Morris v. Social Security Administration

Filing 11

RULING: Under sentence four of 42 USC 405(g), the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security, denying the application for SSI benefits by plaintiff Jonavon Jovante Morris is reversed, and this case is remanded to the Commissioner for reevaluation of the plaintiff's claim for supplemental security income benefits. Signed by Magistrate Judge Stephen C. Riedlinger on 4/11/2014. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JONOVAN J. MORRIS
CIVIL ACTION
VERSUS
NUMBER 13-66-SCR
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY
RULING ON SOCIAL SECURITY APPEAL
Plaintiff Jonovan J. Morris, brought this action under 42
U.S.C. § 405(g) for judicial review of the final decision of
Carolyn

W.

Colvin,

Acting

Commissioner

of

Social

Security

(“Commissioner”) denying his claim for supplemental security income
benefits (“SSI”).1
Based on the standard of review and the analysis which
follows, the Commissioner’s decision is reversed.
Standard of Review
Under § 405(g), judicial review of a final decision of the
Commissioner denying SSI benefits is limited to two inquiries: (1)
whether substantial evidence exists in the record as a whole to
support

the

Commissioner’s

findings,

and

(2)

whether

the

Commissioner’s final decision applies the proper legal standards.

1

Plaintiff was under the age of 18 at the time of his
application, and had attained the age of 18 at the time of the
ALJ’s decision.
Therefore, the ALJ considered the plaintiff’s
application for SSI benefits under the law and regulations
governing adult and children’s claims for SSI benefits. AR p. 24.

Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001); Perez v.
Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).2

If substantial

evidence supports the Commissioner’s findings, they are conclusive
and must be affirmed.

Richardson v. Perales, 402 U.S. 389, 91

S.Ct. 1420, 1422 (1971); Martinez v. Chater, 64 F.3d 172, 173 (5th
Cir. 1995).

Substantial evidence is that which is relevant and

sufficient for a reasonable mind to accept as adequate to support
a conclusion.

It is more than a mere scintilla and less than a

preponderance.

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.

1994); Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000).

A

finding of no substantial evidence is appropriate only if no
credible
decision.

evidentiary

choices

or

medical

findings

support

Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).

the
In

applying the substantial evidence standard the court must review
the entire record as whole, but may not reweigh the evidence, try
the issues de novo, or substitute its judgment for that of the
Commissioner,

even

if

Commissioner’s decision.

the

evidence

weighs

against

the

Newton v. Apfel, 209 F.3d 448, 452 (5th

Cir. 2000). Conflicts in the evidence are for the Commissioner and
not the court to resolve.

Masterson v. Barnhart, 309 F.3d 267, 272

2

It is well established that in cases brought under 42 U.S.C.
§405(g), evidence external to the administrative record is
generally inadmissible, and on judicial review the court cannot
consider any evidence that is not already a part of the
administrative record. Lovett v. Schweiker, 667 F.2d 1,2 (5th Cir.
1981); Flores v. Heckler, 755 F.2d 401, 403 (5th Cir. 1985);
Haywood v. Sullivan, 888 F.3d 1463, 1471 (5th Cir. 1989).
2

(5th Cir. 2002).
If

the

Commissioner

fails

to

apply

the

correct

legal

standards, or provide a reviewing court with a sufficient basis to
determine that the correct legal principles were followed, it is
grounds for reversal.

Bradley v. Bowen, 809 F.2d 1054, 1057 (5th

Cir. 1981); Western v. Harris, 633 F.2d 1204, 1206 (5th Cir. 1981);
Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
Adult Claim for SSI Benefits
A claimant has the burden of proving that he or she suffers
from

a

disability.

A

disability

is

defined

as

a

medically

determinable physical or mental impairment lasting at least 12
months that prevents the claimant from engaging in substantial
gainful activity.

20 C.F.R. § 416.905.

The regulations require

the ALJ to apply a five step sequential evaluation to each claim
for benefits.

