1

 IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

CARRIE E. EDWARDS, *

 * 

Plaintiff, *

*

vs. * CIVIL ACTION 08-00743-B

*

MICHAEL J. ASTRUE, *

Commissioner of *

Social Security, *

*

Defendant. *

ORDER

Plaintiff Carrie E. Edwards (“Plaintiff”) brings this action

seeking judicial review of a final decision of the Commissioner of

Social Security denying her claim for period of disability,

disability insurance benefits and supplemental security income

under Titles II and XVI of the Social Security Act, 42 U.S.C. §§

401 et seq., and 1381 et seq. On August 28, 2009, the parties

consented to have the undersigned conduct any and all proceedings

in this case. (Doc. 20). Thus, this case was referred to the

undersigned 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. (Doc. 23). The parties waived oral argument. Upon careful

consideration of the administrative and the memoranda of the

parties, it is ORDERED that the decision of the Commissioner be

REVERSED and REMANDED. 

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 1 of 26
2

I. Procedural History

Plaintiff protectively filed applications for Disability

Supplemental Security Income (SSI) on August 28, 2003 (Tr. 125).

Plaintiff alleges that she has been disabled since August 15, 2003,

due to nerve problems, headaches and inability to sleep. (Tr.

141). Her application was denied upon initial consideration on May

9, 2003 (Tr. 81-82). In response to Plaintiff’s request for a

hearing, Administrative Law Judge Charles A. Thigpen (“ALJ”)

conducted a hearing on April 12, 2005. (Tr. 35-56). On June 20,

2005, the ALJ issued an unfavorable decision finding that Plaintiff

is not disabled. (Tr. 508-521). Upon Plaintiff’s request for

review, the Appeals Council (“AC”) remanded the case to the ALJ

with instructions for further proceedings. (Tr. 522-525). 

Subsequent thereto, on April 18, 2006, Judge Thigpen conducted

a second hearing, which was attended by Plaintiff, her

representative, a vocational expert and a medical expert. (Tr. 57-

80). ALJ Thigpen issued an unfavorable decision on August 18,

2006. (Tr. 14-29). Plaintiff’s request for review was denied by

the AC on July 8, 2008. (Tr. 5-8). The ALJ’s decision became the

final decision of the Commissioner in accordance with 20 C.F.R. §

404.981. (Id.) 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) and 1383(c)(3).

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 2 of 26
3

II. Issues on Appeal

A. Whether the ALJ erred in basing his finding that Plaintiff was

capable of performing other work on the opinion of a nonexamining psychologist, and in failing to consider the

opinions of examining sources. 

B. Whether the ALJ erred in failing to consider Plaintiff’s

intellectual limitations in finding Plaintiff did not meet

Listing 12.05, and in not developing the record as to those

limitations. 

III. Factual Background

Plaintiff was born on January 12, 1970, and was 36 years old

at the time of the April 2006 hearing. (Tr. 57, 60, 81, 83, 122,

131). At the April 2005 hearing, Plaintiff testified that she

attended school through the tenth grade, that she was in special

education classes, that she is cannot read and write “that well,”

and that she can do simple arithmetic. (Tr. 38). She testified

that she worked as a packer at Central Alabama Packing about five

years before, and became disabled on August 15, 2003 due to pain in

her right arm. (Tr. 39-41). She also reported that she is unable

to work because of pain in her bad, and due to her nerves. (Tr.

41). In addition, she reported trouble with her thyroid. (Tr. 41-

42). Plaintiff also testified that she had problems with alcohol

and marijuana in the past and attributed her use to being abused

and raped as a child. (Tr. 42-43). 

At the April 2006 hearing, Plaintiff testified that she last

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 3 of 26
1

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

worked at a hotel as a housekeeper for a year. (Tr. 60-61).

