Hall v. Astrue
Filing
25
Order ent. that the decision of the Commissioner of Social Security denying Plaintiffs claim be REVERSED and REMANDED.. Signed by Magistrate Judge Sonja F. Bivins on 9/24/2013. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TYRA INGRID HALL,
*
*
Plaintiff,
*
*
vs.
* Civil Action No. 12-00389-B
*
CAROLYN W. COLVIN,1
*
Commissioner of Social Security, *
*
Defendant.
*
ORDER
Plaintiff Tyra Ingrid Hall (hereinafter “Plaintiff”) brings
this action seeking judicial review of a final decision of the
Commissioner
supplemental
of
Social
security
Security
income
under
denying
Title
Security Act, 42 U.S.C. §§ 1381, et seq.
XVI
her
of
claim
the
for
Social
On April 11, 2013, the
parties consented to have the undersigned conduct any and all
proceedings
in
this
case.
(Doc.
23).
Thus,
the
action
was
referred to the undersigned to conduct all proceedings and order
the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Federal Rule of Civil Procedure 73.
Upon careful consideration
of the administrative record and the memoranda of the parties,
1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d), Federal
Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as the defendant in this suit.
it is hereby ORDERED that the decision of the Commissioner be
REVERSED and REMANDED.
I.
Procedural History
Plaintiff filed an application for supplemental security
income benefits on May 15, 2009, and alleged that her disability
commenced on June 1, 2005. (Tr. 194).
Plaintiff’s application
was denied on August 10, 2009, and she timely filed a Request
for Hearing on August 19, 2009. (Id. at 15).
Plaintiff and her
attorney, Colin E. Kemmerly, attended an administrative hearing
on August 13, 2010
before Administrative Law Judge Katie H.
Pierce (hereinafter “ALJ”). (Id. at 26-52).
(hereinafter
“VE”)
also
attended
testimony. (Id. at 40-50).
was
decided
that
the
the
A Vocational Expert
hearing
and
provided
At the conclusion of the hearing, it
Agency
would
send
Plaintiff
for
a
consultative neurological exam and a psychological exam in order
to
determine
thereto,
a
Plaintiff’s
supplemental
January 18, 2011.
IQ.
(Id.
at
51-52).
administrative
hearing
Subsequent
was
held
on
Plaintiff, her attorney, and a VE attended
the supplemental administrative hearing. (Id. at 53-65).
On
January 25, 2011, the ALJ issued an unfavorable decision finding
that
Plaintiff
is
not
disabled.
(Id.
at
sought review before the Appeals Council.
15-25).
Plaintiff
The Appeals Council
denied plaintiff’s request for review on May 4, 2012; thus, the
ALJ’s decision dated January 25, 2011 became the final decision
2
of
the
Commissioner.
administrative
(Id.
remedies,
civil action. (Doc. 1).
at
1-3).
Plaintiff
Having
timely
exhausted
filed
the
her
present
The parties waived oral argument (Docs.
22, 24) and agree that this case is now ripe for judicial review
and
is
properly
before
this
Court
pursuant
to
42
U.S.C.
§§
405(g) and 1383(c)(3).
II.
Issues on Appeal
A.
Whether substantial evidence
ALJ’s RFC assessment?
supports
the
B.
Whether the ALJ erred by determining that
Plaintiff is not disabled under Listing
12.05(c)?
III. Factual Background
Plaintiff was born on June 20, 1982, and was 28 years of
age at the time of the supplemental administrative hearing. (Tr.
57).
Plaintiff
completed
the
eleventh
grade
education
in
regular (non-special education) classes, and took GED classes,
but has not obtained her GED. (Id. at 58, 84-85).
Plaintiff has
past relevant work as a housekeeper/cleaner, telemarketer, and
office clerk. (Id. at 33, 221).
At the first administrative hearing, Plaintiff testified
that she last worked as a housekeeper for two weeks in May of
2005. (Id. at 33).
work
on
due
to
her
Plaintiff contends that she is unable to
diabetes,
arthritis,
and
“bothers with [her] acid reflux”. (Id. at 34-36).
3
“gastro”
that
According to
Plaintiff, her diabetes has caused damage to her left nerves,
which in turn causes her feet to swell and inhibits her ability
to walk for long periods. (Id.).
