Andrews v. Astrue
Order that the decision of the Commissioner of Social Security denying plaintiff's benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 11/23/2011. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CHRISTOPHER L. ANDREWS,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
) CIVIL ACTION NO. 10-00524-N
Plaintiff Christopher L. Andrews, filed this action seeking judicial review of a
final decision of the Commissioner of Social Security (“Commissioner”) that he was not
entitled to disability insurance benefits (“DIB”) and Supplemental Security Income
(“SSI”) under Titles II and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401433 and 1381-1383c. Pursuant to the consent of the parties (doc. 20), this action has been
referred (doc. 22) to the undersigned Magistrate Judge to conduct all proceedings and
order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed. R.Civ.P. 73.
Further, plaintiff’s unopposed motion to waive oral arguments (doc. 19) was granted on
July 29, 2011 (doc. 21). Upon consideration of the arguments of counsel, the
administrative record (doc. 12), and the parties’ respective briefs (docs. 13 as
supplemented by 15, and 17), the undersigned recommends that the decision of the
Commissioner be AFFIRMED.
Plaintiff, Christopher L. Andrews, filed an application for disability insurance
benefits (“DIB”) on November 7, 2005, claiming an onset of disability as of August 26,
2004 (Tr. 63-67). Andrews also filed an application for Supplemental Security Income
(“SSI”) benefits on November 7, 2005 (Tr. 210-214), with a protective filing date of
November 3, 2005 (Tr. 215). These applications1 were initially denied2 and a request for
hearing was filed on March 30, 2006 (Tr. 55). A hearing before an Administrative Law
Judge (“ALJ”), specifically the Honorable Glay Maggard (“Judge Maggard”), was held
on July 10, 2007 (Tr. 543-58) at which there was no vocational expert. At that hearing,
plaintiff amended his alleged onset date to July 1, 2005(Tr. 82).
Judge Maggard issued a decision on August 13, 2007, denying plaintiff’s
applications (Tr. 222-32). Although Judge Maggard found that plaintiff suffers from the
severe impairments of diabetes mellitus, peripheral neuropathy, hypertension,
osteoarthritis versus arthralgias/myalgias, and obesity (Tr. 227), he determined that
plaintiff retains the residual functional capacity to perform light work with no climbing of
ladders, ropes, or scaffolding, and no more than occasional balancing, stooping, kneeling,
Plaintiff filed his first set of applications for SSI and DIB on November 4, 2005 (Tr. 6367, 210-14), and a subsequent set of applications on October 17, 2007 (Tr. 448-56). The Appeals
Council ordered the ALJ to consolidate Plaintiff’s claims on remand (Tr. 242). See 20 C.F.R. §§
404.952(a)(2) (if the ALJ consolidates the claims, he will decide both claims), 416.1452(a)(2)
Under 20 C.F.R. §§ 404.906, 416.1406 (2010) after the initial determination, the claim
immediately proceeded to an administrative hearing. No request for reconsideration was
required. All references to the Code of Federal Regulations (C.F.R.) are to the 2010 edition.
crouching, crawling, or climbing of ramps/stairs. (Tr. 228). Judge Maggard explicitly
adopted the opinions of the State Agency medical consultant in determining these
limitations. (Tr. 229 and 230). Judge Maggard stated that the “conclusory opinions” of
Dr. Gibbs and Dr. Lane, that Mr. Andrews is “100 percent disabled”, are entitled to no
evidentiary weight. (Tr. 230).
Based upon his residual functional capacity determination, Judge Maggard found
that plaintiff cannot perform any past relevant work, which had consisted of a tire
changer, a lumber flipper, and a truck driver (Tr. 230-31). Judge Maggard ultimately
concluded that “there are jobs that exist in significant numbers in the national economy
that [Andrews] can perform” and that, consequently, he was not disabled. (Tr. 231-32).
