Lewis v. Astrue

Filing 24

MEMORANDUM OPINION. The court will enter a separate order affirming the decision of the Commissioner. Signed by Honorable Charles S. Coody on 8/30/2010. (cb, )

L e w i s v. Astrue (CONSENT)

D o c . 24

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION S T E L L A LEWIS, P l a in tif f , v. M IC H A E L J. ASTRUE, C O M M IS S IO N E R OF SOCIAL S E C U R IT Y , D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 3:09cv337-CSC

M E M O R A N D U M OPINION I . Introduction T h e plaintiff, Stella Lewis ("Lewis"), applied for disability insurance benefits p u rs u a n t to Title II of the Social Security Act, 42 U.S.C. § 401 et seq., alleging that she was u n a b le to work because of a disability. Her application was denied at the initial

a d m in is tra tiv e level. Lewis then requested and received a hearing on January 23, 2006, b e f o re an Administrative Law Judge ("ALJ"). An additional hearing was conducted on O c to b e r 23, 2006. Following the hearings, the ALJ also denied the claim. The Appeals C o u n c il rejected a subsequent request for review. The plaintiff subsequently filed a

c o m p la in t in this court. On February 14, 2008, the court granted the Commissioner's motion to remand pursuant to sentence four of 42 U.S.C. § 405(g). On March 15, 2008, the Appeals C o u n c il vacated its previous decision and remanded the case to the ALJ for further p ro c e ed in g s . (R. 542.) On September 15, 2008, the ALJ conducted a final hearing.

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F o l lo w in g the hearing, the ALJ denied the claim. The Appeals Council rejected Lewis' re q u e st for review. The Appeals Council's decision consequently became the final decision o f the Commissioner of Social Security ("Commissioner").1 See Chester v. Bowen, 792 F.2d 1 2 9 , 131 (11 th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3). Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the p a rtie s have consented to entry of final judgment by the United States Magistrate Judge. B ase d on the court's review of the record in this case and the briefs of the parties, the court c o n c lu d e s that the decision of the Commissioner should be affirmed. I I . Standard of Review U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le 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 o f not less than 12 months. . . . To make this determination,2 the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. § 404.1520, §416.920. (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe?

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.
A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological a b n o rm a litie s which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.
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(3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).3 T h e standard of review of the Commissioner's decision is a limited one. This court m u s t find the Commissioner's decision conclusive if it is supported by substantial evidence. 4 2 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11 th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which supports the decision of the ALJ but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11 th Cir. 1986). [ T h e court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings . . . No similar p r e s u m p t io n of validity attaches to the [Commissioner's] . . . legal conclusions, i n clu d in g determination of the proper standards to be applied in evaluating c la im s .

McDaniel v. Bowen, 800 F.2d 1026 (11 th Cir. 1986), is a supplemental security income case (SSI). T h e same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited a s authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5 th Cir. 1981) (Unit A).

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W a lk e r v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987). I I I . Administrative Proceedings L e w is was 55 years old at the time of the October 23, 2006, hearing before the ALJ. (R . 476.) She is a high school graduate. (R. 477, 505.) Lewis' prior work experience in c lu d e s working as a wood grader, fishing product assembler, and cook. (R. 107-11, 477, 4 9 1 -9 2 .) Lewis alleges that she became disabled due to knee and leg problems, depression, m ig ra in e headaches, uncontrolled diabetes, skin infections, foot pain, and neuropathy. (R. 4 8 7 -89 , 493, 499.) Following the final hearing, the ALJ concluded that Lewis has severe im p a irm e n ts of diabetes mellitus, osteoarthritis in the knees and lumbar spine, and obesity. (R . 520.) The ALJ determined that Lewis is unable to return to her past relevant work. (R. 5 2 3 .) Based on the testimony of the vocational expert, the ALJ concluded there are a s ig n if ic a n t number of jobs existing in the national economy that Lewis could perform, in c lu d in g working as a dispatcher, information clerk, and surveillance system monitor. (R. 1 9 , 524.) Accordingly, the ALJ concluded that Lewis is not disabled. (R. 523.) I V . The Issues I n her brief, Lewis raises the following claims: (1 ) T h e ALJ committed reversible error in failing to comply with th e Appeals Council's remand order dated March 15, 2008. T h e ALJ committed reversible error by failing to consult a m e d ic a l expert regarding the onset date of Lewis' disability. T h e ALJ's finding that Lewis' borderline intellectual 4

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f u n c tio n in g is not a severe impairment and that she has no f u n c tio n a l limitations flowing from this impairment is not s u p p o rte d by substantial evidence. (4 ) T h e Commissioner failed to sustain his burden of establishing w h e th e r there is other work in the national economy that Lewis c a n perform.

