Shadwrick v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 9/10/15. (SMH)
2015 Sep-10 PM 04:34
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CASE NO. 4:14-CV-1371-SLB
Plaintiff Jonathan Shadwrick brings this action pursuant to 42 U.S.C. § 405(g)1,
seeking review of the Commissioner of Social Security’s final decision denying his
application for supplemental security income [“SSI”]. Upon review of the record and the
relevant law, the court is of the opinion that the Commissioner’s decision is due to be
I. PROCEDURAL HISTORY
Mr. Shadwrick filed an application for SSI on July 14, 2011, alleging disability
beginning on July 7, 2011. (Doc. 8-6 at R.132.)2 His application was initially denied on
The judicial review provisions for claims for disability insurance benefits, 42 U.S.C.
§ 405(g), apply to claims for SSI, see 42 U.S.C. § 1383(c)(3).
Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record. References to page numbers [“R.____”] refers
to the page number of the record from the Social Security Administration.
October 7, 2011. (Doc. 8-3 at R.25; doc. 8-5 at 77-79.) Thereafter, he requested a hearing
before an Administrative Law Judge [“ALJ”], which was held on November 7, 2012, in
Birmingham, Alabama. (Doc. 8-3 at R.25, R.38; doc. 8-5 at 84-85.) After the hearing, the
ALJ found that Mr. Shadwrick was unable to perform his past relevant work, but he was
capable of performing other jobs that exist in significant numbers in the national economy.
(Doc. 8-3 at R.32.) Therefore, the ALJ found, “The claimant has not been under a disability,
as defined in the Social Security Act, since July 8, 2011, the date the application was filed.”3
(Id. at R.33.) In light of these findings, the ALJ found that Mr. Shadwrick was not disabled
and denied his request for SSI on December 18, 2012. (Id.)
Mr. Shadwrick then requested review of the ALJ’s decision by the Appeals Council.
(Id. at R.1.) The Appeals Council “found no reason under [its] rules to review the
Administrative Law Judge’s decision. Therefore, [it] denied [Mr. Shadwrick’s] request for
Following denial of review by the Appeals Council, Mr. Shadwrick filed an appeal
in this court. (See generally doc. 1.)
II. STANDARD OF REVIEW
In reviewing claims brought under the Social Security Act, this court’s role is a
narrow one: “Our review of the Commissioner’s decision is limited to an inquiry into
The court notes that Mr. Shadwrick applied for SSI benefits on July 14, 2011, and
alleged an onset date of July 7, 2011. (Doc. 8-6 at 132.)
whether there is substantial evidence to support the findings of the Commissioner, and
whether the correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002); see also Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988). The court
gives deference to factual findings and reviews questions of law de novo. Cornelius v.
Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). The court “may not decide the facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner], rather [it]
must scrutinize the record as a whole to determine if the decision reached is reasonable and
supported by substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cor.
1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.1983)) (internal
quotations and other citation omitted). “The Commissioner’s factual findings are conclusive
if supported by substantial evidence.” Wilson, 284 F.3d at 1221 (citing Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990); Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987)).
“Substantial evidence” is “more than a scintilla and is such relevant evidence as a reasonable
person would accept as adequate to support a conclusion.” Winschel v. Commissioner of
Social Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotations and citations omitted).
Conclusions of law made by the Commissioner are reviewed de novo. Cornelius, 936
F.2d at 1145. “No . . . presumption of validity attaches to the [Commissioner’s] conclusions
of law.” Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1982).
A. THE FIVE-STEP EVALUATION
The regulations require the Commissioner to follow a five-step sequential evaluation
to determine whether a claimant is eligible for SSI. See 20 C.F.R.§ 416.920(a)(1)-(2); see
also Bowen v. City of New York, 476 U.S. 467, 470 (1986). “The term ‘disability’ means –
(A) [the] inability 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); see also 42 U.S.C. § 416(i)(1). The specific steps in the
evaluation process are as follows:
1. Substantial Gainful Employment
First, the Commissioner must determine whether the claimant is engaged in
“substantial gainful activity.” Bowen v. Yuckert, 482 U.S. 137, 137 (1987). The regulations
define “substantial gainful activity” as “work activity that is both substantial and gainful.”4
The regulations state:
(a) Substantial work activity. Substantial work activity is work activity that
involves doing significant physical or mental activities. Your work may be
substantial even if it is done on a part-time basis or if you do less, get paid less,
or have less responsibility than when you worked before.
(b) Gainful work activity. Gainful work activity is work activity that you do
for pay or profit. Work activity is gainful if it is the kind of work usually done
for pay or profit, whether or not a profit is realized.
20 C.F.R. § 416.972. If the claimant is working and that work is substantial gainful activity,
the Commissioner will find that the claimant is not disabled, regardless of the claimant’s
medical condition or his age, education, and work experience. 20 C.F.R. § 416.920(b).
“Under the first step, the claimant has the burden to show that [he] is not currently engaged
in substantial gainful activity.” Reynolds-Buckley v. Commissioner of Social Sec., 457 Fed.
Appx. 862, 863 (11th Cir. 2012).5
The ALJ found that Mr. Shadwrick had not engaged in substantial gainful activity
since July 8, 2011. (Doc. 8-3 at R.27.)
2. Severe Impairments
If the claimant is not engaged in substantial gainful activity, the Commissioner must
next determine whether the claimant suffers from a severe impairment or combination of
impairments that significantly limits the claimant’s physical or mental ability to do basic
work activities. 20 C.F.R. § 416.920(a)(4)(ii), (c). “[A] ‘physical or mental impairment’ is
an impairment that results from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic
(c) Some other activities. Generally, we do not consider activities like taking
care of yourself, household tasks, hobbies, therapy, school attendance, club
activities, or social programs to be substantial gainful activity.
