Branch v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER that the decision of the Commissioner be AFFIRMED and this action be DISMISSED. Signed by Magistrate Judge Katherine P. Nelson on 4/25/2017. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANGELA M. BRANCH
Plaintiff,
v.
NANCY A. BERRYHILL1,
Social Security Commissioner
Defendant.

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) CIVIL ACTION NO. 16-0499-N
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MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 405(g) Plaintiff, Angela Branch
(“Branch” or “Plaintiff”) seeks judicial review of an adverse social security
ruling denying supplemental security income.

(Docs. 1, 13).

With the

consent of the parties, the Court has designated the undersigned Magistrate
Judge to conduct all proceedings and order the entry of judgment in this civil
action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure
73, and S.D. Ala. GenLR 73. (See Docs. 16, 18). Oral argument was heard on
April 13, 2017.

After considering the administrative record and the

memoranda of the parties, it is ORDERED that the decision of the
Commissioner be AFFIRMED and that this action be DISMISSED.

Nancy A. Berryhill has replaced Carolyn Colvin and is now the acting Social Security
Commissioner.

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PROCEDURAL BACKGROUND
Plaintiff protectively applied for a supplemental security income on
January 23, 2013, asserting a disability onset date of February 14, 2001. (Tr.
at 17, 124-131). Plaintiff attended a hearing before an Administrative Law
Judge (ALJ”) on April 8, 2015, and the ALJ rendered an unfavorable decision
on April 24, 2015. (TR. at 14-28, 34-70).
At the time of the administrative hearing, Plaintiff was forty-seven
years old, had completed the eighth grade and had no previous work history.
(Doc. 13; Fact Sheet).

Plaintiff alleges she is disabled due to borderline

intellectual functioning and diabetes mellitus. (Id.) On April 24, 2015, an
ALJ denied benefits after determining that Plaintiff was not disabled and
had the residual functional capacity (“RFC”) to perform a full range of work
at all exertional levels with some nonexertional limitations. (TR. at 22, 25).
Plaintiff requested review of the hearing decision, but the Appeals Council
denied the request on August 12, 2016. (TR. at 1-6).
Plaintiff claims that the ALJ committed reversible error in failing to
find that Plaintiff met the listing requirement of 12.05C and in failing to find
that Plaintiff suffers from a severe impairment of diabetes mellitus. (Doc. 13,
generally). Defendant has responded to—and denies—these claims. (Doc.
14).

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STANDARD OF REVIEW
“In Social Security appeals, [the Court] must determine whether the
Commissioner’s decision is ‘ “supported by substantial evidence and based on
proper legal standards. Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” ’ ” Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011) (quoting Crawford v. Comm'r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (per curiam) (internal citation omitted) (quoting
Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997))). However, the
Court “ ‘may not decide the facts anew, reweigh the evidence, or substitute
our judgment for that of the [Commissioner].’ ” Winschel, 631 F.3d at 1178
(quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)
(alteration in original) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983))). “ ‘Even if the evidence preponderates against the
[Commissioner]’s factual findings, we must affirm if the decision reached is
supported by substantial evidence.’ ”

Ingram, 496 F.3d at 1260 (quoting

Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
“Yet, within this narrowly circumscribed role, [courts] do not act as
automatons. [The court] must scrutinize the record as a whole to determine
if the decision reached is reasonable and supported by substantial
evidence[.]” Bloodsworth, 703 F.2d at 1239 (citations and quotation omitted).
See also Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984) (per curiam)

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(“We are neither to conduct a de novo proceeding, nor to rubber stamp the
administrative decisions that come before us. Rather, our function is to
ensure that the decision was based on a reasonable and consistently applied
standard, and was carefully considered in light of all the relevant facts.”). “In
determining whether substantial evidence exists, [a court] must…tak[e] into
account evidence favorable as well as unfavorable to the [Commissioner’s]
decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).
Although the “claimant bears the burden of demonstrating the
inability to return to [his or] her past relevant work, the Commissioner of
Social Security has an obligation to develop a full and fair record.” Shnorr v.
Bowen, 816 F.2d 578, 581 (11th Cir. 1987). See also Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003) (per curiam) (“It is well-established that the
ALJ has a basic duty to develop a full and fair record. Nevertheless, the
claimant bears the burden of proving that he is disabled, and, consequently,
he is responsible for producing evidence in support of his claim.” (citations
omitted)).

