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