Plaintiff also testified that
“[p]eople get on [her] nerves a little quicker” than they did
prior to her medical problems. (Id. at 35).
Plaintiff further
testified that she has arthritis in her right middle finger.
(Id. at 36).
In addition, Plaintiff testified that she suffers
from acid reflux, which causes her to vomit “at least once a
month” (id.), and that the reflux “comes and goes” when she eats
food that she “can’t digest.” (Id. at 37).
With respect to her daily activities, Plaintiff testified
that she is able to watch television for 15 – 20 minutes before
needing to lie down due to her back pains and neuropathy. (Id.).
She further testified that she is able to drive a car and shop
at Wal-Mart for about an hour. (Id. at 38).
Plaintiff’s leisure
activities include babysitting her 9–month old niece, watching
the History Channel, and spending time with friends who visit
her. (Id. at 38-39).
In addition, Plaintiff indicated on her
function report that she dresses herself, makes breakfast, makes
her bed, cleans her room, irons her clothes, washes clothes, and
handles her finances. (Id. at 242-245).
IV.
Analysis
A.
Standard of Review
In reviewing claims brought under the Act, this Court’s
4
role
is
a
limited
determining
1)
one.
whether
The
the
Court’s
decision
review
of
the
is
limited
to
Secretary
is
supported by substantial evidence and 2) whether the correct
legal standards were applied.2 Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990).
A court may not decide the facts anew,
reweigh the evidence, or substitute its judgment for that of the
Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir.
1986).
The Commissioner’s findings of fact must be affirmed if
they are based upon substantial evidence. Id.; Bloodsworth v.
Heckler,
703
F.2d
1233,
1239
(11th
Cir.
1983)
(holding
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. Chester v. Bowen, 792 F.2d 129, 131
(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163,
*4 (S.D. Ala. June 14, 1999).
B.
Discussion
2
This Court’s review of the Commissioner’s application of
legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999
(11th Cir. 1987).
5
An individual who applies for Social Security disability
benefits
416.912.
any
must
prove
her
disability.
20
C.F.R.
§§
404.1512,
Disability is defined as the “inability to engage in
substantial
gainful
activity
by
reason
of
any
medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42
U.S.C.
§§
416.905(a).
423(d)(1)(A);
see
also
20
C.F.R.
§§
404.1505(a),
The Social Security regulations provide a five-step
sequential evaluation process for determining if a claimant has
proven her disability.3 20 C.F.R. §§ 404.1520, 416.920.
3
The claimant must first prove that he or she has not
engaged in substantial gainful activity.
The second step
requires the claimant to prove that he or she has a severe
impairment or combination of impairments.
If, at the third
step, the claimant proves that the impairment or combination of
impairments meets or equals a listed impairment, then the
claimant is automatically found disabled regardless of age,
education, or work experience.
If the claimant cannot prevail
at the third step, he or she must proceed to the fourth step
where the claimant must prove an inability to perform their past
relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
1986). In evaluating whether the claimant has met this burden,
the examiner must consider the following four factors: (1)
objective medical facts and clinical findings; (2) diagnoses of
examining physicians; (3) evidence of pain; and (4) the
claimant’s age, education and work history. Id. Once a claimant
meets this burden, it becomes the Commissioner’s burden to prove
at the fifth step that the claimant is capable of engaging in
another kind of substantial gainful employment which exists in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history. Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
6
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since May 15,
2009,
and
that
she
has
the
severe
impairments
of
diabetes
mellitus with neuropathy, arthritis of the right middle finger,
history
of
gastroparesis,
depression,
intellectual functioning. (Tr. 17).
Plaintiff
does
not
have
impairments that meet
an
and
borderline
The ALJ also found that
impairment
or
combination
of
or medically equals any of the listed
impairments contained in 20 C.F.R. Part 404, Subpart P, Appendix
1. (Id. at 18).
The
ALJ
concluded
that
Plaintiff
retains
the
residual
functional capacity (hereinafter “RFC”) to perform light work,
but that her ability to perform that level of work has been
impeded by additional limitations. (Id. at 20, 24).
