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Johnson v. Colvin

United States District Court, E.D. Arkansas, Jonesboro Division

April 15, 2016

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, DEFENDANT


Plaintiff Michael Johnson (“Johnson”) commenced the case at bar by filing a complaint pursuant to 42 U.S.C. 405(g). In the complaint, he challenged the final decision of the Acting Commissioner of the Social Security Administration (“Commissioner”), a decision based upon findings made by an Administrative Law Judge (“ALJ”).

Johnson maintains that the ALJ’s findings are not supported by substantial evidence on the record as a whole and offers two reasons why.[1] Johnson first maintains that the ALJ committed error at step three of the sequential evaluation process. Johnson maintains that his intellectual impairment meets Listing 12.05C, and the ALJ erred when he failed to so find.

At step three, the ALJ must determine whether a claimant’s impairment, when considered individually and in combination with his other impairments, meets or equals a listed impairment. See Raney v. Barnhart, 396 F.3d 1007 (8th Cir. 2005). The determination is a medical one, see Cockerham v. Sullivan, 895 F.2d 492 (8th Cir. 1990), and the claimant bears the burden of showing that his impairment meets or equals a listed impairment, see Pyland v. Apfel, 149 F.3d 873 (8th Cir. 1998).

Listing 12.05 addresses intellectual disability, formerly referred to as mental retardation. The introductory paragraph of Listing 12.05 explains that the disability encompasses “significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period, ” that is, the evidence demonstrates or supports onset of the impairment before the claimant’s twenty-second birthday. A claimant meets or equals Listing 12.05 by satisfying the requirements of the introductory paragraph and one of four paragraphs contained in the listing. Paragraph C, or 12.05C, requires proof 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. The formal diagnosis of an intellectual disability is not required. The ALJ is not obligated, though, to accept a claimant’s IQ scores and may reject scores that are inconsistent with the record. See Clark v. Apfel, 141 F.3d 1253 (8th Cir. 1998). “Indeed test results of this sort should be examined to assure consistency with daily activities and behavior.” See Id. at 1255 [internal quotations and citation omitted].

The evidence relevant to Johnson’s intellectual abilities reflects that in June of 2011, he was seen by Dr. Kenneth Hobby, Ph.D., (“Hobby”) for an intellectual and mental diagnostic evaluation. See Transcript at 487-502. Johnson reported, inter alia, that he attended school through the sixth grade and earned primarily Cs and Ds. He also reported having been fired from a job once because of an inability to read. Hobby administered Wechsler Adult Intelligence Scale-Third Edition (“WAIS-III”) testing, and the results indicated that Johnson has a verbal IQ of seventy-one, a performance IQ of seventy-four, and a full scale IQ of sixty-nine. Hobby observed, though, that “[t]he test scores seem[ed] to be a little bit low indication of [Johnson’s] current functioning ...” See Transcript at 496. With respect to the effects of Johnson’s impairment on his adaptive functioning, Hobby found the following:

1. How do mental impairments interfere with this person’s day to day adaptive functioning? ...

[Johnson] reported being able to drive a car on familiar roads and he has a license. He said he could drive on unfamiliar routes, but he tries not to. He said he can drive alone for distances up to 20 miles from home. He reports the following problems with being able to shop adequately for groceries, clothing, and personal items: None. He reports the following problems with being able to use a checkbook to pay bills: he can’t write one. He reports the following problems with being able to make change and purchase things at the store with cash: None. He reports that he participates in the following social groups: Immediate family, church. On a typical day he gets up at 7-8 a.m. During the day he watches TV, helps his father, works on cars, and helps out around the yard. In regard to [activities of daily living], his reported MENTAL impairment DOES NOT appear to significantly impact an independent level of feeding himself, bathing, self-care, personal hygiene, and dressing.

2. Capacity to communicate and interact in a socially adequate manner? ...

[Johnson] reports getting along with his parents. He reports not getting along well with his siblings. He reports not associating with neighbors. In school, poor relationships were reported with his teachers and his schoolmates. He reported poor relationships with his childhood playmates.
Only slight limitations were noted in [Johnson’s] current capacity to communicate and interact in a socially adequate manner because he is introverted. There were no discrepancies between alleged inadequacies and the interpersonal skill level demonstrated during the interview.

3. Capacity to communicate in an intelligible and effective manner?

[Johnson’s] grammar was adequate for communicating information on at least a basic work-like task. [He] did not seem to have any difficulty understanding instructions given by the examiner. There seemed to be level of understanding that would enable [Johnson] to respond to very basic normal instructions.

4. Capacity to cope with the typical mental/cognitive demands of basic work-like tasks?

[Johnson] has slight limitations in the ability to understand, carry out and remember basic work-like tasks. [He] would probably respond adequately to work pressure in a work-like setting if he was motivated, could do the work, and the work wasn’t timed.

5. Ability to attend and sustain concentration on basic tasks?

Slight limitations were observed in [Johnson’s] ability to attend and sustain concentration ...

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