Knight v. Colvin

Filing 15

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 12/7/16. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JAMES T. KNIGHT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Civil Action No.: 2:15cv905-WC

MEMORANDUM OPINION
I.

INTRODUCTION
James T. Knight (“Plaintiff”) filed applications for a period of disability and disability

insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. § 401, et
seq., and for supplemental security income under Title XVI of the Act, 42 U.S.C. § 1381,
et seq., on February 23, 2011. The applications were denied at the initial administrative
level. Plaintiff then requested and received a hearing before an Administrative Law Judge
(“ALJ”). Following the hearing, the ALJ issued a decision finding that Plaintiff had not
been under a disability and denying Plaintiff’s applications. Subsequently, the Appeals
Council remanded the matter to the ALJ with instructions regarding additional fact finding.
A second hearing before the ALJ was held on April 30, 2014. Thereafter, the ALJ issued
a second decision finding that Plaintiff was not disabled from May 1, 2008, the alleged
onset of his disability, through the date of the decision. Plaintiff appealed that decision to

the Appeals Council, which rejected his request for review of the ALJ’s decision. The
ALJ’s decision consequently became the final decision of the Commissioner of Social
Security (“Commissioner”).1 See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
The case is now before the court for review under 42 U.S.C. § 405(g). Pursuant to 28
U.S.C. § 636(c), both parties have consented to the conduct of all proceedings and entry of
a final judgment by the undersigned United States Magistrate Judge. Pl.’s Consent to
Jurisdiction (Doc. 13); Def.’s Consent to Jurisdiction (Doc. 14). Based on the court’s
review of the record and the briefs of the parties, the court AFFIRMS the decision of the
Commissioner.
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to benefits when the person is

unable to
engage in 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 12 months.
42 U.S.C. § 423(d)(1)(A).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 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.

2

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

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(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of
Impairments]?
(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?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of “not
disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step Four. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step One through
Step Four. At Step Five, the burden shifts to the Commissioner, who must then show there
are a significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (“RFC”). Id. at 1238-39. The RFC is what the claimant is
still able to do despite the claimant’s impairments and is based on all relevant medical and
other evidence. Id. It may contain both exertional and nonexertional limitations. Id. at
1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and work

3

McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits. Supplemental security income cases arising under Title XVI of the Social Security Act
are appropriately cited as authority in Title II cases, and vice versa. See, e.g., Ware v. Schweiker, 651 F.2d
408, 412 (5th Cir. 1981); Smith v. Comm’r of Soc. Sec., 486 F. App’x 874, 876 n.* (11th Cir. 2012) (“The
definition of disability and the test used to determine whether a person has a disability is the same for claims
seeking disability insurance benefits or supplemental security income.”).

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experience to determine if there are jobs available in the national economy the claimant
can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational
Guidelines (“grids”)4 or call a vocational expert (“VE”). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available
to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s review of the Commissioner’s decision is a limited one. This court must
find the Commissioner’s decision conclusive if it is supported by substantial evidence. 42
U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial
evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence
as a reasonable person would accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971); see also Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (“Even if the evidence preponderates against the
Commissioner’s findings, [a reviewing court] must affirm if the decision reached is
supported by substantial evidence.”). A reviewing court may not look only to those parts
of the record which support the decision of the ALJ, but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on by the
ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).

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See 20 C.F.R. pt. 404 subpt. P, app. 2.
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[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings. . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied in
evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was forty-eight years old on the date of the alleged onset of disability, and

