York v. Colvin
Order re: 1 Complaint filed by Sherone Dennise York stating that the decision of the Commissioner of Social Security denying Plaintiffs claim for aperiod of disability, disability insurance benefits, and supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 5/9/2017. Copies to parties. (mpp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SHERONE DENNISE YORK,
Acting Commissioner of Social
* CIVIL ACTION NO. 16-000312-B
Plaintiff Sherone Dennise York (hereinafter “Plaintiff”),
seeks judicial review of a final decision of the Commissioner of
Social Security denying her claim for a period of disability,
disability insurance benefits, and supplemental security income
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§
401, et seq., and 1381, et seq.
proceedings in this case.
On May 2, 2017, the parties
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
Nancy Berryhill became the Acting Commissioner of Social
Security on January 23, 2017.
Pursuant to Rule 25(d), Federal
Rules of Civil Procedure, Nancy Berryhill should be substituted
for Carolyn W. Colvin as the defendant in this suit. No further
action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C.
Federal Rule of Civil Procedure 73.
Upon careful consideration
of the administrative record and the memoranda of the parties,
it is hereby ORDERED that the decision of the Commissioner be
Plaintiff protectively filed her application for benefits
on March 6, 2013, alleging disability beginning August 12, 2010,
based on an amputated left arm from a motor vehicle accident,
swelling in her leg, and headaches.
(Doc. 14-1 at 11, 15).
Plaintiff’s application was denied and upon timely request, she
was granted an administrative hearing before Administrative Law
Judge Walter Lassiter, Jr. (hereinafter “ALJ”) on July 11, 2014.
(Doc. 13-2 at 48).
Plaintiff attended the hearing with her
counsel and provided testimony related to her claims.
2 at 50).
A vocational expert (“VE”) also appeared at the
hearing and provided testimony.
(Doc. 13-2 at 72).
24, 2014, the ALJ issued an unfavorable decision finding that
Plaintiff is not disabled.
(Doc. 13-2 at 25).
Council denied Plaintiff’s request for review on April 20, 2016.
(Doc. 13-2 at 4).
Therefore, the ALJ’s decision dated November
The Court’s citations to the transcript in this order refer to
the pagination assigned in CM/ECF, not the page numbers assigned
by the Agency. Because the transcript was divided into separate
documents, the Court’s citations include the appropriate CM/ECF
24, 2014, became the final decision of the Commissioner.
timely filed the present civil action.
waived oral argument on May 2, 2017 (Doc. 18) 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).
Issue on Appeal
Whether the ALJ erred in finding that
Plaintiff does not meet the criteria for
III. Factual Background
Plaintiff was born on July 30, 1974 and was thirty-nine
years of age at the time of her administrative hearing on July
graduated from high school and completed one and a half years of
(Doc. 14-2 at 149).
Plaintiff worked from 1997 to 2007 as a stocker at Walmart
until she lost her arm in a motor vehicle accident.
at 149; Doc. 14 at 20; Doc. 14-1 at 3).
At the administrative
hearing, Plaintiff testified that she cannot work due to phantom
pain in her arm, inability to lift,
problems with balancing
while standing, and swollen knees from obesity.
(Doc. 13-2 at
59, 62-63, 65, 68-69).
IV. Standard of Review
In reviewing claims brought under the Act, this Court’s
supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).
Martin v. Sullivan, 894 F.2d
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
affirmed if they are based upon substantial evidence.
Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
substantial evidence is defined as “more than a scintilla, but
evidence as a reasonable person
would accept as adequate to
evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
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).
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Statutory And Regulatory Framework
An individual who applies for Social Security disability
Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
determining if a claimant has proven his disability.
§§ 404.1520, 416.920.
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
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
Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir.
In evaluating whether the claimant has met this burden,
objective medical facts and clinical findings; (2) diagnoses of
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
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled.
Apfel, 190 F.3d 1224, 1228 (11th
See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).
The ALJ did not err in finding that
Plaintiff does not meet the criteria for
As noted, supra, Plaintiff raises only one issue on appeal,
that is, whether the ALJ erred in finding that she does not meet
the criteria for Listing 12.05. 4
(Doc. 15 at 3).
Plaintiff, her Full Scale IQ score of 67, combined with the
(Doc. 15 at 8).
Plaintiff further argues that the ALJ erred in
finding that her IQ score was invalid.
