightly higher IQ’s (e.g. 70-75) in the presence of other
physical or mental disorders that impose additional and
significant work-related limitation of function may support an
13

equivalence determination. It should be noted that generally
the higher the IQ, the less likely medical equivalence in
combination with another physical or mental impairment(s) can
be found.
POMS § DI 24515.056. In Shontos, the claimant had an IQ score of 72, and medical
evidence from her treating doctors which indicated that she had difficulty with anxiety and
depression which would interfere with her ability to work. Shontos, 328 F.3d at 424. The
ALJ who considered Shontos’s claim did not consider the POMS guidelines. Id. The
Eighth Circuit determined that the ALJ’s failure to consider the POMS guidelines was
error. Id. Specifically, the Eighth Circuit found that “[a]lthough POMS guidelines do not
have legal force, and do not bind the Commissioner, this court has instructed that an ALJ
should consider the POMS guidelines.” Id. (citing Berger v. Apfel, 200 F.3d 1157, 1161
(8th Cir. 2000); List v. Apfel, 169 F.3d 1148, 1150 (8th Cir. 1999)). The Eighth Circuit
concluded that Shontos’s impairments, including “borderline intellectual functioning,
psychiatric affective disorders, and physical disabilities, were medically equivalent to
[L]isting 12.05C,” and remanded the case for an award of benefits. Id. at 427.
Similar to Shontos, Shelton had a full IQ score of 72. Twice at the request of DDS,
Shelton underwent psychological evaluations by Dr. Harlan J. Stientjes, Ph.D. In both
evaluations, Dr. Stientjes diagnosed Shelton with borderline general ability/intellectual
functioning. In 2012, Dr. Stientjes found that:
[Shelton] read slowly and laboriously, needing several words
supplied. Content recall was vague. . . . He was unable to
make any correct calculations in serial subtraction. He
repeated three words as requested and later remembered one
of them. Letter Number Sequencing score was at the 5th
percentile. He made two errors in repeating a sentence but
correctly followed a 3-step oral instruction.
Administrative Record at 597. In 2014, Dr. Stientjes found that Shelton was unable to
read a passage from a book at the 4th grade reading level. He made two errors in

14

following a 3-step oral instruction. He had 25% recall of a short story read to him. In
addition to diagnosing Shelton with borderline intellectual ability, Dr. Stientjes also
diagnosed him with math disorder, reading disorder and disorder of written expression.
Furthermore, with regard to Shelton’s IQ testing, Dr. Stientjes opined that Shelton’s:
[a]cademic skills are very poor and likely impaired. General
cognitive ability was assessed and verbal and non-verbal
reasoning appear to be in the borderline to low average range.
Inattention and effort depress the working memory and
processing speed index scores. Overall functioning is
consistent with borderline intellectual functioning.
Id. at 686.
Additionally, the record demonstrates that Shelton required special education
throughout his schooling. He dropped out of school in the eleventh grade. Dr. Stientjes
noted:
[Shelton] received special education services starting at 3rd
grade and was teased frequently. He dropped out of school in
the 11th grade, saying his girlfriends had done his homework
prior to that time. He attempted to get a GED but cannot pass
the tests. Test results reportedly say he has a 3rd grade
reading level.
Id. at 596. The court believes that there is sufficient evidence that Shelton’s boderline
intellectual functioning manifested itself as an impairment before age 22. See Maresh, 438
F.3d at 899 (providing the requirements for meeting Listing 12.05C).
Finally, the Commissioner acknowledged that “[Shelton’s] other severe impairments
would have satisfied [the final requirement of § 12.05C] of at least one other physical or
mental impairment.” Commissioner’s Brief at 11.
Based on the evidence in the record, the court finds that the ALJ’s failure to address
the POMS guidelines or consider whether Shelton’s borderline intellectual functioning
combined with his other significant impairments were medically equivalent to Listing
12.05C was error. See Shontos, 328 F.3d at 424-27 (instructing ALJs to consider the
15

POMS guidelines when considering equivalency under Listing 12.05C). Interestingly,
while the ALJ determined that Shelton’s math disorder, reading disorder and disorder of
written expression were severe impairments, the ALJ did not find borderline intellectual
functioning to be a severe disorder. It is even more curious because the ALJ “accorded
great weight to the opinion of Dr. Stientjes based on the scores of the WAIS-IV and
cumulative mental status examinations,” and it was the WAIS-IV IQ score of 72 which led
Dr. Stientjes to diagnose Shelton with borderline intellectual ability. See Administrative
Record at 16. Accordingly, the court determines that remand is necessary. On remand,
the ALJ must fully consider and address Shelton’s diagnosis of borderline intellectual
ability, and the ALJ must determine whether Shelton’s impairments are medically
equivalent to Listing 12.05C.
2.

