Willard v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Magistrate-Judge Harwell G Davis, III on 4/25/2014. (AVC)

FILED
2014 Apr-25 PM 03:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
KELLY DIANE WILLARD,
Plaintiff
vs.
CAROLYN W. COLVIN,1
Acting Commissioner of
Social Security Administration,
Defendant

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Case No. 5:12-cv-03536-JHE

MEMORANDUM OPINION
Plaintiff Kelly Diane Willard (“Willard”) 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 her application for
Supplemental Security Income (“SSI”). Willard timely pursued and exhausted her
administrative remedies. The case is therefore ripe for review under 42 U.S.C.
1

Carolyn W. Colvin was named the Acting Commissioner on February 14, 2013. See
http://www.socialsecurity.gov/pressoffice/factsheets/colvin.htm (“On February 14, 2013, Carolyn W.
Colvin became the Acting Commissioner of Social Security.”) (last accessed on December 17,
2013). Under 42 U.S.C. § 405(g), “[a]ny action instituted in accordance with this subsection shall
survive notwithstanding any change in the person occupying the office of Commissioner of Social
Security or any vacancy in such office.” Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule 25(d)
of the Federal Rules of Civil Procedure, the court has substituted Carolyn W. Colvin for Michael
Astrue in the case caption above.
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§§ 405(g), 1383(c)(3). The undersigned has carefully considered the record and, for
the reasons stated below, the Commissioner’s decision is AFFIRMED.2
I. Factual and Procedural History
Willard was a 33-year-old female at the time of her hearing before the
Administrative Law Judge (“ALJ”) on November 22, 2010. (Tr. 38, 125). Willard has
a sixth-grade education. (Tr. 30). Willard has past relevant work as a bartender and
a waitress, (Tr. 52), but her earning records demonstrate she has never performed
work at the substantial gainful activity level. (Tr. at 135-36).
Willard filed an application for SSI on August 24, 2009. (Tr. 125-31). The
State Agency denied Willard’s application, and Willard requested a hearing before
an ALJ. (Tr. 83-84). After a hearing, the ALJ denied Willard’s claim on January 14,
2011. (Tr. 31). Willard sought review by the Appeals Council, but it declined her
request on August 10, 2012. (Tr. 1-6). On that date, the ALJ’s decision became the
final decision of the Commissioner. Willard then initiated this action on October 5,
2012. (Doc. 1).

2

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. 12).
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II. Standard of Review3
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.
See 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) (citations omitted). This court will determine the ALJ’s
decision is supported by substantial evidence if it finds “such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id. Substantial
evidence is “more than a scintilla, but less than a preponderance.” Id. Factual
findings that are supported by substantial evidence must be upheld by the court. The
ALJ’s legal conclusions, however, are reviewed 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 fails to provide the court with

3

In general, the legal standards applied are the same whether a claimant seeks Disability
Insurance Benefits (“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.
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sufficient reasoning for determining the proper legal analysis has been conducted, the
ALJ’s decision must be reversed. See Cornelius v. Sullivan, 936 F.2d 1143, 1145-46
(11th Cir. 1991).
III. Statutory and Regulatory Framework
To qualify for SSI, as well as establish entitlement for a period of disability, a
claimant must be disabled as defined by the Social Security Act and the Regulations
promulgated thereunder.4 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 12 months.” 20 C.F.R.
§ 416.905(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. § 416.908.
The Regulations provide a five-step process for determining whether a claimant
is disabled. 20 C.F.R. § 416.920(a)(4)(i–v). The Commissioner must determine in
sequence:

4

The “Regulations” promulgated under the Act are listed in 20 C.F.R. Parts 400 to 499,
revised April 1, 2013.
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(1)
(2)
(3)
(4)
(5)

whether the claimant is currently engaged in substantial gainful
activity;
whether the claimant has a severe impairment;
whether the claimant’s impairment meets or equals an impairment
listed by the Secretary;
whether the claimant can perform his past work; and
whether the claimant is capable of performing any work in the
national economy.

See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2010); accord McDaniel v.
Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “Once the claimant has satisfied steps
on 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 Secretary to show that the claimant can perform
some other job.” Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993), overruled in
part on other grounds, Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999); accord Foote
v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). The Commissioner must further
show that such work exists in the national economy in significant numbers. Foote,
67 F.3d at 1559.
IV. Findings of the Administrative Law Judge
At Step One, the ALJ found Willard has not engaged in substantial gainful
activity since the application date. (Tr. 26). At Step Two, the ALJ found Willard had
the following severe impairment: mild mental retardation. (Id.). At Step Three, the

