Richardson v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION - Because the Commissioners 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. Signed by Magistrate Judge John H England, III on 9/29/2017. (KEK)

FILED
2017 Sep-29 AM 09:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
TRACEY RICHARDSON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Case No.: 16-cv-01135-JHE

MEMORANDUM OPINION1
Plaintiff Tracey Richardson (“Richardson”) 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 request for reconsideration of the
cessation of her supplemental security income (“SSI”) benefits.2 Richardson timely pursued and
exhausted her administrative remedies. This case is therefore ripe for review under 42 U.S.C.
§ 405(g). The undersigned has carefully considered the record and, for the reasons stated below,
the Commissioner’s decision is AFFIRMED.
Factual and Procedural History
Richardson protectively filed for SSI on February 19, 2003, alleging disability on that
date. (Tr. 72). On May 7, 2004, the Commissioner found Richardson disabled and issued a fully
favorable decision.

1

(Tr. 69-71).

On November 29, 2011, the Commissioner determined

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. 15).
2
The judicial review provisions for disability insurance benefits claims, 42 U.S.C. §
405(g), apply to claims for SSI. See 42 U.S.C. § 1383(c)(3).

Richardson’s disability had ceased as of November 1, 2011. (Tr. 87).

On January 11, 2012,

Richardson requested the agency reconsider the termination of her benefits, and, after review, the
agency denied Richardson’s claim on March 27, 2013. (Tr. 107). Richardson requested a
hearing, where she appeared on February 27, 2014.

(Tr. 36-65).

After the hearing, the

Administrative Law Judge (“ALJ”) denied Richardson’s claim on November 20, 2014. (Tr. 2031). Richardson sought review by the Appeals Council, but it declined her request on May 16,
2016.

(Tr. 1-7).

On that date, the ALJ’s decision became the final decision of the

Commissioner. On July 11, 2016, Richardson initiated this action. (See doc. 1).
At the date on which Richardson’s disability allegedly ceased, she was thirty-three years
old with a ninth-grade education and no past relevant work. (Tr. 30, 50). She alleges she is
unable to work due to mental retardation. (Tr. 93).
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. Richardson v. Perales,
402 U.S. 389, 390 (1971); 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). Substantial evidence is “such relevant evidence as a reasonable person would accept as

3

In general, the legal standards applied are the same whether a claimant seeks 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.
2

adequate to support a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.”
Id.
This Court must uphold factual findings supported by substantial evidence. “Substantial
evidence may even exist contrary to the findings of the ALJ, and [the reviewing court] may have
taken a different view of it as a factfinder. Yet, if there is substantially supportive evidence, the
findings cannot be overturned.”

Barron v. Sullivan, 924 F.2d 227, 230 (11th Cir. 1991).

However, the Court reviews the ALJ’s legal conclusions 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 sufficient reasoning for determining the
proper legal analysis has been conducted, it must reverse the ALJ’s decision. Cornelius v.
Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).
Statutory and Regulatory Framework
To qualify for disability benefits and establish his or her 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 twelve (12) months.” 20 C.F.R. § 404.1505(a). To
establish entitlement to disability benefits, a claimant must provide evidence of a “physical or

The “Regulations” promulgated under the Social Security Act are listed in 20 C.F.R.
Parts 400 to 499.
4

3

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. § 404.1508.
Once disability has previously been established, the Regulations provide a seven-step
process for determining whether a claimant continues to be disabled.

20 C.F.R.

§ 416.994(b)(5)(i-vii). The Commissioner must determine in sequence:
(1)

(2)
(3)
(4)

(5)

(6)

(7)

Whether the claimant has an impairment or combination of impairments that
meets or medically equals one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. If the claimant does, the claimant's disability continues. If
not, the evaluation proceeds to step two.
Whether the claimant has experienced medical improvement. If the claimant has,
the evaluation proceeds to step three; if not, the evaluation proceeds to step four.
Whether the claimant's medical improvement is related to her ability to work. If it
is, the evaluation proceeds to step five; if not, the evaluation proceeds to step four.
Whether an exception under 20 C.F.R. §§ 416.994(b)(3)-(4) applies. If no
exception applies, the claimant's disability continues. If an exception in (b)(3)
applies, the evaluation proceeds to step five. If an exception in (b)(4) applies, the
claimant is not disabled.
Whether the claimant has a medically severe impairment or combination of
impairments. If the claimant does, the evaluation proceeds to step six; if not, the
claimant is not disabled.
Whether the claimant is unable to perform any past relevant work. If the claimant
is unable to perform past relevant work, the evaluation proceeds to step seven; if
not, the claimant is not disabled.
Whether the claimant is unable to perform any other work within the national
economy. If the claimant is unable to do so, the claimant is disabled; if not, the
claimant is no longer disabled.

