Thomas v. Astrue
Order entered that the decision of the Commissioner of Social Security denying Plaintiff's claim for supplemental security income be AFFIRMED. Signed by Magistrate Judge Sonja F. Bivins on 7/21/2015. (mjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Commissioner of Social
CIVIL ACTION NO. 11-00569-B
income under Title XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq.
On June 19, 2015, the parties consented to have
the undersigned conduct any and all proceedings in this case.
Thus, the action was referred to the undersigned to
accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil
Upon careful consideration of the administrative
record and the memoranda of the parties, it is hereby ORDERED
that the decision of the Commissioner be AFFIRMED.
Plaintiff previously applied for and commenced receiving
supplemental security income benefits as a child in 2001 based
on mild mental retardation with features of attention deficit
disorder (“ADD”) and benign essential treatment of the hand.
(Supp. Tr. 337).
After Plaintiff obtained age 18, a review was
conducted, and her benefits were terminated on July 31, 2009.
Plaintiff requested a hearing, and in a decision
dated October 22, 2010, an Administrative Law Judge determined
Plaintiff filed the instant action on October
sought an unopposed sentence six remand on the ground that the
claim file, decision and the recording of the administrative
hearing could not be located.
The request was
granted, and this action was remanded to the Agency on January
Agency, she filed a second claim on November 29, 2010. (Tr.
In her second application, Plaintiff alleged that she has
been disabled since June 1, 2008, due to “ADHD, slow learner,
arthritis, tremors, hypertension, major depression, and problem
(Id. at 144, 148).
After Plaintiff’s application
was denied, her claims were consolidated, and she was granted an
administrative hearing before Administrative Law Judge Frank M.
Klinger (hereinafter “ALJ”) on June 4, 2012.
92, 309, 312).
(Id. at 64, 68,
Plaintiff attended the hearing with her counsel
and provided testimony related to her claims.
(Id. at 316).
(Id. at 326).
On February 20, 2013, the
ALJ issued an unfavorable decision finding that Plaintiff is not
(Id. at 41).
The Appeals Council denied Plaintiff’s
request for review on September 11, 2013.
(Id. at 5).
the ALJ’s decision dated February 20, 2013, became the final
decision of the Commissioner.
reopen Plaintiff’s case, which this Court granted on August 8,
(Doc. 17, 20).
Oral argument was conducted on June 19,
2015 (Doc. 34), and the parties 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).
Issues on Appeal
Whether the ALJ erred in failing to find
that Plaintiff meets Listing 12.05C?
Whether substantial evidence supports
the ALJ’s RFC assessment for a range of
Whether the ALJ erred in failing to give
substantial weight to the opinion of
Plaintiff’s treating physician?
Whether the ALJ failed to conduct a full
and fair hearing?
III. Factual Background
Plaintiff was born on October 30, 1989, and was twenty-two
years of age at the time of her administrative hearing on June
(Tr. 144, 309).
Plaintiff received special education
services while in high school, passed the Alabama High School
Graduation exam on the fourth attempt, and graduated from high
(Id. at 318, 323).
Plaintiff testified that she cannot
read or write at all, except for her name, and can only do a
“little” simple math. (Id. at 316-19).
However, in Plaintiff’s
Disability Report, she reported that she can read and write.
(Id. at 147).
Additionally, her school records reflect that she
made “B’s” in English and “C’s” in Algebra in the 9th grade,
“C’s” in English and Geometry in the 10th grade, “B’s” in U.S.
History, Earth and Space Science, and Creative Writing in the
11th grade, and
a “B” in accounting in the 12th grade.
222; Supp. Tr. 420-21, 428).
Moreover, Plaintiff had a 3.0 GPA
in the 11th grade, and upon graduation from high school, her
class rank was 31 out of 51.
(Tr. 222, 428).
seven siblings with whom she does not get along, that she lays
around and watches TV all day, and that she has never worked
because she gets “nerv[ous]” and “shakes a lot.”
(Id. at 209,
She also reported pain in her shoulder and back, which
makes it difficult for her to bend or stand for more than an
hour or so.
(Id. at 325-26). According to Plaintiff, she is
depressed and cries approximately three times a day, and she
does not go out alone.
(Id. at 320, 322).
She also indicated that she does not have any problems with
personal care and that she is able to prepare simple meals, such
as sandwiches, wash dishes and take out the trash, and do some
(Id. at 155, 164-65).
Additionally, while Plaintiff
indicated that has no friends or hobbies and does not like being
around people, she also testified that she goes to church every
activities and trips.
(Id. at 157-8, 166-7, 319, 321-24).
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.
Martin v. Sullivan, 894 F.2d
This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
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
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).
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. 2
§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since November
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
automatically found disabled regardless of age, education, or
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.
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
claimant’s residual functional capacity, age, education, and
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
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). 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)).