20 C.F.R. § 416.972.
Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
techniques.” 42 U.S.C. § 1382c(a)(3)(D). The regulations provide: “[I]f you do not have any
impairment or combination of impairments which significantly limits your physical or mental
ability to do basic work activities, we will find that you do not have a severe impairment and
are, therefore, not disabled. We will not consider your age, education, and work experience.”
20 C.F.R. § 416.920(c). “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.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984); see also 20 C.F.R. §
416.921(a). A claimant may be found disabled based on a combination of impairments even
though none of the individual impairments alone are disabling. Walker v. Brown, 826 F.2d
996, 1001 (11th Cir. 1985); see also 20 C.F.R. § 416.923. A claimant has the burden to show
that she has a severe impairment or combination of impairments. Reynolds-Buckley, 457
Fed. Appx. at 863.
The ALJ found that Mr. Shadwrick “has the following severe impairments: lumbar
degenerative disc disease, chronic obstructive pulmonary disease [“COPD”], pancreatitis,
depressive disorder with anxiety, panic attacks, alcoholism, polysubstance abuse, and
borderline intellectual functioning.” (Doc. 8-3 at R.27.)
3. The Listings
If the claimant has a severe impairment, the Commissioner must then determine
whether the claimant’s impairment meets the durational requirement and whether it is
equivalent to any one of the listed impairments, which are impairments that are so severe as
to prevent an individual with the described impairment from performing substantial gainful
activity. 20 C.F.R. § 416.920(a)(4)(iii), (d)-(e); see 20 C.F.R. pt. 404, Subpart P, Appendix
1 [The Listings]. If the claimant’s impairment meets or equals a Listing, the Commissioner
must find the claimant disabled, regardless of his age, education, and work experience. 20
C.F.R. § 416.920(d). The claimant has the burden of proving that his impairment meets or
equals the criteria contained in one of the Listings. Reynolds-Buckley, 457 Fed. Appx. at
The ALJ found that Mr. Shadwrick “does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. (20 C.F.R. 416.920(d), 416.925 and 416.926).”
(Doc. 8-3 at R.27.)
4. Residual Functional Capacity and Past Relevant Work
If the impairment does not meet or equal the criteria of a Listing, the claimant must
prove that his impairment prevents him from performing his past relevant work. See 20 C.F.
R. § 416.920(a)(4)(iv), (f). At step four, the Commissioner “will first compare [her]
assessment of [the claimant’s] residual functional capacity [“RFC”] with the physical and
mental demands of [the claimant’s] past relevant work. 20 C.F.R. § 416.960(b). “Past
relevant work is work that [the claimant has] done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for [him] to learn to do it. 20 C.F.R.
§ 416.960(b)(1). If the claimant is capable of performing his past relevant work, the
Commissioner will find he is not disabled. 20 C.F.R. § 416.920(e). The claimant bears the
burden of establishing that the impairment prevents him from performing past work.
Reynolds-Buckley, 457 Fed. Appx. at 863.
The ALJ found:
the claimant has the residual functional capacity to perform light work as
defined in 20 C.F.R. 416.967(b) except that he can frequently climb ramps or
stairs, balance[,] stoop, kneel, crouch and crawl. He would be precluded
entirely from climbing ladders, ropes or scaffolds. He can sustain no more
than occasional exposure to extreme cold or heat and wetness or humidity. He
can also sustain no more than occasional exposure to irritants such as fumes,
odors, gases or chemicals. He should avoid all exposure to hazardous moving
machinery and unprotected heights. He should be limited to that work which
requires no more than the understanding, remembering and carrying out of
simple, but not complex or detailed[,] instructions. The individual can perform
these tasks for 2 hour periods and with normal breaks, to complete an 8 hour
workday. He should be subjected to no more than occasional changes in the
workplace that are simple, gradually introduced and well-explained. His
interaction with the public should be on an occasional basis. There should be
no reading or writing required. Tasks on the job must be able to be
demonstrated in order to be taught and learned.
(Doc. 8-3 at R.30.) Based on this RFC, the ALJ found that Mr. Shadwrick is unable to
perform his past relevant work. (Id. at R.32.)
5. Other Work in the National Economy
If the claimant establishes that he is unable to perform his past relevant work, the
Commissioner must show that the claimant – in light of his RFC, age, education, and work
experience – is capable of performing other work that exists in substantial numbers in the
national economy. Reynolds-Buckley, 457 Fed. Appx. at 863; see also 20 C.F.R. §
416.920(c)(1). The regulations provide:
If we find that your residual functional capacity is not enough to enable
you to do any of your past relevant work, we will use the same residual
functional capacity assessment we used to decide if you could do your past
relevant work when we decide if you can adjust to any other work. We will
look at your ability to adjust to other work by considering your residual
functional capacity and your vocational factors of age, education, and work
experience. Any other work (jobs) that you can adjust to must exist in
significant numbers in the national economy (either in the region where you
live or in several regions in the country).
20 C.F.R. § 416.960(c)(1).
Because the ALJ found Mr. Shadwrick could not perform a full range of light work,
he consulted a Vocational Expert [VE] to determine “whether jobs exist in the national
economy for an individual with the claimant’s age, education, work experience, and residual
functional capacity.” (Doc. 8-3 at 33.) The VE testified that an individual with Mr.
Shadwrick’s limitations and vocational factors could perform the requirements of certain
light, unskilled occupations, including inserter, hand bander, and sorter. (Id.) Based on this
testimony, the ALJ found Mr. Shadwrick “is capable of making a successful adjustment to
other work that exists in significant numbers in the national economy [and a] finding of ‘not
disabled’ is therefore appropriate under the framework of the above-cited rules.” (Id.)
