Bailey v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 2/17/2015. (KAM, )

FILED
2015 Feb-17 PM 03:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
BRANDY BAILEY,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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5:14-cv-282-LSC

Memorandum of Opinion

The plaintiff, Brandy Bailey (“Bailey”), appeals from the decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her
application for a period of disability, Disability Insurance Benefits (“DIB”), and
Supplemental Security Income (“SSI”). Bailey timely pursued and exhausted her
administrative remedies and the decision of the Commissioner is ripe for review
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
I.

Introduction
Bailey was twenty-nine years old at the time of the Administrative Law Judge’s

(“ALJ’s”) decision. (Tr. at 144–45.) Bailey has a twelfth-grade education with a

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certificate of completion. (Tr. at 56.) Bailey alleges that her disability began on
December 14, 2011, and that her disability is due to intellectual disabilities, anxiety,
and depression. (Tr. at 84, 144.)
The Social Security Administration has established a five-step sequential
evaluation process for determining whether an individual is disabled and thus eligible
for DIB or SSI. See 20 C.F.R. §§ 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d
1274, 1278 (11th Cir. 2001). The evaluator will follow the steps in order until making
a finding of either disabled or not disabled; if no finding is made, the analysis will
proceed to the next step. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The first
step requires the evaluator to determine whether the plaintiff is engaged in substantial
gainful activity. See id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the plaintiff is not
engaged in substantial gainful activity, the evaluator moves on to the next step.
The second step requires the evaluator to consider the combined severity of the
plaintiff’s medically determinable physical and mental impairments. See id. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of
impairments that is not classified as “severe” and does not satisfy the durational
requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding
of not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The decision

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depends on the medical evidence contained in the record. See Hart v. Finch, 440 F.2d
1340, 1341 (5th Cir. 1971) (concluding that “substantial medical evidence in the
record” adequately supported the finding that plaintiff was not disabled).
Similarly, the third step requires the evaluator to consider whether the
plaintiff’s impairment or combination of impairments meets or is medically equal to
the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. See
20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed
impairment and the durational requirements set forth in 20 C.F.R. §§ 404.1509 and
416.909 are satisfied, the evaluator will make a finding of disabled. 20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the plaintiff’s impairment or combination of impairments does not meet or
medically equal a listed impairment, the evaluator must determine the plaintiff’s
residual functional capacity (“RFC”) before proceeding to the fourth step. See id. §§
404.1520(e), 416.920(e). The fourth step requires the evaluator to determine whether
the plaintiff has the RFC to perform the requirements of his past relevant work. See
id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the plaintiff’s impairment or
combination of impairments does not prevent him from performing his past relevant
work, the evaluator will make a finding of not disabled. See id.

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The fifth and final step requires the evaluator to consider the plaintiff’s RFC,
age, education, and work experience in order to determine whether the plaintiff can
make an adjustment to other work. See id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If
the plaintiff can perform other work, the evaluator will find him not disabled. Id.; see
also 20 C.F.R. §§ 404.1520(g), 416.920(g). If the plaintiff cannot perform other work,
the evaluator will find him disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g),
416.920(a)(4)(v), 416.920(g).
Applying the sequential evaluation process, the ALJ found that Bailey meets the
non-disability requirements for a period of disability, DIB, and SSI and was insured
through the date of his decision. (Tr. at 21.) She further determined that Bailey has
not engaged in substantial gainful activity since the alleged onset of her disability. (Id.)
According to the ALJ, Bailey’s mild to borderline mental retardation was a severe
impairment. (Id.) The ALJ next determined that Bailey’s impairments neither met nor
were medically equal to any of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1. (Id. at 28.)
Because Bailey could not be considered “disabled” based solely on whether her
impairments met or medically equaled those listed in 20 C.F.R. Part 404, the ALJ next
assessed the effect of Bailey’s alleged impairments on her RFC. The ALJ found that

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Bailey had an RFC that:
enabled her to perform a full range of work at all exertional levels but
with the following nonexertional limitations: she can understand,
remember, and carry out simple instructions; she is limited to jobs
involving infrequent and well explained workplace changes; she is
limited to casual, nonintensive interaction with members of the general
public; and she can concentrate/remain on task for two hours at a time,
sufficient to complete an eight-hour workday.
(Tr. at 24.) The ALJ determined that Bailey was unable to perform past relevant work.
(Tr. at 26.) The ALJ determined that Bailey was a “younger individual” at the onset
date of the alleged disability, that she had a high school education, and that
transferability of Bailey’s skills was not at issue because her past relevant work was
unskilled. (Id.) Relying on the Medical-Vocation Guidelines and a vocational expert’s
(“VE’s”) opinion, the ALJ found that there were a significant number of jobs in the
national economy that Bailey was capable of performing, such as garment steamer, rug
cleaner, and hand presser. (Tr. at 27.) Consequently, the ALJ concluded that Bailey
was not “under a disability” as defined in the Social Security Act through the date of
the decision. (Id.)
II.