The ALJ
specifically found that Plaintiff can sit for four hours at a
time and a total of five hours in an eight-hour workday, that
she can stand for one hour at a time and a total of two hours in
an eight-hour workday, that she can walk for one hour at a time
and a total of one hour during an eight-hour workday, that she
can frequently carry up to twenty pounds and occasionally carry
up to fifty pounds, that she can frequently lift up to fifty
to perform those jobs in order to be
Apfel, 190 F.3d 1224, 1228 (11th Cir.
Bowen, 831 F.2d 1007, 1011 (11th Cir.
Heckler, 749 F.2d 1562, 1564 (11th Cir.
7
found disabled. Jones v.
1999); see also Hale v.
1987) (citing Francis v.
1985)).
pounds, that she can frequently reach, handle, finger and feel
with her right hand, that she can continuously reach, handle and
finger
and
feel
with
her
left
hand,
and
that
she
occasionally push and pull with her right hand. (Id.).
can
The ALJ
also concluded that Plaintiff can operate foot controls, that
she can frequently climb stairs and ramps and operate a motor
vehicle, that she can occasionally climb ladders or scaffolds,
and that she can balance, stoop, kneel, crouch and crawl. (Id.).
The
ALJ
further
tolerate
exposure
concluded
to
that
unprotected
Plaintiff
can
heights,
occasionally
moving
mechanical
parts, humidity and wetness, dust, odors, fumes and pulmonary
irritants, extreme heat and cold, and vibrations and loud noise.
(Id.).
She
further
concluded
that
Plaintiff
can
frequently
understand, remember and carry out simple instructions, that she
can
occasionally
understand,
remember
and
carry
out
complex
instructions, that she can occasionally tolerate interactions
with the public, supervisors and co-workers, and that she can
occasionally tolerate changes in a routine work setting. (Id.).
Finally,
the
ALJ
found
that
Plaintiff
is
unable
to
make
judgments on complex work-related decisions. (Id.).
The ALJ then determined that Plaintiff has no past relevant
work and concluded, based on her RFC and the testimony of the
VE,
that
Plaintiff
can
perform
“the
requirements
of
representative occupations such as [a] bench assembler . . . and
8
[an] order clerk…” (Id. at 24).
Thus, the ALJ concluded that
Plaintiff is not disabled. (Id. at 25).
1. Medical Evidence
The relevant medical evidence of record reflects that on
January 2, 2007, Plaintiff presented to the emergency room at
University of South Alabama Medical Center (hereinafter “South
Alabama”) and reported a right middle finger infection. (Id. at
343).
An x-ray exam showed an erosion of Plaintiff’s PIP joint.
(Id. at 342).
Dr. Frederick Meyer performed an arthrotomy of
the proximal interphalangeal joint of Plaintiff’s right middle
finger with irrigation and debridement. (Id. at 347).
Dr. Meyer
noted that Plaintiff reported injuring her finger in December
2006 and that “[s]he ha[d] basically been sitting on this for
approximately a month.” (Id.).
Plaintiff’s wound was drained
two
noted
days
later,
and
Dr.
Meyer
complications.” (Id. at 345).
that
“[t]here
were
no
Plaintiff was instructed to
follow up at the Stanton Road Orthopedics Wound Care Center for
outpatient care. (Id. at 342).
On March 31, 2007, Plaintiff presented to the emergency
room at South Alabama with complaints of abdominal pain. (Id. at
313).
Two radiographs of her abdomen revealed a 2.5 x 3 cm soft
tissue round opacity in the left mid abdomen, air in the region
of her rectum, and calcification lateral to her superior left
hip joint. (Id. at 314).
There was no evidence of abnormal
9
enlargement
Mirilax
of
and
the
area.
instructed
(Id.).
to
stop
Plaintiff
taking
was
Lortab
prescribed
and
other
medications that cause her to become constipated. (Id.).
On June 27, 2007, Plaintiff presented to the emergency room
at
South
Alabama
and
was
diagnosed
with
lower
extremity
cellulitis associated with diabetes, diabetes mellitus type 1 4 ,
constipation, and marijuana abuse. (Id. at 332-333).
