Tate v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 9/30/2015. (KEK)
2015 Sep-30 AM 09:41
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
Case Number: 2:14-cv-01610-JHE
MEMORANDUM OPINION 1
Plaintiff Christopher Tate (“Tate”) seeks review, pursuant to 42 U.S.C. § 405(g), § 205(g)
of the Social Security Act, of a final decision of the Commissioner of the Social Security
Administration (“Commissioner”), denying his application for Supplemental Security Income
(“SSI”). (Doc. 1). Tate timely pursued and exhausted his administrative remedies. This case is
therefore ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3). The undersigned has carefully
considered the record and, for the reasons stated below, the Commissioner’s decision is
I. Factual and Procedural History
Tate was a forty-two year old male at the time of the Administrative Law Judge’s
(“ALJ”) decision. (Tr. 132). Tate graduated high school and previously worked as a cook,
busboy, dishwasher, welder, construction laborer, and moving van helper/driver. (Tr. 43, 52, 60,
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 10).
Tate filed his application for SSI on December 14, 2010. (Tr. 132). The Commissioner
initially denied Tate’s application, and Tate requested a hearing before an ALJ. (Tr. 67, 70–72).
After the hearing, the ALJ denied Tate’s claim on December 21, 2012. (Tr. 21–31). Tate sought
review by the Appeals Council, but it declined his request on June 14, 2014. (Tr. 1–3). On that
date, the ALJ’s decision became the final decision of the Commissioner. On August 18, 2014,
Tate initiated this action. (See doc. 1–2).
II. Standard of Review 2
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
function of this Court is to determine whether the decision of the Commissioner is supported by
substantial evidence and whether proper legal standards were applied. Richardson v. Perales,
402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This Court
must “scrutinize the record as a whole to determine if the decision reached is reasonable and
supported by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983). Substantial evidence is “such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.”
This Court must uphold factual findings supported by substantial evidence. However, it
reviews the ALJ’s legal conclusions de novo because no presumption of validity attaches to the
ALJ’s determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528,
531 (11th Cir. 1993). If the court finds an error in the ALJ’s application of the law, or if the ALJ
In general, the legal standards applied are the same whether a claimant seeks DIB or
SSI. However, separate, parallel statutes and regulations exist for DIB and SSI claims.
Therefore, citations in this opinion should be considered to refer to the appropriate parallel
provision as context dictates. The same applies to citations for statutes or regulations found in
quoted court decisions.
fails to provide the court with sufficient reasoning for determining the proper legal analysis has
been conducted, it must reverse the ALJ’s decision. Cornelius v. Sullivan, 936 F.2d 1143, 114546 (11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for disability benefits and establish his or her entitlement for a period of
disability, a claimant must be disabled as defined by the Social Security Act and the Regulations
promulgated thereunder. 3 The Regulations define “disabled” as “the inability to do 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 twelve (12) months.” 20 C.F.R. § 404.1505(a). To
establish entitlement to disability benefits, a claimant must provide evidence of a “physical or
mental impairment” which “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic
techniques.” 20 C.F.R. § 404.1508.
The Regulations provide a five-step process for determining whether a claimant is
disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The Commissioner must determine in sequence:
whether the claimant is currently employed;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment listed
by the [Commissioner];
whether the claimant can perform his or her past work; and
whether the claimant is capable of performing any work in the national
Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993) (citing to the formerly applicable C.F.R.
section), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561, 562-63 (7th Cir. 1999);
The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
accord McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has
satisfied steps One and Two, she will automatically be found disabled if she suffers from a listed
impairment. If the claimant does not have a listed impairment but cannot perform her work, the
burden shifts to the [Commissioner] to show that the claimant can perform some other job.”
Pope, 998 F.2d at 477; accord Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The
Commissioner must further show such work exists in the national economy in significant
IV. Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
At Step One, the ALJ found that Tate did not engage in substantial gainful activity from
the alleged onset date of December 7, 2010. (Tr. 23). At Step Two, the ALJ found Tate has the
following severe impairments: asthma, hypertension, disorders of the back, obesity, osteoarthritis
of the knees, and organic mental disorder. (Id.). At Step Three, the ALJ found Tate does not have
an impairment or combination of impairments that meets or medically equals one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 24).
