IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DORIS McGARY, *

 *

Plaintiff, *

 *

vs. * Civil Action No. 05-00408-KD-B

 *

JO ANNE B. BARNHART, *

Commissioner of * 

Social Security, *

 *

Defendant. *

REPORT AND RECOMMENDATION

Plaintiff Doris McGary (“Plaintiff”) brings this action

seeking judicial review of the final decision of the Commissioner

of Social Security denying her claim for supplemental security

income under Title XVI of the Social Security Act (“Act”), 42

U.S.C. §§ 1381 et seq. This action was referred to the undersigned

for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

Oral argument was held on February 15, 2006. Upon consideration of

the administrative record and memoranda of the parties, it is

recommended that the decision of the Commissioner be REVERSED and

REMANDED. 

I. Procedural History

Plaintiff protectively filed an application for disability

benefits on March 18, 2003, alleging that she has been disabled

since January 1, 2000 due to obesity, diabetes mellitus, arthritis,

high blood pressure, hemorrhoids, osteoarthritis of her right

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knee/knee pain and heel spurs. (Tr. 15, 35-36, 60-62, 67).

Plaintiff’s claim was denied on initial consideration and upon

reconsideration. (Id. at 35-41). She then filed a request for a

hearing before an Administrative Law Judge (“ALJ”). (Id. at 42).

On November 18, 2004, ALJ Joseph F. Gilliland (“ALJ Gilliland”)

held an administrative hearing which was attended by Plaintiff, her

representative and a vocational expert. (Id. at 195-214). On

December 3, 2004, ALJ Gilliland issued an unfavorable decision.

(Id. at 12-33). Plaintiff sought review of the ALJ’s decision, and

on July 7, 2005, after receiving additional evidence, the Appeals

Council (“AC”) denied Plaintiff’s request for review, making the

ALJ’s decision the final administrative decision. (Id. at 4-7, 10-

11). The parties agree that this case is now ripe for judicial

review and is properly before this Court pursuant to 42 U.S.C. §

405(g).

II. Background Facts

Plaintiff was born on September 10, 1960, and was 44 years old

at the time of the administrative hearing. (Tr. 60, 197).

Plaintiff testified that she has a 12th grade education, and she

described herself as a “C” student. (Id. at 71, 204, 209).

Plaintiff’s work history consists of a job as a substitute or “on

call” cook at a school cafeteria. (Id. at 68, 201-204). According

to Plaintiff, she worked as an “on call” cook, for one day a week,

for a couple of months. (Id. at 68, 71, 201-202). Plaintiff

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testified that she weighs 280-300 pounds and is 5'7". (Id. at 66,

202, 205-206). Her reported medications include Naproxen, Ultram,

Univase, Tramadol HCL, Moexipril HCL, Hydrochlorothiazide, Humulin

N, Actos, Avandia, Extra Strength Tylenol, and Ibuprofen 800 m.g.

(Id. at 70, 79, 85-86).

Plaintiff testified that her daily activities consist of

waking around 4:30 a.m., fixing breakfast and readying her daughter

for school, then returning to bed for a few hours due to pain,

eating breakfast and sitting around. (Tr. 200). According to

Plaintiff, she cannot walk/stand for long periods of time. (Id.)

Plaintiff testified that her sister performs all of the household

chores and her daughter helps her bathe. (Id. at 200-201, 208).

Plaintiff reported that she does light shopping in her wheelchair,

and that her cooking only consists of cooking those items that she

can place in the microwave. (Id. at 208). Plaintiff testified

that if she had a job where she could sit/stand whenever she wanted

and/or sit all day long, and not have to lift anything, she could

still not do that job because her pain medications make her sleepy.

(Id. at 209-210). 

III. Issues on Appeal

A. Whether the ALJ erred at step three of the sequential

evaluation process, by failing to find Plaintiff disabled

under Listing 12.05C?

B. Whether the ALJ erred by finding Plaintiff was not disabled,

in contradiction to the VE’s testimony?

C. Whether the ALJ erred by failing to obtain a residual

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This Court’s review of the Commissioner’s application of legal

principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

4

functional capacity assessment from a treating or examining

physician?