(D o c . No. 16-5, Pl's Brief, p. 1.) I V . Discussion A. The Appeals Council

L ew is asserts that the ALJ erred in failing to comply with the Appeals Council's M a rc h 15, 2008 order to "specifically evaluate the severity of the claimant's borderline intellec tual functioning and if necessary, obtain supplemental evidence from a medical expert a n d /o r vocational expert." (R. 541-42.) The failure of an ALJ to take specific action m a n d a te d by the Appeals Council on remand is reversible error. See Hamilton v. Comm'r o f Soc. Sec., No. 6:07cv1870-Orl-GJK (M.D. Fla. March 23, 2009); Tauber v. Barnhart, 438 F . Supp. 2d 1366 (N.D. Ga. 2006) (quoting 20 C.F.R. 404.977(b)). T h is court concludes that the ALJ complied with the Appeals Council's order to s p e c if ic a lly evaluate Lewis' intellectual functioning and obtain supplemental evidence from a medical or vocational expert. The record indicates that the Commissioner sent Lewis for a n additional consultative examination by Dr. David D. Hall, a psychiatrist, in May 2008. D r. Hall conducted a psychological evaluation, including sensorium questioning, and d e te rm in e d that Lewis was not more than "moderately impaired in her ability to understand,

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re m e m b e r, and carry out instructions and to respond appropriately to supervision, cow o rk e rs , and work pressures in a work setting." (R. 558.) Additionally, during the hearing S e p t e m b e r 15, 2008, the ALJ called a vocational expert to testify concerning whether an in d iv id u a l with moderate restrictions would be able to perform work. The ALJ advised the v o c a tio n a l expert that it was necessary for him to consider both the restrictions set forth in D r. Jacobs' evaluation and Dr. Hood's report when making his determination and posed the f o llo w in g hypothetical question: . . . [T]his time, claimant has . . . a mild restriction as far as re sp o n d in g appropriately to supervisors, a mild restriction as far a s responding appropriately to coworkers, has a moderate re stric tio n as far as responding appropriately to customers or o th e r members of the general public. Using judgment in simple o n or two-step work-related decisions, this individual is mild re stric tio n . As far as using judgment in detailed or complex w o rk related decisions, she has a moderate restriction. As far as d e a lin g with changes in a routing work setting, the restriction is m o d era te. Now as far as the ability to understand, remember, a n d carry out simple, one, two-step instructions, there is no re stric tio n . As far as understanding, remembering, and carrying o u t detailed or complex instructions, there's a moderate re stric tio n . And as far as maintaining attention, concentration, o r pace for periods of at least two hours, there is a moderate r e str ic tio n . As far as maintaining social functioning, there is a m ild restriction. As far as maintaining activities of daily living, th e re is a mild restriction. (R . 607-608.) The vocational expert indicated that the aforementioned restrictions would not in any way affect an individual's ability to perform the requirements of a dispatcher, inf o rm atio n clerk, or surveillance system monitor "as long as the impairments are not more th a n moderate." (R. 608-609.) All of the medical records, as well as the mental health

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e x p e rts' opinions in this case, indicate that Lewis has no more than moderate impairments w ith respect to her intellectual functioning and other psychological conditions. (R. 407-408, 4 8 3 -8 4 , 487, 558.) Because the ALJ further developed the record by ordering an additional c o n su lta tiv e examination by a psychiatrist, called a vocational expert to testify concerning w h ethe r an individual with Lewis' limitations, as identified in both Dr. Jacobs' and Dr. H a ll ' s evaluations, would be able to perform work, and found that after considering this a d d itio n a l evidence that Lewis' intellectual functioning was not severe, the court concludes th a t the ALJ fully complied with the Commissioner's order to evaluate the severity of the c la im a n t's borderline intellectual functioning and obtain supplemental evidence from a m e d ic a l expert and/or vocational expert.

B.