According to Plaintiff, she missed work because she was tired and

her nerves were bad. (Tr. 61-62). Plaintiff also testified that

she sometimes has trouble following directions, and that she lost

her job at Sonic after two weeks because she kept coming up short

on change due to problems counting. (Tr. 65). Plaintiff further

testified that her godfather assists her in paying her bills and

getting to doctors’ appointments. (Tr. 66). Plaintiff testified

that she is depressed because she lost her children, that she stays

home most of the time, and that she does not have any friends. (Tr.

68). 

IV. Analysis

A. Standard of Review

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

is a limited one. The 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

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 4 of 26
5

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) (holding

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

account evidence 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 his 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), 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. §§

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 5 of 26
2

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 an 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

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

404.1520, 416.920.2

In the case sub judice, the ALJ determined that while Plaintiff

has the severe impairments of major depressive disorder, history of

intermittent back strain, hypertension, history of headaches, and

history of drug abuse, they do not meet or medically equal the

criteria for any of the impairments listed in 20 C.F.R. Pt. 404,

Subpt. P, App. 1, Regulations No. 4. (Tr. 28). The ALJ found that

Plaintiff’s allegations of pain and functional limitations were not

supported by the record to the degree alleged by Plaintiff. Id.

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 6 of 26
3

While the undersigned has examined all of the medical

evidence contained in the record, including that which was

generated before Plaintiff’s alleged onset date, only that

evidence which is relevant to the issues before the Court is

included in the summary.

4

La belle indifference occurs when one shows an

inappropriate lack of concern about his disabilities, occurring

in certain patients with conversion disorders . See,

www.dictionary-psychology.com. (Last visited October 20, 2009). 

7

The ALJ also concluded Plaintiff retains the residual functional

capacity (“RFC”) to lift and carry objects weighing up to 30 pounds

and to frequently lift or carry objects weighing up to 20 pounds;

stand and walk no more than four hours in an eight-hour workday, and

sit for an unlimited time. The ALJ further concluded that Plaintiff

cannot work at activities involving proximity to moving mechanical

parts, high, exposed places, or driving automotive equipment. Id.

The ALJ further determined that Plaintiff cannot perform any of her

past relevant work, but that she is capable of performing a

significant number of occupations in the national economy. (Tr.

29).

The relevant evidence3 of record includes treatment records

from Selma Doctors Clinic dated February, August and November 2003,

and June and October 2004. On February 3, 2003, Plaintiff reported

thyroid problems, and problems swallowing. Plaintiff also reported

that she had quit smoking marijuana, but started back when the

thyroid pain became severe. The treatment notes reference la belle

indifference4, and possible primary gain issues. Plaintiff’s

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 7 of 26
5

The Global Assessment of Functioning (hereinafter “GAF”) is

a numeric scale used to rate the social, occupational and

psychological functioning of adults. A GAF of 31-40 indicates

some impairment in reality testing or communication or major

impairment in several areas, such as work or school, family

8

physical and mental exam were normal. (Tr. 427). On August 5, 2003,

Plaintiff again complained of thyroid problems and reported that she

stopped doing drugs, but smokes marijuana and crack occasionally.

Her physical and mental exams were normal, and she was diagnosed

with anxiety and depression. She was encouraged to make an

appointment with Dr. Hodo. (Tr. 426). During 2004, Plaintiff

complained of lower abdominal pain, and of anxiousness.

Psychosocial exams revealed that Plaintiff had a clean appearance

and appropriate mood, and that she was able to ambulate

independently and perform activities of daily living independently.

She was also oriented to person, place and time. (Tr. 593-595, 599-

607). 

Plaintiff was also treated at Cahaba Center for Mental Health

(“CCMH”). The records reflect Plaintiff sought treatment in

November 2002 and reported anxiety, blackouts and illicit drug use.

She also reported that she had lost custody of her kids. It was

noted that Plaintiff felt overwhelmed by the issues of life, and a

treatment plan was developed to provide her with individual, group

and family counseling, random drug screens, HIV education, and

psychiatric referral. She was diagnosed with cannabis dependence

and cocaine abuse, and was assessed a GAF of 315

. (Tr. 447). The

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 8 of 26
relations, judgment, thinking, or mood. See,

http://psyweb.com/Mdisord/DSM_IV/jsp/Axis_V.jsp. (Last visited

March 25, 2010.) 