Allen v. Astrue, No. 3:11-CV-04322-KOB, 2013 WL 5519646, at *2 (N.D. Ala. Sept. 30,
2013) (citing 20 C.F.R. § 416.994(b)(5)). Medical improvement is defined as:
any decrease in the medical severity of [the claimant's] impairment(s) which
was present at the time of the most recent favorable medical decision that [he]
w[as] disabled or continued to be disabled. A determination that there has
been a decrease in medical severity must be based on changes (improvement)
in the symptoms, signs and/or laboratory findings associated with [the
claimant's] impairments.
4

20 C.F.R. § 404.1594(b). To terminate benefits, the Commissioner may not focus only on
current evidence of disability, but must also “evaluate the medical evidence upon which [the
claimant] was originally found to be disabled.” Solomon v. Comm'r, Soc. Sec. Admin., 532 F.
App'x 837, 839 (11th Cir. 2013) (quoting Vaughn v. Heckler, 727 F.2d 1040, 1043 (11th
Cir.1984) (per curiam)). To that end, “[a] comparison of the original medical evidence and the
new medical evidence is necessary to make a finding of improvement.” McAulay v. Heckler,
749 F.2d 1500, 1500 (11th Cir. 1985) (per curiam) (citation omitted). The Commissioner’s
decision is based on the weight of the evidence, with “no initial inference as to the presence or
absence of disability being drawn from the fact that [the claimant has] previously been
determined to be disabled.” 20 C.F.R. § 404.1594(b)(6).
Findings of the Administrative Law Judge
After consideration of the entire record and application of the sequential evaluation
process, the ALJ made the following findings:
Prior to beginning the sequential evaluation, the ALJ identified the May 7, 2004 decision
as the “comparison point decision” (“CPD”), which is the most recent favorable medical decision
finding that the claimant was disabled. (Tr. 24). The ALJ found that, at the time of the CPD,
Richardson had the medically determinable impairments of mental retardation (now intellectual
disability) and depression, and that those impairments had been found to meet Listing 12.05C.
(Id.). The ALJ also determined that as of November 1, 2011, Richardson had the medically
determinable severe impairment of organic brain disorder/borderline intellectual function. (Tr.
25).
At Step One, the ALJ determined that, since November 1, 2011, Richardson had not had
an impairment or combination of impairments that meets or medically equals one of the listed
5

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 25). At Step Two, the ALJ
found medical improvement had occurred as of November 1, 2011. (Tr. 26). At Step Three, the
ALJ found the medical improvement was related to Richardson’s ability to work because her
impairments no longer met or medically equaled the same listing met at the time of the CPD.
(Id.). Because the ALJ found medical improvement, he proceeded to Step Five, at which he
found Richardson had continued to have the severe impairment of borderline intellectual
functioning since November 1, 2011. (Id.).
Before proceeding to Step Six, the ALJ determined Richardson’s residual functioning
capacity (“RFC”), which is the most a claimant can do despite her impairments. See 20 C.F.R. §
404.1545(a)(1). The ALJ determined that, as of November 1, 2011, Richardson had the RFC to
perform a full range of work at all exertional levels but with the following
nonexertional limits: The claimant is able to understand, remember, and carry
out short, simple instructions but not detailed instructions. She is able to
attend to simple tasks for the two-hour periods required in competitive work
with regular scheduled breaks. She is able to handle casual or occasional
interaction with the public, co-workers, and supervisors; and she can handle
gradual and infrequent changes in the workplace. The claimant would need
assistance in setting goals.
(Tr. 27).
At Step Six, the ALJ found Richardson had no past relevant work. (Tr. 30). At Step
Seven, the ALJ determined, based on Richardson’s age, education, work experience, and RFC,
jobs exist in significant numbers in the national economy Richardson could perform. (Id.). The
ALJ concluded Richardson’s disability ended on November 1, 2011, and that she had not
become disabled again since that date; therefore, he denied her claim. (Tr. 31).

6

Analysis
Richardson raises three objections to the ALJ’s findings: (1) that the ALJ improperly
found medical improvement without evidence; (2) that the ALJ erred by finding Richardson has
the severe impairment of borderline intellectual functioning; and (3) that the ALJ erred by
finding Richardson did not meet Listing 12.05B. (Doc. 11 at 2). None of these grounds warrant
reversal.
A. The ALJ’s finding of medical improvement was supported by substantial
evidence.
Richardson argues the ALJ’s decision finding medical improvement in her previouslydisabling intellectual disability was unsupported by evidence, as it was inconsistent with IQ
scores and opinion evidence from 2002 and 2003. (Doc. 11 at 4-7).