D. Whether the ALJ erred by failing to identify a specific

residual functional capacity?

E. Whether the ALJ erred by failing to properly apply the pain

standard using a combination of arthritis and obesity?

IV. Analysis

A. Standard of Review

In reviewing claims brought under the Act, this Court’s role

is a limited one. This Court’s review is limited to determining 1)

whether the decision of the Secretary is supported by substantial

evidence, and 2) whether the correct legal standards were applied.

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).1 A court

may not decide the facts anew, reweigh the evidence, or substitute

its judgment for that of the Commissioner. Sewell v. Bowen, 792

F.2d 1065, 1067 (11th Cir. 1986). The Commissioner’s findings of

fact must be affirmed if they are based upon substantial evidence.

Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth

v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (finding that

substantial evidence is defined as “more than a scintilla but less

than a preponderance,” and consists of “such relevant evidence as

a reasonable person would accept as adequate to support a

conclusion[]”). In determining whether substantial evidence

exists, a court must view the record as a whole, taking into

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The claimant must first prove that he or she has not engaged in

substantial gainful activity. The second step requires the claimant to prove

that he or she has a severe impairment or combination of impairments. If, at

the third step, the claimant proves that the impairment or combination of

impairments meets or equals a listed impairment, then the claimant is

automatically found disabled regardless of age, education, or work experience. 

If the claimant cannot prevail at the third step, he or she must proceed to

the fourth step where the claimant must prove inability to perform their past

relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In

evaluating whether the claimant has met this burden, the examiner must

consider the following four factors: (1) objective medical facts and clinical

findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the

claimant’s age, education and work history. Id. at 1005. Once a claimant

meets this burden, it becomes the Commissioner’s burden to prove at the fifth

step that the claimant is capable of engaging in another kind of substantial

gainful employment which exists in significant numbers in the national

economy, given the claimant’s residual functional capacity, age, education,

and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the

5

account evidence both favorable as well as unfavorable to the

Commissioner’s decision. Chester v. Bowen, 792 F.2d 129, 131 (11th

Cir. 1986); Short v. Apfel, 1999 U.S. DIST. LEXIS 10163 (S.D. Ala.

1999).

B. Discussion

An individual who applies for Social Security disability

benefits must prove her disability. 20 C.F.R. §§ 404.1512,

416.912. Disability is defined as the “inability to do any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for

a continuous period of not less than twelve months.” 42 U.S.C. §

423(d)(1)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The Social

Security regulations provide a five-step sequential evaluation

process for determining if a claimant has proven her disability.

20 C.F.R. §§ 404.1520, 416.920.2 See, e.g., Crayton v. Callahan,

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Commissioner can demonstrate that there are such jobs the claimant can

perform, the claimant must prove inability to perform those jobs in order to

be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See

also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.

Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

6

120 F.3d 1217, 1219 (11th Cir. 1997). 

In the case sub judice, ALJ Gilliland determined that

Plaintiff’s morbid obesity and right knee arthritis are severe

impairments; however, they do not meet or medically equal any of

the Listings impairments under 20 C.F.R. Part 404, Subpart P,

Appendix 1. (Tr. 15-33). The ALJ found that Plaintiff’s insulindependent diabetes mellitus and systemic hypertension are not

severe impairments because they are under good control with

medication. (Id.) Next, the ALJ determined that Plaintiff’s

subjective allegations of pain and functional limitations are not

credible and that she retains the residual functional capacity

(“RFC”) to perform sedentary work. (Id.) The ALJ also found that

Plaintiff cannot perform any past relevant work (“PRW”), and that

the framework of Medical-Vocational Guidelines Rule 201.22 (“the

Grids”) and VE testimony demonstrate that she has the RFC to

perform jobs that exist in significant numbers in the national

economy. (Id.) Accordingly, ALJ Gilliland concluded that

Plaintiff is not disabled within the meaning of the Act. (Id.)

Based upon a review of the record, the undersigned finds that

the ALJ’s decision is not supported by substantial evidence. The

relevant evidence of record reveals that Plaintiff was treated by

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Gary Kania, D.O. (“Dr. Kania”) from 1995-2003, in part, for

hemorrhoids and a colonoscopy. (Tr. 114, 116, 118, 120-139, 155-

156). Plaintiff was also treated by Frank Dozier, M.D. (“Dr.