20 C.F.R. § 416.920.

In the five step sequence used

to evaluate claims the Commissioner must determine whether: (1) the
claimant is currently engaged in substantial gainful activity; (2)
the claimant has a severe impairment(s); (3) the impairment(s)
meets or equals the severity of a listed impairment in Appendix 1
of the regulations; (4) the impairment(s) prevents the claimant
from performing past relevant work; and, (5) the impairment(s)
prevents the claimant from doing any other work.

Masterson, 309

F.3d at 271.
Listed impairments are descriptions of various physical and
3

mental illnesses and abnormalities generally characterized by the
body system they affect.
several

specific

results.

Each impairment is defined in terms of

medical

signs,

symptoms,

or

laboratory

test

For a claimant to show that his impairment matches a

listed impairment he must demonstrate that it meets all of the
medical criteria specified in the listing.

An impairment that

exhibits only some of the criteria, no matter how severely, does
not qualify.

Sullivan v. Zebley, 493 U.S. 521, 529-32, 110 S.Ct.

885, 891-92 (1990); 20 C.F.R. § 416.925.
The burden of proving disability rests on the claimant through
the first four steps. At the fourth step the Commissioner analyzes
whether the claimant can do any of his past relevant work.

If the

claimant shows at step four that he or she is no longer capable of
performing

past

relevant

work,

the

burden

shifts

to

the

Commissioner to show that the claimant is able to engage in some
type of alternative work that exists in the national economy.
Myers, supra.

If the Commissioner meets this burden the claimant

must then show that he or she cannot in fact perform that work.
Boyd, 239 F.3d at 705.
Child Claim for SSI Benefits
Effective August 22, 1996, the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 changed the law for
determining

disability

in

childhood

disability

SSI

cases.

Essentially, the changes eliminated the fourth step which required
4

the

Commissioner

assessment

to

to

complete

determine

an

whether

a

individualized
child’s

functional

impairments

were

comparable in severity to those which would disable an adult.3
Under the current statute and regulations, an individual under
the age of 18 is considered disabled if that individual “has

a

medically determinable physical or mental impairment, which results
in marked and severe functional limitations, and which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.”

42

U.S.C. § 1382c(a)(3)(C)(i); Harris v. Apel, 209 F.3d 413, 418 (5th
Cir. 2000).

A three step sequential analysis is used to evaluate

claims for children’s SSI benefits.

These steps are: (1) Is the

claimant engaged in substantial gainful activity?

(2) Does the

claimant have a severe impairment or combination of impairments?
(3) Does the claimant’s

impairment meet, medically equal, or

functionally equal in severity a listed impairment in Appendix 1?
20 C.F.R. § 416.924(a)-(d).
At the third step, if a claimant’s impairments do not meet or
medically equal any listing, a determination is made as to whether
the impairments result in limitations that functionally equal a
listing. 20 C.F.R. § 416.926a(a). Functional equivalency requires

3

The elimination of the fourth step effectively returns the
process for evaluating disability in children to that used prior to
1990 when the Supreme Court decided Sullivan v. Zebley, 493 U.S.
521, 110 S.Ct. 885 (1990). Harris, 209 F.3d at 417-18.
5

consideration of how the claimant functions in terms of six
domains, which are broad areas of functioning intended to capture
all of what a child can or cannot do.

The six domains are:

acquiring and using information, attending and completing tasks,
interacting and relating with others, moving about and manipulating
objects, caring for yourself, and health and physical well-being.
20 C.F.R. § 416.926a(b)(1)(i)-(vi).

A claimant’s impairments

functionally equal the listings if they are of listing-level
severity.

Impairments

are

of

listing-level

severity

if

the

claimant has marked limitations in two domains, or an extreme
limitation in one domain.

20 C.F.R. § 416.926a(d).

Limitation in a domain is “marked” when impairments interfere
seriously with the claimant’s ability to independently initiate,
sustain,

or

complete

activities.

Daily

functioning

may

be

seriously limited when impairments limit only one activity or when
the interactive and cumulative effects of impairments limit several
activities. Marked limitation is more than moderate, but less than
extreme.