6

A GAF of 51-60 indicates moderate symptoms or moderate

difficulty in social, occupational, or school functioning. See,

http://psyweb.com/Mdisord/DSM_IV/jsp/Axis_V.jsp. (Last visited

March 25, 2010.) 

9

notes dated February 5, 2003 reflect that Plaintiff was making good

progress with respect to her drug use as her drug and alcohol

screens were negative. It was also noted that she was not making

any progress towards her GED, and was making fair progress towards

taking steps to regain custody of her children. (Tr. 444).

Plaintiff next sought treatment at CCMH on August 18, 2003, and

was evaluated by therapist Carrie Bearden, MS, ALC. During

screening, Plaintiff reported nerve problems, anxiety attacks and

vomiting. (Tr. 443, 493). Plaintiff also reported that her

children had been removed from her two years earlier because she

failed to report her boyfriend’s rape of one of her daughters. She

also reported that she had used drugs in the past five years, but

had been sober since 2000. (Tr. 442, 492). On mental status exam,

Plaintiff had appropriate grooming and hygiene; fair appetite;

normal weight; poor sleep with insomnia and nightmares; dysphoric

mood; appropriate affect; calm motor activity; appropriate speech

pattern, thought process, and perception; adequate judgment; and

easy distraction. She was diagnosed with major depressive disorder,

recurrent, and assigned a GAF of 556. (Tr. 438-443, 488-490). 

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 9 of 26
7

Trazadone is an antidepressant medication, used for relief

of anxiety disorders. See, www.drugs.com. Last visited October

20. 2009. 

10

Plaintiff was treated on September 18, 2003 at CCMH by

psychiatrist Winston Pineda, M.D. Dr. Pineda noted that Plaintiff

was seen at the center four years ago earlier for outpatient

counseling and alcohol abuse. He observed that Plaintiff was

dysphoric, teary eyed and anhedonia. Plaintiff reported poor sleep,

lack of energy, and guilt about not taking good care of her

children. Plaintiff did not have any suicidal thoughts, psychosis

or thought disorders. On mental exam, Plaintiff was lethargic but

engageable, with depressed affect, congruent mood, and coherent and

relevant thoughts. Dr. Pineda noted that her memory and

concentration were grossly intact, and estimated her intellectual

functioning to be below average. Plaintiff was prescribed

Trazodone7

. (Tr. 436-437, 481-482). 

Plaintiff attended a therapy session at CCMH on October 24,

2003. Her mental status exam revealed appropriate

appearance/grooming and affect; dysphoric mood; fair sleep and

appetite; normal orientation; calm motor activity; and no side

effects from her medications. She was assessed a GAF of 55. (Tr.

476, 484). 

Plaintiff next treatment at CCMH was with Dr. Pineda on

February 18, 2004. Plaintiff was dysphoric and depressed, and she

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 10 of 26
8

Zyprexa is an atypical antipsychotic medication, used to

treat the symptoms of psychotic conditions such as schizophrenia

and bipolar disorder (manic depression). See, www.drugs.com.

(Last visited October 20. 2009). 

9

Prozac is an antidepressant used to treat major depressive

disorder. See, www.drugs.com. (Last visited October 20, 2009). 

11

reported auditory and visual misperceptions, but no suicidal

thoughts. On mental status exam, Dr. Pineda noted hygiene and

grooming below average, depressed affect, coherent and relevant

thoughts, and intact insight and judgment. He prescribed her

Zyprexa8 and Prozac9 and increased her Trazodone. (Tr. 474, 480).

Plaintiff also had a therapy session on this day. On mental status

exam, Plaintiff’s appearance/grooming were inappropriate; her affect

was appropriate, her mood was dysphoric, her sleep was poor with

nightmares; her appetite was poor, her orientation was normal, and

her motor activity was calm. She was assigned a GAF of 55. (Tr.

475, 483).