I n te lle c tu a l Functioning

L e w is asserts that the ALJ erred in determining that her borderline intellectual f u n c tio n in g is not a severe impairment. Specifically, she contends that the ALJ incorrectly d e ter m in e d that his finding that her borderline intellectual functioning is non-severe "is c o n sis te n t with the testimony provided by Dr. David Blair, Ph.D., an impartial psychological ex p ert who testified at the initial hearing on January 23, 2006." Lewis argues that Dr. Blair's te stim o n y indicates that her intellectual functioning is in the borderline range and that p s yc h o lo g ic a l testing indicated that her "performance was well below average" and "two s ta n d a rd deviations below the norm." (Doc. No. 16-5, Pl's Brief, pp. 8-9.) Lewis maintains th a t Dr. Blair's testimony supports Dr. Jacobs' finding that she suffers from borderline 7

in te lle c tu a l functioning. The severity step is a threshold inquiry which allows only "claims based on the most triv ia l impairment to be rejected." McDaniel v. Bowen, 800 F.2d 1026, 1031 (11 th Cir. 1986). In d e e d , a severe impairment is one that is more than "a slight abnormality or combination of slig h t abnormalities which would have no more than a minimal effect on an individual's a b ility to work." Bowen v. Yuckert, 482 U.S. 137, 154 n. 12 (1987) (citing with approval S o c ia l Security Ruling 85-28 at 37a). A physical or mental impairment is defined as "an impairment that results from a n a to m ic a l, physiological or psychological abnormalities which are demonstrable by m e d ic a lly acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §

1 3 8 2 c (a )(3 )(c ). The plaintiff has the "burden of showing that [her] impairments are `severe' w ith in the meaning of the Act." McDaniel, 800 F.2d at 1030-31. Once the plaintiff e sta b lis h e s that she suffers from a severe impairment, the ALJ is not entitled to ignore that e v id e n c e . On June 1, 2006, Dr. Jacobs conducted a mental health examination, including a d m in is te rin g the WAIS-III and MMPI-II. On the WAIS-III, Lewis obtained a verbal IQ of 7 4 , a performance IQ of 73, and a full-scale IQ of 71. (R. 405.) Dr. Jacobs assessed from L e w is ' MMPI-II scores that: (1) the L scale or validity scale was slightly above the mean at T 57; (2) the K scale which measures test-taking attitude was below the mean at T 39; (3) S c a le s 7 and 8 were elevated at T 82 and T 95 respectively, indicating a person with tenuous e m o tio n a l control; (4) Scale 1 was elevated at T 75, indicating she is very concerned about 8

h e r health; (5) Scale 2 was elevated at 74, signaling very significant depression; (6) Scale 3 w as elevated at T 79, implying that she tends to internalize her emotions making her more s u s c e p tib le to psychosomatic ailments, that she may magnify her symptoms in a bid for s ym p a th y, support, or credibility, but that "it does appear that Ms. Lewis' health problems a re taking a toll on her emotionally"; (7) the paranoia scale was at T 66, indicating she is s u s p ic io u s and mistrustful of others and prone to react defensively; (8) the mania scale was re la tiv e ly high at T 59, indicating a high level of energy, including nervous energy or a g ita tio n ; and (9) the social introversion scale was at T 64, indicating she is withdrawn so c ially. (R. 405.) Dr. Jacobs' diagnostic impression was major depression, recurrent, m o d e ra te ; generalized anxiety disorder; pain disorder associated with both psychological f a cto rs and general medical condition; rule out breathing related sleep disorder; and b o rd e rlin e intellectual functioning. (R. 406.) Dr. Jacobs conclude that Lewis was

m o d e ra te ly impaired with respect to her ability to respond appropriately to customers or other m e m b e r s of the general public, use judgment in detailed or complex work-related decisions, d e a l with changes in a routine work setting, understand, remember, and carry out detailed or c o m p le x instructions, and maintain attention, concentration, or pace for periods of at least tw o hours. D u rin g the hearing before the ALJ, the Commissioner's medical expert, Dr. C. David B la ir, testified that Dr. Jacobs' test results were difficult to interpret because "we don't have a n y of the supplemental scales for it" and "we don't have the best information in here." (R. 4 8 2 .) Dr. Blair also stated there were "some errors" in Dr. Jacobs' report and that the test 9

