Self v. Social Security Administration, Commissioner

Filing 13

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 12/4/2014. (AVC)

FILED
2014 Dec-04 PM 02:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
TRACY SELF,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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6:13-cv-01702-LSC

MEMORANDUM OF OPINION
I.

Introduction
The plaintiff, Tracy Self, appeals from the decision of the Commissioner of the

Social Security Administration (“Commissioner”) denying his application for a
period of disability and Disability Insurance Benefits (“DIB”). Mr. Self timely
pursued and exhausted his administrative remedies and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Mr. Self was forty-seven years old at the time of the Administrative Law
Judge’s (“ALJ’s”) decision, and he has a tenth grade education. (Tr. at 140.) His past
work experiences include employment as a heavy equipment operator, production
worker, and rock truck driver. (Tr. at 143, 156.) Mr. Self claims that he became
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disabled on September 8, 2010, due to osteoarthritis/degenerative disk disease of the
lumbar spine, degenerative joint disease of the right shoulder status post shotgun
wound, degenerative joint disease of the left knee, diabetes mellitus, obesity, a
depressive order, an anxiety disorder, and borderline intellectual abilities. (Tr. at 12.)
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 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

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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
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).

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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.
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 Mr. Self meets
the non-disability requirements for a period of disability and DIB and was insured
through the date of her decision. (Tr. at 12.) She further determined that Mr. Self has
not engaged in substantial gainful activity since the alleged onset of his disability. (Id.)
According to the ALJ, Plaintiff’s osteoarthritis/degenerative disk disease of the
lumbar spine, degenerative joint disease of the right shoulder status post shotgun
wound, diabetes mellitus, obesity, a depressive disorder not otherwise specified, and
an anxiety order not otherwise specified are considered “severe” based on the
requirements set forth in the regulations. (Id.) However, she found that these

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impairments neither meet nor medically equal any of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 13.) The ALJ determined that Mr.
Self has the following RFC: less than the full range of light work; he can occasionally
lift and/or carry up to twenty pounds and frequently lift and/or carry up to ten
pounds; he can stand and/or walk, in combination with normal breaks, for up to six
hours during an eight hour workday; he can sit, with normal breaks, for up to eight
hours during an eight-hour workday; he cannot be required to perform push/pull
movements with his right upper extremity or reach above the shoulder level; he has
no limitations in his abilities to perform fine and gross manipulations; he can
frequently climb ramps and stairs; he should never climb ladders, ropes, or scaffolds;
he can frequently balance and occasionally kneel, stoop, and crouch but never crawl;
he should avoid concentrated exposure to extreme cold and areas of vibration; he
should avoid all exposure to industrial hazards; he can perform simple routine tasks
requiring no more than short simple instructions and simple work-related decision
making with few workplace changes; he can have occasional interaction with members
of the general public. (Id.)
According to the ALJ, Mr. Self is unable to perform any of his past relevant
work, he is a “younger individual,” and he has a “limited education,” as those terms

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are defined by the regulations. (Tr. at 20.) She also determined that transferability of
skills is not an issue in this case. (Id.) After eliciting testimony from a vocational expert
(“VE”), the ALJ determined that there is a significant number of jobs in the national
economy that Mr. Self is capable of performing, such as bond machine tender, scale
operator, and plastic parts inspector. (Id.) The ALJ concluded her findings by stating
that Plaintiff “was not under a ‘disability,’ as defined in the Social Security Act, at any
time through the date of this 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
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

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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,
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).

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III.

Discussion
Mr. Self alleges that the ALJ’s decision should be reversed and remanded for

four reasons. First, he believes that the ALJ should have found him disabled under
Listing 12.05(C) (mental retardation) at step two of the sequential evaluation process.
(Doc. 9 at 13.) Second, Plaintiff contends that the ALJ did not properly assess his
impairments in combination at step two. (Doc 9 at 16.) Third, he believes that the
ALJ erred in finding him not credible with regard to his statement that he could not
afford treatment. (Doc 9 at 19.) Finally, Plaintiff contends that the ALJ showed a clear
bias against him at his hearing. (Doc 9 at 21.)
A.

