United States District Court, N.D. Alabama, Jasper Division
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE
August 30, 2012, the claimant, John Lee Hessert, applied for
disability insurance benefits under Titles II and XVI of the
Social Security Act. The claimant alleged disability
beginning on March 31, 2009, because of a cancerous basal
cell carcinoma on the left side of his face, a severe groin
injury, a heart condition, and depression. The Commissioner
denied the claim on November 6, 2012. The claimant filed a
request for a hearing before an Administrative Law Judge, and
the ALJ held a hearing on June 8, 2015. (R. 21, 67-68, 79,
decision dated July 25, 2015, the ALJ found that the claimant
was not disabled as defined by the Social Security Act and
therefore was ineligible for Social Security benefits. The
Appeals Council denied the claimant's request for review
on December 5, 2016. Consequently, the ALJ's decision
became the final decision of the Commissioner of Social
Security. (R. 1, 31). The claimant has 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.
the ALJ erred as a matter of law in not considering Listing
12.05(C) regarding the claimant's IQ score of
STANDARD OF REVIEW
standard for reviewing the Commissioner's decision is
limited. This court must affirm the ALJ's decision if he
applied the correct legal standards and if substantial
evidence supports his factual conclusions. 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).
. . . presumption of validity attaches to the
[Commissioner's] legal conclusions, including
determination of the proper standards to be applied in
evaluating 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 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 a 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
disagrees 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 only look 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.
commits reversible error if he exercises his discretion to
disregard medical evidence in favor of his own impressions.
“An ALJ...abuses his discretion when he substitutes his
own uninformed medical evaluations for those of a
claimant's treating physicians.” Marbury v.
Sullivan, 957 F.2d 837, 840 (11th Cir.1991) (Johnson
the 12.05(C) criteria for intellectual disability, the
claimant must have a valid IQ score between 60 and 70 and
another physical or mental impairment that imposes additional
occupational limitations. Smith v. Comm'r of Soc.
Sec., 535 Fed.Appx. 894, 897 (11th Cir. 2013) (quoting
Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.
1992)). An IQ between 60 and 70 creates a
rebuttable presumption that the claimant's intellectual
disability was present before the age of twenty-two because
IQ scores are fairly consistent across life; however, a low
IQ is not indicative of disability if the score is
inconsistent with other evidence in the record about the
claimant's daily activities and behaviors. Perkins v.
Comm'r of Soc. Sec., 553 Fed.Appx. 870, 873 (11th
claimant was forty-four years old at the time of the
ALJ's final decision. The claimant dropped out of high
school around the age of sixteen and does not have a GED. His
past relevant work includes cashier, yard maintenance worker,
and a deburrer of machine parts. The claimant alleges
disability based on a basal cell carcinoma on the left side
of his face, a severe groin injury, a heart condition, and
depression. (R.43-44, 46, 29, 68).
claimant stated he had a “post block” treatment
for back pain some time in 2001 because he had a herniated
disc between the L4 and L5 vertebrae. (R. 51).
claimant had a basal cell carcinoma of the left nasal canthal
region and nose surgically removed from his face by plastic
surgeon Dr. Frank Lomagistro on August 11, 2009. During the
claimant's follow-up visit with Dr. Lomagistro on August
31, 2009, Dr. Lomagistro indicated that the surgical wound
was healing properly. In another follow-up appointment on
September 28, 2009, Dr. Lomagistro noted that the claimant
was doing well; reported no evidence of the cancer's
recurrence or other problems; and instructed the claimant to
return for a checkup in another month and follow-up with a
dermatologist. Dr. Lomagistro's records do not indicate
if the claimant did either. (R. 426-27).
claimant went to the emergency room on December 31, 2010, for
abdominal pain he rated a ten out of ten on a scale of zero
to ten. The claimant reported that he had experienced aching
pain for five days; he also reported experiencing nausea.
Upon admission to the hospital, nurse practitioner Pamela
Griffin game him intravenous morphine for pain and Reglan to
treat gastrointestinal distress. The claimant left the
hospital on January 1, 2011, with no explained etiology for
his abdominal pain other than a possible renal cyst. Dr.