B. MR. SHADWRICK’S CLAIMS
Mr. Shadwrick alleges the following errors in the ALJ’s decision:
1. Claimant Meets Listing 12.04
2. Claimant Meets Listing 12.05C
3. The Appeals Council Failed to Remand
4. The ALJ Failed to Consider All Claimant’s Severe Impairments
5. The ALJ Improperly Rejected the Opinion of Dr. Wilson, the Consultative
Examiner, and Substituted His Own Opinion
6. The ALJ Failed to Consider Claimant’s Combination of Impairments in
7. The ALJ Failed to State Adequate Reasons for Finding Claimant Not
8. The ALJ Decision was Not Based on Substantial Evidence
9. The Finding that Claimant has the Residual Functional Capacity to Perform
Light Work is Not Supported by Substantial Evidence
(Doc. 11 at 3.)
For the reasons set forth below, the court finds that the Commissioner’s decision is
due to be affirmed.
1. Appeals Council
Mr. Shadwrick contends that the Appeals Council erred in failing to remand his case
based on new evidence.6 (Doc. 11 at 27-29.) Specifically he contends that this case is due
In this section of his Memorandum, Mr. Shadwrick does not identify the new
evidence or otherwise explain why this unidentified evidence would have made a difference.
Indeed, he contends:
Importantly, all submissions describe physical and psychological symptoms
manifested by Howard that, due to their nature and severity, could bear on her
condition during the relevant period between 7/1/05 the alleged onset date and
to be remanded because the Appeals Council did not show that it had adequately evaluated
his new evidence. (Doc. 11 at 28 [citing Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir.
The Eleventh Circuit has held that “nothing in . . . Epps . . . requires the Appeals
Council to provide a detailed discussion of a claimant’s new evidence when denying a
request for review.” Mitchell v. Commissioner, Social Sec. Admin., 771 F.3d 780, 784 (11th
Cir. 2014). In this case, the Appeals Council denied Mr. Shadwrick’s request for review
because it “found no reason under [its] rules to review the [ALJ’s] decision.” (Doc. 8-3 at
R.1.) It stated that it had “considered the reasons you disagree with the decision and the
additional evidence listed on the enclosed Order of the Appeals Council;” this evidence
included the Medical Interrogatory completed by Dr. John Schosheim dated May 6, 2013.
(Id. at R.2, R.6.) These statements by the Appeals Council are sufficient to demonstrate that
it considered Mr. Shadwrick’s “new” evidence. See Ingram v. Commissioner of Social
Security, 496 F.3d 1253, 1262 (11th Cir. 2007).
11/23/10, the date of the decision. In other words, there is a “reasonable
possibility” that the evidence, if credited, would persuade the ALJ in this case
to reverse its decision.
(Doc. 11 at 28 [emphasis added].) This portion of Mr. Shadwrick’s Memorandum was
obviously copied from an earlier document prepared by counsel. Counsel is encouraged to
carefully review all documents filed before the court.
Decisions of the former Fifth Circuit Court of Appeals rendered prior to October 1,
1981, constitute binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661
F.2d 1206, 1209 (11th Cir.1981) (en banc).
Moreover, considering all record evidence, including Dr. Schosheim’s opinion, the
Commissioner’s decision to deny Mr. Shadwrick’s claim for benefits is not erroneous. See
id. at 1266-67. Dr. Schosheim answered a series of questions proposed on a form by Mr.
Shadwrick’s counsel. His answers are brief, without elaboration, and appear to be based
solely on medical records. (See doc. 8-10 at R.461.)8 Such opinion was based on medical
record review, is cumulative of the evidence before the ALJ, and does not undermine the
For example, Interrogatory 7 and Dr. Schosheim’s response are as follows:
7. Please specify the claimant’s impairments, if any, established by the
evidence. Note that regardless of how many symptoms an individual alleges,
or how genuine the complaints may appear to be, the existence of a medically
determinable mental impairment must be established by medically acceptable
clinical or laboratory diagnostic techniques. Cite the objective medical
findings that support your opinion, with specific references to the evidence we
provided for the case record.
Depressive Disorder NOS [—] Gadsden . . . evalu. – [October 2012]
Alcohol dependence (partial remission) [—]
Bentley Phd. . . . eval –
Anxiety Disorder [with] panic attacks [—] Riverview Reg. Med. Center
Borderline Intelligence/Cognitive Disorder [—] Quality of Life – [March
2012 to August 2012]
(Doc. 8-10 at 461.) Dr. Schosheim’s response merely recounts diagnoses made by other
healthcare providers. He cites no “objective medical findings” to support his diagnoses of
these same mental impairments.
substantial evidence supporting the ALJ’s decision. See Mitchell, 771 F.3d at 785; see also
Harrison v. Commissioner of Social Sec., 569 Fed. Appx. 874, 881 (11th Cir. 2014).
Nothing in the additional evidence submitted to the Appeals Council rendered the
ALJ’s decision contrary to the weight of the record evidence. The court finds no error in the
decision of the Appeals Council to deny review of the ALJ’s decision.
2. ALJ’s Decision
a. Step Two: Claimant’s Severe Impairments
Mr. Shadwrick contends, “The ALJ failed to consider the following impairments: low
back pain due to L4-5 right paracentral disc protrusion, compressing the proximal L5 nerve
root, and L4-S1] foraminal stenosis.” (Doc. 11 at 31.) The Eleventh Circuit has held:
If the ALJ determines at step two that there is no severe impairment,
then the claimant is not disabled. [20 C.F.R.] § 416.920(c). Thus, the finding
of any severe impairment, whether or not it results from a single severe
impairment or a combination of impairments that together qualify as “severe,”
is enough to satisfy step two. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir.