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ALJ found Willard does not have an impairment or a 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. (Tr. 27).
Before proceeding to Step Four, the ALJ determined Willard’s residual
functioning capacity (“RFC”), which is the most a claimant can still do despite her
impairments. See 20 C.F.R. § 404.1545(a)(1). The ALJ determined Willard has the
RFC to perform a full range of work at all exertion levels, but with the following
non-exertional limitations: she is capable of understanding, remembering, and
carrying out short, simple 1-2 step tasks; she is able to perform said work under
casual supervision; she functions best within her own work area or station and is able
to complete tasks in a timely manner as long as she does not have excessive
workloads or rapid work changes; she is able to interact casually with the general
public as long as the interaction is non-confrontational; she is likely to miss one or
two days [of work] per month. (Tr. 29).
At Step Four, the ALJ determined Willard is unable to perform her past
relevant work of bartender and waitress because these jobs required “mental
demands” beyond Willard’s RFC. (Tr. 30). At Step Five, the ALJ determined, based
on Willard’s age, education, work experience, and RFC, that jobs exist in significant

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numbers in the national economy Willard can perform. (Tr. 30-31). Therefore, the
ALJ determined Willard is not disabled and denied her claim. (Tr. 31).
V. Analysis
This court is limited in its review of the Commissioner’s decision in that the
Commissioner’s findings of fact must be reviewed with deference. See Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (citing Graham v. Bowen, 790 F.2d
1572, 1574-75 (11th Cir. 1986)). In contrast to factual findings, the Commissioner’s
conclusions of law are subject to an “exacting examination” or de novo review. See
Martin, 894 F.2d at 1529 (citing Graham, 790 F.2d at 1574-75) (“The Secretary’s
failure to apply the correct legal standards or to provide the reviewing court with
sufficient basis for a determination that proper legal principles have been followed
mandates reversal.”) (citations omitted). In particular, this court has a “responsibility
to scrutinize the record in its entirety to ascertain whether substantial evidence
supports each essential administrative finding.” See Walden v. Schweiker, 672 F.2d
835, 838(11th Cir. 1982) (emphasis added) (citing Strickland v. Harris, 615 F.2d
1103, 1106 (5th Cir. 1980)).5 However, the court “abstains from reweighing the
evidence or substituting its own judgment for that of the [Commissioner].” Id.

5

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
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(citation omitted). The court must review the Commissioner’s decision and determine
whether it is supported by substantial evidence and he applied the correct legal
standards. Wilson, 284 F.3d 1221.
Willard contends the ALJ failed to properly consider the mental retardation
listing. (Doc. 8 at 5). Specifically, Willard argues the ALJ improperly evaluated her
mental and physical impairments in combination in finding she did not meet or
exceed Listing 12.05(C), insisting the ALJ’s decision is not supported by substantial
evidence and based on a misapplication of Listing 12.05(C). (Id.).
A.

The ALJ Properly Evaluated the Severity of Willard’s Mental and
Physical Impairments in Combination

At Step Two, the ALJ found Willard had the following severe impairment:
mild mental retardation. (Tr. 26). At Step Three, the ALJ found this severe
impairment, along with Willard’s other impairments – depression, anxiety,
Gastroespohageal (“GERD”), and “bad feet,”– did not meet or medically equal a
listed impairment, specifically listing 12.05 “Intellectual Disability.” (Tr. 27).
Contrary to her contentions, the ALJ properly evaluated the severity of Willard’s
alleged impairments in combination.
The structure of the listing for mental retardation is different from the structure
of other mental disorder listings. To meet Listing § 12.05, the claimant must satisfy

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the requirements of the introductory paragraph contained in Listing § 12.05, which
defines “mental retardation” as
significantly sub-average 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.
Listing 12.05.
The claimant’s impairment or impairments must also satisfy one of the four sets
of criteria in subparagraph A through D to meet the listing and be presumptively
“disabled.” Here, the ALJ found Willard’s impairments did not meet and were not
medically equal to any of the subparagraphs in Listing 12.05 and, therefore, she was
not presumptively disabled. (Tr. 27-29).
Willard argues the ALJ erred in her analysis and her conclusion she did not
meet the criteria contained in Listing § 12.05(C).6 Listing 12.05(C) requires “[a]
6