had completed his high school education. Tr. 36, 27, 52. Following the administrative
hearing, and employing the five-step process, the ALJ found at Step One that Plaintiff “has
not engaged in substantial gainful activity since May 1, 2008, the alleged onset date[.]” Tr.
19. At Step Two, the ALJ found that Plaintiff suffers from the severe impairment of “mild
mental retardation.” Tr. 19. In addition, the ALJ found non-severe impairments, including
“hypertension, seizures and eye problems (possible cataract onset/astigmatism/mild
hypertensive retinopathy)[.]” Tr. 19. At Step Three, the ALJ found that Plaintiff “does not
have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments[.]” Tr. 22-23. Next, the ALJ articulated Plaintiff’s
RFC as follows:
the claimant has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant can sit at
least four hours without interruption and a total of at least six hours over the
course of an eight-hour workday. The claimant can stand and/or walk at least
two hours without interruption and a total of at least six hours over the course
of an eight-hour workday. The claimant can frequently use his lower
extremities for pushing, pulling, and the operation of foot controls. The
claimant can frequently use his upper extremities for reaching overhead,
pushing and pulling. The claimant can frequently climb ramps and stairs.
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The claimant cannot climb ladders, ropes, poles, or scaffolds. The claimant
can frequently balance, stoop, kneel, and crouch. The claimant can
occasionally crawl. The claimant can frequently work in humidity, wetness,
and extreme temperatures. The claimant cannot work at unprotected heights.
The claimant can frequently work while exposed to vibration. The claimant
cannot operate motorized vehicles. The claimant cannot perform work
activity that requires his response to rapid and/or frequent multiple demands.
Changes in his work activity and/or work setting must be infrequent and
gradually introduced.
Tr. 26-27. Having consulted with a VE at the hearing, the ALJ concluded at Step Four that
Plaintiff is “capable of performing past relevant work as a Grinder Laborer. This work does
not require the performance of work-related activities precluded by the claimant’s residual
functional capacity[.]” Tr. 35. The ALJ next found that, alternatively, even if Plaintiff’s
RFC precluded him from performing past relevant work, based upon the testimony of the
VE, “there are other jobs that exist in significant numbers in the national economy that he
is also able to perform.” Tr. 36. The ALJ noted the following representative occupations:
“Packager,” “Janitor,” and “Store Laborer.” Tr. 37. Accordingly, at Step Five, the ALJ
determined that Plaintiff “has not been under a disability . . . from May 1, 2008, through
the date of this decision[.]” Tr. 37.
IV.

PLAINTIFF’S ARGUMENT
Plaintiff presents one claim in his “Statement of the Issue,” arguing that the ALJ

erred in not finding that the Plaintiff meets or equals Listings 12.05(C) and/or 12.05(D).”
Pl.’s Br. (Doc. 10) at 3.

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V.

DISCUSSION
Plaintiff argues that the ALJ erred in failing to find that he meets or equals Listing

12.05. Specifically, Plaintiff argues that he satisfies the requirements of both Listing
12.05(C) and 12.05(D):
The Plaintiff meets the first requirement of both Listings with a valid
full scale IQ of 65. . . .
Plaintiff meets the second requirement of the 12.05(C) Listing of
having additional impairments imposing additional and significant workrelated limitation of function. . . .
Plaintiff meets the second requirement of 12.05(D) by having marked
difficulties in maintaining concentration and pace as well as significant
difficulties in social functioning.
Pl.’s Br. (Doc. 10) at 5-6, 12.
Listing 12.05 covers the mental disorder now described as “Intellectual Disability.”5
While Plaintiff is correct that there is a full scale IQ score of 65 in the record, and that such
IQ score is relevant in assessing whether the requirements of Listings 12.05(C) and
12.05(D) are met or equaled, Plaintiff’s argument gives short shrift to his predicate
obligation to fully satisfy the introductory paragraph of Listing 12.05 before proceeding to
consider subsections C and D of the Listing. The introductory paragraph reads as follows:
“Intellectual disability 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.” Listing
12.05. Although Plaintiff’s IQ score, if credited as valid, creates a rebuttable presumption