(Id. at 9-10).
carefully reviewed the record in this case, the Court finds that
Plaintiff’s claim is without merit.
retardation), she must present evidence of “[a] valid verbal,
performance or full scale IQ of 60-70 and a physical or other
mental impairment imposing an additional and significant workrelated limitation of function.”5
20 C.F.R. Part 404, Subpart P,
The Court notes at the outset that Plaintiff does not take
issue with the ALJ’s findings related to
Rather, Plaintiff argues only that the ALJ erred
in finding that she does not meet cognitive criteria for Listing
Therefore, the Court’s discussion of the medical
evidence is limited to this issue.
For purposes of Listing 12.05C, the second prong requirement is
met once there is a finding that the claimant has an additional
severe impairment because the requirement of “significant workrelated limitation of function” “involves something more than
‘minimal’ but less than ‘severe.’” Johnson v. Colvin, 2014 U.S.
Dist. LEXIS 13497, *7, 2014 WL 413492, *3 (S.D. Ala. Feb. 3,
2014) (quoting Edwards by Edwards v. Heckler, 755 F.2d 1513,
1515 (11th Cir. 1985)). In this case, the ALJ found Plaintiff’s
obesity and status post left arm amputation with subsequent
treatment for phantom pain to be severe, and the parties do not
dispute that finding. (Doc. 13-2 at 27). Therefore, the second
“diagnostic description” of mental retardation in Listing 12.05
disability), 6 which provides that mental retardation “refers to
significantly subaverage general intellectual functioning with
deficits in adaptive functioning initially manifested during the
supports onset of the impairment before age 22.”
20 C.F.R. Part
Commissioner, Soc. Sec. Admin., 553 Fed. Appx. 870, 873 (11th
score; onset before age 22; and the requisite deficits in workprong of Listing 12.05C, requiring a physical or other mental
impairment imposing an additional and significant work-related
limitation of function, is not at issue in this case.
On August 1, 2013, the Social Security Administration amended
Listing 12.05 by replacing the words “mental retardation” with
See Hickel v. Commissioner of Soc.
Sec., 539 Fed. Appx. 980, 982 n.2 (11th Cir. 2013) (citing 78
Fed. Reg. 46,499, 46,501, to be codified at 20 C.F.R. pt. 404,
subpt. P, app. 1)).
“This change was made because the term
‘mental retardation’ has negative connotations, and has become
offensive to many people.
(citations and internal
quotation marks omitted). “The Social Security Administration
stated that the change does not affect the actual medical
definition of the disorder or available programs or services.”
Id. (citations and internal quotation marks omitted). As in
Hickel, this opinion uses the term “mental retardation” and
“intellectual disability” interchangeably.
The law in this Circuit provides that a valid IQ score of
manifested deficits in adaptive functioning prior to the age of
See Hodges v. Barnhart, 276 F. 3d 1265, 1268-69
(llth Cir. 2001).
Thus, “a claimant meets the criteria for
presumptive disability under section 12.05C when the claimant
presents a valid I.Q. score of 60 to 70 inclusive, and evidence
of an additional mental or physical impairment that has more
than a ‘minimal effect’ on the claimant’s ability to perform
basic work activities.”
Smith v. Commissioner of Soc. Sec., 535
Fed. Appx. 894, 897 (llth Cir. 2013)(quoting Lowery v. Sullivan,
979 F. 2d 835, 837 (11th Cir. 1992)).
The presumption under 12.05C can be rebutted, however, when
claimant’s work history, daily activities, and behavior. 7
Though not at issue in this case, the Court notes that, in
addressing the “adaptive functioning” aspect of Listing 12.05C,
the Eleventh Circuit has sustained the rejection of claims under
this Listing where the claimant’s IQ score was significantly
inconsistent with his/her adaptive functioning, despite a
qualifying IQ score.
For example, in Perkins v. Commissioner,
Soc. Sec. Admin., 553 Fed. Appx. 870 (llth Cir. 2014), the
Eleventh Circuit upheld the ALJ’s finding that Listing 12.05C
was not met where the plaintiff performed skilled jobs,
including as a skilled cook, managed other workers, and made
contradictory claims regarding his education and employment
Also, in Hickel v. Commissioner, 539 Fed. Appx. 980,
984 (llth Cir. 2013), the Eleventh Circuit held that the ALJ did
not err where he acknowledged that the claimant had a valid IQ
Popp v. Heckler, 779 F.2d 1497, 1499-1500 (llth Cir. 1986).
