Ligon v. Social Security Administration

Filing 16

ORDER: For the reasons stated above, the Court REJECTS the Magistrate Judge's Report (Doc. No. 14 ), GRANTS Ligon's Motion (Doc. No. 8 ), VACATES the administrative Decision, and REMANDS this case for the calculation of benefits. The Commissioners Motion to Stay (Doc. No. 12 ) is TERMINATED as MOOT. The Clerk of the Court is DIRECTED to close this case. It is so ORDERED. Signed by Senior Judge John T. Nixon on 9/3/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
GLENNIS EDWARD LIGON,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

No. 3:13-cv-00267
Judge Nixon
Magistrate Judge Knowles

ORDER
Pending before the Court is Plaintiff Glennis Edward Ligon’s Motion for Judgment on
the Pleadings (“Motion”). (Doc. No. 8.) On June 17, 2014, Magistrate Judge Knowles issued a
Report and Recommendation (“Report”) recommending that Ligon’s Motion be denied and the
decision of the Social Security Administration be affirmed. (Doc. No. 14 at 19.) On July 1, 2014,
Ligon filed Objections to the Report (Doc. No. 15), to which the Commissioner did not respond.
For the reasons stated below, the Court GRANTS Ligon’s Motion, VACATES the
Administrative Decision, and REMANDS this case to the Social Security Administration for the
calculation of benefits. The Clerk of the Court is DIRECTED to close the case.
I.

STANDARD OF REVIEW1
The Court’s review of the Report is de novo. 28 U.S.C. § 636(b) (2012). This review,

however, is limited to “a determination of whether substantial evidence exists in the record to
support the [Commissioner’s] decision and to a review for any legal errors.” Landsaw v. Sec’y of
Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Title II of the Social Security Act

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Finding the parties have adequately summarized the facts and procedural posture of this case, the Court refers to
the facts below only as necessary to facilitate its evaluation of Plaintiff’s Motion.

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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). Accordingly, the reviewing
court will uphold the Administrative Law Judge’s (“ALJ”) decision if it is supported by
substantial evidence. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Substantial evidence
is a term of art and is defined as “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is “more than a mere scintilla of
evidence, but less than a preponderance.” Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th
Cir. 1996) (citing Consol. Edison, 305 U.S. at 229).
“Where substantial evidence supports the [Commissioner’s] determination, it is
conclusive, even if substantial evidence also supports the opposite conclusion.” Crum v. Sullivan,
921 F.2d 642, 644 (6th Cir. 1990) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en
banc)). This standard of review is consistent with the well-settled rule that the reviewing court in
a disability hearing appeal is not to weigh the evidence or make credibility determinations
because these factual determinations are left to the ALJ and to the Commissioner. Hogg v.
Sullivan, 987 F.2d 328, 331 (6th Cir. 1993); Besaw v. Sec’y of Health & Human Servs., 966 F.2d
1028, 1030 (6th Cir. 1992). Thus, even if the Court would have come to different factual
conclusions as to the Plaintiff’s claim on the merits than those of the ALJ, the Commissioner’s
findings must be affirmed if they are supported by substantial evidence. Hogg, 987 F.2d at 331.

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II.

LIGON’S OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT
Ligon contends he has an intellectual disability2 as defined by Listing 12.05(C), and the

