Borden v. Social Security Administration, Commissioner

Filing 11

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 12/12/2012. (AHI)

FILED
2012 Dec-12 PM 04:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
CALVIN BILLY BORDEN,
Claimant,
vs.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.

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Case No. CV-12-S-0643-NW

MEMORANDUM OPINION AND ORDER
Claimant Calvin Billy Borden commenced this action on February 24, 2012,
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 his claim for a period of disability, disability insurance, and
supplemental security income 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 the Appeals Council should have reversed the ALJ’s decision
after receiving additional evidence from Dr. James Crowder, a consultative
psychological examiner.
When a claimant submits new evidence to the AC [i.e., Appeals
Council], the district court must consider the entire record, including the
evidence submitted to the AC, to determine whether the denial of
benefits was erroneous. Ingram[v. Commissioner of Social Security
Administration], 496 F.3d [1253,] 1262 [(11th Cir. 2007)]. Remand is
appropriate when a district court fails to consider the record as a whole,
including evidence submitted for the first time to the AC, in determining
whether the Commissioner’s final decision is supported by substantial
evidence. Id. at 1266-67. The new evidence must relate back to the
time period on or before the date of the ALJ’s decision. 20 C.F.R. §
404.970(b).
Smith v. Astrue, 272 F. App’x 789, 802 (11th Cir. 2008).
Dr. Crowder examined claimant on March 16, 2010.1 The report of that
examination was submitted to the Appeals Council on April 7, 2010, approximately
two months after the ALJ’s February 11, 2010 administrative decision.2 The Appeals
Council considered Dr. Crowder’s report, but it found no reason to reverse the ALJ’s
decision. Consequently, the Appeals Council denied claimant’s request for review
1

Tr. 313-16.

2

See Tr. 7 (indicating that additional evidence was submitted on April 7, 2010), 13 (stating
the date of the ALJ’s decision).
2

on December 27, 2011.3
Dr. Crowder’s report stated that claimant had never been treated by a mental
health specialist in the past, and he had never taken any psychoactive medication.
Claimant was able to perform routine hygiene and grooming activities independently,
including preparing meals, although he has help with housework. He had a valid
driver’s license, but he had not driven in about six months because his foot was numb
and his knees and legs hurt. He could buy groceries when a neighbor accompanied
him to the store. Claimant possessed
basic communication and social skills that allow him to interact with
others so that his own needs can be met. Friends sometimes comes [sic]
by and they talk and drink coffee. A neighbor takes him to church. He
sees his daughter about every week; she comes to the mobile home or he
will call her on the telephone.4
Claimant was friendly and well-oriented as to person, place, and time. There was no
indication of a high level of anxiety, but claimant did appear depressed over his
finances and his physical condition. Claimant’s thought processes were coherent,
with no flight of ideas, loose associations, delusions, or hallucinations. Dr. Crowder
also administered achievement and intelligence testing. The achievement test
revealed that claimant was functioning in the marginal range. The intelligence testing
revealed a verbal IQ of 68, performance IQ of 70, and full-scale IQ of 66, which Dr.
3

Tr. 1.

4

Tr. 314.
3

Crowder believed to be valid. He noted that claimant had a history of semiskilled
work in the medium to heavy category of physical demands, and that he would have
transferable skills to other driving-operating occupations, as long as there were no
additional physical limitations. Dr. Crowder assessed claimant with “mild mental
retardation to borderline general intellectual ability,” and a GAF score of 65.5 He also
stated that claimant would have the judgment to manage any financial benefits
awarded to him.6
Claimant asserts that Dr. Crowder’s report should have caused the Appeals
Council to reverse the ALJ’s decision because the report demonstrates that he
satisfies the requirements of Listing 12.05C, addressing mental retardation, which
states as follows:
Mental Retardation. Mental retardation 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
5

Tr. 315.

6

Tr. 316.
4

and significant work-related limitation of function[. . . .]
20 C.F.R. pt. 404, subpt. P, appx. 1, § 12.05 (listings) (all italics in original).
The Commissioner does not dispute (nor could he) that claimant has IQ scores
between 60 and 70 and a physical impairment imposing an additional and significant
work-related limitation of function. Indeed, the ALJ found claimant to be limited to
the full range of sedentary work due to the severe limitations of degenerative disc
disease of the lumbar spine with congenital narrowing at the AP dimension, and
obesity.7 Even so, the Commissioner argues that claimant has failed to demonstrate
deficits in adaptive functioning initially manifested prior to age 22.
The Eleventh Circuit held in Hodges v. Barnhart, 276 F.3d 1265 (11th Cir.
2001), that, “absent evidence of sudden trauma that can cause retardation, the IQ tests
[revealing a score lower than 70] create a rebuttable presumption of a fairly constant
IQ throughout [the claimant’s] life.” Id. at 1268. Therefore, “a claimant need not
present evidence that she manifested deficits in adaptive functioning prior to the age
of twenty-two, when she presented evidence of low IQ test results after the age of
twenty-two.” Id. at 1266. Even so, the court (or the Commissioner during an
administrative proceeding) may consider “evidence of [claimant’s] daily life to rebut
this presumption of mental impairment.” Id. at 1269 (alteration supplied).
Based upon the Hodges decision, this court must presume that claimant’s IQ
7

Tr. 18-19.
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has remained the same over time, and that claimant therefore has experienced mental
impairment at the same level since before age 22. The Commissioner, however, has
presented evidence to rebut that presumption. Although claimant did not complete
high school, there are no records indicating that he was enrolled in special education
classes.8 Claimant also worked for almost thirty years in semi-skilled positions,
indicating that he did not have significant impairment of adaptive functioning.9 See
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). Moreover, claimant’s daily activities indicate a higher level of adaptive
functioning than would be expected from a mentally retarded individual. Claimant
testified during the administrative hearing that he lives by himself, is able to drive,
visits with friends, goes out to eat, attends church twice a week, and spends most of
his spare time reading his Bible.10 He also indicated on his Function Report that he

8

Tr. 39, 122.

9

Tr. 40-41, 118, 129-30, 152, 313.

10

Tr. 44-45.
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had no problem with personal care, prepared his own meals, did household chores
like cleaning and laundry without help, went outside daily, and shopped for groceries.
While he could not handle a savings account or use a checkbook due to limited
reading and writing skills, he could pay bills and count change.11 Dr. Crowder’s
report corroborates that claimant can take care of his personal hygiene and prepare
meals, and that he possesses “basic communication and social skills that allow him
to interact with others so that his own needs can be met.”12 Dr. Crowder even
acknowledged that, despite claimant’s low IQ test scores, he possessed skills that
would be transferable to other work if not precluded by physical limitations.13 Dr.
Crowder assessed claimant with an GAF score of 65, indicating only moderate
impairment. All of those facts are inconsistent with a finding of mental retardation.
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).
Based on the foregoing, even considering Dr. Crowder’s report, there is not
sufficient evidence in the record to support satisfaction of the mental retardation

11

Tr. 140-43.

12

Tr. 314.

13

Tr. 315.
7

listing. Therefore, the Commissioner’s finding that claimant is not disabled is
supported by substantial evidence and in accordance with applicable law. The
decision of the Commissioner is AFFIRMED. Costs are taxed against claimant. The
Clerk of Court is directed to close this file.
DONE this 12th day of December, 2012.

______________________________
United States District Judge

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