Andrews’ request for a review of Judge Maggard’s decision (Tr. 233-34) was
granted by the Appeals Council, which then remanded the claim for further
administrative proceedings. In it’s order of remand dated June 19, 2008, the Appeals
Council directed that additional evidence concerning plaintiff’s mental impairment be
obtained in order to complete the administrative record (Tr. 240-42).
A second ALJ, the Honorable Katie Pierce (herein “the ALJ”), held a hearing on
January 23, 2009, at which both Andrews and an impartial vocational expert testified.
On March 13, 2009, Judge Pierce issued an unfavorable decision (Tr. 14-27). Judge
Pierce specifically concluded that Andrews “does not have an impairment or combination
of impairments that meets or medically equals one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1525, 404.1526 and 416.926).” (Tr. 18-
20). Judge Pierce also concluded that Andrews retains the residual functional capacity to
perform sedentary work with certain limitations. (Tr. 20).
Andrews’ request for a review of Judge Pierce’s decision was denied by the
Appeals Council on August 20, 2010 (Tr. 7-9), making the second ALJ’s decision the
final administrative decision. See 20 C.F.R. §§ 404.981, 416.1481. Andrews now appeals
from that decision and all administrative remedies have been exhausted.
I. Issues on Appeal.
Whether the ALJ failed to address the ability of Andrews to work at a
production pace and thus erred in concluding that there would be jobs existing in
significant numbers in the national economy available to Andrews?
Whether the ALJ erred when he found that Andrews did not meet Listed
II. Standard of Review.
In reviewing claims brought under the Act, this Court's role is a limited one.
Specifically, the Court's review is limited to determining: 1) whether the decision is
supported by substantial evidence, and 2) whether the correct legal standards were
applied. See, 42 U.S.C. § 405(g); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999);
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Thus, a court may not decide
the facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996); Sewell v. Bowen,
792 F.2d 1065, 1067 (11th Cir. 1986). Rather, the Commissioner's findings of fact must
be affirmed if they are based upon substantial evidence. Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997); Chater, 84 F.3d at 1400; Brown v. Sullivan, 921 F.2d 1233,
1235 (11th Cir. 1991). See also, Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990)(“Even if the evidence preponderates against the Secretary's factual findings, we
must affirm if the decision reached is supported by substantial evidence.”); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (finding that substantial evidence is
defined as “more than a scintilla but less than a preponderance,” and consists of “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion[ ]”). In determining whether substantial evidence exists, a court must view the
record as a whole, taking into account evidence favorable as well as unfavorable to the
Commissioner's decision. Lynch v. Astrue, 358 Fed.Appx. 83, 86 (11th Cir. 2009);
Martino v. Barnhart, 2002 WL 32881075, * 1 (11th Cir. 2002); Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986).
A. Production Pace.
Andrews’ first assignment of error is that the ALJ “fails to address whether Mr.
Andrews can perform work at a production pace.” (Doc. 13 at 6). Andrews then argues
that, because this determination of production pace was critical to any determination that
“there would be jobs existing in significant numbers in the national economy available to
Mr. Andrews,” the ALJ necessarily erred in determining otherwise. Andrews relies, inter
alia, on Winschel v. Commissioner of Social Sec., 631 F.3d 1176 (11th Cir. 2011), for its
Next, Winschel argues that the ALJ’s finding of no disability is
not supported by substantial evidence because the hypothetical question
upon which the vocational expert based his testimony omitted Winschel’s
moderate limitations in maintaining concentration, persistence, and pace,
despite the ALJ’s finding that Winschel’s mental impairments caused such
At step five, the Commissioner must determine that significant
numbers of jobs exist in the national economy that the claimant can
perform. Phillips, 357 F.3d at 12393; 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). An ALJ may make this determination either by applying
the Medical Vocational Guidelines or by obtaining the testimony of a
vocational expert. Phillips, 357 F.3d at 1239-40. “In order for a vocational
expert’s testimony to constitute substantial evidence, the ALJ must pose a
hypothetical question which comprises all of the claimant’s impairments.”