Extreme limitations in a domain occur when a claimant’s

impairments

interfere

very

seriously

with

the

ability

to

independently initiate, sustain or complete activities. An extreme
limitation means more than marked, and is also the rating given to
the worst limitations.

However, this does not necessarily mean

there is a total lack or loss of ability to function.
416.926a(e)(2)(i) and 3(i).

6

20 C.F.R. §

Background and Claims of Error
Plaintiff
decision.4
stated

in

disabled.

was

18

years

old

at

the

time

of

the

ALJ’s

Plaintiff filed for SSI benefits in August 2010 and
his

application

AR pp. 92-98.

that

in

August

of

2004

he

became

In his application the plaintiff alleged

that he is disabled because of bipolar disorder, depression, anger
and mental problems.

AR p. 140.

Plaintiff went through the

eleventh grade in school, and has no past relevant work because he
has never been employed.

AR pp. 45, 112, 143-44.

After his application was denied at the initial stage, the
plaintiff requested a hearing before an administrative law judge
(“ALJ”). After the hearing the ALJ issued an unfavorable decision.
AR pp. 21-38, 44-50.5

The ALJ found at the second step of the

disability evaluation process for adult and child’s SSI claims that
the plaintiff had a combination of severe impairments - borderline
intellectual functioning, attention deficit hyperactivity disorder,
and affective disorder.

AR pp. 29, 35.

At the third step the ALJ

found that these conditions did not meet or medically equal the
criteria of any listed impairment under 20 C.F.R. Ch. III, Part
404, Subpart P, Appendix 1.

The ALJ wrote the following paragraph

4

Plaintiff’s age placed him in the category of “younger
person.” 20 C.F.R. § 416.963(c).
5

Plaintiff exhausted his administrative remedies before
filing this action for judicial review. The ALJ’s decision is the
Commissioner’s final decision for purposes of judicial review.
7

under both step three findings:
A comparable review of the objective evidence with the
Listing of Impairments leads the undersigned to conclude
that these impairments are not severe enough to meet or
medically equal one of the impairments listed in Appendix
1, Subpart P, Regulations No. 4.
In reaching this
conclusion, the undersigned has considered the opinions
of the State Agency medical consultants who evaluated the
claimant’s impairments and have reached the same
conclusion. AR pp. 29, 35-36.
Thus, the ALJ made a general finding that the plaintiff’s
impairments did not meet or medically equal one of the impairments
found in the Listing of Impairments.

The ALJ did not cite and

analyze the objective evidence as it related to any specific
listing, or make a finding that the plaintiff did not meet a
particular listed impairment, such as Listings 112.05D and 12.05C
(Mental

Retardation),

Listing

112.11

(Attention

Deficit

Hyperactivity Disorder), or Listings 112.04 and 12.04 (Mood and
Affective Disorders).6
At this point in the decision, the ALJ’s analysis diverged
based

on

the

different

disability claims.

standards

governing

child

and

adult

With regard to whether the plaintiff’s severe

impairments functionally equaled a listed impairment, the ALJ
evaluated the evidence in light of the six domains of function acquiring and using information, attending and completing tasks,
interacting and relating with others, moving about and manipulating

6

These are the listings relevant to the ALJ’s finding at step
two that the plaintiff’s combination of severe impairments were
borderline intellectual functioning, affective disorder, and ADHD.
8

objects, caring for yourself, and health and physical well-being.
The

ALJ

concluded

that

the

plaintiff

had

less

than

marked

limitations in the first three of these domains, and no limitations
in moving about and manipulating objects, caring for himself, and
health and physical well-being. Therefore, based on these findings
the plaintiff was not disabled before he became 18.
Returning

to

the

sequential

analysis

AR pp. 29-35.

governing

adult

disability claims, the ALJ then evaluated the plaintiff’s residual
functional capacity (“RFC”) to determine whether, despite his
severe impairments, the plaintiff was able to do other work that
existed in significant numbers in the national economy.7

The ALJ

made a finding that the plaintiff had a RFC to perform a full range
of

work

at

nonexertional

all

exertional

limitations

levels,

but

limited

to

-

had

the

following

one-two-three

step

instructions in a low stress environment, with personal contact
incidental to the work performed, and the complexity of tasks is
learned by rote or experience.8

AR p. 36.