The Commissioner

contends the ALJ, applying the proper standard, appropriately found medical improvement,
primarily based on the November 18, 2011 psychological examination of Dr. Michael Griffin.
(Doc. 12 at 8-11).
Richardson was initially found disabled at Listing 12.05C, a paragraph of the Listing now
called “intellectual disability,” but which was called “mental retardation” at the time of
Richardson’s CPD.5 The Listing provides:
Intellectual disability: 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.

5

Apart from the change in nomenclature, Listing 12.05 has remained unchanged in all
relevant respects since the date of Richardson’s CPD. Unless referring explicitly to the
Commissioner’s previous decision or to Richardson’s previous diagnoses, this memorandum
opinion will refer to the Listing and the condition as “intellectual disability.”
7

The required level of severity for this disorder is met when the requirements
in A, B, C, or D are satisfied.
...
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant
work-related limitation of function[.]
20 C.F.R. Part 404, Subpart P, Appendix 1, Section 12.05. When a claimant is found disabled at
a listing, the Regulations provide a specific set of instructions for determining whether medical
improvement related to the claimant’s ability to work has occurred:
If our most recent favorable decision was based on the fact that your
impairment(s) at the time met or equaled the severity contemplated by the
Listing of Impairments in appendix 1 of this subpart, an assessment of [the
claimant’s] residual functional capacity would not have been made. If medical
improvement has occurred and the severity of the prior impairment(s) no
longer meets or equals the same listing section used to make our most recent
favorable decision, we will find that the medical improvement was related to
[the claimant’s] ability to work . . . If the appendix level of severity is met or
equaled, the individual is deemed, in the absence of evidence to the contrary,
to be unable to engage in substantial gainful activity. If there has been
medical improvement to the degree that the requirement of the listing section
is no longer met or equaled, then the medical improvement is related to [the
claimant’s] ability to work.
20 C.F.R. § 404.1594(c)(3)(i).

Therefore, to analyze whether Richardson had experienced

medical improvement related to her ability to work, the ALJ was required to assess whether
Richardson still met the criteria of Listing 12.05C, and was required to do so by comparing the
new medical evidence to the evidence used on Richardson’s CPD to support the finding of
disability.
As the ALJ in this claim noted, Richardson’s disability on the date of her CPD was based
on consultative psychological evaluations performed by Dr. John R. Goff and Dr. Joseph E.
Maio. (Tr. 25, 73-75). Dr. Goff examined Richardson on November 15, 2002. (Tr. 240). Dr.
8

Goff observed that Richardson “has some difficulties as a historian, primarily because she is
functioning at such a low level cognitively.” (Id.). For example, Richardson could not recall
where she was born, her parents’ vocational activities when she was a child, any serious
accidents or illnesses during childhood or adolescence, repeating any grades in school, or,
generally, “much of anything.” (Id.). Although she was able to provide personal and current
information, recite the alphabet, and count backwards from twenty, Richardson was unable to
provide Dr. Goff with the name of the president, the previous president, the governor, or the
sheriff. (Tr. 241). Richardson reported she was depressed “all the time,” but could not say why.
(Id.). Richardson reported she had worked at McDonald’s for “a very short period.” (Id.).
Because Richardson had mentioned Social Security to the counselor who referred her to Dr. Goff,
Dr. Goff administered the 21-Item Test, which is “specifically designed to assess response bias,
that is to say, malingering.” (Id.). Richardson obtained a 16 on that test, from which Dr. Goff
concluded Richardson was not exaggerating her difficulties. (Id.).
Although he had been asked to examine Richardson for learning disabilities, Dr. Goff
stated he “really could not do that.” (Id.). Instead, he assessed Richardson’s intellectual function
by administering the Wechsler Adult Intelligence Scale (WAIS-III), as well as the ReitanIndiana Aphasia Screening Test and the Wide Range Achievement Test (WRAT-3). (Id.). On
the WAIS-III, Richardson obtained a full scale IQ score of 56, a verbal scale IQ score of 59, and
a performance or visuopractic IQ score of 60. (Id.). Dr. Goff observed that these scores fall
within the mildly retarded range of psychometric intelligence, with the full scale score falling
towards the lower end of that range. (Id.). Subscale scores were also “pretty consistent” with the
mildly retarded range. (Tr. 242). Utilizing the Reitan-Indiana Aphasia Screening Test, Dr. Goff
concluded Richardson was able to read a sentence at about the second-grade level (but not at the
9