Dozier”) from April 1997 through August 2002, and then from April

2003 through August 2004. (Id. at 92-114, 118, 155-158, 182-187).

Plaintiff complained to Dr. Dozier about pain in her back, knee,

feet and hand. (Id.) She also reported problems with headaches,

swelling and hemorrhoids. (Id.) She was diagnosed with

osteorathritis, morbid obesity, hematochezia, Type II diabetes and

borderline hyperthyroid. (Id.) Dr. Dozier advised that “the most

important thing to help the knee pain is going to be weight loss.”

(Id. at 104). 

Plaintiff was treated at Orthopaedic & Sports Medicine of

Mobile, P.C., on July 19, 2000 and August 16, 2000, for knee pain

and arthritis. (Tr. 87-91). Plaintiff was diagnosed with DJD,

possible degenerative meniscus and probably patella femoral

involvement. (Id. at 89). She was given an injection of Celestone

in July, and was later prescribed medication and a walking cane for

use “as needed” in August 2000. (Id. at 88-89). Plaintiff was also

hospitalized and/or treated at an Emergency Room, on several

occasions from September 2001-2003, for high blood sugar, lower back

pain and foot pain. (Id. at 114-119, 155-175). 

On June 5, 2003, Mohammed A. Nayeem, M.D. (“Dr. Nayeem”)

performed a consultative examination of Plaintiff at the request of

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the Social Security Commission. (Id. at 140-144). Dr. Nayeem

diagnosed Plaintiff with chronic degenerative arthritis of the right

knee, worsened by her extreme obesity; limping gait due to right

knee arthritis and use of a cane to walk; diabetes, adult onset,

insulin dependent, under control with insulin; systemic

hypertension, under control with medication and no evidence of organ

damage with vision 20/20 near and far; and obesity exogenous, gross,

adding that she needs to lose some weight to relieve the arthritic

pain. (Id. at 143). Dr. Nayeem noted that“[t]he main problem this

lady has is extreme and gross obesity, which is sustaining her

diabetes mellitus and also making her arthritis worse and continuing

her hypertension. Once she loses some weight, all these problems

should resolve.” (Tr. 143). Dr. Nayeem concluded that in her

present condition, due to her right knee arthritis, “she cannot take

part in those activities which involve prolonged standing or

walking.” (Id. at 144).

A July 29, 2003 Vocational Rationale Form completed by a

Disability Specialist concluded that Plaintiff has no PRW, has an

RFC/MRFC assessment of a maximum work capacity of a sedentary work

range, has not acquired transferable skills, and is not disabled as

she can perform other jobs. (Id. at 80-82). On July 30, 2003, a

Residual Physical Functional Capacity Assessment was completed by

State Agency medical consultant Carol S. Kerr, M.D. (“Dr. Kerr”).

Dr. Kerr opined that Plaintiff can occasionally lift/carry 10

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pounds; frequently lift/carry 10 pounds; stand/walk at least two and

about six hours in an 8 hour workday (she needs her cane for long

ambulation but no cane for short ambulation and “TP said to use as

needed[]”). (Id. at 145-154).

On March 25, 2004, Plaintiff was evaluated by Donald W.

Blanton, Ph.D. (“Dr. Blanton”) at the request of Plaintiff’s

counsel. (Id. at 176-181). Plaintiff reported that her sleep was

poor, appetite was good, weight was stable and that she had a normal

energy level. (Id. at 177). She denied ever having any serious

nervous trouble/depression or any prior history of mental health

care. (Tr. 177). Testing of Plaintiff revealed as follows: WAISIII verbal IQ 69, performance IQ 68, full scale IQ 66, which placed

her in the mild range of mental retardation. (Id. at 177-178).

Plaintiff’s scores on the Wide Range Achievement Test-III (WRAT-III)

reflected that she functions at the 4th grade level for reading, 5th

grade level for spelling and 2nd grade level for arithmetic. (Id.

at 178). Dr. Blanton found that the scoring was a valid assessment

of Plaintiff’s current level of intellectual functioning and that

she appeared to put quite good effort into her work. (Id.) Dr.

