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Case 2:12-cv-00761-M Document 16 Filed 07/31/13 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

MEMORANDUM OPINION AND ORDER



CHARLES JAMES SEWELL, :
:

Plaintiff, :
:
vs. :
: CIVIL ACTION 12-0761-M
CAROLYN W. COLVIN, :
Commission of Social Security, :
:

Defendant. :





In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),
Plaintiff seeks judicial review of an adverse social security
ruling which denied claims for disability insurance benefits and
Supplemental Security Income (hereinafter SSI) (Docs. 1, 8).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 15). Oral
argument was waived in this action (Docs. 13-14). Upon
consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be REVERSED and that this action be REMANDED for further
proceedings not inconsistent with the Orders of this Court.


 

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Case 2:12-cv-00761-M Document 16 Filed 07/31/13 Page 2 of 6

This Court is not free to reweigh the evidence or

At the time of the administrative hearing, Plaintiff was


substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971). The
substantial evidence test requires “that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance.” Brady v. Heckler, 724 F.2d 914, 918
(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D.
Md. 1982).

forty-six years old, had completed a high school special
education (Tr. 56), and had previous work experience as a
warehouse worker and supervisor (Tr. 74-75). In claiming
benefits, Plaintiff alleges disability due to mental
retardation, diabetes mellitus, and hypertension (Doc. 8 Fact
Sheet).
The Plaintiff filed applications for disability benefits

and SSI on November 20, 2009 (Tr. 132-37; see also Tr. 20).
Benefits were denied following a hearing by an Administrative
Law Judge (ALJ) who determined that although Sewell could not
return to his past relevant work, there were specific light and
sedentary jobs that he could perform (Tr. 20-28). Plaintiff


 

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Case 2:12-cv-00761-M Document 16 Filed 07/31/13 Page 3 of 6

Plaintiff claims that the opinion of the ALJ is not

requested review of the hearing decision (Tr. 14-15) by the
Appeals Council, but it was denied (Tr. 1-5).

supported by substantial evidence. Specifically, Sewell alleges
that: (1) The ALJ improperly discounted the opinions of his
treating physician; (2) the ALJ improperly rejected the opinions
of a consultative examining physician; and (3) the ALJ did not
properly consider whether he meets the requirements of Listing
12.05C (Doc. 8). Defendant has responded to—and denies—these
claims (Doc. 9).

In his third claim, Plaintiff asserts that the ALJ did not
properly consider whether he meets the requirements for Listing
12.05C (Doc. 8, pp. 6-7). The introductory notes to Section
12.05 state that “[m]ental retardation refers to a significantly
subaverage general intellectual functioning with deficits in
adaptive behavior initially manifested during the development
period; i.e., the evidence demonstrates or supports onset of the
impairment before age 22.” 20 C.F.R. Part 404, Subpart P,
Appendix 1, Listing 12.05 (2013). Subsection C requires "[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 C.F.R.
Part 404, Subpart P, Appendix 1, Listing 12.05C.


At the evidentiary hearing before the ALJ, Plaintiff’s


 

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Case 2:12-cv-00761-M Document 16 Filed 07/31/13 Page 4 of 6

Attorney argued that his client might meet the requirements of
Listing 12.05C, but that he would not know until he could obtain
Sewell’s school records (Tr. 54-55). The Attorney made it known
at that time that Plaintiff had completed high school, but had
been in special education classes since the fifth grade (Tr.
54). Plaintiff confirmed these facts in his testimony before
the ALJ (Tr. 56).
School records revealed that Plaintiff underwent several IQ

tests (see Tr. 349-73). In an evaluation conducted on March 29,
1976, Sewell took the Wechsler Intelligence Scale for Children-
Revised (hereinafter WISC-R) and scored a verbal IQ score of 46,
a performance IQ score of 61, and a full scale IQ score of 49;
these scores would place Plaintiff in the mentally deficient
range of intellectual functioning (Tr. 360). On October 2,
1978, Plaintiff again took the WISC-R, scoring a verbal IQ score
of 59, a performance IQ score of 69, and a full scale IQ score
of 61, placing him in the educable mentally retarded range of
intellectual functioning (Tr. 362-63). On August 5, 1982,
Sewell took the Wechsler Adult Intelligence Scale-Revised and
obtained a verbal IQ of 70, a performance IQ of 70, and a full
scale IQ of 69; these scores placed him in the educable mentally
retarded range of intellectual functioning (Tr. 351). The
tester expressed the opinion that this was a valid assessment of
Sewell’s abilities (id.).


 

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Case 2:12-cv-00761-M Document 16 Filed 07/31/13 Page 5 of 6


In his decision, the ALJ found that Plaintiff had severe
impairments of back pain, diabetes mellitus, and hypertension
(Tr. 22). This finding, along with the IQ test scores from
Sewell’s school days, suggest that Plaintiff meets the
requirements of Listing 12.05C.
In the determination, the ALJ found that Plaintiff did not

meet any listed impairments (Tr. 23). In making this finding,
the ALJ stated that he considered Listings 1.04, 4.00 et seq.,
and 9.00 et seq. (Tr. 23). The ALJ did not, however, mention
any psychological or mental impairment anywhere in his
determination and failed to acknowledge—much less discuss—
Sewell’s school records within his determination.

requirements of Listing 12.05C (Doc. 9, pp. 8-10). The Court
notes that Defendant may be right in its argument. However, the
ALJ made no findings in the matter. Defendant implicitly admits
as much in its argument in failing to point to any finding made
by the ALJ with regard to this claim. As such, the Court cannot
find that the ALJ’s decision is supported by substantial
evidence. With this finding, the Court finds it unnecessary to
address the other claims raised by Plaintiff in this action.
Sewell has raised three different claims in bringing this

The Government has argued that Plaintiff does not meet the

action. The Court has found merit in Plaintiff’s claim that the
ALJ did not properly consider whether he meets the requirements


 

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Case 2:12-cv-00761-M Document 16 Filed 07/31/13 Page 6 of 6

of Listing 12.05C. Based on review of the entire record, the
Court finds that the Commissioner's decision is not supported by
substantial evidence. Therefore, it is ORDERED that the action
be REVERSED and REMANDED to the Social Security Administration
for further administrative proceedings consistent with this
opinion, to include, at a minimum, a supplemental hearing for
the gathering of evidence to determine if Plaintiff is mentally
retarded. Judgment will be entered by separate Order.






s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

DONE this 31st day of July, 2013.

















 

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