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Lott v. Colvin

United States Court of Appeals, Eighth Circuit

November 28, 2014

Garland Lott, Jr., Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant - Appellee

Submitted September 10, 2014.

Appeal from United States District Court for the Eastern District of Arkansas - Helena.

For Garland Lott, Jr., Plaintiff - Appellant: Anthony W. Bartels, Attorney, Jonesboro, AR; Eugene Gregory Wallace, Campbell University School of Law, Raleigh, NC.

For Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant - Appellee: Stacey E. McCord, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Arkansas, Little Rock, AR; Michael McGaughran, Una McGeehan, Assistant Regional Counsel, Social Security Administration, Office of General Counsel Region VI, Dallas, TX.

Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.

OPINION

Page 547

RILEY, Chief Judge.

Garland Lott, Jr. applied for social security disability insurance (SSDI) benefits under Title II and supplemental security income (SSI) under Title XVI of the Social Security Act. Lott's applications were denied initially by the Commissioner, on reconsideration, and by an Administrative Law Judge (ALJ). After the Appeals Council declined to review the ALJ's decision, Lott filed a complaint in the district court, alleging the ALJ erred by failing to order an intelligence quotient (IQ) test, evaluating Lott's intellectual capacity, and accepting a vocational expert's assessment of jobs Lott could perform. The district court affirmed the ALJ's decision. Lott appeals. Having appellate jurisdiction under 28 U.S.C. § 1291,[1] we reverse and remand.

I. BACKGROUND

In his initial application, Lott claimed disability due to insulin-dependent diabetes, hypertension, and a " mental disord[er]." Clinical psychologist Stephen P. Nichols, Ph.D., diagnosed Lott with psychotic disorder, not otherwise specified; antisocial personality disorder; and mild mental retardation. Dr. Nichols did not administer an IQ test as part of the mild mental retardation diagnosis.[2]

Page 548

At the hearing before the ALJ, Lott testified he was thirty-six years old and had completed tenth grade. Lott took special education classes in math and science only, even though he could read " [j]ust a little bit" when he dropped out of high school. Lott cannot read or understand newspaper articles or grocery lists--he only can read " little small words." Lott cannot count the change given from a dollar bill. He passed the test to obtain a driver's license on the third try with the help of another person who read the test aloud. Lott has worked as a short-order cook at a truck stop and as a construction laborer. After Lott testified, the ALJ formulated Lott's residual functional capacity (RFC), and a vocational expert (VE) testified that a person with Lott's RFC would not be able to perform his past relevant work, but would be able to work other available jobs.

Following the hearing, the ALJ issued a decision

employ[ing] the familiar five-step process to determine whether an individual is disabled: . . . 1) whether the claimant is currently employed; 2) whether the claimant is severely impaired; 3) whether the impairment is, or is comparable to, a listed impairment; 4) whether the claimant can perform past ...

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