“This is an onerous task, as the ALJ must scrupulously and

conscientiously probe into, inquire of, and explore for all relevant facts. In
determining whether a claimant is disabled, the ALJ must consider the
evidence as a whole.” Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267
(11th Cir. 2015) (per curiam) (citation and quotation omitted).
Where, as here, the ALJ denied benefits and the Appeals Council
denied review of that decision, the Court “review[s] the ALJ’s decision as the

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Commissioner’s final decision.” Doughty, 245 F.3d at 1278. “[W]hen the
[Appeals Council] has denied review, [the Court] will look only to the
evidence actually presented to the ALJ in determining whether the ALJ’s
decision is supported by substantial evidence.” Falge v. Apfel, 150 F.3d 1320,
1323 (11th Cir. 1998).
DISCUSSION
Plaintiff asserts that the ALJ erred by (1) “failing to properly consider,
at step three of the sequential evaluation process, whether Plaintiff’s
impairment or combination of impairments is of a severity to meet or
medically equal the criteria of listing 12.05(c)” and (2) “failing to find that
Plaintiff suffers severe impairment of diabetes mellitus.” (Doc. 13 at 1-2).
Because an analysis of the relevant listing requirement is partially reliant
upon a determination of whether the ALJ erred in not finding Plaintiff’s
diabetes as severe, the undersigned will address Plaintiff’s second
assignment of error first.
A.

Severe Impairment

Plaintiff contends that the ALJ reversibly erred by failing to find that
Plaintiff’s diabetes mellitus is severe based on Plaintiff treatment for the
same dating back to 2010.

More specifically, Plaintiff points to (1) a

diagnoses of uncontrolled diabetes on March 5, 2013; (2) a consultative exam
on August 7, 2013, by Dr. Brooks wherein Plaintiff was diagnosed with
morbid obesity and mild adult onset diabetes that appears to be under good

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control; and (3) a diagnoses of uncontrolled diabetes on July 5, 2013. (Doc. 13
at 4). Plaintiff asserts that her non-compliance with her diabetes medicine
was the result of her inability to afford her copays. (Id.) Defendant argues
the Plaintiff has not shown that her diabetes mellitus caused any functional
limitations. (Doc. 14 at 4). 2
"An impairment can be considered as not severe only if it is a slight
abnormality which has such a minimal effect on the individual that it would
not be expected to interfere with the individual's ability to work, irrespective
of age, education, or work experience. Brady v. Heckler, 724 F.2d 914, 920
(11th Cir. 1984); See also 20 C.F.R. § 404.1521(a) (“An impairment or
combination of impairments is not severe if it does not significantly limit your
physical or mental ability to do basic work activities”); McCruter v. Bowen,
791 F.2d 1544, 1547 (11th Cir. 1986) ("The 'severity' of a medically
ascertained disability must be measured in terms of its effect upon ability to
work, and not simply in terms of deviation from purely medical standards of
bodily perfection or normality"); and Social Security Ruling 96-3p (“evidence
about the functionally limiting effects of an individual’s impairment(s) must

Defendant initially argues that the ALJ’s failure to find Plaintiff’s diabetes mellitus severe
is irrelevant because Plaintiff was found to have another severe impairment requiring the
ALJ to continue the disability evaluation process. See Burgin v. Comm’r, 420 Fed. Appx.
901, 902 (11th Cir. 2011) (“The finding of any severe impairment, based on either a single
impairment or a combination of impairments, is enough to satisfy step two because once the
ALJ proceeds beyond step two, he is required to consider the claimant's entire medical
condition, including impairments the ALJ determined were not severe.”) (citing to Jamison v.
Bowen, 814 F.2d 585, 588 (11th Cir.1987). Defendant’s argument is compelling because
Plaintiff does not assert that the ALJ failed to consider the non-severe impairment in
determining Plaintiff’s RFC.
Nevertheless, the undersigned will address Plaintiff’s
contention of error.

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be evaluated in order to assess the effect of the impairment(s) on the
individual’s ability to do basic work activities”).
At step two, the ALJ determined that Plaintiff had a severe
impairment of mild intellectual deficit.

(TR. at 19).

In reaching this

conclusion, it is clear that the ALJ also considered the severity of Plaintiff’s
diabetes. In that regard, the ALJ stated as follows:
At the hearing, the claimant testified that she has been diabetic
for ten years. She takes metformin twice a day. Her sugar level runs
170 at night and drop [sic] during the day, generally around noon. She
will drink orange juice to bring it back up. She wears comfortable
slippers rather than diabetic shoes because the latter hurt her feet.
The claimant has been diagnosed with diabetes mellitus. She
has been under appropriate medical care for this condition. Abnormal
blood sugar levels have been associated with treatment noncompliance.
Even so, there is no indication of ongoing symptoms, complications or
end-organ damage. On January 24, 2013, her medications included
metformin 1,000mg twice daily and glipizide 5mg twice daily. On
March 5, 2013, she was noted to have a history of being noncompliant
with diet and medications. Although she claimed to be doing better
with her medications with her diet and to be following medications
properly, she had not brought her medications with her and “doesn’t
seem to be sure about what she’s taking.” Her A1c was 8.5 (Exhibit
B1F). On June 10, 2014, her A1c was 11. On July 2013, her A1c was
8.8. At an office visit, she was described as “extremely noncompliant
with medications and diet…Never brings her medicines, always
forget… Always confused on what she’s taking.” She admitted that she
had not taken her diabetes medication “for a few weeks” and was just
picking them up that day. (Exhibit B4F).
On October 8, 2013, her glucose was 200. Her primary care
provider again noted, “she is extremely uncompliant with
medications…. This has been the issue with her all these months.”
Her diabetes was uncontrolled. She was also noncompliant with her
diet. She was only taking metformin. She reported at times the
copays were unaffordable. She was prescribed only generic medication.
No changes were made to her medications. Her primary care provider
stresses compliance with her treatment plan.
(Exhibit B4F).