1987). Where a claimant has alleged several impairments, the Commissioner
must consider the impairments in combination and determine whether the
combined impairments render the claimant disabled. Jones v. Dep’t of Health
& Human Servs., 941 F.2d 1529, 1533 (11th Cir. 1991). An ALJ’s statement
that it has considered a combination of impairments is adequate to meet this
Any error at step two was harmless because the ALJ found in [the
claimant’s] favor as to impairment, Jamison, 814 F.2d at 588, and the ALJ
properly noted that he considered [the claimant’s] impairments in the later
steps, Jones, 941 F.2d at 1533. We affirm that the ALJ committed no error in
considering [the claimant’s] severe impairments or combination of
Hearn v. Commissioner, Social Sec. Admin., No. 14-15261, 2015 WL 4591811, *2-*3 (11th
Cir. July 31, 2015).
In this case, although the ALJ did not list as severe impairments “L4-5 right
paracentral disc protrusion . . . and L4-S1 foraminal stenosis,” he did find “lumbar
degenerative disc disease” as a severe impairment.9 The ALJ found Mr. Shadwrick had
severe impairments and moved to the next step, wherein he considered Mr. Shadwrick’s
complaints of pain, along with other impairments and limitations. Therefore, any error of the
ALJ in failing to list paracentral disc protrusion and foraminal stenosis as severe
impairments, separate from degenerative disc disease, was harmless.
b. Step Three – The Listings
i. Combination of Impairments
Mr. Shadwrick contends, “The record clearly indicates that claimant is suffering from
a combination of impairments: pancreatitis, COPD, emphysema, low back pain due to L4-5
right paracentral disc protrusion, compressing the proximal L5 nerve root, L4-S1 foraminal
stenosis, borderline intellectual functioning, anxiety, depression, and panic attacks,” and the
ALJ “failed to consider [his] combination of impairments in determining disability.” (Doc.
11 at 32, 34.) Mr. Shadwrick has not developed this argument. See Hearn v. Colvin, Civil
Although not argued by the Commissioner, the court notes that disc protrusion and
foraminal stenosis may be signs or symptoms of degenerative disc disease and not properly
considered as separate and distinct impairments.
Action No. 4:12-CV-3892-AKK, 2014 WL 4809421, *7-*8 (N.D. Ala. Sept. 26, 2014), aff’d
Hearn, 2015 WL 4591811.
“Significantly, [Mr. Shadwrick] does not explain how this combination of
conditions limits his ability to work, and “the mere existence of these
impairments does not reveal the extent to which they limit [his] ability to work
or undermine the ALJ’s determination in that regard.” Moore v. Barnhart, 405
F.3d 1208, 1213 (11th Cir. 2005). In other words, [Mr. Shadwrick] has
“simply stat[ed] that an issue exists, without further argument or discussion,”
which “constitutes abandonment of that issue and precludes . . . considering
the issue on appeal.” Singh [v. U.S. Att’y Gen.], 561 F.3d [1275,] 1278 [(11th
Cir. 2009)(“[S]imply stating that an issue exists, without further argument or
discussion, constitutes abandonment of that issue and precludes our
considering the issue on appeal.”)].
Hearn v. Colvin, 2014 WL 4809421, *8 (N.D. Ala. 2014).
The court finds that any issue regarding whether the ALJ erred by failing to consider
Mr. Shadwrick impairments in combination has been abandoned.
Nevertheless, the court finds the ALJ considered the combination issue, based on his
statement that “[t]he claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1 . . . .” (Doc. 8-3 at R.27 [emphasis added].) This statement
“evidences consideration of the combined effect of [Mr. Shadwrick’s] impairments.” See
Jones v. Department of Health and Human Services, 941 F.2d 1529, 1533 (11th Cir. 1991).
Therefore, assuming this issue has not been abandoned by Mr. Shadwrick, the court finds it
is without merit.
ii. Opinion of Dr. David R. Wilson
David R. Wilson, Ph.D., performed a psychological evaluation on Mr. Shadwrick at
the request of his counsel. (See doc. 8-8 at R.325, R.330.) As a result of his evaluation, he
determined, inter alia, that Mr. Shadwrick was extremely limited in his ability –
to understand and to remember detailed instructions;
to carry out detailed instructions
to maintain attention and concentration for extended periods
to perform activities within a schedule, to maintain regular attendance, and to
to sustain an ordinary routine without special supervision;
to work in coordination or proximity to others without being distracted by
to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods;
to interact appropriately with the general public;
to get along with coworkers or peers without distracting them or exhibiting
to maintain socially appropriate behavior and to adhere to basic standards of
neatness and cleanliness; and
to travel in unfamiliar places or to use public transportation.
(Doc. 8-8 at R.331-32.) He found Mr. Shadwrick was markedly limited in his ability –
to remember locations and work-like procedures;
to accept instructions and to respond appropriately to criticism from
to respond appropriately to changes in the work setting;
to be aware of normal hazards and take appropriate precautions; and
to set realistic goals or to make plans independently of others.
(Id.) The ALJ “accord[ed] little weight to the opinions offered during [the] consultative
examination by Dr. Wilson. The extreme limitations noted are inconsistent with the record
as a whole, are based largely on claimant report alone, and are directly contradictory to Dr.
Bentley and Dr. Estock’s assessment.” (Doc. 8-3 at R.31-R.32.)
Mr. Shadwrick argues, “The ALJ improperly rejected Dr. Wilson’s opinion and
substituted his own opinion.” (Doc. 11 at 29.) As support for his argument, Mr. Shadwrick
discusses a number of cases, but he makes no effort to explain, with reference to the record
before the court, how these cases apply to the instant action. The court finds Mr. Shadwrick
has not demonstrated any error in the ALJ’s findings – that the extreme limitations found by
Dr. Wilson are inconsistent with the record as a whole and contradictory to the limitations
found by Dr. Bentley and Dr. Estock – or in the weight he accorded the opinion of Dr.