Blanton noted that Plaintiff’s academic achievement testing revealed

that she is functionally illiterate. (Id.) He diagnosed her with

mild mental retardation (Axis II); arthritis, diabetes, hypertension

and obesity (Axis III); financial problems (Axis IV); and assigned

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A GAF score between 61-70 represents some mild symptoms or some

difficulty in social, occupational or school functioning but generally

functioning pretty well, has some meaningful interpersonal relationships. 

Diagnostic And Statistical Manual of Mental Disorders (DSM-IV-TR) at 32-34

(4th Ed. Text Revision 2000).

10

her a GAF rating of 663 (Axis IV). (Id.)

1. Whether the ALJ erred at step three of the sequential

evaluation process, by failing to find Plaintiff disabled

under Listing 12.05C?

Plaintiff asserts that the ALJ erred at step three of the

sequential evaluation process by failing to find that she is

disabled under Listing 12.05C. Plaintiff contends that she meets

Listing 12.05C due to her WAIS-III test results of verbal IQ of 69,

performance IQ of 68 and full scale IQ of 66; her WRAT test results

of reading skills at a 4th grade level, spelling skills at a 5th

grade level and arithmetic skills at a 2nd grade level; and Dr.

Blanton’s finding that she is functionally illiterate as well as his

diagnosis of mild mental retardation. (Tr. 176-178). 

Listing 12.05C falls under § 12.00 MENTAL DISORDERS and

provides that:

Mental retardation refers to significantly subaverage

general intellectual functioning with deficits in

adaptive functioning initially manifested during the

developmental period; i.e., the evidence demonstrates or

supports onset of the impairment before age 22. The

required level of severity for this disorder is met when

the requirements in A, B, C, or D are satisfied ···· C.

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. 

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Cobb v. Barnhart, 296 F. Supp. 2d 1295 (N.D. Ala. 2003); Davis v.

Shalala, 985 F.2d 531 (11th Cir. 1993)(quoting Listing 12.05C).

5

See, e.g., Wilkinson on behalf of Wilkinson v. Bowen, 847 F.2d 660, 662

(11th Cir. 1987); Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991);

Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992); Berryman v. Massanari,

170 F. Supp. 2d 1180, 1186-1187 (N.D. Ala. 2001); Cobb, 296 F. Supp. at 1296-

1297. 

11

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.4 A claimant meets the

criteria for presumptive disability under Listing 12.05(c) when the

claimant presents a valid IQ score of 60-70, an onset of impairment

before age 22 and evidence of an additional and significant mental

or physical impairment (i.e., having more than “minimal effect” on

the claimant’s ability to perform basic work activities). See,

e.g., Edwards by Edwards v. Heckler, 755 F.2d 1513, 1516 (11th Cir.

1985).5 Claimant bears this burden. Id. 

In his decision, the ALJ addressed Listing 12.05C for Mental

Retardation, and Dr. Blanton’s findings, as follows:

. . . . It might be argued that the claimant has

impairments that meet the level of severity contemplated

by Medical-Listing 12.05 Mental Retardation and Autism .

. . . Such an argument would be erroneous. The

introductory paragraph explains that mental retardation

refers to significantly subaverage general intellectual

functioning with deficits in adaptive behavior initially

manifested during the developmental period (before age

22). Part C of the listing requires in addition that a

claimant will be found disabled due to mental

retardation, if on a valid IQ test, he or she obtains a

Verbal, Performance, or Full-Scale IQ score of 60 through

70 and a physical or mental impairment imposes additional

and significant work-related limitation of function.

Thus, four elements are required in order to meet listing

12.05C. First, the individual must have significantly

subaverage general intellectual functioning manifested

during the developmental period. In the instant case,

there is no evidence that he claimant had significantly

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subaverage general intellectual functioning manifested

during the developmental period.

Second, the claimant must have deficits in adaptive

behavior initially manifested before age twenty-two.