Plaintiff’s next visit to CCMH was on November 1, 2004. She

reported working at Holiday Inn and Subway, but indicated she was

not working much because of anxiety attacks. She also reported that

she was unable to sleep or eat, that she was having nightmares, and

that she lost 32 pounds in two weeks. (Tr. 751A). During a February

17, 2005 visit to CCMH, Plaintiff reported having problems keeping

a job without medication, and that she wanted to restart treatment.

(Tr. 751).

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 11 of 26
10Lexapro is an antidepressant used to treat anxiety in

adults and major depressive disorder in adults and adolescents. 

See, www.drugs.com. (Last visited October 20, 2009). 

12

Plaintiff was treated at CCMH on May 2, 2005. In a mental

status exam, she reported good appetite, normal weight, poor sleep

with nightmares and sleep walking, auditory hallucinations,

constricted affect and easy distraction. Her motor activity was

agitated, her speech pattern and thought process appropriate, her

orientation normal and her judgment adequate. (Tr. 745). Plaintiff

reported that she wanted to get back on medication. (Tr. 750). 

Plaintiff underwent a therapy session at CCMH on May 18, 2005.

On mental status exam, her appearance/grooming and affect were

appropriate, and her mood dysphoric. It was noted that Plaintiff

was not coping well, and that she was angry and reported flashbacks

of being abused by her father. (Tr. 741).

Plaintiff was treated by Dr. Pineda at CCMH on September 20,

2005. Dr. Pineda reported that Plaintiff appeared down, but

responded fairly well to encouragement. On mental status exam, Dr.

Pineda noted hygiene and grooming below average, dysphoric affect,

congruent mood, and coherent and logical thoughts, with no evidence

of thought disorder. Her memory and concentration were grossly

intact. Dr. Pineda estimated that her intellectual functioning is

borderline to mild mental retardation. He diagnosed Plaintiff with

major depressive disorder, recurrent, and prescribed Lexapro10 and

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 12 of 26
11Vistaril is acts as an antihistamine and is used as a

sedative to treat anxiety and tension. See, www.drugs.com. (Last

visited October 20, 2009). 

12Sinequan is an antidepressant used to treat symptoms of

depression and/or anxiety associated with alcoholism, psychiatric

conditions, or manic-depressive conditions. See, www.drugs.com.

(Last visited October 20, 2009). 

13

Trazodone. (Tr. 773). 

Plaintiff returned to Dr. Pineda on November 11, 2005 for a

routine appointment. He noted that Plaintiff was somewhat better

on Lexapro and Trazodone but she experienced distressful nightmares

and attributes them to Trazodone. He also noted Plaintiff looked

better, but continued to struggle with depressive symptoms, and that

she responded fairly well to empathetic listening and encouragement.

(Tr. 772). 

Plaintiff was seen by Dr. Pineda on January 9, 2006 for a

follow-up. Dr. Pineda listed Plaintiff’s medications as Lexapro and

Vistaril11, and noted that she still experienced significant

depression and poor sleep. He also noted that Plaintiff was sad

about losing her three children, but continued to respond favorably

to encouragement and empathic listening. Dr. Pindea continued her

on Lexapro, and changed the Vistaril to Sinequan12. (Tr. 770). 

 Plaintiff was treated at Selma Doctors Clinic in February and

August 2003. She reported thyroid problems and that she had started

back using marijuana to help with severe pain in her throat.

Plaintiff’s physical and mental exams were normal and she was

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 13 of 26
14

diagnosed with anxiety and depression. (Tr. 426-427)

Plaintiff was treated at Selma Regional Medical Center in 2003

and 2004. She reported tooth pain, lower abdominal pain, and

anxiousness. The treatment notes reflect that she had a clean

appearance and appropriate mood, and that she was able to ambulate

independently and perform activities of daily living independently.

She was also oriented to person, place and time. (Tr. 593-595). 