An MRI of
Plaintiff’s right leg and ankle revealed a subcutaneous lesion
with no discrete abscess collection, excessive accumulation of
serous fluids with engorgement of the peripheral venous system,
and no evidence of osteomyelitis. (Id. at 339).
Plaintiff was
treated with medications, including insulin, and discharged on
June 29, 2007. (Id. at 334).
listed
as
Plaintiff
“stable”
was
and
instructed
her
to
Upon discharge, Plaintiff was
prognosis
follow
the
was
“good”.
American
(Id.).
Diabetes
Association 2000 calorie diet, to engage in 30-45 minutes of
daily exercise, and to monitor her diabetes twice a day using
insulin and glucose, if needed. (Id.).
The records reflect that
six months later, in December 2007, Plaintiff received wound
care treatment at South Alabama. (Id. at 300, 304-306).
On July 29, 2008, Plaintiff presented to the emergency room
4
While South Alabama’s June 27, 2013, records indicate that
Plaintiff suffers from Type I diabetes several other records
indicate that Plaintiff suffers from Type II diabetes. (See,
e.g., Tr. at 419, 439, 442).
10
at South Alabama and reported left hand and arm pain, including
tingling, headaches, and dizziness. (Id. at 295).
5
diagnosed with costochondritis
Plaintiff was
, proscribed over the counter
Aleve for pain, and discharged. (Id. at 288, 294).
Plaintiff’s
next visit to South Alabama ER was August 21, 2008. (Id. at
292).
and
During that visit, Plaintiff reported nausea, vomiting
leaky
bowels.
evidence
of
Plaintiff
was
An
treated
(Id. at 290).
of
her
calcification
abnormal
AP
view
or
with
nausea
abdomen
revealed
enlargement.
medication
and
no
(Id.).
discharged.
A few days later, on August 28, 2008, Plaintiff
returned to South Alabama ER and reported swelling in her left
arm. (Id. at 285, 287).
She was treated with medications and
instructed to follow up with the Mobile County Board of Health.
(Id.).
Treatment records from the Mobile County Health Department
reflect
that
regarding
on
her
August
diet,
5,
2008,
exercise,
and
Plaintiff
lifestyle
associated with her diabetes. (Id. at 362).
from
August
hemoglobin
18,
were
2008
high
reflect
and
her
controlled”. (Id. at 356-59).
that
was
modifications
The treatment notes
Plaintiff’s
diabetes
counseled
mellitus
glucose
was
and
“poorly
Plaintiff was again counseled on
5
Costochondritis is an inflammation of a rib or the
cartilage connecting a rib. It is a common cause of chest pain.
http://www.nlm.nih.gov/medlineplus/ency/article/000164.htm (Last
visited: August 14, 2013).
11
diet,
exercise,
and
lifestyle
modifications
to
improve
her
health. (Id. at 359).
Plaintiff returned to South Alabama ER on October 15, 2008,
and was diagnosed with acute pyelonephritis and a urinary tract
infection.
(Id.
at
398).
Plaintiff
was
treated
with
medications, instructed to follow the ADA diet, and discharged
in good condition. (Id. at 399).
The record reflects that from December 1, 2008 to December
6, 2010, Plaintiff also sought treatment at Stanton Road Clinic
for her diabetes.
importance
of
Plaintiff was consistently counseled on the
controlling
her
diet
and
instructed
to
stop
“drinking lots of juices.” (Id. at 375, 376, 377, 379, 417,
420).
The
November
treatment
4,
2009
notes
visit
reflect
to
the
that
Stanton
during
Road
Plaintiff’s
Clinic,
her
neuropathy and blood pressure were elevated and she admitted to
using cocaine the night before. (Id. at 418).
next seen at the clinic on July 14, 2010.
Plaintiff was
During that visit,
Plaintiff reported that her Amitriptyline 6 was not working. (Id.
at
437).
She
was
diagnosed
with
neuropathy,
polydipsia,
polyuria, and gastroparesis, and was proscribed a higher dosage
6
Amitriptyline is used to treat symptoms of depression.
Amitriptyline is in a class of medications called tricyclic
antidepressants. It works by increasing the amounts of certain
natural substances in the brain that are needed to maintain
mental balance.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682388.html
(Last Visited: August 15, 2013).