Julie Shamas prescribed the claimant Pepcid for acid relief
and Zofran to treat his nausea; advised him to follow-up with
a primary care physician; and instructed him to return to the
ER if his symptoms worsened. (R. 500-08, 513).
15, 2011, the claimant had a syncopal episode and lost
consciousness for one minute after standing up and
experiencing dizziness. Dr. Alex Viegas admitted the claimant
to Winter Haven Hospital for observation. While there, Dr.
Randall Kramer examined the claimant on June 16 after Dr.
Viegas asked him for a medical consult. Dr. Kramer noted that
the claimant reported no heart palpitations or chest pain but
still experienced dizziness. Dr. Kramer reported that the
claimant occasionally smoked marijuana, drank one to three
cups of coffee a day, and that medical tests revealed no
abnormalities in his heart beat or rate. Dr. Kramer found no
determined cause of the syncopal episode, but warned the
claimant that he could have a bacterial infection. Dr. Kramer
urged the claimant to obtain a primary care physician and
prescribed him one 81 mg aspirin a day and a short-term dose
of Cardizem to maintain his blood pressure and sinus rhythm.
Dr. Viegas noted in the claimant's final assessment that
the claimant had a suspected type of atrial fibrillation and
syncope. Dr. Viegas discharged the claimant on June 17, 2011.
(R.475, 480, 450-51, 486-87).
October 7, 2011, the claimant went to the ER at Winter Haven
Hospital experiencing groin pain that Dr. Victor Aramayo
diagnosed as a right inguinal hernia. The claimant indicated
that the hernia appeared about a month before and that he had
painful urination, groin pain, and diarrhea. He also reported
a prior history of depression. The claimant rated the pain a
ten on a scale of zero to ten. Dr. Aramayo gave the claimant
acetaminophen and Ketorolac for his pain, Rocephin to treat a
possible infection, and advised him to follow-up with Dr.
Aronski, the surgeon on call. Before releasing the claimant
from the ER, Dr. Aramayo also prescribed the claimant Keflex,
an antibiotic, and Naprosyn for his pain. Nothing in the
record suggests that the claimant followed-up with Dr.
Aronski. (R. 457-61, 464, 469).
request of the state of Florida Disability Determination
Services, Dr. Ricardo Varas performed a consultative
examination of the claimant on October 27,
2012. Dr. Varas indicated that the claimant
reported mild tingling or numbness around the surgical site
from his cancer surgery but no other facial symptoms. The
claimant also reported that he injured his groin during a
bike accident in April 2011; when the pain worsened, a doctor
in the ER diagnosed him with a hernia and urinary tract
infection; and without insurance, he could not pay for
surgery to fix his hernia. While the claimant reported
experiencing chest pain and angina, Dr. Varas noted that the
claimant was unable to provide much information about his
2011 syncopal episode. The claimant also told Dr. Varas that
his groin pain significantly restricted his movement and
abilities to stand or walk for long periods of time, do
chores, drive, and lift objects heavier than ten pounds. (R.
Varas described the claimant's gait as slightly abnormal
with a limp of his right leg but noted that the claimant was
able to get on and off the examining table without
difficulty. He reported that the claimant had some mild
deformity of the nose from his cancer surgery but had no open
wounds or keloid formation. Dr. Varas further reported that
the claimant had a right inguinal hernia that made it
difficult for him to squat and completely perform a straight
leg test with his right leg. Examination of the
claimant's spine revealed no trigger points. (R. 526-27).
Varas opined that the claimant's skin cancer should not
be taken into account for his disability, but that it could
limit his ability to find a job working outdoors. Dr. Varas
indicated that, without a better history from the claimant or
medical records from the syncopal episode, he could not make
a full determination about the claimant's possible heart
condition. He stated that with surgery, the claimant's
right inguinal hernia would probably significantly improve or
disappear, allowing him to return to work. Finally, Dr. Varas
noted that the claimant needed better access to healthcare.
December 18, 2012, the claimant completed a supplemental pain
questionnaire for the State of Florida Department of Health.
He indicated the pain level for his groin was eight on a
scale of zero to ten; that he took only acetaminophen for his
pain and it only “worked” for a while; and that
his pain ...