Plaintiff does not challenge the ALJ’s finding that Willard did not meet the requirements
of § 12.05(A), (B), and (D). (See Doc. 8). A review of the record reveals the ALJ’s findings in this
regard are supported by substantial evidence. Subparagraph A requires “[m]ental incapacity
evidenced by dependence upon others for personal needs (e.g., toileting, eating, dressing, or bathing)
and inability to follow directions, such that the use of standardized measures of intellectual
functioning is precluded.” Listing 12.05(A). The ALJ properly concluded these requirements are
clearly not met in this case. (Tr. 27). The record indicates Willard is able to function independently.
(Tr. 27, 266). The ALJ also properly concluded Willard did not satisfy the requirements of
subparagraph B, which requires “[a] valid verbal, performance, or full scale IQ of 59 or less.” (Tr.
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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.” Listing 12.05(C). Here, the ALJ recognized Willard obtained a verbal IQ
score of 76, a performance IQ score of 68, and a full scale IQ score of 70 on the
Wechsler Adult Intelligence Scale – Third Edition (“WAIS-III”) administered by
Dr. Jon G. Rogers in October 2009, (Tr. 28, 260-67), but found Willard did not have
“a physical or other mental impairment imposing an additional and significant
work-related limitation of function.” (Tr. 28).
In support of her argument, Willard cites Edwards by Edwards v. Heckler, 755
F.2d 1513, 1515 (11th Cir. 1985), in which the Eleventh Circuit reviewed a previous
version of this regulation and interpreted the second part of Listing 12.05(C) as
requiring something that was “significant” but less than a “severe impairment” as
defined by Step 2 of the sequential evaluation process. Notably, as pointed out in
several cases within this Circuit, this regulation was modified in 2000 and the
introductory paragraph to Listing 12.00 now equates this criterion with a “severe”

28, 264). Finally, the ALJ properly concluded Willard did not meet the requirements of Listing
12.05(D), which requires “a valid verbal, performance, or full scale IQ of 60 through 70, resulting
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.” The ALJ found Willard
has moderate restrictions in the activities of daily living and moderate difficulties with social
functioning and with regard to concentration, persistence, or pace. (Tr. 28). She further found no
evidence of episodes of decompensation lasting an extended duration. (Id.).
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impairment as intended at Step 2 and governed by 20 C.F.R. §§ 404.1520(c),
416.920(c). See Black v. Astrue, 678 F. Supp. 2d 1250, 1262-63 (N.D. Fla. 2010);
Carroll v. Astrue, No. 1:08-cv-74-SRW, 2009 WL 1708073, at *1 (M.D. Ala.
June 17, 2009). As it has been superseded by regulation, Edwards is no longer good
law on this point.
The current regulation states:
For paragraph C, we will assess the degree of functional
limitation the additional impairment(s) imposes to
determine if it significantly limits your physical or mental
ability to do basic work activities, i.e., is a “severe”
impairment(s), as defined in §§ 404.1520(c) and
416.920(c). If the additional impairment(s) does not cause
limitations that are “severe” as defined in the
§§ 404.1520(c) and 416.920(c), we will not find that the
additional impairment(s) imposes “an additional and
significant work-related limitation of function,” even if you
are unable to do your past work because of the unique
features of that work.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1200A. The Federal Register explains the
reason for the change as follows:
We always have intended the phrase to mean that the other
impairment is a “severe” impairment, as defined in
§§ 404.1520(c) and 416.920(c). We have explained this
policy previously in our training manuals, in Social
Security Ruling 98-1p, and in Social Security
Acquiescence Ruling (AR) 98-2(8). Therefore, [] we
revised the fourth paragraph of final 12.00A, which
explains how we assess the functional limitations of an
additional impairment under listing 12.05C. The revised
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paragraph states that we will assess the degree of
functional limitation the additional impairment imposes to
determine if it significantly limits an individual’s physical
or mental ability to do basic work activities; “i.e., is a
‘severe’ impairment(s), as defined in §§ 404.1520(c) and
416.920(c).”
Sections §§ 404.1520(c) and 416.920(c) note that we must
base our assessment of whether an impairment is severe on
the limitations that the impairment imposes on the
individual’s physical and mental abilities to do basic work
activities. When we do this, we do not consider factors
such as the individual’s age, education, or past work
experience. Thus, although the other impairment in listing
12.05C may not prevent the individual from doing his or
her past work, it may still cause an “additional and
significant work-related limitation of function.”
Conversely, if the other impairment prevents the individual
from doing his or her past work because of the unique
features of that work, but does not significantly limit the
individual’s ability to do basic work activities, we will find
that the impairment does not satisfy the “additional and
significant work-related limitation of function”
requirement in listing 12.05C.
65 Fed. Reg. 50746, 50772-73 (Aug. 21, 2000). Accordingly, the second prong in
Listing 12.05(C) now requires evidence of an additional severe impairment.
Willard argues her impairments of depressive disorder and anxiety disorder
satisfy the second prong of Listing 12.05(C). (See Doc. 8 at 5-6). The ALJ found
these impairments to be “not severe” and, therefore, concluded Willard did not meet
the 12.05(C) Listing. (Tr. 26, 28). Additionally, the ALJ found Willard’s GERD and