With this RFC, and

considering the plaintiff’s age and educational background, the ALJ
concluded at the fifth step that the plaintiff was not disabled

7

Since the plaintiff had no past relevant work the ALJ did
not make a finding at step four.
8

Residual functional capacity is a measure of a claimant’s
capacity to do physical and mental work activities on a regular and
sustained basis. It is the foundation of the findings at steps
four and five. 20 C.F.R. § 416.945.
9

based on the application of the Medical-Vocational Guidelines, Rule
204.00.9

AR pp. 37-38.

Although the plaintiff had nonexertional

limitations, the ALJ found they “would be of little significance in
the broad world of work and would not prohibit him from performing
the basic mental demands of competitive, renumerative, unskilled
work,10 leaving the occupational base virtually intact,” and having
no significant adverse effect on the unskilled occupational base.
Therefore,

the

ALJ

vocational

expert,

concluded
and

could

he

did

rely

on

not
the

need

input

from

a

Medical-Vocational

Guidelines to reach his final determination that the plaintiff is
not disabled.

AR pp. 37-38.

Plaintiff’s argument that the ALJ committed reversible error
focused on Listing 112.05D and Listing 12.05C - listings which set
forth the requirements for the impairment of mental retardation in
children and adults. Plaintiff argued that despite the evidence in
the record which shows he meets these listings, the ALJ failed to
specifically address them in his decision. Plaintiff asserted that
the ALJ neither explicitly evaluated the validity of the listing-

9

The ALJ also cited and relied on Social Security Ruling 85-

15.
10

The ALJ stated that the basic mental demands of competitive,
remunerative, unskilled work included the abilities to understand,
carry out and remember simple instructions, respond appropriately
to supervision, coworkers, and usual work situations, and deal with
changes in a routine work setting. The ALJ found that the evidence
from the plaintiff’s treating physicians and consultative examiners
showed that the plaintiff has the ability to meet these demands of
unskilled work. AR p. 38.
10

level IQ scores obtained in two consultative examinations,11 nor did
he consider whether the objective evidence established the other
elements of the listing.

Rather, plaintiff asserted, the ALJ

merely made a general finding that the plaintiff’s impairments were
not severe enough to meet or medically equal a listed impairment.
According to the plaintiff, this prevents adequate judicial review
of whether there was substantial evidence to support the ALJ’s
finding at the third step.

Plaintiff also argued the ALJ’s

conclusion that his impairments did not functionally equal the
listings

under

the

children’s

disability

supported by substantial evidence.

standards

was

not

Plaintiff contended the ALJ’s

finding that he had less than marked limitations in attending and
completing tasks, and in interacting and relating to others, lacked
substantial evidence.
The Commissioner argued that substantial evidence supports the
ALJ’s finding that the plaintiff’s impairments did not functionally
equal the listings under the child disability standards.

With

regard to Listings 12.05C and 112.05D, the Commissioner argued that
substantial

evidence

supported

the

ALJ’s

conclusion

that

the

plaintiff’s impairments are not severe enough to meet or medically

11

Psychologist William L. Fowler performed a consultative
psychological evaluation on October 20, 2010. He administered the
WAIS-IV and reported a full scale score of 60 and a verbal
comprehension score of 68. AR pp. 228-31. Psychologist Scuddy F.
Fontenelle, III performed a psychological evaluation on January 12,
2011. He also administered the WAIS-IV and reported a full scale
score of 66 and a verbal comprehension score of 74. AR pp. 234-37.
11

equal

one

Commissioner

of

the
noted

impairments
that

the

listed

in

plaintiff

Appendix
has

the

1.