The ALJ’s Alleged Failure to Consider Listing 12.05(C) (mental
retardation) at Step Two

To meet a listing, a plaintiff must show a diagnosed condition that is included
in the listings and provide objective medical reports documenting that his condition
meets the specific criteria of the applicable listing and the duration requirement. See
20 C.F.R. § 404.1525. A diagnosis, alone, is insufficient to meet a listing. Wilson v.
Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002). “For a claimant to show that his
impairment matches a listing, it must meet all of the specified medical criteria. An
impairment that manifests only some of the criteria, no matter how severely, does not

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qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
The ALJ must consider whether a claimant’s impairment meets or equals a
listing at step two of the sequential evaluation. Todd v. Heckler, 736 F.2d 641, 642 (11th
Cir. 1984). However, the ALJ need not mechanically recite the fact that a claimant
does not meet a listing in his decision, as this fact may be implied from the record.
Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986). Furthermore, if substantial
evidence supports the ALJ’s implicit decision that the claimant’s impairment did not
meet a listing, then an implied finding may be sufficient. Keane ex rel. Parcelles v.
Comm’r of Soc. Sec., 205 F. App’x 748, 751 (11th Cir. 2006) (citing Hutchison, 787 F.2d
at 1463).
Under Listing 12.05(C), 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. Subpart C requires a valid verbal,
performance, or full scale IQ of 60 through 70 and physical or other mental
impairments imposing an additional and significant work-related limitation of
function. Crayton v. Callahan, 120 F.3d 1217, 1219-20 (11th Cir. 1997).
In the present case, Mr. Self contends that the ALJ did not mention Listing
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12.05(C) in the decision but that there is substantial evidence to support that he met
the listing. (Doc. 9 at 14.) In support, he notes that Dr. Alan Blotcky, Ph.D., who
consultatively examined Plaintiff in April 2012 at the request of his attorney,
administered an IQ test to Plaintiff, and Plaintiff’s full scale score was 70. (Tr. at 325.)
Dr. Blotcky stated that this score placed Plaintiff in the lower end of the borderline
range of intellectual functioning. (Id.)
However, there is substantial evidence to support the ALJ’s implicit decision
that Mr. Self did not meet that particular listing. As an initial matter, Plaintiff cannot
prove mental retardation with a diagnosis of functioning in the borderline range of
intellectual functioning. See Jordan v. Comm’r, 470 F. App’x 766, 768-69 (11th Cir.
2012) (borderline intellectual functioning is a diagnosis mutually exclusive of mental
retardation). The clinical impression of borderline intellectual functioning rebuts the
presumption of deficits in adaptive functioning, because an individual with borderline
intellect does not have deficits in adaptive functioning manifested during the
developmental period. Since Dr. Blotcky deemed the IQ score of 70 valid, his clinical
impression that Plaintiff functions in the borderline range of intellectual functioning,
means he determined that Plaintiff’s mental impairment did not exhibit deficits in
adaptive functioning during the developmental period, as required for a diagnosis of

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mental retardation. Thus, Plaintiff failed to establish he meets or equals the mental
retardation listing even with an IQ score at 70. See Harris v. Comm’r, 2013 WL
363008, at *1 (11th Cir. Jan. 30, 2013) (affirming the ALJ’s finding that claimant did
not meet mental retardation listing despite a qualifying IQ score).
Furthermore, the ALJ discounted Dr. Blotcky’s diagnosis of borderline
intellectual functioning because it was inconsistent with Plaintiff’s past work, which
the VE testified was skilled to semi-skilled. (Tr. at 19, 70.) “A valid IQ score is not
conclusive of mental retardation when the IQ score is inconsistent with other evidence
in the record about claimant’s daily activities.” Outlaw v. Barnhart, 197 F. App’x 825,
827 (11th Cir. 2006)) (citing Popp v. Heckler, 779 F.2d 1487, 1499 (11th Cir. 1986)). In
Outlaw, the court held that the claimant did not establish that he was disabled under
Listing 12.05(C) because IQ scores from his development period showed he had an IQ
of about 70, two psychologists concluded that he functioned in the borderline range
of intellectual functioning, he had a long work history in semi-skilled positions and his
daily activities were inconsistent with adult IQ scores. Id. at 826-27; see also Humphries
v. Barnhart, 183 F. App’x 887, 889 (11th Cir. 2006) (holding that that ALJ’s finding
that the claimant did not meet listing 12.05(C) was supported by substantial evidence
despite her IQ of 65, because she did not have deficits in her adaptive functioning and