29, 2010, the application date, and that she has the severe
impairments of social anxiety disorder, mood disorder, history
hypertension, history of fungal dermatitis and tremor, diagnosis
of arthritis left shoulder and low back pain etiology unclear,
The ALJ further found that Plaintiff
does not have an impairment or combination of impairments that
contained in 20 C.F.R. Part 404, Subpart P, Appendix 1.
functional capacity (hereinafter “RFC”) to perform a range of
simple instructions but not detailed ones.
She could carry out
simple instructions and sustain attention to routine/familiar
tasks for extended periods. She could tolerate ordinary work
changes, and multiple demands.
She would benefit from regular
rest breaks and a slower pace but will still be able to maintain
a work pace consistent with the mental demands of competitive
Contact with the public should be casual.
(Id. at 29).
The ALJ also determined that
statements concerning the intensity, persistence and limiting
effects of the alleged symptoms were not credible to the extent
they are inconsistent with the RFC assessment.
(Id. at 31).
Utilizing the testimony of a VE, the ALJ concluded that
considering Plaintiff’s residual functional capacity for a range
experience, there are jobs existing in the national economy that
Plaintiff is able to perform, such as “cafeteria attendant,”
classified as light and unskilled.
(Id. at 40).
concluded that Plaintiff is not disabled.
Thus, the ALJ
In determining that Plaintiff did not meet any Listing, the
ALJ made the following relevant findings:
Under the third step, a determination must
be made as to whether or not the impairment
or impairments are of listing severity. The
findings, which must be present under each
of the body systems for an impairment to be
No treating or examining
source or medical expert has concluded that
the claimant’s impairments meet or equal a
impairments, singularly and in combination,
impairments, including but not limited to
listings 1.01, et seq., 4.01 et seq., 8.01
et seq., and 12.01.
I find that the
severity of the claimant’s impairments does
not meet the specific requirements of any of
the impairments listed by the Commissioner
in Appendix 1.
I also find that the
severity of the claimant’s impairments, even
in combination, does not equal the level of
severity contemplated in the listings.
combination, do not meet or medically equal
the criteria of listings 12.04 and 12.06.
In making this finding, I have considered
whether the “paragraph B” criteria are
satisfied. To satisfy the “paragraph B”
criteria, the mental impairments must result
in at least two of the following: marked
restriction of activities of daily living;
marked difficulties in maintaining social
maintaining concentration, persistence, or
decompensation, each of extended duration.
A marked limitation means more than moderate
but less than extreme. Repeated episodes of
decompensation, each of extended duration,
means three episodes within l year, or an
average of once every 4 months, each lasting
for at least 2 weeks.
In activities of daily living, the claimant
has moderate restriction. Dr. Estock agreed
and found the claimant to have moderate
restriction in activities of daily living as
well (Exhibit B1F). The claimant reported
that she does not have problems with her
personal care. She reports that she shops.
She also reports that she goes to church
every Sunday and sings in the choir. There
is nothing in the record to support a more
than moderate restriction.
In social functioning, the claimant has
moderate difficulties. Dr. Estock agreed and
restriction in activities of daily living as
well (Exhibit B1F). Although the claimant
reports that she does not spend time with
others, she does live with her family.
Additionally, she shops and goes to church
every Sunday and sings in the choir. There
is nothing in the record to support a more
than moderate restriction.
With regard to concentration, persistence or
difficulties. Dr. Estock agreed and found
the claimant to have moderate restriction in
activities of daily living as well (Exhibit
BIF). The claimant reports that she listens
Further, she graduated from high school and
ranked 31st out of 51 in her graduating
There is nothing in the record to
support a more than moderate restriction.
As for episodes of decompensation, the
claimant has experienced no episodes of
decompensation, which have been of extended
duration. There is nothing in the record to
support a finding of any episodes of
Because the claimant’s mental impairments do
not cause at least two “marked” limitations
or one “marked”" limitation and “repeated”
episodes of decompensation, each of extended
duration, the “paragraph B” criteria are not
“paragraph C” criteria are satisfied. In
this case, the evidence fails to establish
the presence of the “paragraph C” criteria.
The limitations identified in the “paragraph
B” criteria are not a residual functional
capacity assessment but are used to rate the
severity of mental impairments at steps 2
and 3 of the sequential evaluation process.
The mental residual functional capacity
assessment used at steps 4 and 5 of the
sequential evaluation process requires a
various functions contained in the broad
categories found in paragraph B of the adult
mental disorders listings in 12.00 of the
Therefore, the following residual functional
capacity assessment reflects the degree of
limitation I have found in the “paragraph B”
mental function analysis.
(Id. at 27-29).