Psychologist William H. Lynn, Ph.D. completed a Psychological

Review Technique form on October 31, 2003. He diagnosed Plaintiff

with anxiety and depression, and noted her history of polysubstance

abuse. Dr. Lynn opined that Plaintiff is mildly limited in her

activities of daily living, and moderately limited in her ability

to maintain social functioning and to maintain concentration,

persistence or pace. (Tr. 457-471). 

On January 5, 2004, Paul T. Chittom, M.D., of the Selma

Doctors’ Clinic, completed an Assessment of Ability to do WorkRelated Activities (Mental) form. He opined that Plaintiff is

mildly to moderately limited in her ability to relate to other

people, to maintain concentration and attention for extended periods

and in her activities of daily living. He further opined that

Plaintiff is mildly limited in her ability to sustain a routine

without special supervision and to perform activities within a

schedule, maintain regular attendance and be punctual. He opined

that Plaintiff is moderately limited in her ability to respond to

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 14 of 26
15

customary work pressures, respond appropriately to changes in the

work setting, perform complex, repetitive or varied tasks, and

behave in an emotionally stable manner. He also opined that

Plaintiff is mildly limited in her ability to understand, carry out

and remember instructions, respond appropriately to supervision and

to co-workers, use good judgment and perform simple tasks.

According to Dr. Chittom, Plaintiff’s limitations have lasted or can

be expected to last for 12 months, her medications have a minimal

effect on her ability to function, and she can manage her benefits

on her own. He diagnosed Plaintiff with chronic neurotic depression

which results in repeated episodes of deterioration or

decompensation in work or work-like settings and thereby cause her

to withdraw or to experience exacerbation of signs and symptoms.

(Tr. 736-738). 

Plaintiff was referred by her attorney for a psychological

evaluation by Robert A. Storjohann, Ph.D. She underwent the

evaluation on March 31, 2005. On mental status exam, Dr. Storjohann

reported that Plaintiff was appropriately dressed and groomed, her

demeanor was extremely ill-at-ease and socially uncomfortable,

severely dysphoric, despondent, forlorn, withdrawn, distracted and

preoccupied. Her overall thinking style was concrete and verbal

comprehension skills were very poor. Her speech was normal in pace

and tone, her mood was severely depressed, intensely anxious and

very tense, and her affect was blunted in range. She was oriented

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 15 of 26
16

to person, place situation and time, her recent memory was grossly

intact and her remote memory was poor. Her thoughts and speech were

logical, coherent and goal-directed, her thoughts were without loose

associations or confusion, and she was circumstantial and tangential

in most of her responses. No hallucinations or delusions were

observed. Dr. Sotrjohann opined that her social judgment and

interpersonal insight are poor, and that she is unable to make

acceptable work decisions, or manage her own financial affairs. He

estimated her intellectual functioning to be in the mild range of

mental retardation to the low borderline range. 

Dr. Sotrjohann diagnosed Plaintiff with posttraumatic stress

disorder, chronic, severe; major depression, recurrent, severe, with

mood-congruent psychotic features; generalized anxiety disorder;

social phobia generalized; cannabis dependence, sustained full

remission; dependent personality disorder, borderline personality

disorder; schizoid personality disorder; high blood pressure;

stomach ulcers; headaches; thyroid problems with history of surgery

on the thyroid gland; pain in shoulders and low back; bouts of

constipation and diarrhea; and headaches. He assigned Plaintiff a

GAF of 35. (Tr. 573-577). 

 Dr. Storjohann completed a Medical Source Statement (Mental)

on the same day. He opined that Plaintiff is extremely limited in

her ability to perform activities within a schedule, maintain

regular attendance, and be punctual within customary tolerances, and

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 16 of 26
17

to complete a normal workday and workweek without interruptions from

psychologically based symptoms and to perform at a consistent pace

without an unreasonable number and length of rest periods. He

opined that Plaintiff has a marked to extreme limitation in her

ability to maintain attention and concentration for extended

periods; to respond appropriately to supervision; to respond

appropriately to changes in the work setting; and to respond to

customary work pressures. (Tr. 578-580).