Wilson v. Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (per curiam).
* * *
In this case, the ALJ determined at step two that Winschel’s
mental impairments caused a moderate limitation in maintaining
concentration, persistence, and pace. But the ALJ did not indicate that
medical evidence suggested Winschel’s ability to work was unaffected by
this limitation, nor did he otherwise implicitly account for the limitation in
the hypothetical. Consequently, the ALJ should have explicitly included the
limitation in his hypothetical question to the vocational expert. Because the
ALJ asked the vocational expert a hypothetical question that failed to
include or otherwise implicitly account for all of Winschel’s impairments,
the vocational expert’s testimony is not “substantial evidence” and cannot
support the ALJ’s conclusion that Winschel could perform significant
numbers of jobs in the national economy. Accordingly, we reverse. On
remand, the ALJ must pose a hypothetical question to the vocational expert
that specifically accounts for Winschel’s moderate limitation in maintaining
concentration, persistence, and pace. Reversed and Remanded.
(Doc. 15 at 1-2, quoting Winschel, 631 F.3d at 1180-81. Winschel is, however, clearly
distinguishable from the case at bar.
Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004).
Unlike the ALJ in Winschel, Judge Pierce specifically included in her second
hypothetical to the Vocational Expert not only the limitation of performing only one to
two step tasks, but the limitation of an individual who can maintain concentration and
attention for two hours at a time, with no “limitation of being unable to work at
production rate and pace.” (Tr. 570) It was in answer to this second hypothetical that the
Vocational Expert identified the job of an “Assembler, sedentary, unskilled, which is one
to two step” and is available to Andrews in the following numbers: approximately
104,000 in the national economy, 1,600 regionally and 100 locally. (Tr. 570). Two other
jobs were identified by the Vocational Expert in answer to this second hypothetical: (1) a
“Surveillance system monitor [which] is also sedentary and unskilled with SVP level
two” and is available to Andrews in the following numbers: approximately 103,000 in the
national economy, 15,000 regionally and 102 locally, and (2) a “Gate guard” of which
approximately 250,000 jobs exists in the national economy, 25,000 regionally and 100
locally. (Tr. 570). Although it is true that Judge Pierce did not refer to Andrews’ ability
to perform work at a production pace in the residual functional capacity set forth at her
Finding of Fact No. 5,4 there is no doubt that she adopted that position because she
Finding of Fact No 5 states:
After careful consideration of the entire record, the undersigned finds that the claimant
has the residual functional capacity to perform sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except that he can occasionally climb ramps and stairs, but
cannot climb ropes, ladders or scaffolding. The claimant can occasionally stoop, kneel,
crouch or crawl. He cannot perform overhead work with the left upper extremity. The
claimant can perform jobs requiring one or two step tasks and he can concentrate for up
to 2 hours at a time.
specifically relied upon the Vocational Expert’s answer to her second hypothetical
question to find as follows:
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
104.1569a, 416.969, and 416.969a).
(Tr. 26, Finding of Fact No. 10). Judge Pierce did state in her decision that “[w]ith
regard to concentration, persistence or pace, the claimant has moderate difficulties” (Tr.
19), which clearly refers to a finding by Donald E. Hinton, Ph.D., the State Agency
psychiatrist (Tr. 22, 494). Andrews contends that the ALJ “fails to indicate whether this
“moderate” deficiency in persistence or pace translates into work-related limitations.”
(Doc. 13 at 8). Consequently, Andrews argues that:
It could be reasonably inferred that a “moderate” deficit in ability to
maintain persistence or pace would translate into the inability to reliably
sustain the persistence or pace required for production level work. The
absence of a specific finding of fact by the ALJ on this key issue leaves a
reviewing court no basis for determining whether the Commissioner’s
decision is supported by substantial evidence.