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Therefore, her diabetes does not represent a severe impairment.
(TR. at 19-20). The ALJ also gave great weight to the consultative examiner
Dr. Brooks who opined “This woman appears fully capable of performing
most jobs even at a very heavy work rate…I see no impairments, no
significant medical diseases other than her morbid obesity and very mild
diabetes mellitus which she has as a result of her obesity.” (TR. at 21, 291).
The entirety of Plaintiff’s argument on this assignment of error states
as follows: “Based on Plaintiff’s treatment records detailed above, Plaintiff
suffers from a severe impairment of diabetes mellitus. Plaintiff’s treatment
records repeatedly note diabetes mellitus beginning in 2010. The Plaintiff’s
diabetes mellitus is more than a slight abnormality and would be expected to
interfere with Plaintiff’s ability to work.” (Doc. 13 at 5-6). While Plaintiff
has a history of diabetes, there is no indication that the ALJ’s assessment of
her condition was not based on substantial evidence.

Further, despite

Plaintiff’s assertion that her condition would interfere with her ability to
work, Plaintiff points to no evidence in the record which the ALJ erroneously
failed to consider that would support her allegation. As such, Plaintiff has
not shown, based on the objective medical evidence that her diabetes would
interfere with Plaintiff’s ability to work. Accordingly, the ALJ did not err by
failing to find Plaintiff’s impairment of diabetes mellitus to be severe.
B.

The 12.05C Listing Requirements

Plaintiff contends that that ALJ erred by failing to determine that

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Plaintiff met the listing requirements of 12.05C.

At step three of the

sequential evaluation process the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or equaled the severity
of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1.

(TR. at 21).

The ALJ then determined Plaintiff’s residual functional

capacity (RFC) and found she could perform a full range of work at all
exertional levels but with a number of nonexertional limitations. (Id. at 22.)
To “meet” a listing at step three, the claimant must have an
impairment that “satisfies all of the criteria of that listing, including any
relevant criteria in the introduction, and meets the duration requirement.” 20
C.F.R. §§ 404.1525(c)(3), 416.925(c)(3). Listing 12.05C states as follows:
Intellectual disability refers to a significantly subaverage
general intellectual functioning with deficits in adaptive
functioning initially manifested during the development
period; i.e., the evidence demonstrates or supports onset
of the impairment before age 22.
The required level of severity for this disorder is met
when the requirements in A, B, C, or D are satisfied.
…
C. A valid verbal, performance, or full scale IQ of
60 through 70 and a physical or other mental impairment
imposing an additional and significant work-related
limitation of function;
20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 12.05 (2016). “Listing
12.05 contains an introduction that includes the ‘diagnostic description for
mental retardation’ and also ‘four sets of criteria’ in paragraphs A through D.

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If the claimant's mental impairment ‘satisfies the diagnostic description ...
and any one of the four sets of criteria’ in Listing 12.05, then the claimant's
impairment meets the mental retardation listing, and the claimant is
presumed disabled.” Hickel v. Commissioner of Social Security, 539 Fed.Appx.
980, 983 (11th Cir. 2013) (internal citations omitted). However, “a valid I.Q.
score need not be conclusive of mental retardation where the I.Q. score is
inconsistent with other evidence in the record on the claimant's daily
activities and behavior.” Hickel, 539 Fed.Appx. at 983-84. (citing to Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992)); see also Popp v. Heckler, 779
F.2d 1497, 1499–1500 (11th Cir. 1986) (stating that the ALJ may disregard
IQ test results that are inconsistent with other record evidence because the
regulations require the ALJ to examine intelligence tests and other evidence,
such as the medical report and the claimant's daily activities and behavior).
On July 12, 2013, Plaintiff obtained a verbal comprehension score of
61, a working memory score of 66, and a full scale IQ score of 60 on the
Wechsler Adult Intelligence Scale- Fourth Edition.