Standard of Review
This Court’s role in reviewing claims brought under the Social Security Act is

a narrow one. The scope of its review is limited to determining (1) whether there is

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substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See Stone v.
Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives deference
to the factual findings of the Commissioner, provided those findings are supported by
substantial evidence, but applies close scrutiny to the legal conclusions. See Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).
Nonetheless, this Court may not decide facts, weigh evidence, or substitute its
judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th
Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)).
“The substantial evidence standard permits administrative decision makers to act
with considerable latitude, and ‘the possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177, 1181
(11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar. Comm’n, 383
U.S. 607, 620 (1966)). Indeed, even if this Court finds that the proof preponderates
against the Commissioner’s decision, it must affirm if the decision is supported by
substantial evidence. Miles, 84 F.3d at 1400 (citing Martin v. Sullivan, 894 F.2d 1520,

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1529 (11th Cir. 1990)).
However, no decision is automatic, for “despite th[e] deferential standard [for
review of claims], it is imperative that th[is] Court scrutinize the record in its entirety
to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815 F.2d
622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881, 883 (11th Cir. 1984)).
Moreover, failure to apply the correct legal standards is grounds for reversal. See
Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
III. Discussion
Bailey alleges that the ALJ’s decision should be reversed and remanded for two
reasons. First, she argues that the ALJ erred in finding that Bailey’s intellectual
functioning did not meet or equal Listing 12.05B or 12.05C for Mental Retardation.1
Second, Bailey argues that the ALJ showed improper bias. The Court considers each
of these arguments in turn.
A.

Meeting or Equaling Listing 12.05 Mental Retardation

Bailey contends that her impairment meets or equals the listed impairment
12.05B or 12.05C for mental retardation and therefore she is disabled. The plaintiff has

1

On August 1, 2013, the SSA changed the terminology in 20 C.F.R. pt. 404, subpt. P, app.
1, § 12.05 from “mental retardation” to “intellectual disability.” The SSA has noted that the change
in terminology does not affect analysis of intellectual disabilities under the regulations. See 78 Fed.
Reg. 46,499, at 46,500 (Aug. 1, 2013).
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the burden of proving that an impairment either meets or equals a listed impairment.
Wilkinson o/b/o Wilkinson v. Bowen, 847 F.2d 660, 662 (11th Cir. 1987). “For a
claimant to show that his impairment matches a listing, it must meet all the of the
specified criteria. An impairment that manifests only some of the specified criteria, no
matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Under Listing 12.05, the plaintiff must prove mental retardation, which is
defined as “significantly sub-average general intellectual functioning with deficits in
adaptive functioning initially manifested during the developmental period.” See 20
C.F.R. pt. 404, subpt. P, app. 1, § 12.05.; see also Crayton v. Callahan, 120 F.3d 1217,
1219 (11th Cir. 1997) (“To be considered for disability benefits under section 12.05,
a claimant must at least (1) have significantly subaverage general intellectual
functioning; (2) have deficits in adaptive behavior; and (3) have manifested deficits
in adaptive behavior before age 22.”). Under Listings 12.05B and 12.05C, a plaintiff
establishes metal retardation if the plaintiff meets the preceding diagnostic description
and has (1) “[a] valid verbal, performance, or full scale IQ of 59 or less,” or (2) “[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.” See 20 C.F.R. Pt. 404 Subpt. P, App. 1, §§ 12.05B and 12.05C.

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First, Bailey asserts that the ALJ improperly disregarded the results of a mental
evaluation by Dr. Alan Blotcky. Dr. Blotcky examined Bailey on September 20, 2012,
and concluded that Bailey had a verbal comprehension index of 56, a perceptual
reasoning index of 60, a working memory index of 60, a processing speed of 68, and
a full scale IQ of 55. (Tr. at 246.) Consequently, Blotcky diagnosed Bailey with mild
mental retardation. Bailey argues that, had Dr. Blotcky’s findings been properly
considered, she would have meet the criteria found in Listing 12.05B for mental
retardation. See 20 C.F.R. Pt. 404 Subpt. P, App. 1, § 12.05B (requiring an IQ score
of 59 or less).
However, the ALJ chose to give no weight to Dr. Blotcky’s examination results,
and instead assigned great weight to the findings of Dr. Jack Bentley. Dr. Bentley
provided a consultative examination to Bailey on January 12, 2010, and concluded that
Bailey had a verbal score of 65, a performance IQ score of 72, and a full range IQ score
of 65.2 (Tr. at 251.) Dr. Bentley examined Bailey a second time on April 9, 2012, and
diagnosed her as having borderline to mild mental retardation. (Tr. at 237.)
This Court finds that substantial evidence supports the ALJ’s decision to
2