Dr. Storjohann additionally opined that Plaintiff has a marked

limitation in her ability to understand, remember and carry out

complex instructions; to understand, remember and carry out

repetitive tasks; to sustain a routine without special supervision;

and to make simple work-related decisions. He opined that Plaintiff

is moderately to markedly limited in her ability to get along with

coworkers or peers, and in her activities of daily living. He also

opined that Plaintiff is moderately limited in her ability to

interact appropriately with the general public; in her personal

habits; in her ability to understand, remember and carry out complex

instructions; and in her ability to be aware of normal hazards and

take appropriate precautions. He further opined that Plaintiff is

mildly limited in her ability to ask simple questions or request

assistance. (Tr. 578-580).

At the request of the Agency, Plaintiff underwent a physical

evaluation on December 30, 2005 by Alan M. Babb, M.D. Dr. Babb

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 17 of 26
18

noted that Plaintiff appeared “almost robotic and zombified,” and

stared at the floor throughout the interview. He also noted that

Plaintiff appeared severely retarded and emotionally devastated by

the abuse. (Tr. 755-756). 

Dr. Babb reported that Plaintiff’s physical exam was normal,

and her neurologic exam reflected a very flat, retarded affect,

normal grip strength, normal sensory-motor exam, very poor

intellectual skills, extremely poor fund of information, and an

ability to follow simple instructions. He noted that the neurologic

findings are consistent with severe retardation and “almost

medication-induced bradykinesia.” His impressions were of chronic

neurotic depression, long history of severe domestic abuse from

father, mother, husbands and boyfriends; tobacco abuse;

hypertension; mild mental retardation; status post partial

thyroidectomy; and status post breast reduction. He noted

Plaintiff’s severe and profound learning problems and emotional

problems, and opined that she needs extensive psychiatric

management. He further opined that it is unlikely anyone would hire

Plaintiff in her current state, due to her extremely poor

educational background, lack of skills, and lack of motivation.

(Tr. 757-758).

 Dr. Babb also completed a Medical Source Opinion (Physical)

on December 30, 2005. He opined that Plaintiff can stand/walk 30

minutes at a time and four hours total in an eight-hour workday, and

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 18 of 26
19

can lift/carry 10 pounds constantly, 20 pounds frequently and 30

pounds occasionally. He further opined that Plaintiff has no

limitation in her ability to push/pull with her arms or legs, or in

her ability to climb, balance, stoop, kneel, crouch, crawl, handle,

finger, feel, talk, hear, or reach overhead. He limited her to

never working in proximity to moving mechanical parts, in high,

exposed places, or driving automotive equipment. (Tr. 760-762).

Plaintiff was evaluated by Richard S. Reynolds, PH.D., on

January 20, 2006 at the request of the Agency. On mental status

exam, Dr. Reynolds noted that Plaintiff was alert and oriented to

person, place, time and situation and was cooperative. He further

stated that her speech was within normal limits, her stream of

thought appeared slow, that she often heard her mother call her

name, and that she was depressed and tired. He stated that

Plaintiff’s affect was sad. Plaintiff reported her current symptoms

as sleep disturbance, nausea, nerves, sadness, tearfulness, crying

spells and feeling down. She denied suicidal and homicidal

ideation, had fair recent and remote memory, and her judgment,

insight and decision-making abilities appeared impaired. Plaintiff

was administered the Wechsler Adult Intelligence Scale – Third

Edition (“WAIS-III”), which resulted in a verbal IQ score of 56,

performance IQ score of 53 and full-scale IQ score of 50. Dr.

Reynolds opined that her full-scale IQ score of 50 was likely due

to mental illness, most likely schizophrenia, and that previous

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 19 of 26
20

testing and/or school records should be obtained to determine her

intellectual functioning. (Tr. 764-765).

