Furman v. Commissioner of the Social Security Administration
ORDER RULING ON REPORT AND RECOMMENDATION: This Court reverses the decision of the Commissioner under Sentence Four of 405(g) and awards benefits. Signed by Honorable Richard M Gergel on 1/23/2017. (gnan )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Carolyn W. Colvin, Acting,
Commissioner of Social Security,
Civil Action No.4: 15-5066-RMG
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain relief from the final
decision of the Commissioner of the Social Security Administration denying him Disability
Insurance Benefits ("DIB") under the Social Security Act. In accordance with 28 U.S.C. §
636(b) and Local Civil Rule 73.02 DSC, this matter was referred to a United States Magistrate
Judge for pretrial handling. The Magistrate Judge issued a Report and Recommendation ("R &
R") on January 9,2017, recommending that the Commissioner's decision be reversed and
remanded to the agency because of the Administrative Law Judge's failure to consider the
applicability of Listing 12.05(c). (Dkt. No. 23). The Commissioner has filed a reply indicating
that she will not file objections to the R & R. (Dkt. No. 25). As explained more fully below, the
Court reverses the decision of the Commissioner and awards benefits under Listing 12.05(c).
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of those portions of the R & R to which specific objection has been made, and may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28
U.S.c. § 636(b)(l).
The role of the federal jUdiciary in the administrative scheme of the Social Security Act is
a limited one. Section 405(g) of the Act provides that "[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42
U.S.C. § 405(g). "Substantial evidence has been defined innumerable times as more than a
scintilla, but less than preponderance." Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964).
This standard precludes de novo review of factual circumstances that substitutes the Court's
findings for those of the Commissioner. Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971).
Although the federal court's review role is limited, "it does not follow, however, that the
findings of the administrative agency are mechanically accepted. The statutorily granted right of
review contemplates more than an uncritical rubber stamping of the administrative action."
Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). "[T]he courts must not abdicate their
responsibility to give careful scrutiny to the whole record to assure that there is a sound
foundation for the [Commissioner's] findings." Vitek, 438 F.2d at 1157-58.
Under the five step sequential process under the Social Security Act, a claimant may
establish his right to disability benefits at Step Three if he can demonstrate he meets the
requirements for one of the listed impairments. 20 C.F.R. §404.1520(a)(4)(iii). Listing 12.05(c),
which relates to a disability claim based upon mental retardation, provides that a claimant may
establish his disability by demonstrating the onset of the impairment before age 22 and the
presence of 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 CFR pt. 404, subpt. P, app. 1, 12.05(c). The Fourth Circuit has recognized mental retardation
as a "life long condition" and "in the absence of any evidence of change in a claimant's
intelligence functioning, it must be assumed that the claimant's IQ has remained relatively
constant." Luckey v. U. S. Dept. Health & Human Servs., 890 F.2d 666, 668 (4th Cir. 1989).
Any finding by the Commissioner that a claimant "suffers from a severe combination of
impairments ... establish[es] the second prong of 12.05(c)." Id. at 669. Furthermore, the
Commissioner "may not rely upon previous work history to prove non-disability where the
section 12.05(C) criteria are met." Id.
Plaintiffs application for disability benefits has languished in the administrative
processes of the Social Security Administration for a decade. Plaintiff first applied for DIB in
2006, nearly eleven years ago. The initial administrative processing of this claim took more than
three years, with an ALl decision ultimately finding that the Plaintiff was not disabled. The
decision was reversed and remanded by the Appeals Council for further review. A second ALl
decision was issued in 2011, again finding that the Plaintiff was not disabled. The Appeals
Council again reversed the ALl decision and directed that on remand the ALl would, among
other things, (1) "attempt to obtain another mental status consultative examination" that would
include IQ testing; (2) evaluate further Plaintiffs mental impairment; and (3) obtain medical
source statements concerning "what the claimant can do despite his impairments." Tr.219. The
Appeals Council further took the highly unusual step of directing that the case on remand be
assigned to another ALl. Tr.220.