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“bad feet” were not severe because they did not functionally interfere with her ability
to do work. (Id.). Despite Willard’s contentions, these findings are supported by
substantial evidence.
A severe impairment significantly limits an individual’s physical or mental
ability to perform basic work activities. 20 C.F.R. §§ 416.920(c) and 416921(a).
Basic work activities are the abilities and aptitudes necessary to do most jobs,
including (1) physical functions such as walking, standing, lifting, pushing, pulling,
reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking;
(3) understanding, carrying out, and remembering simple instructions; (4) use of
judgment; (5) responding appropriately to supervision, co-workers, and usual work
situations; and (6) dealing with changes in a routine work setting. 20 C.F.R.
§ 416.921(b). An impairment can be considered non-severe only if it is a slight
abnormality which has such 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).
With respect to Willard’s allegations of depression and anxiety, the ALJ noted
the evidence showed, although Willard had complained of symptoms to a general
practitioner, she had not been referred to or received specialized mental health

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treatment.7 (Tr. 26, 261). The only treatment Willard received was a prescription for
Xanax and refills, which she reported stabilized her symptoms. (Tr. 26, 252-54, 261,
292, 298). Additionally, the ALJ noted Willard admitted always having these
symptoms even during the period she worked, and the medical evidence does not
show Willard’s ability to function was any worse during these times. (Tr. 26, 173,
252-55, 262, 298).
Willard contends the ALJ failed to properly consider the October 27, 2009,
consultative examination performed by Dr. Rogers. (Doc. 8 at 9-10). To the
contrary, the ALJ extensively discussed Dr. Roger’s report in her analysis of Listing
12.05, relying on it to conclude Willard had a qualifying IQ score. (Tr. 27-28).
Although Dr. Rogers diagnosed moderate anxiety and depression, these diagnoses
alone do not indicate the severity of the condition. See Moore v. Barnhart, 405 F.3d
1208, 1213 n.6 (11th Cir. 2005) (“the mere existence of these impairments does not
reveal the extent to which they limit [the claimant’s] ability to work or undermine the
ALJ’s determination in that regard”.). Dr. Rogers appeared to rely on mostly
Willard’s self-reported symptoms.

(Tr. 261).

His objective clinical findings

consisted of a mental status exam in which he found, while affect was restricted, with

7

The ALJ specifically found Willard’s testimony she had not obtained mental health
treatment because of lack of financial resources “unreliable.” (Tr. 29, 262).
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anxious and depressed mood, Willard’s appearance and mannerisms were
unremarkable, conversation was normal, thought process was normal, the memory
test was unremarkable, and insight and judgment were fair. (Tr. 263-64). She could
not interpret proverbs, perform serial 7s subtraction task, or spell “world” backward;
and expressed having heard and seen things others could not. (Tr. 263-64). Dr.
Rogers assessed the extent of Willard’s mental impairments as “moderate” and
assessed her ability to do certain basic mental work activities of understanding,
remembering, carrying out instructions, and responding appropriately to supervision,
co-workers, and work pressures in a work setting as “moderately impaired.” (Tr. 26667). Dr. Rogers did not specifically attribute these limitations to Willard’s depression
or anxiety, as opposed to the severe impairment found – mild mental retardation.
(Id.).
Additionally, the ALJ assessed Willard’s additional impairments for severity.
As to Willard’s GERD, the ALJ noted medical records did not indicate any acute
problems, and Willard was regularly prescribed Prilosec without any complaints of
side effects or ongoing problems. (Tr. 293, 298, 300, 302). Willard reported
medication controlled her acid reflux and she had no symptoms.

(Tr. 239).

Regarding her complaints of “bad feet,” the ALJ discussed medical records indicating
Willard was diagnosed with misalignment and deformity of certain foot bones in
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April 2009 and underwent surgery, which successfully removed bone. (Tr. 26, 246,
249-50). Two weeks post-surgery, Willard reported being able to stand “a lot.”
(Tr. 27, 250). At a follow-up appointment in June 2009, Willard reported significant
improvement and, despite her feet hurting every now and then, she generally was
doing ok. (Tr. 27, 245). On July 20, 2009, Willard had no complaints, there were no
signs of infection, and she was fitted for a pair of orthotics. (Tr. 244). While
Willard’s feet may cause her occasional discomfort, the successful nature of the
surgery and her recovery, in combination with the prescribed orthotic shoes, indicate
her level of pain and associated limitations have been decreased to a degree that does
not functionally affect her ability to perform basic work activities. (Tr. 27, 243-44,
250).
The ALJ evaluated the evidence of record and properly determined Willard
failed to carry her burden to show she had any impairment in addition to mild mental
retardation imposing any additional and significant limitations on her ability to
perform basic work activities.
VI. Conclusion
Because the Commissioner’s decision is based on substantial evidence and the
ALJ applied proper legal standards, it is AFFIRMED and this action will be
DISMISSED WITH PREJUDICE. A separate order will be entered.
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DONE this 25th day of April, 2014.

HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE

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