Szafrajda

Filing 25

MEMORANDUM AND ORDER - The Commissioner's motion to remand (filing 21 ) is denied. Judgment shall be entered by separate document, providing that the decision of the Commissioner is reversed and the cause remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Ordered by Judge Richard G. Kopf. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID SZAFRAJDA,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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4:10CV3112

MEMORANDUM
AND ORDER

This is an action brought under 42 U.S.C. § 1383(c)(3) to review a final
decision of Defendant, Commissioner of Social Security, in which it was determined
(1) that Plaintiff’s disability ceased on September 1, 2005, and (2) that his eligibility
for the payment of supplemental security income benefits under Title XVI of the
Social Security Act terminated on November 30, 2005 (the end of the second month
after the month of cessation). Plaintiff challenges both aspects of the Commissioner’s
decision, arguing that the administrative law judge (“ALJ”) erred (1) in finding that
Plaintiff no longer met the requirements for mental retardation found in Listing
12.05C, 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C, and (2) in failing to consider
all of Plaintiff’s current impairments and medical evidence through the date of the
administrative hearing, as allegedly required by 20 C.F.R. §416.994.
The Commissioner concedes that the ALJ did not fully consider Plaintiff’s
impairments after September 1, 2005, and has filed a motion to remand the action
pursuant to sentence four of 42 U.S.C. § 405(g). Plaintiff opposes the motion and
argues that I should either rule on the first issue, and reverse the Commissioner’s
decision for the reasons stated in Plaintiff’s brief, or else direct the Commissioner on
remand also to reconsider whether Plaintiff continued to meet Listing 12.05C. In
reply, the Commissioner has briefed the first issue and requests that I affirm the
determination that Plaintiff did not meet Listing 12.05C as of September 1, 2005.

I. Background
Plaintiff began receiving supplemental security income (“SSI”) benefits in
1990, when he was nine years old. (Tr. 58). He was found to be disabled because of
mild mental retardation under (former) Listing 112.05B, which required a “valid
verbal, performance, or full scale IQ of 59 or less.” See 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 112.05C. When Plaintiff turned eighteen, his claim was redetermined and
he was found to meet Listing 12.05C, which applies to adults. (Tr. 130) This listing
requires 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, § 12.05C. Plaintiff was
found to have “IQ scores in the 60’s and additional impairments of ODD [oppositional
defiant disorder] and conduct disorder.” (Tr. 130)
On September 8, 2005, the agency notified Plaintiff that he was no longer
disabled, and would not receive SSI benefits after November 2005. (Tr. 285–86) A
hearing was held before a disability hearing officer on February 28, 2007. (Tr. 312)
In a decision issued on March 27, 2007, the disability hearing officer found there was
medical improvement because Plaintiff no longer carried a diagnosis of oppositional
defiant disorder. (Tr. 309-316) Plaintiff appealed this decision to an ALJ, who
conducted a hearing on October 22, 2007, and issued an unfavorable decision on
March 12, 2008. (Tr. 13–21) Plaintiff’s request for a review of the ALJ’s decision by
the Appeals Council was denied on April 7, 2010. (Tr. 4-7)
This action was commenced on June 10, 2010. (Filing 1) The Commissioner
answered Plaintiff’s complaint and filed a copy of the administrative record on
November 24, 2010. (Filings 13, 14 (text only entry)) Plaintiff’s brief on the merits
of his appeal was filed on December 31, 2010. (Filing 16)
The Commissioner’s motion to remand was filed on April 1, 2011. (Filing 21)
In a brief submitted in support of the motion to remand, the Commissioner stated:
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Agency counsel requested that the Appeals Council reconsider
SSA’s position in this case. Upon review, the Appeals Council agreed
that a remand for further consideration was appropriate for the reason
discussed below. Defendant requests a remand under sentence four of 42
U.S.C. § 405(g).
Remand is necessary because the ALJ did not fully consider
Plaintiff’s limitations for the period after September 1, 2005. After
determining that Plaintiff’s disability ceased on that date, the ALJ should
have considered whether Plaintiff again became entitled to benefits at a
later time (Tr. 21).
Under the Commissioner’s policies, the ALJ first had to consider
Plaintiff’s condition on September 1, 2005, the date given in the
agency’s initial determination of disability cessation (Tr. 262). See
Acquiescence Ruling (AR) 92-2[(6)] (describing the scope of review on
appeal in a medical cessation disability case), available at
http://www.ssa.gov/OP_Home/rulings/ar/06/AR92-02-ar-06.html. 1
1