(TR. at 21). After

considering the record, however, the ALJ determined that Plaintiff did not
meet the criteria of deficits in adaptive functioning. (Id.) More specifically,
the ALJ stated as follows:
The record does not establish the claimant meets the basic criteria of
deficits in adaptive functioning as there is no evidence of limitations in
self-care, home living, self-direction, communication, or interpersonal
skills. The claimant testified that she attended special education
classes. The claimant initially reported she [sic] the highest grade she
completed was fifth in 1979; however, at the hearing, she testified that

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she completed the eighth grade (Exhibit B2E.). On June 28, 2013, the
claimant could not remember the grade she completed but reported her
grades had been A’s and B’s. She stated that she was raised by her
grandmother and stopped school to help care for her brother. (Exhibit
B6F). At the hearing, she reported that her mother took her out of
school at the age of 16. At the hearing, the claimant testified that she
has been married three times. She was eighteen years old at the time
of her first marriage, which lasted ten years and produced two
children. Her children are now 27 and 26.
[…]
The claimant’s activities subsequent to age twenty-two do not suggest
the deficits in adaptive functioning contemplated by the listing were
previously present. At the hearing, she testified that her second
marriage lasted about two years, and her current marriage has lasted
thirteen years. In a function report, the claimant was noted to feed
and take care of her pets without help. She had no problem with
personal care. She prepared her own meals. She did not want to go out
alone, but did shop in stores every two weeks. She spent time on the
computer daily. (Exhibit B5E). On June 28, 2013, she reported having
normal family relationships. She described her daily activities as
helping her husband cook, watching television, washing clothes, going
to the grocery store with her husband, talking to her daughter on the
phone, and visiting her son.
(Exhibit B6F). At the hearing, the
claimant testified that that she is able to cook complete meal such as
fried chicken. She has three dogs, two live indoors and one lives
outdoors, and four cats. She usually attends church twice a week; this
includes Sunday school and prayer meetings. While she does not
currently have a driver’s license, she had one in the past. She took the
oral driver’s license test. She stopped driving after her husband was in
a serious car accident. She sees her son daily.
(TR at 21-22.) The ALJ went on to summarize the opinion of M. Hope
Jackson, Ph.D., as follows:
On July 19, 2013, M. Hope Jackson, Ph.D. opined that the claimant is
able to understand and recall simple instructions but not detailed ones,
carry out simple tasks adequate to complete an eight hour workday
with customary breaks, and maintain attention and concentration for
at least two hours with customary breaks. She noted that contact with
the general public should be infrequent; supervision and feedback be in
clear, simple terms; and demands at work be mostly routine. (Exhibit
B1A). Her opinion has been given great weight because it is consistent
with the treatment and examination evidence.

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(TR. at 24).
Plaintiff acknowledges the considerations of the ALJ in her brief and
does not argue that they are inaccurate. Instead, to show that Plaintiff met
the listing requirement, Plaintiff relies on her valid IQ score of 60 and the
diagnoses of mild mental retardation by Dr. Lucile T. Williams, Psy.D in
combination with Plaintiff’s impairment of diabetes mellitus. Plaintiff
additionally rebuts the ALJ’s determination relating to adaptive functioning
by pointing to Plaintiff’s testimony that she attended special education
classes through the eighth grade3 and was taken out of school at the age of
sixteen, that Plaintiff could not write in cursive, that Plaintiff’s husband
an/or sister read everything to her, and that she took an oral test when
obtaining her driver’s license. (Doc. 13 at 3).
As an initial matter, Plaintiff has not established that the ALJ’s
determination as to Plaintiff adaptive functioning is in error.

To the

contrary, despite the circumstances/facts cited to by Plaintiff, this Court finds
that there was substantial evidence in the record on which the ALJ properly
relied in determining that Plaintiff did not have the adaptive deficits to meet
the listing requirement of 12.05C. Further, as discussed herein above, the
ALJ’s determination that Plaintiff’s diabetes mellitus was not severe was
based on substantial evidence. Accordingly, even assuming Plaintiff met the

Plaintiff’s school records are not available for review because the Mobile County Board of
Education does not maintain special education records or IQ testing for student born prior to
1975. (Doc. 13 at 3).

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adaptive function criteria of listing 12.05C, the ALJ’s determination that
Plaintiff did not meet the listing requirements of 12.05C would still be valid
based on Plaintiff’s failure to meet the second prong of the listing
requirement, i.e., a physical or other mental impairment imposing an
additional and significant work-related limitation of function. As such,
Plaintiff’s assertion that the ALJ erred is without merit.
CONCLUSION
Plaintiff has raised two claims in bringing this action; both are without
merit. Upon consideration of the entire record, the Court finds "such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Therefore, it is
ORDERED that the Secretary's decision be AFFIRMED, see Fortenberry v.
Harris, 612 F.2d 947, 950 (5th Cir. 1980), and that this action be
DISMMISSED. Judgment will be entered by separate Order.
DONE this 25th day of April 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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