ALJ erred because she did not assess whether Ligon met or equaled the listing. The Magistrate
Judge recommended Ligon’s Motion be denied because the ALJ considered whether Ligon met
the severity requirements for Listings 12.04 and 12.09—which apply “to all Listings in Section
12” (Doc. No. 14 at 10 (emphasis original))—and because he did not, he could not be disabled
under Listing 12.05. Furthermore, the Magistrate Judge determined the record “simply does not
support Plaintiff’s contention that he suffered deficits in adaptive functioning of the requisite
severity, much less that the onset of his alleged impairment was before age 22.” (Id. at 18.)
Ligon objects to these rationales, arguing the Magistrate Judge applied the wrong legal standard
and his conclusions about Ligon’s deficits in adaptive functioning and onset age are not
supported by evidence in the record. (Doc. No. 15 at 9–10.) Ligon moves that the Court reverse
the decision of the Commissioner and award benefits. For the reasons stated below, the Court
grants Ligon’s Motion in full.
A. Listing 12.05(C)
As Ligon correctly notes, the severity requirements applicable to Listing 12.04 and other
mental disorders do not apply to Listing 12.05(A)–(C); instead, “Listing 12.05 contains an
introductory paragraph with the diagnostic description for intellectual disability. It also contains
four sets of criteria (paragraphs A through D). If [the claimant’s] impairment satisfies the
diagnostic description in the introductory paragraph and any one of the four sets of criteria,” the

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The Court notes that the parties and the ALJ continue to the use the term “mental retardation,” despite the fact that
the relevant Listing refers to this disability as Intellectual Disability, 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05,
and despite the passage of Rosa’s Law in 2010, which eliminated references to “mental retardation” and “the
mentally retarded” in federal law and replaced them with “intellectual disability” and “individuals with intellectual
disabilities,” Pub. L. No. 111-256, 124 Stat. 2643.

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claimant meets the listing. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A). Accordingly, to meet
Intellectual Disability Listing 12.05, claimants must establish that they meet the diagnostic
criteria: (1) “significantly subaverage general intellectual functioning” and (2) “deficits in
adaptive functioning,” both of which must have begun before age twenty-two. § 12.05; accord
Hayes v. Comm’r of Soc. Sec., 357 F. App’x 672, 675 (6th Cir. 2009); Foster v. Halter, 279 F.3d
348, 354 (6th Cir. 2001). Ligon claims he meets Listing 12.05(C), thus he must also meet the C
paragraph criteria: (3) “A valid verbal, performance, or full scale IQ of 60 through 70,” and
evidence of (4) “a physical or other mental impairment imposing an additional and significant
work-related limitation of function.” § 12.05(C).
The ALJ need not evaluate the claimant according to every listing; however, where the
record raises a “substantial question” as to whether the claimant meets a listing, the ALJ must
address that listing in her decision. Sheeks v. Comm’r of Soc. Sec. Admin., 544 F. App’x 639,
641–42 (6th Cir. 2013) (quoting Abbott v. Sullivan, 905 F.2d 918, 925 (6th Cir. 1990)). The
record raises a substantial question where there is evidence in the record that demonstrates the
claimant “reasonably could meet or equal every requirement of the listing.” Smith-Johnson v.
Comm’r of Soc. Sec., 579 F. App’x 426, 432 (6th Cir. 2014); see Sheeks, 544 F. App’x at 642
(finding no substantial question and denying remand because there was no record evidence
demonstrating the onset of deficits in adaptive functioning before age twenty-two); Abbott, 905
F.2d at 925 (finding substantial question where claimant had an IQ of 56, a score that meets the
intellectual disability listing on IQ alone). If the ALJ failed to address a listing, but the record
presents a substantial question as to each element of the listing, the ALJ’s determination is not
supported by substantial evidence and remand is appropriate. Sheeks, 544 F. App’x at 642.