The

burden

of

establishing the medical findings necessary to support each of the
requirements for Listings 12.05C and 112.05D. The Commissioner
argued that the plaintiff cannot meet this burden because: (1) the
ALJ’s finding that the plaintiff had a severe impairment of
borderline

intellectual

functioning,12

rather

than

mental

retardation, shows the ALJ determined the plaintiff did not meet
the diagnostic description and other requirements of the listings;
and, (2) the plaintiff cannot establish that he has IQ scores
within the listing range of 60 through 70 because the ALJ found and
the record supports the finding, that neither of the two IQ test
scores are valid.
Analysis
The law and regulations applicable to Listing 12.05C and
Listing 112.05D are as follows.
To satisfy the requirements of Listing 12.05C. a formal
diagnosis of mental retardation is not required.13

Rather, the

12

The Commissioner asserted that this finding is supported by
both Fontenelle and the state agency psychological consultant
Judith Levy, who reported a diagnosis of borderline intellectual
functioning. AR pp. 58, 237.
13

Morris v. Astrue, 2011 WL 7341504 (E.D.La. Dec. 14, 2011),
report and recommendation adopted, 2012 WL 519629 (E.D.La. Feb. 15,
2012), citing, Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir.
2006).
12

regulations and case law establish the criteria that must be
satisfied for Listing 12.05C. Listing 12.05C provides, in relevant
part, as follows:
12.05 Mental Retardation: Mental retardation 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
impairments before age 22.
The required level of severity for this disorder is met
when the requirements in A,B,C, or D are satisfied.
...
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.
The medical criteria for Listing 112.05D, which covers mental
retardation in children under the age of 18, is the same except
that the introductory paragraph’s diagnostic description leaves out
the

requirement

that

the

evidence

demonstrate

onset

of

the

impairment before the age of 22.
In Randall v. Astrue, 570 F.3d 651 (5th Cir. 2009), the Fifth
Circuit held that to establish disability under Listing 12.05C., a
claimant has the burden of showing that his impairment satisfies
the

introductory

paragraph’s

diagnostic

description,

and

demonstrating the severity criteria of paragraph A, B, C or D.
Thus, to establish disability under Listing 12.05C, the claimant
must satisfy not only the requirements of Subsection C itself — low
IQ scores and another physical or mental impairment, but also the
13

requirements of the “introductory paragraph” — the claimant

has

“significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested during the
developmental

period.”

James

v.

Astrue,

2011

WL

202140,

6

(W.D.La.,2011), citing, Randall, 570 F.3d at 662.
Listing

12.05C.

does

not

define

“adaptive

functioning.”

However, the Fifth Circuit has indicated that the definition of
“adaptive activities” found in § 12.00(C)(1) should be used. Thus,
adaptive functioning encompasses adaptive activities “such as
cleaning, shopping, cooking, taking public transportation, paying
bills, maintaining a residence, caring appropriately for your
grooming and hygiene, using telephones and directories, and using
a post office.”14

Arce v. Barnhart, 185 Fed.Appx. 437 (5th Cir.

2006)(unpublished), citing also, Morris v. Dretke, 413 F.3d 484,
487 (5th Cir. 2005). Under the regulations, where the verbal,
performance and full scale IQs are provided in the Wechsler series,
the Commissioner uses the lowest of the three in conjunction with
Listing 12.05.

20 C.F.R. Ch. III, Pt. 404, Subpt. P, App.1,

12.00(D)(6)(c). The ALJ is not required to accept the reported
scores.

He may decide not to fully credit them if there is

evidence that shows they are unreliable, invalid, or inconsistent
with

other

evidence

contained

in

14

the

record.

See,

Cole

v.