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Effective September 2, 2013, the Social Security Administration replaced the term “mental
retardation” with “intellectual disability” in the Listing of Impairments.
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that he manifested deficits in adaptive functioning before the age of twenty-two, the IQ
score alone does not satisfy the diagnostic criteria of the introductory paragraph if the
Commissioner presents sufficient evidence to rebut the presumption of deficits in adaptive
functioning created by the IQ score. See e.g., Lowery v. Sullivan, 979 F.2d 835, 837 (11th
Cir. 1992) (citations omitted) (“Generally, a claimant meets the criteria for presumptive
disability under section 12.05(C) when the claimant presents a valid I.Q. score of 60 to 70
inclusive, and evidence of an additional mental or physical impairment that has more than
‘minimal effect’ on the claimant’s ability to perform basic work activities. This court,
however, has recognized that a valid I.Q. score need not be conclusive of [intellectual
disability] where the I.Q. score is inconsistent with other evidence in the record on the
claimant’s daily activities and behavior.”). In particular, the Commissioner may rebut the
presumption created by Plaintiff’s IQ score by presenting evidence of Plaintiff’s activities
of daily living. Hodges v. Barnhart, 276 F.3d 1265, 1269 (11th Cir. 2001).
Plaintiff first presented his argument about Listing 12.05(C) at the hearing before
the ALJ. See Tr. 87-90. Based upon the record before the ALJ, including Plaintiff’s
testimony at the hearing, the ALJ indicated that he was not “inclined” to find that Plaintiff
met or equaled Listing 12.05(C) due to the absence of deficits in adaptive functioning. Tr.
90. The ALJ’s written opinion expanded upon the basis for this finding:
Furthermore, the requirements of paragraph C are not met because the
claimant does not have significant deficits in adaptive functioning. The
record shows that the claimant received some special education classes while
in school. He has never married and has lived most, if not all, his life on his
parents’ property. He has never had a driver’s license or driven a car because
of epilepsy.
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On the other hand, the claimant completed 12[] years of school and graduated
on May 25, 1979. After high school, in 1980, he began working. He has
been employed most of his life with earnings above the substantial gainful
activity level. For nearly seventeen years, he worked for the same company.
From June 1988 to February 2005, he was employed at a fiberglass company
called Arrowhead Plastic Engineering, Inc. He was hired first as a janitor;
however, by 1990, he was promoted to a bow machine operator assistant and
used a rivet gun. This job, according to vocational expert testimony, is semiskilled (SVP 3) in complexity. In 2005 he was laid off. From 2006 to 2008,
he worked for Bath Builders, LLC, as a grinding laborer. This job, according
to vocational expert testimony, is unskilled work. When employed, the
claimant had a checking account. He kept track of his money in the bank
himself. No one helped him with this. He used the money in his account to
pay his bills. He paid bills by money orders, which he completed himself.
During the adjudicative period, the claimant has lived in a trailer alone. He
has taken care of his personal needs without assistance. He has needed no
reminders to take care of personal needs and grooming, to take medicines or
to go places. He has prepared his own meals. He has used a stove to cook
foods, such as eggs, grits, bacon and sausage. He has cleaned house, washed
clothes and hung them on the line to dry, and cut grass with a riding lawn
mower. He has taken care of pets. He has shopped for food and clothes. His
interests have included working puzzle books, reading the Bible, playing
cards, watching television, and writing friends. At the April 30, 2014,
disability hearing, he reported having had no problems getting along with coworkers or supervisors when he worked. He has maintained a close
relationship with his parents and has three friends whom he attends church
with twice a week.
Tr. 24 (citations omitted).
Neither Listing 12.05 nor the Social Security Regulations provide a definition of
precisely what is meant by “deficits in adaptive functioning.”