Apparently there is a typographical error in Dr. Bentley’s report. His summary assessment
lists Bailey’s performance IQ score as 62, yet the line-item summary of her scores lists the
performance IQ score as 72. Regardless, the score does not fall below 59, and thus is still analyzed
under Listing 12.05C.
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disregard findings in Dr. Blotcky’s report in favor of those in Dr. Bentley’s report. As
a one-time consultative examiner, Dr. Blotcky’s findings were not entitled to any
special deference. See 20 C.F.R. §§ 404.1527, 416.927. In choosing to give preference
to Dr. Bentley’s score, the ALJ provided explicit and detailed reasons. The ALJ noted
that Dr. Bentley examined Bailey twice over a period of three years, while Dr. Blotcky
examined Bailey only once. (Tr. at 23.) The ALJ further stated that the results of the
IQ examination provided by Dr. Bentley were more consistent with the record as a
whole. For example, despite administering an IQ test that resulted in a score of 55, Dr.
Blotcky stated in his report that Bailey “demonstrated logical and orderly thinking,”
possessed “concrete and simplistic” thought processes, and had judgment that was
“grossly intact.” (Tr. at 246.)
In deciding that Bailey did not meet the IQ score requirements of 12.05B, the
ALJ also noted that, even with an IQ score of 55, Bailey had not demonstrated the
necessary deficits in adaptive functioning since her low IQ score was inconsistent with
her daily activities and behavior. See Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.
1992) (stating that “a valid I.Q. score need not be conclusive of mental retardation
where the I.Q. score is inconsistent with the other evidence on record on the
claimant’s daily activities and behavior”). As the ALJ noted, the record indicates that

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Bailey is able to do laundry, care for her son, watch television, drive a car, shop in
stores, and care for her basic personal needs independently. (Tr. at 194–208.) The
Eleventh Circuit has found that similar daily activities support a finding that a
claimant does not have the necessary adaptive functioning deficits to meet a 12.05
listing. See Garrett v. Astrue, 244 F. App’x 937, 939 (11th Cir. 2007) (“The record
supports the finding by the ALJ that the required limitations to adaptive functioning
were not present, despite [claimant’s] low IQ score. [Claimant] is able to cook simple
meals; perform chores such as dishwashing and yard work; and build model cars.
[Claimant’s] daily activities include church attendance, television viewing, and
walking in the mall.”).
Bailey’s work history also provides substantial evidence to find that the
Blotcky-administered IQ score is inconsistent with Bailey’s apparent adaptive
functioning. Bailey held a job until as late as 2009, and her reasons for leaving past jobs
have never been related to her intellectual impairments. Bailey left her job as a kitchen
worker at a hospital because the hospital closed, and later stopped work at a gas station
because she became pregnant. (Tr. at 40–41.); see also Harris v. Comm’r of Soc. Sec.,
505 F. App’x 874, 876 (11th Cir. 2013) (affirming an ALJ’s determination that, despite
a qualifying IQ score under Listing 12.05, claimant failed to show deficits in adaptive

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functioning when he had previously worked as a dish washer, food server, prep cook,
and furniture deliverer, and had not left any of those jobs due to his intellectual
impairment).
In addition, Bailey’s argument that the ALJ erred in not finding her disabled
under 12.05C fails because there is substantial evidence to support the ALJ’s
determination that Bailey lacked “a physical or other mental impairment imposing an
additional and significant work-related limitation of function.” See 20 C.F.R. Pt. 404
Subpt. P, App. 1, § 12.05C. A finding of a “significant and additional work-related
limitation of function” is co-extensive with the finding of a “severe impairment”
under step two of the sequential analysis. See 65 Fed. Reg. 50,746, at 50,772 (Aug. 21,
2000) (stating that “we have always intended the phrase [additional and significant
work-related limitation of function] to mean that the other impairment is a ‘severe’
impairment”). Here, the ALJ determined that borderline to mild mental retardation
was Bailey’s only “severe” impairment, meaning that Bailey’s other alleged
impairments did not have more than a minimal effect on her ability to work.
Furthermore, the ALJ explicitly considered Bailey’s anxiety when deciding that Bailey
lacked an additional significant work-related limitation, reasoning that the impairment
has been well-controlled by medication and has never required Bailey to seek formal

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mental health treatment. (Tr. at 23.)
B.