fifth-grade level), unable to perform simple mathematical calculations on paper or mentally, and
had difficulty drawing a clock. (Id.). Based on Richardson’s scores on the WRAT-3, Dr. Goff
determined Richardson was at about a first-grade level for word recognition and a second-grade
level for spelling and arithmetic. (Id.). Richardson could identify a few single-syllable words
and the word “animal,” spell her name and half a dozen single-syllable words, and perform
simple addition and subtraction; however, Richardson was unfamiliar with multiplication,
division, or the use of decimals or fractions. (Id.).
Dr. Goff stated he could not assess Richardson’s adaptive skills, but concluded it was
“pretty apparent that they are deficient,” citing the facts Richardson does not drive a car and has
never had a driver’s license as well as her “deficits in functional academics.” (Id.). Thus, he
concluded she meets the criteria for substantial deficits in at least two adaptive areas. (Id.). Dr.
Goff also noted that he did not have Richardson’s school records, but based on Richardson’s
attestation she was in special education classes (which Dr. Goff noted was “almost assuredly the
case”), Dr. Goff found Richardson met the criteria for the existence of difficulties during the
developmental period.

(Id.).

Therefore, Dr. Goff concluded Richardson was not “a good

vocational rehabilitation candidate” and recommended she apply for SSI.

(Tr. 243).

He

diagnosed her with “Mental Retardation, low mild.” (Id.). He also stated he did not think
Richardson demonstrated a primary thought or mood disorder. (Id.).
Dr. Maio’s April 17, 2003 evaluation was less conclusive. Richardson stated she was
expelled from school in the tenth grade due to behavior problems and had a history of special
education. (Tr. 244). While Richardson said she had worked as a cook at McDonald’s for only
two weeks, Dr. Maio noted Richardson’s paperwork indicated she had worked there for over two
years; confronted with this, Richardson became flustered and said “It could have.”
10

(Id.).

Richardson reported no difficulties maintaining her personal care, although she stated she needed
help with grocery shopping and paying the bills because of her difficulties with handling money.
(Id.). Other than watching television, Richardson reported few activities. (Id.).
Dr. Maio characterized Richardson’s level of cooperation and reliability as “questionable.”
(Tr. 245). He noted discrepancies between Richardson’s responses earlier in the interview, when
she could not name the month, and later in the interview, when she “had no difficulty stating that
it was April.” (Id.). Dr. Maio was also suspicious of Richardson’s apparent difficulties in
counting backwards from twenty, observing that she was looking at the clock on the wall as she
did so. (Id.). Dr. Maio noted Richardson’s immediate recall was intact and her recent memory
fair, but that Richardson struggled with remote memory, possibly due to evasiveness or limited
intellectual ability. (Id.). Richardson appeared to reason concretely and had a lucid though
process, although she said that she heard voices. (Id.). Dr. Maio noted Richardson was unable to
provide details about these voices and had the impression Richardson could have been making
up that response; in any event, he concluded there was no psychosis. (Id.). Dr. Maio also
observed Richardson displayed a euthymic affect, although she reported feelings of depression,
loneliness, and isolation, with occasional suicidal thoughts (though she denied suicidal intent).
(Id.).
Dr. Maio also administered the WAIS-III. Richardson obtained a verbal scale IQ score of
59, a performance scale IQ score of 63, and a full scale IQ score of 57, with a 95 percent
confidence interval for the full scale score of 54-62; this placed Richardson in the mildly
deficient range. (Tr. 245-46). However, Dr. Maio observed Richardson’s effort and motivation
were weak and that “[i]t is possible she may have intentionally done poorly. Therefore, test
results may be an underestimate of abilities, although I suspect that she does function
11

intellectually at a low level.” (Tr. 245). Dr. Maio stated it was likely Richardson functioned in
the mildly deficient range, with a very limited ability to learn. (Tr. 246). Dr. Maio noted that “[a]
diagnosis of mental retardation would require assessment of deficits in adaptive functioning in
addition to the IQ scores.” (Id.). He also observed Richardson’s reported symptoms were
consistent with a major depressive disorder but could only provisionally diagnose that owing to
Richardson’s unreliable reporting.

(Tr. 246-47).

