United States District Court, N.D. Alabama, Middle Division
JON A. COLE Plaintiff,
NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
9, 2012, the claimant, Jon Cole, protectively applied for
disability and disability insurance benefits under Title II
and Title XVI of the Social Security Act. In both of his
applications, the claimant originally alleged disability
beginning May 15, 2009 because of a learning disability,
scoliosis, a bad right ankle, and a bad back. The
Commissioner denied both claims initially on June 15, 2012,
and again upon reconsideration on September 7, 2012. The
claimant amended in writing his alleged onset date of
disability to January 1, 2013, and then at the hearing,
orally amended the onset date to March 20, 2013. Following
the 2012 denials of his claim, the claimant then filed a
written request for hearing before an Administrative Law
Judge on September 17, 2012. The hearing before the ALJ
occurred by video-conference on April 8, 2014. (R. 37, 57,
84, 94, 185 - 197).
decision dated May 15, 2014, the ALJ found that the claimant
was not disabled as defined by the Social Security Act and,
thus, was ineligible for disability benefits. The Appeals
Council then denied the claimant's request for review,
and the ALJ's decision became the final decision of the
Commissioner of the Social Security Administration. The
claimant exhausted his administrative remedies, and this
court has jurisdiction pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3). For the reasons stated below, this
court reverses and remands the decision of the Commissioner
to the ALJ for reconsideration. (R. 1, 14).
the ALJ's finding that claimant did not meet the
requirements of §12.05(C) for mental impairment because
the claimant did not have a valid IQ score that fell within
the applicable IQ range lacks substantial evidence.
STANDARD OF REVIEW
standard for reviewing the Commissioner's decision is
limited. This court must affirm the Commissioner's
decision if the Commissioner applied the correct legal
standards and if the factual conclusions are supported by
substantial evidence. See 42 U.S.C. § 405(g);
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.
1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir.
. . . presumption of validity attaches to the
[Commissioner's] legal claims." Walker, 826
F.2d at 999. This court does not review the
Commissioner's factual determinations de novo.
The court will affirm those factual determinations that are
supported by substantial evidence. "Substantial
evidence" is "more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971).
court must keep in mind that opinions such as whether a
claimant is disabled, the nature and extent of a
claimant's residual functional capacity, and the
application of vocational factors "are not medical
opinions, . . . but are, instead, opinions on issues reserved
to the Commissioner because they are administrative findings
that are dispositive of a case; i.e., that would direct the
determination or decision of disability." 20 C.F.R.
§§ 404.1527(d), 416.927(d). Whether the claimant
meets the listing and is qualified for Social Security
disability benefits is a question reserved for the ALJ, and
the court "may not decide facts anew, reweigh the
evidence, or substitute [its] judgment for that of the
Commissioner." Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005). Thus, even if the court were to
disagree with the ALJ about the significance of certain
facts, the court has no power to reverse that finding as long
as substantial evidence in the record supports it.
court must "scrutinize the record in its entirety to
determine the reasonableness of the [Commissioner]'s
factual findings." Walker, 826 F.2d at 999. A
reviewing court must not look only to those parts of the
record that support the decision of the ALJ, but also must
view the record in its entirety and take account of evidence
that detracts from the evidence relied on by the ALJ.
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir.
42 U.S.C. § 423(d)(1)(A), a person is entitled to
disability benefits when the person cannot "engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or 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. § 423(d)(1)(A). To make this
determination, the Commissioner employs a five-step,
sequential evaluation process:
(1) Is the person presently unemployed?
(2) Is the person's impairment severe?
(3) Does the person's impairment meet or equal one of the
specific impairments set forth in 20 C.F.R. Pt. 404, Subpt.
P, App. 1?
(4) Is the person unable to perform his or her former
(5) Is the person unable to perform any other work within the
An affirmative answer to any of the above questions leads
either to the next question, or, on steps three and five, to
a finding of disability. A negative answer to any question,
other than step three, leads to a determination of "not
McDanielv. Bowen, 800 F.2d 1026, 1030 (11th Cir.