In addition, in assessing the Plaintiff’s RFC, the ALJ made
4. After careful consideration of the entire
record, I find that the claimant has the
residual functional capacity to perform
light work as defined in 20 CFR 416.967(b)
except she could understand and remember
simple instructions but not detailed
She could carry out simple instructions and
sustain attention to routine/familiar tasks
for extended periods. She could tolerate
ordinary work pressures but should avoid
quick decision-making, rapid changes, and
multiple demands. She would benefit from
regular rest breaks and a slower pace but
will still be able to maintain a work pace
competitive level work. Contact with the
public should be casual. Feedback should be
supportive. She could adapt to infrequent,
well-explained changes (Exhibit B2F).
. . .
At the hearing, the claimant testified that
she is 21 years old and graduated high
school. She stated that she lives with her
mother. She testified that she is unable to
work because she gets nervous and shakes a
lot. She stated that she was in special
education throughout high school (but she
She testified that she can
do simple math (high school records show
algebra grades in the 70’s, 80’s and some
90’s) and can only write her name and cannot
read. She testified that she gets depressed
and cries about three times a day. She
testified that she cannot go anywhere by
She stated that she sleeps about
12 hours a day. She testified that she goes
to church every Sunday and sings in the
choir. She testified that she is 5’4” tall
and weighs 200 pounds (giving her a BMI of
Mr. Andre Tucker, who is the Resources
Chairperson from Keith Middle/High School,
provided correspondence dated July 20, 20l0
stating that the claimant is a former
resource student at Keith High School and
strategies to assist her in order to
graduate high school (Exhibit B11F).
The claimant’s school records from Keith
High School do indicate that the claimant
significantly, they also indicate that the
claimant ranked 31 out of 51 in her
graduating class (with scores in the 70’s,
80’s and 90’s in algebra) (Exhibit B5F).
Although the claimant has described daily
activities which are fairly limited, two
additional factors weigh against considering
these allegations to be strong evidence in
favor of finding the claimant disabled.
First, allegedly limited daily activities
cannot be objectively verified with any
reasonable degree of certainty.
even if the claimant’s daily activities are
truly as limited as alleged, it is difficult
to attribute that degree of limitation to
the claimant’s medical condition, as opposed
to other reasons, in view of the relatively
weak medical evidence and other factors
discussed in this decision.
claimant’s reported limited daily activities
are considered to be outweighed by the other
factors discussed in this decision. . . .
In sum, the record reflects that the
claimant has overstated the severity and
frequency of her symptoms and limitations.
There is excessive symptomology and not
subjective allegations little weight in
In fact, it is noted that, the
claimant has no neurological deficits, or
muscle atrophy, nor significant weight loss,
prolonged pain, at a severe level. . . .
Here the claimant has alleged disabling
impairments, but the medical record has
Accordingly, I find that
the claimant’s al1egations are not credible
to the extent that they are inconsistent
with the above residual functional capacity
since the alleged onset date. . . .
impairments, the record does reflect that
the claimant has [been] treated for and does
social anxiety disorder; mood disorder,
history of attention deficit hyperactivity
disorder (ADHD); very probable borderline
hypertension; history of fungal dermatitis
and tremor, diagnosis of arthritis left
shoulder and low back pain etiology unclear;
and obesity (Exhibits BlF-B4F, B6F-B10F,
However, nothing in the record
claimant’s impairments are disabling.
The claimant has a history of treatment at
Cahaba Center for Mental Health (Exhibits
B7F-B9F, Bl2F). She received a diagnosis of
several occasions from June 11, 2001 through
April 2, 2003 by her treating physician,
Dr. Baltz, M.D. On April 2, 2003, Dr. Baltz
The last treating diagnosis
appears on February 9, 2012 and the claimant
was diagnosed with social anxiety disorder,
These latter two are not
impairments of the claimant. Interestingly,
a diagnosis of tremor doesn’t appear in the
more recent treatment records.
. . .
As for the opinion evidence, I note that the
above limitations are consistent with and
supported by records and reports obtained
from the claimant’s treating and examining
physicians and with the evidence as a whole.
I have considered all medical evidence of
record and any opinions of treating and
examining physicians and have concluded that
the record does not contain any functional
limitations greater than those determined in
On March 10,2011, the claimant was examined
at UAB Selma Family Medical Center (Exhibit
The records indicate the reason for
hypertension”, which certainly indicates a
mindset, if not a motivation.
there are not overwhelmingly large numbers
of people who are disabled for even light
and sedentary work due to hypertension and
this claimant is certainly not one of them.
The assessment states: “Visit: to issue a
certificate of disability”, which certainly
indicates a mindset, if not a motivation.
However, no such “certificate” was issued
and, in fact, the results of the examination
were all totally normal, including the blood
limitation of movement and no neurological
deficits. The examination record was signed
by Dr. Boyd Bailey, M.D.