12
of Amitriptyline, for depression, Neurotin, for pain, and fiber
and stool softener, for her constipation. (Id. at 438).
Plaintiff returned to the South Alabama ER on November 29,
2009, and reported pain. (Id. at 391).
abdomen
was
taken
and
compared
radiograph. (Id. at 394).
was
a
large
otherwise,
amount
of
everything
the
August
21,
2008
The radiograph revealed that there
stool
was
to
A radiograph of her
within
largely
her
normal
colon
as
but
there
evidence of acute abdominal pathology. (Id.).
that,
was
no
Plaintiff was
instructed to follow up at the Stanton Road Clinic. (Id. at
393).
Following
Plaintiff’s
first
administrative
hearing
in
August of 2010, the ALJ referred her to Dr. Jack C. Carney,
Ph.D., on September 9, 2010, for a consultative psychological
examination and Medical Source Statement (hereinafter “MMS”).
(Id. at 52, 452-54).
Plaintiff reported to Dr. Carney that she
completed the eleventh grade in regular classes, not special
education classes, and that she did so without repeating any
grades. (Id. at 455).
Adult
Intelligence
Dr. Carney administered the Wechsler
Scale
Test
(WAIS
IV),
and
found
that
Plaintiff’s full-scale IQ score was 72, her verbal comprehension
score was 70, her perceptual reasoning score was 71, her working
memory
(Id.).
score
Dr.
was
83
Carney
and
her
processing
diagnosed
13
speed
Plaintiff
score
with
was
86.
borderline
intellectual
functioning,
which
he
opined
is
a
condition, and depression not otherwise specified.
chronic
He opined
that Plaintiff should respond favorably to treatment within 6-12
months. (Id.).
Dr. Carney opined that Plaintiff is mildly restricted with
respect to her ability to understand, remember and carry out
simple instructions, that she is moderately restricted in her
ability
ability
to
to
make
judgments
understand,
on
simple
remember
work
and
decisions
carry
out
and
her
complex
instructions, and that she is markedly limited in her ability to
make judgments on complex work decisions. (Id. at 452).
He also
opined that Plaintiff is moderately limited in her ability to
interact
appropriately
with
the
public,
supervisors,
and
co-
workers, and in her ability to respond appropriately to usual
work situations and changes in the work routine. (Id. at 453).
On September 17, 2010, Dr. Ilyas A. Shaikh, M.D. conducted
a consultative neurological examination and MMS at the request
of
the
Agency.
(Id.
at
51-52,
442).
Dr.
Shaikh
noted
that
Plaintiff had no balance problems and no problems walking but
she was mildly compromised standing on her heels and toes. (Id.
at
443-44).
He
found
that
she
was
able
to
move
all
four
extremities and her motor skills were largely normal except that
she was unable to flex her right middle finger. (Id.).
In
addition, he noted that Plaintiff was able to make a fist, turn
14
a doorknob and tie her shoelaces, and her grip strength was 5/5
on the left and 4+/5 on the right. (Id. at 444).
Dr. Shaikh
observed that Plaintiff was experiencing no bowel or bladder
incontinence and that she had a one-inch erythematic rash that
was
“probably
[a]
healed
ulceration.”
(Id.
at
443).
Dr.
Shaikh’s impression was diabetes mellitus type II, fatigue and
headaches that were probably migraine in nature. (Id.).
He also
noted that Plaintiff has mildly compromised right grip strength.
(Id.).
Dr.
Plaintiff
Shiakh
is
completed
able
to
the
MMS
frequently
wherein
lift
up
to
he
opined
twenty
-
that
fifty
pounds, occasionally lift up to one hundred pounds, frequently
carry up to twenty pounds and occasionally carry up to fifty
pounds. (Id. at 446).
He further opined that, in an eight-hour
workday, Plaintiff is able to sit a total of five hours, stand a
total of two hours and walk a total of one hour. (Id. at 447).
With
respect
to
Plaintiff’s
motor
skills,
he
opined
that
Plaintiff is frequently able to climb stairs and ramps and that
she is occasionally able to balance, stoop, kneel, crouch, climb
ladders, and crawl. (Id. at 449).