For purposes of deciding whether Mr. Shadwrick meets Listings 12.04 and 12.05(C),
the court has considered him to be moderately limited in the manner described by Dr. Estock
and found by the ALJ.
iii. Listing 12.04
After setting forth, without discussion, evidence from the record, Mr. Shadwrick
contends that he meets Listing 12.04 for Affective Disorders. (Doc. 11 at 25; see id. at 1825.) In his decision, the ALJ stated:
The severity of claimant’s mental impairments, considered singly and in
combination, do not meet or medically equal the criteria of listings 12.02,
12.04, 12.05, 12.06, and 12.09. In making this finding, the undersigned has
considered whether the “paragraph B” criteria . . . are satisfied. To satisfy the
“paragraph B” criteria . . . , the mental impairments must result in at least two
of the following marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in
maintaining concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration. A marked limitation means more
than moderate but less than extreme. Repeated episodes of decompensation,
each of extended duration, means three episodes within 1 year, or an average
of once every 4 months, each lasting for at least 2 weeks.
In activities of daily living, the claimant has moderate restriction. The
claimant’s problems completing his activities of daily living are allegedly due
to his breathing problems. He is able to perform personal care tasks and he
cooks for himself daily (Exhibit 4E). However, it is apparent that his ex-wife’s
mother handles his bills for him (Exhibit 3E).
In social functioning, the claimant has moderate difficulties. The claimant
alleges difficulties around large groups of people, stating that he suffers from
panic attacks. He is also uncomfortable around unfamiliar people, and cites
disputes arising while he worked at KFC in 2011. However, he is able to
maintain a stable relationship with his 4 children, his ex-wife, and a close
relationship with his ex-wife’s mother.
With regard to concentration, persistence or pace, the claimant has moderate
difficulties. He struggles to complete tasks, and has some short-term memory
problems. Additionally, he failed to perform serial 7s and 3s upon
examination (Exhibit 4F p. 3). However, he was able to complete other
relevant tasks upon examination such as counting backwards and recall of
As for episodes of decompensation, the claimant has experienced no episodes
of decompensation, which have been of extended duration. There is simply no
evidence of any episodes of decompensation.
Because the claimant’s mental impairments do not cause at least two “marked”
limitations or one “marked” limitation and “repeated” episodes of
decompensation, each of extended duration, the “paragraph B” criteria . . . are
The undersigned has also considered whether “paragraph C” criteria of 12.02,
12.04, 12.06, and 12.09 are satisfied. In this case, the evidence fails to
establish the presence of the “paragraph C” criteria. The claimant has had no
episodes of decompensation, and it is not foreseeable that the claimant would
decompensate due to a minimal change in his environment or increased mental
demands. Additionally, the claimant has been living outside of a highly
supportive environment, as he currently live[s] alone.
(Doc. 8-3 at R.28-29.)
In his Memorandum in Support of Disability, Mr. Shadwrick sets forth part of his
testimony during the hearing before the ALJ and a summary of treatment records and
evaluations. (See doc. 11 at 19-24.) He then states, “The evidence supports a finding of
disability under Listing 12.04.” (Id. at 24.) Based on his discussion of the evidence and his
terse summation that this evidence supports his claim of disability based on this Listing, the
court finds that Mr. Shadwrick argues only that the ALJ’s decision is not supported by
Listing 12.04 –
consists of (i) a statement describing the disorder[ ] . . .; (ii) paragraph A
criteria, which are a set of necessary medical findings; and (iii) paragraph B
criteria, which list impairment-related functional limitations that are
incompatible with the claimant’s ability to do any gainful activity. Listing[ ]
. . . 12.04 also include[s] additional functional criteria, known as paragraph C
criteria. A claimant can meet . . . Listing[ 12.04] only if “the diagnostic
description in the introductory paragraph and the criteria of both paragraphs
A and B (or A and C, when appropriate) of the listed impairment are satisfied.”
[20 C.F.R. Pt. 404, Subpt. P, App. 1,] § 12.00(A).
The paragraph B criteria require a claimant to have at least two of the
following: marked restrictions in activities of daily living; marked difficulties
in maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of decompensation,
each of extended duration. Id. [§ 12.04(B)]. “Marked” means “more than
moderate but less than extreme;” marked restriction occurs when the degree
of limitation seriously interferes with a claimant’s ability to function
“independently, appropriately, effectively, and on a sustained basis.” Id. §
12.00(C); see 20 C.F.R. § 416.920a(c)(4)(describing a five-point scale used to
rate the degree of limitation: none, mild, moderate, marked, and extreme).
“Episodes of decompensation” are “exacerbations or temporary increases in
symptoms or signs accompanied by a loss of adaptive functioning, as
manifested by difficulties in performing activities of daily living, maintaining
social relationships, or maintaining concentration, persistence, or pace.” 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(4). To meet the criterion of
“repeated” episodes of “extended duration,” a claimant must have three
episodes within one year, or an average of once every four months, each
lasting for at least two weeks. Id.
As regards paragraph C criteria, . . . 12.04(C) require[s] a medically
documented history of the alleged mental disorder “of at least 2 years’ duration
that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or
psychosocial support,” as well as one of the following: (1) repeated episodes
of decompensation, each of extended duration; (2) a residual disease process
resulting in “such marginal adjustment” that it is predicted that “even a
minimal increase in mental demands or change in the environment” would
cause decompensation; or (3) a current history of at least one year’s “inability
to function outside a highly supportive living arrangement,” with an indication
that this arrangement needs to continue. Id. . . . 12.04(C). . . .
