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Cole v. Berryhill

United States District Court, N.D. Alabama, Middle Division

September 18, 2017

JON A. COLE Plaintiff,
v.
NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On May 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).

         In a 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).

         II. ISSUE PRESENTED

         Whether 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.

         III. STANDARD OF REVIEW

         The 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. 1987).

         "No . . . 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).

         The 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.

         The 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. 1986).

         IV. LEGAL STANDARD

         Under 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 occupation?
(5) Is the person unable to perform any other work within the economy?
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 disabled."

McDanielv. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986)[1]; 20 C.F.R. §§ 404.1520, 416.920.

         V. Facts

         The 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).

         Mental Impairments

          The 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).

         As a 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).

         The 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. 235).

         The 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 235).

         In 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, 240, 248).

         At the 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 ...


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