While the degree of “significantly subaverage general

intellectual functioning” is specified in Listing 12.05,

the degree of deficits in adaptive functioning needed to

fulfill the capsule definition of Listing 12.05 is not .

. . .

* * *

. . . we look to the standards established by the

professional community in defining the degree of deficits

in adaptive functioning, as well as the methods for

documenting those deficits . . . . There are ten adaptive

skill areas: (1) Communication, (2) Self-Care, (3) HomeLiving, (4) Social, (5) Community Use, (6) selfDirection, (7) Health & Safety, (8) Functional Academics,

(9) Leisure, and (10) Work.”[]

 * * *

The degree of deficits in adaptive functioning needed to

establish the diagnosis of mental retardation is not

specified in the listing. Consequently, we refer to the

professional community for their methods and criteria in

establishing the requisite level of deficits that support

the diagnosis. The degree of deficits or limitations in

adaptive functioning needed to support a diagnosis of

mental retardation is:

The general rule is that if two or more

adaptive skill limitations fall substantially

below the average level of functioning . . .

then the individual would meet this second

criterion for a diagnosis of mental retardation

. . . .

In the case at bar, there is no evidence that the

claimant had deficits in communication, self-care, home

living, social/interpersonal skills, use of community

resources, self-direction, functional academic skills,

work, leisure, health or safety. Therefore, the record

does not establish that the claimant had deficits in two

areas of adaptive functioning as required by the DSM-IV

as one of the key elements for establishing mental

retardation.

Third, the claimant must obtain a Verbal, Performance, or

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Full-Scale IQ score of 60 through 70 on a valid IQ test.

The claimant’s Verbal IQ score of 69, performance IQ

score of 68, and Full-Scale IQ score of 66 as recorded by

Dr. Blanton would appear to meet this requirement.

However . . . . a valid IQ score alone is not conclusive

of mental retardation if the score “is inconsistent with

other evidence in the record on the claimant’s daily

activities and behavior.” . . . .

Fourth, the claimant must have a physical or mental

impairment that imposes additional and significant workrelated limitation of function. The claimant is morbidly

obese that exacerbates the arthritis of her right knee.

Thus, the fourth requirement is met.

* * *

. . . . In the instant case, the claimant has past

relevant work as a Cook. The presumption that mental

retardation is a condition that remains constant

throughout life is clearly rebutted in the instant case

because the claimant’s adaptive functioning prior to age

twenty-two and after age twenty-two is inconsistent with

the functioning of a mentally retarded individual.

* * *

In summary, the evidence demonstrates that the claimant’s

impairments are not attended with essential elements that

are required to meet or medically equal Medical-Listing

12.05C. First, it is not established that she is mentally

retarded because there is no evidence that the claimant

had significantly subaverage general intellectual

functioning manifested during the developmental period.

Second, deficits in adaptive functioning are not

demonstrated in any area before the claimant attained age

twenty-two.

No treating or examining source or medical expert has

concluded that the claimant’s impairments, considered

singularly and in combination, meet or medically equal

Medical-Listing 12.05C or any other listed impairment. In

addition, I examined the record and the evidence does not

support such a conclusion. Thus, the claimant’s severe

and not severe impairments considered singularly and in

combination are not of listing-level severity.

* * *

In arriving at the preceding . . . conclusions, I give

very little weight to Dr. Blanton’s opinion, findings,

and assessment. It is emphasized that the claimant

apparently underwent the examination that formed the

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See, e.g., Wilkinson, 847 F.2d at 662; Barron, 924 F.2d at 229; Lowery,

979 F.2d at 837; Berryman, 170 F. Supp. 2d at 1186-1187; Cobb, 296 F. Supp. at

1296-1297. 

14

basis of the opinion in question not in an attempt to

seek treatment for symptoms, but rather, through attorney

referral and in connection with an effort to generate

evidence for the current appeal. Further, the counselor

was presumably paid for the report. Although such

evidence is certainly legitimate and deserves due

consideration, the context in which it was produced

cannot be entirely ignored. More importantly, Dr. Blanton

is a licensed professional counselor and not a licensed

clinical psychologist[] Licensed professional counselors

are not acceptable medical sources as defined at 20

C.F.R. § 416.913(a). Rather, they are “other sources”

under 20 C.F.R. § 416.913(d). As “other source[s],” their

opinions are not medical opinions and are not entitled to

controlling weight or great weight.