20 C.F.R. Ch. III, Part 404, Subpart P, Appendix 1, §
12.00(C)(1).
14

Barnhart, 69 Fed.Appx. 658 (5th Cir. 2003); Jones v. Barnhart, 2007
WL 628768 *7 (W.D.Tex. Feb. 21, 2007).
The Fifth Circuit has not yet specifically addressed whether
a step two finding that an impairment is severe is the equivalent
of

the

“significant

work-related

limitation

of

function”

requirement of the second part of paragraph C of Listing 12.05.
However, the introduction to Listing 12.00 (Mental Disorders)
indicates that this is the correct standard.15

It states that for

paragraph C the degree of functional limitation the additional
impairment imposes is assessed “to determine if it significantly
limits

your

activities,”

physical

or

i.e.,

a

is

404.1520(c) and 416.920(c).

mental
severe

ability
impairment

to
as

do

basic

defined

work
in

§§

If the additional impairment does not

cause limitations that are severe, as defined by the regulations,
“we will not find that the additional impairment imposes an
additional and significant work-related limitation of function.”
Listing 12.00A.
Considering the above legal standards, the Commissioner’s
arguments for upholding the ALJ’s decision are unconvincing. It is
apparent from a review of the ALJ’s decision that he made a general
finding at step three, but he did not specifically address and
analyze the evidence in light of the listed impairments directly

15

See, Henderson v. Astrue, 2008 WL 269450 (N.D.Tex. Jan. 30,
2008); Cargill v. Colvin, 2013 WL 5526620 (N.D.Tex. Sept. 30,
2013).
15

related to the plaintiff’s intellectual functioning - Listings
12.05C and 112.05D.

Furthermore, the only basis the ALJ cited to

support his general finding were opinions of the State Agency
medical consultants who evaluated the claimant’s impairments; but
these also did not consider Listing 12.05C or 112.05D.16
The Commissioner appeared to argue that this omission in the
ALJ’s

analysis

at

the

third

step

was

harmless

error.17

The

Commissioner asserted that the ALJ resolved the conflict between
the IQ tests results and the psychologists’ questioning of the
results by not adopting either of the test scores.

According to

the Commissioner, the ALJ properly provided reasons for finding the
scores were not valid by citing comments included in the reports of
Fowler and Fontenelle.18

16

Neither the Fowler nor the Fontenelle report included an
analysis or opinion on whether the plaintiff met the requirements
of any listed impairment.
Levy cited several listings in her
review - Listing 112.02 (Organic Mental Disorders), Listing 112.04
(Mood Disorders), Listing 112.11 (ADHD) — but did not cite Listing
112.05D (Mental Retardation).
17

The policy underlying the harmless error rule is to preserve
judgments and avoid waste of time. Mays v. Bowen, 837 F.2d 1362,
1364 (5th Cir.1988). Thus, procedural perfection in administrative
proceedings is not required. A judgment will not be vacated unless
the substantial rights of a party have been affected. Procedural
improprieties constitute a basis for remand only if they would cast
into doubt the existence of substantial evidence to support the
ALJ’s decision. Id.; Morris v. Bowen, 864 F.2d 333, 335 (5th
Cir.1988).
18

The Commissioner also appeared to argue that the ALJ’s
decision is supported by the fact that neither Fowler nor
Fontenelle diagnosed the plaintiff as mentally retarded. Again, a
(continued...)
16

The difficulty with accepting the Commissioner’s argument is
that the ALJ only cited these comments regarding the test scores in
the

context

analyzing

of

the

(1)

his

general

plaintiff’s

review

limitation

in

of

the

evidence,

acquiring

and

(2)

using

information, and (3) making his RFC determination. The ALJ did not
cite or rely on these statements in his analysis at step three.
Moreover, the ALJ did not specifically address Listing 12.05C or
112.05D in his decision, and never made an explicit finding that
the