1986); 20 C.F.R. §§ 404.1520, 416.920.
claimant was 50 years old at the time of the administrative
hearing and had a twelfth grade education. (R. 234, 24). He
previously worked as a carpet bagger at a carpet mill, a
general laborer at a carpet mill, a chicken hanger at a
chicken plant, and a carpet loader at a carpet mill, as well
as intermittently working as a construction worker for short
periods of time. (R. 269). The claimant alleged that he was
unable to work because of a lifelong mental impairment of
cognitive deficiency, a current back impairment related to a
diagnosis of scoliosis as a teen, and a right ankle
impairment related to a 1987 injury to that ankle, which was
surgically repaired with a pin. (R. 17). The claimant alleged
he was disabled beginning May 15, 2009. (R. 185).
claimant was born in July of 1967. The claimant's school
records show that in the 1973-74 school year as a
six-year-old first grader, the claimant earned D's in
arithmetic and reading, a C in writing, and an F in spelling.
On May 14, 1974, Attalla City Public Schools Department of
Student Services administered the WISC to the claimant at the
age of six years, nine months. The claimant obtained a score
of 71 on his first WISC test. As a second grader, in the
1974-75 school year, the claimant earned a D in arithmetic,
an F in reading, an A in science, an A in social studies, a
D in writing, and an F in spelling. (R. 237).
third grader, in the 1975-76 school year, the school
classified the claimant was as educable mentally retarded
(EMR) and he began receiving special education services of an
unspecified type. During his first year in special education
classes, the claimant earned U's in arithmetic, reading,
and spelling, and S's in language, writing, and physical
education. The claimant underwent IQ testing for a second
time on October 5, 1976, when he was a nine-year-old fourth
grader. The claimant scored a 72 on the WISC test. Still
classified as EMR for his fourth grade year, the claimant
earned an A in arithmetic, B in language, B in reading, B-
in spelling and B- in writing. In his fifth grade EMR
classes, the claimant earned D's in arithmetic, language,
and reading; C's in science, social studies, and
spelling; and a B in writing. (R. 237).
claimant's educational record shows that, upon entering
sixth grade at Etowah Middle School in August of 1978, the
school placed him in the school's general population and
did not classify him as EMR or put him in special education
classes. That year, the claimant earned a 79 in language
arts, a C in social studies, a B in math, a B in science, an
A in physical education, and a C in reading. In seventh
grade, the claimant earned a C in language arts, a 73 in
social studies, a 76 in math, a C in science, a 95 in
physical education, an A in industrial arts, and an A in
reading. The school placed the claimant back into special
education classes for his eighth-grade year, and he earned a
C in English, a C in social studies, a C in math, a 67 in
science, an A in physical education, and a C in art. (R.
claimant remained in special education classes until he
completed twelfth grade, but was not classified as EMR as he
had been in elementary school. In ninth grade, the claimant
earned a 76 in English, an 84 in social studies, an 86 in
math, a 76 in life sciences, a 90 in physical education, and
a 38 in home economics. In tenth grade, the claimant earned
an 80 in English, an 83 in math, a 76 in agribusiness, a 72
in occupational study, a 63 in single living, a 60 in health,
and an A in physical education. In eleventh grade, the
claimant earned an 83 in art, a 78 in ROTC, a 71 in American
history, a 63 in agribusiness, a 60 in basic math, a 60 in
English, and a 96 in physical education. In twelfth grade,
the claimant earned an 86 in ROTC, a 74 in government and
economics, a 74 in English, a 100 in physical education first
semester, and a 91 in physical education second semester, but
he received no grade in his twelfth grade math class. (R
October 1984, the claimant took the Alabama High School
Graduation Exam (AHSGE), which is required to earn a high
school diploma. He passed the math portion of the test, but
failed both the reading and language portions of the test. In
March 1985, the claimant retook only the reading and language
sections of the AHSGE, but he failed those sections again.
The claimant completed twelfth grade at Etowah High School at
the age of 18, but did not receive his diploma because he did
not pass the AHSGE and only earned 17 of the required 20
credits required to earn a high school diploma. (R. 238, 239,
request of the Social Security Administration, in connection
with his October, 2009 application for disability benefits,
the claimant underwent a psychological consultative
examination on June 9, 2010 with John Muller, Ph.D. During
the examination, the claimant reported that he was able to
handle his own personal finances, care for his own personal
hygiene, help his wife with household chores, and partake in
his hobby of fishing. Dr. Muller incorrectly identified the
claimant as a high school graduate, and indicated ...