Bellew v. Acting Commissioner of Social Sec., 605 Fed. Appx. 917, 923-24 (11th Cir.
2015)(emphasis added; some internal citations not applicable to Listing 12.04 omitted).
The court has reviewed the entire record and finds that the ALJ’s determinations
regarding Listing 12.04 are supported by substantial evidence, despite conflicting evidence
in the record.
The Psychiatric Review Technique, prepared by psychiatrist Robert Estock, M.D.,
notes the following with regard to the B Criteria of the Listing 12.04:
Moderate Limitations in Restriction of Activities of Daily Living
Moderate Limitations in Difficulties in Maintaining Social Functioning
Moderate Limitations in Difficulties in Maintaining Concentration,
Persistence, or Pace
No episodes of Decompensation, Each of Extended Duration
(Doc. 8-8 at R.281.) As per the C Criteria, Dr. Estock found the evidence did not establish
the presence of the C Criteria.
The ALJ relied on the Function Reports completed by Mr. Shadwrick and Debra
Buchanan, his ex-wife’s mother and his friend. (Doc. 8-3 at R. 28-29.) According to these
Reports Mr. Shadwrick lives alone, (doc. 8-7 at R.155, R.163); he has no problems with his
personal care, (id. at R.156, R.164); he makes his own meals, (id. at R.157, R.165); he shops
for groceries and household goods about once a week, (id. at R.158, R.166); he has visitors,
(id. at R.159, R.167); sees his young daughters, (id. at R.159); and he does not have problems
getting along with family, friends, or neighbors, (id. at R. 160). Mr. Shadwrick and Ms.
Buchanan both indicated that his “illnesses, injuries, or conditions” did not affect his
memory, concentration, understanding, following instructions, and/or getting along with
others. (Id. at R.160, 168.) Ms. Buchanan said he “has no problem” paying attention and
that he follows spoken instructions “well,” gets along “well” with authority figures. (Id. at
R.160-61.) She noted that he has panic attacks when he cannot breathe. (Id. at R.161.) Mr.
Shadwrick said that he had “worked until [he] could not breathe.” (Id. at R.164.) He also
noted that he had panic attacks when he could not breathe. (Id. at R.169; see also id. at
The ALJ also relied on a consultative examination performed by Jack L. Bentley, Jr.,
Ph.D. (Doc. 8-3 at R.29.) He noted that Mr. Shadwrick “failed to perform serial 7s and 3s
upon examination. However, he was able to complete other relevant tasks upon examination
such as counting backwards and recall[ing] information.” (Id. [citing doc, 8-8 at R.269].)
Based on this evidence the ALJ found that Mr. Shadwrick did not meet Listing 12.04.
because did not meet the B or C criteria. Mr. Shadwrick has failed to show that this finding
is not supported by substantial evidence.
iv. Listing 12.05(C)
Mr. Shadwrick contends that he meets Listing 12.05(C). (Doc. 11 at 27.) The ALJ
Turning back to listing 12.05, the claimant does not meet the threshold for the
listing. Despite the Full Scale IQ score of 70 that was recorded, the claimant
has never been diagnosed with mental retardation10 as neither of the
consultative psychological examiners found the claimant to have significant
deficits in adaptive functioning. Additionally, the claimant does not suffer
from deficits in adaptive functioning, as required by the 12.05 listing. The
claimant is a divorced father of 4 children. He currently lives alone and is
independent in his activities of daily living. While he has performed only
unskilled jobs in the past, he has done said work at substantial gainful activity
levels. As noted above, the claimant’s alleged limitations in his activities of
“On August 1, 2013, . . . the Social Security Administration amended Listing 12.05
by replacing the words ‘mental retardation’ with ‘intellectual disability.’ See 78 Fed. Reg.
46,499, 46,501 [(codified at 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05)]. This change was
made because “the term ‘mental retardation’ has negative connotations,” and “has become
offensive to many people.” Id. at 46,499. The Social Security Administration stated that the
change ‘does not affect the actual medical definition of the disorder or available programs
or services.’ Id. at 46,500.” Hickel v. Commissioner of Social Sec., 539 Fed. Appx. 980, 982
n.2 (11th Cir. 2013).
daily living are due to his physical limitations, and not due to deficits in
intellectual functioning. Because the claimant’s alleged impairment does not
meet the threshold of the 12.05 listing, his impairment does not meet or
medically equal that listing.
(Doc. 8-3 at R.29-30 [emphasis and footnote added].)
“The structure of the listing for intellectual disability (12.05) is different from that of
the other mental disorders listings. Listing 12.05 contains an introductory paragraph with the
diagnostic description for intellectual disability. It also contains four sets of criteria
(paragraphs A through D). If [a claimant’s] impairment satisfies the diagnostic description
in the introductory paragraph and any one of the four sets of criteria, [the Commissioner] will
find that [the claimant’s] impairment meets the listing.” 20 C.F.R. Pt. 404, Subpt. P, App.
1, § 12.00(A); see also Crayton v. Callahan, 120 F.3d 1217, 1219-20 (11th Cir. 1997). The
introductory paragraph of Listing 12.05 states, “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.” Id. § 12.05 (emphasis added). Mr. Shadwrick
contends that he meets the C criteria of Listing 12.05, which requires a showing of “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.” Id.
§ 12.05(C). Although the record contains evidence that could support a finding that Mr.
Shadwrick meets the C criteria – a full scale IQ score of 70 and impairments that impose
significant work-related limitations, he has not shown, or argued, that he meets the criteria
of the introductory paragraph, specifically, deficits in adaptive functioning.