I have considered the examination results
from UAB and give Dr. Bailey’s opinion
significant weight. While not a treating
physician, Dr. Estock was an examining
supported by his own clinical examinations
and testing, as discussed above, and is
generally consistent with the record as a
consultative examination on March 23, 2011
(Exhibit B3F). Dr. Tocci administered the
Wechsler Adult Intelligence Scale 4 (WAISIV) and the claimant received a full-scale
score of 49 which would classify her
intelligence in the mentally retarded range.
However, Dr. Tocci opined that the results
of the examination cannot be considered
valid noting her effort was questionable and
evidential history. Further, she notes that
at times the claimant gave responses that
appeared contrived. Dr. Tocci stated that
“if she is to be tested again, she would
benefit from understanding the importance of
I have considered and give Dr. Tocci’s
opinions appropriate weight. While not a
opinion is generally supported by her own
discussed above, and is generally consistent
with the record as a whole.
Dr. Robert Estock, M.D., performed a Mental
Residual Functional Capacity Assessment on
April 5,2011 (Exhibit B2F). Dr. Estock’s
understanding and memory ranged from not
significantly limited to only moderately
concentration and persistence ranged from
not significantly limited to only moderately
claimant’s social interaction ranged from
not significantly limited to only moderately
limited and the claimant’s adaptation ranged
from not significantly limited to only
Dr. Estock opined that
the claimant could understand and remember
simple instructions but not detailed ones.
routine/familiar tasks for extended periods.
The claimant could tolerate light work
pressures and should avoid quick decisionmaking, rapid changes and multiple demands.
The claimant would benefit from regular rest
breaks and a slower pace but would still be
able to maintain a work pace consistent with
the mental demands of competitive level
Contact with the public should be
casual. Feedback should be supportive. The
claimant could adapt to infrequent, wellexplained changes.
Dr. Estock also conducted a Psychiatric
Review Technique of the claimant on April 5,
2011 (Exhibit B1F).
He evaluated the
Disorders, 12.04 - Affective Disorders and
12.06 - Anxiety-Related Disorders.
records indicate a medically determinable
illness of BIF [Borderline Intellectual
Functioning] and a history of ADHD under
12.02, major depression under 12.04, social
anxiety under 12.06. Dr. Estock opined that
in activities of daily living, the claimant
concentration, persistence and pace the
claimant has moderate restrictions.
I give Dr. Estock’s opinions contained in
the Mental Residual Functional Capacity
Technique significant weight to the extent
that they support the residual functional
capacity stated herein.
While not a
treating source, Dr. Estock was the Agency’s
Although, he did
reasons for his opinions indicating that
these opinions were grounded in the evidence
of record. . . .
On June 11, 2012, the claimant’s treating
physician, Dr. Baltz, M.D., completed a
medical statement concerning depression with
(OCD), PTSD or panic disorder regarding the
claimant’s Social Security disability claim
(Exhibits Bl3F, Bl4F).
apprehensive expectation as the claimant’s
signs and symptoms.
In activities of daily
living he finds the claimant with moderate
restriction. In social functioning he finds
the claimant with marked restriction.
finds that deficiencies of concentration,
persistence or pace resulting in frequent
failure to complete tasks in a timely manner
(in work settings or elsewhere) are present.
He does not assign any repeated episodes of
inability to function independently outside
the area of the patient’s home due to panic
attacks is absent.
He finds that the
claimant is moderately impaired in the
ability to remember locations and work-like
procedures, the ability to understand and
remember detailed instructions, the ability
to carry out detailed instructions, the
concentration for extended periods, the
ability to sustain an ordinary routine
without special supervision, the ability to
ask simple questions or request assistance
appropriate behavior and to adhere to basic
standards of neatness and cleanliness.
finds that the claimant is markedly impaired
in the ability to perform activities within
a schedule, maintain regular attendance, and
be punctual within customary tolerances, the
ability to work in coordination with and
distracted by them, the ability to complete
symptoms and to perform at a consistent pace
without an unreasonable number and length of
appropriately with the general public, the
ability to accept instructions and respond
appropriately to criticism from supervisors,
the ability to get along with coworkers or
peers without distracting them or exhibiting
behavioral extremes, the ability to respond
setting, the ability to travel in unfamiliar
places or use public transportation and the
ability to set realistic goals or make plans
independently of others.
Although Dr. Baltz is a treating physician,
his assessment and findings regarding the
claimant’s restrictions and impairments are
treatment records) and are not consistent
with other substantial evidence in the
record (SSR 96-2p).
There are very few
signs, symptoms or objective findings for
such severe restrictions.
There is little
abilities, social or otherwise.
to testimony, about the only tasks that she
attempts are largely sleeping, laying down
and watching TV.
I don’t see how he or we
can say that she doesn’t complete these in a
I believe that the problem
is largely volitional - she hasn’t even
tried to do much more - and I give Dr. Baltz
opinions little weight. . . .
capacity assessment is supported by the
objective evidence, the treatment records,
the opinions of the claimant’s friend, Dr.