(Id. at 9). However, in addition to removing the word “concentration” from the
functional limitation at issue, namely “Difficulties in Maintaining Concentration,
Persistence or Pace” (Tr. 494, emphasis added), Andrews points to no evidence in the
record which supports an inference that his deficiency was in fact one relating to “pace”
as opposed to “concentration” or “persistence.” As stated above, the ALJ included in her
(Tr. 20). Unlike Pendley v. Heckler, 767 F.2d 1561, 1563 (11th Cir. 1985), another case
relied upon by Andrews, the ALJ in this case did “pose a hypothetical question to the vocational
expert which comprehensively describes [Andrews’] impairments.’
second hypothetical a limitation in the ability to concentrate to “2 hours at a time.” Dr.
Hinton’s report confirms that Andrews’ “ability to complete a normal workday and
workweek without interruptions from psychologically based symptoms and to perform at
a consistent pace without an unreasonable number and length of rest periods” is “not
significantly limited.” (Tr. 499). Dr. Hinton further concluded that Andrews is “able to
understand, remember and to carry out short and simple instructions [and] is able to
concentrate and attend for reasonable periods of time.” (Tr. 500). In addition, the record
contains the finding of Dr. Stephen West, an examining consultant, that all of Andrews’
joints showed full range of motion and his only limitation involved his left shoulder. (Tr.
22, 482). The record also contains the report of Dr. Warren G. Brantley, Ph.D., who
examined Andrews on December 30, 2007. Dr. Brantley noted not only that Andrews
exhibited “blatant malingering on testing” but that he “walked with a non-perscriptive
aluminum cane (with no wear on the handle or on the rubber tip of the cane).” (Tr. 478480). Dr. Brantley specifically found, with respect to “Concentration, Attention and
Blatant malingering began. [Andrews] could not do serial 7s, serial 2s, or
simple serial 1s from 5. He could not sum any examples (even 1 + 1) or
multiply any examples. He said he had “50” remaining when he subtracted
a quarter from a dollar. He knew how many quarters and dimes were in a
dollar, but said he did not know pennies and that there were “30” nickels.
He was able to count from 1 to 20 very slowly, back to 1 with four
omissions, mixed up the alphabet and omitted two letters, knew two-thirds
of basic shapes and all basic colors. He said he did not know how to spell
“CAT.” Attention and concentration clearly are unimpaired.
Malingering continued on memory repeating two digits forward, two in
reverse and remembering one of three objects in five minutes. He mixed up
the numbers in his Social Security number and of his zip code; but knew his
telephone number and area code; address, town, and state. He knew the
ages of his daughters, but said he did not know their dates of birth.
Memory presents as unimpaired. Understanding is consistent with
(Tr. 479)(emphasis added). The Eleventh Circuit in Winschel recognized, in the
paragraph omitted by Andrews in his brief, that:
[W]hen medical evidence demonstrates that a claimant can engage in
simple, routine tasks or unskilled work despite limitations in concentration,
persistence, and pace, courts have concluded that limiting the hypothetical
to include only unskilled work sufficiently accounts for such limitations.
See Simila v. Astrue, 573 F.3d 503, 521–22 (7th Cir. 2009); Stubbs–
Danielson v. Astrue, 539 F.3d 1169, 1173–76 (9th Cir. 2008); Howard v.
Massanari, 255 F.3d 577, 582 (8th Cir. 2001). Additionally, other circuits
have held that hypothetical questions adequately account for a claimant's
limitations in concentration, persistence, and pace when the questions
otherwise implicitly account for these limitations. See White v. Comm'r of
Soc. Sec., 572 F.3d 272, 288 (6th Cir. 2009) (concluding that the ALJ's
reference to a moderate limitation in maintaining “attention and
concentration” sufficiently represented the claimant's limitations in
concentration, persistence, and pace); Thomas v. Barnhart, 278 F.3d 947,
956 (9th Cir. 2002) (concluding that the hypothetical question adequately
incorporated the claimant's limitations in concentration, persistence, and
pace when the ALJ instructed the vocational expert to credit fully medical
testimony related to those limitations).