Bias on the Part of the ALJ

Bailey also asserts that the ALJ showed bias when considering the examination
report prepared by Dr. Blotcky, as the ALJ noted that Dr. Blotcky was hired by
Bailey’s counsel to administer an additional IQ test and mental examination, and thus
was not an impartial medical source. The Eleventh Circuit has held that a claimant is
entitled to both a full and fair hearing and that an ALJ shall not conduct a hearing if
he or she is prejudiced with respect to a party to a case or has any interest in the
outcome of the pending matter. Miles, 84 F.3d at 1401 (citing 20 C.F.R. § 404.940).
The ALJ plays a crucial rule in the disability review process and “not only is he dutybound to develop a full and fair record, he must carefully weigh the evidence, giving
individualized consideration to each claim that comes before him.” Id. The ALJ’s
impartiality is integral to the system. Id.
However, ALJs are presumed to be unbiased and exercise their decision-making
authority with honesty and integrity. Schweiker v. McClure, 456 U.S. 188, 195-196
(1982); see also Withrow v. Larkin, 421 U.S. 35, 47 (1975). These presumptions can be
overcome only by demonstration of either a conflict of interest of the ALJ or another
specific reason for disqualification. McClure, 457 U.S. at 195. Furthermore, the
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Supreme Court has explained:
Judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge. They may do so
if they reveal an opinion that derives from an extrajudicial source; and
they will do so if they reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994). Moreover, even if a hearing is “less
than totally satisfactory,” remand is unwarranted unless the claimant can show
prejudice. Kelley v. Heckler, 761 F.2d 1538, 1540-41 (11th Cir. 1985). A showing of
prejudice “at least requires a showing that the ALJ did not have all of the relevant
evidence before him, or that the ALJ did not consider all of the evidence in the record
in reaching his decision.” Id. at 1540. The main concern is whether there are any
evidentiary gaps which would result in unfairness. Id.
Even if the ALJ’s consideration of the fact that Bailey was referred to Dr.
Blotcky by her attorney was inappropriate, there is no indication that it resulted in any
prejudice. The ALJ stated numerous other reasons for why she gave little weight to
Dr. Blotcky’s opinion: Dr. Blotcky’s findings were inconsistent with other medical
evidence on record, Dr. Blotcky was merely a one-time examining medical source, and
Dr. Blotcky’s assessment was contradicted by Bailey’s daily activities and semi-skilled
work history. These reasons constitute “substantial evidence” for discrediting Dr.
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Blotcky’s findings. Moreover, the ALJ’s consideration of Dr. Blotcky’s status as a
attorney-referred medical source did not require reference to evidence outside the
record. Cf. Miles, 84 F.3d at 1399–401 (finding that an ALJ demonstrated bias when
the ALJ, relying on extrajudicial knowledge, discredited a medical source’s opinion
because the medical source regularly provided favorable examination reports for
claimants).
Finally, Bailey did not raise the issue of bias before the Social Security Appeals
Council.3 Claims of bias on the part of an ALJ must be raised at the earliest
opportunity; otherwise, such claims are considered waived. See 20 C.F.R. §§ 404.940,
416.1440 (stating that, when a claimant suspects bias on the part of an ALJ, the
claimant “must notify the administrative law judge [or appeals council] at [the]
earliest opportunity”); Austin v. Astrue, 2:09-cv-1096-SRW, 2010 WL 2868217, at *9
(M.D. Ala. July 19, 2010) (“The plaintiff here . . . did not seek disqualification of the
ALJ at the earliest opportunity. By failing to do so, he has waived the issue of ALJ
bias.”); see also Miles, 84 F.3d at 1400 (stating that a claimant must notify either the
ALJ in question or the appeals council “at the earliest opportunity” whenever the

3

Bailey’s application for review merely states that her reason for requesting a review of the
ALJ’s determination is that “[c]laimant is disabled and entitled to disability benefits under the Social
Security Act.” (Tr. at 15.) Nowhere does the application mention bias on behalf of the ALJ.
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claimant has reason to believe the ALJ is biased).
IV.

Conclusion
Upon review of the administrative record, and considering all of Ms. Bailey’s

arguments, the Court finds the Commissioner’s decision is supported by substantial
evidence and in accord with the applicable law.

A separate Order will be entered.
Done this 17th day of February 2015.

L. Scott Coogler
United States District Judge
[177822]

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