Bailey, Dr. Tocci, Dr. Estock, and the
claimant’s daily activities of living, as
well as the record as a whole. . . .
(Id. at 29-35).
The Court now considers the foregoing in light
of the record in this case and the issue on appeal.
A. Whether the ALJ erred in failing to
find that Plaintiff meets Listing
failing to find that she meets Listing 12.05C.
Plaintiff argues that she has satisfied the criteria of Listing
12.05C (mental retardation) because she was awarded benefits as
a child on September 10, 2001, based on a diagnosis of mild
within the mild mental retardation range. 3
(Doc. 25 at 4, 6).
As noted, supra, the record shows that Plaintiff was awarded
benefits when she was eleven years old based on the diagnoses of
mild mental retardation with features of attention deficit
disorder (“ADD”) and benign essential tremor of the hand.
(Supp. Tr. 338-39).
According to the ALJ’s decision dated
Thus, Plaintiff argues, she was entitled to a presumption of
mental retardation in her present application, and the ALJ erred
in failing to apply the presumption.
disabled because the substantial evidence of Plaintiff’s current
The Commissioner maintains that the
ALJ’s determination is supported by the opinions of consultative
reviewing psychiatrist, Dr. Robert Estock, M.D., and treating
psychiatrist, Dr. Timothy Baltz, M.D. (Doc. 29 at 10).
reviewed the record at length, the Court agrees with Defendant
that Plaintiff’s claim is without merit.
As stated above, the Social Security regulations set forth
a five-step sequential evaluation process to determine whether a
burden of proving that an impairment meets or equals a listed
See Harris v. Commissioner of Soc. Sec., 330 Fed.
September 10, 2001, Plaintiff received full scale IQ scores of
51 and 58 on two WISC-III tests, placing her in the mild mental
retardation range of intellectual functioning. (Id.).
Appx. 813, 815 (11th Cir. 2009) (unpublished) 4 (citing Barron v.
Sullivan, 924 F.2d 227, 229 (11th Cir. 1991)).
contains the Listings for mental disorders, which are arranged
(12.02); schizophrenic, paranoid and other psychotic disorders
(12.05); anxiety-related disorders (12.06); somatoform disorders
developmental disorders (12.10).”
20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.00(A).
In his decision, the ALJ states that “[t]he severity of the
combination, do not meet or medically equal the criteria of
listings 12.04 and 12.06.”
The ALJ then goes on to
decision does not reference Listing 12.05C, the decision makes
clear that in adopting the opinions of Dr. Tocci, including her
opinion that Plaintiff’s I.Q. scores were not valid, the ALJ
implicitly found that Plaintiff could not meet Listing 12.05C.
“Unpublished opinions are not considered binding precedent, but
they may be cited as persuasive authority.” 11TH CIR. R. 36-2.
To establish disability under section 12.05C, a claimant
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 work-related limitation
In addition, the claimant must satisfy the ‘diagnostic
description’ of mental retardation in Listing 12.05 (the listing
category for mental retardation/intellectual disability), 5 which
supports onset of the impairment before age 22.”
20 C.F.R. Part
404, Subpart P, Appendix 1, §§ 12.05.
The law in this Circuit provides that a valid IQ score of
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.
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 daily activities and behavior.
See Popp v. Heckler,
779 F.2d 1497, 1499-1500 (llth Cir. 1986).
Accordingly, the ALJ
is tasked with determining whether there is sufficient evidence
(relating to plaintiff’s daily life) to rebut the presumption.
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).
related to IQ testing
is a report by consultative examining
psychologist, Dr. Nina Tocci, Ph.D., in which she reported that
she administered an IQ test to Plaintiff on March 23, 2011, when
Plaintiff was twenty-one years old, and Plaintiff received a
Full Scale IQ score of 49.6
(Id. at 210-11).
However, Dr. Tocci
The undersigned recognizes that in the earlier ALJ decisions,
as well as in the opinion of the Appeals Council in this case,
there are references to other IQ tests taken by Plaintiff in
1999, 2001, 2006, and 2008.
(Supp. Tr. 338; Tr. 5-6, 45-57,
However, Plaintiff’s file from the earlier proceedings
was lost, and those tests, which were not a part of the record
before the ALJ or before this Court, cannot be considered in
That being said, the undersigned further notes that, even
if the other IQ tests were considered, they would not change the
outcome of this case.
With respect to Plaintiff’s IQ scores
from 1999 and 2001, they were not current at the time of the
ALJ’s February 20, 2013 decision and, thus, are not material to
See Vargas v. Commissioner of Soc. Sec., 2014 U.S.
Dist. LEXIS 181043, *26, 2015 WL 328110, *9 (M.D. Fla. Jan. 26,
2015) (“intelligence tests administered to children tend to be
less reliable than those performed on adults. . . . Indeed, as
a general rule IQ scores obtained before the age of 16 are
considered current only for two years.”) (quoting Social
Security Administration, Program Operations Manual System (POMS)
Dl 24515.055); Seabrooks v. Colvin, 2014 WL 5483169, *10 (N.D.
