Breedlove v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the decision of the Commissioner is AFFIRMED and costs are taxed against claimant as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 2/10/2015. (AHI)

FILED
2015 Feb-10 PM 02:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JEANETTE
BREEDLOVE,

CHARLENE

Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 2:14-CV-1122-CLS

MEMORANDUM OPINION AND ORDER
Claimant, Jeanette Charlene Breedlove, commenced this action on June 12,
2014, pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse
decision of the Commissioner, affirming the decision of the Administrative Law
Judge (“ALJ”), and thereby denying her claim for a period of disability and disability
insurance benefits.

For the reasons stated herein, the court finds that the

Commissioner’s ruling is due to be affirmed.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253

(11th Cir. 1983).
Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant contends that she should have been found to be disabled under Listing
12.05C, addressing intellectual disability.
That Listing states as follows:
Intellectual disability. 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.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
....
C.
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. . . .
20 C.F.R. pt. 404, subpt. P, appx. 1, § 12.05 (listings) (italics in original, ellipses
supplied).1
1

Effective September 3, 2013, the Social Security
Administration replaced the term mental retardation with the term
intellectual disability as a listed impairment. Change in Terminology:
“Mental Retardation” to “Intellectual Disability,” 78 Fed. Reg.
46,499, 46,4501 (Aug. 1, 2013) (to be codified at 20 C.F.R. pt. 404,
subpt. P, app. 1). This change was made because “the term ‘mental
retardation’ has negative connotations,” and “has become offensive
to many people.” Id. at 46,499. But this change “d[id] not affect the
actual medical definition of the disorder or available programs or
2

The ALJ acknowledged that claimant received an IQ score of 64 when she was
in the fifth grade,2 and it cannot be denied that claimant has physical impairments that
impose significant work-related limitations of function. Indeed, the ALJ found that
claimant had the severe impairments of status post non-ST elevation myocardial
infarction, congestive heart failure, hypertension, asthma, gastroesophageal reflux
disease, arthraliga, and obesity,3 and she concluded that claimant retained the residual
functional capacity to perform only a reduced range of sedentary work.4
Even so, the ALJ found that claimant did not satisfy the remaining prefatory
criterion of the Listing, i.e., “deficits in adaptive functioning initially manifested
during the developmental period.”

That finding was based upon claimant’s

vocational background and adaptive functioning.
Specifically, the claimant completed 12 years of formal education. She
further possessed the intellectual capacity to comprehend and apply
concepts required by the State to earn certification for the nurse’s
assistance program. She also mastered the techniques necessary to earn
a State issued license to work as a hairstylist. The claimant’s jobs were
also determined by the Vocational Expert to be semi-skilled job[s] and
skilled jobs. The claimant has been able to work and raise four children
services.” Id. at 49,500.
Frame v. Commissioner, Social Security Administration, – F. App’x – , 2015 WL 150733, *2 n.2
(11th Cir. Jan. 13, 2015) (alteration in original). Thus, even though the ALJ’s decision was “issued
before the change took effect,” this court, like the Eleventh Circuit panel in Frame, will “follow the
agency’s new nomenclature.” Id. at *2 n.2.
2

Tr. 23.

3

Tr. 22.

4

Tr. 24.
3

. . . , and currently cares for 3 young grandchildren that are not yet in
school and sometimes up to 6 grandchildren ranging in ages 2 to 7. The
claimant also reported that she shops for food and household needs,
cooks, does housework, can take care of personal needs, and can pay
bills. She reported that she has some problems counting change and
reading . . . . This does not establish that the claimant has significant
subaverage general intellectual functioning as required by the
introductory paragraph of [Listing] 12.00. Because the claimant does
not meet the requirements of the introductory paragraph of [Listing]
12.00, the claimant cannot meet the requirements of the listing, even if
she did meet the requirements in paragraphs A, B, C, or D. Therefore,
the claimant does not meet the listing in 12.05.5
Claimant first argues that the ALJ should have conducted an additional
psychological consultative examination in order to determine claimant’s current IQ.
There would be no point in conducting such an examination, however, because,
despite acknowledging claimant’s IQ score of 64 from fifth grade, the ALJ
nonetheless found that claimant did not satisfy Listing 12.05C because she did not
meet the prefatory criterion of demonstrating deficits in adaptive functioning.
Claimant also challenges the substance of the ALJ’s finding that she did not
demonstrate sufficient deficits in adaptive functioning. Claimant points out that, even
though she did complete twelve years of formal education, she was in special
education classes. While claimant’s receipt of special education services certainly is
something to be considered, the Eleventh Circuit has decided, albeit in an
unpublished opinion, that a claimant who graduated from high school, but received
5

Tr. 23 (bracketed alterations and ellipses supplied, citations to the record omitted).
4

special education services, did not demonstrate sufficient deficits in adaptive
functioning to satisfy Listing 12.05C. See Hickel v. Commissioner of Social Security,
539 F. App’x 980, 984 (11th Cir. 2013). Thus, claimant’s receipt of special education
services, standing alone, does not demonstrate significant deficits in adaptive
functioning. Moreover, the record supports the remainder of the ALJ’s findings about
claimant’s adaptive functioning, and those findings were consistent with applicable
authority. See Garrett v. Astrue, 244 F. App’x 937, 939 (11th Cir. 2007) (holding
that the claimant’s ability to cook simple meals, perform household chores, build
model cars, attend church, watch television, play cards, and walk in the mall were
inconsistent with a finding of significant impairment of adaptive functioning); Outlaw
v. Barnhart, 197 F. App’x 825, 827 (11th Cir. 2006) (stating that the claimant’s “long
work history in semi-skilled positions and daily activities were inconsistent with his
adult IQ scores,” which were below 70); Humphries v. Barnhart, 183 F. App’x 887,
889 (11th Cir. 2006) (holding that substantial evidence supported the ALJ’s finding
that the claimant did not have deficits in adaptive functioning when she worked in a
school cafeteria for 21 years and served as the manager for about 15 years).
Based on the foregoing, the Commissioner’s finding that claimant is not
disabled was supported by substantial evidence and in accordance with applicable
law. Accordingly, the decision of the Commissioner is AFFIRMED. Costs are taxed

5

against claimant. The Clerk of Court is directed to close this file.
DONE this 10th day of February, 2015.

______________________________
United States District Judge

6