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1. IQ Score
First, Plaintiff must present evidence of a “valid . . . IQ of 60 to 70.” § 12.05(C). A valid
IQ score reflects Plaintiff’s “true abilities,” Brown v. Sec’y of Health & Human Servs., 948 F.2d
268, 269 (6th Cir. 1991), and is consistent with “the individual’s customary behavior and daily
activities” and “developmental history,” § 12.00(D)(5)(c), (D)(6)(a). Ligon presents a full-scale
IQ score of 65 from an August 26, 2009, administration of the Wechsler Adult Intelligence
Scale—Fourth Edition (“WAIS-IV”); the examiner, Dr. Kimberly Tartt-Godbolt, noted “there is
a 95% likelihood of the claimant’s true FSIQ falling between 62–70.” (Tr. 274.)3 Dr. TarttGodbolt asked Ligon about his personal history and current activities of daily living and noted he
“had special education for all of his subjects” in school (Tr. 273) and “manages his finances with
some difficulty” (Tr. 274). Dr. Tartt-Godbolt also found Ligon “showed no evidence of
malingering” (id.) and that his intellectual abilities were commensurate with his academic
achievement test results (Tr. 280). Ligon also presents a full-scale IQ score of 61 from a June 21,
2011, administration of the WAIS-IV. (Tr. 517.) The examiner, Cynthia P. Rush, noted “this
appears to be a reliable and valid assessment of his current intellectual functioning.” (Tr. 516.)
Ligon could reasonably meet or equal the requirement of a valid IQ score of 60 to 70.
2. Additional and Significant Work-Related Limitation
Second, Ligon must present evidence of “a physical or other mental impairment imposing
an additional and significant work-related limitation of function.” § 12.05(C). A claimant meets
this requirement if he has “a ‘severe’ impairment(s), as defined in §§ 404.1520(c) and
416.920(c).” § 12.00; see Kidd v. Comm’r of Soc. Sec. Admin., 7 F. App’x 483, 490 (6th Cir.
2001). In this case, the ALJ determined Ligon has multiple severe impairments under 20 C.F.R.

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The administrative record is available electronically at Docket Number 4.

