1 Oral argument in this case (see Doc. 12 (setting oral argument in Selma, Alabama

on June 22, 2006)) was cancelled, sua sponte, by the undersigned (Doc. 13).

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

LARRY C. CANNON, :

Plaintiff, :

vs. CA 05-0714-BH-C

:

JO ANNE B. BARNHART,

Commissioner of Social Security, :

Defendant.

REPORT AND RECOMMENDATION

Plaintiff brings this action pursuant to 42 U.S.C. §§ 405(g) and

1383(c)(3), seeking judicial review of a final decision of the Commissioner of

Social Security denying his claims for disability insurance benefits and

supplemental security income. This action has been referred to the Magistrate

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

Upon consideration of the administrative record, plaintiff's proposed report and

recommendation, and the Commissioner's proposed report and

recommendation,1

 it is determined that the decision to deny benefits should be

reversed and remanded for further proceedings not inconsistent with this

decision.

Case 2:05-cv-00714-CG-C Document 15 Filed 09/18/06 Page 1 of 10
2

Plaintiff alleges disability due to organic affective disorder status-post

gunshot wound to the face, a personality disorder, and mild mental retardation.

The Administrative Law Judge (ALJ) made the following pertinent findings:

3. The claimant has an impairment or a combination of

impairments considered “severe” based on the requirements in

the Regulations 20 CFR §§ 404.1520(b) and 416.920(b).

4. These medically determinable impairments do not meet

or medically equal one of the listed impairments in Appendix 1,

Subpart P, Regulation No. 4.

5. The undersigned finds the claimant’s allegations

regarding his limitations are not totally credible for the reasons

set forth in the body of the decision.

6. The undersigned has carefully considered all of the

medical opinions in the record regarding the severity of the

claimant’s impairments (20 CFR §§ 404.1527 and 416.927).

7. The claimant retains the residual functional capacity to

perform the exertional demands of medium work. His pain is

less than moderately severe. He has a full-scale IQ score of 77

and a memory quotient of 61. He cannot perform complex or

detailed jobs.

8. The claimant’s past relevant work as a chicken and fish

plant cleanup worker and stock clerk did not require the

performance of work-related activities precluded by his residual

functional capacity (20 CFR §§ 404.1565 and 416.965).

9. The claimant’s medically determinable organic affective

disorder status post gunshot wound to the face with facial

fractures and ORIF, and borderline intellectual functioning do

not prevent him from performing his past relevant work.

Case 2:05-cv-00714-CG-C Document 15 Filed 09/18/06 Page 2 of 10
3

10. The claimant was not under a “disability” as defined in

the Social Security Act, at any time through the date of the

decision (20 CFR §§ 404.1520(e) and 416.920(e)).

(Tr. 212) The Appeals Council affirmed the ALJ’s decision (Tr. 180-182) and

thus, the hearing decision became the final decision of the Commissioner of

Social Security.

DISCUSSION

In all Social Security cases, the claimant bears the burden of proving

that he is unable to perform his previous work. Jones v. Bowen, 810 F.2d 1001

(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; and (4) the claimant's age, education and work history. Id. at 1005.

Once the claimant meets this burden, it becomes the Commissioner's burden

to prove that the claimant is capable, given his age, education and work

history, of engaging in another kind of substantial gainful employment which

exists in the national economy. Sryock v. Heckler, 764 F.2d 834, 836 (11th

Cir. 1985).

The task for the Magistrate Judge is to determine whether the

Commissioner's decision to deny claimant benefits, on the basis that Cannon

Case 2:05-cv-00714-CG-C Document 15 Filed 09/18/06 Page 3 of 10
2 This Court's review of the Commissioner's application of legal principles,

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

4

can perform his past relevant work as a stock clerk and a cleanup worker in a

chicken and fish plant, is supported by substantial evidence. Substantial

evidence is defined as more than a scintilla and means such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.

Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

"In determining whether substantial evidence exists, we 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).2

The plaintiff contends in this case that the ALJ committed the following

errors: (1) his finding regarding intellectual functioning is not supported by

substantial evidence; (2) he erred in failing to develop the record with respect

to whether Listings 12.05C and 12.02 are met or equaled; and (3) he erred in

failing to find the proper onset date for plaintiff’s claim to be December 15,

2000. (Doc. 11, at 3) 

Because the undersigned finds the ALJ’s analysis under Listing 12.05C

lacking, it is recommended that this case be remanded for further proceedings

not inconsistent with this decision. See Pendley v. Heckler, 767 F.2d 1561,

Case 2:05-cv-00714-CG-C Document 15 Filed 09/18/06 Page 4 of 10
5

1563 (11th Cir. 1985) (“Because the ‘misuse of the expert’s testimony alone

warrants a reversal,’ we do not consider the appellant’s other claims.”).

It is clear in this circuit that Cannon must bear the burden of proving

that he has an impairment which meets or is medically equivalent to a listed

impairment. Bell v. Bowen, 796 F.2d 1350, 1353 (11th Cir. 1986) (“We hold

that when a claimant contends that he has an impairment meeting the listed

impairments entitling him to an adjudication of disability under regulation

404.1520(d), he must present specific medical findings that meet the various

tests listed under the description of the applicable impairment or, if in the

alternative he contends that he has an impairment which is equal to one of the

listed impairments, the claimant must present medical evidence which

describes how the impairment has such an equivalency.”); see also Wilson v.

Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (“To ‘meet’ a Listing, a

claimant must have a diagnosis included in the Listings and must provide

medical reports documenting that the conditions meet the specific criteria of

the Listings and the duration requirement. . . . To ‘equal’ a Listing, the medical

findings must be ‘at least equal in severity and duration to the listed

findings.’”). To establish presumptive disability under § 12.05C, a claimant

must present evidence of "[a] valid verbal, performance, or full scale IQ of 60

Case 2:05-cv-00714-CG-C Document 15 Filed 09/18/06 Page 5 of 10
3 It is impossible for this Court to “square” the ALJ’s ultimate determination that

plaintiff’s intellectual functioning is borderline with his admission that claimant’s IQ scores have

fallen within 12.05C’s range. The confusion in this regard is of the ALJ’s own making thereby

requiring remand of the case. 

6

through 70 and a physical or other mental impairment imposing additional and

significant work-related limitation of function."

In this case, the ALJ’s 12.05C’s analysis consists of the following: “He

does not meet or equal the criteria of Section 12.05C . . . . Although the

claimant’s IQ scores have been within this range, there is no medical

evidence of any other physical or mental impairment which would impose

additional and significant work-related limitation of functioning.” (Tr. 207

(emphasis supplied)) The undersigned finds that the ALJ’s recognition that

Cannon’s IQ scores have fallen within the range of 60 to 70 is his tacit

acceptance of Dr. Charles Houston’s April 27, 2004 evaluation results (see Tr.

376-379) inasmuch as nowhere in his decision does the ALJ reject any portion

of Dr. Houston’s report (compare id. with Tr. 200-213).3

 Furthermore, by the

ALJ’s own admission and finding, plaintiff has achieved valid IQ scores

within the 12.05C range. (Tr. 207) Therefore, based upon the contents of the

administrative decision that is before the Court for review, the only remaining

question for 12.05C purposes is whether Cannon has a physical or other mental

impairment imposing additional and significant work-related limitation of

Case 2:05-cv-00714-CG-C Document 15 Filed 09/18/06 Page 6 of 10
7

function. 

“An impairment imposes significant limitations when its effect on a

claimant's ability to perform 'basic work activities' is more than slight or

minimal." Edwards by Edwards v. Heckler, 755 F.2d 1513, 1515 (11th Cir.