Plaintiff
has
no
complete
Dr. Shaikh further found that
environmental
449).
15
limitations.
(Id.
at
2.
Issues
A. Whether substantial evidence supports
the ALJ’s RFC assessment?
In
her
finding
brief,
that
Plaintiff
she
has
argues
the
that
residual
the
ALJ
erred
functional
in
capacity
(hereinafter “RFC”) to perform a range of light work. (Doc. 13
at 2).
Plaintiff maintains that the ALJ “failed to cite any
evidence
from
medical
acceptable
opinion
and
medical
resulting
sources
[RFC]
to
support
her
determination.”
own
(Id.).
Plaintiff also asserts that Dr. Shaikh opined that Plaintiff
cannot
perform
a
full
range
of
sedentary
work.
(Id.).
Additionally, Plaintiff argues that the VE “testified that for
all practical purposes, Dr. Shaikh’s opinions eliminated light
work.” (Id.).
Turning
opined
that
sedentary
assertion.
first
to
Plaintiff
work,
As
Plaintiff’s
is
unable
to
argument
perform
that
a
the
record
does
not
noted
infra,
after
examining
Dr.
full
support
Shaikh
range
of
Plaintiff’s
Plaintiff,
Dr.
Shaikh prepared a MMS, which contains his opinions regarding
Plaintiff’s physical functional limitations.
The lifting and
carrying restrictions listed by Dr. Shaikh are actually more
akin to light and medium work rather than sedentary work.
addition,
Dr.
Shaikh
opined
that,
in
an
eight-hour
In
workday,
Plaintiff is able to sit a total of five hours, stand a total of
16
two hours and walk a total of one hour. (Id. at 447).
The ALJ
accorded Dr. Shaikh’s opinions great weight, and the physical
functional limitations contained in the RFC, as determined by
the ALJ, closely resemble those contained in Dr. Shaikh’s MMS.
(Id. at 23).
Accordingly, the ALJ did not err in developing
Plaintiff’s RFC as it is supported by substantial evidence7
Secondly,
while
Plaintiff’s
RFC
contains
a
five
hour
sitting limitation, and sedentary work generally requires the
ability to sit for six hours, the ALJ properly utilized a VE in
order to determine if there exists jobs that Plaintiff could
perform given that some of her functional limitations, such as
lifting and carrying, are consistent with light to medium work,
but her walking and standing limitations are more consistent
with sedentary work.
Indeed, the regulations define light work
as lifting no more than twenty pounds at a time with frequent
lifting or carrying of objects weighing up to ten pounds.
Even
though the weight lifted in a particular light job may be very
little, a job is in this category when it requires a good deal
of walking or standing. SSR 83-10, 1983 SSR LEXIS 30.
Whereas,
SSR 96-9p, 1996 SSR LEXIS 6 at *17 (S.S.A July 2, 1996) provides
that in order to perform a full range of sedentary work, an
7
Plaintiff has not objected to the functional limitations as
determined by Dr. Shiakh and there is no medical evidence in the
record that provides a basis for questioning the opinions
contained in the MMS prepared by Dr. Shiakh’s.
17
individual
should
generally
able
in
of
an
a
seated
If an individual is not functionally capable of doing
contemplated
out
in
workday.
sitting
hours
remain
for
prolonged
six
to
position
the
approximately
be
the
eight-hour
definition
of
sedentary work, or the standing and walking required for light
work, the full range of work will be eroded.
Yet, the fact that
the occupational base is eroded does not necessitate a finding
of disability if there exists a significant number of jobs a
claimant can perform despite his or her limitations. 1996 SSR
LEXIS 6 at *13.
In such a situation, a VE is brought in to testify as to
whether
a
significant
economy
that
a
number
hypothetical
of
jobs
exist
individual
in
with
the
the
national
claimant's
limitations can perform. See Watson v. Astrue, 376 F. App’x 953,
956-57 (11th Cir. 2010); SSR 83-12, 1983 SSR LEXIS 32 (“Where
the
extent
of
the
occupational
base
is
not
clear,
adjudicator will need to consult a vocational resource.”).
is
precisely
what
happened
in
this
case.