Because of the uncertainty surrounding

Richardson’s past work, Dr. Maio stated Richardson’s “actual degree of impairment overall is
hard to assess,” although he posited that if Richardson had worked for two years, she should still
have the ability to perform unskilled labor. (Tr. 247). He ultimately diagnosed Richardson with
mild mental deficiency (rule out mild mental retardation), with a provisional diagnosis of major
depressive disorder, moderate to severe. (Id.).
Assessing the consultative examiners’ opinions, the ALJ on Richardson’s CPD found
they presented “remarkably similar findings but different conclusions.” (Tr. 83). He resolved
these conflicts in part by noting Richardson’s earnings record confirmed that she had worked
weeks rather than years and that her “memory and concentration abilities [during Dr. Maio’s
examination] could well have been affected by her frustration at being unable to explain the
discrepancy or to convince Dr. Maio that she was being truthful.” (Id.). The ALJ also sided with
Dr. Goff’s diagnosis of mental retardation based on Dr. Goff’s recognition of Richardson’s
adaptive skills deficits in functional academics, transportation, and community services use over
Dr. Maio’s decision to refrain from diagnosing the condition due to lack of assessment of
adaptive skills deficits. (Id.).

The ALJ finally concluded that, although Dr. Goff had not

diagnosed a mood disorder, Dr. Maio’s provisional diagnosis of depression was consistent with
Richardson’s report to Dr. Goff and with her descriptions of her daily activities. (Tr. 83-84).
12

Implicit in this finding was the ALJ’s skepticism of Dr. Maio’s suspicions Richardson was
exaggerating her symptoms and thus unreliable. Based on this, the ALJ concluded Richardson
had the severe impairments of mental retardation and depression and found her disabled at
Listing 12.05C. (Tr. 75).
The ALJ in the current claim found medical improvement in both Richardson’s
depression and intellectual disability. (Tr. 26). To do so, he relied heavily on the opinion of Dr.
Michael Paul Griffin. (Tr. 25-26). Dr. Griffin evaluated Richardson on November 1, 2011, on a
referral from the Disability Determination Service. (Tr. 258). Richardson reported numerous
details of her personal and family history, including her birthplace (Marengo County, Alabama)
and where she was raised (mainly Demopolis, Alabama and Tuscaloosa, Alabama).

(Id.).

Richardson also reported that her father died when she was four years old, that her mother was
her primary caretaker, and that she has two brothers and five half-brothers, some of whom she is
close to. (Id.). Richardson also recounted details of her relationships with the three fathers of
her children, which included physical and emotional abuse. (Tr. 258-59).
Richardson reported more details of her educational background to Dr. Griffin than she
had previously provided to Dr. Goff and Dr. Maio. She stated she had completed ninth grade
and then dropped out after becoming pregnant with her first child, citing her inability to manage
raising her child and school demands. (Tr. 259). Richardson stated she planned to earn her GED
but had trouble finding time to do so. (Id.). She stated she had enjoyed school and gotten mostly
A’s, but failed the eighth grade for unspecified reasons; she also reported she had been in special
education math classes in seventh grade. (Id.). She reported a history of physical fights and
trouble at school due to “people messing with [her]” and that she had been suspended three times
and expelled once. (Id.). She denied this type of behavior at her workplaces, although she noted
13

she had been fired from her job at McDonald’s due to arriving to work late and angry after an
argument with one of her boyfriends, and that she “was not behaving wholly appropriate at work.”
(Id.). In addition to the year-long employment she reported with McDonald’s, Richardson
reported working at Hardee’s for a year. (Id.). Richardson reported handling her personal
finances, but suggested difficulties in handling money. (Id.).
As to her mental health, Richardson stated she had suffered from depression due to her
relationship problems with two of the fathers of her children. (Id.). She reported depressive
symptoms of mood fluctuations, ranging from sleeping all day to keeping busy to “try to stay
occupied.” (Id.). She stated she had “pretty serious” suicidal ideations in the past, but denied
having made suicidal gestures. (Tr. 259-60). Dr. Griffin noted Richardson had never received
inpatient or outpatient mental health treatment or been prescribed psychiatric medications by her
primary care provider. (Tr. 260). Dr. Griffin observed Richardson was open and cooperative,
put forth consistent effect, and was a good informant. (Tr. 261). She stated she felt happy “most
of the time” over the past month, was sad occasionally “because it is hard to get around [without
a license],” anxious twice, and “not at all” irritable, with no suicidal thoughts. (Id.).
In recounting the history of Richardson’s present illness, Dr. Griffin identified three
components based on the records provided (and completed) by Richardson’s mother: “mental”
problems, depression, and a learning disability.

(Tr. 260).