“In Difford v. Secretary of Health & Human Services, 910 F.2d 1316, 1319-20
(6th Cir.1990), the Sixth Circuit held that the ALJ should adjudicate the claimant’s
disabilities through the time of its hearing, such that if the claimant were found to be
disabled at the time of the hearing–even if he was not disabled as of the cessation
date–his benefits should not be terminated. In response to Difford, the SSA issued an
‘Acquiescence Ruling’ to explain that the agency would comply with the decision
only in the Sixth Circuit because it conflicted with the agency’s own interpretation of
the Social Security Act (‘Act’). See Social Security Acquiescence Ruling 92-2(6), 57
Fed. Reg. 9262 (Mar. 17, 1992). In Acquiescence Ruling 92-2(6), the SSA stated that
its existing policy was to review termination cases on the basis of the claimant’s
condition only as of the cessation date, not the condition at the time of the ALJ
hearing, but that it would alter its policy in the Sixth Circuit. See id. at 9264.”
McNabb v. Barnhart, 340 F.3d 943, 944 (9th Cir. 2003). However, all of the evidence
available at the time of the ALJ’s hearing is to be considered when evaluating the
claimant’s condition as of the cessation date. See id.; 42 U.S.C. § 1382c(a)(4) (“Any
determination under this paragraph [regarding termination of SSI benefits] shall be
made on the basis of all the evidence available in the individual’s case file, including
new evidence concerning the individual’s prior or current condition which is
presented by the individual or secured by the Commissioner of Social Security.”).
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When considering an appeal of a cessation determination, the agency
considers “what the claimant’s condition was at the time of the cessation
determination, not the claimant’s condition at the time of the disability
hearing/reconsideration determination, ALJ decision[,] or Appeals
Council decision.” Id. Defendant maintains that the ALJ correctly
considered Plaintiff’s condition at the time of the initial cessation
determination.
However, a claimant whose benefits ceased will become
reentitled to benefits without filing a new application if he “again
meet[s] the requirements for eligibility before [his] appeal rights are
exhausted.” See 20 C.F.R. § 416.305(b)(5) (2010). In view of Dr. Perry’s
hearing testimony (Tr. 480–93), the ALJ should have considered whether
Plaintiff again became eligible for benefits. The agency seeks remand so
that it can properly consider this issue.
Upon receipt of the Court’s remand order, the Appeals Council
will remand the case to the ALJ with instructions to update the record
and to hold another hearing. In a new decision, the ALJ will further
evaluate Plaintiff’s impairments for the period after September 1, 2005
pursuant to 20 C.F.R. sections 416.994 and 416.305. If applicable, the
ALJ will also consider whether substance abuse is material to the issue
of disability. See 20 C.F.R. § 416.935 (2010).
For the foregoing reasons, and pursuant to the Supreme Court’s
decision in Shalala v. Schaefer, 509 U.S. 292 (1993), Defendant requests
the Court to enter a final judgment pursuant to Rule 58 of the Federal
Rules of Civil Procedure reversing the ALJ’s decision and remanding
this case to the Commissioner pursuant to sentence four of 42 U.S.C. §
405(g). Entry of final judgment remanding this case will begin the appeal
period which determines the thirty-day period during which a timely
application for attorney fees under the Equal Access to Justice Act, 28
U.S.C. § 2412, may be filed.
(Filing 22)

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Karyn B. Perry, Ph.D., testified that Plaintiff has a severe mental impairment
and currently meets Listings 12.02 (organic mental disorder) and 12.09 (substance
addiction disorder); she also testified that alcohol and marijuana use are material to
the case. (Tr. 483) Dr. Perry opined that Plaintiff has moderate limitations in activities
of daily living and in social functioning, and marked limitations in concentration,
persistence, or pace. (Tr. 488) The ALJ dismissed the testimony of this medical
expert, stating:
Furthermore, Dr. Perry’s testimony that the Claimant satisfies the
medical requirements set forth under Sections 12.09 and 12.02 of the
listings was based on evidence of significant substance abuse discussed
by Matthew Hunt, Ph.D., in June 2006 (Exhibit 36) and further
documented by Thomas England, Ph.D., in May 2007 (Exhibit 46).
However, both of those examinations took place long after September
2005, the date that the Social Security Administration determined that
the Claimant’s disability ceased. When seen by Dr. Stone in August
2005, the Claimant specifically stated that he “does not drink now”
having “quit two years ago.” He also denied any current drug use.
Evidence that Mr. Szafrajda resumed drinking and abusing street drugs
after [sic] many months after September 2005 is simply not relevant to
this inquiry.
(Tr. 17)
After carefully reviewing the record and the parties’ briefs, I find and conclude
that the ALJ’s decision must be reversed and the case remanded for redetermination
of Plaintiff’s entitlement to continued benefits under 20 C.F.R. § 416.994 from and
after September 1, 2005, because the ALJ failed to make a proper evaluation. The
limited remand requested by the Commissioner will not suffice because the ALJ’s
determination that Plaintiff’s disability ceased on September 1, 2005, is contrary to
law and not supported by substantial evidence.