Fla. Oct. 29, 2014) (accord).
Furthermore, Plaintiff’s 2006 CTONI Nonverbal Intelligence
Score of 82 indicated “low average” intellectual functioning,
not mental retardation.
Thus, those results do not
support Plaintiff’s claims in this case.
Finally, the ALJ’s decision dated October 22, 2010,
references a 2008 WAIS-III Full Scale IQ Score of 58 (indicating
mild mental retardation), which, according to the ALJ’s
decision, the administering psychologist, Dr. Lee Stutts, Ph.D.,
opined was valid.
(Id. at 48).
However, the ALJ in that
decision determined that the score, even if valid, was
insufficient to establish mental retardation under 12.05C
because Plaintiff lacked significant deficits in adaptive
functioning to meet the requirements of Listing 12.05C. (Id. at
The ALJ further noted that Plaintiff’s school
The ALJ found that Dr. Tocci’s
supported by her clinical examination and testing of Plaintiff,
as well as the record as a whole.
A review of the record
evidence in this case provides substantial support for the ALJ’s
The record reflects that although Plaintiff received
special education services while in school, her overall school
indicate that Plaintiff functions at the borderline intelligence
level rather than the mental retardation level. (Tr. 222; Supp.
Tr. 420-21, 428). Further, in February 2012, Plaintiff’s longtime treating psychiatrist, Dr. Timothy Baltz, M.D., likewise
records and 2006 CTONI IQ testing showed “significantly higher
functional capacity” than represented by Plaintiff’s 2008 WAISIII scores.
(Id. at 47-49).
In addition, a teacher
questionnaire completed in 2008 showed that Plaintiff had no
more than “slight” problems in any listed area of acquiring and
using information, in using adequate vocabulary and grammar to
express thoughts and ideas, or in social and interpersonal
skills, and no problems in carrying out single or multi-step
instructions, focusing long enough to finish an assigned task,
following rules, or self care.
(Id. at 50).
The ALJ in the
2010 proceedings concluded that, even if Plaintiff’s IQ scores
were valid, the evidence of Plaintiff’s adaptive functioning
skills rebutted the presumption of disability, and Plaintiff
failed to meet the requirements of Listing 12.05C. (Id. at 5152).
The Undersigned finds that, as in the 2010 proceedings,
the substantial evidence of Plaintiff’s lack of significant
deficits in adaptive functioning in this case would likewise
rebut any presumption under 12.05C.
(Id. at 247).
Given the absence of a valid Full Scale IQ score of 60-70
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).”); accord Anderson v. Astrue, 2012 U.S. Dist.
LEXIS 124827, *14-18, 2012 WL 3834838, *4-6 (D.S.D. Sept. 4,
2012) (“An ALJ is not required to accept proffered IQ scores and
daily activities, medical history, educational background, and
behavior. . . . Absent a valid IQ score between 60 and 70,
[plaintiff] cannot meet Listing 12.05C, and the ALJ was not
required to address it in her findings.”); cf. Hartman, 2014
plaintiff met both of the requirements in 12.05C, the ALJ was
required to acknowledge the applicability of Listing 12.05C and
to afford the plaintiff the rebuttable presumption of deficits
in adaptive functioning); Hogue v. Colvin, 2014 U.S. Dist. LEXIS
59667, 2014 WL 1744759, *5 (S.D. Ala. Apr. 30, 2014) (where the
plaintiff had a valid score between 60 and 70, and the ALJ found
that the Plaintiff had other severe impairments, the ALJ was
evidence of a valid IQ score between 60 and 70, the ALJ was not
required to address Listing 12.05C, and Plaintiff’s claim that
the ALJ erred in failing to do so is without merit.
Whether substantial evidence supports
the ALJ’s RFC assessment for a range of
Next, Plaintiff argues that the ALJ’s RFC assessment is not
mention her depression, arthritis, tremor, and hypertension in
his RFC analysis.
(Doc. 25 at 4).
To the contrary, the record
shows that the ALJ did discuss these impairments in his decision
disabling in nature.
(Tr. 27-29, 31-33).
Residual functional capacity is a measure of what Plaintiff
can do despite his or her credible limitations.
See 20 C.F.R. §
Determinations of a claimant’s residual functional
capacity are reserved for the ALJ, and the assessment is to be
based upon all the relevant evidence of a claimant’s remaining
ability to work despite his impairments, and must be supported
by substantial evidence.
See Beech v. Apfel, 100 F. Supp. 2d
1323, 1331 (S.D. Ala. 2000) (citing 20 C.F.R. § 404.1546 and
Saunders v. Astrue, 2012 U.S. Dist. LEXIS 39571, *10, 2012 WL
decision is not supported by substantial evidence.