The
ALJ
This
found
follows:
The undersigned nonetheless acknowledges that the
claimant’s diabetes and associated neuropathy may
reasonably affect the claimant’s ability to sit,
stand,
walk
and
perform
certain
activities.
Consequently, the undersigned has limited the
claimant to less than the full range of light work
as set forth in the residual functional finding. .
.
18
the
as
If the claimant had the residual functional
capacity to perform the full range of light work, a
finding of “not disabled” would be directed by
Medical-Vocational Rule 202.17.
However, the
claimant’s ability to perform all or substantially
all of the requirements of this level of work has
been impeded by additional limitations.
To
determine the extent to which these limitations
erode the unskilled light occupational base, the
Administrative Law Judge asked the vocational
expert if jobs exist in the national economy for an
individual with the claimant’s age, education, work
experience and residual functional capacity.
The
vocational expert testified that given all of these
factors, the individual would be able to perform
the requirements of representative occupations such
as bench assembler, DOT bench assembler, DOT Code
713.687-018 (approximately 305,000 jobs in the
national economy, 1,500 in Alabama) and order
clerk, DOT Code 209.567-014 (approximately 685,000
jobs in the national economy, 1,800 in Alabama).
(Id. at 22, 24).
By posing a hypothetical question to the VE that comprised
all of Plaintiff’s limitations that are supported by the record,
the Court finds that the ALJ did not err in applying the correct
legal
standards,
and
that
his
determination
that
other
jobs
exist in substantial numbers which plaintiff can perform despite
her
limitations
is
supported
by
substantial
evidence.
See
Orestano v. Comm’r of Soc. Sec., 252 Fed. App’x 962, 963-64
(11th Cir. 2007).
19
B. Whether the ALJ erred by determining
that Plaintiff is not disabled under
Listing 12.05(c)?
Plaintiff also argues that the ALJ erred in determining
that she is not disabled given her non-exertional intellectual
limitations.
Specifically, Plaintiff argues that her verbal IQ
score
combined
of
70
with
her
additional
severe
impairments
outlined by the ALJ meets or medically equals Listing 12.05(c).
(Doc. 13 at 8).
Plaintiff further asserts that her verbal IQ
score of 70 is a mental impairment that “is a lifelong condition
with deficits in adaptive functioning occurring before age 22.”
(Id.).
The
mental
retardation
Impairment
Listing
in
§
12.05C
requires the claimant to demonstrate a “significant subaverage
general
intellectual
functioning
with
deficits
in
adaptive
functioning initially manifested during the development period;
i.e.,
the
impairment
evidence
before
demonstrates
age
22,”
as
or
supports
well
as
a
onset
“valid
of
the
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.” §§ 12.00A, 12.05, 12.05C;
see also Grant v. Astrue, 255 Fed. App’x 374 (11th Cir. 2007).
In Hodges v. Barnhart, 276 F.3d 1265, 1266, 1268-69 (11th
Cir.
2001),
the
ALJ
found
that
20
the
claimant
had
a
“severe”
impairment of “borderline intellectual functioning,” along with
other severe mental and physical impairments. Id., 276 F.3d at
1268.
WAIS testing by a consultative examiner yielded a verbal
IQ score of 67, a performance IQ score of 79, and a full-scale
IQ score of 72. Id., 276 F.3d at 1267.
he ALJ “adopt[ed] [the
consultative examiner’s] IQ testing as a valid assessment of
Hodges’ mental capabilities at age 49,” but “found no evidence
supported
adaptive
Listing
the
proposition
functioning
12.05(c).”
that
before
Id.,
276
Hodges
age
manifested
twenty-two
F.3d
at
1268.
deficits
required
as
in
by
Thus,
determined that Hodges did not meet the listing. Id.
the
ALJ
On appeal,
the Eleventh Circuit held that “IQ tests create a rebuttable
presumption of a fairly constant IQ throughout [a claimant’s]
life”;
thus,
a
claimant
need
not
present
evidence
that
she
manifested deficits in adaptive functioning prior to the age
twenty-two,
when
she
has
presented
evidence
of
low
IQ
test
results after the age of twenty-two. Id., 276 F.3d at 1266-67.