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II. Discussion
The basic standard of review in Social Security cases is whether there is
substantial evidence on the record as a whole to support the decision of the
Commissioner. See Hogan v. Apfel, 239 F.3d 958, 960 (8th Cir. 2001). “Substantial
evidence is less than a preponderance, but is enough that a reasonable mind would
find it adequate to support the Commissioner’s conclusion.” Id. (quoting Prosch v.
Apfel, 201 F.3d 1010,1012 (8th Cir. 2000)). Evidence that both supports and detracts
from the Commissioner’s decision must be considered, but the decision may not be
reversed merely because substantial evidence supports a contrary outcome. See Moad
v. Massanari, 260 F.3d 887, 890 (8th Cir. 2001).
The decision of the Commissioner must also be reviewed to decide whether the
proper legal standard was applied in reaching the result. See Smith v. Sullivan, 982
F.2d 308, 311 (8th Cir.1992). Issues of law are reviewed de novo. See Boock v.
Shalala, 48 F .3d 348, 351, n.2 (8th Cir. 1995).
A. Statement of Facts
An application for supplemental security income was filed for Plaintiff on
March 8, 1990, alleging disability based on mental retardation. (Tr. 49) Dr. Melvin
Canell, Ed.D., performed a consultative evaluation for the Disability Determination
Section and filed his psychiatric report, dated April 12, 1990. (Tr. 112) Dr. Canell
administered a WAIS 2 for Children Revised test to Plaintiff which revealed that
Plaintiff had a verbal IQ of 58, a performance IQ of 70, and a full scale IQ of 61. (Tr.
113) Dr. Canell gave a diagnosis of mild mental retardation. (Tr. 114) Grand Island
Public School records reflect a January 1994 assessment which showed WISC-III3

2

Wechsler Adult Intelligence Scale.

3

Wechsler Intelligence Scale for Children.
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scores of verbal-72; performance-77; and full scale-72. (Tr. 239) The school records
also show that Plaintiff’s scores on a WISC-R test administered in 1991 were verbal68; performance-75; and full scale-70. (Tr. 235)
Plaintiff’s case was reviewed in 2000, when Plaintiff turned 18, and Caroline
G. Sedlacek, Ph.D., performed a psychological interview. (Tr. 253) Dr. Sedlacek also
administered a WAIS-III test to Plaintiff, which showed he had a verbal IQ score of
67; a performance IQ score of 69; and a full scale IQ score of 65. (Tr. 257) Dr.
Sedlacek wrote: “These results are valid in assessing his current level of functioning.”
(Tr. 257) Dr. Sedlacek gave diagnoses of oppositional defiant disorder (ODD) and
rule out intermittent explosive disorder. (Tr. 258)
Plaintiff’s case was reviewed again in 2005, and Plaintiff was examined by
William R. Stone. Jr., Ph.D., who filed a report dated August 10, 2005. (Tr. 361
Plaintiff told Dr. Stone that he had worked at a fast-food restaurant for about eighteen
months, but quit because “he was on social security and ‘couldn’t have that many
hours’” (Tr. 362). Plaintiff also revealed that he had worked at another fast-food
restaurant, but “quit working to go and stay with his sister to help her out” with her
children (Tr. 362). He informed Dr. Stone that he washed dishes, mowed the lawn,
helped to cook at times, watched television, and read books about the Vietnam War
that he obtained from the library (Tr. 362). Plaintiff stated he liked to “hang out” at
the mall, attended church with his girlfriend, and had friends “back home” in his
hometown (Tr. 363).
Dr. Stone observed that Plaintiff currently functioned in the “mildly retarded”
range in terms of vocabulary and intellectual functioning, but had intact memory, and
spoke in a relevant and coherent manner (Tr. 363). Dr. Stone concluded that Plaintiff
could sustain concentration and attention; understand, remember, and carry out short
and simple instructions; interact appropriately with co-workers and supervisors; and
“adapt[] to ordinary day to day changes in his environment with the presence of
someone to assist him when matters become too complicated” (Tr. 364). No IQ tests
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were administered. Dr. Stone’s diagnoses were mild mental retardation; alcohol abuse,
inactive; and a history of a single depressive episode, NOS. (Tr. 364)
Matthew Hutt, Ph.D., completed a psychological report, dated June 6, 2006.
(Tr. 387) He noted: “The claimant speaks with a mild impediment and his overall
speech and language reflects a simplistic, intellectually limited capacity.” (Tr. 387)
Dr. Hutt also noted that the claimant walked to today’s interview from his apartment
as he has no driver’s license and never has, quoting the claimant, “I can’t get past the
written test.” (Tr. 387) Dr. Hutt also noted: “Mental acuity was rather poorly intact.
He was administered the mental control portion of the Wechsler Memory Scale and
he produced a raw score equal to 8 which translates into an age-adjusted scaled score
equal to 4. This gentleman likely has rather lowered levels of concentration and
attention.” (Tr. 389)
Board certified psychiatrist, R.A. de los Angeles, M.D., saw Plaintiff on March
8, 2007. (Tr. 419) He gave diagnoses of bipolar disorder; drug induced psychosis; and
antisocial personality disorder. Plaintiff’s Global Assessment of Functioning (GAF)
score was 30/30. (Tr.420) Dr. de los Angeles, added the following note:
David is not able to work due to his extensive drug abuse. Has
problems with psychotic thinking & impulsive mood swings & the street
drugs ‘messed’ up (destroyed) his neuro transmitters helpful to regain
cognitive functioning esp. memory/recall, attention, concentration &
comprehension over life circumstances ??? - Pt. not able to work but
needs to be in mental health rehabilitation - V2 house assisted living;
IOP [intensive out patient]. He will cont. to be a nuisance to society if
treatment is not rendered & followed by the pat.
(Tr.420)
Licensed clinical psychologist, Thomas H. England, Ph.D., completed a
psychological evaluation, dated May 15, 2007. (Tr. 422) Dr. England’s behavior
observations included the following: “Mr. Szafrajda appeared for each session with
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marginal hygiene and dress .... Memory functions were erratic, with some remote
details adequate (e.g.: substance use and legal issues), with others more limited (e.g.:
his psychiatric medications) .... Insight is limited, Judgment frequently impulsive and
intellectual functioning appears low average to borderline.” (Tr. 423) Dr. England
administered a WAIS test, which showed Plaintiff has a verbal IQ score of 75, a
performance IQ of 70, and a full scale IQ score of 72. (Tr. 423) Dr. England also
administered the Shipley Institute of Living Scale (Tr. 422) Dr. England noted: “This
pattern of scores is similar to those who have experienced a loss of cognitive abilities
due to some trauma or insult to brain processes. While his loss of functioning is not
sufficient to be diagnostic of impairment, it does suggest he may have some loss of
abstract thinking attributable to organic brain dysfunction.” (Tr. 423)
Dr. England also noted: “His responses to the WRAT 4 earned scores reflecting
an approximate fourth grade skill level in reading, spelling and arithmetic. The
standard score equivalent of these levels is 69, 70 and 65 respectively. In tested areas
of academic achievement, David functions in a range of two or more standard
deviations below the mean.” (Tr. 424) Dr. England gave a tentative diagnostic
impression of mood disorder, NOS; rule out bipolar disorder, NOS; rule out substance
induced mood disorder; rule out (adult) attention deficit hyperactivity disorder;
cannabis abuse, in partial or recent remission by report; methamphetamine
dependence in reported remission; alcohol abuse; personality disorder, NOS; cluster
B traits; and borderline intellectual functioning with marked limitations in language
and arithmetic skills. Plaintiff’s GAF score was 50/50. (Tr. 424)
B. Administrative Review
Under the Commissioner’s policies, a claimant’s “continued entitlement to . . .
benefits must be reviewed periodically.” 20 C.F.R. § 416.994(a). The agency must

