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Rogers v. Colvin

United States District Court, E.D. Arkansas

September 4, 2014

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


JEROME T. KEARNEY, Magistrate Judge.


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 possibility of malingering.
3. Rogers testified that he can read, write, and do basic math.
4. Rogers initially reported completing eleventh grade without special education.
5. There's no evidence of a formal diagnosis of mental retardation before age 22.[24]

These reasons provided an insufficient basis for rejecting the diagnosis for the following reasons:

Reason #1: no history of mental retardation. Rogers was 47 years old when he obtained the scores underlying his claim. He does not recall an earlier testing.[25] Thus, there's no history of mental retardation. Although the lack of history weighs against Rogers's claim, "a person's IQ is presumed to remain stable over time in the absence of any evidence of a change in a claimant's intellectual functioning."[26] Unrebutted, the presumption provides a basis for arguing that a score obtained after age 22 represents the claimant's intellectual functioning before age 22. The ALJ failed to recognize the presumption of a stable IQ, and thus, cited no evidence evidencing a change in intellectual functioning.

Reason #2: prior mental consultative exam noted a possibility of malingering. An earlier mental diagnostic exam may have raised the issue of malingering, but the exams in the record do not implicate malingering as to intellectual functioning. The record includes two reports of mental diagnostic exams. The first psychological examiner observed signs of malingering as to Rogers's chief symptom allegation - hearing voices[27] - but not as to intellectual functioning. The first examiner reported that Rogers appears to function "within or near the mentally retarded range."[28] That report prompted Rogers's attorney to request IQ testing.[29] The second, testing psychologist reported that the "test results are an accurate estimate of [Rogers's] current level of intellectual functioning."[30] The second examiner observed no evidence of malingering or exaggeration.[31] As a result, the medical opinions in the record are consistent in regard to malingering as to intellectual functioning. If there is a medical opinion implicating malingering as to intellectual functioning, it is not in the record.

Reason #3: Rogers testified that he can read, write, and do basic math. According to diagnostic criteria, Rogers's scores fall within the range of mild retardation.[32] People with mild retardation can learn practical skills, including reading and math, up to about the sixth grade level.[33] Rogers reported that he can read and write, [34] and use a checkbook and a savings account.[35] He can add, subtract, multiply, and divide.[36] He can make change and write a letter.[37] Because many sixth-graders have these skills, Rogers's testimony doesn't weigh against a claim of mental retardation.

Reason #4: initial report of eleventh grade education without special education. Students with intellectual disabilities often receive special education in primary and secondary school. Although Rogers reported no special education when he applied for SSI, that report holds little probative value because it flowed from a telephone interview.[38] If Rogers has an intellectual disability, he may not have understood the agency interviewer. The record reflects no effort to obtain school records or affidavits which might substantiate reports of special education.

Reason #5: no formal diagnosis before age 22. The record doesn't include a formal diagnosis of mental retardation before age 22, but a claimant doesn't need a formal diagnosis to meet a listing for mental retardation; instead, a claimant must demonstrate or support the onset of impairment before age 22.[39] Consequently, the lack of a formal diagnosis before age 22 does not weigh against Rogers's claim.

The record needs development. Although determining the question of mental retardation in late adulthood places an ALJ in a difficult position, an ALJ still has a duty to develop the record fully, even when the claimant is represented by an attorney.[40] An undeveloped record risks over-estimating the claimant's intellectual functioning. There's no bright line rule for determining whether the ALJ has adequately developed the record - because "an assessment is made on a case-by-case basis"[41] - but this case calls for further development.

First, the reliability of Rogers's IQ scores requires development. The ALJ was understandably suspect of a claim based on IQ scores obtained at age 47 because there is no earlier evidence of mental retardation. Moreover, Rogers's exaggeration of his physical complaints undermined his claim about mental retardation. Rogers alleged disabling pain in his back, neck, legs, knees, and ankles, [42] but the physical examiner found only minimal limitations.[43] The ALJ can resolve the issue of reliability by ordering additional IQ testing, to include a malingering detection instrument.

Second, evidence of onset requires development. Even if Rogers's IQ scores are valid, the scores are not enough to prove he is mentally retarded. He needs evidence demonstrating or supporting onset before age 22. Validating his scores will further his claim, but primary and secondary education records can eliminate doubt. The record reflects no effort to develop evidence of onset. The 38 days between the time the IQ scores were reported and the date of the ALJ's decision provided time for Rogers's attorney to present evidence demonstrating or supporting onset, but the record reflects no action by Rogers's attorney. The ALJ should direct the attorney to provide evidence of onset.

Recommended Disposition

The record is undeveloped as to the reliability of Rogers's intellectual functioning and onset of impairment. As a result, the ALJ's reasons for rejecting the diagnosis of mental retardation do not support the rejection of the diagnosis of mental retardation. For these reasons, the undersigned magistrate judge recommends REVERSING the decision and REMANDING the case to the Commissioner with the following instructions:

On remand, the ALJ shall obtain: (1) additional IQ testing, to include a malingering detection instrument, and (2) evidence of onset before age 22, to include primary and secondary school records, if available. If the ALJ finds IQ scores unreliable, the ALJ shall explicitly explain why the scores are inconsistent with the record. The ALJ shall then consider the evidence as a whole and determine Rogers's ability to work.

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