Dr. Reynolds also completed a Medical Source Opinion Form

(Mental) on January 20, 2006. He opined that Plaintiff was markedly

limited in her ability to respond appropriately to supervisors, and

to customers or other members of the general public; and to

understand, remember, and carry out detailed or complex

instructions, to maintain attention, concentration or pace for

periods of at least two hours, to maintain social functioning and

to maintain activities of daily living. He further opined that

Plaintiff is moderately limited in her ability to respond

appropriately to co-workers, and to use judgment in simple one or

two step work-related decisions. He opined that Plaintiff is mildly

limited in her ability to understand, remember and carry out simple

one and two-step instructions. (Tr. 767-768). 

Doug McKeon, M.D., testified at Plaintiff’s administrative

hearings. He noted Plaintiff’s “significant history of marijuana

and cocaine use and abuse and her one year of treatment.” He opined

that the overall record indicates an individual with anxiety and

depressive symptomotology, identified after substance abuse issues.

He determined that there was no information in the record to

establish a 12.05 consideration. He also opined that the

appropriate category for evaluation for Plaintiff’s claims was under

12.04 for affective disorders, with major depression with primary

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 20 of 26
1320 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05.

21

symptoms of sleep disturbance, psychomotor retardation, decreased

energy, and reports of difficulty with concentrating and thinking.

He opined that Plaintiff does not meet 12.04. He further opined

that Plaintiff has a mild to moderate impairment in activities of

daily living, a mild impairment of social functioning, and a mild

to moderate impairment of concentration, persistence and pace with

no periods of decompensation. He further opined that she has a

marked impairment in the ability to complete complex tasks, a mild

impairment in completing simple tasks, a mild to moderate impairment

in concentration, persistence and pace in work-related activities

up to two hours, and a mild to moderate impairment in tolerating and

dealing with work stresses. He stated that the record establishes

depressive symptomotology, treated from 2004, and substance abuse

prior to that time. (Tr. 71-73). 

 1. Whether the ALJ erred in failing to consider Plaintiff’s

intellectual limitations in finding that she did not meet

a Listing 12.0513, and in not developing the record as to

those limitations. 

Plaintiff asserts that the ALJ erred in failing to properly

consider her intellectual deficiencies in determining whether

Plaintiff meets or equals Listing 12.05, and in failing to develop

the record in making that determination. Listing 12.05, the listing

category for mental retardation, begins with an introductory

paragraph, which states that "[m]ental retardation refers to

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 21 of 26
22

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." 20 C.F.R. Part 404, Subpart

P, Appendix 1, § 12.05. The listing further provides that the

"required level of severity for this disorder is met when the

requirements in A, B, C, or D are satisfied." Id. Subsection C

requires a claimant to demonstrate "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." Id. at § 12.05C. 

In this case, the ALJ held that Plaintiff’s impairments do not

meet or equal a Listing, and stated as follows:

Under the third step, I must determine whether these

impairments meet or equal in severity any impairment

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. No

treating or examining source or medical expert has so

concluded. In addition, I have examined the record, and

I find that the evidence does not support such a

conclusion. In particular, I have considered listing

12.05 for mental retardation. In January 2006, Richard

S. Reynolds, Ph.D., administered the Wechsler Adult

Intelligence Scale – Third Edition. The claimant

obtained a Verbal IQ score of 56, Performance IQ score of

53 and Full Scale IQ score of 50. . . . While these

scores would appear to meet one criteria in said listing,

the examiner indicated that they were not valid estimates

of claimant’s true intellectual functioning but were

likely depressed due to her mental illness. Thus, I find

that the claimant’s impairments, considered singularly

and in combination, are not of listing-level severity. 

(Tr. 19).

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 22 of 26
23

While the ALJ stated that Dr. Reynolds indicated that the

scores were “not valid,” what Dr. Reynolds actually stated is as

follows: 

Ms. Edwards was administered the WAIS-III today. She

obtained a full scale IQ score of 50. It is believed

that these results are likely as low as they are due to

mental illness. Previous testing and/or school records

should be obtained to determine previous intellectual

functioning. 