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§ 404.1520(c) at step three in the five-step disability analysis. (Tr. 10.) Ligon has presented
evidence that he could reasonably meet this requirement of the listing.
3. General Intellectual Functioning
Third, Ligon must present evidence of “significantly subaverage general intellectual
functioning” that began before age twenty-two. § 12.05. Intellectual functioning includes tasks
such as “reasoning, problem solving, planning, abstract thinking, judgment, academic learning,
and learning from experience,” Diagnostic and Statistical Manual of Mental Disorders 33 (5th
ed. 2013) (“DSM-V”), and claimants typically rely on academic records and IQ tests to establish
their level of intellectual functioning. See, e.g., Sheeks, 544 F. App’x at 642; West v. Comm’r of
Soc. Sec., 240 F. App’x 692, 698 (6th Cir. 2007). Ligon presents his WAIS-IV full-scale IQ
scores of 61 and 65 as evidence of his intellectual functioning. Dr. Tartt-Godbolt also
administered the Wide Range Achievement Test—4th Edition (“WRAT4”) and found Ligon’s
Word Reading skill was in the first percentile, “comparable to the average score of students in
the standardization sample who were in the 7th month of Grade 3.” (Tr. 277.) Ligon’s Sentence
Comprehension skill was comparable to that of students in the ninth month of Grade One, his
Spelling skill was comparable to that of students in the fourth month of Grade Two, his Math
Computation skill was comparable to that of students in the second month of Grade Three, and
his Reading Composite score was equivalent to “a percentile rank of 0.4.” (Tr. 277–78.)
Ligon also presents evidence that this deficit developed before the age of twenty-two.
Although most of Ligon’s school records were destroyed pursuant to Tennessee law, the record
indicates Ligon was evaluated, identified, and served as an individual with a disability. (Tr. 140.)
In four years of Tennessee Proficiency testing, Ligon received only one passing score. (Tr. 142.)
Furthermore, although he graduated from high school, he earned a special education diploma (Tr.
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34, 169) after being enrolled in all special education classes (Tr. 273). Ligon is not required to
provide an IQ test within the qualifying range from his youth; he is only required to provide
evidence of “significantly subaverage general intellectual functioning” before age twenty-two. §
12.05; see Burbridge v. Comm’r of Soc. Sec., 572 F. App’x 412, 415–16 (6th Cir. 2014). Ligon
has presented evidence that he could reasonably meet this requirement of the listing.
4. Adaptive Functioning
Finally, Ligon must present evidence of “deficits in adaptive functioning” that began
before age twenty-two. § 12.05. The Listing does not qualify this element in any way. Id.
However, “[t]he definition of [intellectual disability] we use in our listings is consistent with, if
not identical to, the definitions of [intellectual disability] used by the leading professional
organizations.” Technical Revisions to Medical Criteria for Determinations of Disability, 67 Fed.
Reg. 20,018-01, 20,022 (Apr. 24, 2002); see Brown, 948 F.2d at 270 (12.05(C) tracks DSM
listing for mild intellectual disability). Furthermore, “deficits in adaptive functioning” is an
element of the Diagnostic and Statistical Manual of Mental Disorders’ definition of intellectual
disability, and of the definitions espoused by all other relevant professional organizations. Thus,
to diagnose a claimant with an intellectual disability, the medical source must first determine the
claimant has deficits in adaptive functioning. See infra; Durden v. Astrue, 586 F. Supp. 2d 828,
833 (S.D. Tex. 2008) (surveying professional organizations’ definitions). The only two medical
sources to assess Ligon for intellectual disability both diagnosed him with mild intellectual
disability. (Tr. 280, 519.) Therefore, two medical sources have determined Ligon demonstrates
deficits in adaptive functioning and meets this element of the listing.
The ALJ apparently disregarded Ligon’s IQ scores because, in her estimation, Ligon’s
adaptive functioning was not consistent with his low scores. (Tr. 21, 58.) However, under the
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Social Security Administration’s rules, a medical consultant or psychological consultant must
“affirm that adaptive functioning is consistent with IQ test results.” SSA Program Operations
Manual System DI24515.056(D)(2) Evaluation of Specific Issues—Mental Disorders—
Determining Medical Equivalence (2012) [hereinafter POMS DI24515.056]. The ALJ may not
substitute her own judgment for that of a medical source where, as here, the POMS makes the
“judgment of an MC/PC [medical consultant or psychological consultant] necessary” to an
assessment of adaptive functioning. Id. (emphasis added). Instead, the ALJ must consider Dr.
Tartt-Godbold and Ms. Rush’s opinions according to “the examining relationship (or lack
thereof), specialization, consistency, and supportability” in determining how they should be
weighed, and the ALJ’s ultimate decision as to the plaintiff’s disability must be supported by
substantial evidence in the record. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir.
2013), reh’g denied (May 2, 2013) (citing 20 C.F.R. § 404.1527(c)). The ALJ failed to follow
this requirement.
Adaptive functioning refers to “how well a person meets community standards of
personal independence and social responsibility, in comparison to others of similar age and
sociocultural background” and accounts for “adaptive reasoning in three domains: conceptual,
social, and practical.” DSM-V at 37. A person demonstrates deficits in adaptive functioning
consistent with intellectual disability “when at least one domain of adaptive functioning . . . is
sufficiently impaired that ongoing support is needed in order for the person to perform
adequately in one or more life settings at school, at work, at home, or in the community.” Id. at
38; see, e.g., Dragon v. Comm’r of Soc. Sec., 470 F. App’x 454, 463 (6th Cir. 2012) (graduating
high school and mothering not inconsistent with mild intellectual disability where Plaintiff had
individual education plan and parenting assistance); West, 240 F. App’x at 698.