Winschel, 631 F.3d at 1180-81. As applied to this case, there exists substantial medical
evidence in this record to support Judge Pierce’s findings and conclusions regarding the
issue of Andrews’ ability to maintain a production pace required for the jobs identified by
the Vocational Expert in answer to the ALJ’s second hypothetical question. Andrews’
reliance on Morgan v. Astrue, 2010 WL 5376336, * 6 (S.D. Ala. Dec. 23, 2010), a case in
which “the ALJ's findings lack sufficient detail to demonstrate that he intended to reject
any lifting limitations or the basis for such a finding,” is unavailing. It is also clear that
Judge Pierce “analyzed all evidence in the record” and has “sufficiently explained the
weight [s]he has given to obviously probative exhibits.” Edwards ex rel. Parker v.
Astrue, 2011 WL 111682, * 4 (S.D. Ala. Jan. 12, 2011). See also Jones v. Apfel, 190
F.3d 1224, 1229 (111th Cir. 1999) (“In order for a VE’s testimony to constitute
substantial evidence, the ALJ must pose a hypothetical question which comprises all of
the claimant’s impairments.”), cert. denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d
644 (2000). In this case, the ALJ did not fail to include all of Andrews’ limitations in her
second hypothetical question and appropriately relied on the evidence presented by the
Vocational Expert regarding the existence of jobs available to Andrews to conclude that
Andrews was not disabled.
B. Listing 12.05C.
Andrews also contends that the ALJ erred in failing to find that he was “disabled
based upon meeting the requirements for presumptive disability at ¶12.05C of the
Listings.” (Doc. 13 at 13). There is no merit to this contention. The ALJ’s finding that
Andrews did not meet Listing 12.05 because he did not have significant limitations in
adaptive functioning is supported by substantial evidence.
Unlike the other mental disorders listings in the regulations, Listing 12.05
contains an introductory paragraph, or a “diagnostic description,” with criteria the
claimant must meet in addition to meeting one of the “four severity prongs” for mental
retardation. See Randall v. Astrue, 570 F.3d 651, 659-60 (5th Cir. 2009); Wall v. Astrue,
561 F.3d 1048, 1062 (10th Cir. 2009); Novy v. Astrue, 497 F.3d 708, 709 (7th Cir. 2007);
Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006); Foster v. Halter, 279 F.3d 348,
354 (6th Cir. 2001). The Eleventh Circuit has recognized the distinction with respect to
Listing 1205 as follows:
Listing 12.05, the listing category for mental retardation, begins with
an introductory paragraph, which states that “[m]ental retardation 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.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.05. The listing
further provides that the “required level of severity for this disorder is met
when the requirements in A, B, C, or D are satisfied.” Id. Subsection C
requires a claimant demonstrate “a valid verbal, performance, or full scale
IQ of 60 through 70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of function.” Id. at §
12.05(C). Section 12.00A states in pertinent part that “[l]isting 12.05
contains an introductory paragraph with the diagnostic description for
mental retardation. It also contains four sets of criteria (paragraphs A
through D). If your impairment satisfies the diagnostic description in the
introductory paragraph and any one of the four sets of criteria, we will find
that your impairment meets the listing.” Id. at § 12.00A (emphasis added).
We have determined that, to be considered for disability benefits
under Listing 12.05, a claimant must at least (1) have significantly
subaverage general intellectual functioning; (2) have deficits in adaptive
functioning; and (3) have manifested deficits in adaptive behavior before
age 22. Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir.1997). In
addition, for presumptive disability under 12.05C, the claimant must have
(1) a valid IQ score of 60 through 70 inclusive, and (2) an additional mental
or physical impairment significantly affecting the claimant's ability to work.
Id. at 1219-1220.