(Tr. 765). A close reading of Dr. Reynolds’ report reveals that he

opined that the results were “likely” as low as they were due to

mental illness, and he recommended that “[p]revious testing and/or

school records should be obtained in order to determine previous

intellectual functioning. In addition, Dr. Pineda, who treated

Plaintiff at CCMH for a number of years, also questioned her level

of intellectual functioning. In September 2003, Dr. Pineda

estimated that Plaintiff’s intellectual functioning was below

average, and in September 2005, he opined that Plaintiff’s

intellectual functioning was borderline to mild mental retardation.

(Tr. 437, 482, 773). Also, when Plaintiff was examined by Robert

Storjohann, Ph.D., in March 2005, he opined that her intellectual

functioning fell in the mild range of mental retardation to the low

borderline range. He opined that “[a]dditional assessment with a

WAIS-III and a WRAT is needed to determine more specifically her

level of intellectual and academic functioning”. (Tr. 577).

Additionally, when Plaintiff was examined by Alan M. Babb, M.D., in

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 23 of 26
24

December 2005, he observed that Plaintiff appeared to be “severely

retarded” and that she displayed “very poor intellectual skills”.

(Tr. 755- 758). It is also noteworthy that at the April 2006

administrative hearing, the medical expert testified as follows:

Dr. Richard Reynolds saw the claimant on January

20, 2006. His evaluation included intellectual

testing which indicated I.Q. scores in the low

50s. He did consider mild retardation but felt 

that her scores were suppressed due to her mental

health related problems...There is no information

to establish a 12.05 consideration based on the

record. There are conflicting reports in the record

where at different times she has indicated she can

read and write and then at other times where she

indicates that she can’t. There is no school record

that can substantiate limited functioning at that

level. For that reason the 12.05 category was not 

considered. 

(Tr. 70-72).

Based upon the record before the Court, the undersigned finds

that the ALJ failed in fully developing the record to determine if

Plaintiff meets or equals a listing under 12.05. Nearly every

doctor who actually examined Plaintiff questioned her intellectual

functioning. Moreover, while Dr. Reynolds suggested that

Plaintiff’s low IQ scores may have been suppressed by her mental

problems, he did not rule out mental retardation. Instead, he

recommended that Plaintiff’s previous testing and/or school records

be obtained in order to determine her previous intellectual

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 24 of 26
25

functioning. This was particularly important where Plaintiff

testified that she was in special education classes, and that she

is not able to read and write well. Rather than fully developing

the record on this issue, the ALJ erroneously relied upon the

opinion of the non-examining medical expert, Dr. McKeon, who

testified that because Dr. Reynolds questioned the IQ scores, and

the record did not contain any educational records on this issue,

the 12.05 category need not be considered. 

The ALJ is required to fully develop the record. Brown v.

Shalala, 44 F. 3d 931, 934 (llth Cir. 1995); Lucas v. Sullivan, 918

F. 2d 1567, 1573 (llth Cir. 1990). This duty to develop the record

exists even when the plaintiff is represented by a lawyer. Brown,

44 F.3d at 934. This duty requires that the ALJ “scrupulously and

conscientiously probe into, inquire of, and explore for all the

relevant facts,” and be “especially diligent in ensuring that

favorable as well as unfavorable facts and circumstances are

elicited,” Cowart v. Schweiker, 662 F. 2d 731, 735 (llth Cir.

1981). Clearly, in order for an informed decision to be made

regarding Plaintiff’s intellectual functioning, her educational

records need to be reviewed and a current valid IQ score obtained.

Accordingly, this case must be remanded to the ALJ to fully develop

the record and determine whether Plaintiff’s impairments meet or

equal Listing 12.05. 

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 25 of 26
14In light of the remand, the Court has not addressed the

second issue raised in Plaintiff’s brief, namely whether the ALJ

failed to consider the opinions of examining sources.

26

V. Conclusion

For the reasons set forth, and upon careful consideration of

the administrative record and memoranda of the parties, the

decision of the Commissioner of Social Security, denying

Plaintiff’s claim for disability insurance benefits and

supplemental security income, is REVERSED AND REMANDED14.

 DONE this 25th day of March, 2009.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

Case 2:08-cv-00743-B Document 26 Filed 03/26/10 Page 26 of 26