Heckler, 768 F.2d 1273, 1274 (11th Cir. 1985).
See Flynn v.
failed to meet her burden in this case.
consistent with the opinion of Plaintiff’s treating physician,
Plaintiff came in for a “certificate of disability,” that her
physical examination was completely “normal” and that she had no
(Id. at 219).
with the evidence related to Plaintiff’s mental impairments.
discussed, on March 23, 2011, Dr. Tocci administered the WAISIV, and Plaintiff received a full Scale IQ score of 49.
However, Dr. Tocci found the score to be invalid because
of Plaintiff’s “poor effort” and “contrived” responses.
Dr. Tocci also found Plaintiff’s mental examination to be
largely “normal,” except for a noted poor fund of information
and inability to abstract.
(Id. at 210).
personal and financial decisions.
Dr. Tocci opined that
functioning, as well as social anxiety disorder, “old” ADHD,
non-compliance, and suspected chaotic home environment.
Dr. Baltz’s treatment records during that time further
excited about NBA and NFL sports, that she enjoyed writing in
her journal, 7 and that she was “feel[ing] good.” (Id. at 247,
Even so, in June 2012, Dr. Baltz completed a Medical
Plaintiff had “marked” limitations in social functioning and in
nine work-related functional areas.
(Id. at 298-99).
Also, the record contains the Mental Residual Functional
Capacity Assessment and a Psychiatric Review Technique completed
by State Agency psychiatrist, Dr. Robert Estock, M.D., on April
5, 2011, in which he noted Plaintiff’s borderline intellectual
The evidence of Plaintiff’s journal writing and her grades in
high school, as detailed herein, belies her testimony that she
can neither read or write.
“moderate” degree of limitation in activities of daily living,
social functioning, and maintaining concentration, persistence,
or pace, and no episodes of decompensation.
(Id. at 192, 201-
In addition, Plaintiff’s high school records reflect that,
although she was receiving special education services, she made
Science, and Creative Writing, and a “B” in accounting.
222; Supp. Tr. 420-21, 428).
In addition, she had a 3.0 GPA in
the 11th grade, graduated from high school with a class rank of
31 out of 51, and passed the high school graduation exam, albeit
on the fourth attempt.
(Id. at 222, 428).
daily living reflects that she lives with her family and lays
around and watches TV all day, the evidence indicates, as the
ALJ found, that this activity is volitional and not the result
of any disability, as evidenced by the fact that she goes to
church every Sunday, sings in the choir, and attends church
activities and outings.
(Id. at 166, 209, 317-20, 323-24).
Plaintiff acknowledged that she has no problems with personal
care, can prepare simple meals, wash dishes, take out the trash,
and do housework.
(Id. at 155, 164-65).
Based on foregoing, the Court finds that the substantial
evidence of record supports the ALJ’s RFC assessment for a range
of light work, with the ALJ’s stated restrictions for simple,
Therefore, Plaintiff’s claim is without
Whether the ALJ erred in failing to give
substantial weight to the opinion of
Plaintiff’s treating psychiatrist?
Plaintiff next argues that the ALJ erred in rejecting the
opinion of her treating psychiatrist, Dr. Baltz, in the June
functioning and in nine work related functional areas.
instead, on the 2011 Mental RFC and Psychiatric Review Technique
completed by State Agency psychiatrist, Dr. Estock, in which he
opined that she had no more than “moderate” limitations in any
The Commissioner counters that
Dr. Baltz’s severely restrictive limitations in the June 2012
MSS are inconsistent with his own treatment records, as well as
the substantial record evidence in the case.
Plaintiff’s claim is without merit.
As part of the disability determination process, the ALJ is
decision, the ALJ must specify the weight given to different
medical opinions and the reasons for doing so.
See Winschel v.
Commissioner of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
The failure to do so is reversible error.
See Williams v.
Astrue, 2009 U.S. Dist. LEXIS 12010, *4, 2009 WL 413541, *1
(M.D. Fla. 2009).
must give the opinions “substantial weight,” unless good
cause exists for not doing so.
Costigan v. Commissioner, Soc.
Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4
(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).
The opinion of “a
one-time examining physician — or psychologist,” on the other
Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50,
2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford,
363 F.3d at 1160).
In addition, the Eleventh Circuit has held that an ALJ is
“required to consider the opinions of non-examining state agency
medical and psychological consultants because they ‘are highly
qualified physicians and psychologists who are also experts in
Social Security disability evaluation.’”
Milner v. Barnhart,
275 Fed. Appx. 947, 948 (11th Cir. 2008) (unpublished) (citing
20 C.F.R. § 404.1527(f)(2)(i)).
“The ALJ may rely on opinions
of non-examining sources when they do not conflict with those of
Id. (citing Edwards v. Sullivan, 937 F.2d
580, 584-85 (11th Cir. 1991)).
