United States District Court, E.D. Arkansas, Northern Division
BRENDON G. LABOR PLAINTIFF
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration DEFENDANT
MEMORANDUM OPINION AND ORDER
Brendon G. Labor (“Labor”) began 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”).
maintains that the ALJ's findings are not supported by
substantial evidence on the record as a whole and offers two
reasons why. Labor first maintains that his impairments
include borderline intellectual functioning, and the ALJ
erred at step two of the sequential evaluation process when
he failed to find that the impairment is severe.
two, the ALJ is required to identify the claimant's
impairments and determine whether they are severe. An
impairment is severe if it has “more than a minimal
effect on the claimant's ability to work.” See
Henderson v. Sullivan, 930 F.2d 19, 21 (8th
Cir. 1992) [internal quotations omitted]. Once a
claimant's impairments are identified, and it is
determined that they do not meet or equal a listed
impairment, the ALJ is required to consider all of the
claimant's impairments, both severe and non-severe, in
assessing his residual functional capacity.
evidence relevant to Labor's intellectual functioning is
not voluminous. The evidence reflects that in September of
1988, or approximately twenty-five years before the alleged
onset date, Labor was seen by a school psychologist for an
evaluation and a determination of whether Labor should
continue in special education classes. See
Transcript at 309-311. The psychologist administered Wechsler
Adult Intelligence Scale (“WAIS”) testing, and it
indicated that Labor had a verbal IQ of seventy-six, a
performance IQ of seventy-one, and a full scale IQ of
March of 1993, Labor was seen for an assessment of his
intellectual functioning. See Transcript at 367-372.
A psychological examiner administered WAIS testing, and
Labor's scores included a performance IQ of sixty-six.
The psychological examiner's conclusions and
recommendations were as follows:
indicate generally below average intellectual and academic
Mr. Labor appears to be within the [b]orderline range of
intellectual functioning with significant deficits in his
ability to make appropriate social judgments and respond in a
socially adequate manner. This deficit will make it difficult
for Mr. Labor to function adequately in a vocational setting
for any sustained period of time. Semi-skilled training, such
as that which might be available at a local
vocational-technical training facility, is feasible.
Extensive vocational and personal guidance and assistance are
needed. Provided these services, Mr. Labor may reasonably be
expected to sustain independent functioning by means of
low-demand employment. Mr. Labor's test performance is
commensurate with expectations deprived from the demonstrated
level of formal education and reported academic history.
See Transcript at 372.
of 1995, Labor was seen by a psychologist for intelligence
testing. See Transcript at 362-363. The psychologist
administered WAIS testing, and Labor's scores included a
performance IQ of sixty-nine. The psychologist diagnosed a
chronic adjustment disorder, mild mental retardation, and a
dependent personality disorder.
record is silent as to any other testing of Labor's
intellectual functioning until April of 2013 when he was seen
by Dr. Nancy Bunting, Ph.D., (“Bunting”).
See Transcript at 328-333. She administered WAIS
testing, and his scores included a full scale IQ of
sixty-eight. Although she discounted the accuracy of the
score, she nevertheless diagnosed, inter alia, a
“mathematics disorder.” See Transcript
at 331. With respect to the effects of the
disorder on his adaptive functioning, she opined the
The patient's mother drove him to the appointment today.
He had [a driver's] license in 2004 but said he only
drove on familiar road locally by himself because he was
“not good with directions.” He now shops with his
mother in the month he has been out of prison, and he said
that previously in 2004 he shopped by himself with no
problems, e.g., for his sports autograph collection. He has
never used a checkbook. He said he paid his own bills on time
in 2004 when he had his own apartment. He has always had
difficulties making change. He can do household chores like
washing dishes, doing laundry, sweeping or vacuuming, and
cleaning. He claimed to only use a microwave, but it was not
clear if that was because that was all that had been
available. He spends his time fixing up the house where they
are living, e.g., painting, doing yard work, watching
television, listening to the radio and other music, using the
Xbox to play NASCAR games, and reading the newspaper and
sports books for one hour at a time. He used to have an
autograph collection from various sports figures, but now he
enjoys just going to the Wal-Mart with his mother.
The patient reported he has friends but is not involved in
church or any other group. He has contact with his one
The patient communicated and interacted in an immature, but
The patient communicated in an intelligible and effective