Before proceeding to Step Four, the ALJ determined Tate’s residual functioning capacity
(“RFC”), which is the most a claimant can do despite his impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined Tate has the RFC to perform sedentary work as defined in
20 C.F.R. 416.967(a), with specified limitations. (Tr. 26). He can never crawl or climb ladders,
ropes or scaffolds, and can only occasionally climb ramps or stairs. (Tr. 26). In addition, Tate
can only occasionally stoop, kneel, crouch, or balance. (Id.). Tate should also avoid concentrated
exposure to extreme cold, wetness, humidity, and irritants, and should avoid exposure to the use
of hazardous machinery, operational control of moving machinery, and unprotected heights.
(Id.). Tate is limited to the performance of simple, routine, and repetitive tasks in a work
environment where changes occur on no more than an occasional basis. (Id.).
At Step Four, the ALJ determined that Tate is unable to perform any past relevant work.
(Tr. 29). At Step Five, the ALJ determined, based on Tate’s age, education, work experience, and
RFC, jobs exist in significant numbers in the national economy that Tate could perform. (Tr. 30).
Therefore, the ALJ determined Tate has not been under a disability, as defined by the Social
Security Act, and denied Tate’s claim. (Tr. 30–31).
Although the court may only reverse a finding of the Commissioner if it is not supported
by substantial evidence or because improper legal standards were applied, “[t]his does not relieve
the court of its responsibility to scrutinize the record in its entirety to ascertain whether
substantial evidence supports each essential administrative finding.” Walden v. Schweiker, 672
F.2d 835, 838 (11th Cir. 1982) (citing Strickland v. Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)).
The court, however, “abstains from reweighing the evidence or substituting its own judgment for
that of the [Commissioner].” Id. (citation omitted).
Here, substantial evidence supports the ALJ’s determination that Tate failed to
demonstrate a disability. The ALJ applied the proper standards to reach the conclusions that
Tate’s low IQ score did not establish that he suffers from the severe impairment of mental
retardation in Step Two, and Tate does not meet Listing 12.05C because he does not suffer from
deficits in adaptive functioning.
Evaluation of Tate’s Severe Impairments
Tate contends that the ALJ erred when she did not find that his mental retardation
constituted a “severe impairment” and this determination was not supported by substantial
evidence. (Doc. 9 at 9–10). Substantial evidence is “such relevant evidence as the reasonable
mind might accept as adequate to support a conclusion.” Walden v. Schweiker, 672 F.2d 835, 838
(11th Cir. 1982). “The claimant  must bear the burden . . . at step two that he has a medically
severe impairment or combination of impairments.” Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987). In order to determine whether an impairment is severe, the Eleventh Circuit established
the “slight abnormality” test which defines the claimant’s burden of proof. Bridges v. Bowen,
815 F.2d 622, 625 (11th Cir. 1987). Under this standard, “an impairment can be considered as
not severe only if it is a slight abnormality which has such a minimal effect on the individual that
it would not be expected to interfere with the individual's ability to work, irrespective of age,
education, or work experience.” Id. (quoting Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.
1984)). Basic “work-related activities” include the ability to walk, sit, or stand; the ability to
understand and carry out simple instructions; the ability to respond appropriately to supervisors
and co-workers; whether the claimant has good use of judgment; and whether the claimant has
the capacity to see, hear, and speak. See 20 C.F.R. § 416.921(b). Thus, “the ‘severity’ of a
medically ascertained disability must be measured in terms of its effect upon ability to work, and
not simply in terms of deviation from purely medical standards of bodily perfection or
normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986).
The ALJ properly found that Tate’s mental disorder did not constitute a severe
impairment under the regulations, specifically because Tate failed to demonstrate that his alleged
mental retardation affected his ability to perform work-related tasks. There is little evidence in
the record related to Tate’s mental health other than his IQ scores and the State agency
physician’s finding of organic mental disorder. (Tr. 228, 357). Tate’s IQ score testing was
performed by a Birmingham Public Schools Special Education Examiner. (Tr. 228–32). As an
initial matter, the Commissioner argues the Birmingham Public Schools report did not come
from an “acceptable medical source” to adequately establish his low IQ as an impairment. (Doc.
13 at 5). However, this report is from an “acceptable medical source” under the listings. See 20
C.F.R. § 416.913(a)(2) (“Accepted medical sources are . . . [l]icensed or certified psychologists.
Included are school psychologists, or other licensed or certified individuals with other titles who
perform the same function as a school psychologist in a school setting, for purposes of
establishing intellectual disability, learning disabilities, and borderline intellectual functioning
only.”). This report concluded that Tate falls within the “educable retarded” range of intellectual
functioning, (Tr. 228–32), but nothing else in the record indicates that Tate has been diagnosed
with mental retardation by any treating, examining, or review physician.
