United States District Court, D. South Carolina
Richard Mark Gergel, United States District Judge
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
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)(1).
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).
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.
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 ...
establishes] 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.
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
ALJ decision ultimately finding that the Plaintiff was not
disabled. The decision was reversed and remanded by the
Appeals Council for further review. A second ALJ decision was
issued in 2011, again finding that the Plaintiff was not
disabled. The Appeals Council again reversed the ALJ decision
and directed that on remand the ALJ 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 ALJ.
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
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 Plaintiff s "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 history of special
education and long-standing seizure disorder, the extent is
unclear at this time." Id.
the fact that the Appeals Council directed the ALJ on remand
to obtain another mental status examination to evaluate the
claimant's IQ, the ALJ, apparently interpreting the
directive as a suggestion, declined to order another
evaluation. Instead, the ALJ concluded another evaluation was
"unwarranted" because of the Plaintiffs work
history and other factors. Tr. 20, 219. The ALJ did note, and
did not question, the validity of Plaintiff s school testing
showing a full scale IQ of 64. Tr. 20.
record also contained reports from two of Plaintiff s
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 ALJ 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 ALJ. Tr.
conducting a third administrative hearing in this disability
claim on May 22, 2014, the ALJ 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 ALJ 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.
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). ...