The record on remand included from earlier hearings the results of multiple standardized
tests administered to Plaintiff when he was in the public schools. This included a full scale IQ of
63 on the Wechsler Intelligence Scale administered in 1977, when the Plaintiff was seven years
of age, and a full scale IQ of 64 on the Wechsler Intelligence Scale administered in 1986, when
Plaintiff was sixteen years old. Tr. 780, 784, 876. Psychological evaluations of Plaintiff by
school psychologists confirmed the validity and reliability of the IQ test results. One
psychologist, in a 1986 report, concluded that Plaintiff fell into the Educable Mentally
Handicapped range based on "mental ability" and "performance skills." Tr.786. Another
psychologist reached the same conclusion in a 1983 evaluation, finding that the testing appeared
commensurate with Plaintiffs intellectual abilities. Tr.788. Based on these findings, Plaintiff
was maintained in special education programs for the mentally handicapped through most of his
public school attendance until he dropped out in the ninth grade. I
The Social Security Administration, as part of the processing of Plaintiff s disability
application, sent the claimant to a psychologist, Trina D. Jackson, Psy.D., for testing, including
IQ testing, in 2010. Dr. Jackson reported that she was unable to obtain a reliable result from the
standardized tests because of Plaintiffs "questionable effort at testing." She stated that
"malingering cannot be ruled out at this time." Tr. 884. She further observed, however, that
Plaintiff did appear to have "legitimate difficulties" with the testing. Tr. 883. In fact, she
concluded that "it is entirely likely that he suffers from some cognitive impairment given his
The reports of the two school psychologists constitute opinions by an examining
provider and are entitled to deference under the Treating Physician Rule. Since these
psychologists also participated in the approval of Plaintiffs instructional program as an Educable
Mentally Handicapped student, they may well have been treating providers as well. 20 CFR §
404.1527(c). In either instance, these opinions are entitled to considerable weight and deference.
No expert opinions were provided challenging the validity of these test results or psychological
history of special education and long-standing seizure disorder, the extent is unclear at this time."
Despite the fact that the Appeals Council directed the ALl on remand to obtain another
mental status examination to evaluate the claimant's IQ, the ALl, apparently interpreting the
directive as a suggestion, declined to order another evaluation. Instead, the ALl concluded
another evaluation was "unwarranted" because of the Plaintiff s work history and other factors.
Tr. 20,219. The ALl did note, and did not question, the validity of Plaintiffs school testing
showing a full scale IQ of 64. Tr. 20.
The record also contained reports from two of Plaintiffs treating physicians, Dr. Thomas
Stanley, a neurologist who treated Plaintiff for seizure disorder, syncope and dizziness, and Dr.
Hector Esquivel, a long-serving family physician. Dr. Stanley provided opinions that Plaintiffs
"dizziness and syncope preclude him from sedentary work" and that he was incapable of
managing his own care without the assistance of his wife. Tr. 723, 775. Dr. Esquivel reached a
similar conclusion, stating that due to his seizure disorder "he cannot work on a full time basis."
Tr.800. Although the Appeals Council directed the ALl to obtain "medical source statements
about what the claimant can do despite his impairments," the record contains no evidence that
any follow up with Plaintiffs treating physicians was undertaken by the AL1. Tr.219.
After conducting a third administrative hearing in this disability claim on May 22, 2014,
the All issued an order dated June 27, 2014, finding that Plaintiff suffered from a number of
severe impairments, including seizure disorder, syncope, sinus node dysfunction (status post
pacemaker), and borderline intellectual functioning. Tr. 18. At Step Three of the sequential
process, the ALl addressed a number of potential listings and concluded that Plaintiff failed to
satisfy the requirements of any listing. The ALJ did not, however, address Listing 12.05, relating
to disability resulting from mental retardation. The ALJ concluded that Plaintiff retained the
residual functional capacity to perform light work and, on the basis, ultimately determined that he
was not disabled under the Social Security Act. Tr. 21-25.
The Appeals Council conducted no further review on this third ALJ decision and this
became the final decision of the Commissioner. The case was thereafter timely appealed to this
Court on December 15,2015. The Magistrate Judge issued a R & R on January 9,2017,
recommending that this Court reverse and remand the ALJ's decision because of the ALJ's
failure to address Plaintiffs eligibility for disability under 12.05(c). Dkt. No. 23 at 8-11. This
matter is now before the Court on this appeal of the denial of Plaintiffs disability claim.
Despite a decade of administrative processing of this claim, the Social Security
Administration appears to have overlooked the most obvious and compelling claim of Plaintiff
for disability based upon his well-documented history of mental retardation and sub-normal IQ
testing. Simple adherence to the clear language set forth in Listing 12.05(c) and the Fourth
Circuit's plainly announced standards in the 1989 decision of Luckey v.
u.s. Department of
Health and Human Services should have produced a far speedier and different result. Under
12.05(c), a claimant may satisfy the requirements for the listing by showing he had (I) the onset
of the impairment before age 22; (2) a "valid ... full scale IQ of 60 through 70;" and (3) "a
physical or other mental impairment imposing an additional and significant work related
limitation of function."
Each of the requirements of Listing 12.05(c) is clearly established by this record and there
is not substantial evidence in the record to the contrary. First, the record establishes that the
onset of Plaintiffs impainnent was present before age 22. Indeed, the record shows documented
evidence of mental retardation as early as age seven. Second, Plaintiff has produced in the record
two valid full scale IQ test results between 60 and 70 and supporting reports by licensed
psychologists confinning the validity and reliability of those results. Tr.770-789. These test
results meet every requirement for a valid IQ test under Social Security Act regulations. 20 CFR
pt 404, subpt. P, app. 1, 1200(d)(6).