Tate contends that he is mentally retarded because he “was in special education classes
throughout his time in school, has never held a driver’s license, and has had multiple jobs (never
holding one for longer than a few months) of an unskilled nature.” (Doc. 9 at 9). However, the
record indicates that Tate has worked for the majority of his adult life and is independent with
his daily activities. (Tr. 369). While there is conflict as to whether Tate previously held a driver’s
license, he reported to the State agency’s physician he let his driver’s license expire, presumably
because it was hard for him to “move [his] foot from the gas to the brake pedal” and that it was
difficult for him to sit up straight to drive after he was injured. (Tr. 223, 369). In fact, Tate
previously worked as a moving van driver and helper, which is categorized as a “semi-skilled”
position (Tr. 60, 212, 369). Prior semi-skilled work experience is inconsistent with a claimant
suffering from mental retardation. See Outlaw v. Barnhart, 197 Fed. Appx. 825, 827 n.1 (11th
Additionally, in a Function Report completed in January 2011, Tate’s responses
demonstrate that he does not struggle with performing work-related tasks. He reported that he
does not have difficultly with things such as memory, completing tasks, or understanding and
following instructions. (Tr. 225). He also reported that he gets along well with authority figures
and handles stress well. (Id.) He denied needing help with personal grooming, taking medication,
or being reminded to go places. (Tr. 222, 224). Furthermore, Tate reported that also he prepares
simple food, can handle a savings account, count change, and use a checkbook. (Tr. 222–23). At
the hearing, Tate testified that he does most of the cooking at his house, helps with the household
cleaning, does his own laundry, and enjoys reading books about cars. (Tr. 55–57).
Considering Tate’s IQ scores in combination with his previous work history and daily
function, the record as a whole suggests that Tate’s mental disorder caused only moderate
limitations, at most. Tate’s extensive work history, no prior diagnosis of mental retardation, and
no reported difficulties caused by his mental disorder that affect his ability to carry out workrelated activities support the ALJ’s determination this impairment and related symptoms fall
within the meaning of a “slight impairment,” and does not constitute a severe impairment at Step
Two of the sequential evaluation.
Despite this, any error in failing to find that Tate’s mental retardation constituted a severe
impairment is harmless because the ALJ found in Tate’s favor at Step Two and continued with
the sequential evaluation. “The finding of any severe impairment, based on either a single
impairment or a combination of impairments, is enough to satisfy step two because once the ALJ
proceeds beyond step two, he is required to consider the claimant's entire medical condition,
including impairments the ALJ determined were not severe.” Burgin v. Comm’r of Soc. Sec., 420
F. App’x 901, 902 (11th Cir. 2011) (citing Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir.
1987)). Here, the ALJ found severe impairments and moved on to Step Three, where he then
considered Tate’s mental condition in his decision. (Tr. 23–26). “Nothing requires that the ALJ
must identify, at step two, all of the impairments that should be considered severe. Instead, at
step three, the ALJ is required to demonstrate that it has considered all of the claimant’s
impairments, whether severe or not, in combination.” Heatly v. Comm'r of Soc. Sec., 382 F.
App'x 823, 825 (11th Cir. 2010).
The record indicates that the ALJ considered all of Tate’s impairments, both severe and
non-severe, in combination, during Step Three, despite the fact that he did not find that Tate’s
mental retardation qualified as a severe impairment. (Tr. 24–26). The ALJ discussed in detail
Tate’s medical history, testimony, complaints of pain, and limitations due to his ailments. (Id.)
Therefore, this claim would not require reversal because the record does not support Tate’s
assertion that his mental disorder qualifies as a severe impairment. Even if the record indicated
that Tate’s mental retardation was severe, this error was harmless because the ALJ found at least
one severe impairment, continued the sequential analysis, and considered all of Tate’s
impairments to determine his residual functioning capacity. (Tr. 23–26). Thus, the ALJ’s
determination that Tate’s mental retardation does not constitute a severe impairment is consistent
with the applicable legal standards and is supported by substantial evidence.
The ALJ’s Finding That Tate Did Not Meet Listing 12.05C is Supported by
Tate also argues the ALJ erred when he determined Tate did not meet Listing 12.05C of
the Regulations. (Doc. 9 at 7–8). Listing 12.05 states, in pertinent part:
12.05 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, App. 1, § 12.05C.