Pettus v. Astrue, 226 Fed. Appx. 946, 948 (11th Cir. 2007). See also Randall, 570 F.3d at
659-60 (“[A] claimant will meet the listing for mental retardation only “[i]f [the
claimant's] impairment satisfies the diagnostic description in the introductory paragraph
and any one of the four sets of criteria ....”); Wall, 561 F.3d at 1062; Novy, 497 F.3d at
709-10(Listing 12.05(C) claimant required to satisfy the description's definition of mental
retardation “in addition to” the severity criteria and held that an IQ between 60 and 70 “is
insufficient, even with the presence of some impairment, to establish disability per se on
grounds of mental retardation” and that “[t]he key term in the introductory paragraph of
section 12.05 of the regulation, so far as bears on this case, is ‘deficits in adaptive
functioning.’ ”); Johnson v. Barnhart, 390 F.3d 1067, 1071 (8th Cir. 2004) (rejecting a
Listing 12.05(C) claim where the claimant “did not display the significant limitations in
adaptive functioning that 12.05 requires.”).; Foster v. Halter, 279 F.3d 348, 354 (6th Cir.
2001); Pettus , 226 Fed.Appx. at 948. As the regulations explain, “[i]f your impairment
satisfies the diagnostic description in the introductory paragraph and any one of the four
sets of criteria [paragraphs A through D], we will find that your impairment meets the
listing.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(A) (emphasis added). Thus, meeting
the introductory paragraph’s diagnostic description for mental retardation is a prerequisite
to consideration of paragraphs A through D, the “severity prongs” of Listing 12.05. As
applied to this case, the ALJ adequately addressed each element of the Listing 12.05
claim. (Tr. 18-20, as well as 20-25).
Andrews challenges the ALJ’s finding on a rather limited basis. Specifically,
Andrews argues that his verbal IQ score of 69, which was obtained in 1988 when he was
13 years old, “is sufficient to meet the requirements of the first prong of ¶ 12.05C.”
(Doc. 13 at 14). Andrews then argues that “[t]he medical evidence, and indeed the ALJ’s
own findings, fulfills the second prong of ¶ 12.05C.” (Id.).
With respect to the first prong of the Listing 12.05, Andrews points to no
evidence demonstrating the existence of the requisite deficit in adaptive functioning. The
capsule definition of Listing 12.05(c) requires that a claimant demonstrate significantly
subaverage intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period, i.e., prior to age 22. The degree of deficits
in adaptive functioning needed to meet the requirements of Listing 12.05(c) is not
specified in the statute. A quantitative definition of adaptive functioning is, however,
found in the Diagnostic and Statistical Manual of Mental Disorders 49 (4th ed. Text Rev.
2000)(DSM-IV). The DSM-IV provides:
The diagnostic criteria for mental retardation include “[c]oncurrent deficits
or impairments in present adaptive functioning . . . in at least two of the
following areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, health, and safety (emphasis
Andrews relies solely on the fact that at 13 years of age he exhibited a verbal IQ score of
one point less than the cut off mark of 70 required under Listing 12.05(c) and attended
special education classes from the fourth grade until he left school in the ninth grade. (Tr.
279-282). In contrast, the record contains ample evidence that Andrews did not suffer
the requisite deficits in adaptive functioning. Andrews has never contended that he was
unable to care for himself with respect to bathing and dressing. Although he claims not
to cook, he does not contend that he needs any assistance in feeding himself. Andrews
obtained a commercial driver’s license after taking a regular written test and thereafter
drove a truck for a logging company. (Tr. 549, 565). Andrews past work experience
The Social Security Agency noted that the definition of Mental Retardation used in the
listings is consistent with the definitions of Mental Retardation used by the leading professional
organizations. Technical Revisions to Medical Criteria for Determinations of Disability, 67 FR
20018, 20022 (April 24, 2002).
from 1999 to 2004 included work as a tire changer, which is classified as semiskilled
with an “SVP level of three”; work as a lumber sorter, which is classified as unskilled
with an “SVP level of 2”; and work as a truck driver, which is classified as semiskilled
with an “SVP level of 4.” (Tr. 261, 569). Although Andrews testified that he read very
little, he reported that he does read “newspapers and my Bible.” (Tr. 274, 564).