1985). Therefore, "significant" involves something more than "minimal" but

less than "severe" within the meaning of 20 C.F.R. § 404.1520(c). Id.; see also

Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993) (citing Edwards by

Edwards with approval in concluding that the combined impact of the

claimant’s allergies and mild carpal tunnel syndrome imposed more than a

slight or minimal, even though less than a severe, limitation on her functional

abilities). Accordingly, a severe physical or mental impairment would satisfy

the second prong of 12.05(C), as, by definition, a severe impairment

“significantly limits [an individual’s] physical or mental ability to do basic

work activities[.]” 20 C.F.R. § 404.1520(c). 

In this case, the ALJ determined that one of Cannon’s severe

impairments is “organic affective disorder status post gunshot would to the

face with facial fractures and ORIF[.]” (Tr. 206) Given this finding by the

ALJ, he could not later consistently determine that “there is no medical

evidence of any other physical or mental impairment which would impose

Case 2:05-cv-00714-CG-C Document 15 Filed 09/18/06 Page 7 of 10
4 In addition, Dr. Houston found that plaintiff suffers from a personality disorder, in

addition to mild mental retardation (Tr. 378), both of which result in limitations of function

(compare id. with Tr. 380-381). Presumably, the ALJ accepted Dr. Houston’s diagnosis in this

regard, as nowhere does he reject the diagnosis, yet it is unclear from his discussion just what he

thought about this diagnosis. On remand, the ALJ will have every opportunity to discuss Dr.

Houston’s report and diagnoses.

5 This case represents a situation in which the ALJ failed to fully and fairly develop

the record regarding the true nature of plaintiff’s intellectual functioning. Instead of sending

plaintiff to a psychologist or psychiatrist for testing to rule out malingering, as suggested by Dr.

Brent Willis (Tr. 349 (“Due to his inconsistent testing in the past, I would strongly recommend

more psychological testing in terms of personality, intelligence and memory. This should be

conducted in order to gain a thorough and more recent evaluation of Mr. Cannon’s motivation

and current abilities. I would also suggest some measures designed to detect malingering

such as the Test of Memory Malingering (TOMM) or the Structured Interview of Reported

Symptoms (SIRS).”)), the ALJ chose to rely upon Dr. Willis’ conclusion that the test results

were not a valid indicator of Cannon’s current level of functioning and Dr. Houston’s inability to

state that all malingering was ruled out--though Houston did not administer the malingering tests

cited by Willis--to definitively find that plaintiff was malingering and must retain the full scale

IQ score found by Dr. John Goff in 1993, some eight years prior to his alleged onset date of

disability relied upon in the instant case (see Tr. 201 (“He alleged that he became disabled on

September 28, 1993 and December 15, 2000, but at the hearing amended the alleged onset date

to November 28, 2001 . . . .”)). This was error.

8

additional and significant work-related limitation of function.” (Tr. 207)4 This

internal inconsistency, as well as the inconsistency between the ALJ’s ultimate

finding that Cannon has borderline intellectual functioning and his finding that

plaintiff’s IQ scores have fallen within the range set forth in 12.05C,

necessitates that this cause be remanded to the Commissioner of Social

Security for further proceedings not inconsistent with this decision.5

CONCLUSION

The Magistrate Judge recommends that the decision of the

Case 2:05-cv-00714-CG-C Document 15 Filed 09/18/06 Page 8 of 10
9

Commissioner of Social Security denying plaintiff disability insurance benefits

and supplemental security income be reversed and remanded pursuant to

sentence four of § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct.

2157, 115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this

decision. The remand pursuant to sentence four of § 405(g) makes the plaintiff

a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C.

§ 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239

(1993), and terminates this Court’s jurisdiction over this matter. 

The attached sheet contains important information regarding objections

to the report and recommendation of the Magistrate Judge.

DONE this the 18th day of September, 2006.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-00714-CG-C Document 15 Filed 09/18/06 Page 9 of 10
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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. 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 this 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); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en

banc). 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 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. 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 case 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/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-00714-CG-C Document 15 Filed 09/18/06 Page 10 of 10