Whether considering the opinions of treating, examining, or
unsupported by the evidence of record.
Phillips v. Barnhart,
357 F.3d 1232, 1240 (11th Cir. 2004).
“Good cause may also
inconsistent with the doctor’s medical records, or unsupported
by objective medical evidence.”
Hogan v. Astrue, 2012 U.S.
Dist. LEXIS 108512, *8, 2012 WL 3155570, *3 (M.D. Ala. 2012).
The ALJ is “free to reject the opinion of any physician when the
evidence supports a contrary conclusion.”
Sryock v. Heckler,
omitted); Adamo v. Commissioner of Soc. Sec., 365 Fed. Appx.
opinion if the evidence supports a contrary finding.).
As discussed above, the record shows that in February 2012,
only four months before Dr. Baltz completed the MSS in June
intellectual functioning, social anxiety disorder, “old” ADHD,
non-compliance, and suspected somewhat chaotic home environment.
(Tr. at 247, 298).
In addition, his treatment records during
that time, up until four weeks before he completed the MSS, show
that Plaintiff was enjoying following sports, socializing with
relatives and neighbors, enjoying writing in her journal, and
(Id. at 247,
limitations set forth by Dr. Baltz in the June 2012 MSS are
inconsistent with this evidence, as well as with the opinions of
Dr. Tocci and Dr. Estock, discussed above.
Dr. Baltz’s opinions
are also inconsistent with the evidence related to Plaintiff’s
activities of daily living, as detailed herein.
For each of
these reasons, the Court finds that the ALJ had good cause to
discredit them, and Plaintiff’s
claim that the ALJ erred in
failing to assign Dr. Baltz’s opinions substantial weight is
D. Whether the ALJ failed to conduct a
full and fair hearing?
Because the ALJ had good cause to discount Dr. Baltz’s
psychiatrist, Dr. Estock, do not conflict with any credible
examining source, and thus, they were properly considered by the
ALJ. See Milner, 275 Fed. Appx. at 948.
Last, Plaintiff argues that, if the ALJ chose not consider
her childhood diagnosis of mental retardation and associated IQ
scores, he should have ordered a consultative examination and
required IQ testing, and his failure to do so was error.
It is well established that a hearing before an ALJ in
social security cases is inquisitorial and not adversarial.
claimant bears the burden of proving disability and of producing
evidence in support of her claim, while the ALJ has “a basic
duty to develop a full and fair record.”
Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam); see also
Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1269
whether or not the claimant is represented by counsel.
Shalala, 44 F.3d 931, 934 (11th Cir. 1995).
42 U.S.C. 421(h) provides that “in any case where there is
evidence which indicates the existence of a mental impairment,”
a determination that a claimant is not disabled “shall be made
only if the Commissioner . . . has made every reasonable effort
to ensure that a qualified psychiatrist or psychologist” has
offered an opinion or reviewed the record.
In McCall v.
existence of a mental impairment, the Commissioner may determine
Commissioner has made “every reasonable effort to obtain the
(quoting 42 U.S.C. § 421(h) (internal quotation marks omitted).
Later, in Sneed v. Barnhart, 214 F. Appx. 883, 886 (11th Cir.
2006) (unpublished), a panel of the Eleventh Circuit stated that
“McCall interprets § 421(h) [to] require an ALJ to order a
psychological consultation where there is evidence of a mental
However, the ALJ is not required to order a consultative
permit the ALJ’s RFC determination.
Ingram, 496 F.3d at 1269
(“The administrative law judge has a duty to develop the record
where appropriate but is not required to order a consultative
examination as long as the record contains sufficient evidence
decision.”); see also Good v. Astrue, 240 Fed. Appx. 399, 404
sufficient for a decision.”).
In this case, the ALJ did order a consultative examination
by Dr. Tocci, who conducted IQ testing in 2011 and found that
Plaintiff’s Full Scale Score of 49 was invalid because of poor
effort and because the answers were “contrived.”
In addition, the record contains the opinion of State Agency
Mental RFC Assessment, finding that Plaintiff had no more than
“moderate” limitations in any functional area.
(Id. at 201-06).
Thus, it is clear that the ALJ complied with 42 U.S.C. § 421(h)
in having Dr. Tocci examine Plaintiff and conduct IQ testing and
in having Dr. Estock conduct a review of the medical records and
This evidence, along with Plaintiff’s treatment records and
Plaintiff’s mental functional limitations from her impairments,
Plaintiff’s limitations exceed those in the RFC.
decision reflects that he had before him sufficient evidence
upon which to make the RFC determination, that he thoroughly
examined all of the record evidence, and that his determination
that Plaintiff can perform a range of light work is supported by
Accordingly, Plaintiff’s claim is without
consideration of the administrative record and memoranda of the
Commissioner of Social Security denying Plaintiff’s claim for
supplemental security income be AFFIRMED.
DONE this 21st day of July, 2015.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?