However, Richardson herself

identified no reasons why she was receiving disability benefits, and suggested several examples
of jobs she could do: stocking a warehouse, cooking at a restaurant, and being a housekeeper; she
did not report any of the conditions identified by her mother to be problematic enough to prevent
her from working. (Id.). Dr. Griffin opined the learning disability “suggested by records and
partly confirmed by her self-report” was likely a lifelong condition which has neither improved
14

nor worsened over time, and, similarly, the “mental” problems (which he took to mean difficulty
in interpersonal interaction) were likely to have remained relatively constant. (Id.). However, he
found Richardson’s symptoms of depression appeared to have been more acute in the past and
worsened by problems in her relationships or abuse by her partners. (Id.).
Dr. Griffin also questioned Richardson about her daily activities, which she reported as
waking early, helping her children prepare for school, cleaning the house, shopping for food,
doing the laundry, and cleaning up her yard. (Tr. 260-61). Somewhat contrary to her report to
Dr. Goff, Richardson stated she could drive, but lacked a license. (Tr. 261). Richardson
reported going to the park with her children and watching movies as activities she did for fun as
well noting she had more interests than she had had in the past. (Id.).
Based on his observation, Dr. Griffin concluded Richardson’s “self-reported clinical
presentation is not wholly consistent with an active psychiatric diagnosis at this time.” (Id.). He
noted that Richardson had potentially met the criteria for a depressive disorder in the past, she
reported no ongoing depressive symptoms, and the previous symptoms she described did not
appear to meet the criteria for a diagnosis. (Id.). Likewise, Richardson’s personality issues did
not warrant a diagnosis. (Id.). Dr. Griffin noted Richardson appeared to have a low average or
borderline IQ, and there was no information available at the time to support a diagnosis of
mental retardation; Richardson “did not display most of the deficits described by previous
evaluators, and she certainly did not reach the level of impairment suggested by the records
available.” (Id.). Therefore, Dr. Griffin diagnosed Richardson with borderline intellectual
functioning, which he said likely conformed to her history (contrary to her previous diagnoses of
mental retardation); regardless, Dr. Griffin opined Richardson’s intellectual functioning was “not
so impaired as to prevent her from working if she chooses to do so.” (Tr. 262) (emphasis in
15

original). Dr. Griffin also specifically declined to diagnose Richardson with depression, stating
she had not described “any ongoing depressive symptoms which would impact her ability to
maintain gainful employment” and that she would not require (though she would potentially
benefit from) ongoing mental health treatment in order to work. (Id.).
The ALJ’s conclusion medical improvement occurred was supported by substantial
evidence.

While Richardson argues there was “no evidentiary basis” for finding medical

improvement in the absence of new “objective evidence showing improvement in Ms.
Richardson’s cognitive functioning” and points to Dr. Griffin’s conclusion Richardson’s learning
disability, if any, had likely not changed over time, (doc. 11 at 7), she misstates the inquiry. The
ALJ did not find there had been improvement in Richardson’s cognitive functioning or IQ; he
found there had been an improvement in Richardson’s depression and adaptive functioning,
either of which would mean that Richardson did not satisfy the criteria of Listing 12.05C despite
her low IQ score. To the extent Richardson challenges Dr. Griffin’s opinion as “not supported
by any evidence” (and thus unable to support the Commissioner’s decision) because Dr. Griffin
did not administer objective tests, (doc. 13 at 3), Dr. Maio’s provisional diagnosis of depression
was, like Dr. Griffin’s opinion, based on his interactions with Richardson rather than any
objective testing. Dr. Goff’s analysis of Richardson’s adaptive skills were also not based on
objective testing. Dr. Goff specifically noted he “could not assess the patient’s adaptive skills”;
instead, he relied on the “pretty apparent” nature of the adaptive skills deficits based on
Richardson’s lack of a driver’s license, deficits in functional academics, and the fact she did not
drive a car. (Tr. 242). Dr. Griffin’s opinion as to adaptive deficits and depression is precisely as
valid a basis for the Commissioner’s decision as either of these opinions, notwithstanding Dr.
Griffin did not administer objective testing.
16