re su lts indicate that "[Lewis] also did fairly well in . . . the scales of the WAIS-III suggesting th a t her actual[] capability may be somewhat more ­ not somewhat more, more in at least the b o rd e rlin e range and I haven't seen it." (R. 483.) In addition, Dr. Blair testified that Lewis h a s "got some fairly decent capabilities, fairly uneven performance and in the absence of in f o rm a tio n about why that might be, if there's a neurological problem or some sort of thing ­ some such thing, we have to assume that there may have been some variable focus or a tte n tio n or effort on the testing. And I would not, in the absence of other information, I c o u ld n 't endorse this as indicating a low borderline intellectual functioning or certainly not n o rm a l." (R. 483.) B e c au s e Dr. Blair indicated that he could not endorse Dr. Jacobs' findings due to "a d is c re p a n cy between what the degree of dysfunction and what [he] feel[s] the dysfunction is ," the court disagrees with Lewis' characterization that Dr. Blair's testimony was consistent w ith Dr. Jacobs opinion that Lewis suffers from borderline intellectual functioning. The c o u rt does, however, recognize there are some inconsistencies in the mental health s p e c ia lis ts ' reports. For example, Dr. Hall's assessment that Lewis' intellectual functioning is "average" and Dr. Jacobs' opinion that her intellectual functioning is "borderline" are in c o n sis te n t. In addition, Dr. Blair's statement that "in the absence of other information, [he] c o u ld n 't endorse [Dr. Jacobs' findings] as indicating a low borderline intellectual functioning o r certainly not normal" is somewhat confusing and contradictory. (R. 483.) Nonetheless, th e ALJ's failure to reconcile these inconsistencies is harmless in this case. As previously d isc u ss e d , the mental health experts' opinions and other medical records indicate that Lewis 10

h a s no more than moderate impairments with respect to her intellectual functioning and other p s yc h o lo g ic a l conditions. (R. 407-408, 483-84, 487, 558.) As explained above, the ALJ a sk e d the vocational expert to consider the records about Lewis' intellectual ability and p ro p e rly posed a hypothetical question which included the limitations caused by her intellec tu a l functioning. This court therefore concludes that any error in the ALJ's

d e t e rm in a t io n that Lewis' intellectual functioning is not a severe impairment is harmless.

C.

The Onset Date

L e w is asserts that the ALJ erred in failing to obtain medical expert testimony to d e te rm in e whether her borderline intellectual functioning, diabetes, and resulting end organ d a m a g e were disabling prior to December 31, 1998. Specifically, Lewis argues that the ALJ fa iled to comply with Social Security Ruling (SSR) 83-20. The Commissioner, however, c o n te n d s that SSR 83-20 is not applicable because the ALJ found Lewis was not disabled. S S R 83-20 is inapplicable in this case because the Ruling addresses the circumstance w h e re in a plaintiff is found to be disabled and the onset date must be inferred. SSR 83-20 s ta te s that "[i]n addition to determining that an individual is disabled, the decision maker m u st also establish the onset date of disability. In many cases, the onset date is critical; it m a y affect the period for which the individual can be paid and may even be determinative o f whether the individual is entitled to or eligible for any benefits." The premise behind the ru lin g is that an ALJ found the claimant disabled. Blake v. Massanari, No. Civ. A. 00-0120A H -L , 2001 WL 530697, *10 (S.D. Ala. 2001). 11