listing-level

IQ

scores

obtained

from

WAIS-IV

tests

administered by Fowler and Fontenelle were not valid.19 This is not

18

(...continued)
formal diagnosis of mental retardation is not required to satisfy
Listing 12.05C or 112.05D.
The Commissioner also stated that the Fifth Circuit has held
that low IQ scores in the absence of a diagnosis of mental
retardation do not constitute disabling impairments, citing Johnson
v. Sullivan, 894 F.2d 683 (5th Cir. 1990) and Johnson v. Bowen, 864
F.2d 340 (5th Cir. 1988). Record document number 8, Defendant’s
Opposition Memorandum, p. 8. However, a review of these decisions
does not support the Commissioner’s statement of the court’s
holdings. Johnson v. Sullivan involved an ALJ’s decision at the
fifth step using the Medical-Vocational Guidelines. In the context
of affirming the ALJ’s decision, the court rejected the argument
that the claimant had a nonexertional impairment that prevented use
of the Guidelines by noting evidence that a clinical psychologist
examined the claimant and concluded that he was not mentally
retarded. In Johnson v. Bowen, the court’s basis for upholding the
ALJ’s conclusion that the claimant did not meet the requirements of
Listing 12.05C was unrelated to the IQ scores. It was because the
court found there was substantial evidence to support the ALJ’s
conclusion that the claimant did not have a physical or other
mental impairment that imposed an additional and significant workrelated limitation.
19

Although both Fowler and Fontenelle included comments in
their reports which suggested that the plaintiff’s IQ results be
(continued...)
17

harmless error.

Because the ALJ failed to make necessary findings

at the third step, his summary conclusion at step three is beyond
meaningful judicial review.

Put another way, because the ALJ

neglected to address a listed impairment that is plainly applicable
to the plaintiff,20 and failed to make a specific finding on the
validity of the intelligence test scores and the other criteria of
the listing, the court is unable to determine whether the final
decision is based on substantial evidence.21
Conclusion
As noted above, it is the role of the ALJ — not the court —
to weigh the evidence, make credibility choices, and then make the

19

(...continued)
considered or interpreted with caution, neither stated that the
results were not valid. AR pp. 230, 236.
20

The record as a whole contains evidence, which if credited
by the ALJ, could support a finding the plaintiff’s impairment is
severe enough to meet or medically equal Listing 12.05C or 112.05D.
The full scale WAIS-IV scores reported by Fowler and Fontenelle
were 60 and 66, respectively, which falls within the listing’s
requirement of a verbal or full scale IQ score of 60 through 70.
Based on the ALJ’s finding at step two, the plaintiff has other
severe mental impairments - ADHD and affective disorder. There is
also evidence in the record which could support the conclusion that
the plaintiff has significantly subaverage general intellectual
functioning with deficits in adaptive functioning. See, e.g., AR
pp. 47-49, 109-12, 115, 129-32, 158, 183, 228-29, 234-37.
21

See, Audler v. Astrue, 501 F.3d 446 (5th Cir. 2007). When
the evidence of record appeared to demonstrate that the claimant
met Listing 1.04A, and the ALJ did not specifically address this
listing, the ALJ’s conclusory statement that the claimant failed to
meet any listed impairment was beyond meaningful judicial review the court simply cannot tell whether or not the decision is based
on substantial evidence. Id. at 448.
18

findings necessary to determine whether the plaintiff is disabled.
Consequently, the case must be remanded so the Commissioner can
reevaluate the plaintiff’s claim for benefits and make the findings
needed to properly determine whether the plaintiff is disabled.
These findings should include: (1) whether any intelligence test
scores obtained are invalid; (2) whether the plaintiff’s severe
impairments meet or equal the criteria for Listing 112.05D and
Listing 12.05C (Mental Retardation), or any other listed impairment
applicable to the plaintiff’s severe impairments; and, (3) if
necessary, whether the plaintiff is disabled under the remaining
steps of the disability analysis.22
Accordingly, under sentence four of 42 U.S.C. § 405(g), the
final decision of Carolyn W. Colvin, Acting Commissioner of Social
Security, denying the application for SSI benefits by plaintiff
Jonavon Jovante Morris is reversed, and this case is remanded to
the Commissioner for reevaluation of the plaintiff’s claim for
supplemental security income benefits.
A separate judgement will be entered.
Baton Rouge, Louisiana, April 11, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

22

Since this error requires remand it unnecessary to address
the plaintiff’s remaining arguments in support of his appeal.
19