Indeed, neither a diagnosis of mental retardation nor a valid IQ
score between 60 and 70, applied the presumption established by
Hodges v. Barnhart, 276 F. 3d 1265, 1268-69 (llth Cir. 2001),
and found that the presumption was rebutted by other evidence
that showed that the claimant did not have “deficits in adaptive
functioning.” In reaching that decision, the court noted that,
although the claimant had been enrolled in special education
classes, she worked part-time in a nursery, was a high school
graduate, prepared simple meals, dressed herself, drove herself
to work, attended church regularly, and socialized with friends.
Id. at 984-985. See also Popp, 779 F.2d at 1499-1500 (affirming
finding that Listing 12.05C was not met where the plaintiff had
worked skilled jobs, obtained a college degree, and had
exaggerated his deficits when examined); White v. Colvin, 2015
U.S. Dist. LEXIS 28277, 2015 WL 1013117, *4 (S.D. Ala. Mar. 9,
2015) (The ALJ properly found that, despite a Full Scale IQ
score of 63, the plaintiff did not have significant limitations
in adaptive functioning where the record reflected that,
although the plaintiff had been in special education classes, he
lived alone, maintained his financial affairs, and consistently
worked at several different jobs); Robinson v. Colvin, 2015 U.S.
Dist. LEXIS 43338, 2015 WL 1520431, *11 (S.D. Ala. Apr. 2, 2015)
(where the plaintiff lived independently without a highly
supportive living arrangement, cared for her personal needs, and
had a significant work history, the ALJ properly found that her
Full Scale IQ score of 60 was inconsistent with the record
evidence regarding her daily activities); Johnson, 2014 U.S.
Dist. LEXIS 13497, 2014 WL 413492, at *4 (although the ALJ never
stated that the claimant failed to meet Listing 12.05C, the
ALJ’s finding that, despite a Full Scale IQ score of 62, the
claimant had high adaptive skills, i.e., he had the capacity to
take care of his own needs, perform activities of daily living,
and had successfully performed four different jobs since leaving
high school, was sufficient to support his decision that the
claimant was not mentally retarded); Lyons v. Astrue, 2009 U.S.
Dist. LEXIS 128950 (M.D. Fla. May 24, 2009), adopted by 2009
U.S. Dist. LEXIS 48535, 2009 WL 1657388 (M.D. Fla. June 10,
2009)(The ALJ’s finding that the claimant did not meet Listing
12.05C was supported by substantial evidence that demonstrated
that the claimant had a high school diploma, was not in special
education classes, completed his own social security forms, and
had earnings from 1983 – 1990 between $13,696 and $18,408 per
score is conclusive of mental retardation where the diagnosis
regarding the claimant’s daily living activities and behavior.
1520431 at *11; Perkins, 553 Fed. Appx. at 873-74.
the ALJ is tasked with determining whether there is sufficient
See Grant v. Astrue, 255 Fed. Appx. 374, 375 (llth
Cir. 2007); Hartman v. Colvin, 2014 U.S. Dist. LEXIS 91467, *7,
2014 WL 3058550, *3 (S.D. Ala. July 7, 2014).
evidence supports the ALJ’s finding that Plaintiff’s Full Scale
IQ score was invalid and, thus, that Plaintiff did not meet the
criteria of Listing 12.05C.
“[T]he ALJ is allowed some leeway
to evaluate other evidence [other then I.Q. test score] when
determining the validity of an I.Q. score. . . .”
Barnhart, 156 Fed. Appx. 171, 173 (11th Cir. 2005)
Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992)).
consistent with the other medical evidence and the claimant’s
daily activities and behavior.”
Id. (citing Popp, 779 F.2d at
In determining whether the ALJ in this case properly found
Plaintiff’s Full Scale IQ score of 67 to be invalid, the Court
is guided by the Eleventh Circuit’s decision in Popp, 779 F.2d
at 1500, in which the court held that the ALJ was not required
to find that the claimant met the criteria of Listing 12.05C
based on the results of his IQ test, but, rather, the ALJ was
other medical evidence and the claimant’s daily activities and
The court concluded that, because the results
of the IQ test were inconsistent with other evidence in the
record, substantial evidence supported the ALJ’s finding that
the IQ results were “incredible” and, thus, did not meet the
As stated, the ALJ here found that Plaintiff’s Full Scale
IQ score of 67 was invalid and that the diagnosis of mild mental
retardation by consultative psychologist, Dr. Reynolds, which
was based on Plaintiff’s IQ score of 67, was inconsistent with
Dr. Reynolds’ own findings and opinions, as well as with the
activities of daily living and behavior. 8
(Doc. 13-2 at 29).