As to Richardson’s depression (which, coupled with a low IQ score, satisfied the “other
mental impairment imposing an additional and significant work-related limitation of function”
subsection of Listing 12.05C) the ALJ found at Step One of his inquiry that the evidence of
depression established “only mild limitations in activities of daily living, social functioning, and
concentrations, persistence and pace, and a single episode of decompensation that was not of
extended duration.” (Tr. 26). He found Dr. Griffin’s report provided evidence that, even if it
existed in the past, Richardson’s depression had improved to the extent it was no longer a
medically determinable condition. (Tr. 25-26). Both Dr. Goff and Dr. Griffin had declined to
diagnose depression, and the only diagnosis at the time of Richardson’s CPD—Dr. Maio’s—was
provisional, owing to his suspicions Richardson was an unreliable source for her symptoms.
Notably, the symptoms of which Dr. Maio was skeptical were inconsistent with the lack of
symptoms Richardson reported to Dr. Griffin. The ALJ also observed Richardson had reported
no symptoms of depression at the hearing. (Tr. 27). Richardson points to nothing evidencing
depression as a medically determinable impairment beyond November 1, 2011. Although the
ALJ noted several episodes of depression postdating that date when he assessed Richardson’s
RFC, he also stated the symptoms had not persisted for a 12-month period and that the medical
evidence nevertheless indicated improvement from the CPD. (Tr. 28-29).
Turning to Richardson’s functional abilities, the ALJ determined the “deficits in adaptive
functioning” component necessary to meet the diagnostic criteria in Listing 12.05’s introductory
paragraph—which are required for a finding of disability under any of the Listing’s
subparagraphs, see O'Neal v. Comm'r of Soc. Sec., 614 F. App'x 456, 459 (11th Cir. 2015) (citing
Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997)—were no longer present. A valid IQ
score of 70 or below creates a presumption of adaptive deficits manifesting prior to age 22,
17

which the Commissioner may rebut by presenting evidence of the claimant’s work history and
daily life. See O’Neal, 614 F. App’x. at 459-60 (citing Hodges v. Barnhart, 276 F.3d 1265, 1269
(11th Cir. 2001). The ALJ did so here. The only diagnosis in the record of mental retardation
was Dr. Goff’s, based, as noted above, on his observations about Richardson’s driving and
academic deficits. However, as the ALJ found, neither Dr. Griffin’s evaluation nor Richardson’s
testimony at the hearing support the deficits Dr. Goff identified. The ALJ noted Richardson was
readily able to provide information to Dr. Griffin she had previously claimed to be unable to
provide to Dr. Goff and Dr. Maio, and Richardson “testified that she runs her household,
manages the money, takes public transportation, and gets her children off to school every day.”
(Tr. 25, 43-49). The only limitations in her daily activities Richardson reported at the hearing
involved relying on others for transportation.

(Tr. 47-48).

While Dr. Goff relied on

Richardson’s reports of not driving and lacking a driver’s license, Richardson testified she had
never tried to obtain a driver’s license due to the fact she “had nobody to help teach [her] how to
learn how to drive,” (tr. 47), and Richardson stated to Dr. Griffin she knew how to drive, (tr.
261). The ALJ’s finding was supported by substantial evidence.
To counter this, Richardson points to two third-party function reports created by Gertrude
Hogan, Richardson’s friend or aunt-in-law, in 2011 and 2012 indicating Richardson required
assistance in shopping, paying bills, cleaning, washing, taking her medicine, and other activities.
(Doc. 11 at 6). Richardson also notes her own function report from May 21, 2012, prepared with
the assistance of Hogan, which alleged substantially the same restrictions as Hogan’s 2012 thirdparty function report. (Id.). Leaving aside that the role of the Court is not to reweigh the
evidence, Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.2005), the ALJ considered Hogan’s
and Richardson’s reports and assigned them little weight as inconsistent with each other (e.g.,
18

stating in 2011 that Richardson could perform essentially all activities except driving and using a
checkbook, (tr. 173-80), and alleging much greater restrictions in 2012 regarding general
activities and handling money, (tr. 198-205)), inconsistent with Richardson’s own testimony and
reports, and unsupported by the medical record. (Tr. 27-29). Richardson does not directly
contest the ALJ’s decision to do so, but that decision was supported by substantial evidence.
Based on a comparison of the evidence at Richardson’s CPD and the new evidence
presented to him, the ALJ’s finding of medical improvement in both Richardson’s depression
and her adaptive skills was supported by substantial evidence. Therefore, there is no basis to
reverse his decision.
B. The ALJ’s finding of borderline intellectual functioning as a severe
impairment was not reversible error.
Next, Richardson argues the ALJ erred by finding Richardson had the severe impairment
of borderline intellectual functioning.

(Doc. 7).

