Anderson v. Berryhill
Filing
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MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying Plaintiff benefits be AFFIRMED. Signed by Magistrate Judge P. Bradley Murray on 5/16/2018. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KRISTI J. ANDERSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
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) CIVIL ACTION NO. 17-0339-MU
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MEMORANDUM OPINION AND ORDER
Plaintiff Kristi J. Anderson brings this action, pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3), seeking judicial review of a final decision of the
Commissioner of Social Security (“the Commissioner”) denying her claim for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the
Act”) and for Supplemental Security Income (“SSI”), based on disability, under
Title XVI of the Act. The parties have consented to the exercise of jurisdiction by
the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this
Court. (Doc. 21 (“In accordance with the provisions of 28 U.S.C. 636(c) and Fed.
R. Civ. P. 73, the parties in this case consent to have a United States Magistrate
Judge conduct any and all proceedings in this case, … order the entry of a final
judgment, and conduct all post-judgment proceedings.”)). See also Doc. 23.
Upon consideration of the administrative record, Anderson’s brief, the
Commissioner’s brief, and the arguments made at the hearing on May 9, 2018
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before the undersigned Magistrate Judge, it is determined that the
Commissioner’s decision denying benefits should be affirmed.1
I. PROCEDURAL HISTORY
Anderson applied for DIB, under Title II of the Act, 42 U.S.C. §§ 423-425,
and for SSI, based on disability, under Title XVI of the Act, 42 U.S.C. §§ 1381-
1383d, on August 12, 2014, alleging disability beginning on April 25, 2014. (Tr.
200, 207). Her application was denied at the initial level of administrative review
on December 18, 2014. (Tr. 135-39). On December 29, 2014, Anderson
requested a hearing by an Administrative Law Judge (ALJ). (Tr. 144). After a
hearing was held on June 15, 2016, the ALJ issued an unfavorable decision
finding that Anderson was not under a disability from the date the application was
filed through the date of the decision, September 2, 2016. (Tr. 17-33). Anderson
appealed the ALJ’s decision to the Appeals Council, and, on June 21, 2017, the
Appeals Council denied her request for review of the ALJ’s decision, thereby
making the ALJ’s decision the final decision of the Commissioner. (Tr. 1-6).
After exhausting her administrative remedies, Anderson sought judicial
review in this Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1). The
Commissioner filed an answer and the social security transcript on November 2,
2017. (Docs. 12, 13). Both parties filed briefs setting forth their respective
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Any appeal taken from this Order and Judgment shall be made to the Eleventh
Circuit Court of Appeals. See Doc. 21 (“An appeal from a judgment entered by a
Magistrate Judge shall be taken directly to the United States Court of Appeals for
the judicial circuit in the same manner as an appeal from any other judgment of
this district court.”).
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positions. (Docs. 15, 16). Oral argument was held on May 9, 2018. (Doc. 22).
The case is now ripe for decision.
II. CLAIM ON APPEAL
Anderson alleges that the ALJ’s decision to deny her benefits is in error for
the following reason:
1. The ALJ erred by failing to properly evaluate whether her impairment is of a
severity to meet or equal Listing 12.05B. (Doc. 15 at p. 1).
III. BACKGROUND FACTS
Anderson was born on May 3, 1967, and was 47 years old at the time she
filed her claim for benefits. (Tr. 200). Anderson initially alleged disability due to
back problems, hearing loss in her left ear, hand problems, depression,
insomnia, and restless leg syndrome. (Tr. 235). At the hearing, in addition to
these limitations, she also alleged that tendonitis in her hip and being slow,
mentally and physically, keep her from being able to work. (Tr. 52). Anderson
graduated from high school with a regular diploma in 1985, but was in special
education classes in some subjects. (Tr. 44, 236). At the time she filed her
application, she was working part-time at a fast food restaurant as a cook, but
she was terminated from that employment between the date of filing her
application and testifying at the hearing before the ALJ. (Tr. 45-46, 236-37). She
has previously worked at fast food restaurants as a cook and stocker, at
carnivals as a game booth and ride attendant, and at Dollar Tree as a stocker.