In reaching that decision, the ALJ pointed to
Plaintiff also takes issue with the ALJ’s finding that her
alleged impairment of mild mental retardation was “not medically
determinable.” (Doc. 13-2 at 29-30, 40). Because the Court has
found, for the reasons stated herein, that substantial evidence
supports the ALJ’s finding that Plaintiff’s Full Scale IQ score
was invalid and that Dr. Reynolds’ diagnosis of mild mental
retardation was inconsistent with the totality of the evidence,
Plaintiff’s argument in this regard is without merit.
Ph.D., evaluated Plaintiff on February 16, 2010, and documented
(repeating the fifth grade), that she attended college for a
year and a half taking general studies, that she read books in
her spare time, that she managed her own finances, and that she
had a drivers license and drove.
(Doc. 13-2 at 29; 14-2 at
Dr. Reynolds’ report shows that Plaintiff was seeking
problems standing for long periods of time
clots in her legs.
(Doc. 14-2 at 149).
Dr. Reynolds that she had
because of blood
Plaintiff reported to
problems with sadness, worry, and
trouble finishing what she started but denied any psychiatric
(Doc. 14-2 at 149).
Plaintiff reported that she was
living in an apartment with her four children, ages ten, three,
two, and one and that she shared in the housework, cooking, and
friends and going to church.
(Doc. 14-2 at 149).
reported working for Walmart from 1998 to 2007 as a stocker
until she lost her arm in a motor vehicle accident. (Doc. 14-2
Plaintiff’s mental status examination revealed that
logical thought content, normal thought associations and mood,
normal recent and remote memory, and normal judgment, insight,
addition, Plaintiff was able to calculate three out of three
single-digit multiplication problems and two out of two simple
(Doc. 14-2 at 149).
She correctly identified
the current and past presidents and was able to give birth dates
of significant people in her life and relevant dates of past
(Doc. 14-2 at 149).
Dr. Reynolds concluded: “In
this evaluator’s opinion the claimant’s ability to understand,
appropriately to supervision, co workers, work pressures in a
(Doc. 14-2 at 150) (emphasis added).
assessed no other limitations or impairments and stated that
(Doc. 14-2 at 150).
Dr. Reynolds did not at any time suggest
the possibility of mental retardation.
Statement (Mental) in which he
(Doc. 14-2 at 149).
opined that Plaintiff had no
limitations in her ability to understand, remember, and carry
out simple instructions or to make judgments on simple workrelated
complex decisions and instructions.
(Doc. 14-2 at 151-52).
Three years later, on September 9, 2013, Plaintiff returned
to Dr. Reynolds for a Vocational Rehabilitation Psychological
(Doc. 14-2 at 210).
At that time, Plaintiff again
independently with her children, while needing some help with
bathing and dressing.
(Doc. 14-2 at 210-11).
mental status examination again revealed that she was alert,
cooperative, and oriented, that she had normal speech, normal
thought associations, logical thought content, good recent and
Plaintiff also took the WRAT-III and scored at the seventh grade
level in reading and at the sixth grade level in spelling and
Plaintiff had exhibited appropriate effort and motivation during
testing, and, thus, he considered the results to be a valid
estimate of her intellectual functioning and academic abilities.
adjustment disorder with disturbance of mood and mild mental
(Doc. 14-2 at 210).
Despite his diagnosis of mild
mental retardation, Dr. Reynolds nonetheless recommended that
Plaintiff complete a job survey inventory to help her decide
performing and documented that Plaintiff stated that she was
capable of doing housework and answering the telephone and would
be interested in doing that type of work.
(Doc. 14-2 at 213).
contradictions in Dr. Reynolds’ two assessments
cognitive abilities, her activities of daily living, and her
Specifically, the ALJ noted the inconsistency between
Plaintiff’s Full Scale IQ score of 67 (indicating mild mental
retardation) and Dr. Reynolds’ first report in which he clearly
opined that Plaintiff could work and had no limitations related
to simple instructions and work-related decisions and only mild
The record shows that the ALJ assigned great weight to Dr.