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“The practical domain involves learning and self-management across life settings,
including personal care, job responsibilities, money management, recreation, self-management of
behavior, and school and work task organization.” DSM-V at 37. For an individual with a mild
intellectual disability, “competitive employment is often seen in jobs that do not emphasize
conceptual skills,” and support is needed “to learn to perform a skilled vocation competently.”
Id. at 34. For individuals with moderate intellectual disability, “[i]ndependent employment in
jobs that require limited conceptual and communication skills can be achieved, but considerable
support from . . . others is needed to manage social expectations, job complexities, and ancillary
responsibilities such as scheduling, transportation, health benefits, and money management.” Id.
at 35; Brown, 948 F.2d at 270 (finding that individuals with mild intellectual disability “usually
achieve social and vocational skills adequate for minimum self-support, but may need guidance
and assistance”).
Thus, courts have found claimants whose work includes “complicated tasks” do not
demonstrate deficits in adaptive functioning. See, e.g., Carmack v. Barnhart, 147 F. App’x 557,
560–61 (6th Cir. 2005) (holding that work history of business ownership, bookkeeping, and court
reporting inconsistent with finding of mild intellectual disability because history showed Plaintiff
had not manifested deficits in adaptive functioning); Daniels v. Comm’r of Soc. Sec., 70 F.
App’x 868, 872–73 (6th Cir. 2003) (determining that work history as a hair stylist with a
cosmetology license and as a bus driver indicated claimant had “an ability to perform relatively
complicated tasks” and no deficit in adaptive functioning); Foster, 279 F.3d at 355 (finding that
employment as an accounting clerk in a bank and liquor store indicate claimant could perform
relatively complicated tasks). However, a work history limited to unskilled labor—or jobs that
“do not emphasize conceptual skills” or “require limited conceptual and communication skills,”
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DSM-V at 34–35—is consistent with the deficits in adaptive functioning described by listing
12.05(C). See, e.g., Brown, 948 F.2d at 270 (finding that work as truck driver not inconsistent
with mild intellectual disability where claimant was required to drive and record mileage, hours,
and destinations); Whitehead v. Comm’r of Soc. Sec. Admin., No. 13-1231-T, 2014 WL 3952839,
at *5 (W.D. Tenn. Aug. 13, 2014) (“[N]either sawing trees or loosening and tightening wheel lug
nuts suggests intellectual capacity beyond that found by the psychologists who examined
Plaintiff and . . . concluded that he met the diagnostic criteria for mild [intellectual disability].”).
Ligon’s work history consists largely of unskilled jobs including concrete laborer, grill
cook, fry cook, and dishwasher. (Tr. 23, 35–37, 48–50, 54–56.) Although the work of fry cook is
categorized as semi-skilled, the Vocational Expert testified that the job as performed by Ligon
was “routine.” (Tr. 56). Contrary to the ALJ’s assessment (Tr. 59), the tasks required by Ligon’s
past jobs do not suggest adaptive functioning beyond that of someone with a mild intellectual
disability. Ligon also reports difficulties in the practical domain in other settings: he is unable to
use a checkbook or manage a savings account (Tr. 165), has difficulty managing money (Tr. 274,
519), has difficulty following instructions (Tr. 167, 169, 380, 519), and has some short-term
memory impairment (Tr. 516). Furthermore, as Ligon notes, his score on the Vineland Adaptive
Behavior Scales—Second Edition (“VABS-II”), a measure “designed to estimate an individual’s
adaptive behavior skills,” fell below the first percentile and “classifies his general adaptive
functioning as low.” (Tr. 518.) Ligon’s limitations and VABS-II scores are consistent with the
DSM-V’s description of the adaptive functioning deficits of an individual with an intellectual
disability.
The ALJ concluded psychological evaluations showing Ligon “had low general adaptive
functioning skills” were “inconsistent with the overall evidence of record” because Ligon “is
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capable of performing a variety of household chores.” (Tr. 21.) This reasoning is flawed because
individuals with intellectual disabilities are capable of the household chores performed by Ligon.
A person with a mild intellectual disability “may function age-appropriately in personal care” but
“need some support with complex daily living tasks in comparison to peers . . . [such as] grocery
shopping, transportation, home and child-care organization, nutritious food preparation, and
banking and money management.” DSM-V at 34; accord Brown, 948 F.2d at 270 (concluding
that ability to make change at a grocery store, do laundry, clean a room not inconsistent with
listing-level deficits in adaptive functioning). For a person with a moderate intellectual disability,
“participation in all household tasks can be achieved by adulthood, although an extended period
of teaching is needed, and ongoing supports will typically occur.” DSM-V at 35. Ligon reports
that he lives with his girlfriend and within walking distance of his parents, who he sees regularly.
(Tr. 40.) Ligon takes out the trash, helps with cleaning, and occasionally goes to the store for his
parents. (Tr. 40.) However, as noted above, Ligon has difficulty with banking and money
management. Ligon’s performance of household tasks is consistent with the listing for
intellectual disability.
Ligon also presents evidence that these deficits in adaptive functioning began before age
twenty-two. The academic records discussed in Section II.A.3 above indicate Ligon had deficits
in adaptive functioning in the “conceptual (academic) domain” as a student. DSM-V at 37.
Ligon’s employment history shows he began work before the age of twenty-two as a dishwasher
(Tr. 35), and he has never had a job requiring a higher level of adaptive functioning (see supra).
Ligon has presented evidence that he could reasonably meet this requirement of the listing.