* * * 

(Tr. 24-27 (citations and footnotes omitted) (emphasis added)).

As noted supra, a claimant meets the criteria for presumptive

disability under Listing 12.05(c) when the claimant satisfies two

prongs: 1) a valid IQ score of 60-70 and onset of impairment before

age 22; and 2) evidence of an additional and significant mental or

physical impairment (i.e., having more than “minimal effect” on the

claimant’s ability to perform basic work activities). See, e.g.,

Edwards, 755 F.2d at 1516.6 At the outset, the ALJ conceded that

Plaintiff meets the second prong of Listing 12.05C, by finding that

she has the physical impairment of morbid obesity (that exacerbates

her right knee arthritis) which imposes an additional and

significant work-related limitation of function. (Tr. 25-26).

Thus, Plaintiff’s appeal turns on the first prong of Listing 12.05C:

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In Popp, the plaintiff had a two year college associate’s degree and

was enrolled in his third year of college as a history major. Id. at 1498. He

had previously taught algebra at a private school. Id. In this case, the

Eleventh Circuit held that the listings for mental retardation did not require

the Commissioner to make a finding of mental retardation based upon the

results of an IQ test alone. Id. at 1499-1500. However, the test results must

be considered in conjunction with other medical evidence including the daily

activities and behavior of the claimant. Id.

15

whether she has a valid IQ score of 60-70 and onset of impairment

before age 22 (i.e., significantly subaverage general intellectual

functioning manifested and deficits in adaptive behavior initially

manifested before age 22). 

A claimant need not present evidence that she manifested

deficits in adaptive functioning prior to the age of twenty-two,

when she presents evidence of low IQ test results after the age of

twenty-two. Hodges v. Barnhart, 276 F.3d 1265 (11th Cir. 2001).

Absent evidence of sudden trauma that can cause retardation, the IQ

scores create a rebuttable presumption of a fairly constant IQ

through the claimant’s life. Id at 1268-1269. However, the

Eleventh Circuit has held that a valid IQ score is not conclusive

of mental retardation if the score is “inconsistent with other

evidence in the record on the claimant’s daily activities and

behavior.” Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992);

Popp v. Heckler, 779 F.2d 1497, 1499 (11th Cir. 1986).7 

In this case, the ALJ found that Dr. Blanton’s scoring for

Plaintiff - a Verbal IQ of 69, Performance IQ of 68 and Full Scale

IQ of 66 - “would appear to meet th[e] requirement[]” that a

claimant must obtain a Verbal, Performance, or Full Scale IQ score

Case 1:05-cv-00408-KD-B Document 17 Filed 08/28/06 Page 15 of 19
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Lowery, 979 F.2d at 837 (finding that a valid IQ test score is not

conclusive of mental retardation if the score is inconsistent with other

evidence of record as to claimant daily’s activities and behavior); Popp, 779

F.2d at 1499-1500 (holding that an IQ test score alone does not establish a

finding of mental retardation as the ALJ is to evaluate the IQ score in

conjunction with the medical report and test results to ensure they correspond

with daily activities and behavior). 

9

The undersigned notes that while failing to provide any explanation of

such inconsistency, the ALJ stated later in his decision, that in arriving at

his “preceding conclusions” he gave “very little weight to Dr. Blanton’s

“opinion, findings, and assessment[,]” because he was a licensed professional

counselor and the examination was conducted through attorney referral and he

was presumably paid for his report. (Tr. 27). However, while the ALJ

discredited Dr. Blanton’s overall findings, he did not specifically find that

Dr. Blanton’s IQ test scores for Plaintiff were invalid.

16

of 60 through 70 on a valid IQ test for Listing 12.05C (i.e., that

Dr. Blanton’s testing constituted valid IQ test scores). (Tr. 25).