To satisfy this listing, a claimant must show his impairment meets both the criteria listed
in the introductory paragraph and the criteria in subsection C. See 20 C.F.R. § Pt. 404, Subpt. P,
App. 1, §§ 12.00A, 12.05C (“If your impairment satisfies the diagnostic description in the
introductory paragraph and any one of the four sets of criteria, [the Commissioner] will find that
your impairment meets the listing.”). In other words, to meet Listing 12.05C, “there must be a
showing of (1) deficits in adaptive functioning; (2) a qualifying IQ score; (3) onset before age
22; and (4) the requisite deficits in work-related functioning.” Wigfall v. Colvin, WL 7405466 at
*3 (S.D. Ga. Dec. 30, 2014).
There is “a rebuttable presumption that a claimant manifested deficits in adaptive
functioning before the age of 22 if the claimant established a valid IQ score between 60–70.”
Grant v. Astrue, 255 F. App'x 374, 375 (11th Cir. 2007) (citing Hodges v. Barnhart, 276 F.3d
1265, 1268–69 (11th Cir. 2001)). However, evidence of the claimant’s daily life can be presented
to “rebut this presumption of mental impairment.” Id. (citing Hodges, 276 F.3d at 1268–69).
Thus, the ALJ is not required to find that a claimant is mentally retarded based on a valid IQ
score, rather “[t]he ALJ is required to examine the results in conjunction with other medical
evidence and the claimant’s daily activities and behavior.” Popp v. Heckler, 779 F.2d 1497, 1500
(11th Cir. 1986). To meet the criteria in 12.05C, a claimant must not only have a qualifying and
valid IQ score, but he must also be able to satisfy the introductory paragraph of the listing, which
looks for “deficits in adaptive functioning.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, §§ 12.00A.
See also Popp, 779 F.2d at 1499.
The ALJ’s determination that Tate did not meet listing 12.05C due to his lack of
demonstrated deficits in adaptive functioning is supported by substantial evidence. In reviewing
Tate’s impairments and whether he met the criteria in Listing 12.05C, the ALJ stated the
The undersigned also considered whether the claimant met listing 12.05. To
satisfy listing 12.05, the evidence must demonstrate that the claimant’s
intellectual impairment satisfied the diagnostic description in the introductory
paragraph of listing 12.05 and any one of the four sets of severity requirements . .
. . While the claimant produced a FSIQ of sixty-four, there were few records
suggesting that he had considerable adaptive deficits either during the initial
manifestation period or throughout his adult life . . . . The undersigned reviewed
the other records and noted that none of the claimant’s treatment providers
suggested that he had any particular deficits in adaptive functioning or that he
required any assistance or special care . . . . Overall, the combination of this
evidence strongly supports the conclusion that the claimant did not have
significant adaptive deficits within the meaning of listing 12.05, and therefore, did
not meet [or] equal listing 12.05.
Tate argues the ALJ failed to adequately assess his IQ score, (Doc. 9 at 6), but this is
inapposite to the ALJ’s finding that Tate did not meet Listing 12.05C because the ALJ’s
determination was based on Tate’s adaptive functioning, rather than the validity of the score
itself. (Tr. 25–26). “A valid IQ score does not have to be conclusive of mental retardation where
the IQ score is inconsistent with other record evidence regarding the claimant's daily living
activities and behavior.” Perkins v. Comm'r, Soc. Sec. Admin., 553 F. App'x 870, 873 (11th Cir.
2014). Here, the ALJ found that Tate produced a valid IQ score of 64, however “there were few
records suggesting he had considerable adaptive deficits.” (Tr. 25). In the listing, “adaptive
activities” and activities for daily living include “cleaning, shopping, cooking, taking public
transportation, paying bills, maintaining a residence, caring appropriately for your grooming and
hygiene, using telephones and directories, and using a post office.” 20 C.F.R. pt. 404, subpt. P,
app. 1 § 12.00C(1).