I f the ALJ correctly determines that a person was not disabled p rio r to the expiration of their insured status and that decision is s u p p o rte d by substantial evidence and proper application of the law , and the Appeals Council review of that decision is proper, th e n there is no obligation on the part of the ALJ or the Appeals C o u n cil to infer a remote onset date of disability because there is no disability. Blake, supra. See also Dees v. Astrue, Civ. Act. No. 08-00667-KD-B, 2010 WL 419415, *3 (S .D . Ala. 2010). Although Lewis asserts that her borderline intellectual functioning, diabetes, and re su ltin g end organ damage were disabling prior to December 31, 1998, the medical records in d ic a te that Lewis' diabetes and its resulting symptoms were not disabling during the relev an t time period. The medical records indicate that on May 11, 1995, Lewis went to Dr. T im o th y Shaw, a general practitioner, with complaints of "arthritic" pain in her hips and k n e e s. (R. 152.) Dr. Shaw noted that Lewis was "off diet" and suffered from uncontrolled n o n -in s u lin dependent diabetes. (Id.) Lewis returned to Dr. Shaw's office the following day w ith complaints of feeling "a little woozy" and a rash under her right breast. (R. 151.) Dr. S h a w diagnosed Lewis as suffering from non-insulin dependent diabetes and a monilial rash. (Id .) Dr. Shaw prescribed Lamisil and Glucotrol and stressed that Lewis should watch her d ie t. (Id.) On May 16, 1995, Lewis returned to Dr. Shaw's office complaining of pain in her h ip s and knees and reporting that her rash had resolved. (Id.) Dr. Shaw continued to "really s tre ss diet." (Id.) On July 19, 1995, Dr. Shaw noted that Lewis was "upset and crying over s o m e th in g " that she refused to discuss and was regressively rocking. (Id.) Dr. Shaw d ia g n o se d Lewis as suffering from non-insulin dependent diabetes and prescribed Diazepam 12

a n d Glucotrol. (Id.) On September 28, 1995, Dr. Shaw noted that Lewis was "starting to ta k e diet seriously" and renewed her prescriptions for Diazepam and Glucotrol. (Id.) Lewis returned to Dr. Shaw's office on October 12, 1995, complaining of swelling a n d pain after dropping a wagon on her right foot. (R. 150.) During a follow-up visit on N o v e m b e r 29, 1995, Lewis indicated that she was suffering from shooting pain between the f o u rth and fifth toes on her right foot, "arthritic" pain running down both legs to her feet, and s tif f n e s s in her neck and joints in the morning. (Id.) Dr. Shaw diagnosed Lewis as suffering f ro m osteoarthritis. (Id.) L e w is returned to Dr. Shaw's office on April 24, 1996. (R. 150.) Dr. Shaw advised L e w is to lose weight, prescribed Motrin, and diagnosed Lewis as suffering from non-insulin d e p e n d e n t diabetes, osteoarthritis, and morbid obesity. (Id.) On May 8, 1996, Lewis went to Dr. Shaw's office with complaints of fullness, low back pain, and increased urination with d ys u r i a . (R. 149.) Dr. Shaw diagnosed Lewis as suffering from diabetes and cystitis, p re s c rib e d antibiotics and Glucotrol, and advised her to follow a diet. (Id.) Lewis returned to Dr. Shaw with complaints of urinary frequency with dysuria. (Id.) Dr. Shaw diagnosed L e w is as suffering from a urinary tract infection and uncontrolled non-insulin dependent d i a b e te s . (Id.) Dr. Lewis also emphasized that Lewis should follow a diet and prescribed A u g m e n tin . (Id.) On June 20, 1996, Dr. Shaw again diagnosed Lewis as suffering from a u rin a ry tract infection and diabetes, and advised her to lose weight. (Id.) On July 8, 1996, L e w is returned to Dr. Shaw's office with complaints of depression, as well as lumbar and lo w e r abdomen pain. (Id.) Dr. Shaw diagnosed Lewis as suffering from hemorrhagic 13

c ys titis , advised her to lose weight, and prescribed pain medication, an antibiotic, and G lu c o tro l. (Id.) On August 30, 1996, and September 4, 1996, Dr. Shaw diagnosed Lewis a s suffering from a perirectal abscess with cellulitis and prescribed Augmentin and Lorcet. (R . 148.) In April 1997, Lewis returned to Dr. Shaw with complaints of a scratchy throat. (Id.) D r. Shaw diagnosed Lewis as suffering from uncontrolled non-insulin dependent diabetes a n d a history of urinary tract infection and prescribed Glucotrol, Glucophage, and Claritin. (Id .) During an examination on July 15, 1997, Dr. Shaw noted that Lewis was a victim of " re p e a t domestic violence" and had suffered a contusion to her left leg. (Id.) Lewis also c o m p la in e d of being nervous and "depressed a lot." (Id.) At that time, Dr. Shaw renewed L e w is ' prescription for Glucotrol. (Id.) Although Dr. Shaw occasionally renewed Lewis' p re sc rip tio n s for Glucotrol and other medication, Lewis did not return to the general p ra c titio n e r for treatment until January 2001. (R. 147.) Pharmaceutical records indicate that L e w is was prescribed Glucotrol on a routine basis from April 1997 through December 1998, as well as after the expiration of the relevant time period. (R. 291-303.) In addition, Lewis received treatment from Dr. Ronald Agee, a podiatrist, for her c o m p la in ts of foot pain on several occasions between 1991 and 2004. (R. 194-233.) During th e relevant time period, Lewis visited Dr. Agee's office on two occasions. On September 1 8 , 1995, Lewis went to Dr. Agee's office complaining of left heel pain.4 Dr. Agee

The court notes that Lewis' previous visit to Dr. Agee was over three years earlier on January10, 1992. (R. 227.)