The ALJ then determined that while Dr. Blanton’s IQ scores for

Plaintiff may be valid, the scores were not conclusive of mental

retardation because they were inconsistent with evidence of record

regarding her daily activities and behavior (citing Lowery, and

Popp).8 (Id.) According to the ALJ, “[t]he presumption that mental

retardation is a condition that remains constant throughout life is

clearly rebutted in the instant case because the claimant’s adaptive

functioning prior to age twenty-two and after age twenty-two is

inconsistent with the functioning of a mentally retarded

individual.” (Id. at 26). A searching review of the ALJ’s decision

however, fails to reveal the evidence upon which he relied to reach

his decision. In other words, the ALJ provided no explanation, and

failed to reference any evidence of record, as to just how

Plaintiff’s daily activities and behavior are “inconsistent”9 with

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17

the functioning of a mentally retarded individual. This is

particularly problematic given evidence of record which reveals that

in addition to her low test scores, Plaintiff’s reading skills are

at the 4th grade level, her spelling skills are at the 5th grade

level, her arithmetic skills are at a 2nd grade level, and Dr.

Blanton determined that she is functionally illiterate. See supra.

Moreover, Plaintiff’s entire work history consists of working on an

on-call basis, as a cook in a local school cafeteria, one day a

week, for a couple of months. Id. Because the ALJ did not set

forth his reasons for concluding that the presumption of mental

retardation had been rebutted, this case must be remanded. Upon

remand, the ALJ shall expressly discuss the evidence relied upon to

conclude that the presumption of mental retardation has been

rebutted in this case. 

Furthermore, because the undersigned concludes that the ALJ

erred at step three of the analysis, the Court has not discussed the

remaining issues raised by Plaintiff on appeal.

V. Conclusion

For the reasons set forth, and upon consideration of the

administrative record and memoranda of the parties, it is

recommended that the decision of the Commissioner of Social Security

denying Plaintiff’s claim for supplemental security income is due

to be REVERSED and REMANDED.

Case 1:05-cv-00408-KD-B Document 17 Filed 08/28/06 Page 17 of 19
The attached sheet contains important information regarding

objections to this report and recommendation.

DONE this the 28th day of August, 2006.

 /s/ Sonja F. Bivins 

UNITED STATES MAGISTRATE JUDGE

Case 1:05-cv-00408-KD-B Document 17 Filed 08/28/06 Page 18 of 19
MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything

in it must, within ten days of the date of service of this document, file

specific written objections with the clerk of court. Failure to do so

will bar a de novo determination by the district judge of anything in the

recommendation and will bar an attack, on appeal, of the factual findings

of the magistrate judge. See 28 U.S.C. § 636(b)(1)(c); Lewis v. Smith,

855 F.2d 736, 738 (11th Cir. 1988). The procedure for challenging the

findings and recommendations of the magistrate judge is set out in more

detail in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that:

A party may object to a recommendation entered by a magistrate

judge in a dispositive matter, that is, a matter excepted by

28 U.S.C. § 636(b)(1)(A), by filing a “Statement of Objection

to Magistrate Judge’s Recommendation” within ten days after

being served with a copy of the recommendation, unless a

different time is established by order. The statement of

objection shall specify those portions of the recommendation

to which objection is made and the basis for the objection.

The objecting party shall submit to the district judge, at the

time of filing the objection, a brief setting forth the party’s

arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is

insufficient to submit only a copy of the original brief

submitted to the magistrate judge, although a copy of the

original brief may be submitted or referred to and incorporated

into the brief in support of the objection. Failure to submit

a brief in support of the objection may be deemed an

abandonment of the objection.

A magistrate judge’s recommendation cannot be appealed to a Court of

Appeals; only the district judge’s order or judgment can be appealed.

2. Opposing party’s response to the objection. Any opposing party may

submit a brief opposing the objection within ten (10) days of being served

with a copy of the statement of objection. Fed. R. Civ. P. 72; SD ALA LR

72.4(b). 

3. Transcript (applicable where proceedings tape recorded). Pursuant

to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds

that the tapes and original records in this action are adequate for

purposes of review. Any party planning to object to this recommendation,

but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the

United States will pay the cost of the transcript.

 /s/SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 1:05-cv-00408-KD-B Document 17 Filed 08/28/06 Page 19 of 19