RFC Assessment

Shelton argues that the ALJ’s RFC assessment is not supported by substantial
evidence in the record because the ALJ failed to consider all of his functional limitations,
including borderline intellectual ability.

Specifically, Shelton argues that when

determining his RFC assessment, the ALJ failed to address and consider all of the medical
evidence in the record which supports significant functional limitations, including whether
his borderline intellectual ability is equal to Listing 12.05C. Shelton maintains that this
matter should be remanded for further development of his RFC.
When an ALJ determines that a claimant is not disabled, he or she concludes that
the claimant retains the residual functional capacity to perform a significant number of
other jobs in the national economy that are consistent with the claimant’s impairments and
vocational factors such as age, education and work experience. See Beckley v. Apfel, 152
F.3d 1056, 1059 (8th Cir. 1998). The ALJ is responsible for assessing a claimant’s RFC,
and his or her assessment must be based on all of the relevant evidence. See Guilliams,
393 F.3d at 803; see also Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000) (same).

16

Relevant evidence for determining a claimant’s RFC includes “medical records,
observations of treating physicians and others, and an individual’s own description of his
[or her] limitations.” Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir. 2006) (quoting
Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004)). “While the ALJ must
consider all of the relevant evidence when determining a claimant’s RFC, the RFC is
ultimately a medical question that must find at least some support in the medical evidence
of record.” Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007) (citing Masterson v.
Barnhart, 363 F.3d 731, 738 (8th Cir. 2004)).
Additionally, an ALJ has a duty to develop the record fully and fairly. See Cox v.
Astrue, 495 F.3d 614, 618 (8th Cir. 2007); Sneed v. Barnhart, 360 F.3d 834, 838 (8th
Cir. 2004); Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir. 1998).

Because an

administrative hearing is a non-adversarial proceeding, the ALJ must develop the record
fully and fairly in order that “deserving claimants who apply for benefits receive justice.”
Wilcutts, 143 F.3d at 1138 (quoting Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994));
see also Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006) (“A social security hearing
is a non-adversarial proceeding, and the ALJ has a duty to fully develop the record.”).
“There is no bright line rule indicating when the Commissioner has or has not adequately
developed the record; rather, such an assessment is made on a case-by-case basis.”
Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008) (citation omitted).
Here, the court has already determined that remand is necessary because the ALJ
failed to fully and fairly develop the record with regard to his diagnosis of borderline
intellectual ability and address whether such a diagnosis is equal to Listing 12.05C. See
supra Part V.B.1. Because the ALJ did not fully and fairly develop the record with regard
to Shelton’s diagnosis of borderline intellectual ability, the court finds that the ALJ’s RFC
assessment is not based on all of the relevant evidence. See Guilliams, 393 F.3d at 803.
Accordingly, the court determines that remand is necessary to allow the ALJ to make his

17

RFC assessment for Shelton based on all of the relevant evidence, including his diagnosis
of borderline intellectual ability.
C. Reversal or Remand
The scope of review of the Commissioner’s final decision is set forth in 42 U.S.C.
§ 405(g) which provides in pertinent part:
The court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Secretary, with or without
remanding the cause for a rehearing.
42 U.S.C. § 405(g). The Eighth Circuit has stated that:
Where the total record is overwhelmingly in support of a
finding of disability and the claimant has demonstrated his [or
her] disability by medical evidence on the record as a whole,
we find no need to remand.
Gavin v. Heckler, 811 F.2d 1195, 1201 (8th Cir. 1987); see also Beeler v. Brown,
833 F.2d 124, 127 (8th Cir. 1987) (finding reversal of denial of benefits was proper where
“the total record overwhelmingly supports a finding of disability”); Stephens v. Sec’y of
Health, Educ., & Welfare, 603 F.2d 36, 42 n.1 (8th Cir. 1979) (explaining that reversal
of denial of benefits is justified where no substantial evidence exists to support a finding
that the claimant is not disabled). In the present case, the court concludes that the medical
records as a whole do not “overwhelmingly . . . support a finding of disability.” Beeler,
833 F.2d at 127. Instead, the ALJ simply failed to: (1) consider whether Shelton’s
borderline intellectual ability combined with his other significant impairments was
medically equivalent to Listing 12.05C; and (2) base his determination of Shelton’s RFC
on all of the relevant evidence.
VI. CONCLUSION
The court concludes that this matter should be remanded to the Commissioner for
further proceedings. On remand, the ALJ must determine whether Shelton’s impairments

18

are medically equivalent to Listing 12.05C.

The ALJ must also make his RFC

determination based on all of the relevant evidence.

Accordingly, this matter is

REVERSED and REMANDED to the Commissioner of Social Security pursuant to
sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
DATED this 10th day of March, 2016.

19