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she had worked in a school cafeteria for 21 years and as a manager had five employees
under her supervision). The ALJ’s findings are also bolstered by the fact that Dr.
Blotcky met with the plaintiff on just one occasion and thus was not due any particular
deference as he was not a treating physician. Perkins v. Commissioner, 553 F. App’x
870 (11th Cir. 2014) (holding that ALJ’s decision to not credit a physician was
supported in party by the fact that the physician was not a treating physician).
The categorization of borderline intellectual functioning coupled with the ALJ’s
finding that the diagnosis did not accord with the plaintiff’s past relevant work are
sufficient to support an implicit decision from the ALJ that Plaintiff did not meet
Listing 12.05(C).
B.

The ALJ’s Assessment of Plaintiff’s Impairments in Combination

Next, Plaintiff argues that the ALJ did not properly assess the combination of
impairments that as a whole created total disability to perform gainful employment.
Social Security regulations require the ALJ to consider the combined effects of all
impairments in evaluating disability:
In determining whether your physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under the law, we will
consider the combined effect of all of your impairments without regard
to whether any such impairment, if considered separately, would be of
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sufficient severity. If we do find a medically severe combination of
impairments, the combined effect of the impairments will be considered
throughout the disability determination process. If we do not find that
you have a medically severe combination of impairments, we will
determine that you are not disabled.

20 C.F.R. § 404.1523. The Eleventh Circuit has reiterated this point. Walker v. Bowen,
826 F.2d 996, 1001 (11th Cir. 1987). However, the Eleventh Circuit has “repeatedly
held that an ALJ’s finding regarding a claimant’s ‘impairment or combination of
impairments’ established that the ALJ had indeed considered the impact of the
claimant’s combined impairments.” Reliford v. Barnhart, 157 F. App’x 194, 196 (11th
Cir. 2005) (citing Wilson v. Barnhart, 284 F.3d 1219, 1224-25 (11th Cir. 2002)); see also
Hutchinson v. Astrue, 2011 WL 148062, at *1-2 (11th Cir. Jan. 7, 2012) (“The ALJ
specifically stated that Hutchinson did not have an ‘impairment, individually or in
combination, that met one of the listed impairments in evaluating step three of the
process. That statement shows that the ALJ considered the combined effects of
Hutchinson’s impairments during her evaluation.”).
In this case, the ALJ satisfied her burden by stating, “the 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 CFR Part 404, Subpart P, Appendix 1
(20 CFR §§ 404.1520(d), 404.1525 and 404.1526). (Tr. at 13.) This statement is
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sufficient to indicate that the ALJ considered the impairments in combination.
Furthermore, in her decision, the ALJ discussed particular impairments at length. (Tr.
at 13-14.) Therefore, the ALJ has given sufficient information to allow this Court to
“conclude that [the ALJ considered [the claimant’s] medical condition as a whole.
Dyer v. Barnhart, 395 F.3d at 1210 (“There is no rigid requirement that the ALJ
specifically refer to every peice of evidence in [her] decision . . . .”). As such, the ALJ
properly assessed Plaintiff’s combination of impairments.
C.

