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Rogers v. Colvin

United States District Court, E.D. Arkansas

September 4, 2014

Tommie J. Rogers, Plaintiff
v.
Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant

RECOMMENDED DISPOSITION

JEROME T. KEARNEY, Magistrate Judge.

Instructions

The following recommended disposition was prepared for U.S. District Judge D. Price Marshall. A party to this dispute may file written objections to this recommendation. An objection must be specific and state the factual and/or legal basis for the objection. An objection to a factual finding must identify the finding and the evidence supporting the objection. Objections must be filed with the clerk of the court no later than 14 days from the date of this recommendation.[1] The objecting party must serve the opposing party with a copy of an objection. Failing to object within 14 days waives the right to appeal questions of fact.[2] If no objections are filed, Judge Marshall may adopt the recommended disposition without independently reviewing all of the record evidence.

Reasoning for Recommended Disposition

Tommie J. Rogers seeks judicial review of the denial of his application for supplemental security income (SSI).[3] Rogers's application flows from a right leg fracture sustained in county detention in March 2008.[4] The fracture was repaired using a metal plate and screws.[5] By June 2008, the fracture had healed.[6]

In September 2008, Rogers went to prison.[7] He continued to complain about leg pain.[8] After being released on parole, he applied for SSI and based disability on leg problems.[9] Although Rogers based his claim on physical impairment, in this case, he claims he is mentally retarded.[10]

The Commissioner's decision. The ALJ found no limitations associated with mental retardation. The ALJ determined that Rogers has severe impairments - healed fracture of the right tibia/fibular, mood disorder, and personality disorder with cluster B traits[11] - but he can do some light work involving simple job instructions.[12] Because a vocational expert identified available work within the ALJ's parameters, [13] the ALJ determined that Rogers is not disabled and denied the application.[14]

After the Commissioner's Appeals Council denied a request for review, [15] the decision became a final decision for judicial review.[16] Rogers filed this case to challenge the decision.[17] In reviewing the decision, the court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.[18] This report explains why this case should be remanded to develop evidence about intellectual functioning.

Rogers's argument. According to Rogers, the ALJ should have identified mental retardation as a severe impairment. Rogers maintains he meets listing 12.05B - a listing for mental retardation - because he scored 59 or less on post-hearing IQ testing. Thus, Rogers contends the ALJ should have awarded benefits.[19]

Applicable legal principles. "To qualify for disability under a listing, a claimant carries the burden of establishing that his condition meets or equals all specified medical criteria."[20] Meeting a listing for mental retardation requires proof of "deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22."[21] Meeting listing 12.05B requires a valid verbal, performance, or full scale IQ score of 59 or less.[22]

IQ scores. Post-hearing IQ testing is the only significant evidence of mental retardation: full scale score: 58, verbal comprehension score: 56, and processing speed: 59.[23] The scores fall within the required range for proving mental retardation under listing 12.05B, but the ALJ implicitly rejected the scores as unreliable by finding no impairment due to mental retardation. The ALJ provided the following reasons for disagreeing with the testing examiner's diagnosis of mental retardation:

1. No history of mental retardation until the post-hearing consultative exam.
2. A prior mental consultative exam for a prior application noted a ...

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