The regulations do not define “deficits in adaptive functioning” as used in Listing
12.05. However, “the Diagnostic and Statistical Manual of Mental Disorders (‘DSM’) states
that adaptive functioning ‘refers to how effectively individuals cope with common life
demands and how well they meet the standards of personal independence expected of
someone in their particular age group, sociological background, and community setting.’”
O’Neal v. Commissioner of Social Sec., No. 14-14011, 2015 WL 3605682, *3 (11th Cir. June
10, 2015)(quoting DSM-IV-TR at 42). In a different context, the Fifth Circuit has noted:
“[A]daptive behavior means the effectiveness with or degree to which a person
meets the standards of personal independence and social responsibility
expected of the person’s age and cultural group.” [Ex parte] Briseno, 135
S.W.3d [1,] 7 n.25 [(Tex. Crim. App. 2004)](internal quotation marks
omitted). The [American Association of Mental Retardation (“AAMR”)]
identifies ten adaptive skill areas: “communication, self-care, home living,
social skills, community use, self-direction, health and safety, functional
academics, leisure, and work.” Atkins v. Virginia, 536 U.S. [304,] 308 n.3
[(2002)](internal quotation marks omitted). A person must have deficits in at
least two of these skill areas in order to meet the AAMR diagnostic criteria for
adaptive behavior deficits. Matamoros v. Stephens, 783 F.3d 212, 217 (5th
Henderson v. Stephens, 791 F.3d 567, 580 (5th Cir. 2015).
The court need not dwell on the proper meaning of deficits in adaptive functioning
because Mr. Shadwrick does not argue that the ALJ’s finding in this regard was error.
In his brief, Mr. Shadwrick notes:
Claimant dropped out of school in the eighth grade and was in special
education classes. [(Doc. 8-3 at R.46.)]
Counsel ordered claimant’s school records from four different locations
and received one sheet of records [(Doc. 8-7 ast R.209-10.)] Claimant has
testified that he was in special education classes throughout school. The
school records surviving indicate that on [May 5, 1986], claimant scored at the
4th grade, 8th month level on combined Reading, Arithmetic and Language
testing during Adult Basic Education classes with the CITY program. Scores
at this level are consistent with an IQ of 70, which was assigned by David
Wilson on [October 8, 2012.]11 [(Doc. 8-8 at R.328.)]
Claimant testified regarding his limitations:
ALJ: Are you able to read the newspaper?
CLMT: I can read some little words, but I can’t read like the whole
paper, no sir.
ALJ: Okay, what about making a list of groceries and going to the
store to get what you need.
CLMT: No sir. I just . . . well if I have someone there to help me spell
it, I do it like that. [(Doc. 8-3 at R.59.)]
All of Claimant’s past work has been unskilled:
“VE: Mr. Shadwrick’s past work is as follows: He has been a fast food
worker, 311472010 light, unskilled, SVP of 2; Poultry Eviscerator,
525687074, light, unskilled, SVP of 2; Hand Presser, this is a dry
cleaner setting, 363684018, light, unskilled, SVP of 2. [(Id. at R.65.)]
In addition to low IQ, Claimant suffers from the following significant
work related problems: lumbar degenerative disc disease, chronic obstructive
pulmonary disease, pancreatitis, and depressive disorder with anxiety and
panic attacks. [(Doc. 8-8 at R.319-22, R.337-40.)]
Mr. Shadwrick has cited no evidence or authority for his statement that his IQ score
is consistent with his school records.
(Doc. 11 at 26-27 [footnote added].) This evidence, however, does not rebut the ALJ’s
findings that Mr. Shadwrick “does not suffer from deficits in adaptive functioning,” and that
he “has never been diagnosed with mental retardation.” (Doc. 8-3 at R.29.) In his Reply
Brief, Mr. Shadwrick argues, “The ALJ in this case did not make sufficient findings to
substantiate the invalidity of the IQ score of 70.” (Doc. 13 at 3.) However, the ALJ did not
find the IQ score was invalid. Indeed, he seems to have assumed a valid score, stating,
“Despite the Full Scale IQ score of 70 that was recorded, the claimant has never been
diagnosed with mental retardation as neither of the consultative psychological examiners
found the claimant to have significant deficits in adaptive functioning.”12 (Doc. 8-3 at R.29.)
The evidence recited in Mr. Shadwrick’s briefs may indicate that he has functional
intellectual limitations. However, the evidence does not rebut the ALJ’s finding that he does
not suffer from significant deficits in adaptive functioning, especially in light of his ability
too live independently. “Even if the evidence preponderates against the [Commissioner]’s
factual findings, we must affirm if the decision reached is supported by substantial
Dr. David R. Wilson, Ph.D., the psychologist who administered the IQ test, opined
Mr. Shadwrick’s full scale IQ score of 70 “places him in the lower end of the Borderline
range.” (Doc. 8-8 at R.328.) Dr. Bentley opined, “[w]ithout the benefit of intelligence
testing,” that Mr. Shadwrick’s “cognitive functioning would appear to fall in the Upper End
of the Mild Range of Mental Retardation to Borderline Range.” (Id. at R.269.) Dr. Estock
found that Mr. Shadwrick’s “functional ability is higher than upper end of Mild [intellectual
disability],” based on Activity of Daily Living reports from Mr. Shadwrick and Ms.
Buchanan. (Id. at 283.) Also, at the hearing, the ALJ read a list of impairments, including
“borderline intellectual functioning;” Mr. Shadwrick’s counsel agreed with this list of
impairments and did not seek to raise intellectual disability as an additional impairment.