Reynolds’ opinion in his first assessment that Plaintiff had
essentially average intelligence and little weight to Dr.
Reynolds’ opinion in his second assessment that Plaintiff’s Full
Scale IQ score of 67 was valid and that she was mildly mentally
(Doc. 13-2 at 40).
Based on the evidence detailed
herein, the ALJ had good cause to reject Dr. Reynolds’ opinions
in the second assessment as they were inconsistent with his own
examination findings as well as with Plaintiff’s activities of
daily living and her behavior.
See Phillips v. Barnhart, 357
F.3d 1232, 1240 (11th Cir. 2004)(whether considering the
opinions of treating, examining, or non-examining physicians,
good cause exists to discredit the testimony of any medical
source when it is contrary to or unsupported by the evidence of
addition, Dr. Reynolds’ examination findings in both the first
and second assessments were essentially “normal.”
(Doc. 14-2 at
149, 211; Doc. 13-2 at 29-30).
Notably, despite Plaintiff’s
inventory to assess her employment interests, and noted that she
was capable of, and interested in, performing housekeeping and
telephone work. (Doc. 14-2 at 213).
The ALJ also pointed to the inconsistency between the Full
graduated from high school in regular (not special education)
classes, had completed a year and a half of college, and had
worked for ten years in semi-skilled work.
(Doc. 13-2 at 30,
discussed Plaintiff’s activities of daily living which included
finances, and attending church.
(Doc. 13-2 at 32).
also reported getting along with others and following written
and spoken instructions okay.
(Doc. 13-2 at 32).
repeated the fifth grade and that she scored at the seventh
grade level in reading and at the sixth grade level in spelling
(Doc. 14-2 at 212-13).
However, notwithstanding this
inconsistent with a finding of mental retardation.
the ALJ properly found Plaintiff’s Full Scale IQ score of 67 to
Cf., Reid v. Commissioner of Soc. Sec., 2012 U.S.
Dist. LEXIS 187808, *18, 2012 WL 7682813, *6 (S.D. Ga. Dec. 14,
2012), report and recommendation adopted, 2013 WL 960814 (S.D.
Ga. Mar. 12, 2013) (the ALJ’s finding that Plaintiff’s IQ score
was invalid was supported by substantial evidence that Plaintiff
lived independently while raising three children and a six–year–
services; worked for over ten years as a longshoreman; and had
the ability to drive and make financial decisions); Anderson v.
Astrue, 2012 U.S. Dist. LEXIS 124827, *14-18, 2012 WL 3834838,
*4-6 (D.S.D. Sept. 4, 2012) (the ALJ’s decision to discredit
Plaintiff’s IQ score was supported by substantial evidence that
the psychologist who administered the IQ examination only met
affected her performance on the examination; there were no other
medical records illustrating claimant’s cognitive difficulties;
claimant could read and understand short newspaper or magazine
articles, count out change; claimant was capable of cooking,
cleaning, and shopping; and while claimant only completed the
tenth grade in special education, the record suggested that she
discontinued school for personal reasons, not because of mental
In summary, the ALJ was not required to find that Plaintiff
was mentally retarded based on the results of her IQ test.
Popp, 779 F.2d at 1500.
Rather, the ALJ was required to examine
the results in conjunction with other medical evidence and the
claimant’s daily activities and behavior.
Based on the
evidence detailed above, there is substantial evidence in the
record to support the ALJ’s finding that the results of the IQ
test lacked validity.
Given the absence of a valid Full Scale IQ score of 60-70
in this case, no further 12.05C analysis was required.
v. Commissioner of Soc. Sec., 2012 U.S. Dist. LEXIS 187808, *18,
recommendation adopted, 2013 WL 960814 (S.D. Ga. Mar. 12, 2013)
(“Without credible, valid IQ scores below 70, the ALJ was not
required to find Plaintiff mentally retarded pursuant to Listing
12.05(B) or (C)”).
Accordingly, Plaintiff’s claim that the ALJ
erred in failing to find that she met Listing 12.05C is without
consideration of the administrative record and memoranda of the
Commissioner of Social Security denying Plaintiff’s claim for a
supplemental security income be AFFIRMED.
DONE this 9th day of May, 2017.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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