The Administrative Law Judge made much of the report of Dr. Jackson in which she was
unable to obtain a reliable IQ test result because of the Plaintiff s apparent lack of effort and
possible malingering. Tr. 23, 883-884. The ALJ appears to interpret Dr. Jackson's report as an
indication that Plaintifflacks a genuine mental impairment. To the contrary, Dr. Jackson
recognized that Plaintiff experienced "legitimate difficulties" with portions of the test and
concluded that it was "entirely likely" he suffered from some cognitive impainnent. The only
issue for Dr. Jackson was the extent of that impainnent, which she said was "unclear at this
time." Tr. 883-884.
With the ALJ's decision to disregard the directive of the ALJ to obtain another mental
status evaluation of Plaintiff, the Court is left with two valid and unchallenged IQ test results
from the Plaintiffs minority. The Fourth Circuit in Luckey made it clear that since mental
retardation is a lifelong condition, a reviewing court must "assume that the claimant's IQ had
remained relatively constant" unless there is evidence in the record of a change in the claimant's
"intelligence functioning." 890 F.2d at 668. The record contains no such evidence and the
unchallenged IQ results satisfY the second requirement of 12.05(c).
Third, the record demonstrates that Plaintiff has satisfied the 12.05(c) requirement that he
show the presence of "a physical or other mental impairment imposing an additional and
significant work-related limitation of function." The ALJ found at Step Two of the sequential
process that Plaintiff suffered from multiple physical impairments, including a seizure disorder,
syncope and cardiac abnormalities. Tr. 18. The Fourth Circuit in Luckey held that where the
Commissioner found that a claimant suffers from another severe impairment, the requirements of
this portion of 12.05(c) is satisfied. 890 F.2d at 669.
The ALJ made repeated reference to Plaintiffs work history prior to his disability
application, essentially arguing that such a work history entitles the Commissioner to ignore
validly administered subnormal IQ tests and a claimant's satisfaction of the other 12.05(c)
requirements. This approach, however, seriously misreads settled authority in this circuit
established by Luckey. In Luckey, the claimant had a 23-year work history, and the
Commissioner argued that this rebutted the Plaintiff's satisfaction of 12.05(c) requirements. The
Fourth Circuit held, however, that the Commissioner "may not rely upon previous work history
to prove non-disability where the section 12.05(c) criteria are met. When a claimant for benefits
satisfies the disability listings, benefits are due notwithstanding any prior efforts of the claimant
to work despite the handicap." Jd.
In sum, the record clearly establishes Plaintiffs satisfaction of each of the 12.05(c)
elements, which entitles him to an award of benefits as a matter of law. The only question before
the Court is whether this Court should award benefits or remand the matter to the agency for
The Social Security Act provides a district court on appeal the authority to affirm, modify
or reverse the decision of the Commissioner "with or without remanding the cause for a
rehearing." 42 U.S.C. § 405(g). While it has been this Court's practice generally to remand
reversed disability decisions to the Commissioner for further administrative action, it is well
settled that a district court may reverse without remand where such remand would serve no
useful purpose and the claimant is entitled to judgment as a matter of law on the record before
the district court. Breeden v. Weinberger, 493 F. 2d 1002, 1012 (4th Cir. 1974). Based on the
Court's findings and conclusions set forth above, any further delay in the award of benefits to
2 The Commissioner references in briefing before the Magistrate Judge the Fourth Circuit
decision in Hancock v. Astrue. 667 F.3d 470 (4th Cir. 2012) to support an argument that the
agency was free to ignore valid IQ scores in the subnormal range of 60-70. Dkt. No. 19 at 25-26.
This vastly over reads the holding in Hancock, where the ALJ in that case "discredited IQ
scores." 667 F. 3d at 475. In this matter, there has been no challenge to the validity or reliability
of Plaintiffs IQ scores, which were confirmed by two separate psychologists who evaluated
Plaintiff. Their reports validated and confirmed that Plaintiff s actual intellectual functioning at
the time mirrored the test results and these deficiencies were documented to exist before age 22.
Since the ALJ here did not challenge, much less discredit, the validity of Plaintiff s earlier IQ
testing and psychological evaluations, the Commissioner is not free to ignore those IQ test
results. To interpret Listing 12.05 as suggested by the Commissioner would allow the
Commissioner to ignore a claimant's entitlement to disability benefits when he has fully satisfied
the plain language of 12.05(c). This interpretation would constitute an overruling of Luckey,
which the Hancock court made no suggestion of its intention to overrule this significant and
this clearly entitled claimant would exacerbate the injury already inflicted by the agency's
protracted and unacceptable handling of this claim. Enough is enough. Justice is served by this
Court's award of benefits.
Based upon the foregoing, this Court reverses the decision of the Commissioner under
Sentence Four of 405(g) and awards benefits.
AND IT IS SO ORDERED.
Richard Mark Gerge
United States District
Charleston, South Carolina
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