The Eleventh Circuit remanded the case to allow the Commissioner
to
“present
evidence
of
Hodge’s
daily
life
to
rebut
the
presumption of mental impairment.” Id., 276 F.3d at 1268-69.
Later in Grant v. Astrue, supra, the ALJ found that the
plaintiff had a valid IQ score of 69, and that she possessed a
physical
or
mental
impairment
21
imposing
an
additional
and
significant work-related limitation of function. Id.
However,
the ALJ nevertheless determined that the plaintiff did not meet
Listing 12.05(c) because she failed to demonstrate deficits in
more than one area of adaptive functioning before the age of 22.
Id., 255 Fed. App’x at 375.
On appeal, the Eleventh Circuit
held that the ALJ applied an improper legal standard and that
the plaintiff was
entitled to the benefit of the rebuttable
presumption established in Hodges. Id.
In remanding the case,
the
“[d]espite
Eleventh
placing
the
Circuit
burden
of
observed
proof
that
on
[the
erroneously
plaintiff],
the
ALJ
nonetheless devoted one sentence in his decision to finding the
presumption rebutted, but did not account for his decision’s
internal inconsistencies or support this finding with any facts
or reasoning.” Id.
The Court stressed that on remand, the ALJ
was to determine whether there was sufficient evidence to rebut
the
presumption
that
the
plaintiff
manifested
deficits
adaptive functioning before the age of 22. Id.
In this case, the ALJ considered Listing 12.05(c) and
determined that Plaintiff did not meet the listing.
In
making this finding, the ALJ found as follows:
[T]he “parapgraph “C” criteria of listing 12.05 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 mental impairment imposing an
additional and significant work-related limitation
of function.
The claimant’s IQ scores are all at
22
in
70 or above.
In addition, Dr. Shaikh specially
diagnosed the claimant with borderline intellectual
functioning, not mental retardation.
(Tr. 20).
The
ALJ’s
finding
regarding
comport with Hodges and Grant.
Listing
12.05(c)
does
not
As noted supra, the consultative
examiner, Dr. Carney, administered the WAIS test to Plaintiff,
and found that she obtained a full-scale IQ score of 72, a
verbal comprehension score of 70, perceptual reasoning score of
71, working memory score of 83 and a processing speed score of
86. (Tr. 457).
In finding that Plaintiff does not meet Listing
12.05, the ALJ relied on the fact that Plaintiff’s scores were
at 70 or higher, and that Dr. Carney had diagnosed Plaintiff
with borderline intellectual functioning, as opposed to mental
retardation.
However, while WAIS testing may generate several IQ scores,
the regulations require that the lowest of those scores be used
in conjunction with Listing 12.05. 20 C.F.R. Pt. 404, Supt. P,
App. 1, § 12.00(D)(6)(c) (“In cases where more than one IQ is
customarily derived from the test administered . . ., we use the
lowest of these in conjunction with 12.05”); Hodges, supra, at
1268 n.1.
In his decision, the ALJ accorded substantial weight
to the opinions of Dr. Carney, including the IQ scoring results,
and there is nothing in the ALJ’s decision that suggests that he
deemed
Plaintiff’s
verbal
score
23
of
70
to
be
invalid.
Additionally,
the
ALJ
found
that
Plaintiff
has
the
severe
impairments of diabetes mellitus with neuropathy, arthritis of
the right middle finger, history of gastroparesis, depression,
and borderline intellectual functioning. (Tr. 17).
Plaintiff’s
verbal score of 70 and her severe physical or mental impairments
triggered
the
rebuttable
presumption
Plaintiff
manifested
deficits in adaptive functioning prior to the age twenty-two.
Because the ALJ did not determine whether there was sufficient
evidence to rebut the presumption that the Plaintiff manifested
deficits in adaptive functioning before the age of 22, this case
must be remanded for the required analysis.
V.
For
Conclusion
the
reasons
set
forth
herein,
and
upon
careful
consideration of the administrative record and memoranda of the
parties,
it
Commissioner
is
of
hereby
Social
ORDERED
Security
that
denying
the
decision
Plaintiff’s
of
the
claim
be
REVERSED and REMANDED.
ORDERED this 24th day of September, 2013.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?