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B. Award of Benefits
Because the ALJ failed to address listing 12.05(C), but the record presents a substantial
question as to each element of that listing, the ALJ’s determination is not supported by
substantial evidence and remand is required. However, Ligon asks the Court to award benefits
rather than remand the case for reconsideration under Listing 12.05(C). “In cases where there is
an adequate record, the Secretary’s decision denying benefits can be reversed and benefits
awarded if the decision is clearly erroneous, proof of disability is overwhelming, or proof of
disability is strong and evidence to the contrary is lacking.” Mowery v. Heckler, 771 F.2d 966,
973 (6th Cir. 1985); accord Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th
Cir. 1994).
The ALJ did not directly address listing 12.05(C), but she did address evidence in the
record that she believed undermined Ligon’s claims under other mental disorder listings. In
addition to the reasons discussed above, the ALJ found the assessments of state agency
psychological consultants Rudy Warren and Victor O’Bryan were more “consistent with the
evidence of record as a whole” than those of Dr. Tartt-Godbolt and Ms. Rush. (Tr. 22.) However,
neither Dr. Warren nor Dr. O’Bryan assessed Ligon under Listing 12.05. (Tr. 398, 357.)
Furthermore, although their assessments under the severity criteria applicable to other listings are
not applicable to an assessment under Listing 12.05(C), their assessments are not inconsistent
with a finding of disability under that listing: Dr. O’Bryan found Ligon “can perform 1–3 step
tasks,” his “concentration is limited, but adequate for simple work,” and he “can adapt to
infrequent changes in work routine” (Tr. 382); and Dr. Warren found Ligon can follow “simple
instructions” and “adapt to routine workplace changes” but “should not work with the public”
(Tr. 414). The ALJ also credited Dr. Tartt-Godbolt’s assessment “inasmuch as it reflects no more
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than moderate mental limitations” (Tr. 22); however, Dr. Tartt-Godbolt found these “moderate
impairment[s]” are consistent with her diagnosis of mild intellectual disability (Tr. 280).
The ALJ identified no evidence in the record to undermine Ligon’s claim under Listing
12.05(C), and upon review of the record, neither has the Court. As discussed in Section II.A
above, Ligon’s proof of disability under Listing 12.05(C) is strong. Accordingly, the Court
concludes Ligon is disabled under Listing 12.05(C) and remands this matter to the Social
Security Administration for the calculation of benefits.
III.

CONCLUSION
For the reasons stated above, the Court REJECTS the Magistrate Judge’s Report (Doc.

No. 14), GRANTS Ligon’s Motion (Doc. No. 8), VACATES the administrative Decision, and
REMANDS this case for the calculation of benefits. The Commissioner’s Motion to Stay (Doc.
No. 12) is TERMINATED as MOOT. The Clerk of the Court is DIRECTED to close this case.
It is so ORDERED.
Entered this the _2nd day of September, 2015.

____________________________________
JOHN T. NIXON, SENIOR JUDGE
UNITED STATES DISTRICT COURT 

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