Although Tate presented a valid IQ score, the ALJ concluded that his work history,
education, and daily activities were not consistent with an actual deficit in his adaptive
functioning. A qualifying IQ score is merely one requirement that must be satisfied, because
claimants do not meet Listing 12.05 without first demonstrating that he or she suffers from
deficits in adaptive functioning. See Garrett v. Astrue, 244 Fed. Appx. 937, 939 (11th Cir. 2007)
(finding that despite a valid IQ score, the claimant demonstrated no deficits in adaptive
functioning because he was able to cook simple meals; perform chores such as dishwashing; he
could build model cars, attend church, watch television, and play cards; and believed he could
return to unskilled work “with orientation and instruction”); Davis v. Astrue, 2008 WL 2939523
*3 (M.D. Ala. Jul. 25, 2008) (finding the claimant did not meet the criteria in 12.05C because
she completed the twelfth grade; was able to read, write, and perform simple math; was engaged
during the questioning at the hearing and was able to follow the questions; she held a driver’s
license; and she performed past semi-skilled employment).
Similarly, the record supports the ALJ’s finding that Tate did not suffer from limitations
in adaptive functioning despite his low IQ score. Tate was never diagnosed with mental
retardation, rather he was found to fall within the “educable retarded” range of intellectual
functioning. (Tr. 228–32). Furthermore, the reviewing physician found that Tate was “mostly
impacted by physical symptoms.” (Tr. 369). Tate did not make any “mental health related
allegations” during his examination, and Tate has been able to work and independently perform
activities of daily living. (Tr. 369). Tate further reported to the reviewing physician he formerly
held a driver’s license, despite his argument he has never held a driver’s license. (Tr. 369; doc. 9
at 6). Additionally, Tate reported that he is able to prepare simple meals, can follow written and
spoken instructions, can handle stress and change, and goes shopping. (Tr. 369). Tate did state
that he has trouble with others to the extent that “they don’t understand [him] and [his] injury,”
and he struggles with concentration from time to time due to pain. (Tr. 369). However, there is
no indication in the record these symptoms are related to his intellectual functioning, as opposed
to just being symptoms of his physical limitations. (Tr. 369).
Furthermore, in Tate’s Function Report, he overwhelmingly reported that he suffers from
physical limitations rather than limitations associated with his low IQ score. Before his injuries,
he reported that he enjoyed running, working, playing with his children, washing his clothing,
working on cars, riding horses, and riding motorcycles. (Tr. 221). He denied needing help with
personal grooming, taking medication, or being reminded to go places. (Tr. 222, 224). Tate does
not need assistance or reminders with his dressing, bathing, shaving, hair care, using the toilet, or
feeding himself (absent some help he needs in order to dress, bathe, and use the toilet due to his
physical limitations). (Tr. 221). His hobbies and interests include horseback riding, swimming,
basketball, watching TV, playing sports, and coaching football. (Tr. 224). He also reported that
he has phone conversations “every now and then,” and used to attend family functions, go to
social events, and ride motorcycles with “the guys” before he was injured. (Tr. 224–25). He also
reported that he prepares simple food, can handle a savings account, count change, and use a
checkbook. (Tr. 222–23).
At the hearing, the ALJ noted that Tate “was articulate, able to answer questions without
hesitation, and did not appear to have significant issues understanding the issues discussed.” (Tr.
25). Contrary to Tate’s argument that the ALJ’s “speculation does not necessarily suggest a
higher level of intellectual functioning,” the ALJ properly weighed this evidence, along with
other evidence in the record, to make his determination. (Doc. 9 at 7; tr. 25–27). “The ALJ is not
prohibited ‘from considering the claimant’s appearance and demeanor during the hearing.’”
Macia v. Bowen, 829 F.2d 1009, 1011 (11th Cir. 1987) (quoting Norris v. Heckler, 760 F.2d
1154, 1158 (11th Cir. 1985)). Tate was able to answer the ALJ’s questions, and he testified he
does most of the cooking at his house, helps with the household cleaning, does his own laundry,
and enjoys reading books about cars. (Tr. 55–57). He also his discussed hobbies and interests,
such as football games and car racing, but stated that he can no longer participate in these
activities due to his physical injuries. (Tr. 56–57).
Based on the record as a whole, Tate has not demonstrated that he meets the criteria in
Listing 12.05C. While he has a valid IQ as required by the listing, Tate failed to show he suffers
from deficits in adaptive functioning. As a result, the ALJ properly determined that Tate’s IQ
score was inconsistent with his work experience, activities, and daily functioning.
For the reasons set forth herein, and upon careful consideration of the administrative
record and memoranda of the parties, the decision of the Commissioner of Social Security
denying Tate’s claim for a period of disability and disability benefits is AFFIRMED and this
action DISMISSED WITH PREJUDICE.
DONE this 30th day of September 2015.
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE
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