The ALJ’s Credibility Determination

In making a credibility evaluation, the ALJ considers objective medical evidence
and information from Plaintiff and treating or examining physicians, as well as other
factors such as evidence of daily activities, the frequency and intensity of pain, any
precipitating or aggravating factors, medication taken and any resulting side effects,
and any other measures taken to alleviate the pain. See 20 C.F.R. § 404.1529. A
credibility determination is a question of fact: like all factual findings by the ALJ, it is
subject only to limited review in the courts to ensure the finding is supported by
substantial evidence. See Hand v. Heckler, 761 F.2d 1545, 1548-49 (11th Cir. 1985),
vacated for rehearing en banc, 774 F.2d 428 (11th Cir. 1985), reinstated sub nom. Hand
v. Bowen, 793 F.2d 275 (11th Cir. 1986). The ALJ, not the Court, evaluates witnesses’

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credibility. See Richardson v. Perales, 402 U.S. 389, 400 (1971). Indeed, “credibility
determinations are the province of the ALJ.” Moore v. Barnhart, 405 F.3d 1208, 1212
(11th Cir. 2005).
Here, Plaintiff specifically contends that the ALJ erred in not finding credible
his allegation that he could not afford treatment. However, the ALJ gave cogent
reasons for discounting this testimony. (Tr. at 18.) Specifically, the ALJ found that
“there is no indication in the record that the claimant has sought government
subsidized health care or sought health care and been turned down due to financial
reasons.” (Id.) The ALJ also added that the claimant was using tobacco and alcohol,
indicating that he did have access to funds, but was not utilizing them for medical care.
(Id.) Finally, the ALJ noted that Plaintiff testified that he was “embarassed” to ask for
help, which undercut his claim of financial restrictions. (Tr. at 56.)
The ALJ found Plaintiff not credible for several other reasons as well. First, the
ALJ noted Plaintiff’s mental and physical impairment treatment has been entirely
conservative (tr. at 15-16), and Plaintiff does not challenge this conclusion on appeal.
See Sheldon v. Astrue, 268 F. App’x 871, 872 (11th Cir. 2008) (“conservative medical
treatment for a particular condition tends to negate a claim of disability”). Plaintiff
testified that his treating source never referred him to a mental health professional.

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(Tr. at 51). The Eleventh Circuit has affirmed an ALJ decision to discredit a
claimant’s testimony regarding nonexertional impairments, such as pain, where the
claimant’s treatment was “entirely conservative in nature.” Wolfe v. Chater, 86 F.3d
1072, 1078 (11th Cir. 1996). The ALJ also noted Plaintiff has not been compliant with
his medication regimen. (Tr. at 15-16). The ALJ properly considered Plaintiff’s failure
to follow the recommendations of his doctors as evidence undermining the credibility
of his allegations, in accordance with the regulations and case law. (Tr. at 15). See 20
C.F.R.§ 404.1529; Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003). Given the
foregoing, the ALJ properly found Plaintiff’s credibility lacking.
D.

The Allegation that the ALJ was Biased against Plaintiff

Finally, Plaintiff argues that the ALJ showed clear bias against him when he
chastised him at the hearing for not seeking low or no cost mental health treatment.
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 v.
Chater, 84 F.3d 1397, 1401 (11th Cir. 1996) (citing 20 C.F.R. § 404.940). The ALJ
plays a crucial rule in the disability review process and “not only is he duty-bound to
develop a full and fair record, he must carefully weigh the evidence, giving

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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
only be overcome by demonstration of either a conflict of interest of the ALJ or
another specific reason for disqualification. McClure, 457 U.S. at 195. The burden of
overcoming these presumptions rests with the plaintiff. Id. at 196. Furthermore, the
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). Expressions of impatience,
dissatisfaction, annoyance, and even anger, without the establishment of bias, are
within the bounds of what imperfect men and women occasionally display. Id at 556.
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

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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.
In the case of the plaintiff, he is undoubtedly entitled to a full and fair hearing.
However, he has not successfully overcome the presumption that the ALJ is unbiased.
Here, despite the fact that the hearing may have been “less than totally satisfactory”
to Plaintiff or the ALJ may have given remarks that were critical or disapproving, there
is nothing in the record to show there are evidentiary gaps that resulted in unfairness.
Thus, the ALJ did not act with a clear bias.
IV.

Conclusion
Upon review of the administrative record, and considering all of Mr. Self’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 4th day of December 2014.

L. Scott Coogler
United States District Judge
[160704]

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