4

Wide Range Achievement Test.
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“follow specific steps in reviewing the question of whether . . . disability continues.”
20 C.F.R. § 416.994(f). Those steps are listed in 20 C.F.R. § 416.994(b)(5):
(5) Evaluation steps. To assure that disability reviews are carried out in
a uniform manner, that a decision of continuing disability can be made
in the most expeditious and administratively efficient way, and that any
decisions to stop disability benefits are made objectively, neutrally, and
are fully documented, we will follow specific steps in reviewing the
question of whether your disability continues. Our review may cease and
benefits may be continued at any point if we determine there is sufficient
evidence to find that you are still unable to engage in substantial gainful
activity. The steps are as follows. (See paragraph (b)(8) of this section
if you work during your current period of eligibility based on disability
or during certain other periods.)
(i) Step 1. Do you have an impairment or combination of impairments
which meets or equals the severity of an impairment listed in appendix
1 of subpart P of part 404 of this chapter? If you do, your disability will
be found to continue.
(ii) Step 2. If you do not, has there been medical improvement as defined
in paragraph (b)(1)(i) of this section? 5 If there has been medical
improvement as shown by a decrease in medical severity, see step 3 in
paragraph (b)(5)(iii) of this section. If there has been no decrease in
medical severity, there has been no medical improvement. (See step 4 in
paragraph (b)(5)(iv) of this section.)
(iii) Step 3. If there has been medical improvement, we must determine
whether it is related to your ability to do work in accordance with
paragraphs (b)(1)(i) through (b)(1)(iv) of this section; i.e., whether or not