Andrews fairs no better with respect to the second prong of Listing 12.05.
Although the ALJ found at step two of the disability evaluation process that Andrews has
severe impairments of borderline intellectual functioning, diabetes, neuropathy,
hypertension, osteoarthritis and obesity (Tr. 18), she clearly explained why these
conditions did not meet or medically equal one of the listed impairments evaluated at step
With regard to diabetes, the evidence does not confirm any history of
neuropathy characterized by significant and persistent disorganization of
motor function in two extremeties resulting in sustained disturbance of
gross and dexterous movements, or gait and station. Moreover, there is no
history of episodes of acidosis or retinis proliferans. The claimant’s
diabetes therefore does not meet Medical Listing 9.08. With regard to the
osteoarthritis, the [ALJ] considered the requirements of Listing 1.02 and
finds that the claimant’s symptoms do not satisfy the criteria necessary to
meet that listing. Specifically, the claimant is able to ambulate effectively.
The claimant’s mental impairment has been considered under the
requirements of listing 12.05. Mental retardation 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.
The required level of severity for this disorder is met when the
requirements in paragraphs A, B, C, or D are satisfied.
The requirement in paragraph A are met when there is mental incapacity
evidenced by dependence upon others for personal needs (e.g., toileting,
eating, dressing, or bathing) and inability to follow directions, such that the
use of standardized measures of intellectual functioning is precluded. In
this case, these requirements are not met because the claimant’s IQ scores
are in the 70’s. The claimant is able to ambulate effectively and his
diabetes does not rise to the level of required severity.
Turning to the requirements of paragraph B, they are not met because the
claimant does not have a valid verbal, performance, or full scale IQ of 59 or
In terms of the requirements of paragraph C, they are not met because the
claimant does not have 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.
Finally, the requirements in paragraph D are met if the claimant has a valid
verbal, performance or full scale IQ of 60 through 70, resulting in at least
two of the following: marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in
maintaining concentration persistence, or pace; or repeated episodes of
decompensation, each of extended duration. A marked limitation means
more than moderate but less than extreme. Repeated episodes of
decompensation, each of extended duration, means three episodes within a
year, or an average of once every 4 months, each lasting at least two weeks.
In activities of daily living, the claimant has mild restrictions. The claimant
reported that he is the head of his household and supervises 2 teenagers.
In social functioning, the claimant has mild difficulties. The claimant
reported that he visits with family and friends regularly.
With regard to concentration, persistence or pace, the claimant has
moderate difficulties. The claimant stated that he is able to read and watch
As for episodes of decompensation, the claimant has experienced no
episodes of decompensation, which have been of extended duration.
Accordingly, the requirements of paragraph D are not satisfied.
With respect to Listing 12.05(c), three prongs must be satisfied: (1) mental
retardation, i.e., significantly subaverage general intellectual functioning with deficits in
adaptive behavior, initially manifested during the developmental period; (2) a valid
verbal, performance, or full scale intelligence quotient (IQ) score in the range specified
by Listing 12.05(c); and (3) a physical or other mental impairment that imposes an
additional and significant work-related limitation of function. See Sullivan v. Zebley,
493 U.S. 521, 530 (1990)(“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 those criteria, no matter how severely, does not qualify.”); 20 C.F.R. § 404.1525 (“To
meet the requirements of a listing, you must have a medically determinable
impairment(s) that satisfies all of the criteria in the listing.”). Despite Andrews’
protestations to the contrary, the ALJ did not err in concluding that he met none of the
requirements for Listing 12.05(c) and was not, therefore, disabled.
For the reasons stated above, it is ORDERED that the decision of the
Commissioner of Social Security denying plaintiff’s benefits be and is hereby
DONE this 23rd day of Novemberber, 2011.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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