(Doc. 8-3 at R.44-45.)
evidence.” Parks ex rel. D.P. v. Commissioner, Social Sec. Admin., 783 F.3d 847, 850 (11th
Cir. 2015)(citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
Mr. Shadwrick has not demonstrated the ALJ erred in finding he did not meet Listing
12.05(C) based on a failure to show significant deficits in adaptive functioning.
c. Step Four: Residual Functional Capacity/Mr. Shadwrick’s Credibility
Mr. Shadwrick contends, “The ALJ failed to state adequate reasons for finding
claimant not credible.” (Doc. 11 at 34.) Without argument or explanation, he contends, “The
‘reasons’ set out in the body of the decision by the ALJ are not adequate reasons for finding
Claimant not credible.” (Id. at 39.)
The court finds that Mr. Shadwrick has abandoned this issue. See Singh, 561 F.3d at
1278. He has merely quoted selective portions of the record and cited case law without any
attempt to formulate an argument. This is insufficient to allow this court to review the issue
Nevertheless, considering the issue, the court finds the ALJ’s decision regarding Mr.
Shadwrick’s credibility is supported by substantial evidence and is in accordance with the
proper legal standards. The Eleventh Circuit has “held that credibility determinations are the
province of the ALJ, Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005), and [it] will
not disturb a clearly articulated credibility finding supported by substantial evidence, Foote
v. Chater, 67 F.3d 1553, 1562 (11th Cir. 1995).” Mitchell v. Commissioner, Social Sec.
Admin., 771 F.3d 780, 782 (11th Cir. 2014). In this case, the ALJ “clearly articulated” his
reasons for discrediting Mr. Shadwrick’s subjective complaints to the extent such complaints
were inconsistent with his RFC. (See doc. 8-3 at 31.) These reasons are supported by
substantial evidence.13 (See id. at 53-55, doc. 8-8 at R.254-56, R.262, R.264, 267-70, R.319,
326-27, 329, 342; doc. 8-10 at 448.)
Therefore, the court will not disturb these findings.
ii. Residual Functional Capacity
“The RFC is an assessment, based on all relevant medical and other evidence, of a
claimant’s remaining ability to work despite his impairment(s).” Brown v. Colvin, No. 4:14CV-1916-VEH, 2015 WL 2381077, *3 (N.D. Ala. May 19, 2015)(citing Lewis v. Callahan,
125 F.3d 1436, 1440 (11th Cir. 1997); 20 C.F.R. § 416.945(a)). However, “there is no rigid
requirement that the ALJ specifically refer to every piece of evidence in his decision, so long
as the ALJ’s decision . . . is not a broad rejection which is ‘not enough to enable [the district
court or this Court] to conclude that [the ALJ] considered [the claimant’s] condition as a
whole.’” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)(quoting Foote v. Chater,
67 F.3d 1553, 1561 (11th Cir. 1995)(internal quotation omitted)).
In his Memorandum, Mr. Shadwrick quotes part of his testimony from the hearing
before the ALJ, (see doc. 11 at 36-39 [quoting doc. 8-3 at 47-53]); this testimony is Mr.
Shadwrick’s responses to his attorney’s questions, (see doc. 8-3 at 47-53). Notably, this
testimony does not include any reference to his drug, alcohol, and nicotine use, which the
ALJ found significant in deciding whether Mr. Shadwrick was credible. (See doc. 8-3 at 31.)
The court notes as late as November 2012, about a month before the ALJ’s decision, Mr.
Shadwrick reported that he was smoking a pack of cigarettes a day. (Doc. 8-10 at 448.)
Mr. Shadwrick contends that the ALJ “failed to follow SSR 96-8p.” (Doc. 11 at 42.)
Citing a Physical Residual Functional Capacity Assessment prepared by an agency physician,
and not the ALJ, he contends that the ALJ’s “RFC assessment is simply conclusory and does
not contain any rationale or reference to the supporting evidence as required by SSR 96-8p.”
(Id. at 41 [citing doc. 8-8 at 285-292].) The court disagrees.
The ALJ stated that his RFC finding was based on his consideration of “all symptoms
and the extent to which these symptoms can reasonably be accepted as consistent with the
objective medical evidence.” (Doc. 8-3 at R.30.) “[T]here is no rigid requirement that the
ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ’s
decision . . . is not a broad rejection which is not enough to enable the district court or [the
Eleventh Circuit] to conclude that [the ALJ] considered [his] medical condition as a whole.”
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)(quoting Foote, 67 F.3d at
1561)(internal quotations omitted). Clearly, merely reading the ALJ’s Decision leads to the
inevitable conclusion that the ALJ considered all of Mr. Shadwrick’s alleged limitations, he
discussed the evidence, and he adequately stated his rationale. (Doc. 8-3 at R.30-32 [citing,
inter alia, doc. 8-8 at 255, 267-70, 283, 285-95, 317, 321, 339, 341; doc. 8-9 at 360, 375;
doc. 8-10 at 447]; see also doc. 8-3 at R.54-55.) The court finds no reason to disturb the
ALJ’s finding regarding Mr. Shadwrick’s RFC, which is supported by substantial evidence.
e. Step Five: Vocational Expert Testimony
Mr. Shadwrick contends, “The ALJ has relied on VE testimony, which was not based
on a correct or full statement of claimant’s limitations and impairments.” (Doc. 11 at 39.)
This argument is grounded on claimant’s contentions that the ALJ erred in assessing his
credibility and determining his RFC. For the reasons set forth above, the court finds that
these findings of the ALJ will not be disturbed on appeal. Thus, the court finds no error in
the ALJ’s reliance on the VE’s testimony, which was based on the RFC and vocational
factors the ALJ had determined, to find Mr. Shadwrick was not disabled.
For the reasons set forth above, the decision of the Commissioner is due to be
An Order affirming the decision of the Commissioner will be entered
contemporaneously with this Memorandum Opinion.
DONE this 10th day of September, 2015.
SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE
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