5

“Medical improvement is any decrease in the medical severity of your
impairment(s) which was present at the time of the most recent favorable medical
decision that you were disabled or continued to be disabled. A determination that there
has been a decrease in medical severity must be based on changes (improvement) in
the symptoms, signs and/or laboratory findings associated with your impairment(s)
(see § 416.928).” 20 C.F.R. § 416.994(b)(1)(i).
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there has been an increase in the residual functional capacity based on
the impairment(s) that was present at the time of the most recent
favorable medical determination. If medical improvement is not related
to your ability to do work, see step 4 in paragraph (b)(5)(iv) of this
section. If medical improvement is related to your ability to do work, see
step 5 in paragraph (b)(5)(v) of this section.
(iv) Step 4. If we found at step 2 in paragraph (b)(5)(ii) of this section
that there has been no medical improvement or if we found at step 3 in
paragraph (b)(5)(iii) of this section that the medical improvement is not
related to your ability to work, we consider whether any of the
exceptions in paragraphs (b)(3) and (b)(4) of this section apply. If none
of them apply, your disability will be found to continue. If one of the
first group of exceptions to medical improvement applies, see step 5 in
paragraph (b)(5)(v) of this section. If an exception from the second
group of exceptions to medical improvement applies, your disability will
be found to have ended. The second group of exceptions to medical
improvement may be considered at any point in this process.
(v) Step 5. If medical improvement is shown to be related to your ability
to do work or if one of the first group of exceptions to medical
improvement applies, we will determine whether all your current
impairments in combination are severe (see § 416.921). This
determination will consider all your current impairments and the impact
of the combination of these impairments on your ability to function. If
the residual functional capacity assessment in step 3 in paragraph
(b)(5)(iii) of this section shows significant limitation of your ability to
do basic work activities, see step 6 in paragraph (b)(5)(vi) of this section.
When the evidence shows that all your current impairments in
combination do not significantly limit your physical or mental abilities
to do basic work activities, these impairments will not be considered
severe in nature. If so, you will no longer be considered to be disabled.
(vi) Step 6. If your impairment(s) is severe, we will assess your current
ability to do substantial gainful activity in accordance with § 416.960.
That is, we will assess your residual functional capacity based on all
your current impairments and consider whether you can still do work

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you have done in the past. If you can do such work, disability will be
found to have ended.
(vii) Step 7. If you are not able to do work you have done in the past, we
will consider one final step. Given the residual functional capacity
assessment and considering your age, education, and past work
experience, can you do other work? If you can, disability will be found
to have ended. If you cannot, disability will be found to continue.
C. The ALJ’s Decision
The ALJ determined at step one that “[t]he Claimant’s current medically
determinable impairment has not revealed the same or equivalent attendant medical
findings as are recited in Appendix 1 to Subpart P of the Social Security Regulations
No. 4.” (Tr. 16-17) The ALJ explained:
Based on the clinical findings reported by Dr. Stone, the
undersigned concludes that the Claimant’s intellectual impairment
imposes only moderate restrictions in his activities of daily living,
moderate limitations in his ability to maintain social functioning, and
moderate limitations in his ability to maintain concentration, persistence
and pace. At times pertinent to this inquiry, there have been no episodes
of decompensation.
With respect to the CPD [comparison point decision?]
determination that the Claimant satisfied the medical requirements set
forth in Section 12.05C of the listings, it is noted that, in view of his
ability to care for himself, maintain social relationships, his ability to
understand and remember short and simple instructions as documented
by Dr. Stone, the fact that Mr. Szafrajda has performed unskilled work
in the past, the results of WISC-III testing in 1997 (see Exhibit 16/6),6
and the results of repeat WAIS-III testing conducted in May 2007 (see
Exhibit 46), there is reason to suspect that the IQ scores reported by Dr.
6

Although the WISC-III test results appear in a 1997 assessment, a notation
indicates that the test was administered in January 1994. (Tr. 239)
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Sedlacek in October 2000 were not consistent with the Claimant’s
developmental history and degree of functional limitation.
In this regard, the undersigned notes that, in Holland v. Apfel, 153
F.3d 620 (1998) the Eighth Circuit Court of Appeals stated that, while
the Plaintiff’s tested IQ fell in the range specified in listing 12.05(C),
“other evidence in the record which indicates the individual’s ability to
function can be used to discredit the IQ score.” As such, an IQ test is
merely “useful” but in no way controlling according to the Court.
Similar language was set out in Mackey v. Shalala, 47 F.3d 951 (8th Cir.
1995) when the Court stated that other evidence in the record can be
examined to discredit IQ testing indicative of mild mental retardation.
Finally, in Clark v. Apfel, 141 F.3d 1253 (1998) the Court affirmed the
decision of the Administrative Law Judge who had rejected the test
scores obtained by a consulting psychologist finding that they were not
credible in light of the fact that they were based on a one-time
examination by a non-treating psychologist, and that the Plaintiff was
literate and had worked in the private sector, had no restriction in his
activities of daily living, had exhibited no deficit in social functioning,
had demonstrated no significant deficiency in concentration, persistence
or pace, and had experienced no deterioration or decompensation in a
work setting.
(Tr. 17)
Having found that the Plaintiff’s impairments did not meet or equal the severity
of a listed impairment, the ALJ was required at step two of the seven-step evaluation
process to determine whether there had been “medical improvement.” The ALJ made
no such determination in this case. Instead, he decided that the IQ scores reported by
Dr. Sedlacek in October 2000, which resulted in a finding that Plaintiff met Listing
12.05C, were “suspect.” The ALJ then jumped to step six to assess Plaintiff’s residual
functional capacity (“RFC”) as of September 1, 2005 (Tr. 17-20), and, after noting
that Plaintiff had no relevant past work activity, moved on to step seven to find that
Plaintiff’s RFC would allow him to work (Tr. 20). Only after making this ultimate