The Social Security

Administration’s Program Operations Manual System (“POMS”) imparts that adaptive
functioning refers “to the individual’s progress in acquiring mental, academic, social and
personal skills as compared with other unimpaired individuals of his/her same age.” Sec.
Sec. Admin., POMS, DI 24515.056(D)(2) (2012). Likewise, the Diagnostic and Statistical
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Manual of Mental Disorders (“DSM”) explains that adaptive functioning broadly “refer[s]
to how well a person meets community standards of personal independence and social
responsibility, in comparison to others of similar age and sociocultural background.”
American Psychological Association, DSM-V, p. 37. The Eleventh Circuit has favorably
cited both definitions in applying Listing 12.05. See, e.g., Schrader v. Acting Comm’r of
the Soc. Sec. Admin., 632 F. App’x 572, 576 (11th Cir. 2015); id. at n.3.
As the ALJ recounted, there is substantial evidence in the record that Plaintiff is
able to function independently and responsibly in accord with community standards. First,
Plaintiff testified that he worked from essentially 1980 until 2007 in jobs with two different
employers. See Tr. 58-59. The VE classified Plaintiff’s work for the majority of that time
as semi-skilled. Tr. 79. The fact that Plaintiff worked for nearly eighteen years, including
at the semi-skilled level, supports the ALJ’s determination that Plaintiff lacks deficits in
adaptive functioning. See, e.g., Hunt v. Soc. Sec. Admin., Comm’r, 631 F. App’x 813, 816
(11th Cir. 2015) (finding that the ALJ did not err in relying upon claimant’s twenty-sevenyear work history, without any evidence of receiving special accommodations, in
concluding that claimant’s IQ score did not establish sufficient deficits in adaptive
functioning). Moreover, when considered in combination with Plaintiff’s work history,
Plaintiff’s abilities to essentially live alone (Tr. 65-66), clean up after himself (Tr. 66), cook
his own meals (Tr. 66), do chores around his home and in the yard (Tr. 66, 289), look after
pets (Tr. 288), handle his finances and pay his bills (Tr. 64-65), shop for necessities (Tr.
65, 290), responsibly manage his medications (Tr. 68-69, 72-73), regularly attend church
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(Tr. 67), get along well with co-workers and supervisors (Tr. 67), and maintain friendships
in social settings (Tr. 66-67) were properly relied upon by the ALJ in concluding that
Plaintiff did not have requisite deficits in adaptive functioning for purposes of Listing
12.05. See, e.g., Prunty v. Acting Comm’r of Soc. Sec. Admin., 635 F. App’x 757, 759
(11th Cir. 2015) (finding substantial evidence supported ALJ’s decision that claimant
lacked deficits in adaptive functioning where record established claimant’s “abilities to
cook simple meals, do household chores, drive a car by herself, take care of a dog, babysit
children, and work part-time at McDonald’s”); Rodriguez v. Comm’r of Soc. Sec., 633 F.
App’x 770, 773-74 (11th Cir. 2015) (finding that the claimant’s activities of daily living,
including doing household chores, grocery shopping, attending church, driving, and work
history including jobs at the skilled and semi-skilled level provided substantial evidence to
support the ALJ’s determination that the claimant did not satisfy the diagnostic criteria of
Listing 12.05(C)); Schrader, 632 F. App’x at 577 (finding substantial evidence supporting
ALJ’s decision regarding lack of deficits in adaptive functioning where, although claimant
“attended special education classes, she graduated high school with a regular diploma,”
“was able to groom herself, cook simple meals, perform household chores, drive, watch
television, and babysit her nephews without any assistance from others[,]” and she “worked
part-time at the laundromat”); and Hickel v. Comm’r of Soc. Sec., 239 F. App’x 980, 984
(11th Cir. 2013) (finding substantial evidence supported ALJ’s decision that claimant
lacked deficits in adaptive functioning where evidence showed that, although claimant
participated in special education classes, “she is a high school graduate, she works part
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time at a nursery, she drives herself to work, she can prepare simple meals and dress and
groom herself, she attends church regularly, and she socializes with friends”).
To be sure, Plaintiff points to some evidence possibly suggesting deficits in adaptive
functioning, including that, while he can cook on the stove, Plaintiff does not know how to
operate the oven, does not drive, reads at a fifth grade level, and is easily confused. See
Pl.’s Br. (Doc. 10) at 10-11. Plaintiff also points to Dr. Estock’s assessment, in the Residual
Functional Capacity Assessment, that Plaintiff has difficulty with detailed or complex tasks
(Tr. 419), as well as the opinion of the consultative examiner, Dr. Kirkland, that Plaintiff
“has never developed independent living skills[,]” “has pervasive and chronic lifelong
deficits in communications skills and independent living skills[,]” and is “severely
constricted and restricted by mild mental retardation” (Tr. 369). However, as set forth
above, Plaintiff’s own testimony and functional reports support the ALJ’s findings with
respect to Plaintiff’s daily living activities. Furthermore, the record reflects that Plaintiff’s
lack of driving is not due to some mental incapacity for the task, but rather is because of
his physician’s advice based on a history of epilepsy. Tr. 290. Moreover, the ALJ provided
several reasons for discounting the opinion of Dr. Kirkland, including that Plaintiff’s
“reports and appearance at the evaluation [with Dr. Kirkland] are inconsistent with other
evidence in this case.” Tr. 25. As examples, the ALJ cited Dr. Kirkland’s erroneous
understanding of the duration and scope of Plaintiff’s work history, evidence refuting Dr.
Kirkland’s assessment of Plaintiff’s social adjustment and ability to manage his finances,
and the lack of any corroborating evidence in the record, and Plaintiff’s own contrary
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testimony, regarding Plaintiff’s purported poor hygiene and grooming. Tr. 25. At bottom,
while there is some evidence of Plaintiff’s difficulties due to his mental impairment, as set
forth above, there is undoubtedly substantial evidence—which, again, is only “more than
a scintilla, but less than a preponderance”—supporting the ALJ’s decision that Plaintiff
lacks the requisite deficits in adaptive functioning to meet the introductory paragraph of
Listing 12.05.6
Because the ALJ’s determination that Plaintiff lacks deficits in adaptive functioning,
as required by the introductory paragraph of Listing 12.05, is supported by substantial
evidence, the ALJ’s conclusion that Plaintiff’s mental impairment does not meet or equal
in severity Listing 12.05 is not erroneous, and the court need not proceed to consider
Plaintiff’s arguments about the ALJ’s application of subsections (C) and (D) of Listing
12.05. Plaintiff’s claim that the ALJ reversibly erred is without merit.