(Tr. 46-52). At the time of the hearing, Anderson was living with and taking care
of her husband who had stage four cancer. (Tr. 40-42). Anderson handles her
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own personal care, she cooks several times per week for herself and her
husband, she does household chores, she helps her husband get up and assists
him walking, she walks to the grocery story about two miles from her apartment
and back with her husband just about every morning, and she pays bills with her
husband. (Tr. 41-43, 67-69). She does not have a driver’s license because no
one has ever taught her to drive and she doesn’t have a car. (Tr. 42-43). She
enjoys seek and find books, reading her Bible, and attending and volunteering at
her church. (Tr. 69, 71). She testified that the only problem she has getting along
with people is when they nag her and that she has no problems maintaining
attention or following directions. (Tr. 70-71). She further testified that other than
getting irritated with people who nag, there are no other ways her mental issues
keep her from being able to work. (Tr. 71). After conducting the hearing, the ALJ
made a determination that Anderson had not been under a disability during the
relevant time period, and thus, was not entitled to benefits. (Tr. 17-31).
IV. ALJ’S DECISION
After considering all of the evidence, the ALJ made the following findings
that are relevant to the issues presented in his November 2, 2016 decision:
3. The claimant has the following severe impairments: borderline
intellectual functioning, affective disorder, back pain, chronic
pain syndrome, and hearing loss in the left ear (20 CFR
414.1520(c) and 416.920(c)).
* * *
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
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416.926).
* * *
Listing 12.05 is not met. While a full scale IQ of 57 was assessed by a
psychological evaluation performed in 2012, there is no indication in the
document it was deemed a valid score. 1F. Importantly, that examiner opined
the claimant could do simple type work like “restaurant work” or “cleaning and
laundry.” 1F. Another psychological evaluation was performed in 2013 and
found a full scale IQ of 64. 13F. The provider noted that the claimant reported a
history of special education classes. However, the claimant testified she
graduated with a regular diploma. While the claimant has an IQ between 60 and
70, she has not established deficits in adaptive functioning sufficient to meet
listing 12.05. She reportedly doesn't drive, but can handle finances, worked,
takes care of her husband who has cancer and is on disability, cleans the
house, and reads. She walks four miles to the store, picks her husband up and
carries him around, and volunteers at her church. She has worked with money at
her previous jobs with the carnival. She lived by herself before she was married,
can use public transportation, and is going to attempt to learn to drive when her
and her husband get a vehicle. The evidence supports a finding that listing 12.05
has not been met.
(Tr. 23).
V. DISCUSSION
Eligibility for DIB and SSI benefits requires that the claimant be disabled.
42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1)-(2). A claimant is disabled if the claimant is
unable “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 months.” 42 U.S.C. § 1382c(a)(3)(A). The impairment must be
severe, making the claimant unable to do the claimant’s previous work or any
other substantial gainful activity that exists in the national economy. 42 U.S.C. §
423(d)(2);; 20 C.F.R. §§ 404.1505-11. “Substantial gainful activity means work
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that … [i]nvolves doing significant and productive physical or mental duties [that]
[i]s done (or intended) for pay or profit.” 20 C.F.R. § 404.1510.
In evaluating whether a claimant is disabled, the ALJ utilizes a five-step
sequential evaluation:
(1) whether the claimant is engaged in substantial gainful activity;;
(2) if not, whether the claimant has a severe impairment;; (3) if so,
whether the severe impairment meets or equals an impairment in
the Listing of Impairment in the regulations;; (4) if not, whether the
claimant has the RFC to perform her past relevant work;; and (5) if
not, whether, in light of the claimant’s RFC, age, education and
work experience, there are other jobs the claimant can perform.
Watkins v. Comm’r of Soc. Sec., 457 F. App’x 868, 870 (11th Cir. 2012) (per
curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)(f);; Phillips
v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The
claimant bears the burden of proving the first four steps, and if the claimant does
so, the burden shifts to the Commissioner to prove the fifth step. Jones v. Apfel,
190 F.3d 1224, 1228 (11th Cir. 1999). The steps are to be followed in order, and if
it is determined that the claimant is disabled at a step of the evaluation process,
the evaluation does not proceed to the next step.
If the claimant appeals an unfavorable ALJ decision, the reviewing court
has a narrow scope of review. That court must determine whether the
Commissioner’s decision to deny benefits was “supported by substantial
evidence and based on proper legal standards.” Winschel v. Comm’r of Soc.
Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations omitted);; see 42 U.S.C. §
405(g). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
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conclusion.” Winschel, 631 F.3d at 1178 (citations omitted). “In determining
whether substantial evidence exists, [the reviewing 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). The reviewing court “may not decide the facts anew, reweigh the
evidence, or substitute [its] judgment for that of the [Commissioner].” Id. When a
decision is supported by substantial evidence, the reviewing court must affirm
“[e]ven if [the court] find[s] that the evidence preponderates against the
Secretary’s decision.” MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986).
Anderson asserts that the ALJ’s summary dismissal of her documented
full-scale IQ score of 57 because “there is no indication in the document that it
was deemed a valid score,” Tr. 23, was reversible error. (Doc. 15 at p. 2). The
Commissioner argues that the ALJ did not err because Anderson did not
establish that she met all of the criteria required by Listing 12.05B. (Doc. 16 at
pp. 3-4). Specifically, the Commissioner contends that the ALJ did not err
because he correctly found that Anderson did not establish deficits in adaptive
functioning sufficient to meet Listing 12.05. (Id.).
The Listings describe certain medical findings and other criteria that are
considered so extreme as to be presumptively disabling. See 20 C.F.R §§
404.1525, 416.925. To establish disability under a Listing, a claimant must have
a diagnosis included in the Listing and must provide medical reports
documenting that her condition satisfies the specific criteria of the listed
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impairment. See Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002);; 20
C.F.R. §§ 404.1525(a-d), 416.925(a-d). “For a claimant to show that his
impairment matches a listing, it must meet all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter how severely,
does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
To “meet” Listing 12.05, the claimant must satisfy the diagnostic
description in the introductory paragraph and one of four sets of diagnostic
criteria found in paragraphs A, B, C, or D. 20 C.F.R. pt. 404, subpt. P, app. 1, §
12.00(A). Listing 12.05's introductory paragraph requires the claimant to have: (1)
significantly subaverage general intellectual functioning;; (2) deficits in adaptive
functioning;; and (3) an onset of impairment before age 22. Id. at § 12.05.
Although adaptive functioning is not defined in the regulations, the Eleventh
Circuit has favorably cited the description of adaptive functioning in the Social
Security Administration's Program Operations Manual System (“POMS”) as “‘the
individual's progress in acquiring mental, academic, social and personal skills as
compared with other unimpaired individuals of his/her same age,’” as well as the
statement in the American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders that adaptive functioning means “‘how well a person
meets standards of personal independence and social responsibility, in
comparison to others of similar age and sociocultural background. Adaptive
functioning involves adaptive reasoning in three domains: conceptual, social, and
practical.’” Schrader v. Acting Comm'r of the Soc. Sec. Admin., 632 F. App’x 572,
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576 & n. 3-4 (11th Cir. 2015) (quoting Soc. Sec. Admin., Program Operations
Manual System, DI 24515.056(D)(2) (2012) and DSM-V 37 (5th ed. 2013)).
If the claimant satisfies the three requirements in the introductory
paragraph, the claimant must then satisfy one of the four criteria listed in 12.05A
through 12.05D. The Listing relevant here is 12.05B. Under Listing 12.05B, the
claimant must present evidence of a “valid verbal, performance, or full scale IQ of
59 or less.” Jackson v. Astrue, Civ. A. No. 11-0121-M, 2011 WL 3757894, at *4
(S.D. Ala. Aug. 25, 2011) (quoting 20 C.F.R. Part 404, Subpart P, Appendix 1,
Listing 12.05B (2010)). “The Social Security Administration has noted that
standardized intelligence tests can assist in verifying the presence of intellectual
disability, but form only part of the overall assessment and should be considered
in conjunction with developmental history and functional limitations.” Nichols v.
Comm’r, Soc. Sec. Admin., 679 F. App’x 792, 795-96 (11th Cir. 2017) (citing §
12.05(D)(6)(a)). “[A]n ALJ may find, for purposes of Listing 12.05, that the results
of an IQ test are incredible where the test results are inconsistent with the
medical record or the claimant’s daily activities and behavior.” Id. at 796 (citing
Popp v. Heckler, 779 F.2d 1497, 1499-1500 (11th Cir. 1986)). Even a valid IQ
score is not necessarily conclusive of intellectual disability “‘where the IQ score is
inconsistent with other evidence in the record on the claimant’s daily living
activities and behavior.’” Nichols, 679 F. App’x at 796 (quoting Lowery v.