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finding that Plaintiff was not disabled did the ALJ indicate that Plaintiff’s condition
had improved. He stated:
Notwithstanding the non-exertional limitations resulting from his
medically determinable impairment/impairments, the Claimant, as of
September 1, 2005, possessed the residual functional capacity for work
that exists in the regional economy in significant numbers. Thus, there
has been medical improvement in the Claimant’s condition since
November 17, 2000, and that improvement has been directly related to
his ability to work.
(Tr. 20)
As noted previously, “[a] determination that there has been a decrease in
medical severity must be based on changes (improvement) in the symptoms, signs
and/or laboratory findings” associated with the claimant’s impairments. 20 C.F.R.
§ 416.994(b)(1)(i). Medical improvement “is determined by a comparison of prior
and current medical evidence . . ..” 20 C.F.R § 416.994(b)(2)(i). Merely finding that
Plaintiff is now able to work, and suggesting that the earlier disability determination
was erroneous,7 does not support a determination of medical improvement. See Veino
v. Barnhart, 312 F.3d 578, 587 (2d Cir. 2002) (simple facts that claimant once
qualified for a particular impairment in the Listing of Impairments in 20 C.F.R. Pt.
404, Subpt. P, App. 1, and that he is now found not to qualify for that Listing, does
not prove his medical improvement); Osborn v. Barnhart, No. 03-M-2529, 2004 WL
2091480, *1-2 (D.Colo. Aug. 6, 2004) (reversing for legal error where “the ALJ
indulged in the presumption that the claimant’s failure to meet the listing requirement

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A recipient of SSI benefits may be determined not to be entitled to such
benefits based on “substantial evidence (which may be evidence on the record at the
time any prior determination of the entitlement to benefits based on disability was
made, or newly obtained evidence which relates to that determination) which
demonstrates that a prior determination was in error.” 42 U.S.C. § 1382c(a)(4)(C).
The ALJ did not make an express finding that the prior determination was in error.
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[for Section 1.05C] in the year 2000 was the result of some medical improvement in
his impairments” since 1995, when he was found to meet such listing requirement).
“Because this is a case which requires a showing of changed circumstances
(i.e., medical improvement) in order to displace earlier findings, Drummond v.
Commissioner of Social Security, 126 F.3d 837, 842 (6th Cir. 1997) (holding that
‘when the Commissioner has made a final decision concerning a claimant’s
entitlement to benefits, the Commissioner is bound by this determination absent
changed circumstances’), a comparison between circumstances existing at the time of
the prior decision and circumstances existing at the time of the review is necessary.
When the cessation of benefits is the issue, the Commissioner is not to make a new
medical determination but rather is to determine whether there has been ‘medical
improvement,’ (i.e., a decrease in the severity of impairment). 20 C.F.R.
§ 416.994(b)(1)(i). The required comparison simply was not made in this case.”
Kennedy v. Astrue, 247 Fed. Appx. 761, 768, 2007 WL 2669153, *7 (6th Cir. 2007)
(ALJ’s conclusion that claimant’s current functional abilities indicated medical
improvement was not supported by substantial evidence).
In Muncy v. Apfel, 247 F.3d 728 (8th Cir. 2001), the plaintiff had been found
entitled to disability insurance benefits in 1988 under Listing 12.05B (requiring a
“valid verbal, performance, or full scale IQ of 59 or less”) based on WAIS-R testing
which showed his verbal IQ was 57, performance IQ was 64, and full scale IQ was 59,
placing him in the mild range of retardation. During a continuing disability review
in 1994, however, another psychologist tested the plaintiff and found that on the
WAIS-R, his verbal IQ was 84, performance IQ was 84, and full scale IQ was 84. An
IQ of 84 placed him in the low normal range, described by “borderline intellectual
functioning.” An ALJ determined that the new IQ score took the plaintiff outside the
criteria of Listing 12.05B and concluded that he was no longer disabled. The Eighth
Circuit reversed and remanded for further proceedings because the ALJ failed to
explain why the higher IQ score was used. It stated:

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An ALJ may disregard a claimant’s IQ score when it is derived
from a one-time examination by a non-treating psychologist, particularly
if the score is inconsistent with the claimant’s daily activities and
behavior. Clark v. Apfel, 141 F.3d 1253, 1255-56 (8th Cir.1998). The
Social Security regulations do not specify, however, which score the ALJ
should disregard when there are differing scores from two apparently
valid IQ tests. The issue here is whether the ALJ correctly disregarded
the IQ score from a one-time examination by a non-treating psychologist
apparently only because it is older–and significantly lower–than a later
second score.
At least one court has suggested that the regulations require the
ALJ to reach the opposite conclusion in this situation, rejecting the
higher score. See Ray v. Chater, 934 F.Supp. 347, 350 (N.D.Cal.1996).
In Ray, the claimant had two IQ scores: a 72 on a 1993 test and a 67 on
a 1995 test. The ALJ relied on the higher score with the result the
claimant could not qualify for benefits under section 12.05(D). The
Social Security regulations provide, however, that when more than one
IQ score is reached from the test administered, such as the verbal,
performance, and full scale IQs obtained from the tests in the Weschler
series that Dr. Stevens used in this case, the Commissioner must use “the
lowest of these in conjunction with 12.05.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.00(D). The Ray court observed that this regulation might
create an inference that “when multiple I.Q. scores are available [from
IQ tests administered a different times,] the Regulations prefer the lowest
score,” 934 F.Supp. at 350, and remanded to the Commissioner for
further development of the record with regard to the claimant’s mental
condition.
The ALJ here neither addressed the discrepancy between Muncy’s
two IQ scores nor discussed what factors called into question the first
score’s validity. Instead, the ALJ apparently accepted the validity of the
second test over the first and attributed the twenty-five point increase in
Muncy’s IQ to “medical improvement.” To discontinue a claimant’s
benefits because his or her medical condition has improved, the
Commissioner must “demonstrate that the conditions which previously
rendered the claimant disabled have ameliorated, and that the
improvement in the physical condition is related to claimant’s ability to
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work.” Nelson v. Sullivan, 946 F.2d 1314, 1315 (8th Cir.1991) (citing 20
C.F.R. § 404.1594(b)(2)-(5)).8 Whether a claimant’s condition has
improved is primarily a question for the trier of fact, generally
determined by assessing witnesses’ credibility. Id. at 1316.
The regulations define mental retardation as “significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period” before
age 22. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. Mental retardation
is not normally a condition that improves as an affected person ages. It
is highly unlikely that an adult could gain twenty-five IQ points–a 42%
increase–in six years.
Rather, a person’s IQ is presumed to remain stable over time in the
absence of any evidence of a change in a claimant’s intellectual
functioning. See, e.g., Branham v. Heckler, 775 F.2d 1271, 1274 (4th
Cir.1985) (absent contrary evidence, an IQ test taken after the insured
period correctly reflects claimant’s IQ during the insured period);
Guzman v. Bowen, 801 F.2d 273, 275 (7th Cir.1986) (claimant had low
IQ during onset of disability in 1979 rather than just when first IQ tested
in 1982); Luckey v. Department of Health & Human Servs., 890 F.2d
666, 668-69 (4th Cir.1989) (ALJ may assume claimant’s IQ remained
relatively constant in absence of evidence showing a change in
claimant’s intelligence functioning); Holmes v. Apfel, 1999 WL 731769,
*5 (N.D.Ill.1999) (IQ score presumptively reflects person’s IQ
throughout life, no matter how old the person was when test first
administered); Ouellette v. Apfel, 2000 WL 1771122, *3 (D.Me.2000)
(absent contrary evidence, “a person’s IQ and/or the condition of mental
retardation is presumed to have been approximately constant throughout
his/her life”). See also Sird v. Chater, 105 F.3d 401, 402 n. 4 (8th
Cir.1997). The ALJ here cited no evidence demonstrating a dramatic
upswing in Muncy’s intellectual or adaptive functioning between 1988
and 1994, other than the higher second IQ score. Nor did the ALJ
8