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The court is cognizant of the ambiguity created by the fact that the introductory paragraph of
Listing 12.05 requires “significantly subaverage general intellectual functioning with deficits in
adaptive functioning.” In other words, while the Listing calls for “significantly subaverage general
intellectual functioning,” it does not expressly require any specific level of severity with respect
to any deficits in adaptive functioning. Courts are grappling with the import of this ambiguity.
See, e.g., Hoyett v. Colvin, Civ. No. 3:15-cv-344-GMB, 2016 WL 4942009, at *5-*6 (Sept. 15,
2016). Plaintiff does not appear to challenge, as a distinct claim of error apart from the arguments
described herein, the ALJ’s finding that Plaintiff “does not have significant deficits in adaptive
functioning.” Tr. 24. Even if Plaintiff had, the court would still find such claim without merit.
First, in a recent unpublished opinion, the Eleventh Circuit appeared to endorse the proposition
that a claimant must demonstrate “significant” deficits in order to satisfy the Listing. See Hunt,
631 F. App’x at 816 (emphasis supplied) (“Substantial evidence supports a finding that Hunt
suffered no significant deficits—as required under the first part of Listing 12.05(C)—in adaptive
functioning.”). Second, the ALJ’s opinion makes clear that the ALJ simply did not find the
requisite deficits in adaptive functioning to satisfy Listing 12.05. As set forth herein, that decision
is supported by substantial evidence.
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VI.

CONCLUSION
For all of the reasons given above, the undersigned Magistrate Judge concludes that

the decision of the Commissioner is AFFIRMED. A separate judgment will issue.
Done this 7th day of December, 2016.

/s/ Wallace Capel, Jr.
UNITED STATES MAGISTRATE JUDGE

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