Sullivan, 979 F.2d 835, 837 (11th Cir. 1992)). In Nichols, the Eleventh Circuit
concluded that the ALJ did not err in finding claimant’s IQ score of 59 invalid
where her range of activities and accomplishments, including reading and
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understanding English, having a driver’s license, completing high school with a
certificate, having a history of some unskilled work, raising two children, and
handling money, were inconsistent with the IQ results. 679 F. App’x at 796-97;;
see also Branch v. Berryhill, Civ. A. No. 16-0499-N, 2017 WL 1483534, at *4-6
(S.D. Ala. Apr. 25 2017) (finding that the ALJ did not err in finding that claimant’s
IQ score of 60 was invalid where, even though she was in special education
classes through eighth grade (the highest grade completed) and could not
functionally read, she could feed and take care of her pets, manage her own
personal care, help her husband cook, watch television, wash clothes, go to the
grocery store with her husband, talk to her daughter on the phone, and spend
time on the computer).
Anderson was evaluated by psychologist Thomas S. Bennett, Ph. D. on
November 14, 2012, at which time he administered the Weschler Adult
Intelligence Scale, Fourth Edition (WAIS-IV). (Tr. 300-02). That test reflected that
Anderson had a full-scale IQ score of 57, which placed her in the range of mild
mental retardation. (Tr. 302). Dr. Bennett did not indicate in his report whether he
found this to be a valid score. He did opine, after evaluating Anderson, as well as
administering the testing, that she could “probably do some simple restaurant
work” and “could probably do cleaning or laundry.” (Tr. 301). Anderson was
subsequently evaluated by psychologist Lucile T. Williams, Psy.D., on November
7, 2013. (Doc. 356-59). She administered the WAIS-IV to Anderson which
revealed a full-scale IQ score of 64, and she assigned a diagnostic impression of
mild mental retardation. (Tr. 359). Dr. Williams noted that she believed her
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observations of Anderson to be “a valid estimate of her current level of
intellectual functioning.”
Based on the foregoing medical evidence, the ALJ rejected the IQ score of
57 because Anderson did not meet her burden of proving that it was a valid
score and found that she had a valid IQ score between 60 and 70. (Tr. 23). Even
assuming that the ALJ erred in rejecting the lower IQ score, the outcome of the
case would be the same because the ALJ found that Anderson failed to
“establish[] deficits in adaptive functioning sufficient to meet listing 12.05,” which
is a requirement under both 12.05B and 12.05C. The ALJ concluded that the
record did not support a finding that Anderson has deficits in adaptive
functioning sufficient to meet Listing 12.05. (Tr. 23). The ALJ noted that the
record reflects that Anderson “doesn't drive, but can handle finances, worked,
takes care of her husband who has cancer and is on disability, cleans the
house, and reads. She walks four miles to the store, picks her husband up and
carries him around, and volunteers at her church. She has worked with money at
her previous jobs with the carnival. She lived by herself before she was married,
can use public transportation, and is going to attempt to learn to drive when her
and her husband get a vehicle.” (Tr. 23). Anderson’s testimony at the hearing
before the ALJ supported these findings. (Tr. 39-76). This Court finds that this
evidence constitutes substantial evidence in support of the ALJ’s determination
that Anderson did not establish that she has deficits in adaptive functioning
sufficient to meet Listing 12.05B.
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CONCLUSION
It is well-established that it is not this Court’s place to reweigh the
evidence or substitute its judgment for that of the Commissioner. This Court is
limited to a determination of whether the ALJ’s decision is supported by
substantial evidence and based on proper legal standards. The Court finds that
the ALJ’s Decision that Anderson is not entitled to benefits is supported by
substantial evidence and based on proper legal standards. Accordingly, it is
ORDERED that the decision of the Commissioner of Social Security denying
Plaintiff benefits be AFFIRMED.
DONE and ORDERED this the 16th day of May, 2018.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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