In support, she cites the Diagnostic and

Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), which defines “borderline
intellectual functioning” as an IQ in the 71-84 range. (Id.). Because Dr. Goff and Dr. Maio each
found IQ scores below this range and Dr. Griffin did no IQ testing, Richardson argues Dr.
Griffin’s statement Richardson “likely has a history of Borderline Intellectual Functioning — not
Mental Retardation” and accompanying diagnosis, (tr. 262), are “nothing more than supposition,
conjecture, and speculation.” (Doc 11 at 7-8).
Despite its framing, this appears to be essentially the same argument presented in
Richardson’s first allegation of error; the unstated conclusion is the ALJ erred by finding
borderline intellectual functioning instead of intellectual disability, which is the severe
impairment Richardson believes to be supported by the record. As discussed above, however,
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Richardson’s medical improvement means she does not meet the diagnostic criteria in Listing
12.05’s introductory paragraph. In the absence of the additional criteria that led to Richardson’s
diagnosis of mental retardation (and her original finding of disability), the ALJ was correct not to
rely on Dr. Goff’s diagnosis to supply a severe impairment. The evidence establishes if a severe
impairment exists, it is something other than intellectual disability.
Even assuming Dr. Griffin’s specific diagnosis of borderline intellectual functioning was
inappropriate absent additional IQ testing and thus that the ALJ should have labeled
Richardson’s condition something else, Richardson provides no authority to support that
amounts to reversible error when the ALJ’s analysis of her symptoms—whatever they should
have been called—was supported by substantial evidence, and when the RFC the ALJ
formulated accounted for those symptoms.6 Step Five in the cessation of benefits framework
mirrors Step Two in the five-step denial of benefits framework.
§ 416.994(b)(5)(v) with 20 C.F.R. § 404.1520(a)(4)(ii).

Compare 20 C.F.R.

Each acts as a filter to determine

whether the ALJ proceeds with the analysis or ends it with a finding of not disabled, and the fact
that a severe impairment was identified at all is sufficient to move the ALJ along to determining
how the claimant’s symptoms affect her ability to work. Cf. Jamison v. Bowen, 814 F.2d 585,
588 (11th Cir. 1987) (examining denial of benefits framework). Richardson’s argument is a
question of semantics; what the ALJ called the severe impairment is irrelevant to whether
reversible error—i.e., failing to find any severe impairment when one existed and thus ending the
analysis—occurred at Step Five. If an error resulted from the ALJ’s incorrect nomenclature, it
was harmless. Cf. Freeman v. Comm'r, Soc. Sec. Admin., 593 F. App'x 911, 914-15 (11th Cir.

6

Notably, Richardson does not challenge the RFC (apart from, obliquely, her general
attacks on the ALJ’s failure to find her disabled at the listings).
20

2014) (finding, in denial of benefits case, an ALJ’s alleged error in failing to find a particular
severe impairment was harmless when the ALJ considered the symptoms in subsequent steps).
C. The ALJ’s conclusion Richardson did not meet the criteria for Listing 12.05B
was supported by substantial evidence.
Richardson’s final argument is the ALJ erred in finding Richardson did not meet Listing
12.05B. (Doc. 11 at 8). She bases this on her low IQ scores, which she says are supported by Dr.
Goff’s opinion as to her adaptive skills deficits as well as her reports of daily functioning. (Id. at
8-9).

In addition to the requirements of “significantly subaverage general intellectual

functioning with deficits in adaptive functioning initially manifested during the developmental
period” common to all intellectual disability listings, Listing 12.05B requires a claimant to have
“[a] valid verbal, performance, or full scale IQ of 59 or less.” 20 C.F.R. § Pt. 404, Subpt. P, App.
1, Section 12.05.
Richardson contends all that is necessary to meet 12.05B is a valid IQ score of 59 or less.
(Doc. 11 at 8). In support, she cites Crayton v. Callahan, 120 F.3d 1217, 1219-20 (11th Cir.
1997). In Crayton, the court noted “[g]enerally, a claimant meets the criteria for presumptive
disability under section 12.05(b) when the claimant presents a valid IQ score of 59 or less.” Id.
at 1219. Immediately prior to that, however, the court noted the three diagnostic criteria in the
introductory paragraph: “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.” Id. A claimant’s IQ scores alone are insufficient to
establish disability under Listing 12.05B; as noted above, they create a rebuttable presumption of
adaptive deficits sufficient to meet the Listing’s diagnostic criteria. See O’Neal, 614 F. App’x. at
459-60 (citing Hodges, 276 F.3d at 1269)).
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Richardson’s argument she is disabled at Listing 12.05B fails for one of the same reasons
she is not disabled at Listing 12.05C: as described above, she lacks the adaptive deficits that
would satisfy the Listing’s diagnostic criteria. Even though she presented valid IQ scores that
would satisfy the criteria in paragraph B, the evidence of Richardson’s daily living identified by
the ALJ in rejecting Richardson’s original finding of disability at Listing 12.05C rebuts any
presumption of adaptive deficits that arose from the IQ scores. Therefore, it was not error that
the ALJ did not find Richardson disabled at Listing 12.05B, and his decision is supported by the
same substantial evidence that supports his conclusion Richardson is not disabled at Listing
12.05C because she does not meet the Listing’s diagnostic criteria.
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.
DONE this 29th day of September, 2017.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

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