Section 404.1594 governs termination of Title II disability insurance benefits.
The evaluation process is nearly identical to that provided in § 416.944 for termination
of SSI benefits, although there is an additional step to determine whether the clamant
is engaging in substantial gainful activity. See 20 C.F.R. § 404.1594(f).
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challenge the validity of the first IQ score as inconsistent with other
evidence in the record. Muncy remains unable to read, write, manage his
finances, or even fill out Social Security applications. He thus still
appears to be dependent on his wife for many activities of daily living.
We therefore must remand this matter to the Commissioner for
further analysis to resolve the twenty-five point discrepancy between
Muncy’s two IQ scores. The Commissioner is directed to enter specific
findings detailing why Muncy’s first IQ score should not be adopted as
the controlling score.
Id. at 733-35.
In the present case, the ALJ, while finding “reason to suspect that the IQ scores
reported by Dr. Sedlacek in October 2000 [verbal, 67; performance, 69; full scale,
65]were not consistent with the Claimant’s developmental history and degree of
functional limitation” (Tr. 17), did not actually make a finding that the 2000 scores
were invalid. Nor did he make a finding that the IQ scores reported by Dr. Canell in
1990 (verbal, 58; performance, 70; full scale, 61), by the school district in 1991
(verbal, 68; performance, 75; full scale, 70), or by Dr. England in 2007 (verbal, 75;
performance, 70; full scale, 72) were invalid. All of these tests contain at least one IQ
score within the parameters of Listing 12.05C (requiring IQ score of 60 through 70).
Only the 1994 test administered by the school district resulted in IQ scores that all
exceeded 70 (verbal, 72; performance, 77; full scale, 72). The ALJ cited Dr. England’s
2007 test results as being inconsistent with Dr. Sedlack’s 2000 test results, but even
those 2007 test results included a performance IQ score of 70, which would meet
Listing 12.05C’s requirement.
The Commissioner states that “[t]he ALJ relied heavily on Dr. Stone’s August
2005 examination findings in discounting the October 2000 IQ scores” (filing 24 at
3), but the ALJ did not explain how Dr. Stone’s diagnosis of “mild mental retardation”
(Tr. 364) conflicts with those IQ scores. Mild mental retardation is characterized by
an IQ score of 50–55 to approximately 70. See Diagnostic and Statistical Manual of
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Mental Disorders (DSM–IV), 40 (4th Ed. 1994). The ALJ also discounted the 2000
IQ scores because Plaintiff “has performed unskilled work in the past” (Tr. 17), yet
he later found that Plaintiff “has no history of relevant work activity.” (Tr. 20)
The ALJ appears to have relied upon Dr. Stone’s opinions that Plaintiff has
“only moderate restrictions in his activities of daily living, moderate limitations in his
ability to maintain social functioning, and moderate limitations in his ability to
maintain concentration, persistence and pace” (Tr. 17) to conclude that Plaintiff was
not disabled as of September 1, 2005. While those functional limitations would not
meet the requirements of Listing 12.05D, they are irrelevant to Listing 12.05C.
Similarly, the ALJ notes Dr. Stone’s observations that Plaintiff is able “to care for
himself, maintain social relationships, . . . [and] understand and remember short and
simple instructions.” (Tr. 17) Those factors are relevant to Listing 12.05A (which
does not depend on IQ scores), but not to Listing 12.05C.
“While a ‘deficiency in opinion-writing is not a sufficient reason to set aside an
ALJ’s finding, where the deficiency [has] no practical effect on the outcome of the
case,’ inaccuracies, incomplete analyses, and unresolved conflicts of evidence can
serve as a basis to remand.” Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir.2005),
quoting Reeder v. Apfel, 214 F.3d 984, 988 (8th Cir.2000). Remand is appropriate
where the ALJ’s factual findings, considered in light of the record as a whole, are
insufficient to permit reviewing court to conclude that substantial evidence supports
the ALJ’s decision. Scott ex rel. Scott v. Astrue, 529 F.3d 818, 822 (8th Cir. 2008).
I am unable to conclude there is substantial evidence to support the ALJ’s
finding that Plaintiff’s impairments do not satisfy the requirements of Listing 12.05C
for mild mental retardation. Moreover, even if there were substantial evidence to
support this “step one” finding, the ALJ did not make a proper “step two” finding of
medical improvement. Because the ALJ’s decision does not follow the evaluation
procedure described in 20 C.F.R. § 416.994(b)(5), and is lacking in substance, the
decision must be reversed and the case remanded for further proceedings.
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III. Conclusion
For the reasons discussed above, I will reverse the Commissioner’s decision and
remand the case for redetermination of Plaintiff’s entitlement to SSI benefits from and
after September 1, 2005. If on remand it is again found that Plaintiff’s impairments
did not meet or equal a listing as of September 1, 2005, the ALJ must fully explain the
factual basis for this finding and then must also make a finding of whether there was
medical improvement since 2000. If, after proceeding through the seven-step
evaluation process, the ALJ ultimately decides that Plaintiff’s disability ended on
September 1, 2005, he should then consider, as specified in the Commissioner’s
motion to remand, whether Plaintiff became entitled to benefits at a later date.
IT IS ORDERED that:
1.

The Commissioner’s motion to remand (filing 21) is denied.

2.

Judgment shall be entered by separate document, providing that the
decision of the Commissioner is reversed and the cause remanded for
further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

August 23, 2011.

BY THE COURT:

Richard G. Kopf
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility
for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work
or directs the user to some other site does not affect the opinion of the court.

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