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a d m in is te re d an ultrasound of Xylocaine, Marcaine, as well as other topical treatments, and p re sc rib e d Dolobid. (R. 197.) Two days later, Lewis returned for a follow up visit reporting th a t her left heel "was doing better." (Id.) Lewis did not seek further treatment from Dr. A g e e until several years later. On January 20, 2003, Lewis began complaining of foot n u m b n e ss . (R. 220.) After conducting an examination, Dr. Agee diagnosed Lewis as s u f f e rin g from diabetic neuropathy and tarsal tunnel syndrome. (Id.) The medical records indicate that, during the relevant time period, Lewis sought tre a tm e n t from her treating physicians on a sporadic basis and was not fully compliant with h e r physician's advice to lose weight or follow a recommended diet. The medical records d e m o n s tra te that Lewis' diabetes and resulting symptoms were not disabling between the d a te of alleged onset, January 1, 1995 and the date Lewis was last insured, December 31, 1998. The court also concludes that substantial evidence supports the ALJ's determination th a t Lewis' intellectual functioning is not a severe impairment. I.Q. scores are not

n e c e s s a rily conclusive of borderline intellectual functioning. See Popp v. Heckler, 779 F.2d 1 4 9 7 , 1499-1500 (11 th Cir. 1986) (ALJ could disregard standardized I.Q. scores which were in c o n s is te n t with activities and behavior). "When determining how to give weight to an I.Q. s c o r e , it is appropriate to consider medical reports, daily activities, behavior, and other e v id e n c e in the record." Monroe v. Astrue, No. 4:09cv243-MP-WCS, 2010 WL 2872645, * 5 (N.D. Fla. July 20, 2010). As previously discussed, all of the consultative physicians' e v a l u atio n s and other medical experts' opinions indicate that Lewis has no more than 15

m o d e ra te impairments with respect to her intellectual functioning and other psychological c o n d itio n s . (R. 407-408, 483-84, 487, 558.) In addition, Lewis is a high school graduate and h e r past work was semi-skilled. Because the ALJ's determination that Lewis' intellectual functioning, diabetes, and re su ltin g symptoms were not disabling prior to December 31, 1998, is supported by s u b s t a n tia l evidence, the court concludes that SSR 83-20 is inapplicable as "there is no o b lig a tio n on the part of the ALJ or the Appeals Council to infer a remote onset date of d is a b ility because there is no disability." Blake, supra. Consequently, Lewis is not entitled to relief with respect to this claim.

D. The Vocational Expert L ew is asserts that the ALJ's determination that she is able to perform sedentary work a s a dispatcher, information clerk, or surveillance monitor is not supported by substantial e v id e n c e because the vocational expert misconstrued the Dictionary of Occupational Titles (" D O T " ) job descriptions. Specifically, she argues that the jobs of dispatcher and

in f o rm a tio n clerk are defined by the DOT as semi-skilled work. In addition, she asserts that th e vocational expert's testimony that an individual who has a moderate limitation in the a b ility to perform detailed or complex instructions could perform the three jobs is not c o n s is te n t with the DOT. The court concludes that Lewis is entitled to no relief on this basis. T h e Social Security Administration is not bound by the DOT. See Jones v. Apfel, 190 F.3d 1 2 2 4 , 1230 (11 th Cir. 1999) ("[T]he SSA itself does not consider the DOT dispositive."). The 16

E le v e n th Circuit has held that reliance on the DOT is strictly within the discretion of the ALJ a n d "an ALJ may rely solely on the VE's testimony." Id. Consequently, Lewis is entitled to no relief.

V. Conclusion A c c o rd in g ly, the court will enter a separate order affirming the decision of the C o m m i s s io n e r . D o n e this 30 th day of August, 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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